11.1 Introduction

Since 2005, dozens of human rights claims have been brought against governments for their failure to adequately mitigate and adapt to the impacts of climate change.Footnote ¹ These claims are supported by a growing body of climate change detection and attribution research, which demonstrates that climate change is already occurring, that the harmful impacts are manifest and not merely speculative, and that those impacts can be traced, at least in part, to the government defendant’s policies and conduct.

There are several interrelated streams of attribution research, specifically: (i) climate change attribution, which examines how human activities are affecting the global climate system; (ii) impact attribution, which examines how changes in the global climate system affect other interconnected natural and human systems; (iii) extreme event attribution, which examines how changes in the global climate system affect the frequency, magnitude, and other characteristics of extreme events; and (iv) source attribution, which examines the relative contributions of different sectors, activities, and entities to global climate change.

The current body of research shows that anthropogenic climate change is already having pervasive impacts across the world, and there is a robust body of evidence linking human-induced changes in the climate system to broad trends such as global atmospheric and marine warming, slow-onset impacts like sea level rise, and heat-related extreme events. The confidence in attribution findings tends to be lower when examining trends and changes at a smaller geographic or temporal scale, attributing non-heat extreme events, and attributing specific human injuries to climate change.

We have previously written on how attribution research has been used to support claims of causation, injury, and justiciability across a wide range of different types of litigation.Footnote ² In this chapter, we discuss how parties in recent human rights cases are using this research to frame government mitigation and adaptation obligations. These cases provide a vehicle for exploring two issues not addressed in our previous work, specifically the role of attribution science in supporting, or defending against, claims based on (i) violations of community rights, as compared with individual rights; and (ii) failures to adapt, as compared with failures to mitigate.

11.2 Protecting Individual and Collective Rights

Most of the human rights proceedings challenging government inaction on climate change have been initiated by groups of individuals and nongovernmental organizations (NGOs) seeking to enforce government obligations with respect to individual rights, such as the rights to life, health, and private and family life.Footnote ³ Some of the most recent proceedings deal specifically with the rights of children and women, as individuals in these groups tend to be more vulnerable to and disproportionately affected by climate change.Footnote ⁴ For example, in Sacchi v. Argentina, sixteen children filed a petition alleging that Argentina, Brazil, France, Germany, and Turkey have violated their rights under the UN Convention on the Rights of the Child (“CRC”) by failing to implement adequate climate change mitigation and adaptation measures.Footnote ⁵

Various proceedings have also been initiated on behalf of communities that are adversely affected by climate change.Footnote ⁶ These include, for example, a complaint submitted on behalf of five tribes in the United States asking UN Special Rapporteurs to investigate and issue recommendations on the obligations of federal and state governments to address forced displacement as a result of climate change,Footnote ⁷ a Canadian lawsuit filed by members of an Indigenous group alleging that the Canadian government’s approach to climate change has violated their constitutional and human rights,Footnote ⁸ and a lawsuit initiated by a French municipality against the French government for its failure to take meaningful action on climate change.Footnote ⁹ While all three proceedings deal with community-level impacts and the obligations of governments with respect to communities, the petition to the UN Special Rapporteurs specifically alleges violations of collective rights of Indigenous communities – specifically those laid out in the UN Declaration on the Rights of Indigenous Peoples, the UN Guiding Principles on Internal Displacement, the Pinheiro Principles, and the Peninsula Principles.Footnote ¹⁰ In particular, that petition alleges violations of the tribes’ collective rights to self-determination, cultural heritage, subsistence and food security, safe drinking water, physical and mental health, and an adequate standard of living.Footnote ¹¹

One potential advantage of community petitions – particularly those based on collective rights – is that it may be easier to prove that climate change is causing damage at the community scale as compared with the individual scale. This is because evidence of attribution tends to be more robust when looking at impacts on a broader geographic and temporal scale, for example, when looking at impacts on Indigenous land holdings and natural resources. Moreover, for extreme events, attribution research has shown that climate change increases the frequency and/or severity of many types of events, but the research is not always able to draw firm conclusions as to whether climate change caused or contributed to a specific event. When dealing with event frequencies and probabilities, the bigger the area and longer the time frame, the larger the climate signal. And when dealing with impacts, the greater the number of people impacted, the easier it is to establish a causal connection to the events.

For example, the IPCC has expressed high- and medium-confidence in research linking climate change to increases in the frequency and severity of wildfires in certain regions,Footnote ¹² and recent studies have been able to quantify the impacts of climate change on the 2017 wildfire season in CanadaFootnote ¹³ and the 2019/2020 wildfire season in Australia.Footnote ¹⁴ It is arguably more difficult to ascertain the effects of climate change on the characteristics of a specific wildfire and individual harm arising from that fire – there are many confounding factors, such as fire suppression and fuel loading, which complicate the causation analysis at this level of granularity.Footnote ¹⁵ Thus, an individual claimant may have a tougher time proving that personal injury from a fire, such as loss of property or life, can be attributed to climate change (i.e., that it would not have occurred in the absence of anthropogenic influence on climate). However, an Indigenous community could more readily prove that its collective rights to self-determination and “the conservation and protection of the environment and the productive capacity of their lands or territories and resources”Footnote ¹⁶ have been adversely affected by a regional increase in wildfire frequency and/or severity over time.

There are ways to overcome downscaling challenges in proceedings that involve individual rights. Many jurisdictions allow NGOs to file petitions on behalf of the public interest or large groups of individuals; and in such proceedings, it is generally sufficient to show that there is actual harm or a genuine threat of harm to the group as a whole without proving harm to any specific individual. For example, in Urgenda v. Netherlands, a case brought by the NGO Urgenda on behalf of Dutch citizens, the Dutch Supreme Court found sufficient evidence of harm where it was “clearly plausible that the current generation of Dutch nationals, in particular but not limited to the younger individuals in this group, will have to deal with the adverse effects of climate change in their lifetime if global emissions of greenhouse gases are not adequately reduced.”Footnote ¹⁷ Petitioners can thus rely on the statistical probability of harm across broad segments of the population to support their claims in such cases.Footnote ¹⁸

For proceedings brought on behalf of smaller groups of named individuals, such as the CRC petition, it may be necessary to show that one or more of the named petitioners is harmed or at imminent risk of harm as a result of climate change. The CRC petition focuses on the general impacts of climate change on children, but it also discusses the specific experiences of named petitioners with respect to (i) extreme events such as floods, windstorms, wildfires, heat waves, and droughts; (ii) impacts on “the subsistence way of life” for children from Indigenous tribes; and (iii) increased exposure to diseases such as malaria and dengue fever.Footnote ¹⁹ This case is similar to that of Juliana v. United States, where youth plaintiffs alleged that the US government violated their constitutional rights by failing to take adequate action on climate change, citing impacts such as lost income on a family farm, lost income at a ski resort, and asthma attacks from the increased frequency of forest fires.Footnote ²⁰ The Ninth Circuit Court of Appeals found that the alleged harms were sufficiently concrete and particularized to survive summary judgment, but it dismissed the case on other grounds, and so there was no decision on the adequacy of the evidence presented to support these claims.Footnote ²¹

The government respondents in the CRC proceeding have argued that the petitioners only alleged generalized harms and failed to substantiate their claims of individual injury.Footnote ²² (Similar arguments were made by the government defendants in Juliana.) This raises an important question about whether and under what circumstances claimants can draw reasonable inferences about individual harm based on regional or community-level impacts. Arguably, such inferences would be more credible where (i) the impact on the individual cannot be fully explained by other factors, and (ii) there are no other tools or data available that would provide stronger proof of the causal nexus between the regional/community-scale impact and individual harm. Consider a petitioner who alleges that her asthma has been exacerbated by the increase in wildfire smoke caused by climate change: she could submit medical documentation of her asthma diagnosis and evidence that wildfires are more frequent due to climate change and then infer that her asthma is (or will be) exacerbated by the wildfire smoke. But her argument would be strengthened if she also submitted medical documentation showing that her asthma was, in fact, exacerbated at the time of the wildfires. Granted, this level of proof is not required in all cases: legal standards and evidentiary requirements will vary depending on the tribunal and claims raised, and it may be unnecessary to prove individual harm with such precision in rights-based cases, particularly those involving communities and the public at large.

Ultimately, there are other factors that may have a greater influence on the evidentiary strength of claims than the question of whether plaintiffs are seeking to defend collective or individual rights. For example, the nature of the alleged injuries is important: an individual that is forced to leave their home due to a long-term trend in sea level rise could potentially establish a more robust causal connection between their injuries and climate change than a community that experienced losses due to a single extreme event. Attribution research is also constantly evolving, particularly with regards to advances in extreme event and impact attribution, and this will likely give greater confidence to statements about attribution of individual harm in future years. Nonetheless, even at this time, many impacts at both the community and individual levels can be attributed to climate change with high confidence, and fairly robust claims can be made about the statistical probability of harm across large groups, broader geographic areas, and longer time frames.Footnote ²³

11.3 Addressing Mitigation and Adaptation Obligations

There are at least two types of government obligations that may be the focus of a human rights petition: (i) the obligation to mitigate GHG emissions and other contributions to climate change and (ii) the obligation to adapt to the impacts of climate change.Footnote ²⁴ Almost all of the human rights petitions filed to date have cited government failures to mitigate emissions as the primary basis for legal action.Footnote ²⁵ Some of these petitions include allegations of inadequate adaptation measures putting people at risk of harm, but these allegations are typically a small part of the overall case. There are a few petitions where adaptation obligations have featured more prominently alongside mitigation obligations or where they were the sole basis for the legal claim.Footnote ²⁶ The US tribal petition to the UN Special Rapporteurs is an example of the latter, as it deals exclusively with the obligations of government actors to address the effects of climate-forced displacement on tribes residing on the coastlines of Louisiana and Alaska.Footnote ²⁷

Both types of claims fall under the same human rights instruments and therefore share common legal elements: petitioners must show that the government has a legal obligation to protect human rights and that it has breached this obligation by undertaking a course of action (or inaction) that has interfered and/or foreseeably will interfere with the petitioners’ fundamental rights. Thus, similar to a tort claim, petitioners must prove the existence of the obligation, a breach, an actual or prospective injury, and causation.Footnote ²⁸ However, the evidence required to support these elements differs considerably depending on which obligation is at stake.Footnote ²⁹

11.4 Conclusion

Attribution research plays an integral role in the development and interpretation of legal claims involving human rights, government obligations, and climate change. As detailed in this chapter, the overall body of research is already fairly robust and capable of supporting claims brought on behalf of both communities and individuals, as well as claims related to both mitigation and adaptation obligations. There are still gaps and limitations in the research, but it does not appear that scientific constraints have posed or will pose a major impediment to rights-based litigation. The body of case law is still relatively small, and many petitions are currently underway. Scientific debates may factor more prominently in future trials, particularly those involving the rights of small groups of individuals as opposed to communities or the public interest at large, and novel scientific questions may arise in both the failure-to-mitigate and failure-to-adapt contexts. At the same time, the scope of the research is expanding, and the techniques used are being refined. We can expect that the evidentiary basis for rights-based climate litigation will become increasingly robust in the years to come.

This chapter traces the evolution of thought on who is responsible for the climate crisis from the early science of the nineteenth century to today’s Paris Agreement to oil and gas companies’ commitments to reducing the carbon intensity of their supply chains. I discuss the science of attributing the lion’s share of historical carbon dioxide emissions since 1750 to individual oil, gas, coal, and cement companies; the industry’s climate denial, obfuscation, and greenwashing; and the emergence of litigation holding fossil fuel companies accountable for climate damages. I conclude that fossil fuel companies bear substantial responsibility for the severity of the climate crisis and the decades-long delay in effective action by nations, consumers, commerce, industry, and, most of all, by oil, natural gas, and coal producers themselves to decarbonize at the scale and speed now required to avert dangerous interference with the climate system.

12.1 Introduction

The science of climate change grew primarily out of two strands of thought: one, the search for the mechanisms for the observed climate swings, sea level changes, stratigraphy, evolution of life, geologic history of the earth, and glaciations that were coming to light in the 1800s and two, the science of atmospheric physics, the behavior of gases, and the relationship between the atmosphere and the weathering of rocks.

The radiative properties of carbon dioxide (CO₂) were discovered by Eunice Foote in 1856, advanced by John Tyndall,Footnote ³ and studied by Svante Arrhenius in the 1890s.Footnote ⁴ Arrhenius, despite his careful work on calculating the atmospheric sensitivity of carbon dioxide, thought that fossil fuels (predominantly coal in the 1890s) had a minor role in CO₂ variability. He dismissed the idea that future fossil fuel use could double the atmospheric CO₂ content: there simply weren’t enough recoverable carbon fuels in the world at the time, and that level of production and consumption was, in his day, unthinkable.

The science emerging in the 1900s on the importance of CO₂ was dismissed by the Royal Meteorological Society as having “no appreciable effect on the climate” – foreshadowing disbelief (still alive among climate denialists) that human activities could have any appreciable impacts on Mother Nature – but later confirmed by Guy Callendar in the 1930s.Footnote ⁵ Confirmation of the predominant role of human emission sources came later.

With respect to the causes of human-caused climate change, this chapter is primarily concerned with the sources of warming and the behavior of greenhouse gases, chiefly carbon dioxide and methane associated with fossil fuel combustion, and secondarily with humanity’s impacts on the natural carbon cycle through, for example, deforestation, permafrost melting, ice loss, and albedo changes.

Early measurements of atmospheric carbon dioxide were sporadic and regional. Reliable global monitoring began in 1958 with Charles Keeling’s continuous readings at the Mauna Loa volcano in Hawai’i.Footnote ⁶ The iconic “Keeling Curve” is one of the most significant scientific accomplishments of the twentieth century, and it helped raise scientific awareness of rising CO₂ concentrations, human impacts on the Earth’s atmosphere, and the sensitivity of global temperatures to minor perturbations in the atmospheric concentration of CO₂. While CO₂ concentrations are low (0.04 percent of the atmosphere), the gas is the chief regulator of global temperatures and, once perturbed, is potent enough to awaken an “angry beast.”Footnote ⁷

12.2 Sources of Greenhouse Gases

These “minor” perturbations in CO₂ concentration have involved large-scale mobilizations of resources, investment of trillions of dollars, the extraction and combustion of approximately 580 billion tons of fossil fuels since the mid-1700s, and trillion-ton terraforming visible from space for infrastructure, mining, and material movement. Cement production and energy-related carbon dioxide and methane comprise 72 percent of global anthropogenic emissions. Other sources include CO₂ from land use and deforestation (approximately 11 percent); methane from animal husbandry, agriculture, and decomposition of organic wastes (approximately 9 percent); nitrous oxide (approximately 6 percent); and fluorinated compounds (approximately 2 percent).

Now we know that the future Arrhenius couldn’t fathom has come to pass: global fossil fuel production in the mid-1890s generated emissions of 1,535 million tons of carbon dioxide (MtCO₂), which by 2018 had risen twenty-two-fold to 33,730 MtCO₂.Footnote ⁸ Such an explosive expansion of fossil fuel production brought unparalleled prosperity, allowed the global population to grow by 480 percent, and ultimately led per capita carbon emissions to rise from 0.95 tCO₂ in 1896 to 4.5 tCO₂ in 2018. This expansion of energy use vastly improved our access to basic necessities such as shelter, food, sanitation, and well-being. But it also perpetuated economic and racial inequality, environmental injustice, poverty, hunger, disease, and fossil fuel racism,Footnote ⁹ among a host of other problems (see Figure 12.1).

Figure 12.1 Global CO₂ emissions from fossil fuel use, cement production, and flaring, 1890

In the early carbon age, there was little concern for the environmental, societal, or climatic impacts of fossil fuel production and use. It wasn’t until the 1950s that global industrialization and environmental change began to be recognized as imperiling humanity’s prospects; Harrison Brown’s The Challenge of Man’s Future in 1954 and, later, Rachel Carson’s Silent Spring (1962) and Club of Rome’s Limits to Growth (1972) shed light on the clash between unrestrained growth and the planet’s ability to sustainably provide food and materials without threatening the web of life on which humans depend. These concerns, which gained prominence in the 1960s, and the awareness of the dangers of unfettered industrialization led to the Earth Day demonstrations of 1970 and emboldened President Nixon and Congress to pass environmental legislation and create the Environmental Protection Agency.

As Morris Udall (US Congressman from New Mexico) said in 1974, “farsighted scientists, businessmen, economists, and public servants are beginning to realize that there is a better, safer way than blind, unlimited growth. And that is to limit growth now before the problem reaches crisis proportion.”Footnote ¹⁰ Udall was speaking of US oil reserves and potential new discoveries and pointing out that exponential growth made the scale of our reserves irrelevant in the long run, chiefly because environmental impacts would limit growth. Indeed, fossil fuel reserves have far exceeded safe climate limits for decades.Footnote ¹¹

With respect to the threat of climate change, the scientific community as well as the petroleum industry began to issue early warnings in the 1950s. In 1959, Columbia University and the American Petroleum Institute (API) convened a meeting organized for the centennial of Edwin Drake’s discovery of oil at Titusville, Pennsylvania in 1859. Physicist Edward Teller, best known for his role in the Manhattan Project and an “out of the box” thinker on the civilian use of atomic devices for energy production, was asked to comment on “energy patterns of the future.” He warned the audience of 300 leading academics and oil industry executives that fossil fuels “contaminate the atmosphere” and that “when the temperature does rise by a few degrees over the whole globe, there is a possibility that the icecaps will start melting and the level of the oceans will begin to rise.”Footnote ¹² That seed of recognition of the consequences of fossil fuel use – that their continued use would threaten the viability of companies engaged in the production and distribution of carbon fuels – was thus planted decades ago.

Oil and gas company scientists and trade associations also researched the effects of carbon dioxide emissions and carbon uptake by the oceans. Company executives were duly warned that the continued use of fossil fuels would destabilize the global climate and pose an existential threat to fossil fuel producers. US and international Academies of Science weighed in with commissions and reports studying the severity of the threat of global warming, including, notably, the Charney report (1979), which were preceded and followed by scientific investigations, a warning to Congress by President Johnson’s Science Advisory Committee, academic studies, international commissions, and so on.Footnote ¹³ (This is a bare summary; interested readers can follow the thread here.)Footnote ¹⁴

As the science on the climate threat became incontrovertible, the world responded with the creation of the Intergovernmental Panel on Climate Change (IPCC) in 1988. Scientist Jim Hansen’s riveting testimony before the Senate Energy and Natural Resources Committee in June 1988, cleverly timed by Senator Tim Wirth to coincide with a heat wave and conducted with the hearing room’s cooling system turned off, finally brought the issue to public attention.Footnote ¹⁵

12.3 International Climate Negotiations in Response to Global Warming

As diplomats are wont to do with a global problem, an international effort to address climate change was launched in the late 1980s/early 1990s with climate negotiators, analysts, and scientists from most of the world’s 196 nations, pursuant to the objectives of the UN Framework Convention on Climate Change (UNFCCC 1992) and focused on the responsibilities and obligations of national governments. This focus on controlling territorial consumption and emissions ignores the world’s pan-national carbon producers, discussed below.Footnote ¹⁶

The Framework Convention defines responsibility for climate change and the burden of mitigating the climate crisis “on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof.”Footnote ¹⁷ Responsibilities for ameliorating climate harms are thus chiefly accorded to the parties that benefited the most from historical fossil fuel use and emissions. The Framework Convention eventually led to the development of the 2015 Paris Agreement at the twenty-first meeting of the Conference of the Parties (COP). Signatories to the Paris Agreement agreed to submit plans for their Nationally Determined Contributions (NDCs), which would contain commitments to reduce national emissions in accordance with the global commitment to limit the global temperature increase to two degrees Celsius, and, if feasible, “well below” two degrees Celsius above pre-industrial surface temperature by mid-century.

This global initiative, along with the IPCC’s Assessment ReportsFootnote ¹⁸ and Special Report on 1.5°C,Footnote ¹⁹ are crucial to making progress on reducing still-increasing global emissions toward net zero by 2050, without significant overshoot.

Other analysts have pointed out that nations should take responsibility for consumption-based emissions that occur in countries from which they import goods, services, and energy commodities (whose operational emissions are attributed to the producer nation).Footnote ²⁰ International agreements, while crucial, have thus far failed to curb emissions (it took a pandemic to peak emissions, if the downturn is sustainable).Footnote ²¹ The “emissions gap” remains wide, and NDC commitments are falling short of what is required to fulfil the objectives of the Paris Agreement.Footnote ²²

Can consumers, companies, or state and local governments fill the gap where nations fail?

12.4 Non-State Actors and ResponsibilityFootnote ²³

The concept of responsibility includes private parties as well as national governments.Footnote ²⁴ Consumers have pursued emission reductions, cutting their consumption of carbon fuels and fossil-based electricity. Electric utilities, airlines, and large companies generate significant emissions of carbon dioxide, and most large public companies measure and report operational emissions using corporate inventory protocols.Footnote ²⁵ Most Fortune 500 companies and thousands of mid-sized companies report direct and indirect operational emissions to platforms such as CDP and the Global Reporting Initiative, and most publish corporate sustainability reports. Nearly one thousand companies have committed to meet or exceed the Paris Agreement’s “well-below 2°C” target and “to pursue efforts to limit warming to 1.5°C.”Footnote ²⁶ Thousands of cities have also committed to climate action. Yet emissions keep rising.Footnote ²⁷

The emphasis in the greenhouse gas protocol is to report on and thereby acknowledge a degree of responsibility for direct and indirect operational emissions (scope 1 and scope 2, respectively). For fossil fuel companies, in particular, emissions from oil, gas, and coal products sold to and emitted by their worldwide customers (scope 3) are reported voluntarily and, hence, without a commensurate sense of responsibility. Since their carbon fuel products are their largest source of attributed emissions, this, too, is changing, and fossil fuel companies are taking notice.

Corporations have stepped up their game in recent years,Footnote ²⁸ pushed by the urgency of the IPPC’s “1.5°C Report,” the Task Force on Climate-Related Financial Disclosures, the keen interest of investors, the potential stranding of billion-dollar reserves, divestment campaigns, campaigns to keep carbon in the ground, virulent demonstrations, and the emergence of Greta Thunberg as humanity’s climate conscience.

The fiduciary responsibility of corporations – previously limited to maximizing financial returns to shareholders – has been broadened by Business Roundtable’s “Statement on the Purpose of a Corporation,” investors such as BlackRock urging the full disclosure of climate-related risks and holding directors to account, the requirements of the Task Force on Climate-Related Financial Disclosures, the divestment decisions of Norway’s Sovereign Wealth Fund, corporate reputational concerns, the need to preserve their social license to operate, and the threat of climate litigation, just to name a few of the motivating developments that have helped raise the pressure on oil and gas companies to align with the Paris Agreement.

Other companies, including electric utilities, have stepped up their ambition. What about the fossil fuel companies at the base of the global supply chain for carbon fuels? What responsibilities do they have?

12.5 The Responsibility of Fossil Fuel Producers

By the mid-2010s, there was little choice for fossil fuel producers but to acknowledge their fundamental responsibilities for the impacts of their carbon fuels and the need to address the climate crisis largely caused by their products. Indeed, BP and Shell acknowledged as much in the 1990s.Footnote ²⁹ (American companies, in contrast, invested millions of dollars to disinform Congress and the publicFootnote ³⁰ in order to delay action to curb production.) Whether any oil and gas company is fully prepared for the decarbonization of the world’s energy economy remains to be seen, but Eni, TotalEnergies, BP, Shell, Repsol, Galp, and Equinor have made substantial commitments, in alignment with the Paris Agreement, to reduce operational and product-related emissions by mid-century.Footnote ³¹ Whether leading companies can be trusted to drive decarbonization remains to be seen.Footnote ³²

Fossil fuel companies extract, refine, and market the carbon fuels that, when used as intended, contribute the largest share (87 percent of all CO₂ from fuels, cement, and land use, and 62 percent overall) of all greenhouse gas emissions that drive atmospheric warming and climate change. Seven-eighths of emissions attributed to carbon producers result from the use of their products – gasoline, diesel, jet fuel, natural gas, and coal – and one-eighth from the extraction, refinement, and delivery of finished fuels.

Oil, natural gas, and coal companies have benefited for decades from hundreds of billions of dollars in government subsidies for fossil fuel development, as well as regulatory preferences such as lax pollution controls, favorable leasing terms for resource extraction on public lands, other taxpayer-funded costs, such as naval protection for shipping lanes, and health costs of energy-related pollution.Footnote ³³ Fossil fuel companies are the beneficiaries of what economist Nicholas Stern has called the “greatest market failure the world has seen,” whereby the profits have been privatized and the costs and damages have been externalized.

Fossil fuel and cement producers had early knowledge that their products would destabilize the climate and thus bear a moral responsibility to address the impacts caused by the use of their products. Rather than taking action to ameliorate the harms, these companies have continued to invest in additional reserves and production, funded campaigns to disinform the public in order to delay legislative action, and sought to perpetuate the carbon economy — as if the consequences didn’t matter.Footnote ³⁴

12.6 The Carbon Majors Project: Attributing Emissions

On the theory that fossil fuel producers bear substantial responsibility for the adverse impacts of their products,Footnote ³⁵ the Climate Accountability InstituteFootnote ³⁶ began, in 2004, to investigate how much the largest oil, gas, and coal companies have contributed to global CO₂ and methane emissions and thus to climate change. An extensive database of each company’s historical fossil fuel production was created, using company-declared production data, and a methodology to quantify atmospheric emissions was documented and peer-reviewed. The project quantified both direct operational emissions (scope 1) and product-related emissions (scope 3) from each entity’s annual fossil fuel production, deducting for net non-energy uses such as petrochemicals, road oil, and lubricants. Initial results were published in 2014.Footnote ³⁷ Results were then updated to 2017 when published in The Guardian and updated to include 2020 production data in Table 12.1.Footnote ³⁸

We found that the top twenty companies collectively produced the fuels that when used as intended dumped 493 billion tons of CO₂ and methane (GtCO₂e) into the atmosphere from 1965 to 2020, or 35 percent of all global fossil fuel emissions in that period (1.49 trillion tCO₂e, TtCO₂e). Table 12.1 shows company emissions as a percent of global fossil fuel and cement emissions over the same period.

The oil, gas, and coal companies, unsurprisingly, take a dim view of our perspective that they bear substantial responsibility for the climate impacts, costs, and damages caused by the use of their products. While they do not challenge the basic findings (the estimates are based primarily on their own production data, after all), their responses range from “we are fulfilling our customers demand for energy” and “we support climate action/we’re reducing our own carbon footprint” to “people in developing countries should be allowed to have the benefits of clean fuels, too.” What else can they say? That carbon fuels are legally sanctioned products and that they invested heavily in lobbying to perpetuate the carbon economy, restrain renewable energy development, and retain market share?

Suffice it to quote from seventeenth century legal scholar, Antoine Loysel: “He who can but does not prevent, sins.”

12.7 The Carbon Majors: Attribution and Legal Implications

Attributing source emissions is the first crucial step in attributing climate impacts. In a co-authored 2017 paper, we modeled the rise in atmospheric CO₂ concentration, surface temperature, and sea level attributable to the emissions traced to the leading carbon producers.Footnote ³⁹ In 2019, we modeled the major companies’ impact on the acidification of the world’s oceans and vulnerable fisheries.Footnote ⁴⁰ These climate models account for non-anthropogenic greenhouse gases as well as emissions from other human sources, such as deforestation, carbon from soils, and non-energy sources of methane (rice cultivation, landfills, and animal husbandry) and nitrous oxide.

There are other ways of attributing climate impacts to major carbon producers. In preliminary research using a simple land inundation model, CAI estimated that of the 10,000 km² of land lost to sea level rise from 1980 to 2010, nearly 3,700 km² can be attributed to the twelve largest carbon producers. The largest land loss (approximately 600 km²) is attributed to Saudi Aramco; ExxonMobil’s attributed land loss is approximately 380 km².Footnote ⁴¹ Most of this coastal inundation is in remote, sparsely populated areas, but the preponderance of economic damages are to low-lying buildings, industry, and infrastructure. We have not (yet) calculated the economic losses attributable to carbon producers (see Figure 12.2).

Figure 12.2 The arc of CAI’s work from attributing emissions to carbon producers, modeling their impact on the global climate, and contributing to efforts to hold companies accountable for climate damages

It is far more challenging to link the emissions traced to individual fossil fuel producers to anthropogenic climate damages.Footnote ⁴² It is not simply a proportional exercise in which each oil, gas, and coal company’s historical emissions (e.g., Chevron’s 3.0 percent of global CO₂ and CH₄ emissions since 1965) are used to allocate adaption costs or reparations (such as to an Atmospheric Recovery Trust Fund)Footnote ⁴³ to fossil fuel companies. As discussed above, other parties contribute to emissions and thus bear some responsibility for climate change, including individual consumers (both living and dead)Footnote ⁴⁴ as well as nations, airlines, corporations, and electric utilities, to name a few. Fossil fuel emissions are the major, but not the sole, contributor to anthropogenic climate change; deforestation, animal husbandry,Footnote ⁴⁵ agriculture, soil loss, desertification, the thermal impacts of our cities and highways, and even albedo changes must be accounted for in considering how to allocate damages among contributing parties, whether defendants or not.

As a first step toward allocating climate damages to carbon producers, we analyze estimated global GDP losses from anthropogenic climate damages out to 2050 totaling $99 trillion and allocate climate reparations of $5.5 trillion to the twenty largest oil, gas, and coal producers based on their atmospheric CO₂ and methane contributions from 1988 to 2018, after accounting for non-energy contributions, other gases, and other responsible parties.Footnote ⁴⁶

These results are of interest to climate litigators, Loss & Damage proponents, human rights commissions, financial analysts, insurers and lenders, shareholders, regulators, scientists, and fossil fuel company executives and boards. CAI’s work is cited in several climate lawsuits against major carbon producers in the United States and internationally, as well in human rights investigations.Footnote ⁴⁷ The science of detection and attribution is improving rapidly,Footnote ⁴⁸ and we can with increasing confidence link emissions to higher degrees of risk and higher incidences and degrees of damages. In other words, we can better link emissions to human interference with the climate system – the human fingerprint on rising climate damages.Footnote ⁴⁹ For more on attribution science and climate litigation, see Michael Burger, Jessica Wentz, and Daniel Metzger’s chapter in this volume (Chapter 11).

Fundamentally, however, fossil fuel producers have failed to “clean up their mess” and are morally obliged to limit future emissions and impacts in line with the science. As Henry Shue puts it:Footnote ⁵⁰

12.8 Conclusion

Some entities are more responsible than others, and it is my contention that oil and gas and coal producers bear substantial responsibility, not only for climate damages and adaption costs but also for a moral (and perhaps legal) mandate to accelerate the decarbonization of the global energy economy. Some companies are reacting positively to this challenge: Repsol, the Spanish oil and gas major, committed to net zero emissions by 2050 across its full supply chainFootnote ⁵¹ and other majors are moving in that direction, led by BP,Footnote ⁵² Royal Dutch Shell,Footnote ⁵³ Eni, and Equinor.Footnote ⁵⁴ Their ambitions, however, may not be sufficient.Footnote ⁵⁵

The writing is on the wall. Carbon emissions must, if we are to preserve global civilization as we know it, decline rapidly to net zero by mid-century. This requires a massive transformation of the global energy system, the decommissioning of plants, drilling platforms, pipelines, refineries, mines, boilers, vehicles, aircraft – all manner of carbon infrastructure – and the creation and deployment of a new (though less massive) infrastructure to capture, store, transport, and permit the use of emerging renewable energy systems. It also requires the investment of trillions of dollars and the deployment of ingenious, efficient new systems.Footnote ⁵⁶ This transition should not only be the burden of the nations of the world and their taxpayers but also, in substantial part, the fossil fuel companies that have willfully prolonged this transformation.

In this writer’s view, this transition has been inevitable for decades,Footnote ⁵⁷ and we have squandered precious time, skirted our responsibilities, and shifted the costs to our children. Major fossil fuel companies understand their role and the existential importance of leading the transition to a low-carbon economy. It is my hope that the companies – and countries – that lead will prosper and that the laggards will get out of the way.

13.1 Introduction

Courts are critical – but often overlooked – components of the global response to the climate emergency. Courts are crucial because judicial proceedings are particularly apt to address long-term challenges, such as climate change, where the most severe impacts will only be felt by the next generations. Constitutionally guaranteed independence and impartiality releases judges from the pressures of short-term political gain or special interests’ lobbies. At the same time, judgments are legally binding and enforceable. In many instances, addressing climate change through courts is also legally uncontroversial because they focus on violations of existing law, even if applied to different contexts.

To make more and better use of courts to address the climate emergency, a few hurdles need to be overcome. Notwithstanding recent examples of successful strategic climate litigation and law enforcement, laws and regulations that could be used to address some of the key causes of climate change have still not been enforced sufficiently for this purpose. This applies, for instance, to illegal deforestation, the direct and illegal harm caused by the extraction and use of fossil fuels, and to methane emissions from oil and gas, from coal mining and from landfills. Enquiries with prosecution and police authorities suggest that this is mostly because they do not have access to the high quality information and support that would enable them to trigger and conduct effective proceedings with the means available to them. Similarly, the authorities indicated that NGOs not only need to bring more strategic climate litigation cases, but they must also do so based on strong evidence. Judicial climate action – whether enforced through criminal, administrative, constitutional, or civil courts – can only be successful if it is based on relevant and probative evidence. Generally, this evidence must establish that a person (natural or legal) engaged in illegal conduct or caused an illegal harm. The lack of access to high quality information establishing those facts prevents police, prosecutors, and courts from fully exploiting their collective potential to enforce laws capable of addressing the climate emergency.

This problem can be fixed. Recent developments in information and communication technology have created new and unprecedented possibilities for private organizations and individuals to generate, access, verify, and disseminate information. This allows NGOs and private citizens to trigger and support judicial proceedings. In fact, even if they do not have investigative powers like a government authority, they can still employ some information collection and analysis techniques more effectively than government authorities. This is because, collectively, they have more people to carry out such tasks, more immediate and direct access to certain kinds of information, more diverse expertise, and the ability to share relevant information swiftly and across borders without being restricted by jurisdictional limitations or narrow procedural rules. If mobilized in a coordinated and strategic way, NGOs and private citizens can bring stronger and more frequent cases before judicial authorities.

The Center for Climate Crime Analysis (CCCA) – to which the author of this chapter belongs – is a group of prosecutors and law enforcement professionals aiming to harness the collective potential of investigative NGOs and experts to support climate action. By collecting and analyzing all necessary information in collaboration with a broad and diverse network of partners, and by sharing that information with the competent law enforcement authorities or advocacy organizations, CCCA seeks to support and scale up judicial and other advocacy action against illegal activities related to climate change.

The following sections will identify the under-enforcement of laws relevant to discrete sources of greenhouse gas (GHG) emissions as the underlying problem; demonstrate how recent developments in information and communication technology (ICT) and related sociological developments enable a proposed solution; show how, through coordinated action, investigative NGOs, expert organizations, and private citizens can effectively support climate relevant law enforcement, litigation, and advocacy action; and illustrate the practical application of the proposed solution on the basis of a case study focusing on illegal deforestation and its drivers.

13.2 The Problem

While most GHG emissions are legal, a significant share results from, or is associated with, conduct that violates existing laws. National law enforcement authorities are therefore already equipped with the necessary statutory authority to effectively address some of the driving causes of climate change. For instance, virtually every country around the world criminalizes or otherwise outlaws, in one way or another, conduct that causes large-scale environmental damage or environmental degradation where it directly impacts the health and the lives of people.

Currently, however, national laws are inadequately enforced in these areas, resulting in a law enforcement gap. This prevents national law enforcement authorities from fully exploiting their vast collective potential to address some of the causes of climate change. While some observers suspect that this gap may be the result of a lack of political will to enforce the law more rigorously, this is not the real reason for the relatively low number of climate relevant cases, especially not in functioning democracies. Instead, the law enforcement gap in climate relevant cases is primarily the result of the following factors.

First, for any form of law enforcement or litigation to be successful, it must be based on credible and reliable evidence through which the allegations can be substantiated to the required standard of proof. No matter how ingenious an applied legal theory may be, legal action will fail unless the underlying facts are proven. In practice, however, the competent authorities often lack access to the high quality information and support that would enable them to conduct effective investigations and proceedings with the means available to them. This is particularly the case where some or all the required information can only be obtained by investigating conduct that occurred abroad. While law enforcement authorities could obtain such information through mutual legal assistance from foreign authorities, the underlying proceedings are often lengthy, cumbersome, and ineffective.

Second, national law enforcement authorities must frequently balance competing priorities with the limited means available to them. This means that ‘hard’ cases or cases based on fact-patterns or legal theories that fall outside the general practices of an authority, even if strategically significant, fail to get the attention they deserve.

And third, there is not enough coordination among national law enforcement authorities to address the illegal causes of climate change. While the authorities of different countries are well coordinated and cooperate effectively in some areas – for instance in combating terrorism or organized crime – no such coordination is apparent in the fight against the illegal causes of climate change.

Efforts by investigative NGOs to trigger law enforcement action in areas such as environmental destruction do not achieve the desired result. This is because the quantity and quality of the information provided by them is often not enough for the law enforcement authorities to overcome the above challenges. Many NGOs conduct investigations with the aim of supporting public advocacy, instead of legal enforcement, which applies strict standards of proof. Their investigations are also often limited to specific facts that do not cover all aspects that need to be established in a legal case. NGOs, further, do not always readily cooperate with each other or share information. However, there is now an opportunity to break this deadlock by making effective use of the collective potential of investigative NGOs and private individuals to generate, preserve, and collect information and to strategically use that information to support climate enforcement and litigation.

13.3 Enabling Technological and Sociological Developments of the Proposed Solution

Recent developments in ICT have created new and unprecedented possibilities for citizens to communicate and to generate, access, verify, and disseminate information. This empowers private citizens and other non-state actors to build legal actions, which can significantly enhance the role of law enforcement in addressing the illegal causes of climate change. The paragraphs below illustrate the relevance of these technological developments for these purposes.

The International Telecommunication Union estimated that, in 2019, about 4.1 billion people used the Internet. The percentage of mobile-broadband subscriptions was particularly high, including in developing countries and in the Least Developed Countries.Footnote ¹ This transforms billions of people from passive recipients of information into active participants in a globally interconnected information community. Virtually every person who has access to the Internet can share information and ideas, and every person with a smartphone can preserve information by taking pictures or videos or by communicating through social media or other technological means. Tailor-made, online applications such as WitnessFootnote ² or the Eye Witness ProjectFootnote ³ assist citizens in preserving information such that it can be used by law enforcement as evidence.

People are also more connected. Not only can they share information and ideas, but they can also coordinate their actions. The experiences of open-source investigation platforms, such as BellingcatFootnote ⁴ or the Citizen Evidence Lab,Footnote ⁵ have shown that people are willing to lend their talent, expertise, and free time to participate in investigative projects that they believe are socially beneficial and that are coordinated by a steering body. This form of expert-led social crowdsourcing is an immense resource for law enforcement. It not only enables law enforcement to access expertise that it does not possess or often cannot afford, but it also allows for investigations to be conducted in real time – as opposed to official ex post facto investigations – and through global citizen participation. Thus, instead of being confined to a small number of official investigators that have specific but limited skills and resources, information may be generated, collected, and verified through thousands of persons who have immediate access to information and who have a broad range of relevant expertise.

Similarly, civil society organizations, scientific and educational institutions, health professionals, media organizations, and private sector corporations are increasingly active in collecting and publicizing information that is relevant to fighting climate change simply because this is consistent with their organizational or corporate sustainability objectives. During the annual RightsConFootnote ⁶ meetings, many of these organizations and corporations present their approaches and applications – some based on cutting edge technology – to generate, access, verify, and disseminate information. These entities harbour a huge amount of talent, expertise, and commitment. They represent invaluable sources of information, and are ideal first responders, because they often have access to information and the ability to preserve information long before government officials can conduct an official inquiry. In addition, they often have relevant expertise to verify information. Cooperation with these entities taps into a vast pool of information and expertise that is currently unavailable to most law enforcement entities. Law enforcement authorities increasingly appreciate the potential that cooperating with civil society organizations has for supporting their own work. Some have therefore issued guidelines on how civil society organizations should proceed when preserving and collecting information.Footnote ⁷

Developments in ICT have also revolutionized the types of information that can be made available to law enforcement. While in the past, most communication took place orally – either face-to-face or over the phone – today people increasingly communicate in writing or by sharing other forms of documentary information. For instance, by the end of 2019, some 2.95 billion people worldwide communicated through social media – which includes social networks, chat apps, blogs, forums, business networks, and photo-sharing platforms.Footnote ⁸ Unlike oral interactions, this form of communication is generally preserved. Because most of it is publicly available or otherwise accessible through the crowd, it can be a vital source of information for law enforcement, provided that it is lawfully obtained and properly verified and analyzed.

13.4 Seizing the Opportunity to Support and Scale Climate Enforcement and Litigation

There is a need – and an opportunity – to bridge the gap between the many investigative NGOs or individuals with access to information or expertise and law enforcement authorities and advocates who have the power to enforce the law or to advocate for it. If done effectively, providing the relevant actors with high quality information to support their work can strengthen and scale climate relevant enforcement and litigation.

CCCA has set out to do exactly that.Footnote ⁹ It uses its law enforcement expertise to strategically support, advise, and coordinate existing efforts by NGOs, scientific/expert organizations, and private citizens fighting climate change in order to generate, preserve, and collect information that is relevant, probative, and admissible in court. CCCA then conducts legal and forensic analyses of the information and prepares case files to share with competent law enforcement or regulatory authorities or with NGOs in support of strategic climate litigation and advocacy. These authorities or NGOs are thus provided with information and analysis that would otherwise not be available to them or only at a substantial cost.

CCCA is guided by the following core principles:

13.5 Case Study: Illegal Deforestation and Its Drivers

The above approach has numerous potential climate-relevant applications. These include the targeting of GHG emissions generated by deforestation and forest degradation. The following case study examines both the underlying situation and the impact that an evidence-based approach can have.

13.6 Conclusion

Climate change is the defining issue of our time. There is no silver bullet solution to the climate emergency. Instead, it requires an unprecedented and coordinated response from governments, scientific institutions, businesses, NGOs, and many others. The judicial branch of government and law enforcement are a critical component in the global response to the climate emergency. However, to efficiently mobilize and support the judicial branch of government, NGOs, and private citizens must be more strategic in coordinating their action.

Technological developments enable NGOs and concerned citizens to strategically trigger and support legal proceedings by collecting and providing relevant and probative information that establishes the necessary factual foundation for these proceedings. CCCA harnesses this potential to make effective use of the information in judicial climate action and related initiatives. At a time when many political institutions in parts of the world appear paralyzed in the face of the unprecedented complexity of the climate emergency, the decisions of independent and impartial courts are a key component to addressing this unprecedented challenge.

14.1 The Case for Urgent and Creative Action

Climate change is the overarching crisis that not only prevents solutions to all of the world’s entrenched human rights tragedies – war, disease, migration, and poverty – but also exacerbates these global struggles. The unrelenting exploitation of fossil fuels devastates land, water, communities, and planetary life support systems. In turn, our changing climate threatens every one of our basic human and constitutional rights.

In June 2019, Philip Alston,Footnote ² in his role as the UN Special Rapporteur on extreme poverty and human rights, released a compelling call to action.Footnote ³ He reported on the catastrophic consequences of climate change for human rights, highlighting that billions of people will struggle even if warming is limited to the Paris target of 1.5 degrees Celsius above pre-industrial levels.Footnote ⁴ According to science, this political target is too high to protect humanity.Footnote ⁵ Estimates from Alston’s report conclude that millions of people will face malnutrition due to devastating drought and many more will have to choose between starvation and migration. Five hundred million people will likely be exposed and vulnerable to water stress and 4.5 billion could be exposed to heat waves. The year 2017 alone saw 18.8 million people displaced across 135 countries – nearly twice the number displaced by conflict – as a result of disasters made more severe and frequent by climate change. And this figure is poised to rise significantly in the decades to come.

That is climate change by the numbers.

Alston went on to underscore that if we fail to find and implement urgent and extraordinary solutions to this urgent and extraordinary challenge, “we risk a ‘climate apartheid’ scenario where the wealthy pay to escape overheating, hunger, and conflict while the rest of the world is left to suffer.” His overarching advice to the human rights community was clear: “The community as a whole … needs to step up and engage determinedly and creatively with climate change.”

Heeding Alston’s call to action, and with an understanding that litigation is only one important part of the overall strategy needed restore the health of our atmosphere, this chapter briefly explores how the climate litigation community could ensure that the climate numbers move in the right direction by creatively deploying visual evidence to help secure courtroom decisions that manifest in landmark change.

14.2 The Case for Using Visual Evidence to Show the Unobservable and Unimaginable

On November 29, 1945, only a week into the trial, the … prosecution introduced an hour-long film titled “The Nazi Concentration Camps.” When the lights came up in the Palace of Justice all assembled sat in silence. The human impact of this visual evidence was a turning point in the Nuremberg trial. It brought the Holocaust into the courtroom.Footnote ⁶

Screengrab from the film “Nazi Concentration Camps”

© US Department of Defense

Some abuses are too incomprehensible for the human mind to accept as true merely because they cannot be readily observed. General Dwight D. Eisenhower understood this. From the moment Eisenhower witnessed, first-hand, the horrors of the Nazi concentration camps in April of 1945, he ordered American troops to film the liberation of the camps. In doing so, Eisenhower sought to document the extent of Nazi atrocities, defend against general public and media perceptions that these were propaganda stories or exaggerations of the truth, and provide visual evidence to help build a watertight case for a potential international military tribunal.

In October of 1945, Justice Robert H. Jackson took a leave from the US Supreme Court to serve as the Chief Prosecutor for the Nuremberg trials. While the meticulous paper records kept by the Nazis formed the backbone of the case brought against the twenty-three accused, Jackson, like Eisenhower, understood the important impact graphic images would have over written documents. In his opening statement, Jackson promised the panel of judges, and the world, that the prosecutorial team would not only prove their case with documents but with visual evidence too. And they did. The prosecution followed their opening statement by showing six reels, reflecting 6,000 feet of film footage, shot by American and British cameramen during the camps’ liberation.Footnote ⁷ Not only does this footage still inform our understanding of the Holocaust today, but historians also firmly believe this visual evidence was a turning point in the Nuremberg trials.Footnote ⁸

14.3 The Case for Climate Visuals in the Court of Public Opinion

Social scientists specializing in the emerging field of climate communications understand what Eisenhower and Jackson knew – visual evidence can explain the unimaginable. They appreciate that visuals can debunk propaganda, rally public support, accelerate learning, and motivate implementation of needed policy, technological, and lifestyle changes.Footnote ⁹

However, today’s social scientists seeking to shed light on the serious threats posed by climate change face a far more perplexing challenge than Eisenhower and Jackson did in exposing the deeds of the Third Reich. Communications specialists need to convey the slow and incremental,Footnote ¹⁰ yet urgent and irreversible degradation inflicted by climate change on our everyday lives and basic rights. This task is much more difficult than conveying the mass, graphic, and acute violence implemented under the Nazi regime.

Motivated by this visual challenge, the early 2000s produced a plethora of research about how communications could effectively educate people about the causes and dangers of climate change and, in turn, encourage civic action and involvement. In 2005, Yale launched its pioneering program on Climate Change Communication.Footnote ¹¹ George Mason University followed with its own center in 2007.Footnote ¹² That same year, James Balog founded the Extreme Ice Survey (EIS). EIS captures time-lapse footage of receding glaciers, dying coral reefs, and deteriorating forests to reveal how quickly climate change is dramatically impacting the planet.Footnote ¹³ In 2016, Climate Visuals, a project of Climate Outreach, launched the world’s first evidence-based photography resource.Footnote ¹⁴ Through research, social scientists questioned how to best communicate the risks of a global problem with less certainty and day-to-day immediacy than most other, more familiar problems, yet that also poses far graver implications. To date, however, the vast majority of climate communications work has focused on advancing public understanding of how climate change already affects our lives, rather than assisting the courts in understanding their essential role in flattening the climate curve.

Conventional litigators may argue that there is not a pressing need to present courts with visual evidence of climate change because judges around the world consistently treat the climate science introduced in strategic litigation as valid and authoritative. Judges describe the evidence of human-induced climate change as “copious,” “compelling,” “substantial,” and a “fact of life.”Footnote ¹⁵ Judges find that “the unprecedented rise in atmospheric carbon dioxide levels stemmed from fossil fuel combustion and will wreak havoc on the Earth’s climate if unchecked.”Footnote ¹⁶ Moreover, fossil fuel use “can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse.”Footnote ¹⁷ Based on the scientific evidence, judges consistently and definitively conclude that the climate is warming, that human activity is driving the observed and anticipated changes, and that those changes will have a variety of adverse impacts across the globe. Yet, ultimately, the courts routinely dismiss many of the strategic climate cases brought to protect our basic human and constitutional rights on standing, justiciability, or legislative displacement grounds.Footnote ¹⁸ Understanding that the overarching scientific evidence of global climate change is commonly accepted by courts, litigators should also consider focusing their attention on cultivating a robust evidentiary record that (i) ensures courts expressly recognize the personal injuries that result from climate change and (ii) demonstrates the viable solutions that can address the climate emergency. Building this record is essential as injury and redressability appear to be far less tangible to the courts.

This chapter now turns to the question of whether environmental human rights litigators – building on the research of climate change communications experts – should corroborate the incontrovertible scientific evidenceFootnote ¹⁹ with robust visual evidence showing courts exactly how unchecked atmospheric warming will continue to violate our common rights enshrined in constitutions across the globe. And, if so, how?

14.4 Case Notes: Visual Evidence in the Courtroom

While Nuremberg marks the first moment that cinematic evidence convinced the world of an unimaginable truth, the first known use of film as courtroom evidence took place in 1928. In United States v. Feather River Lumber Co., the prosecutor presented moving pictures depicting the aftermath of a forest fire in Northern California to help prove that the Feather River Lumber Company negligently destroyed timber in the Plumas National Forest when one of its railroad engines started a fire.Footnote ²⁰ The film footage admitted showed the burnt forest and fallen stands of timber three years after the fire. The District Court relied on these images, along with other evidence, to find Feather River Lumber Company liable for degrading natural resources and award damages to the US government.

Since Feather River, the worth of images to serve as evidence of human and environmental rights violations has endured the test of time. Images have – and always will – excel at showing the aftermath of destruction, whether it be the destruction of human life or the shared natural resources that we all depend upon for our survival. As the methods to capture visual evidence grow, so do the opportunities to leverage visuals for accountability and justice. To explore how visual evidence has, and could be, leveraged in rights-based climate litigation moving forward, this section examines three Case Notes from the Sinangoe and Sarayaku communities of Ecuador, as well as the Native Village of Kipnuk in Alaska.

14.4.1 Kofan Indigenous People of Sinangoe v. Ecuador Ministry of MiningFootnote ²¹

The high-Andean peaks of the Cayambe-Coca Ecological ReserveFootnote ²² in Ecuador safeguard the headwaters of the majestic Aguarico River – a major tributary of the Amazon River that is vitally important to dozens of Indigenous communities and the ancestral home of the Kofan people of Sinangoe.Footnote ²³ In 2017, the Kofan established the Guardia Indigena (Indigenous Guard), training dozens of community members in GPS mapping, photo and video documentation, and the use of drones and camera traps to protect their territory from outsiders illegally entering their lands to extract natural resources like gold, timber, and wildlife.

In early 2018, the Guards heard the low hum of a motor while patrolling along densely forested mountain trails. Instead of approaching, they flew a drone to investigate. The drone captured the unexpected: images of illegal gold-mining activity on the banks of the Aguarico River. Upon further investigation, the Kofan learned that, in December 2017, the Ecuadorian government began granting new gold mining concessions in the headwaters of the river. The government granted these claims without notifying or consulting with the community of Sinangoe, despite the government’s knowledge that mining would directly impact the Kofan community, the river they depended on, their land, and their way of life. The situation escalated when the miners began operating without the required permits and illegally mined outside of the concessions’ boundaries. In the months that followed, the Indigenous Guard methodically gathered relevant, reliable, and trial-ready visual evidence, illustrating exactly how the illegal mining operations affected their ancestral lands for use in a lawsuit against the Ecuadorian government.

By June 2018, armed with a watertight evidentiary record, including irrefutable and convincing visual documentation, the Kofan took their case to court.

The mining site along the Aguarico River, upriver from the Kofan community of Sinangoe in the Ecuadorian Amazon, as seen by a drone

© Amazon Frontlines and Alianza Ceibo

As part of the case, the Kofan needed to prove that the mining operations adversely impacted their territory. Inside the courtroom, their legal team systematically walked through the array of thoughtfully curated visual evidence. They introduced drone footage and satellite imagery into the evidentiary record to show how mining operations rapidly expanded over time and, in turn, how the scar along the once-pristine riverbank broadened with every passing week.Footnote ²⁴ They submitted photos and video footage collected on cell phones to show how heavy machinery flattened the forest and compacted the soil. The cell phone images also demonstrated how the extractive activities increased the sedimentation levels of the Aguarico River, making it unsuitable for drinking, bathing, and fishing. The legal team then augmented the imagery of the actual mining site with maps that showed the proximity of the extractive operations to the Kofans’ territorial boundaries. The maps helped convey to the court how the mining activity directly and adversely impacted the community’s natural and cultural resources.

On October 22, 2018, the Kofan won a landmark legal battle that nullified fifty-two mining concessions that had been granted by the Ecuadorian government in violation of the Kofans’ right to consultation.Footnote ²⁵ This decision protected the headwaters of the Aguarico River and freed more than 32,000 hectares of primary rainforest from the devastating environmental and cultural impacts of gold mining. Specifically, the Provincial Court of Justice of Sucumbíos found that the government failed to consult with the Kofan prior to authorizing the mining concessions; denounced the mining operations for having violated Indigenous rights to water, food, and a healthy environment; and canceled all mining concessions laying at the foothills of the Andes. The historic ruling, upheld by Ecuador’s highest court – the Constitutional Court – on January 27, 2022, invoked the precautionary principleFootnote ²⁶ and cited the rights to nature embedded in Ecuador’s Constitution while finding that the government violated those rights.Footnote ²⁷ It also orders authorities to implement restoration measures at the site.

While the Kofan built a strong record consisting of many sources of evidence, the community’s ability to strategically leverage visual evidence guaranteed that all levels of Ecuador’s judiciary had only one legitimate choice: to conclude that mining operations adversely impacted Kofan territory.Footnote ²⁸ Not only does this case demonstrate how present-day tools to capture visual evidence of environmental destruction have dramatically improved since the days of the Feather River case nearly a century ago, it also serves as a concrete case study of how visuals can help prove the link between harm to the forest and harm to community well-being. Finally, the decision, affirmed and strengthened on by Ecuador’s Constitutional Court, serves as inspiration for Indigenous nations worldwide facing similar struggles, and it will galvanize the fight to protect Indigenous lands for years to come.

14.4.2 Kichwa Indigenous People of Sarayaku v. EcuadorFootnote ²⁹

The Indigenous community of Sarayaku sits deep within the Amazon Rainforest, along the banks of Ecuador’s Bobonaza River and in the heart of one of the most biologically diverse places on Earth. Encircled with natural beauty, the Sarayaku follow their ancestral way of life – hunting, gathering, and farming within their territory. Sarayaku land possesses natural resources that cannot be readily seen. Hidden beneath the surface lay vast oil reserves that Ecuador’s government and fossil fuel corporations had been eyeing for exploitation for decades.

In 1996, the Ecuadorian government granted the Argentinian energy giant, Compañía General de Combustibles S.A. (CGC),Footnote ³⁰ rights to explore for oil in Sarayaku territory. This decision was made in direct violation of a 1992 legal agreement in which the Ecuadorian government legally recognized Sarayaku territory and guaranteed the community’s freedom from intruders. Despite the agreement, with the protection of Ecuador’s armed forces, the CGC entered Sarayaku lands in 1999. Without permission, the company began opening trails through the forest, building heliports, destroying sacred sites, and burying over 3,000 pounds of explosives in the forest to facilitate seismic exploration. This forced entry led to various confrontations between the Sarayaku, the company, and Ecuador’s armed forces, culminating in threats against the Sarayaku leaders and violence against community members.

This illegal invasion of Sarayaku territory, and subsequent trespass by CGC, ignited a decade-long legal battle between the Sarayaku and the state of Ecuador.Footnote ³¹ At the heart of this rights-based case was whether the community of Sarayaku consented to oil exploration on its land and whether the state of Ecuador threatened the personal integrity of community members when it provided CGC with protection during the forced entry. As with every adversarial process, the stories differed. Fortunately, a courageous young filmmaker from the community, Eirberto Gualinga, captured images on camera that helped prove the Sarayaku had the truth on its side.

To complement the traditional forms of evidence submitted to the Inter-American Court of Human Rights (IACHR) – testimony, documents, technical reports – the Sarayaku also submitted visual evidence to corroborate and contextualize several of the community’s core legal claims.

First, during the company’s exploration of the land, CGC flew helicopters into the dense jungle to drop off company workers. Eirberto captured one of the landings with his camera. As the helicopter arrived on the riverbank, the video shows CGC workers stepping out and being met by a group of women from the community. The women peacefully – yet expressly – demand respect of their territory and that the oil workers leave.Footnote ³² Further, they clearly explain that the community, as a whole, has repeatedly told the head of CGC that the company is not allowed on Sarayaku land.Footnote ³³

CGC employees landing in Sarayaku territory

© Eirberto Gualinga

The community further communicated its dissent to the corporate and military presence by taking peaceful action. During an assembly, the Sarayaku people declared a state of emergency, halted their daily lives, divided into groups, and spread out to six locations along the boundary of their territory, establishing “Peace and Life Camps.” They set up the camps to mark their borders, peacefully protest, and dissuade CGC and the Ecuadorian military from entering Sarayaku territory. Video of the camps shared with the court corroborated witness testimony explaining the reasons that camps were set up and the calm, communal, and peaceful character at the sites.Footnote ³⁴

To help prove that the Ecuadorian government interfered with the community’s rights to freedom of movement, the Sarayaku introduced video showing military checkpoints and Ecuadorian soldiers blocking the Bobonaza River – the community’s primary transportation route.Footnote ³⁵ In the video, soldiers are seen stopping and searching boats at the checkpoint, resulting in a basic invasion of privacy in addition to the restrictions on movement. Additional admitted footage depicted damage to the land caused by exploration activities, including trash dumps, flaring, oil spills, and deforestation. The sum of footage ultimately helped prove direct environmental harm caused by the occupation.Footnote ³⁶

While strategic litigation will never be won on video evidence alone, the video evidence played at least two key roles in protecting over 330,000 acres of primary Amazon rainforest that shelters the community of Sarayaku and serves as a critical carbon sinkFootnote ³⁷ for the global community. First, the images painted a vivid picture of violations faced by the Sarayaku, thereby contextualizing the myriad rights violations perpetrated by the company in collaboration with the government during the invasion. Second, the video evidence substantiated a number of the core legal claims at the center of the case.

The IACHR issued its final, unanimous decision in June 2012, finding that Ecuador violated the Sarayaku’s rights to property, life, physical, mental and moral integrity, fair trial, and judicial protection.Footnote ³⁸ In the judgment, the court ruled that governments must consult with Indigenous communities throughout the Americas prior to implementing activities that affect their land, recognized the existence of collective rights as opposed to individual rights, and further enshrined a right to cultural identity in law.Footnote ³⁹ This monumental judgment was not only a victory for the Sarayaku but was also a major step forward in the fight to safeguard Indigenous rights and the climate-stabilizing forests they defend.

14.4.3 Kanuk v. State of Alaska

In 2011, Nelson Kanuk, a sixteen-year old native Alaskan from the village of Kipnuk, alongside five other young plaintiffs, brought suit against the state of Alaska, arguing that the Public Trust Doctrine codified in Alaska’s Constitution imposes an affirmative fiduciary obligation on the state of Alaska to manage shared natural resources, including the atmosphere, for the common good.Footnote ⁴⁰ They further argued that this constitutional obligation requires the state to reduce greenhouse gas emissions to slow the rate of climate change in order to ensure that the plaintiffs and future generations can inherit a viable atmospheric resource and other protected resources of the state that secure a livable future.Footnote ⁴¹

When litigants bring action against governments, they usually must file a standing declaration.Footnote ⁴² Standing declarations are the heart of many human rights cases brought against governments.Footnote ⁴³ The declarations, written by the plaintiffs, tell the powerful human story behind the lawsuit.

Nelson in the film TRUST Alaska

© Our Children’s Trust and WITNESS

In his legally sworn statement to the court, Nelson explained why climate change was personal for him. He wrote, “climate change has adversely affected me and impacted my life by delaying the onset of winter. For example, in Kipnuk, the snow used to start falling earlier than it does now. Also, the sea ice starts forming later than in the past and melts earlier in the spring. Although this might not seem to be too significant, it is critically important for me, my village, and our way of life.”Footnote ⁴⁴ Nelson’s statement went on to detail how the late freeze and early thaw causes dangerous flooding and rapid erosion, threatening his home and limiting the availability of food and water sources, jeopardizing his community’s subsistence lifestyle.

Many of Alaska’s government officials responsible for protecting the state’s shared natural resources denied or simply ignored the scientific fact that a warming climate results in grave harm to native communities – despite abundant documentation to the contrary. Understanding that personal stories can change minds and knowing that legal documents all too often do not get read by the people who should consider them, Nelson, together with Our Children’s Trust, WITNESS, and iMatter, produced an eight-minute film, TRUST Alaska,Footnote ⁴⁵ using his standing declaration as the shooting script. The film brings the black and white, Times New Roman legal text to life.

In the award-winning film, audiences have the opportunity to meet Nelson, a young Yup’ik firefighter and Native Olympic athlete, who learned how climate change was affecting his community and felt he could best help by sharing his story. Staying true to the facts in his declaration, Nelson shows viewers his small village, introduces his family, and takes audiences on a family boat trip to pick berries while describing how he lives a subsistence lifestyle. He explains that the main problem facing the northern parts of the world is that winter comes later and later. This results in increased flooding due to warmer temperatures, increased erosion due to permafrost melt, and intensified storms because the sea ice forms later in the season and is unable to provide a natural barrier for coastal communities. This, in turn, leads to the loss of homes, communities, cultures, and a way of life.

Nelson’s film was the third in a ten-part series called Stories of TRUST: Calling for Climate Recovery.Footnote ⁴⁶ Each film shows how the lives of other youth plaintiffs from across the United States are harmed by climate change. These plaintiffs, and the NGOs they collaborated with, did not produce the films to be submitted as evidence in the cases they brought. Instead, the films propelled a strategic communications plan, developed specifically to support the goals of the strategic litigation and the broader TRUST Campaign.

Nelson’s film screened all over the world – in classrooms in his home state of Alaska, in gymnasiums packed full of students in other US states, during keynote presentations by committed environmental human rights lawyers, and at convenings with Indigenous leaders from around the world. As film festivals across the globe showed Nelson’s film on the big screen, festival juries recognized the magnitude of his story with awards. The film also reached key decision-makers. After viewing his story, State Congressional Representatives invited Nelson to present in front of the Alaskan State Legislature. Then-head of the US Environmental Protection Agency, Lisa Jackson, wrote asking for copies of his film. Shortly after, TRUST Alaska, along with four other films from the series, were hand-delivered to President Obama in the Oval Office.

What began as an Alaskan story to complement human rights–based climate litigation soon grew into a gold-star communications campaign with international recognition and influence. In many ways, the TRUST Campaign laid the foundation that we collectively stand upon today, advancing our understanding that a healthy atmosphere is an inherent human right.

Unexpectedly, the film also reached the Alaska Supreme Court. The Alaska Inter-Tribal Council (AITC) is an Indigenous-led nonprofit organization that advocates in support of Tribal governments throughout the state. AITC submitted an Amicus Curiae briefFootnote ⁴⁷ in support of the youth, describing how Alaskan Natives are particularly impacted by a warming climate. As part of the submission, AITC included Nelson’s film. Although the film could not serve as direct evidence given that it was edited for external communications purposes, it could provide context and ground the court in the fundamental constitutional rights at stake.

While the Alaska Supreme Court fell short of granting the youth their desired legal remedies, the court issued important rulings that moved rights-based climate law forward and opened the door for the next round of litigation in Alaska. The court wrote that the youth “make a good case … that the atmosphere is an asset of the public trust, with the State as trustee and the public as beneficiary.” The court seemingly agreed with the youth that the state of Alaska has obligations to combat climate change, calling the science of anthropogenic climate change “compelling” and citing numerous climate science studies and reports. The court also stated that the atmosphere and the ecosystems it protects should be subject to constitutional protections, even without the court’s legal declaration that the atmosphere is part of the public trust. Nonetheless, the Court ruled that it could not order the relief requested by the plaintiffs because the “underlying policy” choices regarding the state’s response to climate change were not the Court’s to make “in the first instance.”Footnote ⁴⁸

Respecting the Court’s guidance, 16 young Alaskans filed a new suit against the state of Alaska in 2017. Their opening complaint explained to the Court that the state had already enacted underlying climate policy “in the first instance” that, at its heart, affirmatively promotes fossil fuels. The youth, together with their legal team, then explained how this pro-fossil fuel policy violates their fundamental rights under the due process, equal protection, and public trust provisions of Alaska Constitution.Footnote ⁴⁹

In a three-to-two split decision, a narrow majority of the Alaska Supreme Court ultimately declined to order the youth’s requested relief for “prudential reasons.” However, the Court again provided guidance for future rights-based climate claims in Alaska and wrote a powerful dissent.

The dissent recognizes a “right to a livable climate – arguably the bare minimum when it comes to the human rights to which the Alaska Constitution is dedicated.”Footnote ⁵⁰ In the words of Supreme Court Justice Ruth Bader Ginsberg, “Dissents speak to a future age … the greatest dissents do become court opinions and gradually over time their views become the dominant view. So that's the dissenter's hope: that they are writing not for today, but for tomorrow.” It the youth of today, who courageously share their stories with our courts, that set the stage, for tomorrow. It is the youth of today, hand-in-hand with human right litgators, that will succeed in securing constitutional rights to a climate system capable of sustaining humanity.

14.5 The Case for Climate Visuals in Support of Rights-Based Strategic Litigation

A striking characteristic of human memory is that pictures are, remarkably, remembered better than words.Footnote ⁵¹ This once-intuitive, and now scientifically proven, fact has propelled the use of visual evidence dating back as far as the Feather River case in 1928. Since then, and as the Case Notes above illustrate, lawyers have supplemented their briefs and oral arguments with robust visual evidence to help judges appreciate the complexities of a case and the consequences of their decisions.

As noted by former US Supreme Court Justice Stephen Breyer, enhancing judicial understanding is an essential part of any litigator’s work. When answering a direct question about the breadth of the public trust doctrine – one of the key legal issues under consideration in Kanuk v. State of Alaska – in US federal law, Justice Breyer responded, “I don’t know.”Footnote ⁵² He then eloquently explained that since judges are “generalists,” they must rely on legal scholars and practitioners to inform the courts’ understanding of how to interpret and apply the law in relation to changing global circumstances. Tasked with the responsibility of conveying the facts of a case clearly and linking the facts to the law, lawyers would be remiss if they failed to consider how visual evidence may strengthen cases and, in turn, secure justice and accountability for clients – and in the case of climate litigation – for the world.

This is especially true given the current technological landscape. Today, the opportunities to use visual evidence to help secure legal accountability for human rights violations are more accessible as a result of the advance of new technologies, especially the proliferation of the camera. The number of smartphone/camera-ready users surpassed three billion in 2020 and is forecast to reach nearly four billion by 2021.Footnote ⁵³ The mass adoption and usage of drones for aerial photography is still in its infancy, but drone development is rapidly underway due to significant investments pouring into this promising industry. The number of satellite-based monitoring applications and technologies publicly available has also exploded in recent years.Footnote ⁵⁴ In turn, it is not surprising that courtroom environments – one of the last bastions of oral tradition – are morphing into cinematic display environments in an effort to better communicate with judges.Footnote ⁵⁵ To date, however, the use of visuals in the emerging field of rights-based climate litigation has been limited, despite the strong potential to leverage visuals for meaningful results. To illustrate the potential of visuals in climate litigation, Section 14.5.1 will consider how the legal team representing the survivors of Australia’s devastating bushfires could curate and present visual evidence as part of their recently filed climate case.

14.6 Closing Argument

When presented with the horrifying visual evidence of the Holocaust, many of us cover our eyes, driven by the human desire to avoid experiencing pain and discomfort. I cannot help but wonder if we are doing the same with respect to our changing climate. But looking away will not make the problem disappear.

I live in the Netherlands. The warehouse where Anne Frank spent twenty-five months in forced hiding in a small attic is a ten-minute walk from my front door. Within fifteen minutes by bike, I can arrive at Muiderpoort, the station where hundreds of onlookers quietly witnessed the heavily guarded trams overflowing with people on their way to Nazi concentration camps, yet said nothing. Spring 2020 marked the seventy-fifty anniversary of the end of World War II, an ominous reminder that we must face global challenges with a fierce and unwavering commitment to human rights.

Complex political problems require complex solutions. Video evidence alone will certainly not solve the climate crisis. However, as demonstrated through the Case Notes here, the strategic and effective use of visual evidence matters. So perhaps, in response to Alston’s call to step up and engage determinedly and creatively with climate change, it is time to bring climate visuals into the courtroom to ensure that judges, and society at large, cannot look away, justify, erase, brush aside, or make “normal”something that is decidedly not.

This chapter examines the role that stories and narratives can play in the development of climate litigation strategies. Section 15.1 covers an introduction to thinking on narratives, the way they work to support or challenge the status quo, and some helpful definitions. Section 15.2 looks at some examples of successful reframings of narratives in campaigns. Section 15.3 draws on the existing literature on narratives in climate litigation to highlight some dominant narratives that are problematic and some new narratives that are being deployed. This chapter concludes with a suggested checklist for considering narratives in climate litigation strategy and case work and pointers to additional resources and networks.

15.1 Introduction

Narrative knowledge and framing know-how can help ensure that climate litigation not only achieves an outcome within the case but also works on a deeper level to connect with people and shift power, helping to transform underlying ideas, norms, and systems. The scale and speed at which a just transition needs to be implemented far outpaces the timelines of litigation – to secure 1.5 degrees, climate advocates need to build political power and lots of it.

So, how can cases be designed so that, in addition to securing a legal result, they achieve greater, quicker impact by working to strengthen and diversify the climate justice movement? Where can the cases connect to new emerging stories and narratives that are able to motivate and engage more people, and where can litigation be part of shifting the dial on what is considered common sense and on what people believe is possible? And also, importantly, how can litigators avoid playing into damaging dominant narratives that are constraining collective global action?

15.2 What Is a Narrative Change Strategy?

Storytelling and deploying narratives are not new – in many ways, they are instinctual, and different approaches and practices happen in many different spaces. The power of storytelling in fostering change is an area of professional focus across many disciplines. Oxfam and On Think Tanks collaborated on a project to interview diverse people from across the globe about their role in challenging and reshaping narratives, as part of Oxfam’s work on protecting and opening civic space. The people interviewed come from different sectors and disciplines – from activism to the arts and strategy to science and marketing. They shared their knowledge, ideas, tips, and tactics from their lived experience in the anthology Narrative Power and Collective Action.Footnote ⁴

The conversations started in the anthology on the power of narrative and collective action for positive change continue beyond it. With respect to designing litigation and case strategies, joining this conversation can foster greater consciousness of how the story/ the case tells and the narratives it engages can reinforce or disrupt the status quo and thus contribute to, or disrupt, the efforts of the wider climate movement.

The conversations contained in the anthology underscore that narratives are a form of power that can mobilize and connect, as well as divide and isolate. Social, public, or dominant narratives help to legitimize existing power relationships, prop them up, or make them seem natural.Footnote ⁵ Narrative frames also ‘structure for the audience the cause of social problems and prescribe which actors should or should not act to address them’.Footnote ⁶ Section 15.2 will look at some concrete examples of how movements have tackled dominant narratives and established new narratives.

Below are some definitions from allies working in this field (Frameworks Institute and The Narrative Initiative):

• Narrative change: ‘A narrative reflects a shared interpretation of how the world works. Who holds power and how they use it is both embedded in and supported by dominant narratives. Successful narrative change shifts power as well as dominant narratives.’Footnote ⁷

• Frames: ‘Sets of choices about how concepts are presented: what to emphasise, where to start, how to explain it, what to leave unsaid. The way information is framed has dramatic effects on what people think, feel and are willing to do.’Footnote ⁸

• Stories: ‘In a story, something happens to someone or something. Typically, a story has a beginning, middle and end. Stories transmit a society’s ideas, beliefs, behaviours, humour, style and trends from one person to another, that collectively create the culture we live in. Stories are told.’Footnote ⁹

• Narratives: ‘Narratives permeate collections or systems of related stories. They have no standard structure, but instead are articulated and refined repeatedly as they are instantiated in a variety of stories and messages. Narratives are understood.’Footnote ¹⁰

• Deep narratives: ‘Deep narratives are characterized by pervasiveness and intractability. They provide a foundational framework for understanding both history and current events, and inform our basic concepts of identity, community and belonging. Just as narratives permeate collections of related stories, so too do deep narratives permeate collections of related narratives. It is difficult to connect with audiences directly at the level of deep narrative, but higher level narratives can provide a way in.’Footnote ¹¹

This is powerful because narratives trigger emotions – hope, empathy, fear, guilt – which are hugely influential in terms of how a person will respond to an issue. Will they support climate action or feel excluded or demotivated – or even antipathy?

For the purpose of this chapter, there are four key relevant learnings from the Narrative Power and Collective Action collaboration to highlight, though there are many more beyond these as well.

First, who tells the story and who shares the story are critical considerations. Whose existence and experience is elevated? Who needs to see themselves in the story? Who needs to share the story for it to be credible – trust and legitimacy are key. Can the story be told in a different way that better connects with people and their lived experience? For climate litigation, this involves reflecting with allies on the potential claimants and spokespeople for a case, as well as on the facts it will present.

Second, the strategies deployed in climate ligation will be asymmetrical relative to those strategies supporting a currently dominant narrative. Climate litigators can’t meet, for example, the narrative strategies deployed by populists or climate change deniers like for like, so climate litigators need to examine how to bridge movements; short circuit power with humour, culture, and hope; cut through the noise; and foster connections. Litigators can draw on the skills of climate communicators in the movement to construct communication strategies that make the best use of the moment created by litigation to drive narratives that will motivate people to support climate action.

Third, reacting to the dominant narrative can backfire and reinforce the dominant message as well as lock litigators into an existing power dynamic. Instead, litigators can aim to ‘flip’ the narrative and drive a new narrative that does not need to be seen as related.

Fourth, with respect to narratives, climate advocates have to walk the talk. Advocates cannot challenge a narrative that the climate movement is (at least in the Global North) urban, white, and elite if that contains a painful element of truth. Similarly, what they do is the message. So, if advocates want to say that climate action is for everyone, then the climate movement needs to genuinely reflect that. The movement needs to be that new narrative as well.Footnote ¹²

The Narrative Initiative’s practical Four Baskets tool is helpful for thinking about the capacities and processes needed to create, implement, and continually strengthen narrative change projects. The most helpful narratives should be identified by climate movements working together in a particular context, with climate litigators joining as a part of that movement. Climate litigation can then consciously be considered in terms of how it can support and achieve impact across the following four ingredients the Narrative Initiative identifies: (1) create (articulate the new narrative as well as the old dominant narrative that advocates are trying to shift away from); (2) translate (identify the audiences that need to adopt this narrative and find ways to express the narrative that are meaningful to them); (3) drive (move the narrative into the public domain by designing effective narrative interventions, while mapping the channels and tools that will be used); and, finally, (4) observe (map where the new narrative is being adopted).Footnote ¹³

15.3 Narrative Change in Campaigns for Action

15.4 Narratives in Climate Litigation

Shifting or changing sticky narratives that maintain the status quo requires collaboration and creative collective action at a scale not seen before.Footnote ¹⁸ Climate activists working at different levels need to explore together which new narratives have the potential to shift power on this issue. This could be achieved by amplifying existing narratives or forging new ones that connect geographies and realities. Working in collaboration means exploring the ideas that different actors can bring to the table and testing out different approaches to see what resonates with those with whom we want to connect.

In this section, we draw on existing excellent and in-depth analyses of narratives in climate litigation,Footnote ¹⁹ along with current climate litigation,Footnote ²⁰ to draw out some common themes within narratives identified as damaging and currently dominant, as well as within positive narratives with the potential to drive change. This body of work provides a solid foundation with which to connect climate litigation with the broader narrative work of the climate movement.

The literature fleshes out the psychological barriers to public support for climate action (Nosek), the relationship of climate action to morals and values (Markowitz and Shariff), the partisan nature of people’s responses to climate action (Peel and Osofsky), and populist narratives on climate change (Hilson). They set out how, by circumventing the partisan political divides that have typically pervaded support for climate action,Footnote ²¹ litigation and the narratives used in climate change litigation can act as a unifying force in ‘influencing public debate and social norms’.Footnote ²²

15.5 Learning and Actions for Climate Litigation

• It’s clear that coordination and collaboration will be key to designing successful climate litigation with strong narrative strategies. Litigation needs to be integrated into national and global climate justice campaigns and movements, so that there’s a shared theory of change and a shared understanding of the key dominant narratives and the new narratives that need to be driven.

• Climate litigators can join the conversation in Collective Power and Narrative Action. Part I of the book contains a link to sign up for a mailing list to receive part II in an email and invitations to join virtual conversations on different dimensions of narrative power and collective action, including identity, race, climate, filmmaking, fake news, brands, and more. People are also invited to share ideas for topics they would like to talk and learn more about.Footnote ⁴³

• In designing climate litigation and considering other legal issues, litigators need to consider how the litigation will play in the court of public opinion and which narratives it will help to drive. What story does the framing tell? Who has the legitimacy and trust to tell that story, and how does that relate to the position of the claimant in the case? If an NGO is involved in the case, how are they working with the people directly affected by the issues?

• Once the litigation is running, like in all climate campaigns, litigators need to draw on creative communications and activism, drawing on the expertise of the full range of people with expertise on narrative change – social scientists, creatives, filmmakers, storytellers, marketing gurus, big data analysts, academics, think tanks, and more. Can visuals, film, art, music, memes, or humour communicate more effectively than more traditional methods?

• Significant resources are needed to co-create narratives and share the learning on this fast enough and wide enough to secure the greatest impact over the next few years. Existing models for this include JustLabs and Narrative Power and Collective Action. How can funders support access to communications support for litigators? How can litigators collaborate to share channels and resources to drive new narratives?