The Status Of Climate Change Litigation

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THE STATUS OF CLIMATECHANGE LITIGATIONA GLOBAL REVIEW

THE STATUS OF CLIMATECHANGE LITIGATIONA GLOBAL REVIEW

The Status of Climate Change Litigation United Nations Environment Programme, May 2017The Status of Climate Change Litigation – A Global ReviewISBN No: 978-92-807-3656-4Job No: DEL/2110/NAAcknowledgementsThis publication was developed by the United Nations Environment Programme (UN Environment) in cooperation with the SabinCenter for Climate Change Law at Columbia University in the City of New York, United States of America. The report was draftedby Michael Burger, Executive Director of the Sabin Center for Climate Change Law, and Justin Gundlach, Climate Change LawFellow at the Sabin Center for Climate Change Law. The final critical review and consolidation of the draft was undertaken andoverseen by Arnold Kreilhuber, Head of the International Environmental Law Unit, Lara Ognibene, Legal Officer, Angela Kariuki,Legal Assistant, and Alvin Gachie, Legal Assistant, with the Law Division of UN Environment.ReproductionThis publication may be reproduced in whole or in part in any form for educational and non-profit purposes without specialpermission from the copyright holder, provided that acknowledgment of the source is made. UN Environment Programme willappreciate receiving a copy of any publication that uses this material as a source.No use of this publication can be made for resale or for any other commercial purpose whatsoever without the prior permissionin writing of UN Environment Programme. Application for such permission with a statement of purpose should be addressed tothe Communications Division, UN Environment Programme, P.O. Box 30552 – 00100 Nairobi, Kenya.The use of information from this document for publicity or advertising is not permitted.DisclaimerThe designations employed and the presentation of the material in this publication do not imply the expression of any opinionwhatsoever on the part of the Secretariat of the United Nations or the United Nations Environment Programme concerning thelegal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries.Moreover, the views expressed do not necessarily represent the decision or the stated policy of the Secretariat of the UnitedNations or the United Nations Environment Programme, nor does citing of trade names or commercial processes constituteendorsement. We regret any errors that may have been inadvertently made.Produced byLaw DivisionUN Environment ProgrammeP.O. Box 30552 - 00100, Nairobi, KenyaTel: 254 20 762 336 5Email: law.director@unep.orgwww.unep.orgPrinting:UNON, Publishing Services Section, Nairobi, ISO 14001:2004-certified.D1 No: 17-02953/100In cooperation with2

ContentsThe Status of Climate Change LitigationExecutive Summary.4Introduction.6Part 1: The Importance of Climate Change Litigation .7Part 2: The State of Climate Change Litigation.102.12.22.3A survey of climate change litigation.10Trends in climate change litigation.142.2.1Holding governments to their legislative and policy commitments.142.2.2Linking the impacts of resource extraction to climate change and resilience.182.2.3Establishing that particular emissions are the proximate cause of particularadverse climate change impacts.192.2.4Establishing liability for failure to adapt and the impacts of adaptation.222.2.5Applying the public trust doctrine to climate change.23Emerging trends in climate change litigation.252.3.1“Climate refugees”.252.3.2More litigation in the Global South.25Part 3: Legal Issues in Climate Change Litigation ng.283.1.2Separation or Balance of Powers.30Sources of Legal Rights and Obligations.303.2.1International law.313.2.1.1 Human rights.313.2.1.2 Refugee law.323.2.2The Right to a Clean or Healthy Environment.323.2.3Common law: Tort, Nuisance and Negligence.343.2.4Statutory authority and national policy.363.2.5Hybrid Approaches: Duty of Care and Public Trust.38Remedies/Targets.39.403

Executive SummaryOver the last decade, laws codifying national andinternational responses to climate change have grownin number, specificity, and importance. As these lawshave recognized new rights and created new duties,litigation seeking to challenge either their facialvalidity or their particular application has followed.So too has litigation aimed at pressing legislators andpolicymakers to be more ambitious and thoroughin their approaches to climate change. In addition,litigation seeking to fill the gaps left by legislative andregulatory inaction has also continued. As a result,courts are adjudicating a growing number of disputesover actions—or inaction—related to climate changemitigation and adaptation efforts.than the consensus scientific understanding ofwhat is required to stabilize the climate at anacceptable level.yy National and international policymakers havesucceeded in creating some legal frameworks forclimate action. Many nations have laws or policiesaddressing aspects of the climate problem, andthe Paris Agreement provided for a catalogue ofnational commitments toward the goal of avertingaverage global warming in excess of 1.5 C and2 C. Litigants have begun to make use of thesecodifications in arguments about the adequacy orinadequacy of efforts by national governments toprotect individual rights vis-à-vis climate changeand its impacts.This report provides judges, advocates, researchers,and the international community with an of-themoment survey of global climate change litigation,an overview of litigation trends, and descriptions ofkey issues that courts must resolve in the course ofclimate change cases. One purpose of this report is toassist judges in understanding the nature and goals ofdifferent types of climate change cases, issues that arecommon to these cases, and how the particularitiesof political, legal, and environmental settings factor into their resolution. Another goal is to contribute to acommon language among practitioners around theworld working to address climate change throughthe courts.Part 2 provides a survey of climate changelitigation and a discussion of evident andemerging trends:yy Citizens and non-governmental organizations aresuing to hold their governments accountable forclimate-related commitments. In many instances,the arguments made to challenge governmentactions or inaction include reference toconstitutional and statutory provisions not specificto climate change. In those cases, references tointernational climate agreements, which embodyscientific objectives as well as political ones, oftenbuttress the claim.Part 1 describes environmental, diplomatic, andpolitical circumstances that are making climatechange litigation efforts especially important atthe present moment:yy In many cases, challenges to a project or policyidentify linkages between resource extractionand climate-related impacts, both in the form ofemissions due to combustion of extracted fossilfuels and in the form of impairments to resiliencyand adaptive capacity. These challenges seek tomake those linkages legally significant and eitherdeserving of consideration or else compellingan alternative approach to natural resourcemanagement.yy Impacts such as heat waves and destructive coastalstorms are growing in frequency and severity asa result of human-cause emissions. The costs togovernments, private actors, and communities ofdealing with these impacts are significant.yy National and international policymakers havestruggled to develop effective means of addressingboth the underlying causes and the effects ofclimate change. Climate change mitigation andadaptation policies have emerged slowly and haveoften set targets based on political feasibility ratheryy Building on scientific understanding of therelationship between emissions and climatechange, which policymakers (with notableexceptions) have generally adopted as accurate,4

The Status of Climate Change Litigationbetween the injury and the action (or inaction)complained of is plausible. In climate change cases,this sometimes presents a high bar for plaintiffs. Asfor separation of powers, particularly in cases thatcall on a court to assess inaction by a governmentagency, courts must be able to articulate whatauthority empowers them to find fault or directthe agency to revise its approach.several cases seek to establish liability for entitiesthat generate emissions with full knowledge ofthose emissions’ effects on the global climate.yy Technical understanding of climate change andthe quality of predictions about future temperatureand weather patterns are improving. Recognizingthat adaptation efforts have not kept pace withthese improvements, litigants are bringing claimsthat seek to assign responsibility where failures toadapt result in foreseeable, material harms.yy Sources of climate obligations: Climate changelitigation can draw on various sources oflegal authority, including international law,constitutional provisions, statutes, or common law.In some cases, plaintiffs identify more than oneof these, or a combination of them, as providingthe legal basis for their claims. In instances wherea statutory provision spells out climate changemitigation commitments and that statute alsoauthorizes citizens to sue for noncompliance,the task of applying the law to the facts allegedis straightforward. But in cases where plaintiffsask a court to apply a legal authority that doesnot expressly contemplate application to climatechange, the task is harder and courts tread carefully,lest they be seen as legislating.yy Litigants are making arguments for climate actionbased on the public trust doctrine, which assignsthe state responsibility for the integrity of a nation’spublic trust resources for future generations. Suchclaims raise questions of individuals’ fundamentalrights and intergenerational equity, as well asconcerns about the balance of powers amongthe judicial, legislative and executive branches orfunctions of governments.yy Recognizing that both slow-developing andacute environmental stresses push individuals andcommunities to migrate, the impacts of climatechange are certain to generate migration withinand across national borders. Cases brought toresolve issues arising from such migration havealready been brought, and more are likely to come.yy Remedies: Courts can only grant remediesauthorized by the law. If the remedy sought ismore aggressive climate action on the part ofa government agency, courts must identify thebasis for instructing that agency to comply, or elseto specify how exactly the agency should alter itsapproach.yy Most climate change litigation to date hasproceeded in courts in developed countries in thenorthern hemisphere and in Australia and NewZealand. Litigants and courts in the Global Southare beginning to make use of burgeoning climatechange litigation theories and know how.Summaries of highly significant cases appearthroughout this report. Those summaries provide akaleidoscopic snapshot of the current state of climatechange litigation, and also illustrate the circumstances,trends, and issues discussed in Parts 1, 2 and 3.Part 3 describes three categories of legal issuesthat tend to be disputed among the litigantsinvolved in climate change litigation:yy Justiciability: Whether a case is justiciable—meaning, whether a court has the authority to hearand resolve the claims raised—turns on questionsof the plaintiff’s standing and on the court’s rolerelative to that of the government’s other branches.Although standards vary, courts generally onlygrant standing if the alleged causal connection5

Introduction Elizabeth LiesIn the 2010s, laws codifying national and internationalresponses to climate change have grown in number,specificity, and importance.1 As these laws haverecognized new rights and created new duties,litigation seeking to challenge either their facialvalidity or their particular application has followed.So too has litigation aimed at pressing legislators andpolicymakers to be more ambitious and thoroughin their approaches to climate change. In addition,litigation seeking to fill the gaps left by legislativeand regulatory inaction has also continued. Thisreport surveys the current state of this global climatechange litigation, and provides judges, advocates,researchers and the international community withan overview of trends and issues in climate changelawsuits.Goals (SDGs) enumerated in the United Nations’Transforming Our World – the 2030 Agenda forSustainable Development. (Climate action is alsoa vital, cross-cutting element of many of the otherSDGs.) Part 2 provides a snapshot of the currentstate of worldwide climate change litigation. It alsodescribes a number of salient current trends in thislitigation and likely future ones. Part 3 discussesthe recurring legal issues at play in climate changelitigation around the world. Strict and comprehensivecategorization is made difficult by the diversityof the world’s legal systems, which take variedapproaches to the interconnected substantive areasof law that constitute climate change law—namelyenvironmental law, natural resources law, energylaw and land use law, as well as constitutional law,administrative law and common law. Nonetheless,this section offers legal professionals, researchersand others an introduction to the common issuesthat arise in climate change cases when determiningjusticiability, interpreting legal rights and obligations,and providing remedies. Summaries of highlysignificant cases appear throughout the report,putting these circumstances, trends, and issues intocontext.Part 1 of this report notes the circumstances thatmake climate change litigation efforts especiallyimportant just now—most especially the growingurgency of the climate crisis, ratification and entryinto force of the Paris Agreement under the UnitedNations Framework Convention on Climate Change(“Paris Agreement”), and the inclusion of climateaction as one of the 17 Sustainable Development1E. Somanathan et al., National and Sub-national Policies and Institutions,in Climate Change 2014: Mitigation of Climate Change, Contributionof Working Group III [WG3] to the Fifth Assessment Report of theIntergovernmental Panel on Climate Change 1049, 1050–51 (O.R.Edenhofer et al. eds. 2014) [hereinafter IPCC AR5].6

Part 1: The Importance of Climate Change Litigation1. Part1: ImportanceThe Importanceof ClimateChangeLitigationPart1: Theof ClimateChangeLitigationSource: UN Department of Economic and Social Affairs, Division for Sustainable DevelopmentConcentrations of greenhouse gases (GHGs) in theatmosphere have already surpassed levels that manyscientists consider safe, putting people everywherein peril. The extraordinary risks posed by climatechange are well-established. Sea levels are rising,making more seawater available for the storm surgesthat wreak destruction on coastlines during coastalstorms and threatening to overwhelm coastalcommunities and small island nations.2 Averagetemperatures are rising and heat waves are growinglonger and more intense, threatening to straininfrastructure and agricultural systems, and posingdirect threats to human health.3 In addition, morepowerful storms, longer-lasting and more severedroughts, and acidifying oceans have already begunto disrupt local and regional economies that rely onhaving predictable access to particular resources andmarkets.4 The need to address these risks is front andcenter in the Sustainable Development Goals, theinternational community’s vision for a sustainablefuture for the planet and its inhabitants. Yet, despitebroad scientific consensus on the human causes234of climate change and the risks of climate impactsto human communities, and despite the profoundinternational accord forged through the ParisAgreement and the SDGs, progress toward effectivesolutions has been slow.The international community has encountereddifficulty in tackling climate change because it is a“super wicked” policy problem, capable of resistingeven substantial efforts by policymakers.5 Threefeatures in particular make the problem “superwicked.” First, it becomes less tractable over time.That is, the more GHGs we emit, the more committedwe are to continuing emissions, the more severe theproblem becomes and the less likely we are to findan acceptable solution. Second, the actors who arebest positioned to address climate change are thosewho are primarily responsible for causing it—andwho lack incentives to take action. This problemis made worse by an important asymmetry. Thosewith incentives not to mitigate climate change, suchas the companies that own leases to extract coal orother fossil fuels, tend to have concentrated interestsand good access to relevant information. Meanwhile,those most likely to bear the burdens of adaption,including the many millions of individuals who liveJohn A. Church & Peter U. Clark, et al., Ch. 13: Sea Level Change, in IPCCAR5.Thomas Bruckner, Igor Alexeyevich Bashmakov & Yacob Mulugetta et al.,Ch. 7: Energy Systems, in IPCC AR5; Kirk R. Smith & Alistair Woodward, et al.,Ch. 11: Human Health: Impacts, Adaptation, and Co-Benefits, in IPCC AR5.IPCC, Climate Change 2014: Synthesis Report, Contribution of WorkingGroups I, II and III to IPCC AR5, at 64–73 (2014) [hereinafter IPCC SR5].57Richard J. Lazarus, Super wicked problems and climate change: Restrainingthe present to liberate the future, 94 Cornell L. Rev. 1153, 1160 (2009).

The Status of Climate Change Litigationin coastal communities, have diffuse incentives andgenerally lack information about, for instance, thecosts and benefits of alternatives to fossil-fueledapproaches to energy and transportation. Third,no institution has legal jurisdiction and authorityaligned with the global scope of the problem. As aconsequence, climate change mitigation—and toa lesser degree adaptation—efforts are often seenas expensive, unnecessary, futile, and remote frompolicies that yield immediate and politically populareconomic benefits.component of any rational plan of action. The ParisAgreement provides a crucial legal predicate forpushing governments that have adopted climateoriented laws to implement them. Until the ParisAgreement’s ratification, no international instrumentdealt as thoroughly with the coordination problemof international action on GHG emissions.8Constituents of countries outside the EuropeanUnion (EU) could not point to an authority beyondtheir country’s particular constitution, commonlaw, or statutes—or ratification of internationalhuman rights agreements—to place climate actionwithin that country into a legally and practicallysignificant context.9 The Paris Agreement makes itpossible for constituents to articulate more preciselyand forcefully concerns about the gaps betweencurrent policy and the policy needed to achievemitigation and adaptation objectives. In ratifyingcountries in particular, constituents can now arguethat their governments’ politically easy statementsabout rights and objectives must be backed up bypolitically difficult, concrete measures like restrictingcoastal development, foregoing development ofcoal-fueled power plants and imposing fees andtaxes on activities reliant on fossil fuels. Lawsuitsbrought in countries where governments havegiven express priority to development, such asPakistan,10 and in countries where governmentsare actively addressing climate change, such as theNetherlands, Sweden, and Switzerland, demonstratethat this sometimes means using the courts to pushfor concrete action.11At the international level, the “super wicked” natureof the climate change problem may be seen inthe global community’s incomplete participationin the Kyoto Protocol6 and, more recently, theinsufficiency of the Intended Nationally DeterminedContributions (INDCs) submitted in advance of theParis Conference and the Nationally DeterminedContributions (NDCs) submitted after to reduceatmospheric concentrations of GHGs at a pacesufficient to maintain climate stability.7 At the nationallevel, the United States’ (U.S.) historic and recentlyrevived ambivalence about addressing climatechange stands out as an especially consequentialexample of political coalitions struggling towardand falling short of policy change. But the U.S. is notunique for failing to develop and implement policiesthat address climate change in a coherent fashion.Litigation has arguably never been a moreimportant tool to push policymakers and marketparticipants to develop and implement effectivemeans of climate change mitigation and adaptionthan it is today. Technological developments andnon-climate policy initiatives cannot be countedon to stave off climate destabilization. Accordingly,climate-related law and policy is a necessary67Has the Paris Agreement changed the role litigationcan play? In general, law embodies a thicket ofagreements among the members of society andbetween them and their government. Litigationserves to test whether particular actions or inactionsare compatible with those agreements. Litigationalso serves to articulate how stated commitmentsto defend particular rights must be translated intoSee O. Edenhofer, et al., Technical Summary, in Climate Change 2014:Mitigation of Climate Change, Contribution of Working Group III to IPCCAR5, at 33, 104 (O. Edenhofer et al. eds. 2014) (“The Kyoto Protocol was thefirst binding step toward implementing the principles and goals providedby the UNFCCC, but it has had limited effects on global GHG emissionsbecause some countries did not ratify the Protocol, some Parties did notmeet their commitments, and its commitments applied to only a portionof the global economy (medium evidence, low agreement).”).UNFCCC, Aggregate effect of the intended nationally determinedcontributions: an update, FCCC/CP/2016/2, at 11–12 fig.2 (May 2016),https://perma.cc/SUW9-KXY5.8Notably, the Paris Agreement does not address emissions from aircraft ormarine craft.9 See section 2.2.1 below.10 Pakistan’s Intended Nationally Determined Contribution, Nov. 6, 2016,https://perma.cc/QJH8-9EXM.11 See sections 2.2.1 and 2.2.2 below.8

The Status of Climate Change Litigationaction, notwithstanding changes in the directionof political winds at home or abroad. The ParisAgreement by its own terms does not providelitigants with a cause of action or impose enforceablelimits on member countries’ national emissions.But it makes it possible for litigants to place theactions of their governments or private entities intoan international climate change policy context.Placing actions at the national or regional level intothat context makes it easier, in turn, to characterizethose actions as for or against both environmentalneeds and stated political commitments. Ultimately,while the Paris Agreement does not assign eachcountry a carbon budget, it does offer a basis fordeducing a budget from national commitments. Italso makes clear that policies leading to net increasesin emissions are disfavored.9

Part 2: The State of Climate Change Litigation2.Part 2: The State of Climate Change Litigation Noah RosenfieldThis section provides a summary of the currentstate of climate change litigation, includinglawsuits’ location, their categorization, and recentand emerging trends. It counts as “climate changelitigation” cases brought before administrative,judicial and other investigatory bodies that raiseissues of law or fact regarding the science ofclimate change and climate change mitigation andadaptation efforts.12 Such cases are often identifiedwith keywords, including climate change, globalwarming, global change, greenhouse gas, GHGs,and sea level rise. However, the presence of oneor more keywords is not a necessary condition forinclusion.13 Moreover, the presence of keywords isalso not determinative (Cases that make only passingreference to the fact of climate change, its causes,or its effects do not necessarily address in direct ormeaningful fashion the laws, policies, or actions thatcompel, support, or facilitate climate mitigation oradaptation.) Finally, cases that seek to accomplishclimate change goals without reference to climatechange issues are not included. For example,lawsuits seeking to limit air pollution from coal firedpower plants that do not directly raise issues of factor law pertaining to climate change do not qualifyas “climate change litigation” for the purposes ofthis study. Thus, this report excludes cases wherethe discussion of climate change is incidental tothe holding and immaterial to the future of climatechange law.12 Cf. Meredith Wilensky, Climate Change in the Courts: An Assessment ofNon-U.S. Climate Litigation, 26 Duke Envtl. L. & Pol’y Forum 131, 134 (2015);(adopting definition of “climate change litigation” developed by DavidMarkell & J.B. Ruhl, An Empirical Assessment of Climate Change in theCourts: A New Jurisprudence or Business as Usual?, 64 Fla. L. Rev. 15, 27(2012): “any piece of federal, state, tribal, or local administrative or judiciallitigation in which the . . . tribunal decisions directly and expressly raise anissue of fact or law regarding the substance or policy of climate changecauses and impacts.”). This definition also guides the collection of casesincluded in the Sabin Center for Climate Change Law’s Non-U.S. ClimateChange Litigation chart, available at https://perma.cc/8CKE-KMQU(accessed Mar. 3, 2017), as well as the Climate Change Laws of the Worlddatabase, maintained jointly by the Sabin Center for Climate Change Lawand the Grantham Research Institute at the London School of Economics.13 For instance, the Australian case, Ralph Lauren 57 v. Byron Shire Councilcontained none of those terms but dealt with the highly germane issue ofliability of a local government for decisions related to its policy of managedretreat from sea level rise. [2016] NSWSC 169. The court’s March 2016denial of the motion to dismiss filed by the Shire Council and its insurersprompted the parties to negot

litigation seeking to challenge either their facial validity or their particular application has followed. So too has litigation aimed at pressing legislators and policymakers to be more ambitious and thorough in their approaches to climate change. In addition, litigation seeking to fill the gaps left by legislative and

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