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Climate litigation demands an environmental consciousness

Why should the international community be concerned about climate change litigation? Climate change litigation encompasses disputes that relate to climate change in order to yield legal, policy and social change in state policies.

JYOT SHIKHAR SINGH AND ARMIN ROSENCRANZ |

Why should the international community be concerned about climate change litigation? Climate change litigation encompasses disputes that relate to climate change in order to yield legal, policy and social change in state policies.

Climate litigation is not a novel concept. According to the United Nations Environment Programme in 2019, climate litigation cases have spiked since 2010. An increase in climate change cases highlights the increasing relevance of actions and efforts to address the changes happening to the environment due to climate change. The Global Climate Litigation Report of 2020 shows that climate cases have nearly doubled over the last three years, with cases compelling governments and multinational corporations (MNCs) to recognize their duty to preserve the natural environment.

Rule of law and courts are being instrumentalized more than ever to preserve the environment. But to make climate change litigation effective in the 21st century, legislation and courts must develop an environmental consciousness. Such consciousness must effectively address cases involving environmental factors such as emissions from greenhouse gases.

Australia has been at the forefront of climate litigation and its cases can be an inspiration in other countries. In 2021, Australia had more climate change litigation cases than any other country according to the New South Wales Legal Society. Australia is a fertile ground for public interest litigation on climate change; its independent legal institutions and pro-corporate policies highlight the climate change impacts in the region.

What is the reason behind Australia’s openness to climate change cases? The success of climate litigation cases requires that both the court and the government are conscious of environmental degradation in the region. In Australia’s federal system, where powers to adjudicate environmental issues are shared between the State and territories, a “Prime Ministerial Task Group on Emissions Trading” was established in 2006 to fulfil any environmental regulatory gap and create Australia’s carbon trading scheme.

This led to the creation of a multi-jurisdictional emissions trading scheme to cover a broader range of climate change issues in the country. Australian state and territorial governments display a unified approach to climate change. Environment Protection and Conservation of Biodiversity (1999), enables the courts to develop broad policy engagement with the issue. Furthermore, it allows for legal changes.

Moreover, the existence of specialised environmental courts and tribunals in Australia e.g., the Land and Environment Court of New South Wales, functioning since 1980, assists in providing much-needed expertise on environmental damage and protection. Australia adopted its policy of Ecologically Sustainable Development in 1992, under which the requirement is for Environment Impact Assessments (EIAs) that set a “climate-friendly” interpretation of the law.

The establishment of specialized environment courts is not novel; in India, for example, the National Green Tribunal has been operating since 2011. The biggest challenge that continues to hamper the success of climate litigation is that the cases fail to prioritise environmental protection. To develop effective climate policies, climate litigation requires that the environment needs to be dealt with separately from economic and political factors. These legal mechanisms and provisions have allowed Australia to become the prime setting for climate change litigation. An effective solution lies in policy clarification.

If the policies of the state are well-defined and the state has a clear intention, then environmental protection will not be a challenge. The Australian legal structure, infused with the moral consciousness of prioritizing environmental protection, highlights the need of universalizing this consciousness within the courts and the governments around the world. The way forward for climate protection relies on a change in the moral consciousness of the state and the judiciary.