Abstract
Climate change is a very evident and crucial term for every individual. It’s a pattern of alteration that we are observing in the weather cycle. These changes in the pattern of climate posed a new threat to proper functioning of human life in the short term. Eventually it may create a big threat to the existence of living beings in the near future. In this time when the governments are still far away from this problem as a part of their manifesto and less attention in direct policy making and action plan. This became more important to talk about this notion and search for possible solutions to redress this dangerous change. However, climate activist, Non-governmental organisations carve out new ways to tackle this problem. When the legislative inactivism comes into force the judicial activism comes into play and that is known as the process of finding solutions from judicial approach and procedures. Climate change is also not untouched by judicial activism and that’s why activists and lawyers approached the judicial body, courts, and tribunal to seek remedy and rights that will ensure a healthy environment. Litigations which deal with climate change problems or challenge the policies of the government related to the environment and industrial sector are widely recognised as climate change litigation. This piece of paper explores this approach in a more holistic manner to ensure a basic understanding of this new concept in the legal world. It basically dealt with all the possible solutions available to mitigate the climate change problems through the judiciary which is one of most prominent institutions of government in most countries.
[1]“The reason for civil society to pursue climate litigation is the failure of multilevel commitments and governance to address the climate crisis, that is, the lack of effective climate mitigation, adaptation and justice despite thirty years of global climate governance”.
Keywords
Climate change litigation, Corporate climate litigation, climate lawyer, Pro regulatory Climate litigation, Anti regulatory climate litigation
Introduction
Climate change litigation is defined as the suit and cases filed before the judicial bodies and tribunals and the objectives of such litigation is to ask for a solution to existing climate change problems or to challenge the government policies that are framed for regulating the climate change problem. [2]Climate litigation refers to cases that relate specifically to climate change mitigation, adaptation, or the science of climate change. These litigations can broadly categorize in two types. The first classification is of those litigation that are filed to seek positive solutions to existing problems. These kinds of litigation are filed against the National governments, sub national governments, corporate companies, industries for the enforcement of rights available to an individual in the constitution or through any convention. So, the objective of these litigation is to lead a foundation of new action that seeks redressal of such grievances. The second classification is about those litigation which challenges the introduction of government regulations and policies framed by the government to either mitigate the greenhouse gas emissions or regulate the carbon emission to achieve the target set by the government. These are termed as anti- regulatory or as Anti. These litigations are mostly filed by corporate entities to delay or obstruct these actions and the reason behind such an approach is to gain financial or ideological interest. The regulations or the measures that the government is going to implement may be harmful for any private sector and that’s why corporate institutions go against these measures by citing their breach of public as well as private rights.
However, the given categorisation doesn’t include those cases which are related to breach of human rights. Sometimes the policy implementation may cause insecurities to the tribes or to the culture of any specific community. This may be a kind of conflict between the designed policy and habitation of particular tribes. It may be in the form of cultural or religious conflict. Then a third arena of these litigation comes into play. This is challenging the government policies of climate change and individual fundamental as well as human rights.
The Indian Eye: Relevance in Indian context
However, this new concept which get more recognition in the USA and Western countries are slowly evolving in the global south as well as in the Indian subcontinent. The data analysis which is done by Sabin Centre’s Climate change Litigation Database is the largest global climate change litigation database compiled to date. [3]The main source of data that is used in this paper is taken from Climate change Laws of the world (CCLW) which can be accessed by anyone and this created and regulated by Grantham Research Institute on climate change and the Environment at the London school of Economics and Political Science. According to the figures available a total of 2002 cases of climate change litigation across the world had been identified. Of these 1426 cases have been filed before the United States and remaining filed in another 43 countries and the weightage of Asia Pacific is merely 28 cases. And more specifically [4]India witnessed just 6- 10 cases in this time period. As Indian constitution Article 21 divided into Right to life and Right to personal liberty hold wide interpretation and one of the interpretations is that Right to live in a healthy and pollution free environment is a part of article 21 itself and this acts as a gateway for common citizens to seek enforcement of their fundamental rights. The supreme court recognised [5]“The right to live in a healthy environment as part of Article 21 of the Constitution in the case of [6]Rural Litigation and Entitlement Kendra vs. State (Popularly known as Dehradun Quarrying Case). It is the first case of this kind in India, involving issues relating to environment and ecological balance in which the Supreme Court directed to stop the excavation (illegal mining) under the Environment (Protection) Act, 1986. In [7]M.C. Mehta vs. Union of India, the Supreme Court treated the right to live in a pollution free environment as a part of fundamental right to life under Article 21 of the Constitution”. With this legal development India also became a new destination for climate change litigation. So, the rule is already established that if a state violates any individual fundamental right one can approach the supreme court under article 32 and the court can review the state action and ensure the enforcement of fundamental rights. It became a bit easier compared to other countries in terms of filing a climate litigation.
Research Methodology
This research paper is based on a purely doctrinal method which means that during the research i go through the existing literature and research work available in hard copy form as well as online resources.
Research Design: The research aims to explore the legal actions taken by various stakeholders to address the challenges posed by climate change. The research will be based on secondary sources available, including academic articles, books, reports, and legal cases. The structure of this research is designed in a way that it deal with basic understanding of climate change and the legal development regarding this. The posed research questions are that:
- How does climate change affect activists and the legal field?
- How the legal world transformed after inclusion of these kind of litigation ?
- Why is it relevant to understand the legal development in this field?
The research explores these queries and finds more data analysis to support the argument with more validity and acceptability. Though it is doctrinal, still it’s able to convey the pattern and response of stakeholders towards this.
Data collection Method: The related data taken from mainly most authentic sources available to this Climate change Laws of the world (CCLW) and the analysis of Sabin Centre’s Climate change Laws of the world also taken into consideration. The research will primarily rely on secondary sources, including academic journals, books, reports, and legal databases. The selection of sources will be based on their relevance, reliability, and credibility. The sources will be searched using appropriate keywords related to climate change litigation, such as “climate change lawsuits,” “environmental litigation,” and “climate-related legal cases.”
Review of Literature
1. Jolene Lin in the research titled “Climate Change Litigation: A Survey” provides a comprehensive overview of climate change litigation around the world. The paper starts by introducing the concept of climate change litigation, which refers to legal actions related to climate change issues, including lawsuits against governments, corporations, and other entities. The author categorizes climate change litigation into different types, such as adaptation litigation (seeking measures to address the impacts of climate change), mitigation litigation (demanding action to reduce greenhouse gas emissions), and liability litigation (holding entities responsible for climate change impacts).
The paper examines climate change litigation in various jurisdictions worldwide, including the United States, Australia, the European Union, and developing countries. It discusses the legal frameworks, landmark cases, and legal developments in various countries.
Key Themes and Arguments: The author identifies common themes and legal arguments in climate change litigation. These include claims based on human rights, constitutional rights, negligence, public trust doctrine, and environmental laws. The paper highlights notable cases and precedents in different jurisdictions.
Outcomes and Challenges: The author discusses the outcomes and impacts of climate change litigation, including both successful and unsuccessful cases. It explores how litigation has influenced policy, shaped public opinion, and spurred regulatory changes. The paper addresses challenges faced in climate change litigation, such as standing issues, causation difficulties, and the role of scientific evidence. It also suggests potential areas for future research and discusses the role of litigation in climate change governance.
Overall, the paper “Climate Change Litigation: A Survey” by Jolene Lin provides a comprehensive survey of climate change litigation worldwide, examining different types of cases, legal arguments, outcomes, and impacts. It serves as a valuable resource for understanding the landscape of climate change litigation and its potential role in addressing climate change challenges.
2. The policy report titled as “Global trends in climate change litigation” by Joana Setzer and Catherine Higham explores the statistics related to the climate change litigation and critically analyse its growth and evolution. It defines the number of cases filed in the USA and in other countries.
The report provides an overview of global developments in climate change litigation from May 2021 to May 2022, based on data from the Climate Change Laws of the World (CCLW) database and the United States Climate Litigation Database. The analysis covers 2,002 ongoing or concluded cases filed in 43 countries, 15 international or regional courts or tribunals, and the United States.
Growing Climate Litigation in the Global South: While the majority of cases are from the Global North, the number of climate litigation cases in the Global South has increased, with 88 cases identified in Latin America and the Caribbean, Asia Pacific, and Africa.
Over 70% of cases were brought against governments by companies, NGOs, and individuals. Outside the US, NGOs and individuals represent almost 90% of the claimants, while in the US, governments, companies, and trade associations have a higher proportion of claimants.
Rise in Climate Change Litigation: The report identified 2,002 ongoing or concluded cases, with 1,426 filed in the US and 576 filed in other countries. The highest number of cases outside the US was recorded in 2021, and new cases were identified in Italy, Denmark, and Papua New Guinea.
Diverse Corporate Defendants: While fossil fuel companies continue to face litigation, cases are also being filed against defendants in other sectors such as food and agriculture, transport, plastics, and finance.
Typology of Strategies: A typology of climate-aligned and non-climate-aligned strategies is identified, including enforcing climate standards, challenging government frameworks, compensation claims, and personal responsibility.
Outcomes of Climate Litigation: Out of the cases analyzed, 54% had outcomes favorable to climate change action. Even cases that do not reach a full hearing can still influence decision-making processes.
Trends Connected to the Glasgow Climate Pact: The report connects recent litigation trends to key elements of the Glasgow Climate Pact, including domestic accountability for climate targets, accountability for fossil fuel expansion, the connection between human rights and climate change litigation, and the role of private and public financial institutions.
Future Trends: Climate change litigation is expected to continue growing, with more diversified claimants and defendants. Anticipated trends include litigation focusing on personal responsibility, international litigation addressing loss and damage, challenges to commitments relying heavily on negative emissions technologies, and cases related to the climate and biodiversity nexus.
Data analysis: The report does not provide detailed data analysis but highlights the number of cases, their distribution across regions, the proportion of cases against governments, and the typology of strategies employed in climate change litigation.
Overall, the report emphasizes the increasing global trend of climate change litigation, the shifting landscape of defendants, the strategic nature of the cases, and the potential influence of litigation on climate governance and decision-making processes.
3. Lennart Wegene in his paper titled “Can the Paris Agreement Help Climate Change Litigation and Vice Versa” discusses the relationship between the Paris Agreement and domestic climate change litigation. It acknowledges that doubts exist regarding the implementation, monitoring, and enforcement of climate change standards despite the conclusion of the Paris Agreement. The non-binding nature of many provisions and the lack of political commitment contribute to these doubts. However, the article argues that the effectiveness of the Paris Agreement depends on the choice, design, and enforcement of measures at the national level.
Climate change litigation has emerged as a transnational phenomenon in recent years, extending beyond academic discussions and gaining traction in various jurisdictions. The article suggests that domestic climate change litigation offers a different perspective on climate change law, emphasizing the interaction between international and domestic legal frameworks. It explores how domestic courts can play a role in holding states accountable for mitigation actions and examines how climate change litigation can enhance the efficacy of the Paris Agreement. While the Kyoto Protocol imposed substantive obligations for climate change mitigation at the international level, the Paris Agreement emphasizes self-commitment and self-differentiation, allowing countries to determine their own targets and reduction pathways domestically. The article highlights the Paris Agreement as a central tool for global climate change governance, establishing collective goals and transparency standards while relying on national determination.
The article emphasizes the interlinkages and interactions between international and national levels in assessing the Paris Agreement. It recognizes the evolving role of domestic courts in climate change matters and cites examples of successful cases that have raised public awareness and challenged inadequate governance tools. Climate change litigation, while not a new phenomenon, has seen a significant increase in recent years, particularly in the era of the Paris Agreement. In conclusion, the article suggests that the interaction between the Paris Agreement and domestic climate change litigation is instrumental in achieving effective climate change mitigation and adaptation. It asserts that domestic litigation can help hold states accountable and improve the efficacy of the Agreement. The article highlights the value of the Agreement’s ambitious goals, nationally determined contributions, and mandatory updating as inputs into domestic litigation, bridging the gap between international and domestic climate change law and policy.
Suggestions
Climate change litigation can play a significant role in finding solutions to the challenges posed by climate change. Here are some suggestions on how climate change litigation can contribute to addressing climate change:
Define government’s accountability: Climate change litigation can hold governments accountable for their actions or lack thereof in implementing climate change mitigation and adaptation measures. By challenging inadequate policies or failures to meet international commitments, litigation can push governments to take more ambitious actions and fulfill their obligations under the Paris Agreement.
Judicial interpretation and guidance: Climate change litigation can provide opportunities for courts to interpret and apply existing laws in ways that promote climate-friendly outcomes. Courts can establish precedents and provide guidance on the legal obligations of governments, companies, and individuals in addressing climate change. This can lead to clearer legal frameworks and increased consistency in climate-related decision-making.
Addressing regulatory gaps: Climate change litigation can draw attention to regulatory gaps or weaknesses in existing climate policies and laws. Lawsuits can expose deficiencies in legislation or regulations and prompt lawmakers to revise and strengthen climate change frameworks. This can lead to the development of more comprehensive and effective climate policies.
Promoting innovation and technological advancements: Climate change litigation can incentivize innovation and the development of new technologies by creating legal precedents that support climate-friendly practices. Successful lawsuits can encourage the adoption of renewable energy technologies, energy efficiency measures, and sustainable practices, thereby driving the transition to a low-carbon economy.
Raising public awareness and executing action: Climate change litigation can serve as a platform to raise public awareness about the urgency and significance of climate change. Lawsuits can attract media attention and engage the public in climate-related issues, stimulating public discourse and encouraging individuals and communities to take action in their own capacity.
Collaboration and knowledge-sharing: Climate change litigation can facilitate collaboration and knowledge-sharing among different stakeholders. Lawsuits often involve experts and scientific evidence, providing opportunities for interdisciplinary cooperation and the exchange of information. This can enhance the understanding of climate change impacts and potential solutions, fostering cooperation between scientists, policymakers, lawyers, and affected communities.
Strengthening international climate change objectives: Climate change litigation can contribute to strengthening international climate governance by highlighting the gaps or weaknesses in the implementation and enforcement of global agreements such as the Paris Agreement.
The way forward: Conclusion
In conclusion, climate change litigation in the Indian context has emerged as a powerful tool in addressing the challenges posed by climate change. This research paper has explored the various aspects and implications of climate change litigation in India and highlighted its significance in promoting effective climate change mitigation and adaptation measures.
The analysis of climate change litigation in India reveals its potential to hold government agencies, industries, and individuals accountable for their actions or inactions that contribute to climate change. Lawsuits have been successful in challenging environmentally damaging projects, seeking compensation for climate-related harms, and demanding the implementation of stronger environmental regulations. These legal battles have raised public awareness and fostered a sense of urgency in addressing climate change issues.
Furthermore, climate change litigation in India has contributed to the development of a robust legal framework for environmental protection. Court judgments have established important precedents, interpreting constitutional and statutory provisions in favor of environmental conservation. This has paved the way for more stringent environmental regulations, improved enforcement mechanisms, and greater accountability.
The research also highlights the role of climate change litigation in fostering public participation and mobilization. Lawsuits have provided a platform for affected communities, environmental activists, and civil society organizations to voice their concerns, engage in legal battles, and advocate for sustainable development practices.
However, challenges persist, including the need for improved access to justice, capacity building for stakeholders, and ensuring the effective enforcement of court orders. Collaborative efforts between the judiciary, government agencies, and civil society are crucial to overcome these challenges and further strengthen the role of climate change litigation in India. In conclusion, climate change litigation in the Indian context has demonstrated its potential to drive positive change, strengthen environmental regulations, raise awareness, and ensure accountability in addressing climate change. Continued research, advocacy, and collaboration are essential to harness the full potential of climate change litigation for a sustainable and resilient future in India.
By- Mayank Kumar
Institution- Hidayatullah National Law University, Naya Raipur, Chhatisgarh
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[2] UNEP, https://www.unep.org/news-and-stories/press-release/surge-court-cases-over-climate-change-shows-increasing-role (last visited June 11, 2023).
[3] CCLW, http://climatecasechart.com/ (last visited June 11, 2023).
[4] Down to Earth, https://www.downtoearth.org.in/news/environment/climate-litigations-global-south-catching-up-with-hotspot-united-states-83568 (last visited June 12,2023).
[5] Press Information Bureau, https://pib.gov.in/newsite/printrelease.aspx?relid=105411 (last visited June 12,2023).
[6] Rural Litigation and Entitlement Kendra v. State of U.P., AIR 1988 SC 2187.
[7] M.C. Mehta v Union of India, AIR !987 SC 1086.