The Essential Role of Climate Litigation and the Courts in Averting Climate Crisis

Abstract

The UN General Assembly has declared that we have just over a decade in which to act to limit greenhouse gas emissions so as to avert the worst effects of climate change.1 Yet, in the face of this looming crisis, state actors exhibit a shocking lack of ambition in their efforts to structure legal and political responses to climate change. Despite nearly three decades of international legal developments, at the state level the rule of law around climate change remains sparse. Even in the most recalcitrant of states, the expanse of the legal void cannot be attributed to a lack of understanding of the scale of the problem. In the United States, for example, the Trump Administration’s emphatically sceptical stance on climate change and near-absolute opposition to domestic action on climate change masks the reality that the risks of climate change have been firmly recognized in US law for more than a decade. Nonetheless, even in the face of overwhelming evidence that the ‘United States has reached a tipping point crying out for a concerted response’, the state ‘presses ahead toward calamity. It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses ... bluntly insist[ing] that it has the absolute and unreviewable power to destroy the Nation.’2 The failures of state actors are undeniable. The United States is simply one very obvious and very important case in point. With very few exceptions, heads of state and national legislatures demonstrate little interest in leading efforts to address climate change. The leadership void is immense. The task of filling it falls to the judiciary.