This is a topic on which professor of public law at the University of Oslo, Malcolm Langford, recently delivered a lecture at Macquarie University: “Climate Change in the Courts: A Responsive Approach”.

In a so-called “long view”, the professor argued that courts across the world need to adopt a “responsive approach” to increase the political acceptance of their decisions on climate change.

Professor Langford said that the so-called “three waves” of climate litigation are based on administrative tort law, human rights law and commercial law — and have generated over 2,000 pro-climate cases in more than 40 countries and nine international tribunals since 1986.

“With applicants ranging from young people and indigenous people to sub-national governments, particularly in the US. Only last week, there was a hearing and two of the seminal climate change cases in the European Court of Human Rights. And the general assembly on the initiative of Vanuatu requested an advisory opinion from the ICJ, the International Court of Justice, on state obligations. And many, many other cases are pending as I speak,” he said.  

“Yet despite this seeming momentum, it’s important to step back to take the long view. Rays of light are streaming through on climate litigation, but many clouds remain. Only half of the cases [since 1986] were successful in some way.

“With courts often ruling against applicants on procedural grounds, not just disability standing, or questions of causation, effectiveness of remedies, and jurisdiction over foreign emissions, and entities. In all these matters, courts are often deeply worried about their institutional competence and legitimacy,” Professor Langford continued.

“Second, the most successful cases are narrowly framed. Judgments are, therefore, rarely transformational, in and of themselves. Their impact is contingent on their triggering broader policy actions and behavioural change. Third, climate mitigation requires significant investment by parties and the judiciary, especially in understanding climate science and policy and economic modelling.”

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In his lecture, Professor Langford, therefore, asked how much of a role the courts can be expected to play in climate change — and if the justice system can maintain its integrity, competence and legitimacy while playing a “transformative role”.

“The first wave of climate litigation is quite eclectic. On [the] one hand, it included small-scale tactical litigation. In the USA, for example, environmental groups with ex-government lawyers sought to halt greenhouse gas emissions, especially from coal mines. Their tools of choice were not constitutional provisions, but zoning laws, planning laws, pollution and heritage statutes.

“Many cases, in particular administrative law, were lost. But the aim was simply to make coal mines unprofitable. And in that, they were often quite successful. And what we’re seeing is these sorts of challenges and now going way beyond oil, gas, and coal to a range of other sectors.

In Australia, Professor Langford noted that many of the early climate challenges were not successful — but in February 2019, the Environmental Defenders Office secured a landmark legal victory, whereby Justice Brian Preston found that the proposed Rocky Hill coal mine would be a material source of greenhouse gas emissions and contribute to climate change.

“The second wave is human rights cases, using the right to life, dignity and environmental health. Some are so-called framework cases; the Dutch Supreme Court found that the 2020 greenhouse gas reduction target of 20 per cent breached the country’s positive obligations to protect the right to life and the right to private and family life in the European Convention of Rights. It was obligated instead to set a target of at least 25 per cent,” he said.

“Here in Australia, we have the Waratah Coal case, where the land court in Queensland recommended that Clive Palmers’ coal mine not be approved by government as it would impact an array of rights. However, other cases have failed; almost all the charter base cases in Canada have failed. Another case in the Netherlands actually failed concerning Greenpeace with a challenge to aviation sector relief during COVID-19, which didn’t necessarily take into account carbon emissions.

“The final wave of cases is in the realm of commercial, concerning corporate disclosure obligations, which usually is around climate change, as well as misleading representation and greenwashing. Many cases are pending, and the claims are very focused, but they potentially have great bite. Quite a few are unsuccessful.”

As such, climate change has evolved to be a more global complex problem than a linear local environmental issue — with the identity of the “polluter” often not ascertainable and who should be penalised remaining unclear.

“According to psychologists, a complex problem has four attributes. Firstly, there’s a diverse array of elements going on in this problem you’re trying to solve. Secondly, things are interdependent. A decision one way can affect the decision over there. Thirdly, the elements are dynamic; things may be changing as you make that decision, the consequences of the decision. And finally, the interactions are opaque,” he added.

“The result is that we are confronted with so-called polytechnic problems in which you’re trying to weigh highly different values and empirical measures, for example, the environment economy. In addition, solving a complex problem often involves dealing with complex adaptive systems. These are systems, whether they involve traffic finance markets, populations, that cannot be mechanically explained, the interdependent and adaptive that may be highly stable or volatile, with one change triggering unpredictable consequences.”

Breakthrough climate change cases have also been ambitious in their core, with Professor Langford citing the Paris Agreement and the IPCC reports and examples.

“Here, the overall vision for judging is transformation. However, vigilance also has its challenges,” he added.

“Overbroad remedies may go unimplemented or provoke political backlash, and the court might have to use a good chunk of its judicial capital on climate change.”