Week of 5 July 2021
What is the direction of travel for climate change litigation?
Our key takeaway: Climate change litigation is on the rise and does not seem to be slowing down any time soon. Activists are using creative legal strategies and new hooks to hold governments, companies and financial institutions to account.
A new report from researchers at the Grantham Research Institute on Climate Change and the Environment examines climate change lawsuits brought before courts in 39 countries and 13 international or regional courts over the last year:
- The number of cases related to climate change has grown exponentially, with an increasing number of these categorised as “strategic” cases. “The cumulative number of climate change-related cases 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.” On top of this, the number of climate litigation cases filed in the Global South is beginning to catch up with those filed in the Global North; there are currently at least 58 cases active in 18 Global South jurisdictions. The authors also highlight the rise in cases considered “strategic”—that is, cases that “aim to bring about some broader societal shift.” They suggest that there is a growing trend towards using climate litigation as an “activist strategy” aiming to shift jurisprudence or shape the behaviour of governments and private sector actors more broadly and over the longer term.
- Lawsuits are targeting diverse actors and new arguments are being used—including those grounded in human rights. The authors identified 37 cases globally that seek to “challenge governance inaction or lack of ambition in climate goals and commitments.” At the same time, climate litigation is increasingly being used to target companies and financial actors as well as governments. Corresponding to this diversity, litigants are looking to novel legal strategies and hooks to make their case. For instance, lawsuits targeting the private sector have focused on greenwashing claims, failures in corporate due diligence leading to enhanced financial risk, failure to disclose risks to shareholders and perceived breaches of fiduciary duty. There is also an increase in the number of lawsuits grounded in the human rights responsibilities of governments and the private sector: “Over 100 (112) human rights cases have now been identified globally, including in the US, with 29 of these cases filed in 2020 and a further five up to May 2021. The majority (93) of these cases have been brought against governments and a small but significant minority (16) brought against companies.”
- There are three main areas of climate litigation to watch in the future. The authors identify three significant trends to look for: (1) value chain litigation “where claimants seek to hold companies responsible for acts and omissions in their value chains and/or supply chains” (especially for companies relying on sectors like palm oil, soy and beef where deforestation heavily contributes to climate change); (2) lawsuits targeting government subsidies, tax breaks and other support to the fossil fuel industry; and (3) “cases focused on the distribution of the burdens associated with action, which may be classed as ‘just transition’ cases,’ focused on the disparities between “historical” high-emitters (usually developed countries) and those bearing the burden of these emissions (usually developing countries and those at heightened risk of climate impacts).
For more, see Joana Setzer and Catherine Higham, Global Trends in Climate Change Litigation: 2021 Snapshot (July 2021)
“The ongoing expansion of human rights arguments in climate cases continues to emphasise the high stakes involved in climate action or inaction, and the reality of a climate crisis that is already impacting the lives and livelihoods of communities around the world. The existence of growing numbers of cases that are not aligned with climate objectives, whether ‘just transition litigation’ grounded in rights-based arguments or Investor-State Dispute Settlement cases grounded in international trade law, also demonstrates that climate policy and the often-radical changes it requires can create both winners and losers. Courts and tribunals provide a natural forum in which the fair allocation of burdens of climate actions can be debated, highlighting distributive justice questions over who can and should bear the costs of the transition.”
Joana Setzer and Catherine Higham, Global Trends in Climate Change Litigation: 2021 Snapshot (July 2021)