How courts can help protect human rights amid climate change
Among the more notable cases in recent years:
- In 2015, the Pakistani government for violating its official climate change policy, catalyzing the creation of the countryâs Climate Change Commission.
- In 2019, the Supreme Court of the Netherlands upheld a 2015 decision in favor of the , which required the government to reduce carbon emissions by 25%.
- In 2020, the the German legislature to strengthen and enforce existing climate legislation and widen pathways to future mitigation.
- In February, in a case that found the French government failed to live up to its own carbon emissions target reductions.
- In May, a to cut its greenhouse emissions by 45% by 2030, the first time courts have levied such a requirement on a private company.
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âThese efforts are not just piecemeal anymore. In Europe, this has really grown to be a widespread phenomenon.â
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âIn the United States, especially with the current (Supreme Court), you might suspect theyâll find a way to shut down all types of climate cases from activist individuals rather than those from industry.â
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On Sept. 23, the United Nations found that the Australian government had of a group of Indigenous island residents known as âthe Torres Strait 8â when it failed to adequately protect them from the impacts of climate change.
It was a potentially ground-breaking decision that many expect to pave the way for future cases.
âThis decision marks a significant development, as the committee has created a pathway for individuals to assert claims where national systems have failed to take appropriate measures to protect those most vulnerable to the negative impacts of climate change,â UNHRC committee member
The ruling is just the latest in a growing ledger of victories for people who are leveraging the power of litigation to force action on climate change around the world.
âThere are lots and lots of examples nowadays that have been successful in pushing government to increase climate action,â saidĚý, Global Climate Litigation fellow at the for Climate Change Law at Columbia University. âThis really has been growing exponentially over the past few years. There are now over 500 cases around the world in over 50 jurisdictions. This is really becoming a tool for climate activism.â
âThese efforts are not just piecemeal anymore,â saidĚýFreerk Vermuelen, who represents Urgenda and will be a panelist at the upcomingĚýRight Here, Right Now Global Climate SummitĚýat the University of Colorado Boulder on Dec. 1-4. âIn Europe, this has really grown to be a widespread phenomenon.â
U.S. history and âfossil lawâ
In the United States, the situation is more complex. Climate cases have had a harder time gaining purchase in a legal system complicated by federalism, precedent and a history of whatĚý, co-founder of the Climate Defense Project, called âfossil law.â
âJudges and prosecutors tend to deploy their powers against climate justice advocates rather than against those degrading the climate,â he wrote in . âBy and large, our legal institutions have proven ill-equipped to seriously address climate change.â
In some cases, victories have proved Pyrrhic or been swallowed up by subsequent rulings and changes in enforcement priorities after a change in presidential administrations. Often, U.S. cases run aground on the shoals of jurisdictional interpretations (whether cases are matters for federal or state courts), the refusal of Congress to ratify emissions targets and climate agreements, and what Hamilton calls âindustry capture,â a system in which the deck is stacked in favor of fossil fuel interests.
âIn the United States, especially with the current (Supreme Court), you might suspect theyâll find a way to shut down all types of climate cases from activist individuals rather than those from industry,â said , associate professor of law at 91´ŤĂ˝ and a former attorney for the Environmental Protection Agency.
In 2007âs (âthe preeminent U.S. climate change case,â according to Hamilton),Ěýthe U.S. Supreme Court found that human-caused global warming was real and that carbon dioxide qualified as an âair pollutant.â But in 2016, the court halted a clean-power plan developed by the EPA, and the incoming Trump administration swiftly de-emphasized climate action. This year, the Supreme Court ruled that the EPA had gone too far in trying to regulate emissions in.Ěý
In , another case that initially encouraged climate activists, 21 youth plaintiffs represented by Oregon nonprofit argued that their due-process rights of life, liberty and property were being violated by the governmentâs continued inaction on reducing fossil-fuel emissions.
Ruling against a government motion to dismiss the case, U.S. District Court Judge Ann Aiken accepted many of the plaintiffsâ claims and found that the government was culpable.
âI have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society,â Aiken wrote. âTo hold otherwise would be to say that the Constitution affords no protection against a governmentâs knowing decision to poison the air its citizens breathe or the water its citizens drink.â
But U.S. Supreme Court Chief Justice John Roberts granted a stay in 2018 before the case could go to trial, and in 2020 the 9th Circuit Court of Appeals ruled that the issue was a matter for the executive and legislative branches, not the courts.
For Skinner-Thompson, Juliana âwas a pretty small win at the end of the day; I donât think the plaintiffs saw it as a massive victory.â And he remains skeptical that litigation to force climate action will gain much traction in the United States in the foreseeable future.
âIn the U.S., to the extent that people are trying to use state laws or federal laws, to use the courts themselves to implement change, I donât think it will be successful,â Skinner-Thompson said. âThe courts are not going to be the savior as they have been with civil rights. . . . It would be more efficient if the international community would come together with binding and meaningful (emissions) targets and act to address the problem.â

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âLitigation is a slow tool, but it can be very effective. Every time there is a new decision from one country that really reaches the media and everyone is talking about it, it proves to be an effective tool to push countries. And I think everyone starts asking whether that case can be replicated in other jurisdictions.â
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Using the courts to force political change
However, given the global nature of the problem, legal successes in other countries and regions are almost certain to have a positive impact in the United States.
âFollowing these cases, the major emitters may have to change their practices to respond to cases like (Urgenda), even though there is not a comprehensive regulatory scheme established by treaty,â Skinner-Thompson said. âAnd with carbon emissions . . . spread pretty evenly across the globe, it really doesnât matter where we get reductions. Weâre still getting reductions, and thatâs meaningful.âĚý
Vermuelen agreed that courts are not where the climate fight will be won. But he said litigation remains a potent tool to catalyze political change.
âIt belongs in the political arena, not the courtroom,â Vermuelen said. âBut this type of litigation may be necessary to bring the politics onto the right track. . . . There is a role for the judiciary to complement democratic practices.â
And each legal victory can affect the way people around the world see the issue, Tigre said.
âLitigation is a slow tool, but it can be very effective,â Tigre said. âEvery time there is a new decision from one country that really reaches the media and everyone is talking about it, it proves to be an effective tool to push countries. And I think everyone starts asking whether that case can be replicated in other jurisdictions.â
Though U.S. efforts to leverage litigation to force climate action have produced minimal fruit to date, Hamilton still believes that âcourts are one of the best avenues we have to make climate justice a policy of the state.â
And, as international victories accumulate, Hamilton wrote, âit seems likely that in the coming years international bodies and some domestic courts will turn more and more to international agreements and national human rights instruments to hold governmentsâ feet to the fire.â