Climate change lawsuits have emerged as an effective instrument in the global fight against climate change. This article identifies the trends, problems, and implications for legal practice, focusing on Kenya and a pertinent case study from the region.
Consider this: there has been a global spike in litigation concerning climate change. According to the UNEP and Sabin Center for Climate Change Law, Global Climate Litigation Report: 2023 Status Review by 2023, over 2,000 cases had been filed worldwide, and Kenya was right in the middle of it. These lawsuits are like citizens holding governments and corporations accountable for environmental degradation. They ensure that governments adhere to the international agreements to which they are signatories, and that businesses do more than merely talk about being environmentally conscious. A Kenyan case that parallels the argument of inaction on climate change as a violation of fundamental human rights is Save Lamu & 5 others v. National Environmental Management Authority (NEMA) & Anor. [2019] eKLR.
While climate change poses a worldwide hazard, lawsuits challenging it become entangled in national judicial systems. This causes a mismatch: determining which court has jurisdiction and which laws apply is like playing a game with various rulebooks in each city. Even more difficult is demonstrating that a company’s emissions directly caused a specific heatwave or flood. Scientists have a difficult time untangling this complicated mess, which is like attempting to find one loose thread in a big ball of yarn. Finally, climate litigation is expensive; you will need a team of specialists and lawyers, which can be a significant barrier for many people.
This rapidly growing sector of climate litigation keeps lawyers on their toes. National and international rules and practices are continuously changing, so being up to date is essential. Winning these cases typically requires abandoning the silo mentality. Lawyers need to collaborate with scientists, economists, and even policy experts. The goal is not only to win for one customer, but to create a ripple effect – a strategy shift that benefits everyone.
Take the “Save Lamu” campaign in Kenya, for example. This case opposed the development of a coal-fired power facility adjacent to a UNESCO World Heritage site. The community claimed that the project would devastate the environment and endanger people’s health, breaching their right to a clean and healthy environment as provided for under Article 42 of the Constitution of Kenya, 2010. The court agreed, canceling the permission because the corporation did not properly engage the public and failed to evaluate the impact on climate change. This case demonstrates how climate litigation may be an effective instrument for enforcing environmental rights and holding governments and companies accountable.
Climate litigation is heating up in Kenya, and for good cause. These cases hold both the government and large corporations accountable for climate change, encouraging them to take serious action and defend everyone’s right to a clean environment. But it isn’t always easy. Figuring out which court has the authority to hear the case and establishing that a company’s pollution caused a specific flood can be difficult. Furthermore, these lawsuits can be costly, needing a team of experts. As laws evolve, lawyers must collaborate with scientists, economists, and even policymakers to develop clever methods that result in long-term change, rather than one-time victories.