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The potential role of climate change litigation in furthering the mitigation objectives of the Paris Agreement

Bridie Butterfield

Keywords: climate change; United Nations Framework Convention on Climate Change (UNFCCC); Paris Agreement; mitigation; nationally determined contributions (NDCs); litigation; liability; Australia

The potential of litigation to influence government decisions with respect to mitigating the damaging impacts of climate change has been tested in the Netherlands, and may soon be tested in the United States. This article will consider the role of mitigation in the Paris Agreement, highlighting the gap between the climate-change goal the Parties have collectively agreed to support, and the virtual impossibility of achieving it on the basis of their individual non-binding commitments as outlined to date in their Nationally Determined Contributions. In light of effective international solutions being slow to eventuate, the potential role of climate change litigation in promoting positive climate outcomes will be examined through reviewing two cases, brought by citizens against their own government and aimed at reducing their nation's greenhouse gas emissions and its reliance on fossil fuels. The prospect of the Australian government being held accountable in the courts for its inaction on climate change will then be discussed, with reference to both the potential influence of international judicial activism, and how Australia's international obligations to limit the country's collective emissions under the UNFCCC, the Kyoto Protocol and the Paris Agreement might be given greater legal force.

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