The Unsexy Future of Climate Change Litigation

Abstract

This article starts the task of expanding the concept of climate change litigation. It argues that a preoccupation with high-profile cases, can divert attention from other important issues litigated within the broader climate change context. The article highlights four key and interrelated considerations that would inform a future conception of climate change litigation.First, climate litigation occurs across scales, and smaller cases at lower levels of governance are as important as more high-profile cases, for myriad reasons. Second, climate change litigation can engage all elements of a good climate response, not just emissions abatement. Third, the extent of private law's potential contribution, tends to be overlooked. Fourth, ignoring 'invisible' climate change cases -or invisible issues within those cases -can result in perilous consequences for climate change policy. Illuminating the implications of all climate cases across scales is fundamental for coherent policy. In addition, this broader conception can support strategic choices. climate change litigation -climate change policy -mitigation -multilevel governanceprivate law

Climate change litigation: A review of research on courts and litigants in climate governance

“…Practitioners would be wise to pay attention to these caveats in the way in which they consider whether to litigate and in the ways in which they formulate their litigation strategies. This methodological point also endorses Bouwer's () claim that more routine, mundane litigation merits attention.…”

“…Such cases might also have some impact on the behavior and decisions of governments or private parties (but see Bogojević, ; Keele, ; Markell & Ruhl, ; Osofsky & Peel, ; Peel & Osofsky, ; Vanhala, ). As Bouwer (, p. 9) argues, “preoccupation with ‘holy grail’ cases can obscure both the instrumental potential, and possible implications, of much less visible forms of litigation about climate change.”…”

“…Moreover, while high profile cases have been trying to localize the global challenge of climate change, some scholars argue for the importance of using local and first instance courts more effectively rather than just focusing on high‐profile cases. Arguably, “small and mundane domestic and local disputes” could also make a contribution to coherent national climate policy (Bouwer, , p. 11). Finally, the socio‐legal literature on climate change can further explore time as an element intrinsic to, but also separate from, scale and place.…”

Stringency of environmental regulations vs. global competitiveness: Empirical analysis

“…The Copenhagen agreement provides for global warming to be contained within 2°C in the 21st century through the transition to new, environmentally friendly technologies, renewable energy sources, and through existing market-based emission reduction mechanisms foreseen in the Kyoto Protocol (Peel, Lin, 2019). In 2015, the Paris Agreement was adopted in the framework of the UN Framework Convention on Climate Change on the regulation of carbon dioxide emission reduction measures till 2020, which came into force in November 2016 and actually replaced the Kyoto Protocol, in contrast to which all states are responsible for reducing emissions into the atmosphere, regardless of their degree of economic development (Bouwer, 2018;Setzer, Byrnes, 2019).…”

Coproducing the Endangered Polar Bear: Science, Climate Change, and Legal Mobilization

“…Both cases garnered significant public and media interest, shaped the regulatory landscape, catalyzed nongovernmental organization (NGO) and philanthropic interest in litigation as a potential tactic to address global warming, and sparked scholarly interest and analysis (Fisher ; Setzer and Vanhala ). In addition to these high‐profile cases, Kim Bouwer () argues that the concept of climate change litigation should be expanded to include less visible forms of climate change litigation such as legal cases in lower courts or relying on private law. However, what the legal literature on climate change litigation tends to pay less attention to—whether it is looking at high‐profile or more run‐of‐the‐mill cases—is the sources of legal cases or the “support structure” for climate change litigation (Epp ).…”