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Climate Change Litigation: Challenging the Horizons of Law


Judicature International (2023) | An online-only publication

The year 2023 has offered the world a dramatic view of life in the age of climate change. Massive wildfires in Canada have burned more than 25 million acres and released more than a billion tons of carbon dioxide into the atmosphere. The entire historic city of Lahaina on the Hawaiian island of Maui burned in the deadliest fire in more than a century in the United States. Severe flooding in New Zealand and Italy caused record losses. The longest active tropical cyclone on record, Cyclone Freddy, took lives and wreaked havoc across Mozambique, Madagascar, and Malawi.

The costs are huge. In the U.S. alone, 15 catastrophic weather disasters occurred from January to July of 2023 — a record number of such events in a seven-month span — causing 113 fatalities and nearly $40 billion in damages, according to the National Oceanic and Atmospheric Administration.

Climate change is also making its presence felt in courts around the world. In a speech delivered at Duke Law in March 2023, New Zealand Supreme Court Justice Susan Glazebrook examined the global effects of fast-rising temperatures and the challenges judges face as impacted communities increasingly seek redress in the courts.

Youth fighting for their future

In the United States, the First Judicial District Court of Montana made headlines in August when it ruled in favor of youth plaintiffs who sought a declaration that, by promoting a fossil-fuel-driven economy, Montana was failing to uphold the youths’ rights as guaranteed by the state’s constitution, which says: “The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.”

“Globally and within the United States, it is projected that 2023 will be a watershed year for climate litigation, with many claims involving or being led by youth plaintiffs,” Glazebrook said, highlighting cases in Korea, Canada, and New Zealand, as well as a case pending in the European Court of Human Rights. “Beyond national courts, international and regional courts have also heard a host of youth claims. These claims tend to place an emphasis on human rights embedded in relevant regional instruments or international law. Plaintiffs also attempt to base their claims on the international obligations of states with regards to combating climate change.”

Such youth-driven cases are increasingly common, Glazebrook theorizes, because young people will feel the strongest effects of climate change on their lives, and because many of them lack the ability to vote or effect political change. Many cases highlight personal accounts of the impacts of climate change, including adverse health effects and the loss of natural environments.

“The loss of a treasured environment is captured by the concept of ‘solastalgia,’” Glazebrook said, a term coined by Australian philosopher Glenn Albrecht that describes a “‘gripping sense of existential loss when treasured places are irreparably damaged or destroyed.’”

While courts have recognized the damaging effects of mental distress, these claims of existential loss are novel in courts, Glazebrook said. Instead, these cases ask courts to find that a “sense of psychological threat to the essential bounds of one’s identity is justiciable. How the courts will react to this attempt to go beyond the traditional economic horizon of law remains to be seen.”

Indigenous peoples’ rights to resources

Claims by tribal and indigenous people also rely on an existential impact and present unique challenges for courts. “The United Nations Declaration on the Rights of Indigenous Peoples affirms that indigenous peoples have rights over the environment and the natural resources to which they have a connection,” Glazebrook said. “Claims by indigenous people in climate change litigation are often founded on this spiritual connection and the related duties of guardianship, which include duties to future generations. As such, there are important links between youth and indigenous climate litigation.”

Both groups represent a future-oriented view, Glazebrook said, which must overcome the law’s traditional focus on the short term and impact on the economy. In addition, both youth and indigenous plaintiffs tend to emphasize the collective rights of communities and duties to the environment in its own right, ideas that challenge traditional Western values of individual rights and autonomy.

Furthermore, because the connection between the earth and indigenous people is not easily translated into or understood by Western language or traditions, Glazebrook cautions that courts must handle such claims with particular care.

“Beyond issues surrounding the translation of individual concepts, indigenous knowledge systems are often rooted in fundamentally different ontologies to Western knowledge systems,” she said. “Further, indigenous knowledge systems are often inherently rooted within specific kinship structures, such that they cannot simply be taken and applied in the abstract by Western courts. Judges and lawyers must always be careful to avoid artificially appropriating indigenous concepts without sufficient knowledge of them.”

Another novel area for courts is the granting of legal personhood for natural entities. In India, the Ganges and Yamuna rivers were granted the same legal rights as a person in 2017. In 2018, the Supreme Court of Colombia recognized the Amazon river as “a subject of rights.”

In New Zealand, Glazebrook said, the Te Awa Tupua | Whanganui River and Te Urewera mountain range have been granted personhood. “These decisions reflected the Māori view that “rivers and land are not objects of human control but part of an interrelated whole,” Glazebrook said.

The practical effect of granting rights to a natural entity remains unclear, but such legislation is leading a significant “conceptual revolution,” Glazebrook argues, that rejects “a human-centric worldview, wherein the environment only has value in its ability to sustain human life.”

Climate cases are traditional, too

Other climate change litigation treads more familiar legal grounds, Glazebrook said, such as disputes over insurance, cases seeking to force companies to address climate impacts in reporting and decision-making, claims of ineffective carbon credits, and litigation over a practice called greenwashing, in which companies sow disinformation about products or services to make them look more climate-friendly.

Other cases have attempted to force governments to comply with legislation aimed at combatting climate change. And some plaintiffs have relied on tort law to hold companies accountable for climate harms, but issues relating to standing, remoteness, and causation have led to mixed outcomes.

“Defendants argue that tort law is not apt to address the multi-national and multi-faceted nature of climate change,” notes Glazebrook. In other cases, she adds, “courts must of course strike a balance between ensuring justice is done in individual cases and not usurping the functions of the other branches of government, and some cases have failed on the basis that climate action is for the other branches of government to address.”

Limitations of the courts

In many climate cases, courts can fulfill the adjudicative function — applying the law to individual cases and ensuring that the law is observed.

“But the traditional role of the courts also has its limitations in terms of combating climate change,” Glazebrook said. “Courts are fundamentally reactive, rather than proactive. They are usually restricted to adjudicating on past events. Courts are also restricted to the cases which plaintiffs bring before them and to the evidence presented in the particular case, which presents fundamental difficulties when dealing with an issue as wide-reaching and complex as climate change.”

As courts strive to act within the limits of their role and jurisdiction, climate cases not only present novel legal challenges but also serve to prod social and political discourse toward solutions to climate change.

“Proceeding through multiple interlocutory stages and appeals, these cases can generate publicity which spans a number of years,” Glazebrook said. “And this in turn puts pressure on governments, businesses and the global community. This idea of discourse mirrors the dialogue model of constitutional jurisprudence. Where courts do not have the power to strike down legislation, nevertheless courts can, through their decisions, have influence on political processes.

In this way, Glazebrook notes, climate litigation is forcing courts and communities to examine the traditional horizons of legal concepts.

“Courts will also be forced by these cases to consider whether the law’s traditional reactive horizons and boundaries are appropriate when faced with a truly existential and urgent threat,” she said. “But this expanded horizon does not only mean looking into the future. It means recognising that the line between future, present, and past is porous. Climate change, though many of its effects will be felt in the future, is already experienced now in terms of its economic consequences but also as a threat to life and health and as a sense of loss by those who see their treasured places and identity slipping away.”

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