Issues in Climate Change Litigation

Abstract

As government efforts to address climate change flounder in many countries and at the international level, environmental advocates have increasingly turned to courts to fill the void in climate change governance. Litigation seeking climate change mitigation or adaptation has been initiated in a number of jurisdictions and encompasses a broad range of legal forms.1 Action has been taken both against corporations emitting large amounts of greenhouse gases (GHG) to the atmosphere, and against governments for their failure to factor climate change into planning and development decision-making adequately.2 Notwithstanding this diversity, there are a number of recurring issues or challenges that confront plaintiffs mounting climatebased claims in the courts. These issues are a reflection of the complexities of the problem of climate change, and the challenges it poses for conventional legal forms and governance approaches.3 This article canvasses several common issues that arise across the broad spectrum of climate change litigation. They are illustrated by reference to case studies drawn from Australia and the United States (US) – two countries that have experienced a significant upsurge in climate change litigation in recent years. The issues discussed include the question of whether a single polluting facility can be held responsible for the global impacts of climate change; the capacity to assess cumulative and indirect (or downstream) effects in evaluating a project’s climate change implications; and the difficulty of demonstrating a causal link between greenhouse gas emissions from a particular development and specific, localized impacts.4 The article also considers the challenges climate change litigation poses for judicial legitimacy if courts – rather than legislatures – are cast as a primary source of climate regulation and governance. CCLR 1|2011 15