ABSTRACT
Plaintiffs around the world are relying on carbon budgets derived from the Paris Agreement’s 1.5°C and 2°C global warming temperature targets as proposed metrics for states’ human rights compliance. Although these budgets are an important policy tool in efforts to combat the climate crisis, this litigation trend is misguided. Such emissions allocations are conceptually mismatched with human rights abuses and therefore represent a poor standard for identifying and preventing them. On a practical level, inherent uncertainties in climate modeling, data collection, and accounting practices hamper courts’ ability to use carbon budgets as the legal basis for consistent and meaningful rights protection. Judges are ill-suited to the value-laden enterprise of determining or endorsing equitable allotments of greenhouse gas release for individual nations, and they are hard-pressed to enforce future-oriented budget calculations that face political, social, and economic headwinds beyond their control.
Alternative standards exist. The principles of progressive realization, non-retrogression, and minimum core obligations are ready-made alternatives to carbon budget proposals for judges deciding climate rights cases. These concepts are fundamental aspects of human rights law, making them a much better fit for rights-based decision-making. They are less susceptible to pre-trail dismissal and can support a broader swath of climate-related claims related to both mitigation and adaptation. In addition to replicating the success of flagship carbon budget cases contesting systemic policies, they can underpin narrower complaints against discrete governmental actions that are more readily enforceable.
Rink, Paul, Toward New Standards in Strategic Climate Rights Litigation (September 25, 2026), University of Colorado Law Review, volume 98 (2027).
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