Why Climate Litigation?
Climate ambition in countries around the world remains inadequate to the scale of the climate crisis. As a result, individuals, communities, businesses, organizations, and subnational units of government have turned to the courts as a means of forcing action on climate change and seeking restitution for the harms it is causing.
Climate litigation has been brought with varied aims. As with all impact litigation, climate litigation is as much about political, social, and economic change as it is about legal victories. Climate litigation is not a substitute for political action, advocacy, campaigning, economic initiatives, and other activities, rather, climate litigation is part of a larger process in which a case is one tool towards the ultimate goal of lasting change.
There are several reasons why climate litigation is an important and strategic tool in the broader campaign to address climate change. First, climate litigation has a track record of achieving important victories in the court room that set precedents for future cases, over time building a framework that supports further victories in the courtroom as well as interventions into the political system. Notable and significant precedents and real world impacts that have been established through climate litigation.
Second, climate litigation deals directly with issues of harms and injustice, especially when concerning tort law or the violation of human rights. It is widely recognized that the gravest impacts of climate change will be felt by those who have contributed to the problem the least. That makes climate change a justice and human rights issue, with the legal system being an appropriate place to arbitrate such issues.
Third, climate litigation can help forward the political, social, economic, and cultural objectives of the climate movement. Beyond the direct legal impacts, climate litigation can achieve indirect impacts such as raising awareness amongst the public and increasing pressure for governments and corporations to change their actions. The publicity, narrative, and framing generated by strategic climate litigation can be just as important as any legal change that is won in the courtroom.
The easiest way to measure the impact of climate litigation is in the precedents and actions that have directly resulted from litigation. Since the early 1990s, when the first cases were brought to court, climate jurisprudence has developed from rejecting climate claims as speculative, to delivering numerous highly consequential victories for climate action. The number of climate litigation cases have trended upwards over time and key precedents have changed the legal and regulatory framework, advancing climate mitigation and adaptation on multiple fronts. Key precedents have large cascading impacts and established a path for addition litigation to enforce the precedent in other situations and jurisdictions. For example, the Urgenda decision has inspired suits seeking other countries to adopt more ambitious greenhouse gas reduction targets. The precedent that environmental assessments must include consideration of climate impacts opened the door for challenges to numerous fossil fuel projects on the basis of their climate impacts.
A few of the key precedents established through climate litigation include:
- Greenhouse gases are pollutants subject to state regulation (United States in Massachusetts v. EPA)
- Climate change risks are a mandatory requirement in Environmental Assessments (Australia, Kenya, South Africa, and the United States)
- Climate adaptation and resilience are a consideration in reviewing development plans (Colombia, India, and Pakistan)
- Governments must implement existing domestic climate laws and policies (Leghari v. Federation of Pakistan)
- Citizens have a right to the free access of environmental information (German Federation for Environment and Conservation (B.U.N.D.) v. Minister for Commerce and Labor)
- Governments have a duty of care for climate change (Urgenda Foundation v. State of the Netherlands)
- State incentives for renewable energy are a legitimate policy objective (Syncrude Canada Ltd. v. Attorney General of Canada)
- Deforestation violates human and constitutional rights of children and future generations (Colombia and Pakistan)
- Governments must protect citizens’ right to a clean environment by requiring restrictions on pollutants known to compromise human health (European Committee on Social Rights in Marangopoulos Foundation for Human Rights (MFHR) v. Greece)
- Air pollution caused by burning of fossil fuels can violate the fundamental human rights to life and dignity (Federal Court of Nigeria in Gbemre v. Shell)
Real climate impacts
Quantifying the greenhouse gas emission reductions of climate litigation can be challenging as many cases, even if successful, impact greenhouse gas emissions only indirectly. However, there are examples of climate litigation that directly led to reductions in greenhouse gas emissions. Some successful cases have directly prevented fossil fuel extraction or usage, thereby directly limiting emissions. Other cases have directly resulted in government action that reduced emissions.
Some of the direct climate impacts of litigation include:
- The Netherlands moved to reduce the capacity of its remaining coal-fired power stations by 75% and implement a €3 billion package of measures to reduce Dutch emissions by 2020. (Urgenda Foundation v. State of the Netherlands)
- The United States established motor vehicle and power plant emission standards under authority created by the landmark case Massachusetts v. EPA
- The State of Massachusetts amended six regulations in response to a court ruling directing the state to establish specific greenhouse gas emission limits. (Kain v. Department of Environmental Protection)
- In Pakistan, a Climate Change Commission was established to implement the National Climate Change Policy. (Leghari v. Federation of Pakistan)
- Proposed coal-fired power plants have been halted due to climate litigation (Kenya, Poland, and South Africa)
- One of the largest pension funds in Australia agreed to set a net-zero carbon footprint goal by 2050 and to incorporate climate change financial risk into its decision making. (McVeigh v. Retail Employees Superannuation Trust)
- In the United Kingdom, a BP "greenwashing" campaign was taken down after a complaint was filed with the OECD. (Complaint against BP in respect of violations of the OECD Guidelines)
It is widely recognized that those who feel the greatest impacts of climate change are those who are least responsible for the problem. These often include communities grappling with other injustices such as poverty and the legacy of colonialism. Viewed through this lens, climate litigation strives for climate justice as well as the mitigation greenhouse gases entering the atmosphere. Recent years have seen a "human rights turn" in climate litigation, as more cases now explicitly argue that the actions or inaction of governments and corporations violate the human rights of those who are suffering or will suffer the greatest harms from climate change. The legal system is an appropriate place to arbitrate issues surrounding harms and injustices, and that makes climate litigation an essential part of addressing the injustice of climate change.
Important human rights and climate justice cases have argued:
- The rights to life, health, or dignity are dependent on a healthy environment (Colombia, Nigeria, and Bangladesh)
- Foreign governments can be held accountable for violating the rights of inhabitants of low-lying islands (Petition of Torres Strait Islanders)
- The rights of children are violated by a failure to act on climate change (United Nations, Canada, European Court of Human Rights, United States, and Uganda)
- Equal protection under the law is violated because climate change will have disproportionate impacts (Khan v. Federation of Pakistan)
Strategic Reasons to Pursue Climate Litigation
In addition to the precedents established and relief won inside the courtroom, climate litigation, used strategically, can have notable effects outside of the courtroom as well. Climate litigation can be used to put pressure on governments, corporations, or society at large to change behavior and address the climate crisis.
Climate litigation can maximize the pressure it places on governments, corporations, and society by coupling a well-crafted communication strategy with the litigation. Successful examples of this include the Juliana case which has been framed as "Youth v. Gov" and has its own website and Notre Affaire à Tous v. France which has been branded "l’Affaire du siècle," or "the case of the century" and also has its own website.
Putting Pressure on Corporations
Strategic climate litigation against corporations can apply pressure in several different ways. First, direct financial costs can be imposed on a polluting corporation in the form of legal fees, administrative fees, fines, and awards of damages. While no large damages have been obtained from the fossil fuel industry yet, the history of tobacco and asbestos litigation show how industries that have harmed the public health can end up bearing significant financial liability for their actions.
Climate litigation can also place indirect financial costs on corporations. Corporations are sensitive to their reputations, especially in industries that are exposed to the consumer. Reputational losses can result in loss of business or divestment, both of which hurt the corporations bottom line. If an industry or corporation sufferers severe reputational damage, it can lose its public license to operate which will open it up to additional regulation and litigation from governments.
Finally, litigation can also be a valuable tool to gain access to industry documents through the discovery process. Fossil fuel industry documents obtained to date show that they were aware that the use of their products was changing the climate far earlier than they publicly acknowledged, and well before they ran public disinformation and lobbying campaigns to sow doubt about the existence of climate change.
Putting Pressure on Governments
Climate litigation can be a useful tool to draw attention to the failure of government to address climate change and to change the debate within government itself. Cases can focus on broad inaction to address climate change such as Juliana v. United States or on a specific failure, such as failure to set sufficient targets under the Paris Agreement as in Urgenda. Independent of success in court, litigation has been shown to stimulate public and political awareness. For example, the Urgenda case resulted in increased news coverage and increased parliamentary attention to climate politices.
Climate litigation can be used to raise awareness among the public about climate change, its impacts, and the groups being harmed by it. Litigation can create a compelling narrative that not only raises awareness of the climate movement, but gives citizens a compelling reason to join. Cases such as Juliana v. United States have generated significant publicity primarily because of the compelling narrative they provide. Litigation also serves as an opportunity to frame climate change in a certain way, for example as a choice between the rights of children or fossil fuel corporations. By establishing a frame that these are in conflict with one another, it forces the public to choose a side.
- Global Climate Litigation Report: 2020 Status Review. United Nations Environment Programme and Sabin Center for Climate Change Law.
- Batros, Ben and Khan, Tessa. 2020. Thinking strategically about climate litigation.
- Vallejo, Catalina and Gloppen, Siri. 2020. The quest for butterfly climate judging
- Wonneberger, A. and Vliegenthart, R. 2021. Agenda-Setting Effects of Climate Change Litigation: Interrelations Across Issue Levels, Media, and Politics in the Case of Urgenda Against the Dutch Government. Environmental Communication.
- Setzer, J. and Byrnes, R. (2020). Global trends in climate change litigation
- Setzer, Joana and Vanhala, Lisa. (2019) Climate change litigation: A review of research on courts and litigants in climate governance
- Boom, K., Richards, J., and Leonard, S. (2016). Climate Justice: The international momentum towards litigation