Can the Courts Stop Climate Change?

Can the Courts Stop Climate Change?

No, but they can play an important role: By reminding politicians that, once laws are made, even government must adhere to them.

There are many laws of this kind, often resulting from the Paris Agreement, sometimes establishing binding targets for governments to reduce emissions. The courts have been reluctant to interfere with decisions on precisely how and when to execute: That's the constitutional preserve of government. But there may be increased judicial activism if targets evidently lack clarity, ambition or attainability; or, perhaps, there is unacceptable execution against them. And environmental law is reaching increasingly into diverse areas such as planning, company and contract law.

Last April, the European Court of Human Rights decided that Switzerland had violated the European Convention by failing to act acceptably against warming. An association of senior women successfully argued that their health was unlawfully threatened by worsening heat waves. This is expected to trigger similar claims elsewhere.

Business is also increasingly susceptible to climate litigation. Last November a Dutch appellate court decided that Shell had a legal duty to curb warming. The plaintiffs had requested - and been granted by a lower court - an order requiring Shell to reduce its CO2 emissions by 45% by 2030 compared to 2010 levels, and to zero by 2050, in line with the Paris Agreement. Actions against non-fossil fuel corporates, grounded for example on greenwashing, are becoming more common.

This is not to over-state the impact of litigation. Many climate cases have failed, sometimes with punitive costs orders against the plaintiff NGOs. Even successful actions have delivered questionable reductions in actual emissions: When Ireland's Supreme Court quashed the government's mitigation plan the hard-fought remedy was a requirement to produce a new plan. And the constitutional role of courts is more to react, by overturning incompatible administrative acts or laws, than proactively to drive the comprehensive programme of legislative reform that is needed.

Still, although parliaments will remain the most important arenas in the battle for climate security, the courts will at minimum provide vital accountability and a counter-weight to lobbying. Litigation and legal activism will prove more potent than protest, civil disobedience and, as the political will to take on warming weakens globally, policy advocacy.

The best available global tracker, maintained by the Sabin Center at Columbia Law School, counts, on a fairly narrow definition of "climate litigation", almost 3,000 cases to date. The caseload will likely increase substantially during Trump's second term.