Standards for Adjudicating the Next Generation of Urgenda-Style Climate Cases

Journal of Human Rights and the Environment - Special Issue (Alabrese, Savaresi and Scott eds) 'Climate Change Litigation and Human Rights: Stocktaking and a Look at the Future' (Forthcoming)

30 Pages Posted: 18 Nov 2021 Last revised: 16 Dec 2021

See all articles by Lucy Maxwell

Lucy Maxwell

Urgenda Foundation

Sarah Mead

Urgenda Foundation

Dennis van Berkel

affiliation not provided to SSRN

Date Written: November 2, 2021

Abstract

Over the past decade, legal norms governing States’ obligations to mitigate climate change, and courts’ review of such efforts, have matured greatly in many jurisdictions around the world. In this article, we examine judicial decisions and consider future developments in Urgenda-style, or ‘systemic mitigation cases’ as we define them, at the national level. Systemic mitigation cases seek to compel a State or one of its organs to increase its overall mitigation efforts. These cases, which are growing in number, can lead to a significant increase in a country’s overall mitigation ambition. Yet a perceived lack of standards by which to assess mitigation efforts has given rise to judicial concerns regarding the separation of powers in adjudicating such cases. In response to these concerns, we present a framework based on international climate change law and best available climate science to assist litigants and courts in human rights- and tort-based cases. We draw on principles developed by the Dutch courts in Urgenda v the Netherlands and on recent judgments of other national courts, and identify a range of concrete standards by which courts may assess whether a State has met the minimum legal requirements of its duty of care in the ‘next generation’ of systemic mitigation cases.

Keywords: Climate change, litigation, human rights, national courts, effort sharing, climate science, separation of powers, Urgenda

JEL Classification: K00, K32

Suggested Citation

Maxwell, Lucy and Mead, Sarah and van Berkel, Dennis, Standards for Adjudicating the Next Generation of Urgenda-Style Climate Cases (November 2, 2021). Journal of Human Rights and the Environment - Special Issue (Alabrese, Savaresi and Scott eds) 'Climate Change Litigation and Human Rights: Stocktaking and a Look at the Future' (Forthcoming), Available at SSRN: https://ssrn.com/abstract=3955144

Lucy Maxwell

Urgenda Foundation ( email )

De Juliana
Nicolaes Maesstraat 2-224
Zaandam, 1506 LB
Netherlands

Sarah Mead (Contact Author)

Urgenda Foundation ( email )

De Juliana
Nicolaes Maesstraat 2-224
Zaandam, 1506 LB
Netherlands

HOME PAGE: http://https://www.urgenda.nl/

Dennis Van Berkel

affiliation not provided to SSRN

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