Thinking strategically about climate litigation

Climate litigators can learn from human rights actors on how and when to use litigation strategically to create systemic change.




 

This article is a part of OGR's Litigating the Climate Emergency series on how human rights and strategic litigation might best be leveraged in the climate action movements.

 


While litigation involving climate change is nothing new, a recent surge of cases has strategic ambitions, mirroring a long history of human rights practitioners using litigation to achieve policy change. This provides an opportunity for climate litigators to build on hard-won lessons that human rights advocates have learned about how to use litigation most effectively and strategically when facing problems with deep social, economic and political roots.

A “Next Generation” of strategic climate cases

The scale of global climate change litigation is widely recognized, but that scale masks a diversity of legal action. “Strategic cases” which aim to produce ambitious and systemic outcomes—including cases against governments in the Netherlands, Colombia, USA, and Pakistan; and against corporations in the USA, Netherlands and France—currently comprise a small portion of climate litigation. But these cases are likely to grow as the gap increases between the urgency of mitigating climate change and confidence in political and corporate decision-making.

Climate litigation, human rights, and strategic litigation

Despite growing recognition of climate change as a human rights issue (in speeches, reports, and domestic and international cases), and increased attention to the strategic issues raised by litigation of climate change, few climate litigators have drawn on the lessons of how human rights advocates have used litigation. Strategic litigation has a long history in the human and civil rights communities (as well as in the environmental movement). And the common ground shared by climate and human rights advocates in challenging policy frameworks and corporate practices has not yet been explored.

Decades of human rights debates on the appropriate role for litigation have generated a body of literature on the potential and limitations of strategic litigation, and how to maximize its impact as a tool for change. Not every lesson will apply to climate litigation, but there are key similarities. Both tackle complex social, economic and political problems. And both use courts to equalize power imbalances and assert the interests of individuals and communities against entrenched corporate and political forces.

Applying lessons learned to climate litigation

Identifying the role your case will play: problems with deep structural roots—like climate change—cannot simply be litigated away. Strategic litigation is about more than obtaining a judgment; it is a larger process in which a case is one tool towards the ultimate objective of lasting change.

This “larger process” is what some organizations call their “theory of change”. Litigation is not a substitute for a theory of change, nor is litigation a theory of change in itself. Instead, litigation must be developed and conducted as part of a broader plan. That plan, and how litigation will contribute to it, requires just as much attention and rigor from strategic litigators as the strength of legal arguments and merits of the case.

Few climate litigators have drawn on the lessons of how human rights advocates have used litigation.

This requires litigators to articulate what they seek to achieve and how litigating this case will contribute to the ultimate goal. Assessing the role that each case will play requires work, but it can open up creative possibilities. It frees advocates to use a case to achieve a variety of impacts that support a strategy for change, rather than making every case a “solution” to the problem. The most important contribution might not be a win in the courtroom—it might be obtaining information through discovery; forcing defendants to take a public position on the record; or getting specific factual or legal findings from the court.

Seeing the case as part of a broader campaign requires thinking rigorously about how any case can advance the broader campaign for change, but it also recognises that the broader campaign for change can benefit your case.

Challenges of implementation: strategic human rights litigation is full of cautionary tales of judgments that were won on paper but failed to change the situation on the ground. Not every strategic case defines “success” in terms of the judgment. But the judgment is often an important part of your impact. If so, a plan for how to implement the decision is necessary if a legal victory is not to be a hollow one.

The way that you define your remedies can help (e.g., defining precise standards, or identifying exactly who in government is responsible). But no matter how carefully you craft your remedies, there will often be resistance to implementing them, especially when they require major changes in corporate or governmental policy and behaviour. Such challenges will be common in strategic climate litigation. There is a risk that if litigators see the judgment as the end of their case, they will overlook this, instead of developing broad support and a plan to maintain the pressure for implementation after the case ends and preparing for any backlash.

Strategic litigation is about more than obtaining a judgment; it is a larger process in which a case is one tool towards the ultimate objective of lasting change.

Evaluating risks: the experience of human rights advocates shows that strategic litigation, while powerful, carries risks. Litigating the wrong case, at the wrong time, before the wrong forum, or making overly ambitious claims, can cause setbacks. Losing a case can entrench the problem you were trying to solve—validating the very activities being challenged, placing at risk other efforts to advocate or litigate in more incremental ways, or undermining the credibility of evidence or allies. To mitigate these risks, it is important to carefully and critically consider the likely response to your case. Are your opponents likely to fight you in court, try to stop you reaching the courts, or undermine your credibility in public debate?

Risks are not limited to cases that lose. Even cases that result in successful judgments can produce adverse consequences—a judgment too far outside the political or social mainstream may undermine judicial authority or prompt political backlash. And just choosing litigation has costs. Litigation to set the parameters of debate or a common set of asks can lock allies into a position and reduce room for negotiation. And litigation may prioritize parts of a problem which can be brought before the courts over the real underlying causes. These risks do not mean one shouldn’t litigate; but that those risks should be critically assessed and weighed against the projected value of a case.

Looking ahead

Some climate litigators are ahead of many human rights lawyers in their strategic approach to litigation: supporters of “next generation” climate cases have identified a range of potential impacts; and Urgenda developed an extensive plan to support implementation of its judgment. But the issues outlined above—the importance of embedding a case in a broader theory of change, or the risk of a premature or flawed case undermining other cases or strategies for change—will become increasingly relevant with the growth and diversification of the climate litigation community. And new cases may bring new challenges, some familiar to strategic human rights litigation (e.g., ethical issues when litigating for broad strategic aims in the name of vulnerable plaintiffs).

There is an undeniable urgency to climate action. Climate litigators feel this urgency. But the call to prompt action also means that there is no time to repeat the mistakes of the past, or to miss an opportunity to maximise the impact of successes. The experience of human rights activists on how and when to use litigation strategically, and how to maximise the changes of leveraging a case for systemic change, are a rich source for climate litigators to draw on.

 

 

ORIGINALLY PUBLISHED: June 28, 2020

Ben Batros is an international lawyer focused on rights, accountability and social change. He spent eight years conducting strategic litigation with the Open Society Justice Initiative and directed their summer school on Strategic Human Rights Litigation. He previously served as Appeals Counsel at the International Criminal Court and is currently a consultant on accountability, human rights, and legal action to address climate change with Strategy for Humanity.

Tessa Khan is co-director of the Climate Litigation Network, a project of the Urgenda Foundation, and received an award from the Climate Breakthrough Project in 2018 for her efforts using the law as a tool to dramatically increase national climate mitigation ambition. She has more than a decade of experience working as a human rights lawyer and advocate on behalf of communities and individuals in the global south and north, helping to build movements for social and economic equality, justice and peace.


 

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