Methodology - Litigation

Introduction

This page was last updated on May 4th, 2021.
 
This page outlines the definitions, scope, and principles used to collect and categorise the litigation cases displayed in the Climate Change Laws of the World database. 
 
Climate Change Laws of the World also tracks climate change legislation. For details on the methodology used to collect and categorise legislation click here.

Scope

At present, the Climate Change Litigation of the World database features cases from over 40 countries, including the EU as a block. Cases brought before international or regional courts or tribunals that meet the criteria set out below are included.  This dataset does not include cases from the United States, which are collected separately by the Sabin Center / Arnold & Porter Kaye Scholer database.
 
To fall within the scope of the database, cases must satisfy two key criteria. Firstly, cases must generally be brought before judicial bodies (though in some exemplary instances matters brought before administrative or investigatory bodies are also included). Secondly, included climate change law, policy or science must be a material issue of law or fact in the case. Cases that make only a passing reference to climate change, but do not address climate-relevant laws, policies, or actions in a meaningful way are not included. Cases that may have a direct impact on climate change, but do not explicitly raise climate issues, are also not included in the database. Examples of such cases may include challenges to government inaction on air pollution or challenges to the development of fossil fuel infrastructure on the basis of other types of harm to human health and/or the environment. The intent of the litigants with regard to the climate-related consequences of such cases is not considered during the assessment process. 

Categorisation

Prior to addition to the database, cases are categorised according to:
1.     Jurisdiction, including the court or tribunal before which the case was filed (where this information is available);
2.     The type of parties involved (typically NGOs, individual, corporations, or governments); 
3.     The status of the case – e.g. whether the case is filed, on appeal, or concluded;
4.     Whether the case primarily relates to climate change mitigation, adaptation, disaster risk reduction or loss and damage (see CCLW Legislation Methodology for definitions); 
5.     The sector(s) of the economy to which the case is most relevant (see CCLW Legislation Methodology for definitions); and
6.     The primary laws to which the litigation relates. Where these laws are included in the Climate Change Laws of the World Database, the information is cross-referenced.
 
Discretionary keywords may also be assigned to cases to enable data users to identify these more easily. We do not maintain a comprehensive list of keywords.

Data collection process

Cases are identified on a rolling basis by the Sabin Center for Climate Change Law, working in partnership with researchers at the Grantham Institute for Climate Change Research. Common sources of information relied on by researchers include media reports, legal databases, court websites and newsletters, social media, academic articles and other online sources. We take a collaborative approach to data gathering and many cases have been reported through networks of plaintiffs and defendants, academics and researchers, or crowdsourced through other channels.
 
For some specific types of litigation, data is collected in partnership with other institutions. The primary source of cases from Australia is the University of Melbourne, which maintains the Australian Climate Change Litigation Database. The primary source of cases from the Asia-Pacific region is the Asia Development Bank. 
 
Once a case is identified, it is reviewed by researchers at the Sabin Center for Climate Change Law with relevant expertise in the field of environmental and climate change law. Researchers draft case summaries and categorise cases according to the categories described above prior to entry into the databases.

Data Limitations

The database has helped highlight and inform a global field of practice in climate change law, providing information on more than 400 cases in over 40 countries. While we have sought to identify as many cases as possible that may fall within the scope outlined above, the database is not exhaustive. Key limitations include language barriers, levels of media coverage, and public availability of court documents. As a result, coverage in some jurisdictions is more comprehensive than in others. This may contribute to the wide discrepancy in the numbers of climate cases identified in different jurisdictions, although the legal culture in different jurisdictions should also be considered a key factor. In some instances, cases which are identical in subject matter may also have been recorded in the database in one entry.  Similarly, the fact that no climate litigation has yet been identified in a given jurisdiction should not be taken as a certain indication that no such litigation has been filed.
 
At present, the categorisation of cases is limited in scope. For example, the term government is used to identify a wide range of governments and institutions and may refer to national or subnational governments, or to specific government entities such as banks or other institutions. To mitigate this limitation, we do our best to specify the name of the government entities implicated in the litigation.
 
The definition of climate change litigation found in some academic and practitioner-oriented literature is broader than that used to determine whether a case falls within the scope of these databases. The criteria for inclusion set out above has been adopted to facilitate both the process of data collection and to emphasise the distinct nature and importance of cases where climate change is material to the outcome. Climate change touches on a vast range of law and policy issues in the fields of environment, energy, natural resources, land use, and securities and financial regulation, among others; these criteria provide meaningful limits on researchers’ discretion to determine whether a case has climate relevance and help define climate litigation as a distinct field. While the dataset is sufficiently comprehensive and cross-cutting to provide wide-ranging insights, data-users should be aware that individual cases that meet these criteria may be missing and certain trends may not currently be captured in the database. Some cases in the database are identified with the support of pro-climate litigants and their allies, which may mean that these cases are captured in more detail than cases seeking to challenge climate action. Our data collection processes are subject to continual evolution and may in future be modified to include additional categories of cases or to better capture the volume of cases of a given type.
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