CLIMATE CHANGE LITIGATION: Evolving Legal Principles, Obligations,and Rights

INTRODUCTION

The climate change litigation has become an important legal and normative instrument to hold governments and corporations responsible in regard to environmental degradation, and inability to reduce global warming. In this paper, a doctrinal study of the climate change litigation is done and concentrates on the ever-changing legal principles, duty, and rights that govern this fast-growing area. It looks at the relationship between the environmental law and the human rights and the constitutional obligations, focusing on the judicial rationale that outlines the line of responsibility and redress. Tracking the development of legal responsibilities via the main cases and doctrines, this article aims to outline the systematic issues of the doctrinal challenges, which in turn determine the direction in which the climate jurisprudence will be developed in the future. The problem of climate change assumes an existential threat, which does not respect borders, therefore, it requires strong legal interventions to address the causes and effects of climate change. ‘Litigation has emerged as the critical tool of ensuring accountability and operationalizing the promises of climate’. Although the international cooperation is guided by such policy instruments as the Paris Agreement, the courts are becoming more and more crucial in determining the terms of legal responsibilities and their enforcement. The legal aspects of climate litigation focus on administrative, constitutional, tort, and human rights litigation creating a complicated network of responsibilities and rights. This paper reviews these principles in the doctrinal prism and how they establish the limits and validity of climate change litigation.

Ideational Foundations of Cases on Climate Change.

The climate change litigation is based on the doctrinal traditions of environmental and public law. Amongst the major legal precepts are the polluter pays principle, precautionary principle and doctrine of public trust. These doctrines, which were formulated using the statutory interpretation and case law, define the responsibilities of states and the private actors to conserve the environment. Whereas the polluter pays principle makes the culprits of the environment pay, the precautionary principle dictates that the states take the initiative where there is scientific uncertainty. Natural resources are seen as a state-owned trust to be held in the interest of the current and future generations according to the doctrine of public trust that is practiced in such countries as the US and India.

Improving Legality and Principles.

Some of the basic rights that are increasingly being invoked in climate litigation include the right to life, health and a clean environment. Purposive interpretation has been employed to purportedly doctrinally interpret expansion of these rights by courts. According to Subhash Kumar v. The right to a healthy environment is safeguarded in Article 21 of Indian Constitution, State of Bihar, AIR 1991 SC 420. The international cases like Urgenda Foundation v. state show that states have a duty of care to safeguard citizens against foreseeable damage as a result of inaction on climate. State of the Netherlands (2015). Intergenerational equity has been recognized as one of the development of the rights-based climate litigation. The linkage of the environmental justice to the human rights law is a growing trend among the courts with the view of environmental degradation being a crime against the rights of future generations. Climate litigation has become a policy issue, where it is a matter of policy, not one of law.

States and Corporations Obligations.

 Doctrinally speaking, climate litigation has two obligations, which are based on international and domestic law. In international law, the Paris Agreement (2015) and the United Nations Framework Convention on Climate Change (UNFCCM) have obligatory liability under the mitigation, adaptation and reporting obligation. Although this is commonly packaged as soft law, the domestic courts are increasingly converting them into enforceable responsibilities using constitutional and administrative doctrine. Even corporations are no exception to the emerging responsibilities by the corporate responsibility and due diligence doctrines. The increase in tort principles including negligence and nuisance gives the victims claim to redress to the corporate emitters. The understanding of corporate climate responsibility is also a great doctrinal innovation as it supports the idea that environmental stewardship is part of the duty of care.

Jurisprudence and Signature Cases.

In Urgenda, the Dutch Supreme Court used the European Convention on Human Rights to conclude the government has a responsibility of avoiding the risky climate change. Similarly, in Leghari v. The Lahore High Court acknowledged the climate change as the breach of the constitutional rights and ordered the state to adopt its climate policy (Federation of Pakistan, 2015). Jurisprudential rulings by the Supreme Court in the cases of M.C. Mehta in India as well as the ruling of the National Green Tribunal are characterized by aggressive environmental governance. These court interventions stress on the implementation of such doctrines as sustainable development and intergenerational equity. The role of the judiciary is therefore not only remedial but constitutive like the legal norms and responsibilities to the climate crisis.

Theological Problems and Future Perspectives. In spite of its developments, the climate change litigation is marred with serious doctrinal challenges. These are the concerns of justiciability, causality and separation of powers. Courts frequently have a hard time finding a compromise between judicial restraint and the crisis of climate. Additionally, it is difficult to prove the causality of a given emissions and climate damage using evidence. The development of climate jurisprudence in future will rely on the incorporation of climate obligations in the mainstream legal doctrines. Such new ideas like climate constitutionalism and the acknowledgment of rights of nature may add some doctrinal coherence. Finally, litigation should be transformed to preventive norm-building by embracing and implementing climate change litigation as a measure of accountability and sustainability.

Conclusion

Climate change litigation is a paradigm shift in the development of law, doctrinally. Courts have transformed the legal fabric of environmental governance by operationalizing the principles of the environment, enlarging of basic rights and defining of new duties. Incorporating the right-based and duty-based approaches, it is important to highlight that climate justice is not a debate about policy choices but a legal requirement. There will be a need to persist in the doctrinal innovation that will be based on the ideas of fairness, accountability, and intergenerational equity to address the challenges of the Anthropocene.

REFERENCE(S):

• Urgenda Foundation v. State of the Netherlands, (2015) HAZA (District Court of The Hague).
• Leghari v. Federation of Pakistan, W.P. No. 25501/2015 (Lahore High Court).
• Subhash Kumar v. State of Bihar, AIR 1991 SC 420.
• C. Mehta v. Union of India, (1987) 1 SCC 395.
• Paris Agreement, 2015, United Nations Treaty Collection.
• UNFCCC, 1992, United Nations.
• Lavanya Rajamani, ‘The Increasing Currency and Relevance of Rights-Based Perspectives in International Climate Negotiations’ (2010) 22 JEL 391.
• Jacqueline Peel and Hari M. Osofsky, ‘Climate Change Litigation: Regulatory Pathways to Cleaner Energy’ (Cambridge University Press, 2015).