2023 Has Been A Big Year For Climate Accountability In The Courts
Story originally published by DeSmog
Climate litigation had a momentous year in 2023. Courts worldwide heard evidence and arguments at pivotal trials and hearings. Landmark rulings marked progress in holding governments to account for climate inaction or denial, and new climate cases continued to be filed.
With climate lawsuits now totaling nearly 2,500 worldwide, it is clear that courts have become a critical venue for seeking climate justice and accountability.
Here are some of this year’s highlights.
Major Court Victories
United States
In a groundbreaking ruling in August, Judge Kathy Seeley of the First Judicial District Court of Montana found in Held v. State of Montana that the state’s ongoing support for and promotion of fossil fuel development — including directing state regulators not to consider a project’s climate impacts during the permitting process — violated Montana’s constitutional guarantee of the right to a clean and healthful environment, which extends to a stable climate.
This case, brought by 16 children and teens against their state government in 2020, was the first constitutional climate case in the U.S. to reach trial, as well as a case brought by youth plaintiffs. It was also just the second time that climate scientists have given expert testimony in a trial setting in a U.S. court.
Montana — a state known for both its natural splendor, and its coal mines and oil and gas operations — had no answer to the robust scientific evidence presented to the court. The scientists who testified on the plaintiffs’ side included experts such as award-winning climate scientist Steven Running, who has contributed to Intergovernmental Panel on Climate Change reports; ecologist Daniel Fagre, an expert on Montana’s Glacier National Park; and Mark Z. Jacobson, a world-leading expert on renewable energy and the energy transition.
Legal experts say this ruling could have broad implications. “It may provide something of a roadmap for future cases,” Jennifer Rushlow, dean of the Maverick Lloyd School for the Environment, professor of law, and faculty director of the Environmental Law Center at Vermont Law School, told DeSmog.
According to Delta Merner, lead scientist at the Union of Concerned Scientists’ Science Hub for Climate Litigation, this victory also demonstrated the importance of bringing climate science into the courtroom. “The judge’s dismissal of Montana’s feeble defense underscored the irrefutable nature of climate science,” Merner wrote in a recent blog post, “offering hope for future cases and represents a crucial step toward aligning legal systems with the urgency of climate action.”
Europe
As the annual United Nations climate conference — known as COP28 — kicked off in Dubai on Nov. 30, an appeals court in Belgium handed down a victory in a human rights lawsuit brought by an association of Belgian citizens against the national government and several regional jurisdictions. The court ordered the Belgian government to slash carbon emissions by at least 55 percent (below 1990 levels) by 2030. This is only the second time that a court has imposed a binding emissions reduction target on a country, — following the historic 2015 Urgenda ruling in the Netherlands.
This ruling followed a 2021 decision in the same case, in which the court ruled that the governments had violated their legal obligations, under Belgian civil law and European human rights law, in failing to protect citizens from dangerous climate change.
Lucy Maxwell, co-director of the Urgenda Foundation’s Climate Litigation Network, told DeSmog this is only the third time any court has “order[ed] a government to close the ambition gap between its weak [greenhouse gas] target and what science demands.” In 2021, Germany’s highest court ordered the German government to revise its national climate law, finding it to be insufficiently protective of youth and future generations.
In Norway, a climate lawsuit trial got underway during the same week as the Belgium ruling.
Greenpeace Nordic and Young Friends of the Earth Norway have challenged the Norwegian government’s approval of three new North Sea oil fields. This case builds upon a previous legal challenge to Norway’s licensing of offshore oil and gas development.
This case has been strengthened by authoritative statements from expert sources, such as the International Energy Agency, emphasizing that new fossil fuel development is inconsistent with the goal of limiting global temperature rise to 1.5 degrees C.
“This case in Norway joins a rising tide of litigation around the world challenging the decisions to expand fossil fuels in the face of mounting climate chaos,” Nikki Reisch, director of the Climate and Energy program at the Center for International Environmental Law, said during a press conference at COP28. It is a reminder that “governments have existing legal duties outside and will be held accountable to them in court,” said Reisch.
Human Rights and Accountability Cases Advance
As devastating climate impacts intensify and accelerate, courts are increasingly seeing cases alleging that insufficient government climate policies amount to human rights violations.
United States
In the U.S., climate accountability lawsuits targeting major oil and gas companies for alleged deception and disinformation made significant advances in 2023. The Hawaii Supreme Court heard an appeal from the industry defendants in City and County of Honolulu v. Sunoco LP et al. in August, and ruled on October 31 to uphold the trial court’s denial of their motions to dismiss.
While another motion to dismiss, claiming that the lawsuit violates the industry defendants’ free speech rights, is still pending at Hawaii’s Intermediate Court of Appeals, the Supreme Court’s ruling puts the case firmly on track towards trial.
Several climate liability suits brought by municipalities and states across the U.S. also are moving ahead in state courts, aided by the Supreme Court’s April decision to decline petitions from the industry defendants that sought to procedurally derail the litigation.
These cases had been tied up for years while the fossil fuel industry attempted to get them moved to federal courts. The Supreme Court’s decisions declining to intervene, Rushlow said, will “unlock a lot of movement in cases that have just been plugged up.”
“It does feel like some of the chains were broken this year,” she told DeSmog.
The Supreme Court has so far denied industry petitions in climate lawsuits filed by the states of Rhode Island and Delaware; the cities of Baltimore, Maryland and Hoboken, New Jersey; Colorado’s Boulder and San Miguel counties and the city of Boulder; and California’s San Mateo, Santa Cruz and Marin counties and and the cities of Richmond, Imperial Beach, and Santa Cruz, as well as Hawaii’s Maui and Honolulu counties and the city of Honolulu.
Europe
In 2023 the European Court of Human Rights held its first-ever hearings in lawsuits challenging governments’ inadequate climate responses on human rights grounds. All three cases heard by the European Court of Human Rights seek to compel governments to align their climate policies with what science demands in order to safeguard human rights.
In late March, the Strasbourg-based court heard two climate cases. KlimaSeniorinnen v. Switzerland was brought by a group of elderly Swiss women who are vulnerable to worsening health impacts from extreme heat. Carême v. France was filed by a French citizen and the former mayor of a coastal village in northern France that is exposed to heavy flooding.
In September, the Human Rights Court heard a third climate case, this one brought by six Portuguese youths against 32 European countries in what one legal expert described as a “truly historic” hearing, marking the first time that dozens of national governments have been forced, in a single case, to defend their climate policies before a court. The young people launched their lawsuit in 2020, following several years of record-breaking heat in Portugal, as well as deadly wildfires in 2017.
The year also saw an unsuccessful attempt in the UK to hold an oil company’s board of directors liable for disregarding climate risk.
The UK-based environmental law organization ClientEarth brought a first-of-its-kind lawsuit in February against Shell’s board of directors, arguing that Shell’s failure to align its business and energy transition strategy with the goals of the Paris Agreement breaches UK corporate law.
The High Court of England and Wales, and subsequently the Court of Appeal, ultimately dismissed the case. However, some experts believe it could be just the beginning of climate litigation against corporate boards of directors.
Asia-Pacific
In Australia, a class action climate lawsuit against the federal government, filed by two Indigenous Torres Strait Islanders on behalf of all of the area’s island inhabitants, advanced to trial with a two-part evidentiary hearing. At the first hearing in June, held in the Torres Strait Island communities, the court heard and saw evidence directly on how climate change is adversely affecting the area. The second hearing, which was held in November in federal court in Melbourne, featured expert testimony from climate scientists.
The lawsuit seeks a court order that would compel the Australian government to take measures that will protect the Torres Strait Islands from climate harms, and to reduce Australia’s greenhouse gas emissions in line with the best available climate science.
New Climate Cases
United States
In June, Multnomah County, Oregon – home to Portland, the state’s largest city – sued more than a dozen oil and gas companies and several of their trade associations. The county seeks to hold them liable for billions of dollars in damages related to the deadly heat dome that scorched the Pacific Northwest in June 2021, including $50 million in actual damages and $1.5 billion in future damages. The county is also seeking $50 billion to study, plan and upgrade municipal services and infrastructure to safeguard against future extreme heat events.
The 2021 heat dome killed more than 60 people in Multnomah County, where it has been described as a mass casualty event.
Multnomah County’s lawsuit is the first climate case to name McKinsey & Company, a corporate consulting giant that has worked on the behalf of fossil fuel companies. This signals the growing potential for PR agencies and consulting firms that help bolster the fossil fuel industry to be implicated in climate litigation.
In September, California entered the fray. The state’s climate lawsuit, filed against five oil and gas majors and the American Petroleum Institute, charges the defendants with deliberately deceiving Californians for decades about the climate risks of their products and continuing to mislead consumers through greenwashing and false advertising.
The state seeks monetary damages, paid into an abatement fund, to help the state pay for escalating climate-related costs.
Given California’s position as the world’s fifth largest economy, as a national leader in climate action — and as an oil-producing state itself — this suit is a seismic shift in the legal fight against Big Oil, adding substantial pressure to calls for fossil fuel industry accountability. Gov. Gavin Newsom and Attorney General Rob Bonta have encouraged other states and jurisdictions to join them in suing fossil fuel titans for lying about the harmful impacts of the use of oil, gas, and coal.
This strand of U.S. climate litigation is grounded in evidence of the industry’s deception, though the legal claims and remedies sought vary to some degree. Several cases are based strictly on state consumer fraud claims and seek judicial decrees to end the alleged deceptive conduct. Others have been brought under state tort claims like nuisance and failure to warn, and demand monetary damages. Some feature a combination of consumer fraud and cost recovery approaches.
In early December, Our Children’s Trust, the nonprofit law firm behind the Held case in Montana, launched a new lawsuit against the Biden administration on behalf of over a dozen California youth. The case, Genesis B. v. United States Environmental Protection Agency, alleges that the EPA is knowingly endangering the health and welfare of children by permitting unsafe levels of greenhouse gas emissions, and further discriminates against them by discounting the economic value of their lives in regulatory cost-benefit analyses.
The 18 youth plaintiffs, who range in age from 8 to 17 years old, are seeking a declaration that their constitutional rights have been violated, along with an order clarifying the standard of judicial review to protect the rights of children as a distinct and protected class — meaning a decision on whether U.S. law includes unique protections for children in the context of climate change.
On December 20, a pair of Native American tribes in Washington State also launched accountability lawsuits. The Makah Indian Tribe and the Shoalwater Bay Indian Tribe each filed complaints in King County Superior Court against six major oil and gas companies: ExxonMobil, BP, Chevron, Shell, ConocoPhillips, and Phillips 66. Alleging historical and ongoing deception by the companies — including promoting and funding climate denial and, more recently, portraying their businesses as climate-friendly through misleading advertising — the lawsuits aim to make them “pay for the damage their deceptive conduct has caused and will cause for decades to come.”
Europe
In Italy, climate campaigners and citizens sued Italian oil major Eni in May for alleged deception and greenwashing. The case, brought by Greenpeace Italy, ReCommon, and 12 Italian citizens, argues that Eni has deliberately downplayed the climate dangers of its products, and has failed to align its business strategy with global climate goals. Saying that this violates human rights law, the groups and citizens have demanded that the court order Eni to reduce its emissions by at least 45 percent by 2030.
The case builds on the successful 2021 Milieudefensie case against Shell in the Netherlands, in which the Dutch court determined that Shell has a legal duty to respect human rights, and ordered the company to slash emissions across its supply chain by 45 percent by 2030.
The Eni case came as new evidence emerged indicating Eni knew of the climate consequences of its products at least as early as the 1970s, yet continued to market methane gas as a clean fuel.
Legal Threats to Activists
This year also saw new lawsuits brought by oil majors against climate campaigners.
In November, Shell brought a lawsuit of its own against Greenpeace UK and Greenpeace International, in response to protestors boarding a Shell oil platform earlier in the year. According to a Greenpeace press release, Shell has demanded that Greenpeace permanently cease protests at its offshore infrastructure or face potential damages of $8.6 million. The group described the lawsuit as “one of the biggest legal threats against the Greenpeace network’s ability to campaign in its more than 50-year history.”
Greenpeace has said it will agree to the protest ban if Shell agrees to “stop wrecking the climate,” by complying with the Dutch court order in the Milieudefensie case.
In August, Eni targeted some of the climate activists suing the company, announcing potential plans to countersue Greenpeace Italy and ReCommon on defamation grounds.
Looking Ahead to 2024
Expect even more new climate lawsuits to be filed over the next year.
United States
Among them, Our Children’s Trust has stated that it plans to launch a new youth climate lawsuit against the state government of Alaska, while Milieudefensie has said it will be suing a Dutch financial institution. Friends of the Earth International’s Sara Shaw said, during a COP28 press conference, that Milieudefensie will announce the name of the company on January 19, 2024.
In Hawaii, a second constitutional climate case brought by youth is set to go to trial in June, when Honolulu’s Environmental Court hears the lawsuit Navahine F. v. Hawaii Department of Transportation. In this lawsuit, 14 Hawaiian children and teens have sued the state transportation agency, contending that it authorizes unsafe levels of climate pollution, which violates their rights under the Hawaiian state constitution.
“It seems like we could be coming up on some busy times for [climate] trials,” said Vermont Law’s Rushlow. “It does feel like a significant moment.”
Europe
Significant court decisions may also be made, such as judgments in the climate cases heard this year by the European Court of Human Rights.
The coming year will see an evidentiary hearing in the Luciano Lliuya v. RWE case in Germany’s Hamm Regional Court. In this case, Peruvian farmer and mountain guide Saúl Luciano Lliuya has sued German energy utility RWE, aiming to hold the company liable for its contribution to global greenhouse gas pollution that has resulted in localized flooding of his village as mountain glaciers melt.
Additionally, an appeals court in the Netherlands will hear Shell’s appeal in the Milieudefensie v. Shell case, as the company seeks to overturn the groundbreaking 2021 verdict holding the company accountable for failing to align its business with the decarbonization aims of the Paris Climate Agreement. Milieudefensie’s Eline Zeilmaker said during a COP28 press conference that the hearing is scheduled to start on April 2, 2024, with a final ruling hopefully coming by the end of the year.
Asia-Pacific
Further hearings in the Torres Strait Islanders’ case against Australia are also scheduled for April in Cairns. A ruling is expected later in the year, according to Grata Fund — an Australian foundation supporting the litigation.
