Time and narrative in climate litigation: Reflections on Pabai v Commonwealth of Australia

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. …

Cases involving climate change have been litigated in the courts for some time, but new directions and trends have started to emerge. While the majority of climate litigation has occurred in the United States and other developed countries, cases in the Global South are growing both in terms of quantity and in the quality of their strategies and regulatory outcomes. However, so far climate litigation in the Global South has received scant attention from the literature. We argue that climate litigation in the Global South opens up avenues for progress in addressing climate change in highly vulnerable countries. We first highlight some of the capacity constraints experienced in Global South countries to provide context for the emerging trend of strategic climate litigation in the area. In spite of significant constraints experienced, the strategies adopted by litigants push the climate litigation agenda forward as a result of their outward-looking objective of combating ongoing environmental degradation, and, on a doctrinal level, the way in which they link climate change and human rights. Bearing in mind the limitations resulting from the selective nature of the cases examined, we draw upon Legal Opportunity Structures (LOS) approaches and identify two reasons for innovative cases and outcomes in Global South strategic climate litigation: (i) how litigants are either overcoming or using procedural requirements for access to environmental justice, and (ii) the existence of progressive legislative and judicial approaches to climate change. The strategies and outcomes from these judicial approaches in the Global South might be able to contribute to the further development of transnational climate change litigation.

A rejoinder to Benoit Mayer's response to our article "Causality and the fate of climate litigation: The role of the social superstructure narrative" 1 .

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.

Climate litigation has emerged as a transformative legal mechanism for addressing environmental accountability in the face of accelerating climate change. This paper examines the evolution of climate litigation from a nascent legal strategy to a sophisticated and rapidly expanding field that encompasses strategic litigation against both governmental and corporate actors. Through analysis of landmark cases including Urgenda Foundation v. State of the Netherlands and Milieudefensie v. Shell, this study demonstrates how climate litigation has redefined legal concepts of duty of care, corporate responsibility, and human rights obligations in the climate context. The research reveals that climate litigation serves multiple functions: enforcing existing climate commitments, establishing new legal precedents for accountability, and creating pressure for enhanced climate action where political will is insufficient. With over 2,900 cases filed globally as of 2024, climate litigation represents a paradigm shift toward judicial enforcement of climate obligations, fundamentally altering the landscape of environmental law and accountability mechanisms. The analysis concludes that climate litigation constitutes a new frontier that bridges traditional environmental law with human rights principles, creating unprecedented opportunities for holding both state and non-state actors accountable for their contributions to climate change.

This introduction presents a special collection of the Journal of Human Rights Practice, ‘Developments, Opportunities and Complexities in Global South Climate Litigation’. It conceptualizes and problematizes ‘climate litigation’ and the ‘Global South’, and brings together perspectives from a diverse range of scholars and practitioners from the Global South to advance knowledge on how climate litigation in the region has developed in recent years. The number of cases discussed, and the depth of analyses illustrate that the region is contributing to the pursuit of climate justice through litigation. The collection showcases a rich body of scholarship on climate litigation from African, Latin American, and Asian perspectives. In the face of political, cultural, and other barriers to knowledge production, contributions demonstrate nuanced, contextual engagement with climate litigation in the Global South. Therefore, this collection challenges the narrative that cases dealing with climate change and its human rights and justice implications are few and far between in the Global South. It emphasizes their relevance for the global discourse on climate litigation.

Climate litigation is a hot topic. Worldwide, jurisdictions are being presented with novel legal cases aiming to address the devastating effects of climate change. Domestic, regional and international courts are facing the challenge, deciding climate-related cases by using a myriad of approaches. Latin America is host to many of these climate litigation cases. Yet, in mainstream climate litigation literature, the role of litigation in Latin America is often overlooked, especially the role of litigation in ‘peripheral’ claims. We argue that limiting the definition of climate litigation to cases that directly invoke climate-change-related claims, albeit useful, ignores a significant number of cases with potentially strong influence in climate governance. We contend that Latin America provides a wide and relevant range of climate cases that could inform how climate governance is shaped, but that the majority of these cases rely on ‘peripheral’ climate claims: that is, on claims that may not directly mention climate change laws or data but which nevertheless have an impact on climate governance. Some of these claims refer to biodiversity protection (ie in the Amazon basin), while others appeal to climate change causes (ie air pollution). Furthermore, cases with innovative approaches such as those invoking the Rights of Nature or Intergenerational Equity also touch upon climate governance and the human–nature relationship. This article draws on the expanding body of climate-related cases in Latin America in order to assess the role of the region in advancing climate litigation.

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

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.

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.

Thinking Strategically About Climate Litigation

his article examines the nexus between climate vulnerability, rights and litigation with a focus on the Global South. Reducing vulnerability is inherent to climate adaptation and the protection and realization of human rights. However, despite these linkages, vulnerability has been given scant attention in climate law literature. Through a more detailed understanding of vulnerability, we can identify a wider variety of cases that are relevant to why people are climate vulnerable and the potential for strategic interventions. Accordingly, using an interdisciplinary framework drawing upon political ecology, the article outlines two broad approaches to vulnerability: the hazards approach, based upon protecting people from the physical impacts of climate change; and the social vulnerability approach, which foregrounds the socio-political factors that underpin why particular groups of people are more vulnerable than others. India is then used as a case study to illustrate three types of litigation relevant from a vulnerability perspective: litigation on droughts, land conflicts and agrarian debt. These cases, though not traditionally defined as ‘climate litigation’, fundamentally concern issues of climate vulnerability, adaptation and rights. The cases demonstrate how different framings of climate vulnerability are embedded within the arguments and directions of the courts. Ultimately, the article argues that through a closer understanding of climate vulnerability, litigation can be a vehicle for adaptation by identifying and tackling the structural causes of vulnerability and rights issues.


 
 
 The decade starting from 2010-2020 was recorded the warmest decade in the history. The new principles such as Climate litigation, climate justice, climate legislation have been catapulted to the forefront of the environmental litigation and environmental laws. As per the United Nations Framework Convention on Climate Change (UNFCC) the human activities is the substantial cause for increasing of Greenhouse gases in the atmosphere which would results in additional warming of the earth‘s surface and the atmosphere and also may adversely affect the natural eco system and human kind. Article 2 of the UNFCCC defines climate change as, a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods. Changes in the physical environment or biota resulting from climate change which have significant deleterious effects on the composition, resilience or productivity of natural and managed ecosystems or on the operation of socio-economic systems or on human health and welfare are the effects of climate change. As a matter of fact climate change is the direct result of global warming and the emission of greenhouse gases to the atmosphere has escalated the earth‘s temperature level. The Resolution adopted by the General Assembly which includes 2030 Agenda for Sustainable Development urges States to take urgent action to combat climate. UNFCC, Kyoto Protocol and Paris Agreement constitute the international legal regime that deals with climate change. These were the results of entering into international consensus in the aim of reducing the greenhouse emission and thereby to effectively handle the climate change impacts. The objective of the paper is centered on the appraisal of the international and national legal framework that have been enacted to curb the climate change. To this end the research paper employs a qualitative methodology. Conventions, Resolutions adopted by the United Nations, legislations such as National Environment Act, Fauna and Flora Act, Coastal Conservation Act etc , policies and regulations, case laws from foreign jurisdiction are utilized as primary sources and the scholarly articles, journals, peer reviewed articles are utilized as secondary sources. The findings of the paper emphasizes that the synergy between the international and national legislations should be strengthen if the legislature is to find prolific solutions to this complex issue. Finally the paper concludes that it must be taken into consideration that if all States are to combat this unprecedented crisis, no instrument can be ignored.
 Keywords: Climate change, Climate litigation, Environment, Global warming, Sustainable development
 
 

Climate Change Law and Brazil: Climate Litigation As the Ultimate Ratio?

Recent court decisions in Australia and in overseas jurisdictions have made important progress in society’s acceptance of the significance of climate change in the long-term protection of the environment. The term ‘climate litigation’ is now generally used to refer to legal proceedings initiated to establish responsibility for a failure to prevent or reduce the rate of climate change and/or mitigate its negative consequences. Such legal proceedings are being initiated in courts, tribunals and other rule compliance monitoring bodies, operating around the world, at the domestic, regional, or global level. One decision, in the New South Wales Land and Environment Court on 26 August 2021, orders the New South Wales Environment Protection Authority to develop environmental quality objectives, guidelines and policies to ensure protection of the environment from climate change with regard to its duties under the Protection of the Environment Administration Act 1991. This decision is regarded as a landmark decision in New South Wales in that it orders a statutory authority to exercise its duty and legal responsibilities under the Protection of the Environment Administration Act with regard to the level of seriousness that climate change impacts have reached for the New South Wales environment. The case is also significant because the definition of “environment” under the Protection of the Environment Administration Act encapsulates a broad range of ecological elements, including the “soil”. In this context, this chapter argues that the decision is important for a number of reasons including: by interpretation “soil” is a component of the “environment” and it should be protected from climate change under the Protection of the Environment Administration Act; the way the decision is made provides a guiding framework which can used to examine existing environmental laws for protection of the soil environment against climate change; and it provides a guiding framework to prepare new soil legislation with the requisite procedures to develop environmental quality objectives, guidelines and policies to protect the soil environment from climate change. Having regard to these various aspects of the decision, they provide a guiding structure in which to assess the protection of the soil environment in New South Wales, but also a procedure which might be beneficial to other countries to assess the legal protection of the soil environment. The way soil is being used in Australia and around the world is directly contributing to global warming by releasing carbon dioxide and other greenhouse gases to the atmosphere. Soil degradation from agricultural land use, vegetation clearing and urban and infrastructure projects and pollution of soil from industrial works require closer attention from legislative and policy structures. Therefore, it is appropriate that increasing attention must be placed on the protection of the soil environment through the adoption of legislative, policy and mitigation responses which prevent the use of soil in a manner that makes it a significant contributor to climate change.