When Politics Fails, Courts Step In

The Scale of the Shift

Climate litigation has moved from a legal curiosity to a mainstream governance instrument. According to the UNEP and Sabin Center's Global Climate Litigation Reports, the number of cases worldwide grew from 884 in 2017 to 2,540 by 2023 — more than a threefold increase in six years. In 2023 alone, over 200 new climate-related cases were filed against governments and private companies. Europe has been the hub of rights-based framework cases, accounting for more than half of global filings, but the expansion into the Global South has accelerated significantly.

This is not incremental legal reform. It signals that when political and market mechanisms fall short, a growing coalition of plaintiffs — NGOs, municipalities, youth groups, Indigenous communities, and states — is turning to the judiciary as a last resort, and sometimes winning.

Four Legal Strategies

Climate litigation is not a single legal theory. Practitioners have developed several distinct approaches, each with its own logic, strengths, and limits.

1. Human rights-based claims

The most influential strategy links climate inaction to the violation of existing human rights. Under the European Convention on Human Rights, Articles 2 (right to life) and 8 (right to private and family life) have been held to impose enforceable state duties to mitigate climate change. Advisory opinions issued in 2025 by both the Inter-American Court of Human Rights and the International Court of Justice have further articulated how international human rights law intersects with environmental law to support climate claims and, potentially, reparations.

2. Right to a healthy environment (REBA)

A related but distinct approach argues not from traditional human rights but from an emerging right to environment-based approach. Rather than showing that climate harms violate rights to life or privacy, REBA grounds cases in the environment itself as a protected subject. This approach has gained particular traction in Europe and Latin America, where courts have begun to recognize that adequate environmental protection is intrinsic to human dignity — not a side effect of protecting it.

3. Corporate duty of care

The Urgenda logic — that climate action is a matter of legal duty — has been extended to private corporations. In 2021, the Hague District Court ordered Shell to reduce its CO₂ emissions by 45 percent by 2030 compared to 2019 levels: the first time a court imposed an enforceable emissions reduction duty on a private company. However, the Dutch Appeals Court overturned that ruling in 2024, a reminder that corporate climate liability remains contested and unsettled.

4. Public trust doctrine

The public trust doctrine holds that governments are trustees of certain shared resources on behalf of the public. Historically applied to navigable waters and tidelands, the doctrine has been expanded by courts and legal scholars to encompass the atmosphere and climate system as resources held in common trust. Several U.S. states — including Hawaii, Montana, and Pennsylvania — have woven public trust protections into their constitutions. Some courts have found that failure to protect a stable climate implicates constitutional due process rights.

5. Rights of nature

The most radical departure from conventional legal frameworks is the rights of nature movement, which seeks to recognize ecosystems, rivers, and species not as property but as rights-bearing subjects with standing in court. This approach draws heavily on Indigenous cosmologies of the natural world. Recent landmark rulings include: Germany's Erfurt Regional Court deriving rights of nature from the EU Charter of Fundamental Rights (2024); India's Supreme Court declaring a pollution-free environment a fundamental right (2024); and Peru's courts recognizing the Marañón River as a subject of rights (2024).

Attribution Science: Linking Emissions to Harm

One persistent challenge in climate litigation is causation. To win in tort law, a plaintiff typically needs to show that a specific defendant caused a specific harm. Climate change is inherently diffuse — how do you trace a flood or a heat wave to a particular government's policy or a corporation's emissions?

Attribution science has emerged as the methodological bridge. Recent advances in extreme event attribution allow scientists — and by extension, lawyers — to quantify the degree to which human-caused emissions made a specific weather event more likely or more severe. This has become a critical tool for establishing standing and satisfying causation tests.

The tension, however, is structural. Science operates in probabilities and confidence intervals. Law demands clear causation. This epistemological gap between scientific uncertainty and legal certainty requirements continues to create obstacles, particularly in tort cases where plaintiffs need to attribute specific harms to specific defendants.

Annotated Case Study: Urgenda Foundation v. The State of the Netherlands

The first time any court in the world ordered a government to strengthen its climate action based on human rights obligations.

Background. In 2013, the Urgenda Foundation, a Dutch environmental NGO, filed suit against the Dutch government, arguing that its climate targets were inadequate and violated citizens' rights under the European Convention on Human Rights.

2015 District Court ruling. The court agreed. It ordered the Dutch government to reduce greenhouse gas emissions by at least 25 percent below 1990 levels by 2020 — substantially more ambitious than the government's existing commitments. The legal basis was Articles 2 and 8 of the ECHR: the right to life and the right to private and family life impose positive duties on states to protect citizens from foreseeable threats.

2019 Supreme Court confirmation. The Dutch Supreme Court upheld the ruling, confirming that human rights law creates enforceable obligations to take climate action. This made Urgenda the first case in which a supreme court confirmed such an obligation.

Why it matters. The Urgenda precedent directly inspired climate cases in Belgium, the Czech Republic, France, Germany, Ireland, South Korea, Switzerland, and the United Kingdom. Its core argument — that ECHR rights create justiciable, concrete duties to cut emissions — has been replicated, adapted, and extended in subsequent litigation across multiple legal systems.

The limits. Even a landmark ruling depends on implementation. The effectiveness of climate litigation hinges not just on winning in court but on monitoring and enforcing what follows. A court order is a beginning, not an outcome.

Boundary Conditions

Litigation is a powerful tool — and a constrained one. Understanding where it works, where it struggles, and who it tends to exclude is essential for assessing its role in climate governance.

Where litigation works

• When political processes are blocked, captured, or simply too slow, courts offer an independent avenue for demanding action.
• Precedents travel across borders. A ruling in the Netherlands shapes arguments in Germany, South Korea, and beyond.
• The cross-jurisdictional influence of court victories accelerates the diffusion of stronger legal norms faster than treaty negotiations typically allow.

Where litigation struggles

Enforcement is the hard part. Winning a case does not automatically translate into emissions reductions. Courts can issue orders; they cannot run government ministries. Monitoring compliance and returning to court if governments fail to act adds years to the timeline and resource burdens to plaintiffs.

Corporate liability is unsettled. The Shell case illustrated both the potential and fragility of corporate duty-of-care claims. The 2021 District Court ruling was historic. The 2024 Appeals Court reversal was a significant setback. The legal doctrine remains actively contested.

Attribution science hits epistemological walls. For tort claims, plaintiffs need to link specific harms to specific actors. Attribution science is advancing rapidly, but the mismatch between probabilistic science and legal proof standards for causation remains unresolved in many jurisdictions.

Who gets left out

As of May 2023, climate litigation had expanded to twenty Global South jurisdictions — a meaningful shift — but Indigenous communities pursuing cases still face inadequate funding, lack of awareness of legal options, and in some contexts, direct threats and intimidation.

The irony is stark: the communities with the most direct, existential stakes in climate outcomes often face the highest barriers to accessing the legal systems that are supposed to protect them.

Thought Experiment

The Urgenda ruling compelled a government to act on climate by invoking its own citizens' existing human rights. But climate change is globally distributed — the emissions causing harm to Pacific Island communities or the Sahel come overwhelmingly from wealthier, higher-emitting countries.

Suppose attribution science reaches a point where it can precisely quantify the contribution of a specific country's cumulative emissions to a specific climate event — a flood that destroyed villages in Bangladesh, a drought that collapsed crops in Mozambique.

• Should courts in high-emitting countries be required to hear cases brought by citizens of lower-emitting countries who have suffered harm?
• What happens to the concept of state sovereignty when the "harm" crosses borders and spans decades?
• The International Court of Justice issued an advisory opinion in July 2025 articulating how international human rights law applies to climate obligations. Advisory opinions are non-binding. Does that matter? Should it?

There is no clean answer. But working through this scenario forces you to grapple with the structural tension at the heart of climate litigation: the legal systems we have were designed for contained, bilateral, domestic disputes. Climate change is none of those things.