Thinking Strategically About Climate Litigation

Abstract

Efforts to drive action on climate change are increasingly turning to courts. Climate litigation is nothing new, but there has been a recent surge of cases with strategic ambitions. This use of litigation to achieve strategic goals mirrors a long history of human rights practitioners using litigation to achieve policy change. While climate litigators are recognizing the relevance of substantive human rights arguments to climate change, they have paid limited attention to how the human rights community has used litigation. This is a missed opportunity. The human rights community has spent decades debating the role of strategic litigation in effecting lasting change, reflecting on the role of strategic litigation and its relationship with other forms of advocacy and activism, and identifying how to minimise the risks of litigation and maximise its impact. There is potential for climate litigators to use and build on the hard-won lessons that human rights advocates have learned about how to use litigation most effectively and strategically when facing problems with deep social, economic and political roots. This paper outlines those links: it identifies the emergence of the next generation of climate litigation involving cases with strategic ambition; outlines the debates on strategic litigation within the human rights community; and considers how the lessons from those debates apply to climate litigation.