Advancing Climate Justice: the New IBA Model Statute for Proceedings Challenging Government Failure to Act on Climate Change

Abstract

Citizens on many continents, increasingly worried with the failure of their States and others to urgently limit domestic GHG emissions to address the climate crisis, are turning to domestic courts for remedies and, more generally, climate justice. Yet for most domestic Judges, proceedings in their Courts questioning national or sub-national inaction to address global climate change are largely uncharted waters. Governments are telling Judges, e.g., that climate law and policy is “not justiciable,” that their country’s emissions are ‘de minimis’ compared to total global emissions, or that a Court order requiring one country to reduce its GHG emissions cannot redress a global problem demanding solutions coordinated at the international level. This article has two integrated components. Part I examines examples of citizen-initiated climate lawsuits Courts have either dismissed on standing grounds, or in which they have refused to grant effective relief based upon common governmental defenses such as those referred to above. Part II describes key innovative reforms to domestic court procedures and rules of evidence that would open clear pathways for citizens and organizations to seek, and for domestic Courts to provide, important remedies to overcome government inaction on climate. The reforms are based on the recently released International Bar Association “Model Statute for Proceedings Challenging Government Failure to Act on Climate Change,” that was guided in its original drafting by an expert international working group co-chaired by one the authors of this article.