Climate Change Litigation and the Awfulness of Lawfulness

Abstract

Climate change litigation is occurring with increasing frequency across many varied categories of law and, according to Justice Brian Preston, 'it is likely that the avenues used to litigate climate change-related matters will continue to expand.' Yet the reactive precedent-bound nature of judge-made law means that such litigation is frequently unsuccessful. Borrowing a catchy phrase from authors Sam Blay and Ryszard Piotrowicz, I am describing this structural impediment to radical change through judicial interpretation as the awfulness of lawfulness.