Environment

Courting rapid change – the rise of holding polluters to account

By Rapid Transition Alliance Staff, originally published by Rapid Transition Alliance

July 29, 2021

gavel

As catastrophic weather events, made more likely and extreme by human greenhouse gas pollution, cause havoc internationally, citizens around the world are increasingly turning to the law to stop the damage, demand reparations, protect their future and right to a healthy, thriving environment. Faced with faltering government promises, and the inevitable hot and cold of election cycle promises, legal efforts to lock-in progressive climate policy for generations to come are beginning to pick up pace. By going beyond politics, and focusing on the law, the climate litigation snowball attempting to cool the rupture is growing quickly in both size and momentum. 

In 2017, there were around 884 climate litigation cases in 24 countries. Just three years later, in 2020, there were 1,550 cases spread across 38 countries, with 1,200 of these cases taking place in the USA. lit Just over 800 cases were filed between 1986 and 2014, while over 1,000 cases have been brought in the last six years alone.

These legal challenges are varied in their scope, covering everything from the climate risk disclosures of big businesses, to binding legal requirements to keep fossil fuels in the ground. And the communities launching these legal challenges are just as diverse, ranging from South Korean school children demanding their government meets a net-zero target by 2050 to indigenous groups in Ecuador winning a case against big oil to protect half a million acres of Amazonian rainforest from destructive extraction.

More recently, in a first for climate litigation, environmental groups in the Netherlands brought the oil company Shell to court, winning a landmark ruling that the company must cut its CO₂ emissions by 45% compared to 2019 levels by 2030. An assortment of organisations, with the sole purpose of furthering climate litigation, are also flourishing. They include organisations like ClientEarth, who currently have 166 ongoing climate litigation cases and recently helped halt petrochemicals giant Ineos’ plans to build an enormous plastics plant in Antwerp, Belgium, and The Good Law Project, who have launched a series of challenges against the UK government around the issues of airport expansion, air pollution and the expansion of fossil fuel infrastructure.

No matter how old you are, where you live, or the way in which the climate crisis is impacting you and your community, the law is opening up a route to climate justice and holding governments’ and businesses’ feet to the fire.

Wider relevance

Whether it’s making emissions targets legally binding, establishing climate risk disclosure frameworks or winning compensation for climate damages, the mechanisms of the law are increasingly being drawn upon to curtail emissions and the environmental harm caused by carbon pollution, governments and big business. The proliferation of climate litigation, however, has arisen out of a climate policy vacuum; where international climate agreements have failed to deliver binding commitments and concrete steps for governments to take. The Paris Agreement, for instance, fails to explicitly mention ‘fossil fuels’ throughout the document, despite the existential risk their extraction and the  continued expansion of their infrastructure poses to humanity.

Out of this vacuum, has sprung a “legal onslaught” that environmental groups and climate activists hope will have a profound financial impact on fossil fuel producers, and the governments that continue to prop them up. Inspired by the legal proceedings brought against harmful industries like tobacco, which culminated in a settlement guaranteeing £150bn in payments to 46 US states over 25 years, climate litigation aims to undermine the financial profitability of  major polluters and create an environment where the continued investment and operation of highly polluting infrastructures entails a huge risk. While the fossil fuel industry once dismissed these litigation cases as ‘red herrings’, the raft of recent rulings in Australia, the Netherlands, Germany and Poland, amongst many others, are establishing case law and providing a pathway of precedence.

With the wheels of climate litigation now firmly set in motion, it could become one of the missing links for rapid transition. The myriad ways the law can be used – binding business and governments to mitigation targets, or, as the science of attribution develops, linking pollution to actual extreme weather events, attributing climate damages to an extractive company – opens up new avenues for citizens and community organisations to pursue climate justice and reparations. It can also equip social movements and concerned citizens with the tools they need to lock-in changes that reflect growing public sentiment around climate and ecological breakdown.

Most notably, the Dutch environmental NGO, Urgenda Foundation, alongside 900 concerned Dutch citizens, successfully sued their government for failing to do more to protect them from the climate crisis. The Dutch high court ordered the state to limit emissions to 25% below 1990 levels by 2020, ruling that the government’s existing pledge to reduce emissions by 17% as insufficient. The number of this type of cases, where plaintiffs seek to shape national climate goals and commitments, continues to grow with 37 ‘systemic mitigation’ cases currently underway globally.

In light of the recent raft of national governments passing net-zero legislation, climate litigation has allowed concerned publics and pressure groups to challenge infrastructure investment decisions in view of new climate legislation. In the UK, the Transport Action Network (TAN) has brought the UK government to court over its £27bn road building programme, which TAN deems as incompatible with the 2050 net-zero target. Last year, Heathrow’s prospective third runway was ruled to be illegal by the court of appeal because politicians failed to factor in their commitments to tackle the climate crisis. Although this decision was later overturned by the Supreme Court, the Court of Appeal’s decision is thought to have wide-reaching implications for other carbon intensive infrastructure projects, and the future of the airport’s expansion plans remain in doubt for a range of reasons. As governments and polluting industries eye up a ‘return to normality’ post-Covid, and emissions rebound, climate litigation could provide a much-needed restraint against business-as-usual.

As the climate litigation snowball gathers pace, and rulings provide both the precedent and inspiration for further legal challenges around the world, we will see a shift in judicial recognition and the enforcement of government obligations. And as the snowball continues to roll, it can accommodate a variety of different rights under a unified banner, comprising human rights, indigenous rights, property rights, the rights of future generations, states’ duty of care to its citizens and the right to compensation from climate damages.

Context and background

Climate change litigation is an umbrella term. It encompasses legal and civil disputes that relate to the climate crisis’ unfurling impacts and the need to both mitigate emissions, as well as catalysing the legislative, policy and social change required for rapid transition. From the early 2000s, a range of jurisdictions and legal pathways for tackling the climate crisis have increasingly been explored and made available through legislation. A growing body of cases have now created an international body of law that connects climate action to legal challenges relating to constitutional law, administrative law, private law, consumer protection law and human rights.

The US is the indisputable home of climate litigation – and is providing the momentum for it snowballing around the globe. There have been more than 1000 climate litigation cases filed in the US, which is more than three quarters of the world’s total cases. In the nascent stages of climate litigation, the claims were brought by NGOs to challenge federal governments, particularly in the US. Now, however, there are a variety of actors that are pursuing climate litigation as a route to climate action – investors, cities, states, activist shareholders, youth movements and indigenous groups are all getting in on the action. While in the early days of climate litigation the onus was on obtaining compensation for damages wrought by climate impacts, now litigation is being used strategically to shape policy outcomes, hold governments and businesses to account, and create binding targets.

The context from which this has arisen is governmental and corporate failure to step-up to the challenges posed by the climate crisis and provide a duty of care for their citizens, employees and customers. In an ideal world, where government and business rhetoric is matched with action, climate litigation would only need to be a supplementary tool for citizens to use. Instead, against a backdrop of low ambition from governments and businesses, a growing democractic deficit and an accelerating climate crisis, climate litigation is providing an essential route for citizens and organisations to challenge those in power and hold them to account.

Enabling factors

Climate litigation can unify a range of climate struggles 

The doubling of climate litigation cases since 2015, can be partly explained by the law’s ability to accommodate a diverse range of issues and struggles. From citizens challenging the polluting behaviours of governments and big business, to young people demanding a habitable future, climate litigation is an inclusive way to unify struggles, crossing over borders, cultures and generations in the process. In its early stages, it was primarily concerned with the attribution of responsibility for environmental damage, and the subsequent payment for damages. But now, at a time of accelerating climate impacts, climate litigation is being used as a strategic tool to hold governments and businesses to account with a view to shaping more ambitious policy, as in the case of Milieudefensie v. Shell. What’s more, it is increasingly based on human rights grounds, with the most notable success of the Urgenda Foundation case in the Netherlands, which opens the door to further challenges using specific human rights legislation through a vast array of courts, both domestic and international. There are also a number of rulings in favour of indigenous communities and their lands.

Win or lose – legal precedents can snowball around the world

Just like the dominant readings of world history, we only hear about the winners. Yet in the growing realm of climate litigation, losses can be just as vital in building the momentum for transformative change. Even where cases are unsuccessful, and courts rule against the plaintiffs, the losses could eventually lead to indirect impacts or influence potential future litigation. Two cases are illustrative of this point: the Teitiota case and the Juliana case. In the Teitiota case, a Kiribati citizen whose life had been thrown into chaos by climate breakdown sought asylum in New Zealand, but the UN Human Rights Committee ultimately rejected his claim. In the Juliana case, the US Court of Appeals rejected a young plaintiffs’ claim that the federal government was violating their rights. Despite these negative outcomes, the decisions included in both case statements explicitly recognised the risks imposed by climate change and that did not close the door on future challenges – and successes – in different circumstances. Win or lose, the momentum behind climate litigation keeps gathering pace.

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Raising the stakes in times of global crises

During times of crisis, litigation accelerates. During the 2008 financial meltdown, the number of litigation cases brought forward globally grew rapidly. Now, amid the economic and social damage wrought by Covid-19, litigation is set to proliferate once again. Add climate breakdown into the mix, with its impacts becoming a regular occurrence, and we are likely going to see the climate litigation snowball give rise to new laws, standards and duties of care around the world. This will create another layer of risk that governments and businesses must navigate – and accommodate – in order to prevent mounting legal proceedings against them, and the reputational damage that comes along with that. The new legal dynamic is also a truly global phenomenon due to the emergence of more data, accessible global data platforms and a growing network within the legal community, meaning that climate litigation risk is only going to become more ubiquitous across the globe.

Scope and evidence

  • The climate litigation emerged at the end of the 1990s in the USA with a series of legal challenges from NGOS. In 1999, 19 American NGOs petitioned for the EPA to regulate carbon emissions and other greenhouse gases through the Clean Air Act. Although the EPA rejected the appeal, a variety of states used the petition to challenge the executive brand of the federal government.
  • In 2005, a raft of shareholder resolutions on the climate crisis were introduced, with state and city pension funds, labour foundations, faith based organisations filing over 30 resolutions relating to climate risk and emissions disclosure – three times the number of resolutions filed from 2000-2001. Last year, climate change resolutions at annual shareholder meetings received average support of 23 per cent, compared with 16 per cent during all of 2019.
  • In 2017, there were around 884 climate litigation cases in 24 countries. By 2020, there were 1,550 cases spread across 38 countries, with 1,200 of these cases taking place in the USA.
  • The number of climate change-related cases around the world has more than doubled since 2015. Just over 800 cases were filed between 1986 and 2014, while over 1,000 cases have been brought in the last six years alone.
  • As the climate litigation snowball gathers pace, the number of ‘strategic’ cases – those that seek to shape policy outcomes and trigger societal shifts rather than attribute damages – is dramatically on the rise. This bodes well for the rapid transition potential of climate litigation.
  • Climate litigation that is pursuing climate goals is seeing success and there has been a run of important wins in the last year, including the Milieudefensie v. Shell case where the court delivered a ruling that Shell must reduce its CO2 emissions by 45% by 2030 compared to 2010 levels and to zero by 2050, in line with the Paris Climate Agreement.
  • The number of cases challenging government inaction or a lack of ambition in national climate goals and commitments continues to grow, with 37 ‘systemic mitigation’ cases currently active globally.
  • Climate litigation cases are now targeting a wider diversity of private sector and financial actors with a greater variety of arguments being used. For instance, incorporating themes of greenwashing and climate impact attribution. The business world needs to wise-up to the heightened litigation risk associated with business-as-usual activity.

Lessons for rapid transition

  1. Unify struggles to create the momentum needed for transformation – Climate litigation’s ability to join-up the struggles of indigenous communities, young people and shareholder activists has led to a proliferation of rulings.
  2. A growing international community of concerned citizens have made litigation a key tool in the first against global heating – At first it was just NGOs who used climate litigation as a means to enact climate action. Now, due to the proliferation of data, media and digital technologies, there is a growing legal community using litigation to achieve climate justice around the world by demanding accountability from governments and businesses.
  3. Litigation adds to the risks of inaction on climate change – The proliferation in climate litigation has added another layer of risk for governments and businesses that are unambitious on climate action and underprepared for climate impacts.

References

 

Teaser Photo by Bill Oxford on Unsplash

Rapid Transition Alliance Staff

Tags: climate change litigation, climate justice movements

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