Civil Procedure and Climate Litigation
Asha Keaney
This chapter explores the interplay between civil procedure and climate litigation.
Looking to several elements of civil procedure, this chapter considers the ways in which the rules, regulations and processes of our legal system can enable and hinder climate litigation. Moreover, this chapter invites you to consider what experiences of civil procedure in the context of climate litigation show about the values that underpin our legal system and the extent to which that system is individually and socially just. Fundamental to this issue is the concept of access to justice and, in the context of climate litigation, climate justice.
Five core elements of civil procedure are addressed here:
- Jurisdiction
- Standing
- Joinder and representative proceedings
- Costs
- Remedies
These different aspects intersect and should be considered together. This chapter does not exhaustively address all elements of civil procedure but looks to raise some of the key dynamics between civil procedure and climate litigation that have been of significant influence in Australia and in overseas jurisdictions. We encourage you to also consider how the dynamics discussed here play out in relation to other components of civil procedure beyond the scope of this chapter, such as pleadings, service, interlocutory procedures, trial, appeal and enforcement.
Key Questions
- What does civil procedure tell us about the values that underpin our legal system? To what extent do these values align with what is required to address climate change?
- How might civil procedure enable greater access to justice in relation to climate change?
Chapter Outline
Access to justice is a central element of the rule of law. It refers to the need for the system to be equally accessible to all and lead to results that are individually and socially just.[1]
[1] Mauro Cappelletti and Bryant Garth, ‘Access to Justice: The Newest Wave in the Worldwide Movement to Make Rights Effective’ (1978) 27(2) Buffalo Law Review 181).
