Challenging governments’ response to the climate crisis: the role of science in climate litigation

The Climate Litigation Network supports national organisations that are taking litigation action against their governments in respect of the adequacy and implementation of national climate policies and targets. This presentation will provide an overview of the role in science in climate cases that challenge governments’ overall emissions reductions (“framework cases”) – of which there are more than 100 globally. Drawing from a litigator’s perspective, it will address common legal questions (i.e., harm, causation, foreseeability and remedies) that arise in such cases, and provide examples of how science has been used in case studies. 

Across framework cases, scientific evidence has been critical to success. For example, many cases, including those based on human rights or tort law, require claimants to show how they have been impacted or have suffered harm. In this regard, supporting studies range widely, depending on the facts of the case. These could include studies concerning extreme weather events, flooding, landslides, impacts on crop production and availability to water, and impacts on health or culture. To establish legal liability, claimants typically must show that the government’s actions can be causally linked to the harm, and that the harm was foreseeable. In this regard, attribution science and climate science generally can play a role in evidencing why government action (or lack of action) is contributing to climate change impacts. In terms of remedies, several cases have sought to push governments to adopt emissions reduction targets that reflect their “fair share” of the remaining global carbon budget. Numerous fair share methodologies have been developed by academics, many of which seek to reflect obligations and principles set out in the United Nations Framework Convention on Climate Change and international environmental law. In some cases, there may also be questions concerning loss and damage, which could require detailed analyses of how much damage has been incurred, or could be incurred in future, due to the impacts of climate change.

Drawing on case studies from specific cases, this presentation will highlight the current deployment of science in climate cases against governments and explore new frontiers.