Climate litigation: some methodological and theoretical insights from a comparative law perspective

Sofia Simou, UAM

2024

Climate litigation is being progressively elevated to an integrating part of the “Ecological Justice” concept given that ecology as well as sociology demand immediate climate action in order to achieve natural equilibrium on the long term and avoid an ecological collapse. The current entry on climate litigation foundations aims at drawing some general legal theoretical and methodological conclusions on the topic from a comparative perspective. Its objective is to contribute to analyzing the implementation of climate’s inherent value into rule and decision-making processes, to assessing the procedural techniques for representing climate interests (concretely, the standing conditions for bringing a climate case before courts) and to establishing the role of intralegal and interdisciplinary interactions of law with natural sciences, philosophy, sociology and political science in order to understand the shaping of judicial decision-making in this field. 

Nearly twenty years have passed since the timid appearance of the first-wave climate change cases. Within this period, legal literature and practitioners have progressively identified in climate litigation a useful tool to reinforce the global public-private efforts in the fight against climate change. There can be no doubt that climate litigation sparks fervent debate and promotes social awareness on the topic. Concretely, climate litigation´s strategic character aims at making science and information more accessible to public opinion in democratic regimes. However, problems such as the lack of concrete empirical studies that can measure its overall effectiveness in promoting climate goals, the precise delimitation of the scope of control that judges hold when adjudicating political-scientific issues, the evolution of the science of attribution for more properly drawing the causality chain when adjudicating liabilities as well as the legal theoretical hurdles in rights-based litigation are a constant source of debate between legal scholars. 

Despite all the controversy, it is an undeniable fact that strategic climate litigation has been following a clear upward trend in the last eight years undergoing a dynamic process of transformation with an impact on diverse methodological, epistemological and theoretical legal issues. Some of them can be categorized in the following two blocks.

I) On the one hand, questions of a methodological nature related to climate litigation concern: 

a) the cautious application of the legal comparative method to draw conclusions on the state of climate litigation worldwide; 

b) the need of depuration by literature of the concept of “climate litigation” so as to promote a more coherent way of legal comparison by achieving a consensus on the cases that should be categorized under this concept (anti-regulation cases, peripherical cases or only explicitly and directly raised climate interest cases); and

c) the need to conduct interdisciplinary studies to measure the real impact of climate litigation (such as the ones carried out in the past in the tobacco cases) and its particularities regarding general legal doctrines (for example, in the field of constitutional fundamental rights´ theories, or regarding the causation and liability theories in international public, administrative and civil law fields).

More specifically, some of the most important methodological difficulties when conducting comparative analysis on climate litigation derive from the proper nature of the climate crisis. Climate change is a global phenomenon both in terms of its causes and its impacts. Climate litigation is, consequently, of the same nature. It concerns a reality that occurs in a variety of countries of different level of wealth, geographical position and climate vulnerability and exposure. Cases are brought before courts by a variety of actors attending to their nature (public, private, NGOs); in a variety of jurisdictions from a horizontal and vertical perspective of distribution of judicial-making powers (international, administrative, civil, constitutional, criminal law fields); by invoking a variety of grounds or merits (human rights, breach of international law or other environmental obligations, public trust doctrine, tort law, liability, judicial review of governmental or legislative action or inaction, etc.) and in highly diversified fields of human activity (energy, urban planning, financing, etc.). This broad complexity that characterizes climate litigation constitutes an important methodological hurdle when willing to conduct rigorous comparative law analysis since it has led to a wide diversification and progressive expansion in relation to the type of grounds on which climate claims are based, types of plaintiffs and defendants, type of jurisdictions, areas  of law involved and merits invoked in judicial processes.

Legal cultures worldwide are also very asymmetrical when it comes both to analyzing their regulatory techniques and methods to tackle global warming but also when trying to understand the position of courts and the scope of judicial review in their legal systems. Some legal systems traditionally favor the resolution of tensions and conflicts before tribunals (for example, US is a litigious country) while others historically show a cultural aversion to adversarial dispute settlement systems opting for more administrative  or negotiated solutions (for example, Russia). 

In other countries, where industrial lobbies have a highly influential position in climate policy- and law-making processes or where political representatives play a very dominant role in energy companies the occurrence of climate or nature rights´ cases is rare and the passing of climate legislation extremely difficult.

Also, in jurisdictions where no legislative provisions exist enabling claimants to bring a challenge to a state’s actions or inaction before courts such as in China, climate litigation or the protection of the rights of nature is very uncertain to appear in the short term. 

Finally, climate litigation occurs across different geographical scales that also makes legal and socio-political comparison difficult. Although climate causes and impacts are strongly interrelated, each country and its communities faces its own hurdles when tackling climate change because of its specific climate vulnerability and exposition circumstances, so climate cases substantially vary from place to place. For example, in South Africa the structure of a big part of its urban informal settlements (with millions of people) is characterized by no basic services or they are located on wetlands making these places much more vulnerable to climate change impacts. In this sense, their inhabitants are more likely a) to litigate before courts seeking social climate justice and more ambitious action by the governments and legislators when facing climate change; or b) to be converted in case of severe climate impacts for climate refugees seeking new settlements, a situation that they may seek to avoid through litigation.

II) On the other hand, climate litigation is increasingly raising questions of an epistemological or theoretical substance worldwide that concern:

a) the relationship between politics, science and law when legislators enact rules in climate matters, Administrations interpret and apply climate regulations and judges process scientific data to adjudicate or deny their justiciability to enter into the substance of the climate change reality; 

b) the scope and standards of judicial control with respect to the legislative and administrative climate action and the necessary re-interpretation of the principle of separation of powers normally in legal cultures where a strict approximation to this principle is adopted and the “political question doctrine” prevents climate lawsuits from being adjudicated in substance by courts; 

c) the causation rules and the standards on proof and evidence that are being handled from the judiciary when adjudicating on climate matters and that need to be re-adjusted in order to tackle natural problems that go beyond the ordinary causality standards;

d) and the nature of standing rules that depending on their concrete formulation can prevent or incentivize access to justice in climate matters.

Further readings:

Tabios Hillebrecht, A. L. and Berros, M. V. (eds). “Can Nature Have Rights? Legal and Political Insights,” RCC Perspectives: Transformations in Environment and Society  2017, no. 6, available at: https://www.environmentandsociety.org/perspectives/2017/6/can-nature-have-rights-legal-and-political-insights

Kloepfer, M. and Neugärtner, R. Liability for Climate Damages, Sustainability and Environmental Justice, in: Wolfgang Kahl / Marc-Philippe Weller (eds.), Climate Change Litigation: A Handbook, Beck Nomos, München, 2020.

Simou, S. The emergence and potential of climate change litigation: methodological and theoretical legal challenges, European Review of Public Law, vol. 35, núm. 1, 2023, pp. 145-197.

Sindico, F. and Moïse Mbengue, M. (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Springer, Cham Switzerland, 2021.