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

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