The Dickson Poon School of Law, in collaboration with the Journal of Environmental Law, hosted a symposium on ‘Adjudicating the Future’ in September 2015. The symposium brought together judges, academics, and practitioners from around the world to consider the challenges and tasks for courts and tribunals in dealing with climate change issues. This post builds on that discussion, considering three themes that reflect challenges and potential directions for climate change litigation: the vexed question of what constitutes a ‘climate change case’, the justiciability of climate change cases in relation to standing of litigants, and the significant role of constitutional law in responding to climate change. In this fast-moving field, legal academics and legal experts have an important task, now and ahead, in reflecting on how adjudicative processes are accommodating the disruption that climate change inevitably brings to legal systems.
JB Ruhl has concluded that the task of trying to identify ‘climate change law’ is frustrating and elusive since ‘all fields of law will have to adjust’ in light of climate change. Climate change not only affects different areas of law, it also generates myriad legal disputes between various actors within and across legal orders. Cases involving climate change range from judicial review claims and negligence, to public nuisance actions and constitutional claims. In these cases, there is no typical litigant, no central legal question that defines climate change disputes, and no common remedy sought.
Despite this, there is intense academic and public interest in climate cases. This often relates to claims that could break new legal ground, sometimes through the use of existing legal concepts, such as the duty of care, in novel ways (see Urgenda v Netherlands). Other innovative claims are or might include: actions to challenge the investment decisions of pension providers on grounds relating to climate change impacts, actions to bring claims under the UK Climate Change Act 2008, or actions to develop a concept of shared state responsibility in public international law. However, arguments regarding climate policy can equally be pursued through well-established causes of action, such as claims in public nuisance or constitutional law, as discussed below. In fact, the common thread in climate change related cases is not their legal novelty but their reflection of underlying social upheaval threatened by climate change. This is not to say that all ‘climate cases’ are legally interesting – many are very mundane, as Kim Bouwer has thoughtfully explained – but they are inevitable and will often be socially significant.
However, whilst ‘climate change cases’ might reflect climate change conflicts, not all recognise the complexity of climate change. This can affect the justiciability of climate change cases, particularly as regards standing of litigants. Standing varies among different legal systems and often determines what kinds of roles courts can play in relation to climate change. Depending on the legal culture and adjudicative setting, standing can be restricted to those directly affected by a defendant’s action, to states, and to certain kinds of non-governmental organisations. Standing can be particularly problematic for public interest litigants and climate change ‘victims’, since climate change gives rise to different kinds of harm which may have not yet materialised or may be difficult to trace to particular action (see e.g. Kivalina v Exxon Mobil). However, while standing may act as a restraint on what courts can do, it can also provide opportunities for courts to interpret standing rules so as to accommodate the complex social interactions that can lead to climate change disputes. This approach was taken by Dutch and Pakistani courts in Urgenda v Netherlands and Leghari v Pakistan, allowing respectively an NGO, representing present and future generations, and a farmer engaging in public interest litigation, to bring cases against their governments.
Climate change and climate policy also raise a host of constitutional issues, including the opportunities for, and the constraints on, climate action in existing constitutions; the respective rights and duties of different levels of government (and, in a European context, the European Union); and the place of climate change in contemporary constitution-making, especially with respect to the constitutional rights of citizens. Furthermore, climate policy can justify interferences with non-environmental constitutional rights (as in Belgian constitutional law), and could even lead to the evolution of new constitutional jurisprudence, through the expansion of ‘environmental rights’ or the ‘constitutionalisation’ of key environmental statutes, such as the Climate Change Act 2008 (UK).
One example of a constitutional climate case is the recent Leghari case before the Lahore High Court, mentioned above. The petitioner farmer submitted that national and provincial governments had neglected their responsibilities to implement Pakistan’s national climate policy framework, offending the fundamental right to life under the Pakistan Constitution due to the existential threat posed by climate change. The Court found that ‘the delay and lethargy of the State in implementing the Framework offends the fundamental rights of the citizens’ and ordered the creation of a cross-sectoral Climate Change Commission to monitor climate policy implementation. Justice Shah identified a dynamic relationship between Pakistan’s constitutional order and the nation’s response to climate change: ‘Environment and its protection has taken a center stage in the scheme of our constitutional rights … The existing environmental jurisprudence has to be fashioned to meet the needs of something more urgent and overpowering i.e., Climate Change.’
Most national constitutions were adopted before the significance of climate change and its effects were widely understood. The contemporary adoption or amendment of constitutions may therefore represent a particular opportunity to address climate change. For example, Nepal’s new constitution, adopted in September 2015 amid ongoing controversy, includes a ‘right regarding clean environment’, which may be employed to address the effects of climate change in a ‘Least Developed Country’ that is particularly vulnerable to its impacts.
Issues relating to standing and constitutional jurisprudence are but two of the challenges that climate change represents for judiciaries. The negotiation of a new UN international law agreement on climate change obligations at the 21st Conference of the Parties (COP21) will likely only intensify the pressure on courts around the world to deal with climate disputes. As the imperatives of climate mitigation and adaptation grow ever more urgent, and climate disputes arrive more frequently in legal forums, judiciaries and advocates must accept these challenges with courage and evolving expertise.
Headline image credit: Briksdal Climate Change Norway by Djwosa. CC0 via Pixabay.