The influence of climate change litigation on governments and the private sector

Abstract

In recent years, the number of court cases around theworld raising the issue of climate change hasincreased dramatically, especially in jurisdictions that have not yet adopted effective national responsesto climate change, such as Australia and the United States. In these countries, litigation provides analternative path to encourage mitigation of the causes and adaptation to the effects of climate change.In Australia, much of the litigation, particularly the early climate change cases, has taken place in statecourts or administrative tribunals, and has focused on applying existing legislation to require governmentdecision-makers to consider future climate-associated risks in planning decisions. The influence of thesecases have been wide reaching, leading to the revision or formulation of government policies on miningand coastal management. Other cases, particularly within federal courts, have been less successful, buthave nonetheless highlighted areas in need of law reform. In the United States, recent high-profile casestargeting major sources of greenhouse gas emissions including power stations have raised novel argumentsbased on common law public nuisance grounds and the public trust doctrine. This article examines theextent to which climate change litigation, mainly in Australia, but also in the United States, has influencedgovernment decision-makers, legislatures, and polluters to curb emissions and adapt to the impacts ofclimate change.