COP26 Briefing | Spotlight on climate change legislation and litigation during COP26

Partner Nigel Brook took part in a major event in Glasgow during the COP26 climate summit looking at developments in – and the effectiveness of - climate change legislation, litigation and the rule of law. He joined a list of distinguished speakers from around the world, including Europe, the US, Brazil, Singapore, Korea, Guyana and Bangladesh.

High-profile event highlighted the breadth and impact of claims

The high-profile event was hosted by the Strathclyde Centre for Environmental Law and Governance, the LSE Grantham Research Institute on Climate Change, and the IUCN World Commission on Environmental Law.

An opening plenary saw representatives from the Environmental Law Institute and the National University of Singapore among others giving perspectives on the relationship between legislation and litigation, and how they can both help implement the Paris Agreement.

Three parallel panel sessions followed. On the first panel, exploring trends in domestic litigation and the new and powerful cases being launched against governments and businesses, Nigel Brook was joined by speakers including from the Climate Observatory in Brazil.

The second panel included a prominent barrister, a youth climate activist and a representative from the Center for International Climate Law discussing the extent to which international courts are suited to deal with climate change.

The third examined key elements of an effective framework to translate commitments into legislation, including the emerging practice of ‘climate constitutionalism’, with views from ClientEarth and the European Bank for Reconstruction and Development.

In the final plenary, delegates reflected on the impact of litigation on tackling climate change, touching on how effectiveness should be defined, whether litigation is going in the right direction and how successful it is in achieving the desired outcomes.

Driving debate forward, sharing best practice and exploring new legal theories

Across these sessions, key issues debated included:

• The creativity being used in climate litigation arguments, from the rise of human rights claims to the possibility of extra-territorial litigation or lawsuits between companies
• The extent to which findings in one case/jurisdiction are replicable in others
• The emergence of litigation in the global south and the importance of cases making an immediate, tangible difference to people on the ground
• Potential conflicts of rights and duties, for example nations’ duty to mitigate climate change versus companies’ rights under existing trade agreements
• Challenges of enforcement to ensure compliance is real, not nominal
• The unintended consequences of compliance, such as divested assets being bought by other companies with lower ambitions on emissions reduction
• What constitutes a “successful” case in terms of measuring impact and achieving climate justice
• The importance of robust legislative frameworks including sector-specific legislation to drive investment
• The role of contracts to create the economic relationships required to enable net zero transition

“It’s vital for policy-makers and business-leaders to understand these issues, so that they can close the ambition gap and influence behaviour, and minimise the risk of being sued,” says Brook. “Climate change litigation has its limitations, but we’ve also seen some momentous outcomes achieved through the courts. I was delighted to be involved in this debate around what’s happening in different parts of the world and sharing best practice and new legal theories.”

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