The Narrative Purpose of Climate Change Litigation

In February, 95 percent of countries missed the United Nations’s deadline to submit new climate action plans as mandated by the Paris Agreement. This includes the European Union, China, India, Canada, Japan, and many other high-emitting countries, some of which have received criticism for their draft plans not being ambitious enough. While the United States, the world’s second-largest emitter of greenhouse gases, submitted its plan in December 2024, the recent arrival of the Trump administration and subsequent withdrawal from the Paris Agreement leaves the status of climate governance shaky at best. Despite climate change now being firmly cemented as a mainstream issue, governments—especially from the highest-polluting economies—have continued to show little political will to address the issue. The UN has since extended the deadline to September for countries to submit their national plans. Evidently, the post-Paris Agreement landscape presents monumental challenges to adequately addressing climate change, and in 2024, the warming limit of 1.5 degrees Celsius was surpassed for the first time.

In the face of inaction, activists and lawyers have been turning to a new toolkit in the fight against the climate crisis—the law. According to the Sabin Center for Climate Change Law based at Columbia Law School, there are, as of 2024, more than 2,953 total global climate change litigation cases. While climate governance continues to fall short, climate litigation has filled gaps where voluntary state and corporate commitments are insufficient. Governments and corporations must take drastic action to reduce emissions, implement mitigation measures, and adopt robust adaptation. Multilateral global governance regimes can then be too slow or too deferential to high emitters to deliver this quick relief: Enter climate litigation cases filed by activists, cause lawyers, and concerned citizens. Yet do the material outcomes of these cases match the relief sought by the campaigners? Most often, no. Moreover, a comprehensive understanding of the scope and impacts of climate litigation is unclear.

So, why do cases continue to be filed? A closer look into the landscape of climate litigation reveals the strategic purpose of these cases. Hidden behind the highly covered courtroom win, climate change litigation has taken a page from historic strategic litigation and focused on the cumulative effect of bringing cases in a plethora of jurisdictions. Cases test new legal pathways and, often, are expecting to fail. Of course, the ultimate goal for climate campaigners is to obtain relief for claimants, and a courtroom victory is still desired. However, to best understand the climate change litigation project as a whole, one must appreciate the narrative power that comes from these cases. Legal norms travel across borders and legal cultures. As a result, the flurry of strategic cases paired with each case’s advocacy campaign creates an influential profile for climate litigation. So, while landmark victories remain a rarity for now, a case’s value can be understood in terms of its public visibility and the ability of claimants and litigators to tell their story.

What Is Climate Litigation?

The widely accepted definition of climate change litigation is “cases brought before judicial and quasi-judicial bodies that involve material issues of climate change science, policy or law.” This broad term seeks to define a modern type of legal case arriving in domestic, regional, and international legal systems. For now, climate litigation remains largely a matter of civil law, but considerations to introduce criminal law into the conversation are quickly developing. The first “wave” of these cases appeared in the 1980s, largely in the United States and Australia, though climate litigation has evolved significantly since then, moving beyond its initial focus on administrative processes. The second and third waves, emerging in the 2000s and 2010s, focused scholars’ attention on developing frameworks and analyzing the governance or policy implications of these cases. Experts view these waves as overlapping and coexistent. As of now, third-wave analysis, concerned with interdisciplinary perspectives and outcomes, remains dominant.

Within the field, landmark cases have galvanized the movement and served as proof of the potential material success that climate litigation can deliver, though to be sure, these recent successes are more exceptions than the norm. Perhaps most famous is the 2015 case Urgenda v. The Netherlands, which produced the first-ever successful challenge to a government’s climate policies and inaction. The decision compelled the Dutch government to adopt more ambitious climate policies in order to protect and uphold its human rights commitments. Urgenda’s achievement has even inspired its own subset of climate cases. Dubbed “government framework cases” by legal scholars, these cases mimic the strategy of Urgenda to compel a state government to increase its overall mitigation efforts. Other influential cases that have shaped the climate litigation movement include Leghari v. Federation of Pakistan, another 2015 case and the first from the Global South to receive widespread attention, and the historic 2021 Milieudefensie et. al v Royal Dutch Shell PLC, which marked the first time a corporation was held liable for its contributions to climate change. These landmark cases are undoubtedly important, not only for engineering novel media campaigns or employing creative legal interpretations but also in their ability to set a precedent and generate momentum for future litigation. 

Here it is worth noting what a significant change climate litigation has undergone, especially since the 2015 Paris Agreement. Following the agreement, there was a boom in climate litigation because civil society actors were able to hold high emitters accountable using brand new norms and commitments. Consequently, legal experts have noted the presence of a “rights turn.” This turn represents two key developments in climate litigation: (a) an increased understanding at the international level that climate change is a human rights obligation and (b) the existence of a potential legal model to expand climate rights. Indeed, a growing portion of climate litigation now advances key tenets of climate justice. As a result, climate activists and their lawyers have become key players in the larger debates taking place on the world’s stage about climate reparations, the obligations of historic high-emitters and former colonial powers, and the overall ability of the law to play a role in climate justice. Historically, on March 29, 2023, the UN General Assembly adopted Resolution A/77/L.58 requesting an advisory opinion from the International Court of Justice clarifying the obligations of states with respect to climate change. Thanks to this work done by activists, climate litigation has moved beyond its origins as a procedural, administrative body of law to one foundationally concerned with human rights and climate justice.

Challenges and Benefits

Despite a handful of important victories, climate litigation is often unsuccessful—and those few victories are incredibly hard-fought. There are serious debates regarding the effectiveness of the law to have far-reaching, positive impacts on climate change—and whether it is even the appropriate vehicle at all to pursue climate justice. That is because, as critical scholars point out, the law is historically and deeply tied to racism and capitalism, and it understands relations in terms of property. Indigenous claimants in particular can have trouble reckoning their systems of relationality with Western courtrooms. Further, activists contend that collaborations with Indigenous climate activists must avoid becoming tokenistic and essentializing. And if the law is being used (and perceived) as an urgent stopgap in lieu of a united, robust international climate regime, is it actually working, or are the structural limitations of climate litigation simply too strong?

Forum

On the whole, the expansion of climate litigation to international venues represents a major positive shift in the global conversation about climate change and environmental justice. Take for instance, the 2005 petition to the Inter-American Commission on Human Rights filed by an Inuk leader from Canada. The petition sought relief from the harm caused to life in the Arctic by the United States’s emissions, but the commission declined to even process the petition due to insufficient evidence of a violation. Comparing this 2005 case, one of the first international climate cases, to recent victories such as the 2024 win at the European Court of Human Rights, illustrates how far climate science and litigation have come. International and regional courts are now involved in adjudicating the climate crisis. Therefore, this internationalization of climate litigation and the increase in the number of relevant legal forums represents a benefit to the movement.

Though climate litigation began and continues to remain largely contained to domestic legal systems, important cases have arrived at the European Court of Human Rights, the International Court of Justice, and the Inter-American Commission on Human Rights. From 2020 to 2022, 12 climate-related cases were filed at the European Court of Human Rights. Three of these cases were fast-tracked to the court’s Grand Chamber and decided in April 2024. While two of the three cases were declared inadmissible, the major victory and headline came in the form of Verein KlimaSeniorinnen Schweiz and Others v. Switzerland. The KlimaSeniorinnen case was brought by an association of more than 2,000 elderly Swiss women arguing that the Swiss government’s inadequate climate policies violated their right to life and health under Articles 2 and 8 of the European Convention on Human Rights. The court ruled in favor of the claimants, stating that Switzerland had violated its positive obligations under the convention and that it had failed to meet its emission reduction targets. 

Climate activists heralded the decision as groundbreaking, one that sets a new precedent for the 45 other states parties to the convention. While the Swiss case is the first climate-related decision from the European Court of Human Rights, experts have cautioned against mythologizing this victory too soon before observing if European countries will actually take this ruling seriously. It is worth highlighting here that the internationalization of climate litigation is not limited to European or Western courts. While climate litigation has not yet arrived at the African Court on Human and Peoples’ Rights or the ASEAN Intergovernmental Commission on Human Rights, climate activism and litigation is alive and well at the national level in these regions. In Africa, 19 cases have been filed across five jurisdictions since 1997, and in Asia, there are 45 cases across eight jurisdictions. 

With this spread of climate litigation to locations beyond the Global North, where it began, come challenges to adapting a Western framework to other contexts. Home to the most climate-vulnerable countries, the Global South is where new environmental justice efforts are born and should be centered. Isabella Kaminski, an independent journalist covering global climate litigation, argues that litigation frameworks employed elsewhere in the Global North lack the same moral weight and urgency in African contexts. And Durham University’s Kim Bouwer cautions that, while litigation efforts in Africa face challenges, replicating Western litigation, purpose-built for European and North American contexts, in African countries can be misguided. These comments reflect an ongoing, wider debate within environmental justice about activism and climate solutions being context specific—a one-size-fits-all approach, especially in the courtroom, could potentially be more harmful than beneficial.

“Communicating” Climate Harm"

There are myriad challenges to successful climate litigation. These range from issues of admissibility and standing all the way to roadblocks in actually creating a case. These limitations are serious considerations litigators must take into account when putting together a petition.

One significant but under-researched limitation is the challenge of communicating harm. Legal petitions themselves are, by design, factual and to the point, attempting to clearly outline the violations and relief sought. Yet the bar for litigators crafting a case is high—how does one effectively condense the years, decades, or perhaps centuries of environmental harm into not only an application but also an accompanying buzzy media campaign? This challenge is well represented by the term “slow violence,” coined by Rob Nixon in his 2011 work “Slow Violence and the Environmentalism of the Poor.” The climate crisis, rooted in and exacerbated by global resource extraction, histories of imperialism, and structural oppression, presents a bewildering challenge in attempting to understand such change and destruction over massive temporal and spatial scales.

This is what makes, according to Nixon, the violence of environmental harm “slow”; it has happened (often) out of sight over years and years, rendering it difficult to even identify when harm or violence is taking place. As a result, this is what can make climate litigation so powerful. Climate litigation is able to communicate layered, complex environmental harm into a singular narrative. Critical scholars and activists can therefore be somewhat skeptical of the ability of the law to tell a comprehensive and holistic account of environmental harm. Climate litigation may offer, on the surface, an elegant solution to condensing a complicated story into a trial of “good” versus “evil” or of “justice” versus the “status quo,” but are these meta-narratives reductive? An additional challenge is the issue of temporality. Communicating harm that will happen in the future is not well suited to the format of law. It is better suited to remedying past harms.

Further, an interrelated challenge to communicating environmental harm in the courtroom is the subject of knowledge. The law places a premium on scientific knowledge as legitimate and valid for evidentiary claims. But what level of familiarity can litigators expect judges to have with climate science? These days, we can expect a judge to perhaps have some familiarity, but there is a long way to go (and that is putting to the side a judge’s opinion on polycentric adjudication). Moreover, some climate litigation experts have waded into a broader legal debate about incorporating emotions, stories, songs, and other forms of knowledge into legal cases and whether these will be taken as seriously as scientific facts. Indeed, the law has a tendency to depoliticize and sanitize the innately human, global, and political experience that is “the environment.”

The Role of Lawyers

Considering all the above, the role of lawyers in crafting a case has become simultaneously more important and more difficult. Litigators must think critically and carefully about adequately communicating their claimants’ harm. They must also have the foresight to understand the limitations in how their case may be represented in the media or understood by broader non-expert audiences. Additionally, the professional ethics and obligations of lawyers vis-à-vis climate activism has become a hot-button issue. What do lawyers owe to their profession versus their own personal morals?

With this influx of new faces and callings to practice the law, some experts have issued reminders that climate litigation is most effective when it is strategic. Drawing from historic civil and human rights campaigns, cases often work, knowingly or unknowingly, together to build off of previous momentum, working to eventually produce landmark wins like the Swiss case at the European Court of Human Rights. These strategic cases represent an ever-increasing amount of climate litigation.

How environmental knowledge is being communicated in the courtroom and who is doing that communicating is therefore critical. The challenge for litigators working strategically is understanding that the crucial moments of influence and positive action often happen outside of a judge’s decision. Through crafting effective narratives, building respectful and equitable relationships with claimants, and tapping into the normative momentum of climate litigation, lawyers have a unique opportunity (and, some argue, responsibility) to generate lasting change.

While strategic litigators speak of “butterfly adjudication,” where climate litigators may have to litigate low-profile cases that build case law and momentum toward more far-reaching, reformist litigation, these efforts are equally important. These cases not only build a solid foundation for future litigation but also spread awareness, give a platform to victims, and illustrate the potency of the growing movement. Of course, a positive judgment is desired, but the power of climate litigation seemingly lies in its ability to publicly name and shame a high-emitting government or corporation. This cumulative effect of cases can lead to significant shifts in legal norms. Indeed, we are already witnessing how climate litigation cases, big and small, have developed global metanarratives about future action and who is most at risk in the climate crisis. This is the narrative purpose of climate litigation—to harness powerful storytelling and public advocacy to eventually secure material success.

What Now? 

If climate litigation’s most effective output is in its visibility, this leaves us with an uncomfortable reality that, on the whole, climate litigation’s material outcomes still do not match the remedies and goals sought by claimants. This is changing slowly. The Grantham Research Institute’s 2024 report on climate litigation showed that key case categories, like greenwashing and government framework cases, have become more successful and that similar cases are being filed. The institute also found that climate litigation is spreading to more countries and becoming strategically consolidated.

By way of a brief example, take for instance the status of climate litigation in the United States, the country with the most climate litigation cases filed. Mark Nevitt argued in June 2023 that it remains to be seen if the law can adapt to meet this urgent moment. Now, in a world where Donald Trump has taken office for the second time, climate activists and their strategic lawyers have an opportunity to fight an anti-climate change administration, headed up by Trump’s Environmental Protection Agency head, who is determined to deregulate and roll back key EPA rules. The United States, the world’s largest economy and second-most prolific polluter, has constant pressure to reckon with its substantial emissions and acknowledge its role in decarbonization.

There is no doubt then that an already-feckless United States has the capacity to backslide even further. Now, again in a Trump-led international order with authoritarianism on the rise, this reinforces Nevitt’s question of whether the American legal system is healthy enough to take on the task. Climate litigation has the potential, in the best-case scenario, to force an ineffective government or reckless corporation to alter course. In the worst-case scenario, climate litigation serves as an impassioned reminder that demands for a healthy, just, and equal environment are not going away. These reminders exist in cases like Juliana v. United States and Held v. State of Montana, which send a message that environmental rights are constitutional and human rights.

Climate litigation is a remarkable tool in the broader toolkit of global climate advocacy thanks to both the positive judgments it garners and the awareness it generates. But it is just one tool. To achieve rapid and effective decarbonization and avoid further surpassing the 1.5 degrees Celsius of warming, climate litigation is not going to be Earth’s sole savior. No single case or lawyer can litigate the climate crisis away in one fell swoop—the climate crisis is already here. Environmental activism is a history of constantly looking to the future. Climate litigation across all countries and in all international courts will have an increasingly vital role to play to challenge culpable high-emitters. As we keep our eyes on the movement, I agree with Mark Nevitt that it remains to be seen if the culmination of climate litigation’s outcomes, material and immaterial, can tip the scales in favor of climate justice. For now, it is imperative to continue to pursue well-crafted strategic litigation and allow cases to be clarion calls for a just future.