Climate Litigation and Justice in Africa, edited by Kim Bouwer, Uzuazu Etemire, Tracy-Lynn Field and Ademola Oluborode Jegede

New scholarship has identified trends, constraints, and opportunities for climate litigation in the Global South. While countries in the Global South tend to experience a lack of capacity within government agencies, civil society, and the judiciary, the Global South is not a homogenous group. Where climate litigation has been identified, the judiciary is often implementing government policy prescriptions in the absence of detailed climate legislation or filling enforcement gaps. But there are also a number of countries where climate litigation is not taking place or where gaps exist between ongoing litigation and traditional definitions of climate litigation. The scholarship is yet to further explore the relationship between climate legislation and litigation in the Global South, in particular in circumstances where ripe policy and legislative conditions for climate litigation exist. Taking into account different regional and national experiences, this essay explores that relationship.

TABLE OF CONTENTS INTRODUCTION I. METHODOLOGY A. Coding of Parties in Climate Change Litigation B. Types of Climate Change Litigation 1. Suits against Governments 2. Suits against Private Parties C. General objective of the litigation II. FINDINGS A. Litigation by Type 1. Dominant Litigation Categories 2. Government Enforcement Actions 3. Missing Categories B. Climate Litigation over Time C. Non-U.S. Climate Litigation by Jurisdiction 1. Australia a. Challenges to Emissions Sources (B7) b. Reverse Environmental Impact Assessment (B9 and B10) c. False Green Advertising (E 19) d. Substantive Litigation 2. New Zealand a. Renewable Energy Cases (B11 and B12) b. Challenges to Emissions Sources (B7) c. Rights Associated with Climate Change (C 13) 3. Spain 4. United Kingdom a. Challenges to Emissions Sources (B7) b. Renewable Energy Cases (B11 and B12) c. Rights Associated with Climate Change (C13) 5. European Union a. EU ETS Litigation b. Challenges to Other Climate-Related Legislation D. Players E. Climate Change Objectives F. Success of Climate Litigation III. ASSESSING CLIMATE CHANGE JURISPRUDENCE A. Impact of the Courts on Climate Change Policy B. Judicial Deference to Agency Decision-Making C. Climate Change Jurisprudence CONCLUSIONS AND LOOKING AHEAD INTRODUCTION A recent study of 66 countries by GLOBE International found that most jurisdictions have taken considerable legislative steps to address climate change. (1) Together, the countries in the GLOBE study have enacted almost (500) climate laws. (2) According to GLOBE, the typical Annex I country has passed a new climate change law every 18 months, except for 2008-2010, in which there was notable acceleration. (3) All but four countries have passed a flagship climate change law establishing a comprehensive, unifying basis for climate change policy. (4) The United States is one of the four countries with no flagship climate change law. Despite mounting scientific evidence, climate change has proven to be particularly contentious in the United States, and national legislative action has not been forthcoming. This political environment has created fertile ground for climate change litigation in the United States. By the end of 2010, the U.S. courts resolved 144 climate change claims. (5) In 2012, Professor David Markell of Florida State University College of Law and J.B. Ruhl of Vanderbilt University Law School published an empirical assessment of climate change litigation in the United States. (6) Markell and Ruhl concluded that while courts have generally acknowledged that climate change is an important issue, courts have not developed a distinct climate change jurisprudence. (7) In addition, while courts have tried to urge Congress and administrative agencies to act, there is little evidence to suggest that litigation has had much impact on climate change policy, with the exception of Massachusetts v. EPA. (8) Using the Markell and Ruhl study as a model, this paper investigates the role courts have played in the development of climate change policy outside the United States. Part I outlines the methodology employed to conduct a comprehensive analysis of non-U.S. climate change litigation. Part II discusses what types of claims have arisen; how climate litigation varies by jurisdiction; who the key players are; and their primary goals. Part III draws upon these findings to assess how courts have dealt with climate change and the role litigation is playing in the formation of climate change policy. I. METHODOLOGY This study aimed to include all reported climate change litigation decisions from all jurisdictions outside of the U. …

Bristol Studies in Law and Social Justice explores the role of law in securing social justice in society and the economy. The focus is on 'social justice' as a normative ideal, and the law as a critical tool in influencing (for good or for ill) the social structures that shape people's lives. This international series is designed to be inclusive of a wide range of methodologies and disciplinary approaches. Contributions examine these issues from multiple legal perspectives, including constitutional law, discrimination law, human rights, contract law, criminal law, migration law, labour law, social welfare law, property law, international and supranational law. The Series has broad jurisdictional coverage, including single-country, comparative, international and regional legal orders, and encourages a critical and interdisciplinary approach to legal analysis. viii List of Tables PEA studies on the disruption of the water cycle in Africa 2.2 Sectoral impacts of an intensified hydrological cycle and associated vulnerabilities newgenprepdf 1

Bristol Studies in Law and Social Justice explores the role of law in securing social justice in society and the economy. The focus is on 'social justice' as a normative ideal, and the law as a critical tool in influencing (for good or for ill) the social structures that shape people's lives. This international series is designed to be inclusive of a wide range of methodologies and disciplinary approaches. Contributions examine these issues from multiple legal perspectives, including constitutional law, discrimination law, human rights, contract law, criminal law, migration law, labour law, social welfare law, property law, international and supranational law. The Series has broad jurisdictional coverage, including single-country, comparative, international and regional legal orders, and encourages a critical and interdisciplinary approach to legal analysis. viii List of Tables PEA studies on the disruption of the water cycle in Africa 2.2 Sectoral impacts of an intensified hydrological cycle and associated vulnerabilities newgenprepdf 1

Bristol Studies in Law and Social Justice explores the role of law in securing social justice in society and the economy. The focus is on 'social justice' as a normative ideal, and the law as a critical tool in influencing (for good or for ill) the social structures that shape people's lives. This international series is designed to be inclusive of a wide range of methodologies and disciplinary approaches. Contributions examine these issues from multiple legal perspectives, including constitutional law, discrimination law, human rights, contract law, criminal law, migration law, labour law, social welfare law, property law, international and supranational law. The Series has broad jurisdictional coverage, including single-country, comparative, international and regional legal orders, and encourages a critical and interdisciplinary approach to legal analysis. viii List of Tables PEA studies on the disruption of the water cycle in Africa 2.2 Sectoral impacts of an intensified hydrological cycle and associated vulnerabilities newgenprepdf 1

While climate litigation has emerged as a tool to tackle rising emissions and its devastating consequences, climate litigation as a strategy and movement has yet to be thoroughly analyzed through the lens of movement lawyering. Thus, this paper seeks to draw from existing literature on movement lawyering to explore the relationship between climate litigation and movement lawyering principles, addressing separate yet related questions: What does it mean to be a movement lawyer working on climate change? How do principles of climate justice shape movement lawyering and thus, climate litigation? How do lawyers think about accountability to their clients and the broader climate movement? What, if any, are the implications of having climate change litigation that is not grounded on a movement lawyering model?

The climate crisis is the single biggest threat to global health, peace and security, a crisis multiplier, and a significant driver of health inequalities. In many areas of public health policy, legal action and litigation have delivered significant and long-lasting impacts. In April 2024, the European Court of Human Rights concluded that Switzerland had violated the right to health of older women in Switzerland by failing to meet its past greenhouse gas (GHG) emissions reduction targets and set future GHG targets. State-of-the-art public health evidence provided by the Intergovernmental Panel on Climate Change and Lancet Countdown on Health and Climate Change were vital to the Court’s decision, which has implications for all Council of Europe member states, and globally. Rigorous scientific evidence of health harms, including but not limited to heat stress, can inform other climate litigation grounded in the right to health. Public health researchers and practitioners are essential to this litigation. In recognition of this emerging role, in November 2023 the Faculty of Public Health (UK) and the Aletta Jacobs School of Public Health launched ‘From analysis to action: climate change litigation. A guide for public health professionals’ at the 16th European Public Health Conference. The guide was also endorsed by ASPHER, ASPPH, EUPHA, Global Consortium on Climate and Health Education, Global Network for Academic Public Health, Lancet Countdown, Public Health Ethics and Law Global Network, and WFPHA. This workshop will familiarise participants with recent rights-based climate litigation and explore the role of public health professionals in identifying, collecting, storing, assessing and presenting this evidence in a form that is accessible to court officials without medical training. First, there will be short presentations on 1) the role of the law in climate action and the role of scientific evidence of health harms in human rights litigation, and 2) How to collect and use scientific evidence of health harms in climate litigation (15 minutes). Small group discussions will follow, addressing questions such as: The health harm of climate change-related heat stress was a major factor in the 2024 decision of the European Court of Human Rights in KlimaSeniorinnen v. Switzerland: What other health harms could support future cases? In what population groups? What opportunities do you see today for public health researchers and practitioners to compile such evidence to make the most compelling case? How can public health researchers and practitioners work more closely with legal experts and affected communities to bring this evidence to court? (20 minutes) The workshop will conclude with a plenary discussion of these questions and the small group responses. (25 minutes) As a result of the workshop, participants will be better prepared to identify opportunities to contribute compelling evidence of health harms in climate litigation. Key messages • Rigorous scientific evidence of climate change-related health harms is proving central to success in rights-based climate litigation. • Public health professionals have a key role in identifying and presenting compelling evidence of health harms in climate litigation. Speakers/Panelists David Patterson University of Groningen, Groningen, Netherlands Farhang Tahzib Faculty of Public Health, Haywards Heath, UK

• Intersectional climate litigation has been on the rise in the last five years. • Ontological tensions arise between plaintiffs and courts in climate litigation. • Intersectional plaintiffs mostly target states, on mitigation and adaptation issues. • A subnational court in Australia is redefining evidence in climate litigation. • Intersectional lived experiences of plaintiffs are dismissed in courts. Climate litigation has been on the rise since the beginning of the century. However, the increased use of intersectionality by plaintiffs to highlight their particular vulnerability to climate change and its impacts remains understudied. This paper provides a review of eleven intersectional climate litigation cases, along with insights from a focus group of key informants, to examine the role of intersectionality in these cases through the lenses of intersectionality, vulnerability, and legal struggles. Particular attention is given to how plaintiffs construct intersectionality and how courts assess it, revealing underlying tensions and bridges between constructivist and materialist understandings of reality. Our findings show a growing presence of identities related to age, cultural background and health in litigation, mostly in cases targeting states and concerning issues of mitigation and adaptation. While our findings highlight shared perspectives between plaintiffs and courts, such as the extensive use of scientific evidence by plaintiffs to support their claims, tensions remain, notably due to the courts’ dismissal of plaintiffs’ intersectional and lived experiences in their assessments. Our study opens new avenues for research, including on decision-making processes, the value of intersectionality in climate litigation, and its legitimacy. By shedding light on the tensions and bridges present in intersectional climate litigation, this paper contributes to broader debates on interdisciplinary struggles, the role of legal and scientific evidence, and the complexity of climate vulnerability.

As the climate crisis worsens, climate change education (CCE) in schools faces growing pressure to become more rigorous, justice-oriented and holistic. Simultaneously, students and youth are increasingly involved in climate litigation, bringing suits against governments and corporations to compel enhanced mitigation and adaptation efforts. Recognising these parallel developments, this article explores the potential contributions of climate litigation to CCE in schools. To demonstrate such contributions, we apply Hargis and McKenzie’s CCE learning dimensions framework from 2020 to three case studies of youth-led climate litigation: Mathur v Ontario, Sharma & Others v Minister for the Environment and Students for Climate Solutions Inc v Minister of Energy and Resources. We then discuss the interactions between climate litigation and CCE more broadly, highlighting the pedagogical benefits and issues associated with incorporating climate litigation into CCE. Finally, to support effective use of climate litigation in CCE in the classroom, we propose a ‘mock trial’ activity and outline areas for future research.

This work analyses the paradox of climate injustice in Africa, where the continent least responsible for climate change is the most vulnerable to its impacts. We contend that traditional approaches to distributive justice, which are based on simple compensation and resource allocation, are insufficient. By treating Africa as a passive recipient, these approaches risk perpetuating neo-colonial patterns of dependence. Our analysis proposes moving beyond this framework through a capabilities approach, inspired by the works of Sen and Nussbaum. This perspective shifts the focus from the distribution of goods to the strengthening of the real freedoms of individuals and communities. It champions the agency of African peoples, recognising their capacity to act and to be the architects of their own destiny. The reinforcement of fundamental capabilities (such as access to education, health, and political participation, etc.,) constitutes the foundation for a proactive and transformative resilience. This vision does not simply aim to help Africa’ get back on its feet’ after a disaster, but to build more just and equitable societies by drawing upon endogenous resources and local knowledge. By concentrating on agency, we therefore demonstrate that climate justice and social justice are inseparable and that the fight against environmental impacts is an opportunity for endogenous development. In short, climate justice in Africa cannot be conceived of as a handout, but as the outcome of a process of emancipation and the recognition of the self-determination of African peoples.

Purpose Limited studies report the potential ethical consequences of global climate change efforts towards African countries. To fill this void, this study investigates the ethical aspects of climate justice and how they relate to African development by using the capability approach to justice and postcolonial environmentalism theories. Design/methodology/approach The study used a qualitative multiple case study approach. Purposive sampling was used to select 15 participants. The participants were representatives from various sectors, including government agencies, non-governmental organisations, academia and community leadership. They were drawn from a target population due to their expertise in climate governance. Data was gathered through semi-structured interviews, policy documents and institutional narratives. Thematic analysis, through NVivo, was used to identify patterns. The data were interpreted through inductive and deductive lenses, which included the capability approach and postcolonial environmentalism. Findings The study found that African stakeholders view climate justice through a powerful ethical prism bound up with a sense of historical responsibility, moral accountability and structural inequalities. Although the world’s poorest continent contributes least to global emissions, Africa is highly vulnerable to climate effects like droughts, floods and food insecurity. Participants stressed the unfair share of mitigation as well as the lack of adequate compensation or support from developed countries. The findings point to the need to support adaptation with a justice perspective, direct community financing and equal access to climate finance and technology. Research limitations/implications Further research should focus on the role of indigenous knowledge systems and traditional governance in increasing resilience and climate justice. Comparison studies between African countries and other regions in the Global South might enhance our understanding of the global pattern in climate injustice. Practical implications Africa’s historical marginalisation and structural vulnerabilities need to be acknowledged and embedded in global climate negotiations. Green industrialisation and inclusive policymaking are suggested. Climate finance mechanisms should be reconfigured to create just and direct access for the African nations, starting from the grassroots and community level, where the impacts of climate change are most damaging. Social implications Climate justice in Africa requires a fundamental shift from current approaches to one that acknowledges historical responsibility, ensures equitable burden-sharing and prioritizes direct community support through accessible financing and technology transfer to address the continent’s disproportionate vulnerability despite minimal contribution to global emissions. Originality/value This study adds to the limited studies that report the potential ethical consequences of global climate change efforts towards African countries. In so doing, the study expands the capability approach to justice by demonstrating how African countries, particularly in rural and nearby urban areas of Sub-Saharan Africa, face heavy challenges with emission reduction efforts, which are harming their development progress and threatening food security, health systems and people’s livelihoods. The study dwells on the postcolonial environmentalism framework to advocate for a reconception of climate justice in Africa.

Climate change represents a global crisis that transcends borders, affecting every nation and community as climate justice gains prominence and seeking remedies to address climate-related issues becomes crucial. Environmental Public Interest Litigation (EPIL) has emerged as a potent instrument to hold governments and corporations accountable for their contributions to climate change and its consequences. This article explores the theories that underpin climate justice, examines the practical applications of EPIL worldwide, and delves into the intriguing prospect of adopting the Chinese mode of EPIL in transnational climate disputes. As one of the world's largest economies and greenhouse gas emitters, China plays a pivotal role in the global fight against climate change. This article explores how climate justice can be pursued in China through the avenue of EPIL. It examines the underlying theories that support the concept of climate justice, delves into the practical applications of EPIL in the realm of climate change, analyzes China's climate legislation and relevant judgments, and discusses the enforcement challenges and prospects for advancing climate justice through EPIL in the Chinese context. The 21st century has witnessed an unparalleled awakening to humanity's environmental challenges, particularly the global climate change crisis. As the adverse impacts of climate change become increasingly evident, the urgency to address its consequences has led to the concept of climate justice. Climate justice acknowledges the disproportionate burden of climate change on marginalized communities and future generations, emphasizing the need for equitable and sustainable solutions. EPIL has emerged as a legal strategy to uphold climate justice, aiming to bring about systemic change by leveraging the power of the courts to protect the environment and human rights. The urgency of addressing climate change has made it a defining challenge of our era. Its implications extend beyond national borders, affecting ecosystems, economies, and vulnerable populations worldwide. Climate justice underscores the ethical responsibility to address climate change's disproportionate impacts on marginalized communities and future generations. An important and developing area of environmental law is the use of litigation to seek climate justice. There is an immediate and critical need for strong legal frameworks to tackle the growing threat of climate change and global warming to ecosystems and at-risk populations. A strong theoretical basis for comprehending and progressing climate litigation is provided by concepts like public nuisance, public trust, and human rights. Cases like Milieudefensie et al. [3] in Europe show how lawsuits are being used more and more to enforce climate pledges and rectify environmental damage, while environmental public interest litigation in China has made great strides in holding entities responsible for ecological damage. Establishing more thorough international frameworks and extending these legal procedures outside domestic contexts will be the task going forward. To overcome these restrictions and promote a more united global response to climate change, regional treaties and transnational climate litigation like the ones proposed for ASEAN could be crucial.

Climate change litigation has grown exponentially in the last decade, paralleled by the emergence of a rich legal and social sciences literature assessing these cases. Building on a recent review in WIRES Climate Change, this article evaluates the growth of this literature and the key themes it highlights. In 2019, climate litigation literature experienced substantial growth, with a focus on multiple novel dimensions: new high-profile judgments; emerging legal avenues, types of actors, litigation objectives, and jurisdictions, especially those in the Global South; and additional interdisciplinary analyses. Just as in the underlying case law, climate litigation scholarship shows evidence of distinct but overlapping waves that build together in a manner similar to a harmonic chord. Even so, this literature has not yet engaged deeply with questions about the effectiveness of climate litigation as a governance tool, particularly in the context of the decentralized system formalized with the 2015 Paris Agreement.

This editorial introduces a special collection of articles on the role of human rights law in climate litigation. The collection draws on selected papers presented at the ground-breaking workshop ‘Implementing the Paris Agreement: Comparative Lessons from the Global Human Rights Regime’, which took place on 6–7 May 2021 at Sant’Anna School of Advanced Studies, Pisa, Italy. The workshop brought together scholars and legal practitioners in order to share insights and explore the future potential of human-rights-based climate litigation. The idea behind both the workshop and this collection of articles is to take stock of recent developments in climate change litigation

People around the world are turning to the courts to ensure that steps are taken to tackle climate change, using litigation as a tool to force action. An emerging trend in climate litigation is to look to other legal regimes for sources of climate obligation and there is a growing number of climate change cases looking at the relationship between human rights and climate change, and refugee law and climate change. This paper looks at the role of the law of the sea regime in climate change cases, in which some connections to ocean issues are identified – either because the activities that contribute to GHG emissions takes place in the ocean space, or because the effects are felt there. One main finding is that that the use of the law of the sea-based rights and obligations is almost non-existent in climate litigation. Another main finding, based on an analysis of one of the relevant cases, namely the Norwegian Climate Change Case, is that the general obligations established by section 1 of Part XII of the LOSC represent an untapped resource to legal obligations in climate litigation.