24
• Litigation brought before public bodies to ban specific energy-intensive projects
(permitting litigation);
• Litigation brought against private entities to seek remediation for climate-related
damages (liability litigation).
Common hallmark to all these patterns of litigation is its close intertwining with
the long-standing deal of findings provided by climate science. Sound scientific
evidence has clearly enhanced social and institutional awareness about the inadequacy of the current system—at the international, as well as national level—to
ensure a meaningful reduction of GHG emissions by major emitting countries and
companies. Hence, while fostering certainty as to the actual anthropogenic contribution to climate change, climate science spurred the outbreak of lawsuits mainly
directed at holding public entities accountable for their climate commitments
(Markell and Ruhl 2012). Moreover, the scientific knowledge about specific attribution of historical—as well as present—GHG emissions worldwide is rapidly gaining ground. Therefore, the target of climate litigation is shifting towards holding
private emitters responsible vis-à-vis civil society for knowingly jeopardizing the
climate through their economic activities (Duffy 2009).
As meritorious and bold such claims may be, they have faced several setbacks
due to manifold legal barriers arising in different legal and political contexts.
Against this backdrop, this contribution aims to strengthen the view that strategic
use of climate science may substantially contribute to a deference shift in the judicial approach towards climate change claims.
This contribution goes as follows. Section 2 highlights the most relevant subsets
of climate science as relevant for the selected climate litigation cases. Section 3
analyses how such scientific evidence has been successfully invoked in three climate cases belonging to each of the above branches of climate litigation: Urgenda
Foundation v. The Netherlands (pro-regulatory litigation); Gloucester Resources v.
Minister for Planning (permitting litigation); Lliuya v. RWE (liability litigation).
Building on the case studies, Sect. 4 briefly concludes yielding the main argument
of this chapter, namely that climate science holds a prominent role in the uptake of
judicial rule-making in the climate arena.
2 What Climate Science in Climate Litigation?
From a climate science perspective, detection of human caused climate change and
attribution of climate change-related events are scientific terms that provide tools
for the lawyer’s task of showing the existence, causes and effects of climate change
(Allen 2011; French and Pontin 2016, p. 11). Oddly enough, however, a little effort
has been devoted thus far to a more qualitative appraisal as to how climate science
indeed plays out in climate litigation (Setzer and Vanhala 2019, p. 580). Yet, while
climate change lawyers need not be scientists, they need to understand the application of science, in terms of its uses and limits. For the purposes of this contribution,
three subsets of climate science acquire relevance as presented in Court: (1) GHG
M. Fermeglia
• Litigation brought before public bodies to ban specific energy-intensive projects
(permitting litigation);
• Litigation brought against private entities to seek remediation for climate-related
damages (liability litigation).
Common hallmark to all these patterns of litigation is its close intertwining with
the long-standing deal of findings provided by climate science. Sound scientific
evidence has clearly enhanced social and institutional awareness about the inadequacy of the current system—at the international, as well as national level—to
ensure a meaningful reduction of GHG emissions by major emitting countries and
companies. Hence, while fostering certainty as to the actual anthropogenic contribution to climate change, climate science spurred the outbreak of lawsuits mainly
directed at holding public entities accountable for their climate commitments
(Markell and Ruhl 2012). Moreover, the scientific knowledge about specific attribution of historical—as well as present—GHG emissions worldwide is rapidly gaining ground. Therefore, the target of climate litigation is shifting towards holding
private emitters responsible vis-à-vis civil society for knowingly jeopardizing the
climate through their economic activities (Duffy 2009).
As meritorious and bold such claims may be, they have faced several setbacks
due to manifold legal barriers arising in different legal and political contexts.
Against this backdrop, this contribution aims to strengthen the view that strategic
use of climate science may substantially contribute to a deference shift in the judicial approach towards climate change claims.
This contribution goes as follows. Section 2 highlights the most relevant subsets
of climate science as relevant for the selected climate litigation cases. Section 3
analyses how such scientific evidence has been successfully invoked in three climate cases belonging to each of the above branches of climate litigation: Urgenda
Foundation v. The Netherlands (pro-regulatory litigation); Gloucester Resources v.
Minister for Planning (permitting litigation); Lliuya v. RWE (liability litigation).
Building on the case studies, Sect. 4 briefly concludes yielding the main argument
of this chapter, namely that climate science holds a prominent role in the uptake of
judicial rule-making in the climate arena.
2 What Climate Science in Climate Litigation?
From a climate science perspective, detection of human caused climate change and
attribution of climate change-related events are scientific terms that provide tools
for the lawyer’s task of showing the existence, causes and effects of climate change
(Allen 2011; French and Pontin 2016, p. 11). Oddly enough, however, a little effort
has been devoted thus far to a more qualitative appraisal as to how climate science
indeed plays out in climate litigation (Setzer and Vanhala 2019, p. 580). Yet, while
climate change lawyers need not be scientists, they need to understand the application of science, in terms of its uses and limits. For the purposes of this contribution,
three subsets of climate science acquire relevance as presented in Court: (1) GHG
M. Fermeglia