Climate Litigation: The Growing Importance Of Legal Battles Within The Climate Movement

By Charlie Bevis

What is climate litigation?

Within climate litigation, there are several types of claims. One category seeks to improve government mitigation policies by demonstrating the insufficiency of current measures and now makes up 80% of all climate litigation [3, 4]. As these cases are often brought with a “broader intention” that supersedes the individual benefit to the claimant, this is often referred to as “strategic litigation” [5]. A German judgement from 2021, ordering the government to better outline its long-term climate strategy, is one such example [6].

Another type of claim demands compensatory damages from states and large-scale emitters for harms suffered owing to the climate crisis [3]. Crucially, a claim of this type might still be classed as “strategic” if the claimant seeks to bring public awareness to the harms being committed by the defendant. In such cases, the subsequent public debate on the case will also be highly sought after by the claimants [7].

Why has climate litigation become so prominent recently?

The growing prevalence of climate litigation is undeniable; 800 such cases took place between 1986 and 2015 whilst more than 1000 were filed in the six years up to 2021 [5]. Research by the British Academy attributes this to the failure of international bodies to adopt progressive climate agreements, particularly at Copenhagen in 2009, and the “dearth of climate regulation at the national level” [3]. In the face of such hesitancy, activists are seeking to influence climate policy themselves.

Yet so far climate litigation has been concentrated in the Global North. As of May 2021, 1,387 of the total 1,841 global climate cases had been filed in the United States (US) and only 58 in the Global South [5]. This bias may be explained by developed human rights precedent in this region, higher average incomes to afford expensive court battles and climate justice considerations which might inhibit litigators from targeting states in the Global South, themselves often suffering disproportionately from the climate crisis [8].

What legal arguments do climate activists make?

Approximately 90% of climate litigation cases are grounded in human rights [9]. The reason for this being that these rights impose positive obligations on the state and therefore the claimants can utilise a victory to force the state to adopt policy reform [4]. Moreover, within states that allow claimants to appeal to the European Court of Human Rights, applicants can utilise the “common ground” approach in which the court considers the “continuous evolution in the norms and principles applied in international law” [10]. As such, claimants can rely upon international climate agreements, such as the Paris Agreement and Intergovernmental Panel on Climate Change (IPCC) reports to strengthen their argument [4].

Some of the most frequently relied upon human rights include those pertaining to one’s life, one’s family and private life, one’s health, subsistence and even the right to not be forcibly evicted [11]. Additionally, the Plan B claim against Boris Johnson and Rishi Sunak included an argument based upon the human right to non-discrimination, highlighting the disproportionate climate harms faced by women and those belonging to racially marginalised communities [2].

The reliance upon these arguments is encouraged by the considerable success of some rights-based climate lawsuits. In Urgenda, the Dutch Supreme Court recognised the exceptional circumstances of climate change as a justification for its interference in government policy, ordering the government to cut emissions to 25% of 1990 levels by the end of 2020 [12]. Subsequently, in 2021, another Dutch Court ordered Shell, a private fossil-fuel company, to reduce its emissions by 45% against 2019 levels by 2030 after hearing arguments based on the right to life [13].

A different but also popular argument seeks to have large-scale projects deemed unlawful on the grounds that government decision-making did not consider the impact of the project on the environment [5]. Although, as noted by the Grantham Research Institute, these claims often delay rather than cancel projects; whilst the decision-maker must remake their decision, factoring in environmental matters, they are completely entitled to reach the same conclusion as before [5].

What hurdles does climate litigation face?

However, the novel nature of these claims can be an impediment and causation has been shown to be a major hurdle. For a successful legal claim, one must generally prove a clear causal chain between the defendant’s actions and the harm suffered; the nature of the climate crisis blurs this logical nexus [14]. Professor Dale Jamieson, an environmental lawyer, explains that because a range of “human and societal factors are implicated in producing the harmful effects of climate change, we cannot say exactly which emissions are causally active” [15]. Whilst this has so far impeded many climate cases, a recent academic paper criticised advocates for not always utilising the most effective methodologies in attribution science, which might satisfy the burden of proof in their cases [16].

A further issue is “standing”, a procedural barrier which requires claimants to prove their individual harm, which prohibits climate activists that cannot demonstrate how greenhouse gas (GHG) emissions are having a direct and individual effect on them [17]. Nonetheless, whilst the 2020 Climate Litigation Report emphasised this as a hurdle to climate litigation, it also highlighted a US case in which the fact that a woman lived by the coast and was vulnerable to rising sea levels gave her sufficient standing [18]. Evidently, the bar for standing varies per jurisdiction although we might expect this to be less of a barrier as attribution science further affirms the direct risk that mass-emitters pose to all of us.    

Conclusion

Whilst hurdles remain for those seeking to progress the climate movement through the courts, it is likely that the development of new scientific methods will ease their plight. Additionally, litigation in the Global South is taking hold and will likely confirm the necessity of tackling the climate crisis in order to satisfy human rights obligations [19]. In turn, more claimants will hopefully be empowered to hold states and private companies to account for their role in creating the climate crisis.

References:

[1] Campaigners lose court actions over lawfulness of UK climate policies, 2021, The Guardian, URL: https://www.theguardian.com/environment/2021/dec/21/plan-b-earth-campaigners-lose-court-action-uk-climate-policies <accessed 10th January 2022> 

[2] Statement of Facts and Grounds, Plan B. Earth v The Prime Minister, URL:  https://planb.earth/wp-content/uploads/2021/04/SFG-FINAL-WITH-FOOTNOTES.pdf <accessed 10th January 2022> 

[3] Kim Bouwer and Joana Setzer, Climate litigation as climate activism: what works?, 2020, URL: https://www.thebritishacademy.ac.uk/publications/knowledge-frontiers-cop26-briefings-climate-litigation-climate-activism-what-works/ <accessed 10th January 2022> 

[4] Dr Kumaravadivel Guruparan and Harriet Moynihan, Climate change and human rights-based strategic litigation, 2021, Chatham House, URL: https://www.chathamhouse.org/2021/11/climate-change-and-human-rights-based-strategic-litigation/different-types-rights-based <accessed 10th January 2022> 

[5]  Joana Setzer and Catherine Higham, Global trends in climate change litigation, 2021, Grantham Research Institute on Climate Change and the Environment, URL: https://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2021/07/Global-trends-in-climate-change-litigation_2021-snapshot.pdf <accessed 10th January 2022> 

[6] Quirin Schiermeier, Climate science is supporting lawsuits that could help save the world, 2021, nature, URL: https://www.nature.com/articles/d41586-021-02424-7 <accessed 10th January 2022> 

[7] Marilyn Averill, Climate litigation: shaping public policy and stimulating debate, 2009, Communicating Climate Change and Facilitating Social Change, URL:  https://www.cambridge.org/core/books/abs/creating-a-climate-for-change/climate-litigation-shaping-public-policy-and-stimulating-debate/BE48850EF331FABF2ED36B3BA6384F14 <accessed 10th January 2022>

[8] Juan Auz, Global South climate litigation versus climate justice: duty of international cooperation as a remedy?, 2020, Volkerrechtsblog, URL: https://voelkerrechtsblog.org/global-south-climate-litigation-versus-climate-justice-duty-of-international-cooperation-as-a-remedy/ <accessed 10th January 2022>

[9] César Rodríguez-Garavito, Litigating the Climate Emergency: The Global Rise of Human Rights-Based Litigation for Climate Action, 2021, Globalization and Human Rights, URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3860420 <accessed 10th January 2022>

[10] Demir and Baykara v Turkey, 2008, URL: https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-89558%22]} <accessed 10th January 2022>

[11] Simon Caney, “Cosmopolitan Justice, Responsibility, and Global Climate Change”, 2010, Oxford University Press

[12] Jay Leary and Hannah Whitton, The new environment for climate change litigation, 2020, Herbert Smith Freehills, URL: https://www.herbertsmithfreehills.com/latest-thinking/the-new-environment-for-climate-change-litigation <accessed 10th January 2022>

[13] Vereniging Milieudefensie v Royal Dutch Shell Plc, 2019, URL:  http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2021/20210526_8918_judgment-2.pdf  – para 4.4.55 <accessed 10th January 2022>

[14] Causation in the Law, 2019, Stanford Encyclopaedia of Philosophy, URL: https://plato.stanford.edu/entries/causation-law/#DomiTwoTierDefiCausLaw <accessed 10th January 2022>

[15] Dale Jamieson, “Reason in a Dark Time”, 2014, Oxford University Press

[16] Rupert Stuart-Smith et al, Filling the evidentiary gap in climate litigation, 2021, nature climate change, URL: https://www.nature.com/articles/s41558-021-01086-7 <accessed 10th January 2022>

[17]  What is Legal “Standing”, Alliance Defending Freedom, URL: https://adfmedialegalfiles.blob.core.windows.net/files/WhatIsStanding.pdf <accessed 10th January 2022>

[18] Global Climate Litigation Report 2020 Status Review, 2020, UN Environment Programme, URL: https://wedocs.unep.org/bitstream/handle/20.500.11822/34818/GCLR.pdf?sequence=1&isAllowed=y <accessed 10th January 2022>

[19] Joana Setzer and Lisa Benjamin, Climate Litigation in the Global South: Constraints and Innovations, 2019, Transnational Environmental Law, URL:  https://www.cambridge.org/core/journals/transnational-environmental-law/article/abs/climate-litigation-in-the-global-south-constraints-and-innovations/C2FE951D203AC61414E72C9244125258 <accessed 10th January 2022>