Climate litigation on the rise globally, says LSE study
The importance of climate change litigation is growing as a means of promoting effective action on climate change, and cases against oil and gas companies are a particular focus, according to new research.
The importance of climate change litigation is growing as a means of promoting effective action on climate change, enforcing or enhancing governmental climate commitments, and influencing the outcome of climate governance debates at all levels of government, says a new report published by the London School of Economics (LSE).
The Intergovernmental Panel on Climate Change recognised this year that climate change litigation can affect “the outcome and ambition of climate governance”.
But the report, entitled Global Trends in Climate Change Mitigation: 2022 Snapshot, warns that changes to the legal regime governing climate change resulting from court judgments only partially reflects the influence of litigation on climate governance, and that “considerably more research is still required to help understand the overall effectiveness of litigation as a tool for advancing climate action.”
The research, published on Thursday, adopts a narrow definition of climate litigation. “We consider climate change litigation to include cases before judicial and quasi-judicial bodies that involve material issues of climate change science, policy, or law,” it says.
Out of the total 2,002 cases of climate-related litigation contained in the data bases used to compile the report, over 1,200 were filed in the last eight years, and around 25 percent of these were filed between 2020 and 2022. The majority of cases have been filed in the Global North, but cases from the Global South are also being filed, with 88 cases coming from that region.
The report indicates that over 70 percent of cases filed in the year to May 2022 targeted governments – both national and regional – and that a similar percentage were brought by non-governmental organisations (NGOs), individuals, or both together. Although national governments remain the most frequent defendants, climate litigation is also targeting subnational or regional governments, particularly in Germany. Outside the U.S., NGOs and individuals comprise 90 per cent of claimants, while in the U.S., governments, companies and trade associations comprise a higher percentage of claimants.
During the year to May 2022, more cases against oil and gas companies – referred to as “Carbon Majors” in the report – and other fossil fuel firms were filed, particularly outside the U.S. Litigation is also rising against corporate entities in the food and agriculture, transport, plastics and finance sectors. Increased litigation against agricultural companies could herald future climate litigation against other high emitting sectors, such as heavy-duty industry – for example steel and cement – textiles, shipping and aviation.
The report cites a continuing increase in the number of climate-related cases that fall into a subset known as “strategic” climate litigation in which the claimant’s goals transcend the concerns of the individual litigant and aim at advancing climate policies, creating public awareness, or changing the climate-related behaviour of government or industry entities. This has turned climate litigation into “an activist strategy across jurisdictions.” The report identifies eight categories of climate-aligned strategies underpinning climate litigation. They are not mutually exclusive, and several cases employ multiple strategies simultaneously, often against multiple defendants.
- Government framework: Cases that challenge the implementation or ambition of climate targets and policies affecting an entire country’s economy and society (Urgenda Foundation v. State of the Netherlands: Urgenda Foundation v. State of the Netherlands – Netherlands – Climate Change Laws of the World (climate-laws.org)). Such cases typically aim to enhance national-level targets and plans, providing a basis for more ambitious policy decisions at every level of government. A sub-group of these cases focus on subnational governments and can be seen as state-wide or region-wide cases. Some cases in this category may also include arguments about specific policies or projects (Ali v. Federation of Pakistan: Ali v. Federation of Pakistan (Supreme Court of Pakistan 2016) – Pakistan – Climate Change Laws of the World (climate-laws.org) and (oao Friends of the Earth v Secretary of State for Business Energy and Industrial Strategy “Net Zero Challenge”: R (oao Friends of the Earth et al) v Secretary of State for Business Energy and Industrial Strategy (Net Zero Challenge) – United Kingdom – Climate Change Laws of the World (climate-laws.org)).
- Corporate framework: Cases aiming to disincentivise companies from continuing with high-emitting activities by requiring changes in corporate governance and decision-making. They focus on company-wide policies and strategies (Milieudefensie et al. v. Royal Dutch Shell plc.: Milieudefensie et al. v. Royal Dutch Shell plc. – Netherlands – Climate Change Laws of the World (climate-laws.org)), and frequently draw on human rights and environmental due diligence standards. They have been filed before national courts, OECD national contact points and national human rights bodies, and often draw heavily on the theories and evidence developed in framework cases against governments.
- Enforcing climate standards: Cases that seek to integrate climate standards, questions, or principles into government decision-making to stop particular harmful policies and projects and make climate concerns more mainstream among policymakers. Cases may challenge new policies developed without careful consideration of climate impacts, or decisions to reduce the level of ambition in existing climate policies. They typically focus on mitigation, and many target fossil fuel extraction and fossil energy generation. They may also focus on agriculture and land use change.
- Public finance: Cases that challenge the flow of public money to projects that are not aligned with climate action (Africa Climate Alliance et al. v. Minister of Mineral Resources & Energy et al. (#CancelCoal case) Africa Climate Alliance et. al., v. Minister of Mineral Resources & Energy et. al. (#CancelCoal case) – South Africa – Climate Change Laws of the World (climate-laws.org), and (Kang et al. v KSURE and KEXIM: Kang et al. v. KSURE and KEXIM – South Korea – Climate Change Laws of the World (climate-laws.org)). Their target is to increase the cost of capital for high emitting activities, rendering them economically unviable even if they remain legally permissible.
- Failure to adapt: Cases that challenge a government or other body for failure to take the impacts of climate change into account when developing policies or facilities. Their main aim is to ensure that physical climate risks are better accounted for in public and private decision-making (Nature Conservation Council v. New South Wales Minister for Water, Property and Housing: Nature Conservation Council v. New South Wales (NSW) Nature Conservation Council of NSW v Minister for Water, Property and Housing – Australia – Climate Change Laws of the World (climate-laws.org)). Some cases target the failure of financial service providers to manage and disclose physical and transition risks, which could be seen as financial service providers’ ‘failure to adapt’ to the low-carbon transition.
- Compensation: Cases demanding damages for climate impacts from defendants based on an alleged contribution to climate change harms (Luciano Lliuya v. RWE: Luciano Lliuya v. RWE – Germany – Climate Change Laws of the World (climate-laws.org)). They seek to disincentivise greenhouse gas pollution by impacting profit margins and creating reputational damage. Cases may also seek to penalise illegal activities, particularly deforestation, that create emissions or a reduction in carbon sequestration capacity (Ministério Público Federal v. de Rezende; Ministry of Environment and Forestry v. PT Jatim Jaya Perkasa: Ministério Público Federal v. de Rezende – Brazil – Climate Change Laws of the World (climate-laws.org)).
- Climate-washing: Cases aimed at holding governmental and non-state entities legally accountable for their actions or products that misleadingly claim to address climate change. (Australasian Centre for Corporate Responsibility v. Santos: Australasian Centre for Corporate Responsibility v. Santos – Australia – Climate Change Laws of the World (climate-laws.org)).
- Personal responsibility: Cases seeking to incentivise the prioritisation of climate issues among public and private decision-makers, by attributing personal responsibility to particular individuals for contributing to or failing to adequately manage climate risks to particular individuals (or a subset of individuals, such as in ClientEarth v. Board of Directors of Shell: ClientEarth v Board of Directors of Shell – United Kingdom – Climate Change Laws of the World (climate-laws.org)). Cases may include derivative actions filed by shareholders, pension fund beneficiaries, and others, or through criminal cases (The Planet v. Bolsonaro: The Planet v. Bolsonaro – International – Climate Change Laws of the World (climate-laws.org)).
The report highlights the intensifying and increasingly complex close connection between human rights and climate change, and the use of human rights law to tackle climate change-related concerns. Human rights initially provided a strong basis for cases targeting states, but rights-based climate litigation is assuming an important role in litigation against companies, particularly as standards for corporate human rights due diligence develop. The expectation that the decision in Milieudefensie et al. v. Royal Dutch Shell plc. would prompt more rights-based strategic cases against companies is gradually materialising.
More human-rights based cases are likely to be filed in jurisdictions with strong human rights regimes following the publication by the Commission on Human Rights of the Philippines of the final report on the responsibility of the Carbon Majors for climate-related human rights harms (20220506_Case-No.-CHR-NI-2016-0001_judgment.pdf (climatecasechart.com).
The report also briefly tackles criminal prosecutions of climate activists involved in climate civil disobedience. In ADP Group (Paris Airports) v. Climate Activists (ADP Group (Paris Airports) v. Climate Activists – France – Climate Change Laws of the World (climate-laws.org), the courts acquitted the climate activists sued by the ADP Group (‘Paris Airports’) for protesting against the expansion of Charles de Gaulle airport on the grounds that the climate activists were raising awareness about the negative impacts of climate change and their actions could be considered proportionate given the ‘necessity’ to act on climate change.
Using the ‘climate necessity’ defence has encountered mixed court receptions in at least five jurisdictions in recent years, but it is still used by activists who see civil disobedience as the sole available means for raising the alarm on climate change in the face of urgent scientific warnings. Some even see the possibility of being sued as an opportunity to amplify their message.
As climate change litigation rapidly evolves, the report expects case numbers to rise and the range of claimants and defendants to continue diversifying, as understanding increases of the role of multiple actors in the causes and the solutions to climate change. It predicts more cases focusing on personal responsibility, ranging from criminal actions to cases focused on the duties of directors, officers and trustees to manage climate risks.
It also expects a continued rise in litigation against governments and major emitters to challenge commitments that over-rely on greenhouse gas removals or ‘negative emissions’ technologies, which rely on greenhouse gas removals, as well as cases that are explicitly concerned with the climate and biodiversity nexus.
New cases may also focus on the need to urgently reduce climate pollutants, such as methane and black coal. Entities that act inconsistently with commitments and targets, or that mislead the public and interested parties about their products and actions, are also expected to continue facing greater litigation.