Courts must provide climate change leadership in the absence of law-making progress

Abstract

While lawmakers round the world have struggled, often unsuccessfully, to enact meaningful climate change legislation, litigation-related activity is increasing, and some courts are moving assertedly ahead to deal directly with the threat. This new trend comes after years of limited success by environmentalists to ‘use the courts in their fight to slow the effects of climate change or to hold companies and governments accountable for the crisis’. The trend is underscored by a recent report by the Grantham Research Institute on Climate Change and the Environment finding more than 1,000 climate-related cases have been filed since 2015 in comparison to about 800 cases filed between 1986 and 2014. The rise in litigation has been attributed to scientists and climate activists who ‘see the response by governments and corporations to the climate threat [as] weak compared to what is needed’, New York-based Sabin Center for Climate Change Law Fellow Korey Silverman-Roati has said, adding, ‘Litigation is increasingly seen as the only option to fight authorities when they are failing to appropriately address climate change’. And unlike the past when climate change cases were generally unsuccessful, the trend now appears to be changing. According to the Grantham report, in nearly 370 decided cases, outcomes favoured climate change action in 58 per cent, were unfavourable in 32 per cent, and had no clear impact in ten per cent. In particular, the report found an increase in the number of ‘strategic cases’, defined as those