Climate Litigation Is Increasing As Government Action Falters
Story originally published by DeSmog
Despite its name, ambition was largely lacking at mid-September’s Climate Ambition Summit at the United Nations in New York. Secretary General António Guterres asked nations to arrive at the session with concrete commitments for phasing out fossil fuels, observing in his opening remarks that “humanity has opened the gates of hell.” But the event was overshadowed by the major polluters who didn’t attend.
Those absent included China, the United Kingdom, and the United States, which continue to expand oil and gas production. UK Prime Minister Rishi Sunak chose the very day of the summit to announce that his government will push off the deadlines for phase-outs of methane gas-burning boilers, as well as sales of new gasoline and diesel-fueled cars.
In a statement responding to the summit’s shortfalls, Greenpeace International Executive Director Mads Christensen said that lagging governments should expect to be held accountable “on the streets, in the courts and at COP28,” the last a reference to the upcoming international climate treaty conference in Dubai.
Using the courts has become especially critical, say climate experts and lawyers, given the insufficient political responses to the climate emergency.
“In the face of a grinding gridlock in international climate governance, as we’ve seen in New York, climate litigation represents a powerful tool to hold governments accountable and close the ambition gap,” Lucy Maxwell, co-director of the Climate Litigation Network, a project of the Urgenda Foundation in the Netherlands, told DeSmog.
In 2015, the Hague District Court in the Netherlands issued a landmark ruling — subsequently upheld on appeal — in a climate lawsuit brought by Urgenda and Dutch citizens against the national government. It was the first in the world to establish that their government has a legal duty to protect its citizens from dangerous climate change. The success of this case has inspired a wave of similar lawsuits in several other countries, many of them successful. ”The highest courts in the Netherlands, Ireland, France, Germany, Nepal and Colombia have all recognised that climate action is a legal duty,” said Maxwell.
As governments continue to be intransigent, and the fossil fuel industry uses its influence to hamstring transformational climate policies, courts represent an important lever to bring about change.
“Litigation has a key role to play in light of this lack of ambition from states and other stakeholders,” said Maria Antonia Tigre, director of global climate litigation at the Sabin Center for Climate Change Law at Columbia University. While not a silver bullet solution, she told DeSmog, litigation is certainly “part of the answer.”
According to a recent report from the UN Environment Program (UNEP) and the Sabin Center, climate lawsuits have more than doubled in the past five years. Climate litigation is a “frontier solution to change the dynamics of this fight,” according to the report.
“There is a distressingly growing gap between the level of greenhouse gas reductions the world needs to achieve in order to meet its temperature targets, and the actions that governments are actually taking to lower emissions. This inevitably will lead more people to resort to the courts,” said Michael Gerrard, the Sabin Center’s faculty director, in a press release accompanying the report.
Inger Andersen, the executive director of UNEP, added in the release that litigation holds promise as a “key mechanism for securing climate action and promoting climate justice.”
The UN’s Intergovernmental Panel on Climate Change backs these statements. In its latest scientific assessment, summarized in a synthesis report released in March, the IPCC for the first time recognized that climate litigation is both increasing worldwide, and is starting to have an impact on climate governance. In its Working Group III report on climate mitigation released last year, the IPCC noted that since 2015, at least 37 “systemic cases” have been filed against governments, challenging their efforts to mitigate or adapt to climate change. “If successful, such cases can lead to an increase in a country’s overall ambition to tackle climate change,” the report states.
Forthcoming Court Opinions Could Be Gamechangers
These cases include a sweeping climate lawsuit filed by six Portuguese youths against more than 30 European countries, demanding greater climate mitigation ambition and steeper emissions cuts to protect human rights. The case came before the European Court of Human Rights in a high-stakes hearing on September 27. The youth plaintiffs charge that they are already suffering detrimental health impacts from climate change, and that these health problems will worsen unless governments take more urgent climate action.
The lawsuit contends that the dozens of European nations named in the suit are violating the youth plaintiffs’ rights to life, privacy, and nondiscrimination under the European Convention on Human Rights. A favorable ruling in the case would essentially compel the entire region to take stronger and faster climate action.
“This judgment would act like a binding treaty imposed by the court on the respondents, requiring them to rapidly accelerate their climate mitigation efforts,” said Gerry Liston, senior attorney with the Global Legal Action Network, which is representing the youth plaintiffs. “In legal terms, it would be a gamechanger.”
A ruling in the Portuguese youth case is expected next year, along with rulings from the European Court of Human Rights on two other climate cases – one brought by elder Swiss women against the government of Switzerland, and the other filed by a French citizen and former mayor against France.
There are climate lawsuits against national governments pending in domestic courts in Australia, Belgium, Canada, Germany, Guyana, Italy, Peru, Poland, Romania, Russia, South Korea, Sweden, the UK, and the U.S. as well.
In the U.S. there was a historic legal breakthrough this summer, when a court in Montana decided in favor of sixteen young people suing the state over its role in worsening the climate emergency. According to Gerrard, this ruling is “the strongest decision on climate change ever issued by any court” to date.
Internationally, proceedings are underway before several tribunals that could have significant ramifications. In one of these cases, small island states are seeking an advisory opinion that defines countries’ legal requirements for protecting the oceans from harmful climate impacts — such as ocean acidification and sea level rise – that threaten their very existence. A two-week hearing on the case before the International Tribunal for the Law of the Sea in Hamburg, Germany concluded on Monday.
In another, the small island state of Vanuatu has spearheaded a request for an opinion on climate from the International Court of Justice. Vanuatu and its allies have asked the ICJ to clarify the legal obligations of nations to prevent climate harms, along with the consequences of failing to do so.
“We are hoping it will increase more climate ambition,” Odo Tevi, Vanuatu’s ambassador to the UN, said during a press conference at the Climate Ambition Summit. “It will be huge globally, if it is favorable.”
The Limits of Litigation
While climate litigation has significant potential to catalyze climate action, it also has some limitations and challenges. “There is generally a lack of funding and the resources are limited,” said Tigre. While larger NGOs such as Greenpeace are well positioned financially and in terms of staffing to bring climate cases, smaller organizations may find it difficult to sustain, especially if a case drags on for years, she said.
In the U.S., climate cases seeking to hold both fossil fuel companies and the federal government accountable have been bogged down by procedural battles for years. The Juliana v. United States youth-led lawsuit against the U.S. government, for instance, has yet to make it to trial eight years after it was first filed in 2015. U.S. District Judge Ann Aiken has not yet ruled on the government’s latest request to dismiss the case.
Then there are the challenges of compliance and enforcement. Even with a favorable judgment in a climate accountability lawsuit, ensuring that the government or corporation actually implements the order, or changes its conduct, can be difficult. In 2021 for example, climate campaigners won a groundbreaking ruling in the Netherlands against Shell, with the court ordering the oil major to slash its entire supply chain emissions by at least 45 percent by 2030. Shell is appealing the ruling, and also appears to be flagrantly disregarding the court’s mandate.
Another example is emerging in Australia, which a year ago was found by the UN Human Rights Committee to be violating the human rights of the Torres Strait Islanders through its inadequate climate action. Australia is refusing to pay the islanders the ordered compensation.
In Colombia, the country’s highest court in 2018 ruled in favor of youth plaintiffs in a climate case against their government, ordering the state to curb deforestation. However, according to Dejusticia, the organization that supported the Colombian youths, the government has failed to comply with the order.
“It’s a big problem,” Tigre told DeSmog. “I think it’s part of a larger problem of rule of law and the role of courts and how courts in general enforce decisions.”
Governments “Will Face Accountability in Court”
To be truly successful or effective, climate lawsuits should fit into broader social movements and advocacy campaigns, Maxwell of Climate Litigation Network told DeSmog. “While cases can take several years to be decided, many cases have led to widespread public mobilization on the urgency of climate action,” she said.
Louise Fournier, legal counsel in the climate justice and liability program at Greenpeace International, agreed that climate lawsuits are important for their galvanizing power.
“They’re led by impacted people, by communities, by activists,” she told DeSmog. “It’s something that will make lasting change when people organize themselves and actually build power to counter [the] oppressive power that is leading to this climate crisis.”
With just two months to go until COP28 – which will be led by the head of the Abu Dhabi National Oil Company, Sultan Ahmed Al Jaber – the prospects seem slim for getting major oil and gas producing countries to commit to policies that phase out fossil fuels. These recalcitrant countries should be prepared to “lawyer up,” say climate advocates and lawyers.
“Certainly, if governments continue to fail to take meaningful climate action, especially after COP28,” Maxwell told DeSmog, “they will face accountability in court.”
