Overview of Climate Litigation

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Climate litigation is a broad category of legal action that specifically raises climate change and its effects, generally to further climate change mitigation efforts, or the adaptation to the impacts of climate change. As a broad category, climate litigation has been brought before administrative, judicial, and other investigatory bodies in both domestic and international courts.

There are a wide variety of goals that can be pursued through climate litigation. Often the goals of climate litigation include:

  • Pressuring governments to adopt bolder mitigation efforts
  • Preventing specific projects that would contribute to climate change, such as fossil fuel extraction, transportation, or power plants.
  • Seeking damages from fossil fuel companies or other entities that are significant contributors to climate change
  • Seeking to limit financial resources available for fossil fuel extraction through divestment and financial disclosure claims
  • Obtaining internal fossil fuel industry documents through discovery
  • Drawing public attention to climate change and its causes and impacts.

This page provides an overview of the major categories of climate litigation that have been brought to date.

Sources of Climate Obligations[edit]

Those who seek to use the courts as a means to address climate change and the injustices that it causes have tried a diverse set of approaches in order to obtain relief. The grounds for climate litigation have included statutory and policy obligations, constitutional and human rights obligations, and common law and tort obligations.

Statutory and Policy Obligations[edit]

Many jurisdictions have statues or national policies that have codified climate change obligations for private and public actors. These include everything from national comprehensive climate policies to regulations focused on a narrow set of emissions or activities. This category is by far the most common basis for climate litigation.[1]

Constitutional and Human Rights[edit]

Some cases of climate litigation are brought under constitutional or human rights claims. Although a small percentage of total climate litigation cases focsuses on constitutional rights, human rights, and the Public Trust Doctrine, these cases have an outsized impact because they typically seek bold remedies and generate disproportionate attention.[1]

Many climate litigation cases focusing on constitutional claims have been brought under the Right to a Healthy Environment, which is now included in the constitutions of over 100 countries.

Other cases have focused on codified constitutional rights such as the right to life, health, water, food, and family life, all of which are also threatened by climate change.

Common Law and Tort Theories[edit]

In common law jurisdictions, a small percentage of climate litigation cases have been brought under tort theories such as negligence, duty of care, and nuisance. Cases brought against the fossil fuel industry seeking climate change damages often fall into this category. To date, no court has awarded a plaintiff damages for climate change harms suffered as a result of a defendant's contribution to climate change.[1]

Claims Against Governments[edit]

Climate litigation claims are frequently brought against governments. Litigation against governments has sought to force countries to set and stick to bold greenhouse gas reduction targets, develop adaptation measures to protect citizens from climate impacts, and block fossil fuel projects which will exacerbate the impacts of climate change. Claims have been brought citing violations of international agreements, existing national laws, constitutional rights, and human rights. These categories are not distinct and often these arguments are combined in a single case.

Failure to Set Bold Climate Targets[edit]

One climate litigation strategy that has been successful has been to allege that a government is failing to set bold enough commitments under international climate agreements. International agreements such as the Paris Agreement provide benchmarks by which governments' actions can be measured. This strategy was successfully employed in Urgenda Foundation v. State of the Netherlands in which a collection of Dutch NGO's and citizens forced the Dutch government to set bolder targets for greenhouse gas emissions. Urgenda was the first in the world in which a domestic court forced a country to step up its emissions reductions for a reason other than a statutory mandate and has inspired similar cases in Belgium and France.

Under The Paris Agreement, countries are required to establish Nationally Determined Contributions (NDC's) for greenhouse gas emission reductions.[2] When a state's NDC's are inadequate to bring it into compliance with the target of limiting climate change to significantly less than 2°C, climate litigation in the model of Urgenda can be a tool to force a bolder national response.

Similar cases have been brought when governments failed to pursue adequate climate mitigation under national law. In Thomson v. Minister for Climate Change Issues, a New Zealand law student sued the New Zealand government for failing to set adequate greenhouse gas emission reduction targets under New Zealand's 2002 Climate Change Response Act.

Failure to Meet Climate Commitments[edit]

Climate litigation can be used to force governments that are failing to live up to their climate targets to undertake additional climate mitigating steps. In Leghari v. Federation of Pakistan, a Pakistani farmer sued the national government for failure to carry out the 2012 National Climate Policy and Framework. The court ordered specific steps to further the governments mitigation efforts, notably the creation of a "climate change focal person" within certain ministries and a Climate Change Commission to coordinate national response across the Pakistani government.

In Future Generations v. Ministry of the Environment, 25 youth plaintiffs successfully sued the Colombian government for failure to reduce deforestation in the Colombian Amazon in accordance with the country's commitment under The Paris Agreement.

As countries have established NDC's under The Paris Agreement and national climate policies have become more common, climate litigation can be used to hold governments accountable to fulfill their climate pledges.

Violation of Rights[edit]

Numerous climate litigation cases have centered around alleged violations of constitutional or human rights. A number of these cases have invoked the Public Trust Doctrine on behalf of youth plaintiffs or future generations. In Juliana v. United States, 21 youth plaintiffs sued the United States government alleging a violation of the Public Trust Doctrine by failing to protect essential public trust resources. In Ali v. Federation of Pakistan, a 7-year old sued the Pakistani government for failure to protect fundamental rights and the public trust.

Alleged violations of human rights under international law have also been the grounds for climate litigation. A group of 18 islanders of the Torres Strait submitted a petition to the United Nations Human Rights Committee alleging that Australian inaction on climate change violates the International Covenant on Civil and Political Rights because it threatens their low-lying homeland which is particularly threatened by rising seas and coral bleaching. In Sacchi et al. v. Argentina et al., 16 children from various countries filed a petition that five countries had violated their rights under the United Nations Convention on the Rights of the Child by failing to cut greenhouse gas emissions. Youth for Climate Justice v. Austria, et al. and Swiss Senior Women for Climate Protection v. Swiss Federal Council alleged similar violations under the European Convention on Human Rights.

The constitutions of many countries contain constitutional rights that courts have found to be relevant to climate litigation. Cases have been successfully brought arguing that greenhouse gas emissions violate the Right to a Healthy Environment, the Right to Life, and the Right to Health in various countries. In Gbemre v. Shell a Nigerian federal court ruled the practice of gas flaring unconstitutional under the "fundamental rights of life and dignity of human persons." In In re Court on its own motion v. State of Himachal Pradesh an Indian court ruled that Black Carbon emissions in the Himalayan state of Himachal Pradesh violated citizens constitutional rights to a wholesome, clean and decent environment.

Blocking Fossil Fuel Projects[edit]

Climate litigation has also been an essential tool to block or delay fossil fuel projects and keep fossil fuels in the ground. Often fossil fuel projects are challenged on procedural grounds. Such claims argue that the government did not follow the proper procedures when reviewing and approving the project, often by a failure to properly conduct an environmental assessment. In WildEarth Guardians v. United States Bureau of Land Management, a United States Federal Court vacated 287 oil and gas leases because the Environmental Assessments had failed to consider greenhouse gas emissions.

Similar cases have been brought outside of the United States. In EarthLife Africa Johannesburg v. Minister of Environmental Affairs, a coal-fired power plant was blocked because greenhouse gas emissions were not considered in the environmental assessment. The first proposed coal-fired plant in Kenya was blocked in Save Lamu v. National Environmental Management Authority because public participation and the impacts of greenhouse gas emissions were not a part of the review process. Gray v. Minister for Planning ruled that a proposed coal mine in Australia had failed to adequately consider climate change in its environmental assessment.

Airport expansions, off-shore oil drilling, and oil pipelines have also been challenged on procedural grounds.[3] [4] [5]

Claims can also be made to block fossil fuel projects on substantive grounds by showing that a proposed fossil fuel project is not in the public's interest. In Gloucester Resources Limited v. Minister for Planning, a court upheld a denial of a permit for a proposed coal mine because it was determined the mine's environmental and social costs outweighed its benefits.

Claims Against Corporations, Businesses, and Industry[edit]

Recent years have seen a global movement to hold fossil fuel companies liable for causing the climate crisis.[6] As the consequences and harms of climate change have become more visible and Attribution Science has become better at connecting greenhouse gas emissions with climate related impacts, the number of cases brought against the fossil fuel industry has risen.[7]

With just 90 fossil fuel and cement producers responsible for 63% of all historical greenhouse gas emissions, a small number of firms have had an outsized contribution to climate change.[8] Further, because the largest emitters were aware of the impacts of burning fossil fuels decades ago [9] and participated in public disinformation campaigns to distort the impacts of their products, [10] these entities have additional culpability that is being explored through litigation.

Climate litigation against corporations, businesses, and industry often focuses on obtaining damages, blocking additional fossil fuel extraction, forcing divestment from the fossil fuel industry, shedding light on corporate false advertising and "greenwashing" campaigns, and holding the fossil fuel industry accountable for their role in disinformation campaigns about the climate impacts of fossil fuels.

Damages[edit]

Often cases against fossil fuel companies seek damages to cover the cost of climate mitigation and adaptation measures, arguing that the companies who caused climate change should be liable for its costs. To date, no court has ordered a defendant to pay damages for climate harms caused by a defendant’s contribution to climate change, but a number of ongoing cases seek just that.[1]

One example of an individual brining litigation against a fossil fuel compnay is Lliuya v. RWE. In the case a Peruvian farmer whose home is threatened by a melting glacier sued the German carbon major RWE for knowingly contributing to climate change. Aware that RWE is only responsible for a portion of global climate change, Lliuya is seeking 0.47% of the cost of adaptation, equal to RWE's share of greenhouse gas emissions since the beginning of the industrial revolution.

Similar cases were brought in the United States in Kivalina v. ExxonMobil and Comer v. Murphy Oil. In Kivalina, an Alaskan native village sued 24 oil, energy, and utility companies seeking the costs needed to relocate the village threatened by reduced sea ice and rising sea levels. In Comer, a class action suit was brought on behalf of residents impacted by Hurricane Katrina against several fossil fuel companies. Both of these cases were dismissed because the courts struggled to see causation between particular greenhouse gas emissions and particular damages and ultimately ruled that such cases were a legislative matter. These cases are emblematic of some of the challenges of holding fossil fuel companies liable for their role in causing global climate change.

Individuals and private actors are not the only ones facing increased costs from the impacts of climate change. Local governments also face costs in the form of increased risk to disasters such as wildfires and hurricanes as well as the infrastructure costs associated with adapting to rising seas and increased precipitation. Recent years have seen a trend of local and state governments in the United States bringing claims against the fossil fuel industry seeking to recoup some of these costs. The United States Supreme Court in Baltimore v. BP is currently deciding whether these cases should be heard in state or federal courts.

Divestment From Fossil Fuels[edit]

Litigation can be used to target the banks, pension funds, and entities that finance fossil fuel extraction. Recent years have seen a growing movement to divest from fossil fuels and litigation can be one tool to limit financing for fossil fuel projects. These cases be centered on fiduciary duties, disclosure requirements, or damages from investing in a product that is causing harm.

In McVeigh v. Retail Employees Superannuation Trust, an Australian pensioner brought a suit alleging that his pension fund had failed to adequately incorporate climate risk into its decision making. The suit also accused the pension fund of failing to disclose climate related risks. In a settlement, the pension fund agreed to incorporate climate risk into its decision making and to pursue carbon-neutrality across its investments by 2050.

In Harvard Climate Justice Coalition v. Harvard College, a group of Harvard students sued the university and the entity that oversees its endowment. The claim stated Harvard had breached its fiduciary and charitable duties because such fossil fuel investment contributed to climate change and other harms to “the public’s prospects for a secure and healthy future."[11]

False Advertising and "Greenwashing"[edit]

Several suits in recent years have accused fossil fuel companies of using misleading advertising to suggest that their products are more climate-friendly than they are. In 2019, ClientEarth, a British environmental group, filed a complaint against BP alleging that a company had violated OECD guidelines in an advertising campaign that mislead the public on the extent to which BP was investing in low-carbon energy activities. As a result of the lawsuit, BP took down their advertising campaign.

A similar case was brought in the United States. In Beyond Pesticides v. ExxonMobil, a nonprofit alleged that Exxon violated consumer protection law with an advertising campaign that implied that Exxon engaged in clean energy at a significant level while in fact its core business remained entrenched in fossil fuels.

Climate Disinformation Campaigns[edit]

Internal industry documents show that the fossil fuel companies have known for decades that burning fossil fuels would impact the climate.[12] Instead of investing in alternatives to fossil fuels, industry doubled down on fossil fuels and launched a public disinformation and lobbying campaign to sow doubt about climate change.[13] Recent litigation brought by shareholders in Ramirez v. ExxonMobil and In re Exxon Mobil Corp. Derivative Litigation alleges that Exxon continues to mislead shareholders.

State attorneys general in the United States have also brought cases alleging Exxon has mislead consumers and shareholders. Cases have been brought in New York, Massachusetts, Minnesota, and the District of Columbia.

Other Cases[edit]

Although distinct from the bulk of climate litigation, two more types of climate litigation are defending the rights of climate protestors and seeking asylum for climate refugees. As with the more common types of climate litigation, these cases seek to protect the rights of those who have been harmed by climate change and forward the cause of addressing climate change, in this case by defending those who are on the front lines of the climate movement.

Defending Climate Protestors[edit]

Climate litigation is just one of the many levers necessary to address the global challenge of climate change. Protest and civil disobedience are also levers that can be used. When they are, the activists putting their bodies on the line for the planet need a strong defense in court. The Necessity Defense is one defense that has been successfully used, both to gain acquittal and to draw attention to the threat of climate change.

In Commonwealth of Massachusetts v. Ward, two men invoked the necessity defense after using a lobster boat to block a coal barge. Charges were dropped in the case. In the Trial of Angela Ditchfield in the UK, an Extinction Rebellion protestor was cleared for spray painting a public building. In the Credit Suisse Protesters Trial in Switzerland, a group of protestors were charged after occupying a Credit Suisse branch to protest the bank's fossil fuel investments. The protestors invoked the necessity defense at trial to mixed effect.

Climate Refugees[edit]

As global climate change causes parts of the world to become uninhabitable due to sea level rise or extreme heat, the number of climate refugees is expected to dramatically increase. Several immigration cases have already sought to use climate change as a reason for seeking refugee status. Two such cases took place in New Zealand as residents of Tuvalu and Kiribati, two of the lowest-lying nations in the world, have sought immigration status in New Zealand. Such cases will become more common as the global impacts of climate change increase.

Indigenous Peoples[edit]

Indigenous peoples are among the first to face the direct consequences of climate change, due to their dependence upon, and close relationship, with the environment and its resources. Climate change exacerbates the difficulties already faced by indigenous communities including political and economic marginalization, loss of land and resources, human rights violations, discrimination and unemployment.[14] There are already many cases brought before the courts by the indigenous peoples.

References[edit]