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The article examines the rise of rights-based litigation in the context of the climate emergency, highlighting its role in holding state and corporate actors accountable for inadequate climate action. It provides a systematic analysis of 112 cases that invoke human rights in climate litigation, identifying trends and knowledge gaps, particularly regarding litigation that does not align with climate objectives. The authors call for further scholarly inquiry into rights-based approaches to climate decision-making and the implications of a just transition towards net zero emissions.

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Journal of Human Rights and the Environment, Vol. 13 No. 1, March 2022, pp.

7–34

Rights-based litigation in the climate

emergency: mapping the landscape and
new knowledge frontiers

Annalisa Savaresi*
Associate Professor, Center for Climate Change, Energy and Environmental Law, University of Eastern
Finland and Senior Research Associate, University of Stirling (UK)

Joana Setzer**
Assistant Professorial Research Fellow, Grantham Research Institute on Climate Change and the
Environment, London School of Economics and Political Science

This article revisits and expands on extant scholarly inquiries into the so-called ‘rights
turn’ in climate litigation, with the objective of providing a more comprehensive apprecia-
tion of the role of human rights litigation in the context of the climate emergency. We rely
on well-established categories used in the literature on climate litigation and on human
rights and the environment to provide the first systematic analysis of rights-based litiga-
tion that aligns with climate objectives. Building on this basis, we consider the significant
data and knowledge gaps concerning human rights litigation that does not align with cli-
mate objectives. We flag the need to better understand the role of rights-based litigation in
the context of the complex societal changes associated with a just transition towards net
zero emissions. The article contributes to scholarly inquiry into this new and increasingly
prominent area at the intersection of human rights and environmental law, highlighting
knowledge gaps that deserve further investigation, both from an academic and from a pol-
icy and practice perspective.

Keywords: climate change, climate litigation, human rights, just transition

1 INTRODUCTION

Litigants around the world increasingly file lawsuits asking state and corporate actors
to reduce greenhouse gas emissions and redress the harms associated with the impacts
of climate change.1 The literature commonly describes this ‘climate litigation’ as

* Email: [email protected]
** Email: [email protected]. The authors are grateful to Gwenyth Wren for invaluable
research assistance in the preparation of this piece. They are also grateful to Catherine Higham,
Josh Gellers, Pau de Vilchez Moragues, Dennis van Berkel, Lisa Vanhala and two anonymous
reviewers for comments on earlier drafts. Joana Setzer acknowledges support from the
Grantham Research Institute on Climate Change and the Environment, at the London School
of Economics, and the ESRC Centre for Climate Change Economics and Policy (CCCEP)
(ref. ES/R009708/1). The usual disclaimers apply.
1. This matter has been extensively investigated in the literature, see eg Lisa Vanhala and
Chris Hilson, ‘Climate Change Litigation: Symposium Introduction’ (2013) 35 Law & Policy
141; Jacqueline Peel and Hari M Osofsky, Climate Change Litigation (Cambridge University

© 2022 The Authors Journal compilation © 2022 Edward Elgar Publishing Ltd
The Lypiatts, 15 Lansdown Road, Cheltenham, Glos GL50 2JA, UK
and The William Pratt House, 9 Dewey Court, Northampton MA 01060-3815, USA
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8 Journal of Human Rights and the Environment, Vol. 13 No. 1

lawsuits raising questions of law or fact regarding climate science, mitigation or adap-
tation, which are brought before international or domestic judicial, quasi-judicial and
other investigatory bodies.2
In recent years, more and more climate lawsuits have invoked human rights and/or
have been brought before human rights bodies. At the end of May 2021, the world’s
most established climate litigation databases – those compiled by the Sabin Centre for
Climate Change Law at Columbia Law School and the Grantham Research Institute
on Climate Change and the Environment at the London School of Economics3 – listed
112 (out of 1841) cases that relied in whole or in part on human rights (see Annex).
These rights-based lawsuits typically seek to hold to account public authorities and
private actors for not taking adequate climate action. Therefore rights-based climate
lawsuits strive to fill the accountability and enforcement gaps left by international
and national climate change law, which presently provide little to no means to sanc-
tion inadequate climate action by state and corporate actors.4
The use of rights-based litigation to target inadequate environmental laws and/or
the inadequate enforcement of environmental laws is not new. Human rights have
long been invoked to protect environmental interests and provide remedies where
environmental law does not.5 This practice has been amply documented in the litera-
ture,6 and has been thoroughly mapped by the UN Special Rapporteur on Human
Rights and the Environment.7 As climate laws are adopted all over the world, it is

Press 2015); Joana Setzer and Lisa C Vanhala, ‘Climate Change Litigation: A Review of
Research on Courts and Litigants in Climate Governance’ (2019) 10 Wiley Interdisciplinary
Reviews: Climate Change e580; Jacqueline Peel and Hari M Osofsky, ‘Climate Change Litiga-
tion’ (2020) 16 Annual Review of Law and Social Science 21.
2. David Markell and JB Ruhl, ‘An Empirical Assessment of Climate Change in the Courts:
A New Jurisprudence or Business as Usual?’ (2012) 64 Florida Law Review 15.
3. See <http://climatecasechart.com/> and <http://www.climate-laws.org> accessed 1 June
2021.
4. A Gupta and Harro van Asselt, ‘Transparency in Multilateral Climate Politics: Furthering
(or Distracting from) Accountability?’ (2019) 13 Regulation & Governance 18; Aarti Gupta and
others, ‘Performing Accountability: Face-to-Face Account-Giving in Multilateral Climate
Transparency Processes’ (2021) 21 Climate Policy 616; Annalisa Savaresi, ‘Plugging the
Enforcement Gap: The Rise and Rise of Human Rights in Climate Change Litigation’ (QIL
QDI, 31 January 2021) <http://www.qil-qdi.org/plugging-the-enforcement-gap-the-rise-and-
rise-of-human-rights-in-climate-change-litigation/> accessed 10 February 2021.
5. See eg UNEP, ‘Environmental Rule of Law: First Global Report’ (2019) <http://www.
unenvironment.org/resources/assessment/environmental-rule-law-first-global-report> accessed
21 January 2021, chapter 4.
6. D Shelton, ‘Human Rights, Environmental Rights, and the Right to Environment’ (1991)
28 Stanford Journal of International Law; Alan Boyle and Michael R Anderson, Human Rights
Approaches to Environmental Protection (Oxford University Press 1998); Alan Boyle, ‘Human
Rights or Environmental Rights? A Reassessment’ (2007) 18 Fordham Environmental Law
Review 471; David R Boyd, ‘The Constitutional Right to a Healthy Environment’ (2012) 54
Environment: Science and Policy for Sustainable Development: 3; Alan Boyle, ‘Human Rights
and the Environment: Where Next?’ (2012) 23 European Journal of International Law 613;
Donald K Anton and Dinah Shelton, Environmental Protection and Human Rights (Cambridge
University Press 2012).
7. See the mapping studies prepared by the UN Special Rapporteur on Human Rights and the
Environment, available at: <http://www.srenvironment.org/report/mapping-report-2014>
accessed 15 June 2021.

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https://creativecommons.org/licenses/by/4.0/
Rights-based litigation in the climate emergency 9

therefore hardly a surprise that rights-based litigation has also started to target climate
change concerns.
Scholars promptly noticed this new trend, describing it as a ‘rights-turn’ in climate liti-
gation.8 The literature has however taken a largely piecemeal approach to the analysis
of this litigation, focusing on the details of individual cases, rather than systematically
mapping main trends and patterns in this burgeoning case law.9 There are, in other
words, gaps in our knowledge of how rights-based litigation is used to pursue climate
objectives, and how it compares with general trends in climate litigation, as well with
general trends in rights-based litigation concerning other environmental interests.
There is furthermore a significant gap in our understanding of rights-based litiga-
tion that does not align with climate objectives, whereby human rights law and/or
remedies are used to challenge measures and projects designed to deliver climate
change adaptation and/or mitigation. This phenomenon – which other scholars10
and databases11 have already identified, without analysing it systematically – is
also hardly surprising. While fossil-fuel-based economies have undoubtedly created
winners and losers, changing the status quo entails striking new equilibria between
competing societal interests.12 So, as measures to address the climate emergency
are adopted and implemented all over the world, numerous groups will be negatively
affected by these new laws and policies – for example, restricting land uses or
enabling the development of dams and windfarms. In this connection, the notion of
a ‘just transition’ has been invoked to highlight that the benefits of decarbonization
should be shared, and that those who stand to lose should be supported.13 In this
article we define as ‘just transition litigation’ cases that rely in whole or in part on

8. See eg: Jacqueline Peel and Hari M Osofsky, ‘A Rights Turn in Climate Change Litiga-
tion?’ (2018) 7 Transnational Environmental Law 37; Annalisa Savaresi and Juan Auz, ‘Cli-
mate Change Litigation and Human Rights: Pushing the Boundaries’ (2019) 9 Climate Law
244; Annalisa Savaresi, ‘Human Rights and the Impacts of Climate Change: Revisiting the
Assumptions’ (2021) 11 Oñati Socio-Legal Series 231; Keina Yoshida and Joana Setzer,
‘The Trends and Challenges of Climate Change Litigation and Human Rights’ (2020) European
Human Rights Law Review 140.
9. With the sole exception of César Rodríguez-Garavito, ‘Litigating the Climate Emergency:
The Global Rise of Human Rights-Based Litigation for Climate Action’ (Social Science
Research Network 2021) SSRN Scholarly Paper ID 3860420 <https://papers.ssrn.com/
abstract=3860420> accessed 15 August 2021. This paper, however, identifies a smaller set
of rights-based cases and does not propose and apply a typology to analyse these cases.
10. See eg Ole W Pedersen, ‘The Janus-Head of Human Rights and Climate Change: Adapta-
tion and Mitigation’ (2011) 80 Nordic Journal of International Law 403; Marjan Peeters and
Sandra Nóbrega, ‘Climate Change-Related Aarhus Conflicts: How Successful Are Procedural
Rights in EU Climate Law?’ (2014) 23 RECIEL 354; Leslie-Ann Duvic-Paoli, ‘Public Partici-
pation in the Context of Energy Activities: The Role of the Aarhus Convention Compliance
Committee’ in Marc Ozawa and others (eds), In Search of Good Energy Policy (Cambridge
University Press 2019).
11. See the Corporate Legal Accountability database curated by the Business & Human
Rights Resource Centre: <https://old.business-humanrights.org/en/case-studies-renewable-
energy> accessed 17 June 2021.
12. Ioan Fazey and others, ‘Transformation in a Changing Climate: A Research Agenda’
(2017) 9 Climate and Development 1, 10.
13. Adrien Thomas, ‘Framing the Just Transition: How International Trade Unions Engage
with UN Climate Negotiations’ (2021) 70 Global Environmental Change 102347; Fergus
Green and Ajay Gambhir, ‘Transitional Assistance Policies for Just, Equitable and Smooth
Low-Carbon Transitions: Who, What and How?’ (2020) 20 Climate Policy 902.

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human rights to question the distribution of the benefits and burdens of the transition
away from fossil fuels and towards net zero emissions. While we know that this liti-
gation is happening, at present there are no comprehensive data collections of these
cases.
This article therefore sets out to address two significant gaps in the literature. First,
we provide a systematic scholarly analysis of rights-based litigation that aligns with
climate objectives. In section 2, we analyse the 112 cases listed in the world’s largest
climate litigation databases on 31 May 2021 that rely in whole or in part on human
rights (see Annex), with the aid of well-established categories developed by the litera-
ture on climate litigation. We consider who has brought these rights-based climate
cases, against whom and where. The objective is to identify main trends in rights-
based climate cases, and to understand how they compare with climate litigation
that does not rely on human rights. In section 3 we analyse the same 112 rights-
based climate cases, using standard categorizations deployed in the literature on
human rights and the environment. The objective is to identify the human rights
most invoked in rights-based climate cases, and to compare these with common trends
in rights-based litigation concerning other environmental interests.14
Second, we rely on the limited evidence available to identify knowledge gaps con-
cerning rights-based litigation that does not align with climate objectives. Specifi-
cally, section 4 relies on the analysis carried out in section 3 to identify knowns
and unknowns about what we describe above as ‘just transition litigation’. The objec-
tive is to understand rights-based opposition to action taken to address climate change
and its consequences. The conclusion brings together the salient points resulting from
these analyses and invites greater and deeper scholarly reflection over rights-based
litigation, in order to develop a rights-based approach to climate decision-making.15

2 MAIN TRENDS IN RIGHTS-BASED LITIGATION THAT PURSUES

CLIMATE OBJECTIVES

When compared with general climate litigation, rights-based climate cases display a
few peculiarities.16
First, geographically, rights-based climate cases have been predominantly filed in
Europe, followed by North America, Latin America, the Asia-Pacific and Africa.
Roughly 13 per cent of rights-based complaints have been lodged before international
and regional human rights bodies (Figure 1). This geographical distribution broadly
aligns with the main trends detected in litigation involving environmental rights,

14. Alan E Boyle and Michael R Anderson, Human Rights Approaches to Environmental
Protection (Oxford University Press 1998); Shelton (n 6); Anton and Shelton (n 6); Report
of the Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment
of a Safe, Clean, Healthy and Sustainable Environment (OHCHR 2015) A/HRC/28/61.
15. See eg the call for greater scholarly inquiry into rights-based approaches to climate
decision-making in: Sébastien Jodoin, Annalisa Savaresi and Margaretha Wewerinke-Singh,
‘Rights-Based Approaches to Climate Decision-Making’ (2021) 52 Current Opinion in Envir-
onmental Sustainability 45.
16. Joana Setzer and Rebecca Byrnes, ‘Global Trends in Climate Change Litigation: 2020
Snapshot’ (London School of Economics 2020); Joana Setzer and Catherine Higham, ‘Global
Trends in Climate Litigation: 2021 Snapshot’ (London School of Economics and Political
Science School of Economics 2021).

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Africa

Asia Pacific

Europe

International

Latin America

North America

0 10 20 30 40

Figure 1 Geographical distribution of rights-based climate cases

Africa

Asia Pacific

Europe

International

Latin America

North America

0 500 1000 1500

Figure 2 Geographical distribution of overall climate cases

which has been particularly prominent in Europe and Latin America.17 These regions are
endowed with regional human rights bodies that have historically been sympathetic
towards the use of human rights complaints to pursue environmental objectives.18 How-
ever, this geographical distribution significantly differs from trends observed in general
climate litigation, where the vast majority of cases have been brought in the US, fol-
lowed by Europe and the Asia Pacific, with a comparatively small number of cases
filed in Africa, Latin America and before international bodies (Figure 2).19
Second, chronologically, rights-based climate litigation is a comparatively recent
phenomenon. Human rights arguments started to feature more prominently in climate

17. See eg David R Boyd, The Environmental Rights Revolution: A Global Study of Consti-
tutions, Human Rights, and the Environment (UBC Press 2011).
18. Council of Europe, ‘Manual on Human Rights and the Environment. Principles Emerging
from the Case-Law of the European Court of Human Rights’ (2012); InterAmerican Commis-
sion on Human Rights, ‘Indigenous and Tribal Peoples’ Rights over their Ancestral Lands and
Natural Resources. Norms and Jurisprudence of the Inter-American Human Rights System’
(2010) 35 American Indian Law Review.
19. Setzer and Higham (n 16).

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0
2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021

Figure 3 Chronological distribution of rights-based climate cases

200
180
160
140
120
100
80
60
40
20
0
2005

2008
2009
2010
2011
2012
2013
2014
2015

2018
2019
2020
2021
2006

2016
2007

2017

All other countries US

Figure 4 Chronological distribution of overall climate cases

litigation after the parties to the climate regime20 and international organizations21 expli-
citly recognized the links between climate change and human rights law. Rights-based
climate lawsuits were lodged with increasing frequency after the adoption of the Paris
Agreement in 2015 and over two-thirds of these have been filed since 2018 (Figure 3).
Conversely, general climate litigation has steadily risen since 2005 (Figure 4).

20. UNFCCC, ‘Decision 1/CP.16, The Cancun Agreements: Outcome of the Work of the Ad
Hoc Working Group on Long-term Cooperative Action under the Convention’ UN Doc FCCC/
CP/2010/7/Add.1 (15 March 2011) preamble, recital 7; Paris Agreement, preamble.
21. The Human Rights Council adopted 11 resolutions on human rights and climate change
between 2008 and 2021. A summary of the activities of the Office of the UN High Commis-
sioner for Human Rights is available at <https://www.ohchr.org/en/issues/hrandclimatechange/
pages/hrclimatechangeindex.aspx>.

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As we noted, this rise in rights-based litigation arguably is a result of efforts to

bridge the accountability and enforcement gaps affecting climate change law, both
at the international and the national level. Climate law is still in its infancy and, even
where it exists, it typically does not provide for measures to hold public and private
actors to account for failing to meet climate targets. Climate litigants therefore
increasingly rely on various sources of law, including human rights law and remedies,
in order to bridge these accountability and enforcement gaps.
In this section, we analyse rights-based climate cases, distinguishing between the
type of defendant and applicant; the type of climate action under dispute; the role of
climate change and human rights in litigation; and the outcomes of the litigation.22

2.1 The type of applicant and defendant

The literature typically distinguishes climate lawsuits on the basis of the type of appli-
cants (individuals and/or groups, corporations, governments, NGOs) and defendants
(state, public authorities and corporations).23
In general climate litigation, the vast majority of cases have been brought against
states and public authorities by corporations, followed by individuals, governments
and NGOs, or both acting together.24
Rights-based climate litigation only partially aligns with this general trend. The
applicants in rights-based climate cases typically are individuals (48) and groups
(51) or a combination of individuals and groups (4). Only very few cases have
been brought by industry groups (3),25 subnational governments (2)26 or indigenous
peoples’ self-government bodies on behalf of their members (3).27 In one instance
courts have considered human rights grievances proprio motu (1).28 This constellation
of applicants in rights-based litigation is to be expected, given that individuals and
groups are the main, if not the sole, rights-bearers under human rights law. It is there-
fore rather unusual for corporate actors to bring a complaint on the basis of human
rights law. This stands in contrast with general climate litigation, which has frequently
seen corporate actors initiating cases to challenge new climate law measures or the
withdrawal of licences and permits.

22. Joana Setzer and Mook Bangalore, ‘Regulating Climate Change in the Courts’ in Alina
Averchenkova, Sam Fankhauser and Michal Nachmany (eds), Trends in Climate Change Leg-
islation (Edward Elgar 2017); Setzer and Byrnes (n 16).
23. Markell and Ruhl (n 2); ‘Global Climate Litigation Report: 2020 Status Review’ (UNEP
2020) <https://www.unep.org/resources/report/global-climate-litigation-report-2020-status-
review> accessed 26 August 2021.
24. An updated analysis of parties involved in climate litigation in the US is yet to be under-
taken, but earlier studies confirm that also in the US the majority of cases have been brought
against the federal or state governments. US applicants are largely NGOs, and, less frequently,
business and subnational governments. See: Korey Silverman-Roati, ‘US Climate Litigation in
the Age of Trump: Full Term’ (Sabin Centre for Climate Change Law 2021).
25. Korean Biomass Plaintiffs v South Korea; Trans Mountain Pipeline ULC v Misavair; and
D.G. Khan Cement Company v Government of Punjab.
26. Commune de Grande Synthe v France and City of Lyon v French Deposits and Consign-
ments Fund.
27. See eg Lho’imggin et al. v Her Majesty the Queen.
28. Court on its own motion v State of Himachal Pradesh and others.

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The defendants in rights-based climate cases typically are states and public authorities
(93 out of 112 cases). This is also to be expected, as in human rights law states are the
primary entities with duties. This ratio of cases is not too different from that observed in
general climate litigation.29 In recent years, however, the growing recognition of corpo-
rate actors’ human rights responsibilities at the international,30 regional31 and national32
level has been associated with a rise in litigation concerning corporate human rights
abuses.33 Relatedly, there is a small but rapidly rising number of rights-based climate
cases specifically targeting corporations, asking domestic courts and non-judicial bodies
to interpret corporate due diligence obligations in light of human rights law and of the
temperature goal enshrined in the Paris Agreement. At the time of writing, 16 such cases
have been recorded, with 12 cases filed by NGOs and four by individuals. Despite being
relatively rare, these cases have attracted considerable attention, due to their ground-
breaking nature and potentially revolutionary impacts.34

2.2 The types of climate action: adaptation, mitigation and/or compensation

The literature typically distinguishes lawsuits on the basis of the type of climate action
pursued, that is, whether the applicants complain about measures concerning climate
change mitigation, adaptation or both.35

29. Outside the US, 54 out of 454 climate cases have been brought against corporations. See
Setzer and Higham (n 16). In the US, 95 out of 873 climate cases filed between 1990 and 2016
were brought against corporations. See Sabrina McCormick et al., ‘Strategies in and Outcomes
of Climate Change Litigation in the United States’ (2018) 8 Nature Climate Change 829.
30. See UNHRC Res 26/9 ‘Elaboration of an international legally binding instrument on
transnational corporations and other business enterprises with respect to human rights’ (14
July 2014) UN Doc A/HRC/RES/26/9, establishing the mandate of the Open-ended intergo-
vernmental working group on transnational corporations and other business enterprises with
respect to human rights.
31. Parliament and Council Directive 2014/95/EU of 22 October 2014 amending Direc-
tive 2013/34/EU as regards disclosure of non-financial and diversity information by certain
large undertakings and groups (Text with EEA relevance) [2014] OJ L330/1. See also ongoing
negotiations on due diligence legislation in the EU: European Commission, ‘Proposal for a
Directive on Corporate Sustainability Due Diligence and Annex’ COM(2022) 71 final.
32. See the repository of legislation at: ‘Mandatory Due Diligence’ (Business & Human
Rights Resource Centre) <https://www.business-humanrights.org/en/big-issues/mandatory-
due-diligence/> accessed 22 July 2021.
33. See eg Jacques Hartmann and Annalisa Savaresi, ‘Corporate Actors, Environmental
Harms and the Draft UN Treaty on Business and Human Rights: History in the Making?’
[2021] QIL QDI <http://www.qil-qdi.org/corporate-actors-environmental-harms-and-the-draft-
un-treaty-on-business-and-human-rights-history-in-the-making/> accessed 15 August 2021.
34. See eg Annalisa Savaresi and Margaretha Wewerinke-Singh, ‘Friends of the Earth
(Netherlands) v Royal Dutch Shell: Human Rights and the Obligations of Corporations in
the Hague District Court Decision’ (31 May 2021) <https://gnhre.org/2021/05/31/friends-of-
the-earth-netherlands-v-royal-dutch-shell-human-rights-and-the-obligations-of-corporations-in-
the-hague-district-court-decision/> accessed 4 June 2021; Chiara Macchi and Josephine van
Zeben, ‘Business and Human Rights Implications of Climate Change Litigation: Milieudefensie
et al. v Royal Dutch Shell’ (2021) 30(3) Review of European, Comparative & International
Environmental Law 409.
35. Markell and Ruhl (n 2); Setzer and Higham (n 16); ‘Global Climate Litigation Report:
2020 Status Review’ (n 23).

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The vast majority of climate litigation concerns either mitigation or a combination

of mitigation and adaptation. Only 180 cases concern adaptation alone.36 Although
adaptation is commonly viewed as a responsibility of state authorities,37 23 adaptation
cases have been filed against corporations, with the aim of establishing corporate lia-
bility for past contributions to climate change.38 These include a series of cases
brought by states and municipalities in the US, seeking billions of dollars in damages
for climate change adaptation infrastructure, such as sea walls to protect coastal
properties.39
Rights-based litigation broadly reflects these trends: 83 of 112 concern mitigation,
9 concern adaptation and 20 both mitigation and adaptation. Rights-based cases deal-
ing with adaptation argue that human rights law imposes obligations on states to act to
address climate impacts, and/or to refrain from activities that cause climate change.
Instead, we have identified only one rights-based climate case dealing with adaptation
and brought against a corporation.40
Rights-based complaints concerning climate mitigation typically argue that human
rights law imposes on states/corporations the obligations to reduce greenhouse gas
emissions and to adopt measures to fight climate change. In the famous case Urgenda
Foundation v The State of the Netherlands,41 for example, a group of individuals and
NGOs relied in part on human rights law arguments to challenge the Dutch govern-
ment’s inadequate action on climate mitigation. Another 37 cases have since built on
similar strategies, 42 which van Berkel et al. describe as ‘systemic mitigation’
litigation.43
At least in principle, litigants in rights-based cases can also seek compensation for
harms associated with the impact of climate change. But while the use of human rights
to seek redress for loss and damage has been the subject of much scholarly speculation,44

36. Of these, 100 were filed in the US and 80 outside the US, the majority of which (61) were
brought before the Australian courts, and many relate to the application of principles and stan-
dards relating to climate change adaptation in planning and environmental impact assessments.
37. Emily Williams, ‘Attributing Blame? – Climate Accountability and the Uneven Land-
scape of Impacts, Emissions, and Finances’ (2020) 161 Climatic Change 273.
38. Setzer and Higham (n 16).
39. Robin Kundis Craig, ‘California Climate Change Lawsuits: Can the Courts Help with
Sea-Level Rise, and Who Knew What When?’ (2018) 3 Asia-Pacific Journal of Ocean Law
and Policy 306; Albert C Lin and Michael Burger, ‘State Public Nuisance Claims and Climate
Change Adaptation’ (2018) 36 Pace Environmental Law Review 49; ‘Legal Interventions: How
Cities Can Drive Climate Action’ (C40 Knowledge Hub 2021).
40. Animal Legal Defense Fund v Foster Poultry Farms consists of a lawsuit filed in 2020
before the California Superior Court, alleging that a chicken slaughterhouse’s use of ground-
water was unconstitutional, particularly as California’s drought is being exacerbated by the
effects of climate change.
41. Urgenda Foundation v The State of the Netherlands C/09/456689 / HA ZA 13-1396
(2015) (‘Urgenda’).
42. Setzer and Higham (n 16).
43. See Lucy Maxwell et al., ‘Standards for Adjudicating the Next Generation of Urgenda-
Style Climate Cases’ in this issue.
44. Richard SJ Tol and Roda Verheyen, ‘State Responsibility and Compensation for Climate
Change Damages – A Legal and Economic Assessment’ (2004) 32 Energy Policy 1109; Roda
Verheyen, Climate Change Damage and International Law: Prevention, Duties and State
Responsibility (Martinus Nijhoff 2005); Tim Stephens, ‘See You in Court? A Rising Tide of
International Climate Litigation’ (The Interpreter, 30 October 2019); Alan Boyle, ‘Litigating
Climate Change under Part XII of the LOSC’ (2019) 34 The International Journal of Marine

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rights-based cases specifically seeking redress for the impacts of climate change are yet
to materialize in a significant way.45

2.3 The role of climate change and of human rights: central or peripheral
The literature typically categorizes climate litigation according to the role that climate
concerns play in applicants’ pleadings or in courts’ judgments.46 Climate concerns are
therefore ‘central’ whenever climate law or policy is at the core of the applicants’ com-
plaint. Climate concerns are considered ‘peripheral’ in litigation that only broadly deals
with climate change policy and law, but largely focuses on other matters. Finally, the
literature suggests that climate concerns are ‘incidental’ in cases that do not explicitly
mention climate law or policy, but that nevertheless still have a clear impact on emis-
sions. For example, climate change concerns are incidental in complaints concerning
deforestation or the operation of coal power plants, which do not mention climate
change explicitly. Climate litigation databases generally do not include cases where cli-
mate concerns are only incidental.
Analyses of global ligation trends reveal that climate concerns tend to be peripheral
in most climate cases.47 This trend contrasts with rights-based climate litigation,
where climate concerns are central in most (76 out of 112) and peripheral in fewer
cases (36 out of 112). For example, climate change is central in Juliana v US,48
whereby 21 young people alleged that the government’s ‘affirmative actions’ causing
climate change had violated their constitutional rights to life, liberty and property.
Conversely, climate change is peripheral in PSB et al. v Brazil (on Amazon
Fund),49 whereby four political parties asked a Brazilian court to order the Ministry
of the Environment to resume activities to protect the Amazon and avoid deforesta-
tion, which is the main source of greenhouse gas emissions in the country.
We used a similar approach to understand whether human rights concerns play a
central or peripheral role in rights-based climate litigation. Human rights concerns are
‘central’ whenever human rights are at the core of the applicants’ climate case. Human
rights concerns are instead considered ‘peripheral’ in climate litigation that relies on
human rights, alongside other sources of law. Applying these categories, we found
that human rights played a central role in 75 out of 112 rights-based cases, where

and Coastal Law 458; Margaretha Wewerinke-Singh, State Responsibility, Climate Change and
Human Rights under International Law (Hart Publishing 2019); Annalisa Savaresi, ‘Inter-State
Climate Change Litigation: “Neither a Chimera nor a Panacea”’ in Ivano Alogna, Christine
Bakker and Jean-Pierre Gaucci (eds), Climate Change Litigation: Global Perspectives (Brill
Nijhoff 2021).
45. In Notre Affaire à Tous et al. v France, n. 1904967, 1904968, 1904972, 1904976/4-1,
Tribunal Administratif de Paris, 3 February 2021, the plaintiffs requested symbolic monetary
compensation for the moral and ecological damages they allegedly suffered.
46. See eg Peel and Osofsky, ‘A Rights Turn in Climate Change Litigation?’ (n 8); Kim
Bouwer, ‘The Unsexy Future of Climate Change Litigation’ (2018) 30 Journal of Environmen-
tal Law 483.
47. An assessment of climate litigation outside of the US suggests that climate change is per-
ipheral to 242 cases and central to 211 cases, with the number of cases where climate change is
a central issue increasing over time. An equivalent analysis of centrality for US litigation is yet
to be undertaken. See Setzer and Higham (n 16).
48. Juliana v United States, Case No 6:15-cv-01517-TC, 2016 WL 6661146 (10 November
2016).
49. PSB et al. v Brazil (on Amazon Fund), Federal Supreme Court of Brazil, 5 June 2020.

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applicants relied solely on human rights law to formulate their grievances. For exam-
ple, in Sacchi et al. v Argentina et al. a group of children asked an international
human rights body – the UN Committee on the Rights of the Child – to investigate
multiple alleged human rights violations perpetrated by states as a result of the actual
and projected impacts of climate change.50 Similarly, in the so-called Carbon Majors
inquiry, a group of Filipino citizens and civil society organizations asked a national
human rights body – the Philippines Human Rights Commission – to consider alleged
human rights violations associated with corporate greenhouse gas emissions.51
Conversely, human rights played a peripheral role in 37 cases, where they were
used to corroborate and support complaints largely based on administrative or private
law obligations. In these cases, applicants typically argued that state or corporate
actors’ duties under administrative law or tort law must be interpreted in light of
human rights obligations. Some of the most celebrated climate cases have relied on
this approach. For example, in both Urgenda52 and Milieudefensie et al. v Royal
Dutch Shell plc,53 the applicants invoked human rights duties enshrined in interna-
tional and EU law to define the scope of state and corporate duty of care and due dili-
gence obligations under national tort law. In both cases, human rights considerations
were peripheral in the applicants’ arguments, but turned out to be decisive to the outcome
of litigation, as the courts largely relied on human rights law to justify their decisions.54

2.4 The outcomes of litigation

The literature on climate litigation identifies different ways to categorize the outcomes
of lawsuits. A narrow approach considers the ‘direct outcome’ of a case, looking at
the final decision of the adjudicating body, vis-à-vis the requests of the applicants
to determine whether that outcome advances or undermines climate action. 55
A broader approach focuses on the ‘overall impact’ of the case, both inside and out-
side of, as well as before, during and after, the legal proceedings. Such impact might
include (but is not limited to) changes to the behaviour of the parties, and/or to public
opinion, as well as financial and reputational consequences for a variety of actors, and
further litigation.56
In this article we follow the narrow approach and only consider the direct out-
comes of climate litigation. As such, we consider cases to be ‘successful’ where
the adjudicating body found in favour of climate action. We consider cases to be

50. Sacchi et al. v Argentina et al., filed under the Convention of the Rights of the Child (23
September 2019). See Larissa Parker et al., ‘When the Kids Put Climate Change On Trial:
Youth-Focused Rights-Based Climate Litigation around the World’ in this issue.
51. Petition Requesting Investigation of the Responsibility of the Carbon Majors for Human
Rights Violations or Threats of Violations Resulting from the Impacts of Climate Change, Case
No: CHR-NI-2016-0001 (Quezon City 2016).
52. Urgenda (n 41). See Lucy Maxwell et al., ‘Standards for Adjudicating the Next Genera-
tion of Urgenda-Style Climate Cases’ in this issue.
53. See eg Milieudefensie et al. v Royal Dutch Shell plc, Hague District Court, C/09/571932 /
HA ZA 19-379, 2021.
54. Margaretha Wewerinke-Singh and Ashleigh McCoach, ‘The State of the Netherlands v
Urgenda Foundation: Distilling Best Practice and Lessons Learnt for Future Rights-Based Cli-
mate Litigation’ (2021) 30 Review of European, Comparative & International Environmental
Law 275; Savaresi and Wewerinke-Singh (n 34).
55. Setzer and Higham (n 16).
56. Setzer and Vanhala (n 1) 12.

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Unsuccessful Successful

44%
56%

Figure 5 Outcome of human-rights-based climate litigation

Unsuccessful Successful Neutral

10%

32%

58%

Figure 6 Outcome of climate litigation outside the US

‘unsuccessful’ where the judge ruled against climate action. Based on this definition,
of 57 rights-based climate cases that have been decided to date, 25 were successful
and 32 were unsuccessful (Figure 5).
Compared with overall trends in climate litigation outside the US, rights-based
cases so far have been comparatively less successful than other climate litigation,
where over half of the decided cases delivered outcomes that are supportive of climate
change action (Figure 6).57
However, not all ‘wins’ are due to successful human rights arguments. For exam-
ple, in Friends of the Irish Environment v the Government of Ireland the Irish
Supreme Court quashed the government’s climate change plan because it was deemed
to be inadequate vis-à-vis national climate law, not because it was inconsistent with
the protection of human rights.58 Therefore, the success of climate cases cannot be

57. Setzer and Higham (n 16). The ‘neutral’ category in climate litigation outside of the US
refers to cases that had no impact over climate action and cases that were dismissed as the
order became unnecessary. For the US, McCormick et al. analysed the outcomes of 873 cli-
mate cases between 1990 and 2016. Their study suggests there were more outcomes that
favoured anti-regulatory (309) compared to pro-regulatory positions (224), with a ratio of
about 1.4 to 1. McCormick et al. (n 29).
58. Friends of the Irish Environment v the Government of Ireland, Supreme Court, Appeal
No: 205/19, Judgment of 31 July 2020, 7.2–7.22.

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unequivocally attributed to human rights arguments. Further research should explore

in a more granular way the extent to which human rights determine the success of
climate cases.

2.5 Main trends – analysis and assessment

In 2018 Jacqueline Peel and Hari Osofsky identified a ‘rights turn’ in climate litiga-
tion.59 The turn they first detected has since significantly intensified. Our analysis of
rights-based litigation that aligns with climate objectives has revealed that the vast
majority of cases concern mitigation, target states, and are brought by citizens and
NGOs. Rights-based cases targeting corporations are still relatively rare and are typi-
cally constrained by the limited development of human rights law concerning corpo-
rate actors. Ongoing international and regional law-making processes on corporate
due diligence may soon change this state of affairs.
In the meantime, the picture of rights-based climate litigation is rapidly evolving,
with most cases pending, but with a few important milestone victories. Many of these
cases deal with fundamental questions and values and frequently have high visibility.
Therefore, their wider impacts can already be felt, even if cases remain ongoing.60
There seems to be scope for rights-based climate litigation to continue expanding
in the foreseeable future. With growing international consensus on the causes of cli-
mate change and increased evidence of its impacts, more litigation concerning climate
change adaptation and climate-forced displacement seems likely. Lessons on how to
use climate litigation most effectively and strategically are already being learned and
shared.61 This knowledge will be precious, as more countries around the world adopt
and implement dedicated climate legislation. Future climate litigation is likely to
focus more and more on the enforcement of legislation, and on state or corporate fail-
ure to meet climate targets.

3 HUMAN RIGHTS STRATEGIES IN CLIMATE LITIGATION

The literature on human rights and the environment typically characterizes rights-
based litigation according to the types of rights invoked, which in turn require states
to take different kinds of action. These distinctions entail a degree of arbitrariness
associated with the fact that typically human rights complaints do not invoke only
one human right, and/or a single type of obligation. Nevertheless, this approach to
case law analysis is routinely applied by the literature,62 in reports commissioned

59. Peel and Osofsky, ‘A Rights Turn in Climate Change Litigation?’ (n 8).
60. Anke Wonneberger and Rens Vliegenthart, ‘Agenda-Setting Effects of Climate Change
Litigation: Interrelations Across Issue Levels, Media, and Politics in the Case of Urgenda
Against the Dutch Government’ (2021) 15 Environmental Communication 699.
61. See eg Ben Batros and Tessa Khan, ‘Thinking Strategically about Climate Litigation’
(Social Science Research Network 2020) SSRN Scholarly Paper ID 3564313 <https://papers.
ssrn.com/abstract=3564313> accessed 26 August 2021; and see Lucy Maxwell et al., ‘Stan-
dards for Adjudicating the Next Generation of Urgenda-Style Climate Cases’ in this issue.
62. See eg Shelton (n 6); MR Anderson, ‘Human Rights Approaches to Environmental Pro-
tection: An Overview’ in A Boyle and MR Anderson (eds), Human Rights Approaches to
Environmental Protection (Oxford University Press 1998); Dinah L Shelton, ‘Human Rights
and the Environment: Substantive Rights’ in Malgosia Fitzmaurice, David M Ong and Panos

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by international organizations63 and human rights bodies64 when investigating how

rights-based litigation is used in the pursuit of environmental interests. This literature
also distinguishes between substantive and procedural obligations associated with the
protection of environmental interests.65
In extreme synthesis, substantive obligations – such as those associated with the right
to life, adequate housing, food and the highest attainable standard of health – require
preventative measures to avert human rights violations associated with environmental
harm, as well as remedial measures to redress such violations, once they have occurred.
Procedural obligations, instead, require access to remedies for human rights violations
associated with environmental harms, which might include monetary compensation and
injunctive relief. The right to take part in the conduct of public affairs also requires pub-
lic participation in environmental decision-making, especially by those likely to be
affected, as well as adequate access to environmental information.66
As noted above, so far the literature has made no systematic effort to ascertain what
specific human rights are invoked and what strategies are deployed in rights-based
climate litigation. This section bridges this gap, applying standard human rights categor-
izations to analyse the 112 rights-based climate cases included in the Annex. We ana-
lysed these cases examining applicants’ pleadings and adjudicatory bodies’ decisions,
as well as decisions at the appeals stage, where available. We report below the result
of our analysis, distinguishing between the defendants (state/corporate) and the types
of human rights obligations (substantive/procedural) invoked.

3.1 State actors

According to the UN Special Rapporteur on Human Rights and the Environment
(UNSR), states’ substantive human rights obligations in relation to climate change
may be divided into three main categories. First, states have positive duties to
adopt adequate measures, including legislation, concerning climate change adaptation
and/or mitigation. Second, states have positive duties to enforce legislation, and to
provide redress to those suffering from the impacts of climate change. Third, states
have negative duties to refrain from authorizing activities (such as, for example, oil
concessions) and from themselves undertaking activities that contribute to human
rights violations.67

Merkouris (eds), Research Handbook on International Environmental Law (Edward Elgar

2010); Donald K Anton and Dinah L Shelton, ‘Procedural Human Rights and the Environment’
in Donald K Anton and Dinah L Shelton (eds), Environmental Protection and Human Rights
(Cambridge University Press 2011); Boyle, ‘Human Rights or Environmental Rights’ (n 6);
Boyle, ‘Human Rights and the Environment’ (n 6).
63. See eg Council of Europe (n 18).
64. See eg Report of the Independent Expert on the Issue of Human Rights Obligations Relat-
ing to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment (OHCHR 2013)
A/HRC/25/53; and A/HRC/28/61 (n 16).
65. See sources listed in notes 62–63.
66. Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to
the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment (OHCHR 2018) A/HRC/
37/59, especially paras 16–18.
67. See Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating
to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment (OHCHR 2016)

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State obligations

Substantive Procedural

Positive Negative Access to justice Participation

Adopt legislation Enforce Refrain from Access to

legislation harmful activities information

Figure 7 States’ human rights obligations associated with climate change

States’ procedural obligations require them to assess the impacts both of climate
change and of measures to tackle climate change, and that they make such information
public. They furthermore must provide access to remedies for climate-related human
rights violations. Finally, states must facilitate public participation in decision-making
over action to tackle climate change, especially by those likely to be affected. States
must furthermore protect individuals and groups against abuse by third parties, includ-
ing business enterprises, by taking steps to prevent, investigate, punish and redress such
abuse through effective policies, legislation, regulations and adjudication (Figure 7).68
In this section, we use these categories to analyse the way in which obligations have
been invoked in rights-based litigation.

3.1.1 Substantive obligations

A total of 79 rights-based climate cases relied in whole or in part on states’ substan-
tive human rights obligations; 60 of these were filed since the adoption of the Paris
Agreement in 2015. Most of these cases rely on states’ positive duty to adopt adequate
climate legislation, and on their negative duty to refrain from adopting measures and
authorizing projects that have negative climate impacts.

3.1.1.1 Positive duty to adopt legislation In 34 cases, climate applicants pursued a

classic strategy in rights-based litigation: to demand that states take positive legisla-
tive/executive action to tackle environmental degradation that affects the enjoyment
of human rights.69 In Urgenda,70 for example, the applicants argued that substantive

A/HRC/31/52, especially pp. 16–18; Report of the Special Rapporteur on the Issue of Human
Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Envir-
onment (2019) A/74/161, pp. 17–18.
68. UN Special Rapporteur on Human Rights and the Environment, A/HRC/31/52 (n 67)
pp. 13–15.
69. Council of Europe (n 18).
70. Urgenda (n 41).

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obligations associated with human rights enshrined in international law – namely, the
rights to life and to respect for family life – impose upon states a positive duty to adopt
legislation and other measures to mitigate climate change. The Dutch courts heavily
relied on these substantive obligations as formulated and interpreted under the
European Convention of Human Rights to set the contours of the Dutch state’s
duty of care standards, finding that it had fallen short. As noted above, although
human rights arguments were peripheral to the applicants’ pleadings, they gained pro-
minence in the court proceedings and ended up being decisive on appeal and before
the Dutch Supreme Court.71
Similar strategies have been attempted in relation to adaptation. For example, in
the Torres Strait Islanders complaint pending before the UN Human Rights Commit-
tee,72 the applicants relied on Australia’s positive duties associated with the protection
of the rights to life, culture, to be free from arbitrary inference with privacy, to argue
for the adoption of legislation and other measures to adapt to the impacts of climate
change and to lament the lack of adequate action to deal with climate-related internal
displacement. In this, as in the other climate-change-related complaints before human
rights bodies, human rights play a central role.

3.1.1.2 Positive duty to enforce legislation In 15 cases, applicants relied on

another classic strategy in rights-based environmental litigation, arguing that states
cannot respect, protect and fulfil human rights while breaching environmental leg-
islation they have themselves adopted.73 In these climate cases, therefore, applicants
typically rely on states’ human rights obligations to enforce extant laws concerning
mitigation, adaptation, or both. For example, in PSB et al. v Brazil, four political
parties alleged that failure to implement Brazil’s Action Plan for the Prevention
and Control of Deforestation in the Legal Amazon had violated the right to a healthy
environment of Indigenous peoples and future generations.74 Similarly, in Leghari,
the applicant successfully argued that the Pakistani authorities had failed to properly
implement extant plans and policies concerning both climate mitigation and adapta-
tion, leading to a breach of his right to life, and, implicitly, of the right to a healthy
environment.75
In some of these cases applicants have not only requested the enforcement of
extant laws, but also the recognition of new human rights.76 For example, in IEA v
Brazil the applicants asked the court to order the government to control deforestation

71. The State of the Netherlands v Urgenda Foundation, The Hague Court of Appeal (9 Octo-
ber 2018), case 200.178.245/01; and The State of the Netherlands v Urgenda Foundation, The
Supreme Court of the Netherlands (20 December 2019), case 19/00135.
72. Petition of Torres Strait Islanders to the United Nations Human Rights Committee Alle-
ging Violations Stemming from Australia’s Inaction on Climate Change (2019).
73. See eg Council of Europe (n 18) ch 1.
74. PSB et al. v Brazil, Supreme Court of Brazil, ADPF 760 (2020).
75. Ashgar Leghari v Federation of Pakistan et al., Lahore High Court, W.P. No. 25501/
2015, Order of 4 September 2015.
76. Pau de Vilchez Moragues and Annalisa Savaresi, ‘The Right to a Healthy Environment
and Climate Litigation: A Mutually Supportive Relation?’ (Social Science Research Network
2021) SSRN Scholarly Paper ID 3829114 <https://papers.ssrn.com/abstract=3829114>
accessed 20 July 2021.

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in the Amazon, calling for the recognition of the right to a stable climate system
capable of sustaining human life as a new and autonomous dimension of the
right to a healthy environment, which is already protected by the Brazilian
constitution.77

3.1.1.3 Negative duty to prevent human rights violations In 30 climate cases, appli-
cants deployed another consolidated strategy in environmental litigation: they argued
that states should refrain from authorizing activities or adopting policies leading to
environmental impacts that in turn affect the enjoyment of human rights, such as
those to life, family life, property or to a enjoy an environment of a certain quality.78
For example, in Nature and Youth and Greenpeace Norway v The Government of
Norway,79 the applicants unsuccessfully invoked, among others, the right to a
healthy environment to challenge the Norwegian authorities’ decision to issue
new production licences for oil and gas in the Arctic. Here human rights concerns
were only peripheral in the line of argumentation pursued by the applicants, and,
rather controversially,80 did not significantly influence the thinking of the Norwegian
courts.

3.1.2 Procedural obligations

Only 14 rights-based climate cases were filed against governments, relying in whole
or in part on procedural human rights obligations. Nine of these were filed since the
adoption of the Paris Agreement in 2015. The vast majority of these cases rely on the
state’s positive duty to provide access to information, but lately cases have started to
rely also on the state’s duty to provide access to justice.

3.1.2.1 Access to information The right to access to environmental information is

frequently deployed in rights-based litigation.81 So far, 12 rights-based climate
cases have specifically relied on this right, arguing that states have a duty to assess
the impacts of both climate change and of measures to tackle climate change, and
to make such information public. For example, in Greenpeace Luxembourg v
Schneider, the applicants complained that the public authorities had failed to respond
to a request for information concerning how the national sovereign pension fund

77. Joana Setzer and Délton Winter de Carvalho, ‘Climate Litigation to Protect the Brazilian
Amazon: Establishing a Constitutional Right to a Stable Climate’ (2021) 30 Review of Eur-
opean, Comparative & International Environmental Law 197.
78. Council of Europe (n 18) ch 1.
79. Nature and Youth and Greenpeace Norway v The Government of Norway, Oslo District
Court, Summons, 18 October 2016.
80. Christina Voigt, ‘The First Climate Judgment before the Norwegian Supreme Court:
Aligning Law with Politics’ Journal of Environmental Law (forthcoming, 2021).
81. See eg Marianne Dellinger, ‘Ten Years of the Aarhus Convention: How Procedural
Democracy Is Paving the Way for Substantive Change in National and International Environ-
mental Law’ (2012) 23 Colorado Journal of International Environmental Law and Policy 309;
Jonas Ebbesson, ‘Principle 10: Public Participation’ in Jorge E Viñuales (ed), The Rio Declara-
tion on Environment and Development: A Commentary (Oxford University Press 2015).

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planned to align investments with the objectives of the Paris Agreement, and con-
cerning the climate-related risks associated with said investments.82

3.1.2.2 Participation The right to participation in environmental decision-making is

frequently deployed in rights-based litigation, particularly in Europe.83 We could
identify only two climate cases that relied solely on this right.84 In other cases, appli-
cants relied on the right to participation alongside other rights. For example, in
Friends of the Irish Environment CLG v Fingal County Council the applicants unsuc-
cessfully tried to rely on the right to participate in decision-making to challenge a
decision to grant a planning permission extension to construct a new runway at
Dublin airport.85

3.1.2.3 Access to justice We could not identify any rights-based climate lawsuits
that relied solely on the right to access to justice. In other cases, applicants relied
on this right alongside other rights. As lawsuits fail, however, applicants are more
likely to resort to higher courts or to international human rights bodies to complain
about lack of access to justice. For example, in Klimaseniorinnen, after national
courts’ refused to hear on the merits their complaints over Switzerland’s inadequate
climate policy, a group of elderly Swiss applicants complained to the European
Court of Human Rights for alleged breaches of the rights to access to justice and
to an effective remedy.86 Similarly, in Armando Carvalho and Others v The EU
Parliament and Council87 the applicants unsuccessfully argued that the refusal of
the Court of Justice of the EU to consider the merits of their complaint against EU
climate legislation had breached their right to access to justice.88

3.2 Corporate actors

As noted above, in recent years there has been a growing recognition of corporate
actors’ human rights responsibilities, 89 which has been accompanied by a rise
in human-rights-based litigation against corporations. 90 In this context, some

82. Greenpeace Luxembourg v Schneider (2016).

83. Council of Europe (n 63).
84. Namely, Ruling on Modification to Ethanol Fuel Rule and Greenpeace Canada v Ministry
of Environment.
85. Friends of the Irish Environment et al. v. Fingal County Council et al., High Court of
Ireland, Judgment, 2017 No. 201 JR, 21 November 2017.
86. Klimaseniorinnen Application to the European Court of Human Rights, November 2020
(Unreported).
87. Armando Carvalho and Others v The EU Parliament and Council Case T-330/18 (8 May
2019).
88. Armando Carvalho and Others v The EU Parliament and Council. Appeal submitted to
the European Court of Justice (2019) – dismissed.
89. See the repository compiled by the Business and Human Rights centre ‘Mandatory Due
Diligence’ (Business & Human Rights Resource Centre) <https://www.business-humanrights.
org/en/big-issues/mandatory-due-diligence/> accessed 27 July 2021.
90. See the repository compiled by the Bonavero Institute of Human Rights, Oxford Univer-
sity <https://www.law.ox.ac.uk/content/civil-liability-gross-human-rights-abuses> accessed 27
July 2021. See also Hartmann and Savaresi (n 33).

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national91 and international92 adjudicating bodies have maintained that businesses

‘must respect and protect human rights, as well as prevent, mitigate, and accept respon-
sibility for the adverse human rights impacts directly linked to their activities’.93
According to the UNSR, corporate human rights responsibilities in relation to cli-
mate change have two main facets. On the one hand, corporate actors have a respon-
sibility to reduce greenhouse gas emissions – including those produced by their own
activities and by their subsidiaries, their products and services – and to minimize
emissions from their suppliers – as well as to support, rather than oppose, public
policies intended to effectively address climate change.94 On the other hand, at a pro-
cedural level, corporate actors also have a responsibility to publicly disclose their
emissions, climate vulnerability and the risk of stranded assets; and to ensure that
people affected by business-related human rights violations have access to effective
remedies95 (Figure 8).
As we also noted above, however, rights-based climate litigation against corporate
actors remains rare. Only 16 rights-based climate cases target corporate actors. The
sample of cases is therefore significantly smaller, when compared with litigation tar-
geting states.

Corporate
responsilbity

Substantive Procedural

Access to grievance
Positive Negative Disclosure
procedures

Support climate Refrain from harmful Consultation of

Reduce emissions
policies activities affected parties

Figure 8 Corporate human rights responsibilities associated with climate change

91. See eg the decision of the Canadian Supreme Court in Nevsun Resources Ltd v Araya,
2020 SCC 5 (CanLII) (28 February 2020). This case is part of a growing global trend of
civil liability litigation against businesses for their alleged involvement in rights abuses. For
other cases, see <https://www.law.ox.ac.uk/content/civil-liability-gross-human-rights-abuses>
accessed 27 July 2021.
92. See eg the decision of the International Centre for Settlement of Investment Disputes in
Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v The
Argentine Republic, 2016, at 1993–6.
93. See eg the judgment of the Inter-American Court of Human Rights in Kaliña and Lokono
Peoples v Suriname, 2015, at 224.
94. Report of the Special Rapporteur on the issue of human rights obligations relating to the
enjoyment of a safe, clean, healthy and sustainable environment A/74/161( OHCHR 2019), at
71–2.
95. ibid.

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3.2.1 Substantive duties

3.2.1.1 Positive duty to reduce emissions In the 16 rights-based climate cases brought
against corporations, applicants typically argued that corporate actors have a positive
duty to reduce emissions, and thus to contribute to climate change mitigation.96 For
example, in Milieudefensie, a group of activists and NGOs successfully argued that
Shell should reduce its emissions and align with the temperature goal enshrined in
the Paris Agreement,97 construing the corporate duty of care and due diligence under
Dutch tort law on the basis of human rights obligations associated with the protection
of the right to life and the right to privacy. The applicants furthermore successfully
alleged that Shell has a specific duty to prevent the serious risks caused by the emissions
they generate.98 The Court specifically cited ‘the widespread international consensus
that human rights offer protection against the impacts of dangerous climate change
and that corporations must respect human rights’.99 The Court went as far as saying
that the responsibility of business enterprises to respect human rights ‘is a global stan-
dard of expected conduct for all business enterprises wherever they operate’.100 These
findings are pathbreaking, given that Shell does not have formal obligations under inter-
national human rights law.101

3.2.1.2 Positive duty to support climate policy Four rights-based climate complaints
relied on human rights recognized in national and international law to argue that cor-
porate actors have a positive duty to support, rather than oppose, climate policies and
their enforcement. In the landmark Carbon Majors inquiry carried out by the
Philippines Human Rights Commission, 102 civil society organizations lamented
human rights violations associated with the impacts of climate change, and the
responsibility of the so-called Carbon Majors for causing these. The applicants
alleged breaches of a series of human rights recognized both in national and interna-
tional law, most saliently the rights to life, to the highest attainable standard of phy-
sical and mental health, to food, to water, to sanitation, to adequate housing and to
self-determination.103 They furthermore alleged that the Carbon Majors have long
known that the use of their products substantially contributes to climate change,
which, in turn, has a significant impact on vulnerable populations. Finally, the appli-
cants claimed that, to pre-empt the adoption of measures reducing greenhouse gas
emissions, the Carbon Majors knowingly advanced or promoted misleading informa-
tion, casting doubt on the connection between fossil fuels and climate change.104 As
such, the applicants argued that the Carbon Majors should be held responsible for the

96. Special Rapporteur on Human Rights and the Environment (n 67) paras 71–2.
97. Milieudefensie v Royal Dutch Shell RB 26 May 2021, ECLI:NL:RBDHA:2021:5337,
English translation ECLI:NL:RBDHA:2021:5339.
98. See eg ibid at 4.4.37.
99. ibid para 4.1.3.
100. ibid para 4.4.13.
101. Savaresi and Wewerinke-Singh (n 34).
102. Petition Requesting for Investigation of the Responsibility of the Carbon Majors for
Human Rights Violations or Threats of Violations Resulting from the Impacts of Climate
Change (‘Carbon Majors Petition’), Republic of the Philippines Commission on Human Rights,
CHR-NI-2016-0001 (2016).
103. ibid 7.
104. ibid 57.

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human rights violations associated with the increasingly severe impacts of climate
change in the Philippines.105

3.2.1.3 Negative duty to refrain from activities causing harm In ten rights-based
climate cases against corporate actors, the applicants specifically relied on corpora-
tions’ negative duty to refrain from activities causing harm. For example, in the Car-
bon Majors inquiry, the applicants highlighted the corporate negative duty to refrain
from activities causing harm as a result of substantive obligations associated with the
protection of the right to life.106 Similarly, in Notre Affaire à Tous and Others v Total
the applicants asked the court to issue an injunction ordering Total to prevent envir-
onmental damage, which they linked to corporate human right duties under French
due diligence legislation.107

3.2.2 Procedural duties

We found only two rights-based climate complaints relying on corporate procedural
duties. Both were lodged with the National Contact Points (NCPs) established under
the Organisation for Economic Co-operation and Development (OECD) Guidelines
for Multinational Enterprises and alleged insufficient disclosure of emissions, climate
vulnerability and stranded assets. In one of these cases, a Polish NGO complained
about lack of information concerning corporate emissions and the financial impacts
of insuring coal mining in Poland. In response, the Polish NCP recommended that
the company disclose relevant non-financial information and adopt policies that
respect human rights.108 In the other case, a Japanese NGO complained that three
banks had failed to require the sponsors of coal-fired power plants to disclose infor-
mation about the projects’ emissions and measures to mitigate these.109 The appli-
cants also lamented the banks’ failure to exercise their leverage to ensure that the
communities affected by the power stations were adequately consulted during the pro-
ject development. So far, there seems to be no evidence of cases alleging breaches of
the corporate duty to provide remedies against the adverse human rights impacts they
cause or to which they contribute.110

3.3 Main trends – assessment

Our analysis of the rights invoked in climate litigation reveals that in most cases appli-
cants and courts rely on states’ substantive human rights obligations, either to take

105. ibid 61. For an analysis, see: Annalisa Savaresi and Jacques Hartmann, ‘Using Human
Rights Law to Address the Impacts of Climate Change: Early Reflections on the Carbon Majors
Inquiry’ in Jolene Lin and Douglas Kysar (eds), Climate Change Litigation in the Asia Pacific
(Cambridge University Press 2020); Savaresi, ‘Human Rights and the Impacts of Climate
Change’ (n 8).
106. Carbon Majors Petition (n 102) 42.
107. Notre Affaire à Tous and Others v Total, 2.4 and 2.3.2.
108. Development YES – Open-Pit Mines NO v Group PZU S.A. (2016).
109. Market Forces v Sumitomo Mitsui Banking Corporation, Mitsubishi UFJ Financial
Group and Mizuho Financial Group (2018).
110. Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to
the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment (2018) A/HRC/37/59.

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climate action or to avoid harmful activities. This pattern largely aligns with general
trends in rights-based environmental litigation, which typically targets states on simi-
lar grounds.111
The number of climate cases relying on the positive duty to enforce existing leg-
islation is however rising. As we noted above, with states increasingly adopting cli-
mate laws, litigation based on the enforcement of extant laws is likely to increase in
future. Similarly, litigation concerning negative duties to refrain from harmful activ-
ities, such as oil concessions and logging concessions, can also be expected to rise, as
climate considerations become streamlined into public policy and corporate practice.
Conversely, to date, comparatively few rights-based climate cases concern alleged
breaches of procedural obligations. Rights-based litigation based on procedural rights
is generally frequent, as these rights are typically used to object to activities that are
potentially harmful, as well as to react to environmental harms once they have
occurred.112 The small number of climate cases relying on procedural rights can be
explained by the fact that traditionally complaints over breaches of procedural obliga-
tions relate to actual policies and/or projects, and not to a lack thereof. Moreover,
complaints concerning access to justice typically emerge only after applicants have
had their cases dismissed. So, as climate legislation expands, complaints based on
procedural rights are likely to become more widespread, in line with established
trends in human-rights-based litigation concerning environmental interests.
The same may be said about litigation targeting corporate actors. Human rights law
and remedies are not particularly well suited to pursuing corporate actors. Their
increasing use must be viewed as part and parcel of the global movement to enhance
corporate accountability for environmental harms, which is at the centre of potentially
path-breaking law and policy developments at the regional and international level.113
The outcome of these processes is likely to determine the extent to which human
rights arguments and tools will be used in future. In the meantime, extant mechan-
isms, such as human rights due diligence legislation at the national level and
OECD National Contact Points, are likely to continue to remain the main tools
used in rights-based climate litigation against corporate actors.

4 JUST TRANSITION LITIGATION: A NEW KNOWLEDGE FRONTIER

The first studies mapping the different types of climate litigation identified the possi-
bility for ‘anti-regulatory’, ‘defensive’ or ‘anti’ cases. Markell and Ruhl used the term
‘anti-regulatory’ to describe lawsuits that aim to delay or dismantle existing or emer-
ging regulatory measures for climate change.114 Peel and Osofsky use the same term
to describe litigation which reacts to regulation that promotes climate action.115
Ghaleigh, in turn, labelled this category ‘defensive’ climate litigation, as ‘it defends
the status quo of a regulatory vacuum’. 116 Similarly, Hilson identified as ‘anti’

111. Report of the Independent Expert on the Issue of Human Rights Obligations Relating to
the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment (n 64).
112. ibid.
113. See the commentary in Hartmann and Savaresi (n 33).
114. Markell and Ruhl (n 2) 65–70.
115. Peel and Osofsky, ‘Climate Change Litigation’ (n 1) 31.
116. Navraj-Singh Ghaleigh, ‘“Six Honest Serving-Men”: Climate Change Litigation as Legal
Mobilization and the Utility of Typologies’ (2010) 1 Climate Law 31, 44.

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cases those brought against local authorities (eg contesting planning permission for
wind farms) by industry (challenging new climate laws which affect its economic
interests) or by climate change deniers.117 Little systemic knowledge exists on litiga-
tion that does not align with climate objectives.118 While climate litigation databases
report some ‘anti’ cases,119 they do not report cases where climate change concerns
are merely incidental.
The same may be said about rights-based cases that do not align with climate
objectives, which we describe as ‘just transition litigation’. In just transition litigation,
climate change concerns typically play a peripheral or even incidental role. These
complaints do not object to climate action in and of itself, but rather to the way in
which it is carried out and/or to its impacts on the enjoyment of human rights. In the-
ory, just transition litigation can be brought by individuals and groups to challenge
state and corporate actors, before national or international judicial, quasi-judicial or
non-judicial fora.
Given the lack of systemic data, it is not possible to carry out a quantitative ana-
lysis of who brings these cases, against whom, where, and on the basis of which
human rights. However, the academic and grey literature report evidence of just tran-
sition litigation targeting corporate actors and states for breaches of human rights
obligations associated with the rights of Indigenous peoples.120 For example, Indigen-
ous peoples and civil society organizations have filed a lawsuit relying on French due
diligence legislation, asking that energy company EDF be ordered to suspend the
building of a wind farm in Mexico.121 Indigenous peoples have also complained of
multiple violations of the right to free, prior and informed consent perpetrated by
Mexico in the context of processes for the approval of wind farm projects. 122
Similarly, Indigenous peoples have challenged the decision to approve solar energy
projects in the US, alleging violations of their rights to be adequately informed and
consulted under federal law.123 International human rights bodies have also received
complaints challenging measures to reduce forest emissions124 and the construction of

117. Christopher James Hilson, ‘Climate Change Litigation: An Explanatory Approach (or
Bringing Grievance Back In)’ in F Fracchia and M Occhiena (eds), Climate Change: La ris-
posta del diritto (Editoriale Scientifica 2010).
118. This knowledge gap is also flagged in Bouwer (n 46).
119. See eg the industry lawsuits section in the Columbia University database: <http://climate
casechart.com/climate-change-litigation/case-category/industry-lawsuits-state-law-claims/>
accessed 26 August 2021.
120. The Business & Human Rights Resource Centre collects dozens of human rights com-
plaints against corporate actors engaged in renewable energy generation, the recording of
which started in 2010 – see (n 11).
121. European Center for Constitutional and Human Rights, ‘Case Report – Wind Farm in
Mexico: French Energy Firm EDF Disregards Indigenous Rights’ (October 2020) <https://
www.ecchr.eu/fileadmin/Fallbeschreibungen/20201013_Case_report_EDF_EN.pdf> accessed
16 February 2021.
122. See eg: Comunidad Indígena Zapoteca De Juchitán De Zaragoza: https://prodesc.org.mx/la-
comunidad-indigena-zapoteca-de-juchitan-de-zaragoza/. Some of these complaints are reviewed
in P Velasco Herrejon and A Savaresi, ‘Wind Energy, Benefit-Sharing and Indigenous Peoples:
Lessons from the Isthmus of Tehuantepec, Southern Mexico’ (2020) 18 Oil, Gas & Energy Law
Journal (OGEL).
123. See eg Quechan Tribe v US Dept. of Interior, 755 F. Supp. 2d 1104 (S.D. Cal. 2010).
124. See eg Concluding Observations of the Committee on the Elimination of Racial Discrimi-
nation: Indonesia, CERD/C/IDN/CO/3, as adopted in Report of the Committee on the Elimina-
tion of Racial Discrimination Seventieth session (19 February–9 March 2007) and Seventy-first

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hydroelectric dams,125 alleging, amongst other things, breaches of human rights asso-
ciated with traditional land uses and culture, as well as the rights of Indigenous
peoples.
In other just transition cases, applicants have alleged breaches of the right to access
to justice, associated with the adoption of climate change legislation and projects. For
example, individuals and groups have filed complaints before the European Court of
Human Rights, alleging that public authorities’ refusal to reconsider the authorization
of wind farm projects had violated, amongst others, the rights to access to justice and
access to remedies.126 Similarly, both the UK and the EU have been found to have
breached their obligations under the Aarhus Convention, for having adopted renew-
able energy law and policy without adequate public participation.127
This litigation emphasizes the importance of safeguarding procedural and substan-
tive rights, and of protecting individuals and groups from the arbitrary and unjust
decisions of governments and corporations. Human rights bodies have already under-
scored the need to give voice to vulnerable groups who are most likely to be adversely
affected by climate policies or projects, and, as a result, risk becoming victims of
‘climate apartheid’.128 Going forward, there seems to be a clear need to collect and
systemically analyse just transition litigation. Greater understanding of this litigation
is necessary to appreciate tensions associated with the transition towards zero carbon
societies, and ways in which such tensions may be resolved.

5 CONCLUSION

This article set out to provide a more comprehensive appreciation of the role of rights-
based litigation in the context of the climate emergency. We carried out the first sys-
tematic analysis of rights-based litigation that aligns with climate objectives, revealing
main trends and patterns in this burgeoning area of legal practice. Our analysis has
delivered new knowledge over who has brought rights-based climate cases, against
whom, where, and on the basis of which human rights. We show that, at least to
date, the bulk of rights-based litigation on climate change has been brought by
civil society organizations and individuals against states, largely before national
courts, and on the basis of substantive, rather than procedural, human rights obliga-
tions. As Urgenda and other milestone victories have demonstrated, some of this

session (30 July–17 August 2007) General Assembly Official Records, Sixty-second session,
Supplement No. 18 (A/62/18). This and similar complaints are analysed in Annalisa Savaresi,
‘The Human Rights Dimension of REDD’ (2012) 21 Review of European Comparative &
International Environmental Law 102; Sébastien Jodoin, Forest Preservation in a Changing
Climate: REDD+ and Indigenous and Community Rights in Indonesia and Tanzania
(Cambridge University Press 2017).
125. See eg the complaint before the Inter-American Commission Consórcio Norte Energia law-
suit (re Belo Monte dam in Brazil) (2011). See the commentary in Andrea Schapper, Christine
Unrau and Sarah Killoh, ‘Social Mobilization Against Large Hydroelectric Dams: A Comparison
of Ethiopia, Brazil, and Panama’ (2020) 28 Sustainable Development 413.
126. See eg Fägerskiöld v Sweden ECtHR, Application no 37664/04; Vecbaštika and Others v
Latvia, ECtHR, Application no. 52499/11.
127. Findings and recommendations with regard to communication ACCC/C/2012/68 con-
cerning compliance by the United Kingdom and the European Union.
128. Special Rapporteur on extreme poverty and human rights, ‘Climate Change and Poverty’
(2019) A/HRC/41/39 para 51.

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litigation has already helped to engender a change in attitude by courts and law-
makers. Rights-based lawsuits have contributed to the momentum towards the adop-
tion of dedicated and more ambitious climate legislation.129 In future, we predict that
more rights-based litigation is likely to focus on the enforcement of this legislation,
and on the protection of procedural rights associated with it.
As both climate legislation and litigation progressively reach maturity, there will
be scope to use human rights law and remedies more widely in the quest for
means to deliver the energy transition away from fossil fuels and to protect those
most affected by it. This article has therefore highlighted the need to explore the
new frontier of rights-based litigation that does not align with climate objectives.
The tensions between the protection of rights and climate action should not be
regarded as dysfunctional. Instead, there is a genuine need to better understand the
tensions underlying just transition litigation and how to resolve them, in order to
fully realize the transformative potential of rights-based approaches for climate
decision-making.130 Such approaches are crucial to ensure that governments and
corporations take steps to address the climate emergency and its consequences in a
manner that ensures the participation of civil society and addresses inequalities.
The new knowledge frontier of just transition litigation therefore needs to be urgently
explored, to help deliver net zero emissions and an energy transition that is just and
inclusive.

ANNEX

The following lists shows the human-rights-based climate litigation analysed in the
article in alphabetical order, last update: 31/05/2021.
1. AD (Tuvalu)
2. Aji P. v State of Washington
3. Alec L v McCarthy
4. Ali v Pakistan
5. Álvarez v Peru
6. Animal Legal Defense Fund v Foster Poultry Farms
7. Armando Ferrão Carvalho v European Parliament
8. Aronow v Minnesota
9. Asociación Civil por la Justicia Ambiental v Province of Entre Ríos, et al.
10. Association for Protection of Democratic Rights v The State of West Bengal
and Others
11. Bard Campaign v Secretary of State for Communities and Local Government
12. Barhaugh v Montana
13. Blades v California
14. Carballo et al. v MSU S.A., UGEN S.A., & General Electric
15. Carballo et al. v State of the Province of Buenos Aires and the Provincial
Agency for Sustainable Development
16. Carbon Majors Inquiry

129. See Lucy Maxwell et al., ‘Standards for Adjudicating the Next Generation of Urgenda-
Style Climate Cases’ in this issue.
130. Jodoin, Savaresi and Wewerinke-Singh (n 15) 50.

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17. Center for Food and Adequate Living Rights et al. v Tanzania and Uganda
18. Chernaik v Brown
19. Citizens’ Committee on the Kobe Coal-Fired Power Plant v Kobe Steel Ltd.,
et al.
20. City of Lyon v French Deposits and Consignments Fund
21. Clean Air Council v US
22. ClientEarth v European Investment Bank
23. Commune de Grande-Synthe v France
24. Corporation of the Canadian Civil Liberties Association v Attorney General
of Ontario
25. D.G. Khan Cement Company v Government of Punjab
26. Development YES – Open-Pit Mines NO v Group PZU S.A.
27. EarthLife Africa Johannesburg v Minister of Environmental Affairs
28. Environment-People-Law v Cabinet of Ministers of Ukraine and National
Agency of Environmental Investments
29. ENvironnement JEUnesse v Canada
30. Envol Vert et al. v Casino
31. EU Biomass Plaintiffs v European Union
32. External Contribution to the French Constitutional Council to invalidate the
French Parliament’s adoption of an energy and climate bill
33. Family Farmers and Greenpeace Germany v Germany
34. Farb v Kansas
35. Fédération environnement durable et autres (Schéma régional du climat, de
l’air et de l’énergie- Schéma régional éolien)
36. FOMEA v MSU S.A., Rio Energy S.A., & General Electric
37. Friends of the Earth Germany v Germany
38. Friends of the Earth v Total
39. Friends of the Earth v UK Export Finance
40. Friends of the Irish Environment CLG v Fingal County Council
41. Friends of the Irish Environment v Ireland
42. Future Generations v Ministry of the Environment
43. Gbemre v Shell Petroleum Development Company of Nigeria
44. Greenpeace Canada v Minister of the Environment, Conservation, and
Parks; Lieutenant Governor in Council
45. Greenpeace et al. v Austria
46. Greenpeace et al. v Spain
47. Greenpeace Luxembourg v Luxembourg’s Minister of Social Affairs
48. Greenpeace Mexico v Ministry of Energy and Others (on the Energy Sector
Program)
49. Greenpeace Mexico v Ministry of Energy and Others (on the National Elec-
tric System policies)
50. Greenpeace Netherlands v State of the Netherlands
51. Greenpeace Nordic Ass’n v Ministry of Petroleum and Energy
52. Greenpeace v Secretary of State for Trade and Industry
53. Hahn et al. v APR Energy S.R.L.
54. Held et al. v State of Montana et al.
55. In re Court on its own motion v State of Himachal Pradesh and others
56. In re Vienna-Schwechat Airport Expansion
57. Institute of Amazonian Studies v Brazil

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58. Instituto Socioambiental, Abrampa & Greenpeace Brasil v Ibama and the
Federal Union
59. Ioane Teitiota v Chief Executive of the Ministry of Business, Innovation and
Employment
60. Jóvenes v Gobierno de México
61. Juliana v United States
62. Kim Yujin et al. v South Korea
63. Klimatická žaloba Č R v Czech Republic
64. Korean Biomass Plaintiffs v South Korea
65. La Rose v Her Majesty the Queen
66. Leghari v Pakistan
67. Lho’imggin et al. v Her Majesty the Queen
68. Marangopoulos Foundation for Human Rights (MFHR) v Greece
69. Maria Khan et al. v Pakistan
70. Market Forces v SMBC, MUFG and Mizuho
71. Mathur et al. v Her Majesty the Queen in Right of Ontario
72. Mbabazi and Others v The Attorney General and National Environmental
Management Authority
73. Mex M v Austria
74. Milieudefensie et al. v Royal Dutch Shell
75. Neubauer v Germany
76. Notre Affaire à Tous v France
77. Notre Affaire à Tous v Total
78. OAAA v Araucaria Energy SA.
79. Omissions of the United States
80. Pandey v India
81. Parents for Future Brazil v State Government of Sao Paulo (‘Famílias pelo
Clima v Governo do Estado de São Paulo’)
82. Partido Socialismo e Liberdade (PSOL) v Federal Union [‘Amazon Fund
Case’]
83. Partido Socialista Brasileiro (PSB) v Federal Union [‘Climate Fund Case’]
84. Petition of Torres Strait Islanders to the United Nations Human Rights Com-
mittee Alleging Violations Stemming from Australia’s Inaction on Climate
Change
85. Petition to the IACHR Seeking Relief from Violations of the Rights of Arctic
Athabaskan Peoples Resulting from Rapid Arctic Warming and Melting
Caused by Emissions of Black Carbon by Canada
86. Petition to the IACHR Seeking Relief from Violations Resulting from Global
Warming
87. Petition to the Inter-American Commission on Human Rights Seeking to
Redress Violations of the Rights of Children in Cité Soleil, Haiti
88. Philippi Horticultural Area Food & Farming Campaign, et al. v MEC for
Local Government, Environmental Affairs and Development Planning: Wes-
tern Cape, et al.
89. Plan B Earth v Secretary of State for Transport
90. Plan B Earth v The Secretary of State for Business, Energy, and Industrial
Strategy
91. PSB et al. v Brazil (on deforestation and human rights)
92. PUSH et al. v Sweden

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93. R (People & Planet) v HM Treasury (Queen’s Bench Division, Administra-

tive Court, 2009)
94. Reynolds et al. v State of Florida
95. Rights of Indigenous People in Addressing Climate-Forced Displacement
96. Ruling on Modification to Ethanol Fuel Rule
97. Sacchi v Argentina
98. Sanders Reed v Martinez
99. Sharma and others v Minister for the Environment
100. Sheikh Asim Farooq v Federation of Pakistan etc.
101. Shrestha v Office of the Prime Minister et al.
102. Sierra Club v U.S. Army Corps of Engineers
103. Sinnok, et al. v State of Alaska, et al.
104. Six Youths v Minister of Environment and Others
105. Trans Mountain Pipeline ULC v Misavair
106. UN Human Rights Committee Views Adopted on Teitiota Communication
107. Union of Swiss Senior Women for Climate Protection v Swiss Federal Coun-
cil and Others
108. Urgenda Foundation v Netherlands
109. VZW Klimaatzaak v Belgium
110. Youth for Climate Justice v Austria, et al.
111. Youth Verdict v Waratah Coal
112. Zoubek et al. v Austria
Source: All cases are available from the Grantham Research Institute on Climate Change
and the Environment at the London School of Economics at <https://climate-laws.org/>
and the US cases are available from the Sabin Centre for Climate Change Law at
Columbia Law School, at <http://climatecasechart.com/>.

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via Open Access. https://creativecommons.org/licenses/by/4.0/
https://creativecommons.org/licenses/by/4.0/

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Jhre Article p7

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Jhre Article p7

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Journal of Human Rights and the Environment, Vol. 13 No. 1, March 2022, pp.

Rights-based litigation in the climate

Keywords: climate change, climate litigation, human rights, just transition

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2 MAIN TRENDS IN RIGHTS-BASED LITIGATION THAT PURSUES

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Figure 1 Geographical distribution of rights-based climate cases

0 500 1000 1500

Figure 2 Geographical distribution of overall climate cases

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Figure 3 Chronological distribution of rights-based climate cases

All other countries US

Figure 4 Chronological distribution of overall climate cases

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As we noted, this rise in rights-based litigation arguably is a result of efforts to

2.1 The type of applicant and defendant

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2.2 The types of climate action: adaptation, mitigation and/or compensation

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The vast majority of climate litigation concerns either mitigation or a combination

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2.4 The outcomes of litigation

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Figure 5 Outcome of human-rights-based climate litigation

Unsuccessful Successful Neutral

Figure 6 Outcome of climate litigation outside the US

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unequivocally attributed to human rights arguments. Further research should explore

2.5 Main trends – analysis and assessment

3 HUMAN RIGHTS STRATEGIES IN CLIMATE LITIGATION

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by international organizations63 and human rights bodies64 when investigating how

3.1 State actors

Merkouris (eds), Research Handbook on International Environmental Law (Edward Elgar

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Positive Negative Access to justice Participation

Adopt legislation Enforce Refrain from Access to

Figure 7 States’ human rights obligations associated with climate change

3.1.1 Substantive obligations

3.1.1.1 Positive duty to adopt legislation In 34 cases, climate applicants pursued a

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3.1.1.2 Positive duty to enforce legislation In 15 cases, applicants relied on

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3.1.2 Procedural obligations

3.1.2.1 Access to information The right to access to environmental information is

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3.1.2.2 Participation The right to participation in environmental decision-making is

3.2 Corporate actors

82. Greenpeace Luxembourg v Schneider (2016).

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national91 and international92 adjudicating bodies have maintained that businesses

Support climate Refrain from harmful Consultation of

Figure 8 Corporate human rights responsibilities associated with climate change

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3.2.1 Substantive duties

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3.2.2 Procedural duties

3.3 Main trends – assessment

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4 JUST TRANSITION LITIGATION: A NEW KNOWLEDGE FRONTIER

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93. R (People & Planet) v HM Treasury (Queen’s Bench Division, Administra-

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