The struggle to mitigate the effects of climate change will be the defining issue of this century. The extensive amount of climate change litigation already aimed at governments and corporations will only continue to expand. Litigation may not be the optimal manner to remedy climate change, but it is a way to get governments, corporations and the media to listen.
In my recently published article ‘Judicial Remedies for Climate Change’, I argue that North American litigation relating to climate change has largely failed because litigators have been overly ambitious in their remedial requests. Judges do not decide whether issues are justiciable or whether rights have been violated without worrying about the manageability and effects of remedies. Yet, as I argued in a recently published book (Judicial Remedies for Human Rights Violations: A Two-Track Approach to Supra-National and National Law), remedies have too often not been given the attention they deserve in human rights scholarship and litigation.
Climate change litigation is likely to be more successful if courts can engage in remedial modesty. Courts in the United States, including the otherwise liberal and activist 9th Circuit Court of Appeals, and in Canada, have rejected climate change litigation that essentially asks them to develop and supervise plans to mitigate climate change.
Courts in the Netherlands and Germany have been more willing to declare laws enacted by governments to respond to climate change to be unconstitutional because they are inadequate when judged by the science on climate change. In these judgments, however, the courts have been careful to allow governments a margin of appreciation in formulating the precise response to the court’s decision. Supra-national courts will take a similar approach though they will lack the power to declare domestic laws to be invalid.
Remedial modesty may seem inadequate in light of the existential threat of climate change but it is a hard truth of successful litigation. The record is clear that the United States Supreme Court would not have ruled racially segregated schools to be unconstitutional in 1954 unless they had already decided on a go slow ‘in all deliberate speed’ remedial approach that it made official in 1955.
The danger, of course, is that the remedial response in relation to school segregation and climate change came, or is coming, too late . As suggested below, remedies may fail but such failure demands an iterative response.
A Two-Track Approach to Remedies
In Remedies for Human Rights Violations and my article, I argue that domestic courts should follow a two-track approach to remedies that is generally employed by supra-national courts.
In the first—individual remedy—track, courts should order traditional judicial remedies such as interim measures to prevent irreparable harm and damages in order to honour the integrity of adjudication, which has long recognized that rights are illusory without remedies. Individual remedies for harms that will likely or have already been caused help establish that a claim is justiciable or capable of being decided by the courts.
At the same time, individual remedies will often be inadequate. Damage awards do not truly repair human rights violations or ameliorate climate change. Moreover, they do not ensure that governments and corporations change their conduct in the future to stop violating rights.
The second systemic remedial track deals with this issue by having courts retain jurisdiction and allow some limited delay. The German Constitutional Court in its Neuberger decision in March 2021 gave the federal legislature until the end of 2022 to devise new carbon reduction plans.
If necessary, the parties to the litigation and perhaps outside experts can propose remedial plans and challenge each other’s plans. The result is that inexpert judges can be placed in a position where, if necessary and the case is not settled to increase certainty for all parties, they can make informed remedial decisions.
Settlements can also be helpful. In my article and book, I examine how bi-jural remedies based on both human rights and Indigenous law as contemplated by Article 40 of the UN Declaration of the Rights of Indigenous Peoples may also be a way to allow Indigenous people across the globe to have more jurisdiction over the land, water and animals, which are often better protected by Indigenous than colonial laws. It may be in all our interests to allow Indigenous governments to regulate their lands in accordance with their own laws. The Inter-American Courts of Human Rights has been a world leader in recognizing both human rights to a healthy environment and Indigenous rights to land.
My theory of two-track remedies derived from both domestic public law litigation and supra-national adjudication also acknowledges that the systemic remedies often fail. The result can then be a new round of litigation involving individual remedies and more prescriptive and ambitious systemic remedies.
Climate change litigation, including individual remedies for those often disadvantaged people who suffer the most drastic harms from climate related changes, can put a ‘human face’ on climate change that may be lost in the fog of scientific and geo-political debate. The media is often captivated by the drama of litigation and governments and political parties can be stirred into action.
Climate change litigation is here to stay. When it comes to remedies, however, less, in the form of remedial modesty, may actually be more effective than more.
Kent Roach is a professor of law at the University of Toronto Faculty of Law.