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Courts protecting the planet - is litigation overtaking legislation in the Climate Emergency?

Courts around the world are increasingly becoming forums to mobilise action by governments and organisations on climate change, where domestic legislation and policy-making falls short.

Climate change litigation against governments is on the rise, and the cases are as diverse as the natural environments they seek to protect. This article touches on actions brought by islanders in West Timor relating to an oil spill, and by the inhabitants of the Torres Strait Islands, facing forced migration because the islands are sinking as a result of climate change. In Europe, the UK courts have recently found against the government in the widely reported Heathrow terminal case, where the court found that the planning documents failed to take into account the government's own policy on climate change, including the UK's obligations under the Paris Agreement, a document not transcribed into domestic law.

Despite the varied subject matter of this litigation, these cases have something in common. Judges are not shying away from relying on international agreements, human rights conventions and other supra-national laws as the basis for their decisions, rather than limiting themselves to the domestic legislation available. By doing so, judges worldwide are inspiring each other to set precedents for the idea that governments owe a duty of care to their current and future inhabitants, and must put in place minimum standards to prevent future harm. Rather than focusing on culpability for damage caused, there is a growing focus on placing responsibility on states for their share of the contribution to climate change, and on identifying what that responsibility entails; whether a commitment to emission reduction targets or the undertaking of adaptation measures.

As climate litigation grows in the public arena, private sector polluters and financial institutions such as banks and insurers are likely to find themselves also held accountable for how their CEOs' and boards' decisions impact on the Climate Emergency. Failure to have a robust climate policy in place could in time, be a cause of action that organisations find themselves defending.

With COP26 delayed due to the Covid-19 pandemic, and disappointment at the progress made at COP25 in Madrid, perhaps strategies will turn away from political negotiations, and towards the courts, for the protection of our planet.

the increase of attention on climate change means that, if governments fail to take robust measures in the coming years, the responsibility of CEOs and corporate boards are likely to be taken rapidly to the legal level, financial institutions, banks and insurers may well be targeted, and that organisations such as central banks will become more and more demanding of robust policies on climate change, which could also result in further litigation

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