Litigating the climate emergency
The amount of human rights-based climate change litigation has increased drastically the past years. The recently published book “Litigating the Climate Emergency: How Human Rights, Courts, and Legal Mobilization Can Bolster Climate Action” (Cambridge University Press, 2022) gives a systematic overview of human rights-based climate change litigation and seek to analyse challenges and opportunities with this strategy for combating climate change and global warming. Together with Siri Gloppen, research group member Catalina Vallejo Piedrahíta has contributed to the book with a chapter exploring administrative and constitutional law litigation, called “The Quest for Butterfly Climate Adjudication”.
The book is a result of a conference held in New York University (NYU) School of Law in early March 2020 with researchers, legal practitioners and scientists that have contributed to the research on the topic of climate change litigation. The four parts of the book give a broad spectrum on climate litigation from different angles, with a special focus on Human Rights Climate Change Litigation (HRCCL), including legal strategies, knowledge beyond the law, the use of scientific input in litigation, and case specific studies.
What is also special about this volume, is that it is published in open access format. This contributes to easy access for students, legal practitioners and other interested actors. As HRCC litigation is getting more important, and an increasing number of climate change-cases in the court system, easy access of research on the topic can help concerned climate activists seeking positive changes through the court system. The book is also well suited for teaching on the topic of climate litigation with a human rights perspective. The book is also translated to Spanish, and published in open access format, and contributes to reaching a broader audience. The book project published short versions (1000 words) of several chapters, including Catalina and Siri’s in the blog OpenGlobalRights (housed at NYU School of Law).
"The quest for butterfly climate adjudication"
On the topic of climate litigation, Catalina and Siri argue that low-profile cases can have a greater impact on the entirety of climate litigation and that the climate change regime in the Paris Agreement can create climate relevant arguments in courts decisions. In her book “Butterfly Politics”, feminist legal theorist Catharine MacKinnon argues that seemingly insignificant actions, through collective recursion, can intervene in unstable systems to produce systemic change. Seemingly minor interventions in the legal realm can have a butterfly effect that generates major social and cultural transformations.
Similarly, the chapter suggest that the bottom-up regulatory regime created by the Paris Agreement has the potential to lead domestic courts to do butterfly climate judging. The authors systematically analyze judicial decisions around the world and conclude that most judges do not decide climate cases in spectacular, precedent-breaking ways, or treat climate change as an exceptional legal problem. Instead, they normalize climate change adjudication by using existing and familiar legal frameworks. They argue that the courts’ most radical contribution has been to make climate change tangible and routine and highlight the potential of law-profile climate litigation.
If applied in new cases across countries, modest but extraordinary precedents have the potential to make interventions into what is an unstable political system, and—hopefully—effect changes in the global atmosphere.
As an example, early on, climate change cases were rejected on the basis of uncertain scientific facts on climate change. Today, the Intergovernmental Panel on Climate Change (IPCC) reports on climate change are used as facts on climate change and accepted as legal proof. This has huge impact on the court rulings on climate change, and illustrate how many small cases can make a big change and impact in the future.
The chapter is based on the main arguments from Catalinas PhD on “Suing the state for climate change: an empirical assessment of court rulings in cases against governments”, and is closely connected to her current research project on Polycentric climate governance in action, where the judiciary is increasingly complementary to the role of the political branches around the world.
About the authors
Catalina Vallejo is a lawyer from Colombia and a postdoctoral fellow at the Faculty of Law of the University of Bergen, where she studies the polycentric governance of climate change in the Amazon, as a member of the interdisciplinary research project “Causes and Consequences of the Legal Architecture of Climate Politics” (LEG-ARCH). She is affiliated as a researcher with the Universidad Autónoma Latinoamericana-UNAULA in Colombia and with LawTransform in Norway.
Siri Gloppen is a professor of Comparative Politics at the University of Bergen (UiB), Norway, and a senior researcher at the Chr. Michelsen Institute and Director of LawTransform the CMI-UiB Centre on Law & Social Transformation. Her research focuses on lawfare – the use of rights, law and courts as tools for social change – and the effects of lawfare strategies in different fields and across contexts, particularly in Africa, Latin America and India.