Judicial Remedies for Climate Change

(2021) 17 Journal of Law and Equality 105-150.

46 Pages Posted: 8 Jul 2021 Last revised: 6 Dec 2021

See all articles by Kent Roach

Kent Roach

University of Toronto - Faculty of Law

Date Written: July 6, 2021

Abstract

The first part of this article outlines remedies granted in climate change litigation directed towards governments in domestic and supra-national courts. It concludes that courts including the German Constitutional Court have tended to grant focused and modest remedies. Attempts to secure more ambitious remedies have generally not been successful. They may have caused North American courts to hold human rights claims based on climate change to be non-justiciable. The second part examines the range of available judicial remedies. It identifies interim relief, the declaration plus, and remedies directed towards laws that violate human rights as more promising remedial strategies. The third part proposes a number of remedial principles. It argues for a two-track remedial approach that combines immediate remedies directed at particular harms with dialogic and interactional remedies in which courts engage with other institutions and parties to produce longer term systemic remedies that will curb emissions in the future. It also suggests that courts should explicitly use proportionality reasoning when factoring in competing social interests and remedial modesty in confronting polycentric problems. The bi-jural remedies that combine human rights and Indigenous law are also promising. Litigants should expect that no one case will remedy the threatening tides of climate change. They should pursue cycles of remedies where new and more intense remedies are used to respond to remedial failures and continued violations of human rights related to global warming.

Keywords: Remedies- Declarations- Suspended Declarations of Invalidity- Interim Remedies- Climate Change

Suggested Citation

Roach, Kent, Judicial Remedies for Climate Change (July 6, 2021). (2021) 17 Journal of Law and Equality 105-150., Available at SSRN: https://ssrn.com/abstract=3880784

Kent Roach (Contact Author)

University of Toronto - Faculty of Law ( email )

Toronto, Ontario M5S 1A1
Canada
416-946-5645 (Phone)
416-978-2648 (Fax)

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