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Valentina Jacometti'
Climate Change Litigation: Global Trends and
Critical Issues in the Light of the Urgenda 2018
Decision and the I PCC Special Report global
Warming of1.5 C
' Dipartimento di diritto, economia e culture, Universita degli Studi dell'Insubria, Via S. Abbondio12, Como 22100, Italy, E-
mail: valentina.jacometti uninsubria.it
Abstract:
This essay highlights the major global trends and critical issues that emerged so far in climate change litigation,
through the analysis of some significant cases in different jurisdictions. Climate cases involve different actors
and a wide variety of claims: claims challenging specific projects or activities; lawsuits dealing with damages
caused by climate change-related events and seeking compensation and/or injunctions; cases aiming at amend-
ing key features of national climate change policy and legislation. Finally, the essay identifies some trends in
the very heterogeneous body of arguments that are brought before the courts, including obligations arising
from international and human rights law.
Keywords: climate change litigation, comparative law, climate change law, climate governance, climate change
liability
DOI: 10.1515/gj-2019-0005
1 Introduction
Attention towards climate change litigation is increasing, especially after the recent landmark decision of the
Hague Court of Appeal in the Urgenda case, which upheld the lower court's decision affirming that the Dutch
State has a duty to take more stringent climate change mitigation measures due to the severity of the conse-
quences of climate change and the great risk of climate change occurring.1 While the decision was unexpected
for many commentators, it does not appear so surprising if one considers that it was delivered just a few days
after the Intergovernmental Panel on Climate Change (IPCC) approved the summary for policy makers of its
Special Report Global Warming of 1.5 °C on the impacts of global warming of 1.5 °C above pre-industrial
levels,2 according to which a world not aiming for 1.5 °C will face serious risks.3
Indeed, climate change represents one of the most dramatic problems of our times, as is evidenced by a
huge literature, by a wide range of policy initiatives at international and national level and by a growing public
awareness. It is usually assumed that climate change cannot be stopped but can only be faced up to, in particular
through strategies of mitigation and adaptation.4
Starting with the United Nations Framework Convention on Climate Change (UNFCCC) in 1992, through the Ky-
oto Protocol of 2005 to the Paris Agreement of 2015, the institutional debate has been marked by different phases
in the development of a framework for action that could be recognized globally as a binding legal landmark,
intended to identify the goals (mitigation and adaptation) and the tools with which to tackle the challenge
of climate change.5 Despite efforts by most world leaders to reach a global consensus on the general policies
required to address climate change and notwithstanding the contribution of the legal community to the de-
velopment of a fairly comprehensive international legal framework, significant differences persist within the
regulatory framework of the different legal systems.6
From a global and comparative perspective, two opposing models of institutional response can be identi-
fied: (i) the regulatory model aimed at directly regulating the phenomenon, mainly through public law and
command-and-control instruments, but also by means of economic instruments; (ii) the litigation model,
where climate change issues are addressed through a judicial process.
Looking at the development of climate change litigation,7 one can observe that even though the first cases
date back to 1990s, cases are few and infrequent until the mid-2000s.8 Litigation first developed in the U.S. and
Valentina ]acometti is the corresponding author.
©2020 Walter deGruyterGmbH, Berlin/Boston.
1
DE CRUYTER
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