Climate change litigation: what on Earth took us so long?

By Gauri Singh

Climate change litigation is an area that seeks to balance the interests of infrastructure development against the demand for environmental protection. It has become a focus point for many governments worldwide. The hope is that this litigation can emerge as a tool in the fight against climate change. However, much is left to be done and the evidence gathered reflects upon the sad reality that climate change litigation has only produced anecdotal success.

The nascent nature of climate change litigation has meant it is difficult to assess its impact in the courtroom. There are a number of variables that affect how effective litigation can be in tackling climate change. These include how developed the concerned nation is, the time period, international policies, and sanctions, among others. At times, civil society does not welcome with open arms the prospect of courts ruling on environmental or climate change issues.

Here I try to adopt a nuanced approach by critically zooming in on the merits of distinguished case law to highlight the successes and failures of climate change litigation.

A growing number of lawsuits are drawing on existing national and international laws that guarantee citizens a fundamental right to a healthy environment. This is well in line with what is happening across the globe: people are demanding the right to things like clean air. Contemporary litigation is being used also to force companies to disclose climate-related risks and end the culture of ‘corporate greenwashing’. Climate litigation is changing things.

Climate litigation is changing things

One example of success has been the case of ‘Gloucester Resources Ltd v Minister for Planning (2019)’ which concerned the proposal of a coal mine that met the Australian Court’s harsh rejection. The rejection was majorly centred around the pressing issue of environment and climate protection. A major area of concern was the resultant carbon emissions if the downstream burning of coal took place. The coal-mining industry is powerful, and so this is a significant ruling with wide implications for the future of the Australian coal industry and the environment.

The peculiar focus on the intra and inter-generational equity is of the essence when reading the judgement as a whole. The court went on to decide the case with an iron fist by rejecting the arguments proposed by Gloucester Resources Ltd. One of the arguments extended was that carbon emissions unfairly impact the young and benefit the old.

This judgement is a cocktail of climate change considerations and reveals how courts will rule on climate affairs in future.

It is for the very first time that a coal mining project fell flat in the courtroom and struggled to fight the rejection it received. Here is to hoping that this decision will open the floodgates to similar judgements with varying possibilities. It emphasised the dwindling carbon budget and thus the attention it has garnered is well-warranted.

A multidisciplinary approach should be adopted by the courts and governments globally to safeguard and enforce environmental laws

In terms of international impact, climate change will hit both developed as well as developing nations. It is not a phenomenon bounded geographically. The Global South especially is more vulnerable to witness a proliferation of climate change litigation due to its sometimes still cradled legal systems.

A multidisciplinary approach therefore should be adopted by the courts and governments globally to safeguard and enforce environmental laws. Laws and litigations are organic instruments capable of bringing a tide of sanguine climate change mitigation judgements. The cases above illustrate the flexibility adopted by courts nationally and internationally in dealing with climate change litigation.

Despite the defeat met by some portion of climate change litigation, people are still optimistic that the courts will provide some guidance and respite in the forthcoming years. “It has been suggested that litigation is likely to be resorted to when political opportunities are weak but legal opportunities are stronger.” There are some landmark judgments as well such as those discussed above which serve to inspire, motivate, and instruct the activists and organisations as they forge a fight against climate-destroying infrastructure development projects.

This issue has evolved into a contemporary bone of contention. Such a surge in lawsuits concerning climate change is here to stay and spread further. In such a sorry state of affairs, the courts should be the prime legal authority to sort out judiciously the climate change litigation. It should be emphasised that courts hold some of the key to tackling climate change.

One should always remember that litigation are treacherous waters to sail in. Nonetheless, climate litigation is a key lever for keeping governments and corporations on task in the fight to combat climate change.

Image: runJMrun via Creative Commons.

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