A little under 3,000 climate litigation cases seeking to hold governments and corporations accountable for their actions have been filed around the world since 1986. The past decade has seen an unprecedented surge in such cases and dozens of landmark victories around the world. But what exactly is climate litigation, how powerful of an instrument is it really in the fight against climate change, and where is it heading?
Climate change litigation cases seeking to hold governments and corporations accountable for their actions are on the rise worldwide, as suggested in a recent Gratham Institute report.
2023, the hottest year in our planet’s history, was an important year for climate change litigation globally, with national and international courts ruling and advising on fundamental climate matters. Landmark cases brought forward by people from all walks of life have paved the way for others to come forward. They have also proven that citizen action can succeed in holding businesses and governments accountable for their actions.
In this article, Earth.Org looks at what climate litigation is and how it has evolved and grown in the past five decades. It also spotlights key cases that shook the world and shaped this emerging legal field.
What Is Climate Litigation?
Individuals of all ages, environmental groups, and affected communities have been increasingly seeking legal avenues to hold government and corporations accountable for their contribution to climate change and inaction, with rather positive results.
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In the past decade, climate litigation has consolidated as a popular strategy in tackling the ongoing climate crisis – or, as the United Nations Environment Programme puts it, as “a frontier solution to change the dynamics of the fight against climate change.” It has been described as an “attempt to control, order or influence the behaviour of others in relation to climate governance,” and it has been used by governments, private actors, civil society and individuals locally, regionally, nationally, and internationally.
The Global Climate Change Litigation database is the most comprehensive database on the matter. Set up in 2011, it is regularly updated by the Sabin Center for Climate Change Law, an affiliated center of the Columbia Climate School at Columbia University.
As of September 17, 2024, the database contained 2,796 cases – 1,850 filed in the US and 946 in the rest of the world. 70% of these cases have been filed in the past decade alone (2015-2024), following the adoption of the landmark Paris Agreement. It also includes cases brought before international or regional courts or tribunals.
At present, the database features cases from over 55 countries – with the US, the UK, Brazil, and Germany leading the way. Little over 200 cases have been recorded in the Global South, with Brazil accounting for 88 of them.
The database classifies cases filed around the world – except in the US – as (1) lawsuits against governments (including those challenging environmental assessment and permitting, human rights violations and environmental crimes) and (2) lawsuits against corporations and individuals.
It also keeps track of requests for advisory opinions submitted to national and international courts. Advisory opinions are non-legally-binding advises issued by a court regarding the constitutionality or interpretation of a specific law.
Advisory Opinion – Example (click to view)
Meanwhile, cases filed in the US are organized by type of claim, such as (1) federal statutory claims (such as those challenging the National Environmental policy Act and the Endangered Species Act); (2) constitutional claims; (3) state law claims; (4) common law claims; and (5) public trust claims. It also lists cases concerning the regulation, marketing, and commercialization of carbon offsets and credits; trade agreements; and climate adaptation.
Around 5% of all cases have been filed before international or regional courts, human rights tribunals and authorities, with nearly half of the total (44 cases as of September 2024) filed before the Courts of Justice of the European Union.
Recent Trends and Key Cases
The aforementioned report by the Gratham Research Institute, published earlier this year, identified a “consolidation and concentration of strategic litigation efforts” around the world. At least 230 new cases were filed globally, with countries such as Panama and Portugal seeing their first-ever climate lawsuits.
To better understand the drivers of litigation, the Institute developed a typology of the types of behaviour that cases seek to discourage or incentivise.
Of the 233 cases documented last year, 97 (nearly 42%) were classified as “integrating climate consideration cases,” i.e. “cases that seek to integrate climate considerations, standards, or principles into a given decision or sectoral policy, with the dual goal of stopping specific harmful policies and projects, and mainstreaming climate concerns in policymaking.”
‘Integrating Climate Consideration Cases’ – Example (click to view)
47 cases filed last year concerned “climate-washing,” meaning they challenged “inaccurate government or corporate narratives regarding contributions to the transition to a low-carbon future.” The report noted that more than 140 such cases have been filed to date worldwide, particularly in the last few years. Targets of these cases include polluting companies such as airlines, major fossil fuel companies as well as financial institutions over misleading claims to sell their financial products and services.
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‘Climate-Washing Cases’ – Example (click to view)
Among the highest-profile and most frequently discussed cases are what the Gratham Research Institute describes as “government framework cases.” These are lawsuits “that challenge the ambition or implementation of climate targets and policies affecting the whole of a country’s economy and society.”
More than 110 such cases have been filed around the world since the Paris Agreement was passed in 2015, with 15 new filed last year. They target government’s policy responses to the climate crisis, often in relation to the Paris accord, as well as the enforcement of climate protection measures to meet environmental targets. Plaintiffs often build their case on the basis that specific climate goals or protection measures are in violation of basic human rights and increase their vulnerabilities to climate change impacts.
‘Government Framework Cases’ – Example (click to view)
Another way of holding governments and corporations accountable is to challenge their “failure to adapt” to climate change, i.e. “to take climate risk into account.” 64 such cases were filed since 2015, mostly at US and Australian courts.
According to a 2023 report by the UN Environmental Programme (UNEP), adaptation cases are still limited. Indeed, besides having to provide evidence of failure to address past and current climate change impacts – a prerequisite for cases about mitigation – adaptation lawsuits must also account for projections of future impacts.
“Failure to Adapt Cases” – Example (click to view)
The report also identified five new cases concerning the “polluter pays” principle – the idea that the costs of polluting activities should be borne by the party who caused it, rather than the individual or community who suffer from the consequences of pollution. These cases typically seek “monetary damages from defendants based on an alleged contribution to harmful impacts of climate change.” Of the 34 such cases filed since 2015, mostly in the US, the majority remain open.
“Polluter Pays Cases” – Example (click to view)
It is important to note than not all climate litigation cases are necessarily supportive of climate action. In some cases, corporations may file lawsuits to obstruct or hinder climate policies that affect their operations.
According to the Gratham Research Institute report, nearly 50 of all climate litigation cases filed in 2023 were not aligned with climate targets. These involved disputes over the incorporation of climate risk into financial decision-making and “just transition cases” challenging “the distributional impacts of climate policy or the processes by which policies were developed, normally on human rights grounds.” Strategic Litigation Against Public Participation (SLAPP) have also become a common tool to censor, intimidate, or silence critics by burdening them with costly lawsuits, often on grounds that the critiques are defamatory. Journalists, media outlets, and human rights defenders are the main targets of such lawsuits.
In May, the European Union introduced new rules to combat the use of SLAPPs, allowing those targeted by these lawsuits to request a case dismissal early as manifestly unfounded. Those who have brought the legal challenge forward also risk having to bear the costs of the proceedings as well as potential penalties.
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“Non-Climate-Aligned” Litigation – Example (click to view)
Plaintiffs and Defendants
A look at recent climate litigation cases uncovers a growing effort by civil society actors to use the courts to raise awareness about climate action and hold powerful polluters accountable. Individuals and NGOs are beyond most climate cases and about 70% of all cases filed in 2023.
Young people have also increasingly been at the forefront of climate litigation. Many of them have scored historic victories, strengthening youth climate movements worldwide and inspiring fellow activists to follow suit.
Overall, young people often demonstrate a more profound understanding of climate change compared to adults and older generations. According to a InterClimate Network survey published in 2021, more than 8 in 10 young people are concerned about climate change and think it is already having a negative effect on people’s lives. Three-quarters of those surveyed also said they believe the climate crisis will affect their life in the future.
Meanwhile, a 2021 Lancet survey of 10,000 people aged 16-25 across ten countries revealed that more than 50% experienced emotions related to climate anxiety. The study identified dissatisfaction with government responses to the climate crisis as a factor driving anxiety and feelings of betrayal among young people.
For many, these feelings have translated into action campaigns, whether it is through peaceful protests and public disruption campaigns or through the courts. Global climate movements such as Greta Thunberg’s Fridays for Future have brought the topic into the mainstream in recent years, allowing a new generation of young climate leaders – often nicknamed “the climate generation” – to push for change and educate the rest of the world about climate change.
“The climate crisis won’t be solved by any one country doing particularly well, but it won’t be solved if even one country doesn’t get on board,” Hyunjung Yoon, a young South Korean activist, told Earth.Org in September. “Young climate activists around the world are building their own movements in different environments, but I believe we are in this together.”
Yoon is one of 19 young plaintiffs who recently scored a landmark win at South Korea’s Constitutional Court, which ruled that the country’s climate targets are unconstitutional.
Recent cases brought forward by young individuals and activists (click to view)
Governments, companies, and trade associations also file climate cases. The report suggests that “many but by no means all” cases filed by the latter two are not aligned with climate action. These three actors are also the main defendants in climate litigation, with governments historically targeted by the majority of cases. In 2023, over 70% of all cases involved government actors among the defendants compared to 26% involving companies, according to the report.
As some of the aforementioned cases show, companies across different sectors are increasingly the target of climate lawsuits, notably since the enactment of the Paris Agreement. Targeted industries include fossil fuels, airlines, food and beverage, e-commerce, and financial services. Of all cases filed last year, the majority involved companies dealing with fossil fuel exploration, production, and transportation, closely followed by transport, freight and storage companies and business services. Retail, agriculture, and fashion companies were also targeted, albeit in smaller numbers.
Big Oil Climate Lawsuit – Example (click to view)
Impact
Courtrooms around the world have become a key battleground in the public debate over climate change, and recent verdicts have sent an unequivocal message to the world – that climate action is a legal duty.
In 2022, the Intergovernmental Panel on Climate Change (IPCC) – the most authoritative scientific body on climate change – recognized that climate litigation “has influenced the outcome and ambition of climate governance,” adding that its impact is “promising.”
Recent research has demonstrated that the impact of climate litigation extends beyond the parties involved and also affects public opinion and future litigation. Considerable media attention that environmental litigation generates can also influence how climate policy is perceived.
As some lawyers put it: “Whilst environmental related litigation is both complex and costly, it is not just the outcome that is important. The activism and attention that environmental litigation generates can be just as (if not more) significant as a court judgment for ‘win’ or ‘lose’.”
In recent years, there has been a notable surge in the prevalence of climate change litigation with strategic intent. These cases are strategically designed to push for more ambitious climate-related objectives. They seek to impact policies, uphold standards, question the allocation of public resources, and scrutinize the reliability and precision of disclosures related to climate matters. Through these legal actions, stakeholders aim to drive systemic change, compel governments and institutions to uphold higher environmental standards, and ensure transparency and accountability in climate-related decision-making processes.
Climate litigation has successfully challenged governments’ climate targets and agendas as well as their authorization of high-emitting projects, setting important precedents for climate action and emissions reduction. The landmark “Urgenda” case in 2019, which saw the Netherlands’ top court ordering the Dutch government to cut greenhouse gas emissions by 25% by the end of 2020 compared with 1990 levels, made global headlines and has had ripple effects around the world.
The “Urgenda” case (click to view)
Polluting companies are also increasingly being held accountable for their actions and ordered to compensate for the damage they cause. These cases also carry serious reputational and supply chain risks.
No matter the outcome, climate litigation plays a crucial role in shaping the discourse around climate change, holding key actors accountable, and advancing the global agenda for sustainable and responsible environmental practices.
NOTE – This article was originally published in Earth and can be viewed here
Tags: #climate, #climatechange, #climatecrisis, #Climatelitigation, #climaterisk, #environment, #getgreengetgrowing, #globalwarming, #gngagritech, #greenstories, #nature
