Law Commons^™

It Is (Finally) Time For And Advisory Opinion On Climate Change: Challenges And Opportunities On A Trio Of Initiatives, Maria Antonia Tigre

Sabin Center for Climate Change Law

In recent years, the number and diversity of climate-related lawsuits have increased, with courts in over seventy jurisdictions now handling such cases. After the expansion through domestic courts, stakeholders worldwide are turning to international courts and tribunals to help define the responsibilities of states in light of the climate crisis. Three initiatives requesting advisory opinions to international courts or tribunals have been announced within six months. These advisory opinions could have significant implications for international climate change law, defining the human rights obligations of states (and potentially corporations) in light of the climate crisis. It is expected the International Court …

Sabin Center For Climate Change Law Annual Report 2023, Sabin Center For Climate Change Law

Sabin Center for Climate Change Law

This year the Sabin Center for Climate Change introduces its first annual report, which highlights and synthesizes our cutting-edge research and innovative engagements in 2023.

Legal Hurdles And Pathways: The Evolution (Progress?) Of Climate Change Adjudication In Canada, Camille Cameron, Riley Weyman, Claire Nicholson

Articles, Book Chapters, & Popular Press

Citizens, civil society, and environmental organisations throughout the world are increasingly turning to courts to find solutions to the perils of climate change. In July 2023, the United Nations Environment Programme (“UNEP”) reported that as of November 2022, there were 2,180 climate change litigation cases underway throughout the world, that this number is 2.5 times higher than it was five years ago, and that the number of jurisdictions involved has grown from 24 in 2017, to 39 in 2020, to 65 in 2023. The authors of this report describe climate litigation as “a frontier solution to change the dynamics of …

Following The Science: Judicial Review Of Climate Science, Maxine Sugarman

Washington Law Review

Climate change is the greatest existential crisis of our time. Yet, to date, Congress has failed to enact the broad-sweeping policies required to reduce greenhouse gas emissions at the rate scientists have deemed necessary to avoid devastating consequences for our planet and all those who inhabit it. In the absence of comprehensive legislative action to solve the climate crisis, the executive branch has become more creative in the use of its authorities under bedrock environmental statutes to develop new climate regulations. Environmental advocates, states, and industry groups that oppose such regulations or assert that agencies could accomplish more under existing …

Climate Change In The Courts: A 2023 Retrospective, Maria Antonia Tigre, Margaret Barry

Sabin Center for Climate Change Law

Drawing from the jurisdictions covered in the Sabin Center's United States (U.S.) and Global Climate Litigation databases, this report offers insights into key developments, emerging themes, evolving legal strategies, and the pulse of climate litigation in 2023.

Itlos Advisory Opinion On Climate Change: Summary Of Briefs And Statements Submitted To The Tribunal, Maria Antonia Tigre, Korey Silverman-Roati

Sabin Center for Climate Change Law

This report provides a summary of the briefs and statements submitted to the International Tribunal for the Law of the Sea (ITLOS) in response to the Co-Chairs of Commission of Small Island States (COSIS)’ request for an advisory opinion on climate change-related legal questions. The central issue before the ITLOS is whether State Parties to UNCLOS have specific obligations regarding the prevention, reduction, and control of marine environmental pollution stemming from climate change, as well as the protection and preservation of the marine environment concerning climate change impacts. While States and civil society organizations have put forward a variety of …

Beyond The North–South Divide: Litigation's Role In Resolving Climate Change Loss And Damage Claims, Maria Antonia Tigre, Margaretha Wewerinke-Singh

Sabin Center for Climate Change Law

Within the international climate regime, legal aspects surrounding loss and damage (L&D) are contentious topics, implicating liability, compensation and notions of vulnerability. The attribution of responsibility and the pursuit of redress for L&D present intricate legal and governance challenges. The ongoing debates under the United Nations Framework Convention on Climate Change are characterized by a pronounced North–South divide and have done little to provide tangible support to those most affected by L&D. This apparent neglect has prompted exploration of alternative avenues for climate harm redress. The burgeoning field of litigation for liability and compensation of climate harm holds potential significance …

Transnational Insights For Climate Litigation At The European Court Of Human Rights: A South-North Perspective In Pursuit Of Climate Justice, Melanie Murcott, Maria Antonia Tigre, Nesa Zimmermann

Sabin Center for Climate Change Law

The global climate crisis is increasingly recognised as an issue of climate injustice, including because it is causing (and worsening) inequalities and human rights violations. Moreover, responsibility for emissions and vulnerability to climate impacts are not evenly distributed. They vary among and within states. In order to tackle these issues of justice both within and among states, litigants have taken to domestic and regional courts to engage in climate litigation. A body of transnational climate jurisprudence is emerging in which courts are increasingly looking to laws beyond their relevant state or region, engaging with the moral aims of human rights …

Global Climate Litigation Report: 2023 Status Review, Michael Burger, Maria Antonia Tigre

Sabin Center for Climate Change Law

This Global Climate Litigation Report: 2023 Status Review, which updates previous United Nations Environment Programme reports published in 2017 and 2020, provides an overview of the current state of climate change litigation and an update of global climate change litigation trends. It provides judges, lawyers, advocates, policymakers, researchers, environmental defenders, climate activists, human rights activists (including women’s rights activists), NGOs, businesses and the international community with an essential resource to understand the current state of global climate litigation, including descriptions of the key issues that courts have faced in the course of climate change cases.

Using State Law Before The Glaciers Thaw: Climate Torts After Bp V. Baltimore, Jillian Mayer

American University Journal of Gender, Social Policy & the Law

We are living in the beginning stages of Earth’s sixth mass extinction. Since the Industrial Revolution of the nineteenth century, the burning of fossil fuels has released huge quantities of carbon dioxide and other greenhouse gasses (“GHGs”) into the atmosphere. The increased concentration of GHGs causes the atmosphere to retain more heat. Consequently, ecosystems and weather patterns shift and change faster than most plants, animals, and human societies can adapt. Climate change threatens global peace, crashes economies, and creates humanitarian crises.

Human Rights And Climate Change For Climate Litigation In Brazil And Beyond: An Analysis Of The Climate Fund Decision, Maria Antonia Tigre, Joana Setzer

Sabin Center for Climate Change Law

In 2022, the Brazilian Supreme Court announced a groundbreaking decision in the Climate Fund case. The decision, rendered amidst a challenging political climate, acknowledges the significance of the Paris Agreement within the country’s legal framework. The Court’s ruling established that the executive branch has a constitutional obligation to allocate funds from the Climate Fund for climate change mitigation and adaptation, grounded in the constitutional right to a healthy environment, international rights and commitments, and the principle of separation of powers.

Notably, the Court recognized the Paris Agreement as a human rights treaty, granting it “supranational” status. The implications of the …

Climate Change And Indigenous Groups: The Rise Of Indigenous Voices In Climate Litigation, Maria Antonia Tigre

Sabin Center for Climate Change Law

Climate change’s pervasive human rights impacts on populations worldwide are widespread and now widely known. One avenue to address these human rights impacts is the growth of rights-based climate litigation. There are now hundreds of cases worldwide grounded on human rights claims. However, less attention has been brought to how vulnerable groups are disproportionally affected by climate change. Indigenous groups, in particular, are disproportionately affected by climate change due to their connection to their land and dependence on their ecosystems. To increase global attention and seek legal remedies to address how Indigenous communities are impacted by climate change, Indigenous groups …

West Virginia V. Environmental Protection Agency: The Agency's Climate Authority, Michael B. Gerrard, Joanne Spalding, Jill Tauber, Keith Matthews

Faculty Scholarship

On February 28, 2022, the U.S. Supreme Court heard oral arguments for the landmark West Virginia v. EPA case, involving the scope of powers delegated to the U.S. Environmental Protection Agency (EPA) through the Clean Air Act. The Court’s decision will affect administrative law, and could have major consequences for environmental law, particularly the Agency’s power to regulate greenhouse gas emissions and take action on climate change. On March 1, the Environmental Law Institute hosted a panel of leading experts to discuss the case, the arguments, and what form the decision may take. Below, we present a transcript of that …

Introduction To Special Section On Climate Change Litigation, Vanessa Casado-Pérez, Emanuela Orlando

Faculty Scholarship

Acknowledging the exponential growth and global dimension of climate litigation, this introductory piece to this Special Section starts by situating this phenomenon in the context of the scholarly debate on polycentric and multi-level climate governance. It highlights both the strategic use of climate litigation as a tool to establish responsibilities and push for a more ambitious mitigation and adaptation agenda, but also as an opportunity to better understand the role of courts in public policy governance. The second part of the article then proceeds to discuss the main findings arising from the various contributions grouped in this section, and concludes …

Mapping Human Rights-Based Climate Litigation In Canada, Lisa Benjamin, Sara L. Seck

Articles, Book Chapters, & Popular Press

In line with global trends, there has been an increase in human rights-based climate litigation brought in Canadian courts in recent years. Some litigants invoke human rights as found in the Canadian Charter of Rights and Freedoms to push federal and provincial governments to take seriously the implementation of their climate obligations. Other litigants invoke procedural environmental human rights to engage in free speech and peaceful protest in the face of government action supporting fossil fuel consumption or expansion. At the same time, the Supreme Court of Canada has recognized that Canadian courts could develop civil remedies for corporate violations …

Held V. State, Alec D. Skuntz

Public Land & Resources Law Review

On March 13, 2020, a group of 16 Montana children and teenagers filed a complaint in the First Judicial District, Lewis and Clark County against the State of Montana and several state agencies. These young Plaintiffs sought injunctive and declaratory relief against Defendants for their complicity in continuing to extract and release harmful amounts of greenhouse gases which contribute to climate change. Plaintiffs premised their argument on the Montana Constitution’s robust environmental rights and protections. The Defendants filed a motion to dismiss which the District Court granted in-part and denied in-part. Held provides a roadmap for future litigation by elucidating …

The Remaking Of The Supreme Court: Implications For Climate Change Litigation & Regulation, Mark P. Nevitt

Faculty Articles

With the nomination of Judge Amy Coney Barrett, the Supreme Court is a Senate vote away from a historic shakeup that will cement a conservative judicial majority for decades. While politicians, scholars, and the media have largely focused on what a Barrett nomination means for the Affordable Care Act and Roe v. Wade, the confirmation of Barrett would significantly impact a wide swath of environmental and climate change cases for years to come. As the Supreme Court is on the brink of a generational transformation, it is increasingly clear that we have a generation—and no longer—to reduce our Greenhouse …

An Analysis Of The Human Rights Approach To Climate Change: The Right To A Healthy Environment, Intergenerational Equity And Climate Litigation, Unwana Emmanuel Udo

LLM Theses

Climate change litigation is a viable tool in the fight against climate change. For the past 2 decades, climate litigation has largely been based on torts and administrative law. However, courts have recently been quite receptive to human rights arguments in climate cases, thereby necessitating recognition of the human rights approach as an important facet of climate litigation. It is important for intergenerational equity to be integrated into the human rights approach to climate change. One of the major benefits of intergenerational equity to the human rights approach is its potential to catalyze the recognition of the right to a …

Insurance Coverage In A Climate Changed Canada: How Can Canada Pay For Loss And Damage From Anthropogenic Climate Change?, Eric Dwyer

Dalhousie Journal of Legal Studies

This article looks at the impact of anthropogenic climate change and its associated costs in the Canadian context. It begins by outlining how climate change is predicted to alter the Canadian climate before evaluating how this will affect the insurance industry. It determines that insurers’ response to the unpredictable risks and high costs associated with climate change will lead to significant gaps in coverage. How litigation of major carbon polluters could help cover some of the costs associated with climate change by holding polluters accountable is considered. State-led climate litigation can overcome some of the litigation obstacles identified and it …

The Paris Agreement And Global Climate Litigation After The Trump Withdrawal, David Hunter

Articles in Law Reviews & Other Academic Journals

The article addresses the emergence of cases in many countries around the world that are addressing climate change by enforcing, or at least referring to, the Paris Agreement.

Cool Lawsuits: Is Climate Change Litigation Dead After Kivalina V. Exxonmobil?, Mark L. Belleville

Mark L. Belleville

Can emitters of greenhouse gases (“GHGs”) ever be held liable for harms caused by climate change? That is the limited question this Article addresses. While many commentators saw the Supreme Court’s 2007 decision in Massachusetts v. EPA (“Mass. v. EPA”) as an indication that such claims may receive favorable review, recent decisions suggest that there may be no theory under which the ExxonMobils of the world can be held liable for the effects of climate change. Specifically, in September 2012, the Ninth Circuit Court of Appeals held that a native Alaskan village on the tip of a barrier reef, whose …

Courts Rulings Accept Climate Science, Michael Gerrard

Faculty Scholarship

Viewers of certain television networks, readers of certain newspapers, and anyone visiting Capitol Hill would come away with the impression that there are serious questions about whether climate change is occurring and, if it is, whether it is mostly caused by human activity. One place where there are few such questions is the courts. In fact it appears that (with one lone exception in a dissent) not a single U.S. judge has expressed any skepticism, in a written opinion or dissent, about the science underlying the concern over climate change. To the contrary, the courts have uniformly upheld this science, …

An Introduction To Climate Change Liability Litigation And A View To The Future, Michael B. Gerrard, Joseph A. Macdougald

Faculty Scholarship

This article discusses the advancement of climate change litigation. It explores two approaches to climate change litigation; the first is to use the federal regulatory apparatus and the second is to use the tort system. The article explores key questions in climate change litigation such as, who is responsible for deciding the appropriate level of harmful emissions? How should courts handle the long tail effects of climate change? What are the proper forums to litigate in? And, what is the role of the federal government in climate change litigation?

Slides: Air Monitoring And Litigation Update, John Jacus

Air Quality Impacts from Oil and Gas Development (January 27)

Presenter: John Jacus, Partner, Davis Graham & Stubbs LLP, reviews recent litigation aimed at oil and gas development activities with respect to air emissions impacts, and also several recent and ongoing studies and ambient monitoring efforts focused upon air emissions from oil and gas activities

23 slides