By Nani Jansen Reventlow, Systemic Justice, 13th July 2023
Nani Jansen Reventlow’s keynote talk during our annual retreat for funders this year was titled ‘Harnessing the law for climate justice.’ We were interested to learn more about Nani’s work with strategic litigation and how to use this as a tool for climate justice.
Nani started by highlighting the ways in which the law is already being used to gain environmental wins.
The law often finds itself in the realm of “boring but crucial” – something we recognise as necessary, yet rarely captivates our attention. However, it serves as the foundation and rulebook for almost every aspect of our lives, from ordinary encounters to global politics.
That includes climate activism, where the law nowadays is perhaps more visible than ever. Allow me to present three areas that demonstrate the law’s dynamic role: regulation, judicial activism, and litigation.
Looking at regulation, an obvious example is the Paris Agreement, which sets out a global framework for states to limit global warming to 2 degrees Celsius, and pursue efforts to not exceed 1.5 degrees. Or take the momentum we are seeing around establishing ecocide as the fifth crime that the International Criminal Court could prosecute, alongside international crimes such as genocide, war crimes and crimes against humanity.
Lawyers and judges are increasingly taking a stand against the climate crisis as well. There are more and more frequent examples of judges resisting the imposition of harsh sentences for those who are protesting against big companies killing the planet. And just a few months ago, over a 100 lawyers in the UK signed a declaration that they would not prosecute climate activists.
Finally, when it comes to litigation, these past years have brought a number of key decisions on climate. In December 2019, the Dutch Supreme Court was the first in the world to establish that a government has a legal duty to its citizens to prevent dangerous climate change. It ordered the Dutch government to reduce emissions immediately, in line with its human rights obligations. This decision inspired climate change cases around the world, including against institutions like the European Union. We have also seen important decisions holding big oil companies to account for damage they caused, such as in the case against Shell for oil spills, gas flaring, and suppression of environmental activism in the Niger Delta. And last September, we saw acknowledgement that failure to take timely and adequate measures to protect indigenous peoples against adverse climate change violates their right to enjoy their culture in a decision from the UN Human Rights Committee in the Torres Straight Islanders case.
Nani defined three main characteristics of strategic litigation, and how they can be utilised in the fight for climate justice.
So how can litigation be harnessed effectively by those most affected by the climate crisis? The first question to address is, what is strategic litigation?
There are three main characteristics that make a case strategic:
- The case must be aimed at bringing about systemic, structural change.
- Its impact must go beyond the parties directly involved.
- It must be part of a wider strategy or movement, combined with other tactics such as advocacy, campaigning, and policy work.
So, for example, instead of a simple challenge to rerouting traffic through a community’s area, we are looking at building cases over the longer term that can have radical, transformative, and holistic impact for communities. Litigation coupled with advocacy and campaigning could push for many different objectives in this regard, such as forcing those in power to hold (and act upon) meaningful consultations with communities on policies and decisions that impact them and their health; ending discriminatory practices or policies that see marginalised communities disproportionately impacted by pollution; overturning planning decisions that limit or remove the community’s access to green spaces; recognising the community’s right to clean air; improving access to healthcare; and seeking reparations that can support communities in healing and that account for inter-generational and historical harms resulting from environmental racism.
Will strategic litigation alone save the day in the struggle for climate justice? No. The climate crisis is complex and tackling it requires a tapestry of activism. None of us can claim to have “the” answer or magical solution, and we need to all work in solidarity and where possible facilitate coordination across all different axes to make change happen.
Nani focused on the importance of centring community and those most impacted by the climate crisis in litigation.
One thing that needs to be central in all our efforts, whichever tactic we deploy, is that those most affected need to be in the lead. And this is where not only the climate movement in general, but climate litigation specifically needs to do better.
Because while the climate crisis affects us all, it disproportionately impacts those who are racialised, disabled, poor, or otherwise marginalised. Yet, despite all the litigation activity on climate, there is a near-complete absence of cases that take an intersectional perspective or even just concern the communities that are hardest hit by the climate crisis. Let alone that they are able to initiate the cases they want, set the objectives they choose, or seek the remedies that are meaningful to their context.
I mentioned earlier that strategic litigation is one of the many tactics we need to deploy in fighting the climate emergency. So if it is just one of many tools in the toolbox, why would anyone want to invest in it?
Most, if not all, long-term change towards climate justice requires long-term funding, including strategic litigation. Nani shared the outcomes possible if this long-term funding is provided for strategic litigation.
Let me first set out what strategic litigation will not give you.
It will not give you quick solutions. All of the big “landmark” cases everyone will be familiar with – the climate wins I mentioned at the beginning, the recognition of equal marriage, many more, are all built on losses and decades of sustained campaigning. To use a negative example that we are all familiar with: the overturning of Roe v. Wade in the United States started the moment that judgment was handed down in 1973 –– a perfect illustration that sustained investment works (also for bad) and of my earlier statement that the work does not end with a win in the courtroom.
Strategic litigation will also not give you a solution to everything. It is just one part of puzzle, not one fix for all the challenges we’re facing. We need to build a broad front of resistance.
Finally, it will not provide you with a cheap fix, especially if you want lasting, systemic impact. Systems change requires a longer-term lens and robust resourcing. This applies all the more so if you want to ensure communities are supported in full.
But, investing in strategic litigation will do the following.
Litigation can serve as a catalyst for campaigns: it can enhance their visibility, sharpen the focus of campaigns, and thrust them into the center of public debate. It can help push an issue towards that tipping point we need to reach for a true paradigm shift.
If done in the right way, it can also enable communities to take control and fight their own causes on their own terms. Importantly, it offers them routes to enforceable remedies and concrete decisions, from court orders to reparations.
And, third, litigation will help hold the powerful to account, and ensure that the systems we already have – climate regulation, human rights frameworks, corporate and tax regulation – work as they should.
Nani left us with an important message:
In the end, it comes down to realising that access to justice in and of itself is crucial. Without communities driving litigation, only those with money and power will be driving through their kind of change and setting the agenda of the courts. So let’s get to work and ensure those most impacted by the climate crisis are at the heart of the solution.
Nani Jansen Reventlow is an internationally recognised human rights lawyer specialised in strategic litigation at the intersection of human rights, social justice, and technology. She is the founder of Systemic Justice, which works to radically transform how the law works for communities fighting for racial, social, and economic justice. Previously, Nani founded and built the Digital Freedom Fund, which supports partners in Europe to advance digital rights through strategic litgation.