In search of impact: climate litigation impact through a human rights litigation framework

Abstract

Climate litigation has expanded across the world as courts have increasingly become a forum for the contestation of climate-related issues. Yet the impacts of climate litigation are under-explored. While climate litigation has proliferated over the past fifteen years, human rights litigation is an older area of practice from which a wealth of insights about the impact of litigation has been gained and systematized. This article argues that conceptions of impact developed in human rights litigation scholarship offer an opportunity to better understand the impact of climate litigation. It considers the human rights litigation impact framework developed by Helen Duffy, which spotlights three sites of impact overlooked in climate litigation literature: ‘victim’ impact; impact on information, truth and historical record; and negative impact. The value of considering these three sites of impact in the context of climate litigation is illustrated through a discussion of two cases: Gloucester Resources v Minister for Planning and Leghari v Federation of Pakistan. The analysis reveals several limitations that emerge when applying the human rights litigation framework to the climate litigation context. Each of these limitations arguably arises from the legally disruptive nature of climate change, and the incapacity of the examined human rights litigation impact framework to respond to this legal disruption. This finding suggests that climate change can therefore be understood as not only disruptive to legal systems, but also to the frameworks used to identify and assess the impacts of litigation on these systems. In concluding, this article offers a number of considerations for developing future frameworks to identify and assess the impact of climate litigation.