Climate change litigation and the awfulness of lawfulness

[Extract]
Climate change litigation is occurring with increasing frequency across many varied categories of law and, according to Justice Brian Preston, ‘it is likely that the avenues used to litigate climate change-related matters will continue to
expand.’ Yet the reactive precedent-bound nature of judge-made law means that such litigation is frequently unsuccessful. Borrowing a catchy phrase from authors Sam Blay and Ryszard Piotrowicz, I am describing this structural impediment to radical change through judicial interpretation as the awfulness of lawfulness. Given the problems posed by the awfulness of lawfulness, it could be argued that climate change litigation is not a worthwhile use of time and resources.
Yet lawfulness is not always awful from an activist perspective. The characteristics of lawfulness much vaunted by a conservative legalistic judiciary, such as neutrality and equality, can sometimes yield surprisingly positive outcomes for outsider litigants. Moreover, unsuccessful outcomes do not necessarily detract from the usefulness of climate change litigation. Even
unsuccessful lawsuits can raise public awareness and
lead to changes in law and government policy.