CLA News / Borneo Rainforest Law Conference session report: Strategic climate litigation

Julien Kavaruganda, CLA council member for Rwanda, chaired this interesting panel.

Fiona McLeod of Australia expanded on her earlier  plenary views about the challenges in litigating climate change cases. These issues  include the need for significant human and financial resources to conduct the litigation, the informational asymmetry between the parties (particularly corporations of government) who control the information/misinformation needed in the litigation)  and the issue of who has standing to litigate.

The solutions include obtaining litigation funding , seeking that penalties which are assessed being directed toward litigation funding, and considering orders  sheltering the plaintiff/ applicant from costs orders.

Other impediments to climate litigation include the cab rank rule (does a lawyer have to act for a defendant corporation in an environmental case?) and the ability of ‘deep pocket’ defendants/respondents to use the litigation process itself through interlocutory and other litigation tactics, including   delay  to increase costs and further delay in any decision for the party seeking relief.

Roger Chan Weng Keng of Malaysia  described the small island states‘   approach in joining  together and the success they have had with a ‘ strength in numbers’ approach. One   example Roger referred to was a situation where a jurisdiction  for litigation was chosen  which was likely to provide the most the most favourable result, and which included moving within that jurisdiction for  litigation funding for the plaintiffs.

Finally, Yasmin Batlivala of Advocates  for International Development  (A4ID) described her organization’s work, which facilitates climate justice litigation by connecting people with lawyers or experts in their jurisdiction who may act pro bono.

Laurie Pawlitza

CLA Vice President Americas