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On Sept. 23, the United Nations found that the Australian government had of a group of Indigenous island residents known as 鈥渢he Torres Strait 8鈥� when it failed to adequately protect them from the impacts of climate change.

It was a potentially ground-breaking decision that many expect to pave the way for future cases.

鈥淭his decision marks a significant development, as the committee has created a pathway for individuals to assert claims where national systems have failed to take appropriate measures to protect those most vulnerable to the negative impacts of climate change,鈥� UNHRC committee member

The ruling is just the latest in a growing ledger of victories for people who are leveraging the power of litigation to force action on climate change around the world.

鈥淭here are lots and lots of examples nowadays that have been successful in pushing government to increase climate action,鈥� said听, Global Climate Litigation fellow at the for Climate Change Law at Columbia University. 鈥淭his really has been growing exponentially over the past few years. There are now over 500 cases around the world in over 50 jurisdictions. This is really becoming a tool for climate activism.鈥�

鈥淭hese efforts are not just piecemeal anymore,鈥� said听Freerk Vermuelen, who represents Urgenda and will be a panelist at the upcoming听Right Here, Right Now Global Climate Summit听at the 麻豆免费版下载 on Dec. 1-4. 鈥淚n Europe, this has really grown to be a widespread phenomenon.鈥�

U.S. history and 鈥榝ossil law鈥�

In the United States, the situation is more complex. Climate cases have had a harder time gaining purchase in a legal system complicated by federalism, precedent and a history of what听, co-founder of the Climate Defense Project, called 鈥渇ossil law.鈥�

鈥淛udges and prosecutors tend to deploy their powers against climate justice advocates rather than against those degrading the climate,鈥� he wrote in . 鈥淏y and large, our legal institutions have proven ill-equipped to seriously address climate change.鈥�

In some cases, victories have proved Pyrrhic or been swallowed up by subsequent rulings and changes in enforcement priorities after a change in presidential administrations. Often, U.S. cases run aground on the shoals of jurisdictional interpretations (whether cases are matters for federal or state courts), the refusal of Congress to ratify emissions targets and climate agreements, and what Hamilton calls 鈥渋ndustry capture,鈥� a system in which the deck is stacked in favor of fossil fuel interests.

鈥淚n the United States, especially with the current (Supreme Court), you might suspect they鈥檒l find a way to shut down all types of climate cases from activist individuals rather than those from industry,鈥� said , associate professor of law at 麻豆免费版下载Boulder and a former attorney for the Environmental Protection Agency.

In 2007鈥檚 (鈥渢he preeminent U.S. climate change case,鈥� according to Hamilton),听the U.S. Supreme Court found that human-caused global warming was real and that carbon dioxide qualified as an 鈥渁ir pollutant.鈥� But in 2016, the court halted a clean-power plan developed by the EPA, and the incoming Trump administration swiftly de-emphasized climate action. This year, the Supreme Court ruled that the EPA had gone too far in trying to regulate emissions in.听

In , another case that initially encouraged climate activists, 21 youth plaintiffs represented by Oregon nonprofit argued that their due-process rights of life, liberty and property were being violated by the government鈥檚 continued inaction on reducing fossil-fuel emissions.

Ruling against a government motion to dismiss the case, U.S. District Court Judge Ann Aiken accepted many of the plaintiffs鈥� claims and found that the government was culpable.

鈥淚 have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society,鈥� Aiken wrote. 鈥淭o hold otherwise would be to say that the Constitution affords no protection against a government鈥檚 knowing decision to poison the air its citizens breathe or the water its citizens drink.鈥�

But U.S. Supreme Court Chief Justice John Roberts granted a stay in 2018 before the case could go to trial, and in 2020 the 9th Circuit Court of Appeals ruled that the issue was a matter for the executive and legislative branches, not the courts.

For Skinner-Thompson, Juliana 鈥渨as a pretty small win at the end of the day; I don鈥檛 think the plaintiffs saw it as a massive victory.鈥� And he remains skeptical that litigation to force climate action will gain much traction in the United States in the foreseeable future.

鈥淚n the U.S., to the extent that people are trying to use state laws or federal laws, to use the courts themselves to implement change, I don鈥檛 think it will be successful,鈥� Skinner-Thompson said. 鈥淭he courts are not going to be the savior as they have been with civil rights. . . . It would be more efficient if the international community would come together with binding and meaningful (emissions) targets and act to address the problem.鈥�

Using the courts to force political change

However, given the global nature of the problem, legal successes in other countries and regions are almost certain to have a positive impact in the United States.

鈥淔ollowing these cases, the major emitters may have to change their practices to respond to cases like (Urgenda), even though there is not a comprehensive regulatory scheme established by treaty,鈥� Skinner-Thompson said. 鈥淎nd with carbon emissions . . . spread pretty evenly across the globe, it really doesn鈥檛 matter where we get reductions. We鈥檙e still getting reductions, and that鈥檚 meaningful.鈥澨�

Vermuelen agreed that courts are not where the climate fight will be won. But he said litigation remains a potent tool to catalyze political change.

鈥淚t belongs in the political arena, not the courtroom,鈥� Vermuelen said. 鈥淏ut this type of litigation may be necessary to bring the politics onto the right track. . . . There is a role for the judiciary to complement democratic practices.鈥�

And each legal victory can affect the way people around the world see the issue, Tigre said.

鈥淟itigation is a slow tool, but it can be very effective,鈥� Tigre said. 鈥淓very time there is a new decision from one country that really reaches the media and everyone is talking about it, it proves to be an effective tool to push countries. And I think everyone starts asking whether that case can be replicated in other jurisdictions.鈥�

Though U.S. efforts to leverage litigation to force climate action have produced minimal fruit to date, Hamilton still believes that 鈥渃ourts are one of the best avenues we have to make climate justice a policy of the state.鈥�

And, as international victories accumulate, Hamilton wrote, 鈥渋t seems likely that in the coming years international bodies and some domestic courts will turn more and more to international agreements and national human rights instruments to hold governments鈥� feet to the fire.鈥�