Rethinking Climate Rights Litigation

 
Associate Professor of Law Paul Rink’s forthcoming article examines the limits of temperature targets in climate rights litigation and proposes an alternative framework rooted in international human rights law.
 

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As climate litigation expands around the world, courts increasingly are being asked to determine how many greenhouse gases a country can emit while still meeting its human rights obligations. It may seem like a straightforward calculation: Set a global temperature target, determine each nation’s share of the remaining carbon budget and hold governments to it. 

But Associate Professor of Law Paul Rink argues that approach may ask courts to solve the wrong problem. 

In his forthcoming article, “The Limits of Temperature Targets for Ensuring Climate Rights,” to be published in the University of Colorado Law Review in March 2027, Rink argues that carbon budgets are a poor fit for human rights litigation. Rather than asking judges to determine how much carbon a country can emit, he proposes using established principles of international human rights law to evaluate whether governments are taking proper steps to protect people from climate-related harm. 

“Carbon budgets are really important as a policy tool, but they’re not well-equipped for these types of litigation cases,” Rink said. “Judges can grapple with complex technical questions, but they don’t have to for these cases. They can take a much more judicially manageable approach.” 

Rink’s interest in the issue grew from his work as a global staff attorney at Our Children’s Trust, where he monitored climate litigation in international and transnational courts. He saw advocates use different standards to establish whether governments were meeting their climate obligations. Some relied on atmospheric carbon dioxide concentrations, while a growing number of cases turned to the Paris Agreement’s goal of limiting global warming to 1.5 or 2 degrees Celsius. 

That shift has helped shape a growing body of climate rights litigation, including Urgenda Foundation v. State of the Netherlands, in which the Dutch Supreme Court upheld a ruling requiring the government to reduce greenhouse gas emissions. 

Rink does not argue that Urgenda or other successful climate cases were wrongly decided. Instead, he questions whether carbon budgets are the best legal mechanism for reaching those outcomes. 
One problem, he argues, is that carbon budgets can create the misleading impression that a government remains compliant with its human rights obligations as long as it stays within its assigned emissions allowance. But climate-related harms are already occurring. 

Rink points to coral reefs damaged by rising temperatures and extreme wildfires that send hazardous smoke across national borders. “Any further emissions are already making what’s happening to the climate worse,” he said. “That represents a human rights impact that isn’t necessarily captured by the idea that a country still has emissions left in its budget.” 

Carbon budgets also require choices that are fundamentally political: How much should a country be allowed to emit based on its historical emissions? Should allocations be based on population, economic capacity or other measures of fairness? Which countries should reduce emissions first? 

“These are really heavy ethical and value-based determinations,” Rink said. “That’s not the right determination that a judge should be making. It’s a determination that should be made by the political branches, which are democratically accountable.” 

There are practical challenges, too. Climate models and emissions projections evolve as scientific understanding and data change, potentially altering the assumptions underlying a carbon budget. Long-term enforcement presents another difficulty. Climate cases may require governments to meet targets decades into the future, leaving courts to supervise compliance while navigating changing economic and political conditions. 

Rink instead points to three established principles of international human rights law—progressive realization, non-retrogression and minimum core obligations—as a more manageable framework. Rather than challenging an entire national climate policy, plaintiffs could bring narrower cases targeting specific government actions or projects. 

“That would make it much easier for courts to issue a ruling,” Rink said. “They would be deciding whether a specific government action meets established human rights standards, rather than grappling with the intricacies of setting national climate policy.” 

The trade-off is that narrower cases would not produce the sweeping policy changes sought by some climate advocates. But Rink argues that a series of smaller, successful cases could ultimately have a broader effect, allowing courts to hold governments accountable without asking judges to make inherently political decisions about how the world should divide its remaining carbon budget.