This section concerns what can be called “Adaptation Claims”. They are called adaptation claims because they involve bringing governments to court to demand that they take adequate adaptation measures. Adaptation concerns minimizing or avoiding the impacts of climate change (e.g. flooding due to sea level rises) by adapting to changing conditions.
These cases seek to force government to do things like building flood defences and raising the levels of dykes, choosing tree species and forestry practices less vulnerable to storms and fires, and developing drought-tolerant crops.
Consider the following checklist if you are thinking about taking an adaptation claim:
| CHECKLIST |
|---|
| 1) Is an adaptation claim right for me? |
| 2) Is there an appropriate law for me to base an adaptation claim on? |
| 3) Do I have the right to bring a claim? |
| 4) Have I identified the right defendant to take an adaptation claim against? |
| 5) Have I gathered enough evidence to bring an adaptation claim? |
| 6) Have I identified and followed the procedural steps I need to take in my claim? |
| 7) If I win, what remedies could I get? |
| 8) If I lose, is there an appeals process or a regional/international court that I can bring an adaptation claim to? |
A question to ask yourself when considering bringing a case to court is whether bringing the case is the right decision for you.
The following table of advantages and disadvantages is designed to help you consider whether an adaptation claim could be right for you:
| ADVANTAGES | DISADVANTAGES |
|---|---|
| Adaptation claims can have immediate benefits for your community, ensuring that you are better prepared to deal with climate change impacts (e.g. flood defenses). | Adaptation claims are limited to adapting to the worst climate change impacts. They don't challenge overall climate policy or push for reductions of GHG emissions. They don't do anything directly to prevent climate change. |
| Successful adaptations claims have been brought in other countries that provide useful examples for other cases. | Justiciability can still be a barrier for courts hearing adaptation claims. |
| They can raise awareness about climate change in your country. | Some countries have strict "standing" requirements which mean you have to show you are especially affected by climate change to bring an adaptation claim. |
| Adaptation claims aren't asking to change the government's general climate policy. This can help overcome justiciability arguments. | If all appeal processes are used, claims can take years. |
| You may have the option of going to a regional/international body if you don't succeed at the national level. | |
| You don't have to prove your country has contributed to climate change. This avoids issues of "causation" and can make adaptation claims more suitable for developing countries. |
If you are bringing an adaptation claim, you will usually bring a claim under human rights, constitutional or administrative law.
There are many different areas of public law. Each area prevents public bodies from doing certain things or requires them to do certain things, and provides consequences when laws are broken.
Once you have outlined the facts of your case, look at the areas of law below and see which most closely relates to your situation. Then check your national law to see what the law is in your country.
Remember:
Your legal analysis has to be supported by the evidence you have gathered. You should consider seeking legal advice. A lawyer should be able to provide advice on the options available to you and advise on your chances of success.The types of evidence you may need to support your argument will be outlined later in this section.
The specific content of these laws will change in different countries. However, below are the main types of law on which you could have a “cause of action” for an adaptation claim to be based on.
Human rights are the rights and freedoms held by every human being without discrimination. Human rights protect our basic needs and freedoms.
Human rights are contained in international human rights instruments, such as:
These rights are also often included in national constitutions and human rights laws. It is these laws that you will generally enforce in national courts.
Climate change poses a serious threat to the enjoyment and exercise of our human rights.
Key Resource: The OHCHR Study on the Relationship between Human Rights and Climate Change
This is a useful UN paper that provides an overview of the impacts climate change has on different human rights. It provides useful information for human rights-based arguments and has reference to evidence that shows how will human rights will be affected.
The following human rights are most clearly affected by climate change:
Governments have an obligation to protect human rights: This obligation requires governments to take action to prevent third parties and natural disasters from interfering with human rights.
Key Case: The Inter-American Court of Human Rights’ Advisory Opinion on the Environment and Human Rights
The IACtHR held that the obligation for States to guarantee (i.e. protect) rights under the American Convention on Human Rights included an obligation to prevent significant damage to the environment which would interfere with other rights. This obligation includes:
- A duty to establish a contingency plan for natural disasters and emergencies; and
- A duty to mitigate environmental damage that is occurring.
The IACtHR made it clear that these obligations apply to climate change.
In adaptation claims, the obligation to protect is most relevant because we are asking the government to take action to protect people from weather events which interfere with their human rights (e.g. floods, forest fires etc) even if these have not been (mainly) caused by your government.
The key point to make in human rights-based adaptation claims is that the obligation to protect certain human rights requires that the government takes protective measures to reduce the harm caused to humans by climate impacts.
In deciding which rights to base an adaptation claim on, you need to consider:
1. How does or will climate change affect my human or constitutional rights?
After you have gathered evidence about the impacts of climate change on your country or region, think about the climate impacts outlined in the introduction to this Guide and the list of rights above.
Then narrow down the most relevant rights to your factual situation. For example, if you live in a coastal area and your housing is threatened by rising sea levels, the right to property, housing or private/family life may be most relevant.
2. What human rights are legally enforceable in my country?
After you have identified the most relevant human rights, you need to check which ones are legally enforceable in your country. Although human rights are universal in principle, they may not all be recognized in a law that you can enforce.
If you want to enforce a human right in national courts, it must generally be contained in:
Example: Leghari v Republic of Pakistan (2015)
A successful case was brought against government authorities in Pakistan by a local farmer for their failure to put in place sufficient adaptation measures and the resulting damage to his livelihood.
The claim was based on the rights to life, dignity and property found in the Pakistani Constitution. The court ruled that the government had an obligation under these rights to take measures to minimise the impacts of changing weather patterns through adaptation measures.
There is also a possibility of taking a claim to enforce rights contained in an international or regional human rights treaty in an international or regional human rights body. This is discussed in Alternatives to Court.
Also, even where you are enforcing rights protected in a national constitution in national courts, the interpretation and application of that right to your case could be influenced by how similar rights are understood and enforced at the international level. For more information on how international law can be used in national courts, see What Laws Could I Enforce? in the A4J Going to Court: Q&A
Once you have identified a relevant and legally enforceable right, you need to argue that the government has violated that right. This means that it has breached the human rights obligations it owes you.
In essence, what you will be arguing is that the government’s failure to take adequate adaptation measures has violated your human rights. You do not need to argue that the government has caused the climate impacts. Rather, you are arguing that the government has not done enough to protect you from these impacts.
Example: Petition of the Torres Strait Islanders to the UN Human Rights Committee
A group of indigenous people from the low-lying islands off the coast of Australia are bringing a complaint against the Australian government. Their islands are under threat by rising sea levels caused by climate change.
Part of their argument is that the Australian government’s failure to take adaptation measures, such as building flood defences and sea walls, violates their rights to minority protection, life and private/family life under the International Covenant on Civil and Political Rights.
For this argument to be successful, you usually need to show:
In many countries, there are constitutional or public law principles which make an action or omission of a public body unlawful. Below are a few important examples:
If there is a law which requires the government to take adaptation measures and the government is failing to do this, this failure to act can be challenged as unlawful.
This law may not be framed as a “climate change law”. For example, a duty on a government to create flood defences or manage forest fires could be found in a law on natural disaster prevention. These plans and laws are highly specific to each country and even different states.
Key Source: Law and Climate Change Toolkit
This is a database of legal provisions in different countries that relate to climate change. You can use this database to find out whether there is legislation requiring your government to take adaptation measures.
Alternatively, if you find out there are no laws on adaptation or gaps in the law, this could be used to strengthen a human rights-based argument that your government is not doing enough (see above).
See also on Climate Change Laws of the World Database.
If a climate change law in your country has a specific objective, government adaptation measures under this law could be challenged if they do not further this objective.
Where a law gives the government discretion on what adaptation measures it can take, its decision in how it exercises this discretion could be challenged if you can show that it took irrelevant considerations into account or it failed to take relevant considerations into account when making its decision.
Irrationality is a principle in which a decision of a public body can be challenged if it is so unreasonable that no reasonable decision-maker could have made the decision.
This is a high threshold and would likely only be successful if a government was taking no adaptation measures or completely inadequate measures.
It may also be possible to bring a civil or private law action. A key example is negligence.
A public authority will commit negligence where its actions fall below the standard of care they owe you, and this causes harm. To bring a claim in negligence, you DO NOT need to show the public authority intended or wanted to cause the injury. It is usually enough that they acted carelessly or unreasonably.
To hold a public authority liable in negligence for a failure to take adaptation measures, you usually have to show that:
1. The public authority owes you a duty of care
This means that the public authority must meet a standard of expected care. When arguing that a public authority owes you a duty of care relating to climate adaptation, you may need to show that:
2. The duty of care has been breached
This means the public authority did not meet the expected standard of care.
3. The action that breached the duty of care caused the harm that your claim is based on
It does not generally matter that the public authority did not cause the flood as long as you can show that but for the public authority’s failure to act, the harm occurred.
Example: Burgess v Ontario Minister of Natural Resources and Forestry A group of property owners around the Muskoka Lakes in Canada brought a claim against the government ministry that was responsible for managing the water levels of the lakes.
Since 2010, due to climate change, the property owners’ lands began to be severely affected by flooding of the lakes. They argued that the Ministry had a duty to prevent foreseeable flooding, the Ministry knew that the lakes had reached dangerously high levels, yet negligently allowed the lakes to flood, which in turn damaged their lands.
The claim was discontinued in 2018.
These claims can be difficult because:
Check the law in your country and whether similar sorts of cases have been brought in order to see whether this type of claim could be successful.
To be able to bring a constitutional, public law or human rights claim, you must have “standing” (i.e. the legal right to bring a claim).
The following types of people can often have standing to bring public claims. But you have to check this in your country’s legal system.
Claims can often only be brought by the person who has been harmed when a national law is broken (this is particularly the case for human and constitutional rights cases). In adaptation claims, this would be a person who has been or will be affected by the specific climate impact which the government hasn’t taken adaptation measures to protect the people from.
In some countries, you have to show that you will be affected in a way that is different or worse than how it will affect other people. In adaptation claims, this special impact could be because of:
Some jurisdictions permit multiple affected individuals to be represented collectively by a claimant. These actions may be called a “group”, “collective” or “class” action.
Example: Burgess v Ontario Ministry of Natural Resources and Forestry
The group bringing the claim argued they had standing because they were all individuals who lived beside the lake that was flooding and whose property had been damaged. This was a specific group who were harmed in a way that was different to the rest of the Canadian population.
In some countries, groups or individuals that have an interest in a particular issue can bring a case that involves that issue even if they are not personally affected.
For more information, see Who Can Take Legal Action?
For adaptation claims, the appropriate defendant could be:
Example: Leghari v Federal Republic of Pakistan
The case was brought against a number of defendants, including:
- The central government of Pakistan;
- Central government ministries, such as the ministry of climate change, the ministry of water and power, and the natural disaster management authority; and
- Provincial government departments in the state of Punjab, such as the department of irrigation, the department of agriculture, and the disaster management department.
It may also be possible to take similar claims against private actors who are responsible for not ensuring your community was prepared to withstand climate impacts. These are not claims against the government, but may increase the efficiency of measures to protect citizens from the effects of climate change.
Focus Point: Secondary Liability Claims
This term is sometimes used in relation to liability of those who do not themselves contribute to climate change but fail to fulfil responsibility to reduce its effects, such as engineers who build inadequate flood defences or fire breaks or housebuilders whose houses will not withstand storms.
These claims are similar to adaptation claims as they relate to the failure to protect people from climate impacts. However, as they are not brought against public bodies, they have to rely on areas of law such as negligence (see above). As the consequences of climate change become more evident (and more foreseeable) this type of litigation may increase.
Example: St. Bernard Parish v US Army Corps of Engineers
The case was brought after Hurricane Katrina caused serious flooding in New Orleans in 2005. The claim was brought on the basis that the Defendant failed in its duty to protect residents against flooding, because it had not ensured that the flood defences were high enough and strong enough. The claim initially succeeded. Although the decision was reversed on appeal on the facts, it remains an illustration of the type of claim that could be pursued.
For more information, see Who Can I Sue?
Like all claims, you need to gather evidence. You need to have a set of facts that describes what happened and supports what you are arguing.
When you’re bringing an adaptation claim, you will generally need evidence to support 4 different things:
You will need to provide evidence that:
Useful and publicly available sources of evidence were outlined in Climate Litigation Basics.
When presenting evidence on climate impacts, you should focus on the particular climate impact that affects you and your community.
To show this, you will often need evidence that shows what action should have been taken to protect against a specific climate-related harm. For example:
You have to find out what the government’s adaptation policy is and to what extent it has been implemented.
Practical Tip: Freedom of Information Requests
If information in the government’s possession isn’t publicly available, you could make a freedom of information request to find out about a government’s policy or position is in an area.
For more information, see Access to Information.
Finally, to have a case, government policies and actions will have to fall short of what they should have done. This can be shown by comparing the adaptation measures that government has actually taken with the reports/recommendations above. For example:
For more information, see How Can I Prove My Case?
The specific loss or damage that you have suffered, are suffering or will likely suffer as a result of climate change needs to be detailed. This may include:
The specific loss and damage your claim is based on needs to be consistent with and supported by the climate science on the impacts of climate change on your country or region. It will also be helpful to demonstrate how that harm could have been avoided or mitigated by adaptation measures.
Practical Tip: Sources of Evidence
Useful evidence to demonstrate personal loss, injury and damage include:
- Witness statements from yourself and people in your community/group who have been affected by climate change impacts;
- Photographs, videos and satellite images;
- Environmental samples from the local area demonstrating environmental harm;
- Local scientific, university, NGO/CSO and government reports, and an expert witness which corroborates the harm claimed by witnesses; and
- News reports of extreme weather events in the area.
If an adaptation claim is brought in the general public interest or individual harm is not required for standing, loss and damage to a specific individual does not have to be shown. However, general evidence of actual or potential harm related to climate change and an absence of adaptation measures will be important to show the inadequacy of government policy.
This evidence also needs to relate to the legal basis of your claim. It is not enough to show that climate change affects you and that your government hasn’t taken adaptation measures. The evidence has to support your legal argument that your government’s failure to take adaptation measures corresponds with the breach of a legal obligation. See the sub-section above for examples of what the legal basis of your claim could be.
Adaptation claims are usually taken in national administrative or constitutional courts.
The procedure that you have to follow will depend on whether you live in a “common law country” or “civil law country”. The law in your country will outline a judicial review, constitutional petition or amparo process, so that you can bring a claim to the courts and the court may review the situation and provide a remedy.
Focus Point: Limitation Periods
A limitation period imposes a time limit within which a claimant may bring a case. The limitation period depends on the precise cause of action and will dictate the amount of time you have to file your case in court. If you do not file your case within the relevant limitation period, you may be prevented from bringing the claim.
Research the law in your country to determine the relevant limitation period for your claim. You will also need to identify when the time starts running for the limitation period. Time may start running from one of the following:
- The date the harm occurred (e.g. when a forest fire occurred);
- The date you learned about the harm; or
- The date the government made the specific policy decision or took an action that you are challenging.
In climate cases, it can be argued that there is “continuing harm” because the threat of climate change and the government’s failure to take sufficient action are ongoing. In some systems, the time limit will not begin to run where the harm in continuing.
It may also be possible to apply for the limitation period to be extended.
Generally, you will have to meet the following requirements to bring a constitutional or administrative claim:
Write a formal letter to the proposed defendant setting out the proposed claim and what you wish to achieve. A response is usually requested from the defendant.
Submit your "claim form" to court within the required "time period" (there is usually a number of months of years after the incident within which you must file your claim).
Present your grounds for the claim to the court, which will be shared with the defendants. This document can be referred to as a "statement of claim", "statement of case", "particulars of claim" and "complaint". This then have to be shared with or "served" on the defendant.
In some countries, you have to apply for permission to bring a public law claim. This is a process where your claim is vetted to see if it's credible or has reasonable prospects of success before the defendant has to respond. The defendant can present arguments at this stage. In other countries, the claimant does not have to apply for permission but the defendant can make an application to dismiss the case or apply for summary judgment. The court will then decide whether the case is sufficiently credible or has reasonable prospects of success in order to decide whether to allow it to continue.
Defendants will then have a chance to explain their position. They can either accept all or part of your claim, or deny your version of events in full. This document is known as the "defence".
You and the defendant may be asked to share the evidence you are relying with each other. If you are using witnesses, you will usually need to include what they are going to say in a "witness statement" or "affidavit".
At the hearing, you will present your arguments, including a review of the key evidence already likely filed with the court, witnesses may give oral evidence and can be questioned by the lawyers. The court then makes its decision.
The losing party generally will have the right to appeal this judgement before a higher court.
Focus Area: Complaints to Regional and International Human Rights Bodies
If your claim is based on human rights, in some countries there is also the option to bring your case to a regional or international human rights body if you have been unsuccessful in national courts.
For more information, see Individual Complaints to Regional and International Human Rights Bodies.
If you bring a successful adaptation claim against the government in human rights, constitutional or public law, you could get the following “remedies”:
Declaratory judgements are decisions where a court simply finds that the government has acted unlawfully but doesn’t tell them what to do.
If you believe your government has not properly enforced a declaratory judgement, you can go back to the court and ask them to define and enforce their judgement.
If a court finds that the government has violated its obligation to protect, it may order the government to do the things it should have done. If you can get a court order, this can make the process of enforcing your judgement easier.
In adaptation claims, a court order could require the government to create an adaptation policy, implement an existing adaptation policy or take specific adaptation measures. In some countries, courts could remain involved in ensuring that adaptation measures are taken.
Example: Leghari v Federal Republic of Pakistan
After finding that the government’s failure to take adaptation measures to protect the Claimant from floods violated his constitutional rights, the court ordered government ministries to:
- Nominate «a climate change focal person» to help ensure the implementation of the national policy on climate adaptation; and
- Present a list of action points to the court for when they would take specific adaptation measures.
The court also created a Climate Change Commission composed of representatives of key ministries, NGOs, and technical experts to monitor the government’s progress.
In 2018, a report from the Climate Change Commission noting that 66% of the priority adaptation measures had been implemented (including flood defences).
It is important to remember that the affected individuals and communities should lead on deciding which remedies are appropriate, as opposed to NGOs or lawyers. Consider the community impacts of each possible remedy.
If you want more information: