Hostname: page-component-cd9895bd7-hc48f Total loading time: 0 Render date: 2024-12-25T05:41:14.943Z Has data issue: false hasContentIssue false
  • English
  • Français

Climate Litigation in the Global South: Constraints and Innovations

Published online by Cambridge University Press:  12 December 2019

Joana Setzer Open the ORCID record for Joana Setzer [Opens in a new window]  and
Lisa Benjamin Open the ORCID record for Lisa Benjamin [Opens in a new window]
Joana Setzer
Affiliation:
Grantham Research Institute on Climate Change and the Environment, London School of Economics and Political Science (LSE), London (United Kingdom (UK)). Email: [email protected].
Lisa Benjamin
Affiliation:
Lewis & Clark Law School, Portland, OR (United States (US)). Email: [email protected].
Get access Rights & Permissions [Opens in a new window]

Abstract

Cases involving climate change have been litigated in the courts for some time, but new directions and trends have started to emerge. While the majority of climate litigation has occurred in the United States and other developed countries, cases in the Global South are growing both in terms of quantity and in the quality of their strategies and regulatory outcomes. However, so far climate litigation in the Global South has received scant attention from the literature. We argue that climate litigation in the Global South opens up avenues for progress in addressing climate change in highly vulnerable countries. We first highlight some of the capacity constraints experienced in Global South countries to provide context for the emerging trend of strategic climate litigation in the area. In spite of significant constraints experienced, the strategies adopted by litigants push the climate litigation agenda forward as a result of their outward-looking objective of combating ongoing environmental degradation, and, on a doctrinal level, the way in which they link climate change and human rights. Bearing in mind the limitations resulting from the selective nature of the cases examined, we draw upon Legal Opportunity Structures (LOS) approaches and identify two reasons for innovative cases and outcomes in Global South strategic climate litigation: (i) how litigants are either overcoming or using procedural requirements for access to environmental justice, and (ii) the existence of progressive legislative and judicial approaches to climate change. The strategies and outcomes from these judicial approaches in the Global South might be able to contribute to the further development of transnational climate change litigation.

Keywords

Climate change litigationGlobal SouthHuman rightsLegal Opportunity Structures
Type
Symposium Article
Information
Transnational Environmental Law , Volume 9 , Issue 1 , March 2020 , pp. 77 - 101
Copyright
Copyright © The Author(s) 2019. Published by Cambridge University Press

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

This contribution is part of a collection of articles growing out of the conference ‘Climate Change Litigation’, held at Aarhus University Department of Law, Aarhus (Denmark), 14–15 June 2018.

We are grateful for the comments provided by three anonymous referees for TEL, although any errors remain those of the authors. Thank you also for helpful feedback given by Amir Sokolowski, Kim Bouwer, Lisa Vanhala, Sam Varvastian, and the participants of a workshop on Loss and Damage convened by Lisa Vanhala at University College London (UCL), London (UK), on 18 Feb. 2019. This paper was not presented at the ‘Climate Change Litigation’ conference in Aarhus, but the idea of writing it was sparked at the conference. We thank Katerina Mitkidis and Theodora Valkanou for organizing the conference and this special issue.

Joana Setzer acknowledges the financial support of the British Academy through the Postdoctoral Fellowship, as well as the Grantham Foundation for the Protection of the Environment and the ESRC via the Centre for Climate Change Economics and Policy (CCCEP) (Grant No. ES/R009708/1).

Lisa Benjamin acknowledges the financial support of the Killam Postdoctoral Fellowship at the Schulich School of Law, Dalhousie University, Halifax, NS (Canada).

References

1 Defining the groupings of poorer countries in the world has been subject to much debate. The terms ‘Third World’, ‘developing world’ and ‘Global South’ originated in different periods and have been contested in terms of their utility and appropriateness. Today, the term ‘Global South’ (and its counterpart ‘Global North’) is the favoured option by scholars and policymakers. It is based on an earlier ‘North–South’ distinction of the 1980s, but the prefix ‘Global’ clarifies that this is not a geographical categorization of the world, but one based on economic inequalities, though with some spatial resonance in terms of where the countries are situated: Chant, S.H. & McIlwaine, C., Geographies of Development in the 21st Century: An Introduction to the Global South (Edward Elgar, 2008), pp. 6, 11Google Scholar. Yet, within ‘Global South’ countries, there are different layers of development and legal capacity. The Global South countries that we consider in this article are all relatively affluent and have fairly strong civil societies and legal systems.

2 Traditionally, the term ‘transnational litigation’ refers to claims involving foreign plaintiffs or defendants located outside the court's jurisdiction, and/or the possibility of enforcing foreign judgments in domestic courts: see Quintanilla, M.S. & Whytock, C.A., ‘Transnational Litigation: Foreign Courts, Foreign Judgments, and Foreign Law’ (2011) 18(1) Southwestern Journal of International Law, pp. 31–52Google Scholar, at 32. Looking specifically at transnational climate litigation in the US, see Byers, M., Kelsey, F. & Gage, A., ‘The Internationalization of Climate Damages Litigation’ (2017) 7(2) Washington Journal of Environmental Law & Policy, pp. 264–319Google Scholar. Scholars of climate litigation also describe climate litigation as ‘transnational’ in that it is part of a ‘global’ climate justice movement, even where cases involve only domestic litigants and decisions of domestic courts: see Peel, J. & Lin, J., ‘Transnational Climate Litigation: The Contribution of the Global South’ (2019) 113(4) American Journal of International Law, pp. 679–726CrossRefGoogle Scholar.

3 Kotzé, L., ‘Human Rights, the Environment and the Global South’, in Alam, S. et al. (eds), International Environmental Law and the Global South (Cambridge University Press, 2015), pp. 171–91CrossRefGoogle Scholar, at 178–9.

4 The term ‘carbon majors’ and the Carbon Majors Inquiry are underpinned by a study published by Heede, R., ‘Tracing Anthropogenic Carbon Dioxide and Methane Emissions to Fossil Fuel and Cement Producers, 1854–2010’ (2014) 122(1–2) Climatic Change, pp. 229–41CrossRefGoogle Scholar. Documents and other information about the Inquiry are available at: https://essc.org.ph/content/nicc.

5 Alvarado, P.A.A. & Rivas-Ramírez, D., ‘A Milestone in Environmental and Future Generations’ Rights Protection: Recent Legal Developments before the Colombian Supreme Court’ (2018) 30(3) Journal of Environmental Law, pp. 519–26CrossRefGoogle Scholar; and Calzadilla, P. Villavicencio, ‘A Paradigm Shift in Courts’ View on Nature: The Atrato River and Amazon Basin Cases in Colombia’ (2019) 15(0) Law, Environment and Development Journal, pp. 1–11Google Scholar, available at: http://www.lead-journal.org/content/19001.pdf.

6 Ashgar Leghari v. Federation of Pakistan, Case No. 25501/2015, Lahore High Court, Order of 4 Sept. 2015, available at: http://www.lse.ac.uk/GranthamInstitute/litigation/ashgar-leghari-v-federation-of-pakistan-lahore-high-court-green-bench-2015.

7 Peel & Lin, n. 2 above, pp. 690–5, 703–4.

8 Earthlife Africa Johannesburg v. Minister of Environmental Affairs & Others, Case No. 65662/16, High Court, Order of 8 Mar. 2017, available at: http://www.lse.ac.uk/GranthamInstitute/litigation/earthlife-africa-johannesburg-v-minister-of-environmental-affairs-others.

9 Mertz, O. et al. , ‘Adaptation to Climate Change in Developing Countries’ (2009) 43(5) Environmental Management, pp. 743–52CrossRefGoogle Scholar, at 744; Bazilian, M. et al. , ‘Interactions between Energy Security and Climate Change: A Focus on Developing Countries’ (2011) 39(6) Energy Policy, pp. 3750–6CrossRefGoogle Scholar, at 3750. However, there are a number of countries in the Global South where for many years climate change has been considered a priority (e.g., small island developing states).

10 S. Atapattu & C.G. Gonzalez, ‘The North-South Divide in International Environmental Law: Framing the Issues’, in Alam et al., n. 3 above, pp. 1–21, at 10.

11 Ibid., p. 2.

12 R. Gordon, ‘Unsustainable Development’, in Alam et al., n. 3 above, pp. 50–73, at 50.

13 Atapattu & Gonzalez, n. 10 above, p. 5.

14 V.P. Nanda, ‘Global Environmental Governance and the South’, in Alam et al., n. 3 above, pp. 130–51, at 135.

15 Ibid., p. 146.

16 Emeseh, E., ‘Limitations of Law in Promoting Synergy between Environment and Development Policies in Developing Countries: A Case Study of the Petroleum Industry in Nigeria’ (2006) 24(4) Journal of Energy Natural Resources, pp. 574–606Google Scholar, at 598; Lo, C. & Fryxell, G., ‘Enforcement Strategies among Environmental Protection Officials in China’ (2003) 23(2) Journal of Public Policy, pp. 81–115CrossRefGoogle Scholar, at 83.

17 Blackman, A., ‘Can Voluntary Environmental Regulation Work in Developing Countries? Lessons from Case Studies’ (2008) 36(1) The Policy Studies Journal, pp. 119–41CrossRefGoogle Scholar, at 120; Eskeland, G. & Jimenez, E., ‘Policy Instruments for Pollution Control in Developing Countries’ (1992) 7(2) The World Bank Research Observer, pp. 145–69CrossRefGoogle Scholar.

18 Singh, S. & Rajamani, S., ‘Issue of Environmental Compliance in Developing Countries’ (2003) 47(12) Water Science and Technology, pp. 301–4CrossRefGoogle Scholar, at 301.

19 Ibid.

20 Bazilian et al., n. 9 above, p. 3754.

21 UN Environment, Environmental Rule of Law: First Global Report (UN Environment Programme (UNEP), 2019), available at: https://www.unenvironment.org/resources/assessment/environmental-rule-law-first-global-report.

22 Ibid., p. 157.

23 Ibid.

24 Ibid., p. 172.

25 Global Witness, ‘At What Cost? Irresponsible Business and the Murder of Land and Environmental Defenders in 2017’, 24 July 2018 (updated Jan. 2019), available at: https://www.globalwitness.org/en/campaigns/environmental-activists/at-what-cost. On the other hand, activists and even researchers in the Global North suffer retaliation through the courts through strategic lawsuits against public participation (SLAPP) and lawsuits against researchers: see M. Poggio, ‘Fossil Fuel Industry Ally Targets UCLA Law Professors’ Climate Liability Work’, Climate Liability News, 12 Dec. 2018, available at: https://www.climateliabilitynews.org/2018/12/12/ucla-law-professor-ann-carlson-cara-horowitz-cei.

26 Kellman, J., ‘The Brazilian Legal Tradition and Environmental Protection: Friend or Foe’ (2002) 25(2) Hastings International & Comparative Law Review, pp. 145–67Google Scholar, at 164.

27 UN Environment, n. 21 above, p. 173, Fig. 4.8.

28 Peel, J. & Osofsky, H.M., Climate Change Litigation: Regulatory Pathways to Cleaner Energy (Cambridge University Press, 2015), pp. 9–25CrossRefGoogle Scholar.

29 Markell, D. & Ruhl, J.B., ‘An Empirical Assessment of Climate Change in the Courts: A New Jurisprudence or Business as Usual?’ (2012) 64(1) Florida Law Review, pp. 15–86Google Scholar, at 21.

30 Peel & Osofsky, n. 28 above, p. 4.

31 Ibid., p. 36.

32 Preston, B., ‘Climate Change Litigation (Part 1)’ (2011) 5(1) Carbon and Climate Law Review, pp. 3–14CrossRefGoogle Scholar, at 8.

33 B. Preston, ‘Recent Climate Litigation Concerning Environmental Rights’, presentation given at the Asia Pacific Judicial Colloquium on Climate Change: Using Constitutions to Advance Environmental Rights and Achieve Climate Justice, Lahore High Court in Pakistan, 26 Feb. 2018, available at: https://www.ajne.org/event/asia-pacific-judicial-colloquium-climate-change#quicktabs-event_tabs=2. Judge Preston was referring to Greenpeace Australia Ltd v. Redbank Power Co., available at: http://www.lse.ac.uk/GranthamInstitute/litigation/greenpeace-australia-ltd-v-redbank-power-co-land-and-environment-court-of-new-south-wales-1994 (in which the Land and Environment Court of New South Wales upheld a state council decision granting development consent for the construction of a power station. Greenpeace asserted that air emissions from the power station would exacerbate the greenhouse effect).

34 For US cases, see the database maintained by the Sabin Center for Climate Change Law, in collaboration with Arnold & Porter Kaye Scholer LLP, available at: http://climatecasechart.com/us-climate-change-litigation. For cases in other jurisdictions, see the Climate Change Litigation of the World database, jointly produced by the Sabin Center and the Grantham Research Institute on Climate Change and the Environment at the London School of Economics, available at: http://www.lse.ac.uk/GranthamInstitute/climate-change-laws-of-the-world. Examining trends in litigation, see Setzer, J. & Bangalore, M., ‘Regulating Climate Change in the Courts’, in Averchenkova, A., Fankhauser, S. & Nachmany, M. (eds), Trends in Climate Change Legislation (Edward Elgar, 2017), pp. 175–92CrossRefGoogle Scholar.

35 UN Environment and Sabin Center for Climate Change Law at Columbia University, The Status of Climate Change Litigation: A Global Review (UNEP, 2017), p. 4, available at: http://wedocs.unep.org/handle/20.500.11822/20767.

36 Ibid., p. 10.

37 Peel, J. & Osofsky, H.M., ‘Climate Change Litigation's Regulatory Pathways: A Comparative Analysis of the United States and Australia’ (2013) 35(3) Law & Policy, pp. 150–83CrossRefGoogle Scholar.

38 For a comprehensive survey of these cases, see Peel & Lin, n. 2 above.

39 Lin, J., ‘Climate Change and the Courts’ (2012) 32(1) Legal Studies, pp. 35–57CrossRefGoogle Scholar; Lin, J., ‘Climate Change Litigation in Asia and the Pacific’, in van Calster, G., Vandenberghe, W. & Reins, L. (eds), Research Handbook on Climate Change Mitigation Law (Edward Elgar, 2015), pp. 578–602CrossRefGoogle Scholar; Vanhala, L., ‘The Comparative Politics of Courts and Climate Change’ (2013) 22(3) Environmental Politics, pp. 447–74CrossRefGoogle Scholar; Wilensky, M., ‘Climate Change in the Courts: An Assessment of Non-U.S. Climate Litigation’ (2015) 26(1) Duke Environmental Law & Policy Forum, pp. 131–79Google Scholar.

40 Peel & Osofsky, n. 28 above, p. 62.

41 J. Setzer & L. Vanhala, ‘Climate Change Litigation: A Review of Research on Courts and Litigants in Climate Governance’ (2019) WIREs Climate Change online articles, available at: https://onlinelibrary.wiley.com/doi/abs/10.1002/wcc.580. Of the 130 articles identified up to Sept. 2018, 76% (99) focus on Global North jurisdictions, 20% (26) have an international focus or cover jurisdictions in both the North and South. Only 5 of the identified journal articles looked at litigation or litigation-related issues in the Global South: He, X., ‘Legal and Policy Pathways of Climate Change Adaptation: Comparative Analysis of the Adaptation Practices in the United States, Australia and China’ (2018) 7(2) Transnational Environmental Law, pp. 347–73CrossRefGoogle Scholar; Humby, T.-L., ‘The Thabametsi Case: Case No 65662/16 Earthlife Africa Johannesburg v Minister of Environmental Affairs’ (2018) 30(1) Journal of Environmental Law, pp. 145–55CrossRefGoogle Scholar; Nyinevi, C., ‘Universal Civil Jurisdiction: An Option for Global Justice in Climate Change Litigation’ (2015) 8(3) Journal of Politics and Law, pp. 135–48CrossRefGoogle Scholar, available at: https://ssrn.com/abstract=2650371; Williams, J., ‘The Impact of Climate Change on Indigenous People: The Implications for the Cultural, Spiritual, Economic and Legal Rights of Indigenous People’ (2012) 16(4) The International Journal of Human Rights, pp. 648–88CrossRefGoogle Scholar; Ugochukwu, B., ‘Litigating the Impacts of Climate Change: The Challenge of Legal Polycentricity’ (2018) 7(1) Global Journal of Comparative Law, pp. 91–114CrossRefGoogle Scholar. Since their assessment other articles have been published, including Alvarado & Rivas-Ramírez (n. 5 above), and a forthcoming comprehensive analysis by Peel and Lin (n. 2 above).

42 Hailbronner, M., ‘Transformative Constitutionalism: Not only in the Global South’ (2017) 65(3) American Journal of Comparative Law, pp. 527–65CrossRefGoogle Scholar.

43 Maldonado, D.B., Constitutionalism of the Global South: The Activist Tribunals of India, South Africa, and Colombia (Cambridge University Press, 2013)CrossRefGoogle Scholar.

44 Peel & Lin (n. 2 above) identify a number of key characteristics of climate cases in the Global South, including reliance on constitutional rights or human rights claims, and that individuals and NGOs in the Global South are using litigation to compel their governments to implement and enforce existing policies for mitigation and adaptation – and, rather surprisingly, most cases currently comprise mitigation.

45 Stichting Urgenda v. Government of the Netherlands (Ministry of Infrastructure and the Environment), ECLI:NL:RBDHA:2015:7145, Rechtbank Den Haag, C/09/456689/HA ZA 13-1396 (Urgenda). See also van Zeben, J., ‘Establishing a Governmental Duty of Care for Climate Change Mitigation: Will Urgenda Turn the Tide? (2015) 4(2) Transnational Environmental Law, pp. 339–57CrossRefGoogle Scholar.

46 Juliana et al. v. United States of America et al., F.Supp.3d 1224, 1236 (D. Or. 2016); Blumm, M.C. & Wood, M.C., ‘No Ordinary Lawsuit: Climate Change, Due Process and the Public Trust Doctrine’ (2017) 67(1) American University Law Review, pp. 1–87Google ScholarPubMed.

47 In Oct. 2018 Chief Justice Roberts granted a temporary halt in response to a request by the federal government. The Supreme Court subsequently lifted the stay on 2 Nov., and the Department of Justice subsequently requested a stay from the US District Court for the District of Oregon, which granted in part a temporary stay on 9 Nov. 2018.

48 Blumm & Wood, n. 46 above. See also Osofsky, J. Peel & H.M., ‘A Rights Turn in Climate Change Litigation?’ (2018) 7(1) Transnational Environmental Law, pp. 37–67Google Scholar, and P. Singer, ‘The Trial of the Century, Fighting for a Healthier Planet’, The Daily Star, 15 Sept. 2018, available at: http://www.dailystar.com.lb/Opinion/Commentary/2018/Sep-15/463429-the-trial-of-the-century-fighting-for-a-healthier-planet.ashx.

49 Friends of the Irish Environment v. Ireland, available at: http://www.lse.ac.uk/GranthamInstitute/litigation/friends-of-the-irish-environment-v-ireland; ENvironnement JEUnesse v. Canada, available at: http://www.lse.ac.uk/GranthamInstitute/litigation/environnement-jeunesse-v-canada.

50 See Greenpeace France et al., ‘Inaction over Climate Change : Let's Fight for Justice’, available at: https://notreaffaireatous.org/wp-content/uploads/2018/12/CP-ANGLAIS.pdf.

51 Peel & Lin, n. 2 above, p. 717.

52 For a discussion about climate change litigation in Indonesia, see A.G. Wibisana & C.M. Cornelius, ‘Climate Change Litigation in Indonesia’, working paper presented at the Climate Change Litigation Scholarship Workshop, Faculty of Law, National University of Singapore, 7–8 June 2018.

53 For an analysis of cases decided by the Brazilian courts, see G. Wedy, ‘Climate Legislation and Litigation in Brazil’, Sabin Center for Climate Change Law Working Papers, Oct. 2017, available at: http://columbiaclimatelaw.com/files/2017/10/Wedy-2017-10-Climate-Legislation-and-Litigation-in-Brazil.pdf; and, in Portuguese, Setzer, J., Cunha, K. & Botter-Fabri, A. (eds), Climate Litigation: New Frontiers for Environmental Law in Brazil (Thompson Reuters/Revista dos Tribunais, 2019)Google Scholar.

54 Peel & Lin, n. 2 above pp. 704–5. Of these 5 cases they identify, 1 was in Asia and 4 in Africa.

55 However, as Bouwer argues, ‘peripheric’ climate litigation cases that interface with climate policy might also undermine domestic climate change policy: Bouwer, K., ‘The Unsexy Future of Climate Change Litigation’ (2018) 30(3) Journal of Environmental Law, pp. 483–506CrossRefGoogle Scholar.

56 Humby (n. 41 above) analyzes the Thabametsi case through the lens of Preston's conceptual framework for the judiciary to make a ‘meaningful contribution’ to tackling climate change: see Preston, B., ‘The Contribution of the Courts in Tackling Climate Change’ (2016) 28(1) Journal of Environmental Law, pp. 11–7CrossRefGoogle Scholar.

57 Kellman, n. 26 above, p. 145.

58 The plaintiffs request the Court to order the state to act in various ways, which include (i) the design and implementation of a national action plan as well as an intergenerational agreement to reduce deforestation; (ii) upgrading the ‘Territorial Management Plan’; (iii) suspending the main activities that are the cause of deforestation; (iv) investigating illicit activities that contribute to deforestation; and (v) revising all public resources destined for the reduction of deforestation; available at: http://www.lse.ac.uk/GranthamInstitute/litigation/future-generation-v-ministry-environment-others.

59 See Knox, J., ‘Climate Change and Human Rights Law’ (2009) 50(1) Virginia Journal of International Law, pp. 163–218Google Scholar; and Humphreys, S. & Robinson, M., Human Rights and Climate Change (Cambridge University Press, 2010)Google Scholar.

60 Setzer & Vanhala, n. 41 above; also Atapattu, S., Human Rights Approaches to Climate Change: Challenges and Opportunities (Routledge, 2016)Google Scholar.

61 Olawuyi, D.S., ‘Advancing Climate Justice in National Climate Actions: The Promise and Limitations of the United Nations Human Rights-Based Approaches’, in Abate, R.S. (ed.), Climate Justice: Case Studies in Global and Regional Governance Challenges (Environmental Law Institute, 2016), pp. 3–24Google Scholar, at 7.

62 Peel & Osofsky, n. 48 above.

63 Stichting Urgenda v. Government of the Netherlands (Ministry of Infrastructure and the Environment), Rechtbank Den Haag, 24 June 2015, ECLI:NL:RBDHA:2015:7196, para. 4.36, English translation available at: http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBDHA:2015:7196. See van Zeben, n. 45 above.

64 Rome (Italy), 4 Nov. 1950, in force 3 Sept. 1953, available at: http://www.echr.coe.int/pages/home.aspx?p=basictexts.

65 Court of Appeal of the Hague, The State of the Netherlands (Ministry of Infrastructure and the Environment) v. Urgenda Foundation, C/09/456689 / HA ZA 13-1396, 9 Oct. 2018, para. 41 (quotations from the translation provided by the Court) available at: https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHDHA:2018:2610). See also B. Mayer, The State of the Netherlands v. Urgenda Foundation: Ruling of the Court of Appeal of The Hague (9 October 2018) (2019) 8(1) Transnational Environmental Law, pp. 167–92.

66 Urgenda, ibid., para. 45.

67 N. 46 above.

68 N. 49 above.

69 This is the case for the countries mentioned in this article. See ‘Constitute Project’, available at: https://www.constituteproject.org; and UN High Commissioner for Human Rights (OHCHR), Human Rights and Constitution Making (UN, 2018), available at: https://www.ohchr.org/Documents/Publications/ConstitutionMaking_EN.pdf.

70 See Gonzalez, C.G., ‘Environmental Justice, Human Rights, and the Global South’ (2015) 13(1) Santa Clara Journal of International Law, pp. 151–96Google Scholar, at 165; also Maldonado, n. 43 above and Section 5 below.

71 Kotzé, n. 3 above, pp. 178–9.

72 Ibid., p. 179.

73 IPCC, ‘Summary for Policymakers’, in V. Masson-Delmotte et al. (eds), Global Warming of 1.5°C: An IPCC Special Report on the Impacts of Global Warming of 1.5°C above Pre-industrial Levels and Related Global Greenhouse Gas Emission Pathways, in the Context of Strengthening the Global Response to the Threat of Climate Change, Sustainable Development, and Efforts to Eradicate Poverty (IPCC, 2018 forthcoming), pp. 1–24, p. 5, available at: https://www.ipcc.ch/sr15.

74 Ibid., p. 8.

75 Ibid., p. 11.

76 Ibid.

77 Ibid., pp. 11–2.

78 Limon, E. Cameron & M., ‘Restoring the Climate by Realizing Rights: The Role of the International Human Rights System’ (2012) 21(3) Review of European Community & International Environmental Law, pp. 204–19Google Scholar, at 204.

79 S. Atapattu, ‘Justice for Small Island Nations: Intersections of Equity, Human Rights and Environmental Justice’, in Abate, n. 61 above, pp. 299–322.

80 Paris (France), 12 Dec. 2015, in force 4 Nov. 2016, available at: https://unfccc.int/sites/default/files/english_paris_agreement.pdf.

81 Art. 3 Paris Agreement states that all countries are to take ambitious action. Moreover, Art. 4(3) notes that all states’ nationally determined contributions will reflect their highest possible ambition while respecting common but differentiated responsibilities and respective capabilities, in the light of differing national circumstances. Art. 4(4) also folds in an element of differentiation by stating that developed countries should take the lead by instituting economy-wide absolute emission reductions and developing countries should enhance mitigation action and move, over time, towards economy-wide emissions reductions or limitation targets.

82 Olawuyi, n. 61 above, pp. 6–7.

83 Ibid.

84 Cameron & Limon, n. 78 above, p. 206.

85 N. 6 above.

86 Ibid.

87 Rabab Ali v. Federation of Pakistan, Supreme Court of Pakistan (2016), available at: http://www.lse.ac.uk/GranthamInstitute/litigation/ali-v-federation-of-pakistan-supreme-court-of-pakistan-2016.

88 Public Interest Litigation Association of Pakistan v. Government of the Punjab, W.P. No. 9137/2012, Lahore High Court, available at: http://sys.lhc.gov.pk/greenBenchOrders/WP-Environment-9137-12-30-12-2015.pdf.

89 See Alvarado & Rivas-Ramírez, n. 5 above; Villavicencio Calzadilla, n. 5 above.

90 Supreme Court decision in Spanish and unofficial translation of excerpts into English are available at: http://www.lse.ac.uk/GranthamInstitute/litigation/future-generation-v-ministry-environment-others.

91 Alvarado & Rivas-Ramírez, n. 5 above, p. 524.

92 See n. 4 above, and A. Savaresi & J. Hartmann, ‘Using Human Rights Law to Address the Impacts of Climate Change: Early Reflections on the Carbon Majors Inquiry’, presented at the workshop ‘Climate Change Litigation in the Asia Pacific’, University of Singapore, June 2018, available at: https://ssrn.com/abstract=3277568 (which charts the human rights dimensions of the case). Also Seck, S., ‘Revisiting Transnational Corporations and Extractive Industries: Climate Justice, Feminism and State Sovereignty’ (2017) 26(2) Transnational Law & Contemporary Problems, pp. 383–413Google Scholar (who critiques the choice of entity as only investor-owned carbon majors as well as the underlying assumptions of international law and the detrimental impacts on climate justice that they entail).

93 Climate litigation scholarship coming from the Global North generally approaches liability from tort-based claims. However, as Kysar argues, tort-based climate change claims for damages in the US and in other common law systems in the Global North face a legal system filled with doctrines that are premised on a classical liberal worldview in which threats such as global climate change simply do not register, making it difficult for climate change plaintiffs to obtain favourable judicial decisions. Although legal principles such as joint and several liability might provide a mechanism by which to overcome these obstacles, judges have expressed reluctance to attribute responsibility for climate change to any particular individual or group of plaintiffs: Kysar, D.A., ‘What Climate Change Can Do About Tort Law’ (2011) 41(1) Environmental Law, pp. 1–71Google Scholar. For examples of unsuccessful use of tort-based climate change claims against carbon majors in the Global North, see Native Village of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863, 877 (N.D. Cal 2009), aff'd, 696 F.3d 849 (9th Cir. 2012).

94 Since it began the investigation, the Philippines Commission on Human Rights has held several hearings around the world, garnering significant public attention, with three sittings in the Philippines as well as in New York (27–28 Sept. 2018) and London (6–9 Nov. 2018). Carbon-major corporations are also facing litigation claims in the Global North: see L. Benjamin, ‘The Road to Paris Runs Through Delaware: Climate Litigation and Directors’ Duties’ (2020 forthcoming) Utah Law Review, available at:https://www.ssrn.com/abstract=3379848.

95 Banda, M.L. & Fulton, S., ‘Litigating Climate Change in National Courts: Recent Trends and Developments in Global Climate Law’ (2017) 47(2) Environmental Law Reporter, pp. 10121–34Google Scholar, at 10132.

96 Lliuya v. RWE, 23 Nov. 2015 (unauthorized translation provided by Germanwatch e.v.).

97 The voltum was read out in court in Nov. 2017 as a preparatory opinion, but this is an internal court document and is not publicly available.

98 Hilson was among the first to deploy the terms ‘legal opportunity’ and ‘legal opportunity structure’ to describe the conditions for social movements to pursue their goals through litigation: Hilson, C., ‘New Social Movements: The Role of Legal Opportunity’ (2002) 9(2) Journal of European Public Policy, pp. 238–55CrossRefGoogle Scholar. Since then many other researchers have been using and developing this framework: see, e.g., Wilson, B.M. & Cordero, J.C.R., ‘Legal Opportunity Structures and Social Movements: The Effects of Institutional Change on Costa Rican Politics’ (2006) 39(3) Comparative Political Studies, pp. 325–51CrossRefGoogle Scholar; and Vanhala, L., ‘Legal Opportunity Structures and the Paradox of Legal Mobilization by the Environmental Movement in the UK’ (2012) 46(3) Law & Society Review, pp. 523–56CrossRefGoogle Scholar.

99 Vanhala, ibid.

100 Emeseh, n. 16 above, p. 603.

101 UN Environment, n. 21 above, p. 187.

102 Supreme Court Rules of Procedure, The Philippines, A.M. No. 09-6-8-SC (2010). The Philippines has a history of progressive environmentalism, as highlighted by Minors Oposa v. Secretary of the Department of the Environment and Natural Resources (1994) 33(1) International Legal Materials, pp. 173–206, in which the Supreme Court ruled that the plaintiffs had standing to represent generations unborn in the protection of environmental rights.

103 Emeseh, n. 16 above, p. 602.

104 Ibid., citing Shella Zia v. WAPDA, PLD 1994 SC 693 (in which the Pakistan Supreme Court held that the right to life in the Constitution included the right to a healthy environment), Minors Oposa, ibid. (in which the Supreme Court of the Philippines allowed the plaintiffs to sue on behalf of future generations), and Faroque v. Bangladesh, No. 3 Sri Lanka 4–6 July 1997 (in which a broad interpretation of ‘aggrieved person’ was found under the Bangladesh Constitution).

105 UN Environment, n. 21 above, p. 186.

106 Other constraints are geographical remoteness and scarce government resources: ibid., pp. 184–6.

107 C.R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (University of Chicago Press, 1998), p. 17. Whereas the costs rules of a legal system are usually understood as part of Legal Opportunity Structures (e.g., loser-pays acts as a disincentive in taking litigation because of the risk and uncertainty), financial resources are often not conceptualized. Further discussions regarding financial hurdles in strategic litigation can be found in Arrington, C.L., ‘Hiding in Plain Sight: Pseudonymity and Participation in Legal Mobilization’ (2019) 52(2) Comparative Political Studies, pp. 310–41CrossRefGoogle Scholar; Vanhala, L., ‘Shaping the Structure of Legal Opportunities: Environmental NGOs Bringing International Environmental Procedural Rights Back Home’ (2018) 40(1) Law & Policy, pp. 110–27CrossRefGoogle Scholar; Vanhala, L., ‘Is Legal Mobilization for the Birds? Legal Opportunity Structures and Environmental Nongovernmental Organizations in the United Kingdom, France, Finland, and Italy’ (2018) 51(3) Comparative Political Studies, pp. 380–412CrossRefGoogle Scholar.

108 UN Environment, n. 21 above, p. 183.

109 Peel & Lin (n. 2 above) conducted an analysis of amicus curiae briefs as well as interviews with stakeholders and found that 43% of Global South litigation enjoyed local or non-local NGO support and, of those cases, 57% of non-local NGO support was from the Global North.

110 Ganguly, G., Heyvaert, J. Setzer & V., ‘If at First You Don't Succeed: Suing Corporations for Climate Change’ (2018) 38(4) Oxford Journal of Legal Studies, pp. 841–68CrossRefGoogle Scholar. O'Gorman, R., ‘Environmental Constitutionalism: A Comparative Study’ (2017) 6(3) Transnational Environmental Law, pp. 435–62CrossRefGoogle Scholar, at 435–6.

111 Scotford, E. & Minas, S., ‘Probing the Hidden Depth of Climate Law: Analysing National Climate Legislation’ (2019) 28(1) Review of European, Comparative and International Environmental Law, pp. 67–81CrossRefGoogle Scholar, at 72.

112 Some countries have climate laws or policies which are broad and integrative in scope, such as Mexico's General Law on Climate Change. Others that do not have discrete climate legislation rely on climate-compatible development plans and adaptation and disaster management: M. Nachmany et al., ‘The 2015 Global Climate Legislation Study: A Review of Climate Legislation in 99 Countries. Summary for Policy-makers’, GLOBE & Grantham Research Institute on Climate Change and the Environment, 2015, p. 16; see also Townshend, et al. , ‘How National Legislation Can Help to Solve Climate Change’ (2013) 3(5) Nature Climate Change, pp. 430–4CrossRefGoogle Scholar, at 430.

113 Environmental Law Alliance Worldwide (ELAW), ‘Holding Corporations Accountable for Damaging the Climate’, 2014, available at: https://www.elaw.org/system/files/elaw.climate.litigation.report.pdf.

114 Ashgar Leghari v. Federation of Pakistan. n. 6 above.

115 Ibid., paras 6–7.

116 R.S. Khan, ‘Pakistan Passes Climate Change Act, Reviving Hopes – and Skepticism’, Reuters, 24 Mar. 2017, available at: https://www.reuters.com/article/us-pakistan-climatechange-lawmaking/pakistan-passes-climate-change-act-reviving-hopes-and-skepticism-idUSKBN16V19N.

117 Ibid.

118 Alvarado & Rivas-Ramírez, n. 5 above, pp. 522–4. Nevertheless, the Columbian courts have a judicial history in innovative approaches to environmental protection. For example, in 2016, the Sixth Chamber of Review of the Constitutional Court of Columbia granted rights to the Atrato River, its basin and tributaries (Center for Social Justice Studies et al. v. Presidency of the Republic et al., Constitutional Court of Colombia, Judgment T-622/16, unofficial English translation available at: http://files.harmonywithnatureun.org/uploads/upload838.pdf).

119 S.A. Sierra, ‘The Colombian Government Has Failed to Fulfil the Supreme Court's Landmark Order to Protect the Amazon’, Dejusticia, 5 April 2019, available at: https://www.dejusticia.org/en/the-colombian-government-has-failed-to-fulfill-the-supreme-courts-landmark-order-to-protect-the-amazon.

120 Banda & Fulton, n. 95 above, p. 10131. The engagement of activist judges with climate change is also observed transnationally in the Oslo Principles on Global Climate Change Obligations to Reduce Climate Change (available at: https://globaljustice.yale.edu/oslo-principles-global-climate-change-obligations) and the Climate Principles for Enterprises (available at: https://climateprinciplesforenterprises.org). While the Principles may remain a progressive interpretation of fiduciary duties, judicial experts anticipate more progressive judicial decision making along these lines, particularly by activist jurists, as the threat of climate change and associated damage further materializes.

121 Ibid., p. 10123.

122 Ibid., p. 10134.

123 Wibisana & Cornelius (n. 52 above) argue that judges might have been oblivious to the fact that they had established a novel and unique jurisprudence.

124 This was a surprising finding for Peel & Lin, n. 2 above, p. 685.

125 Some governments in the Global South (e.g., Ethiopia, Rwanda, South Korea) are already passing legislation which focuses on climate-resilient development and green-growth strategies: see Townshend et al., n. 112 above, p. 431.

126 UN Environment and Sabin Center for Climate Change Law, n. 35 above, p. 25, and Sabin Center, n. 34 above, p. 25.

127 D. Drugmand, ‘Tiny Pacific Island Could File First National Climate Liability Suit’, Climate Liability News, 26 Nov. 2018, available at: https://www.climateliabilitynews.org/2018/11/26/vanuatu-climate-liability-suit.

128 Ganguly, Setzer & Heyvaert, n. 110 above, p. 866.

129 Peel and Lin, n. 2 above. In Australia, EIA climate cases have consolidated the practice of including climate change considerations in EIA undertaken for projects with substantial greenhouse gas emissions or the potential to be affected by climate change consequences such as sea level rise: see Peel, J., Osofsky, H. & Foerster, A., ‘Shaping the “Next Generation” of Climate Change Litigation in Australia’ (2017) 41(2) Melbourne University Law Review, pp. 793–844Google Scholar, at 796.

130 Emeseh, n. 16 above.

131 Osofsky, H.M. & Peel, J., ‘Energy Partisanship’ (2016) 65(3) Emory Law Journal, pp. 695–794Google Scholar, at 695 (although the authors note (at 761) that courts are not a ‘panacea’ for partisanship).

132 Osofsky, H.M., ‘The Role of Climate Change Litigation in Establishing the Scale of Energy Regulation’ (2011) 101(4) Annals of the Association of American Geographers, pp. 775–82CrossRefGoogle Scholar.