One of the more interesting trends in climate litigation has been the child plaintiff seeking damages for future losses. Children have been increasingly involved in climate-based litigation all over the world, asserting the loss of future rights by failing to avoid the worst of climate impacts (ENVironnement JEUnesse v. Procureur General du Canada) and failing to minimize climate risks (Indonesian Youths and others v. Indonesia). There are 19 suits against non-US governments with children claimants. This type of claimant has been increasingly used as a tactic, and while there is still a long way to go, much can be learned by considering this developing strategy.

Children claimants often face difficulties overcoming the earliest of litigation hurdles. Children of Austria v. Austria recently had their application rejected by Austrian Constitutional Court for requesting relief that was too narrow in scope to address the problem, and additionally that a proper remedy would require the court to act as legislature, violating the separation of powers.

The Children of Austria were contesting the validity of the Federal Climate Protection Act (Klimaschutzgesetz 2011). The law created emission targets only until 2020, and the lack of future emission targets have led to an increase in emissions in Austria since. They argued this oversight violated their fundamental right to equality, as well as a slew of rights guaranteed to children. The Austrian government had passed the Federal Constitutional Act on the Rights of Children. It implemented the UN Convention on the Rights of the Child on a national level for all children under 18. This includes the right to have their best interests protected. Another right is the consideration of intergenerational equity, because children were not being treated equally to adults where emissions now lead to global heat for future generations.

The Constitutional Court ruled that the relief sought could not solve for the harm described. And to attempt to do so, the court would have to legislate, well outside of a court’s mandate. This demonstrates one of the major hurdles climate change litigators will face – a single remedy, or a court’s judgement, will not solve the problems the claimants will allege. In most cases, they will only begin to scratch the surface. Litigators will need to carefully structure their cases to create a compelling story of a government (or corporate) action (or omission) that causes a direct harm, and that can be obviously remedied by the relief sought. They will need to do this without overblowing the association to the larger global patterns, or risk losing the case before it can be presented.

A harm must be manageable by a court. If a court cannot offer a remedy, it will decline to hear a case. And while children make for compelling focal points for a narrative of catastrophic global heat, children claimant’s lawyers should ensure their cases remain as local as possible, focusing on local government actions and harms that can be easily measured and with intermediate shifts to demonstrate the potential for solutions. Begin with the end in mind. The end of the case, not the fight for climate. The air and water quality gains in local areas all over the United States after the Clean Air and Clean Water Acts provide examples.