Private Law Theory

ABSTRACT
Climate change litigation has emerged as a powerful tool for addressing the climate crisis, particularly in the face of executive and legislative inaction. Across jurisdictions, courts have issued landmark decisions mandating stronger mitigation targets and recognizing rights-based claims against governments and corporations. While recent scholarship has examined the trends, legal theories, and broader effects of this relatively new phenomenon, it has primarily focused on bringing and winning legal challenges. Less attention has been paid to a crucial phase: the implementation and enforcement of judicial rulings. A deeper understanding of how climate remedies are implemented can provide valuable insights for climate litigators and advocates seeking to transform judicial orders and agreements into concrete action. Drawing from human rights litigation, this Article identifies four key factors that influence the implementation of and compliance with judicial decisions: (1) the type and scale of remedy ordered; (2) institutional capacity and strength; (3) the court’s ability to retain supervisory authority; and (4) the role of coalitions and stakeholders in raising the costs of non-compliance. Through analysis of four climate change cases – from Colombia, Germany, the United States, and the European Court of Human Rights – where plaintiffs challenged national or subnational emissions reduction plans, this Article develops a novel framework for assessing the viability of court-ordered remedies. The framework yields two significant insights for future climate litigation. First, while defendants may readily comply with modest remedies, the nature and strength of the defendant relative to the judiciary often have a more significant impact on compliance than the specific remedy sought. Second, implementation typically requires subsequent legal actions to ensure progress and enforcement, highlighting the importance of sustained advocacy beyond initial legal victories.

Bustos, Camila, Implementing Climate Remedies (April 1, 2025).