Climate change litigation is heating up

Climate change litigation is heating up

What are the challenges when bringing a climate change case? Lawyers and project leaders at ClientEarth and Greenpeace discuss the hurdles and what to look out for when bringing such cases, and give us some predictions for the future of climate change litigation.

What sort of evidence would/could be necessary in a challenges against carbon majors, such as the one in the Philippines?

Scientific evidence is likely to play an important role in any climate change litigation. However, helpfully for claimants and courts, the reports of the Intergovernmental Panel on Climate Change (IPCC) provide an authoritative source of the latest scientific consensus on the causes and likely effects of climate change (the IPCC’s latest report, the Fifth Assessment Report, is available on their website). The IPCC’s rigorous process of obtaining consensus among all government participants means that courts can take judicial notice of the facts contained in the IPCC’s reports, which was the approach taken by the Dutch court in the Urgenda decision (Urgenda Foundation v the State of the Netherlands, C/09/456689/HA ZA 13-1396, judgment of 24 June 2015).

Scientific understanding of the effects of climate change on weather is also rapidly improving. Scientists can now conclude that human activities have directly changed the frequency or intensity of specific extreme weather events, and have also developed methodologies allowing them to attribute events to human influence rapidly after they occur (see climate central analysis). This work may have significant implications for climate change litigation (Thornton, J & Covington, H, ‘Climate change before the court’, CarbonBrief).

While courts are becoming increasingly comfortable with climate science, lack of full scientific certainty may not be an insurmountable barrier for claimants. Litigants in some jurisdictions may be able to rely on the precautionary principle, which allows courts

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