The most prominent climate litigation to date has primarily focused on mitigation—reducing greenhouse gas emissions—but as climate impacts become more frequent, extreme, and intense, adaptation litigation will increase. Adaptation cases frequently rely on evidence drawn from scientific research into past and future climate change. This research oftentimes consists of one of two types of climate research: attribution studies of climate change to date, and future projections of climate change and its impacts.
Climate change attribution links human activity to climate change, especially changes in the statistics of extreme weather events. Increasingly, it is also beginning to be applied to impacts across sectors such as public health and agriculture development. As one example of climate change attribution, a recent study found that the Summer 2022 United Kingdom heat wave would have been extremely unlikely without human-induced climate change. Climate projections, by contrast, provide a range of plausible future changes in climate and impacts. The magnitude and range of these projections can vary dramatically based on how far into the future they are assessing climate change: predictions for near-term climate change are generally independent of future greenhouse gas emissions, whereas longer-term projections vary dramatically based on the magnitude of future greenhouse gas emissions. The IPCC has noted that “[m]ethods for projecting climate futures have matured since the 1950s and attribution studies since the 1980s,” concluding that “understanding of the principal features of the climate system is robust and well established.”
This paper examines climate adaptation litigation in two broad categories: (1) cases seeking adaptation measures; and (2) cases challenging planned or existing adaptation actions. For each, the paper describes the key features of the litigation, the role of climate science in the claims and defenses of the parties advocating for or defending adaptation action, and the arguments put forward to limit the role of climate science in the litigation. The paper concludes that climate science is a critical component of climate adaptation cases and that litigants should integrate the best available science into the cases they bring from the outset, but that key legal questions may prevent climate science from playing a determinative role in certain cases.
Environmental Law | Law
Jacob Elkin, Climate Science in Adaptation Litigation in the U.S. (Sabin Center for Climate Change Law, August 2022)