Global Climate Litigation Report: 2023 Status Review

Climate change litigation is on the rise. The number of cases filed and jurisdictions involved have more than doubled in recent years. While there are vast differences between legal environments, climate change cases often have similar legal issues, addressed in the current Global Climate Litigation Report (GCLR) by the United Nations Environmental Programme in cooperation with the Sabin Center for Climate Change Law at Columbia University. The following offers a comprehensive overview regarding the key messages of the GCLR.

The Report

As of 31 December 2022, the Sabin Center’s Climate Change Litigation databases include 1,522 cases filed in the United States of America (US) and 658 filed in all other jurisdictions combined, [1] including international or regional courts, tribunals, quasi-judicial bodies or other adjudicatory bodies, such as special procedures of the United Nations Human Rights Council (HRC), arbitration tribunals and the European Union. [2] The report utilizes this vast amount of data to create an overview which demonstrates the importance of an environmental rule of law in combat against the worsening climate change crisis.

Goals

The goals of the cases are categorized into three main groups.

First, some cases target the long-term global impact of projects directly impacting the environment such as deforestation, extracting or processing fossil fuels, as well as the local impacts of mining and drilling activities on water, land use, air quality, and biodiversity.

Second, a further trend involves the fight against greenwashing, bringing actions against corporations for making unsubstantiated or misleading claims about the environmental benefits of the company or its products and services.

Third, climate litigation is also targeting human rights violations, especially drawing attention to the vulnerability of specific groups, such as Indigenous communities, youth and women to the impacts of climate change.

How?

Use of climate rights

To implement such goals, many cases utilize so called “climate rights”. Those encompass various rights, such as the right to life, health, food, water, liberty, family life, a healthy environment, and a safe climate. The right to a clean, healthy, and sustainable environment was recognised by the UN in 2021, impacting various human rights.

Cases involving climate rights have seen a significant growth, both in domestic and international forums. The UN Human Rights Committee for the first time found a country [3] in violation of international human rights law [4] due to inadequate climate policy. [5] Further, numerous petitions involving children’s rights in the context of climate change have been filed with UN bodies. Requested guidance on children’s rights arose from the committee’s findings, although some petitions were rejected due to a failure to exhaust domestic remedies. The children later filed a petition asking the UN Secretary-General for a climate emergency declaration. [6] Petitions were also submitted to the UN special procedures, eg one against former Brazilian President Jair Bolsonaro for crimes against humanity related to Amazon rainforest deforestation. Further, requests for advisory opinions are still pending in international courts. [7] Even regional cases involving climate rights have been brought before international human rights bodies, with for example the Inter-American System of Human Rights recognising the right to a healthy environment in advisory opinions and resolutions. [8]

Corporate liability and responsibility

Plaintiffs are not limiting their targets to countries and governments, but instead increasingly [9] involve private parties with application of various legal strategies. While some cases focus on financial institutions mishandling climate change risks, others target private entities – such as greenhouse gas (GHG) emitters and fossil fuel companies – for climate-related harm.

Cases against fossil fuel companies in the US seek accountability for their contribution to climate change through deceptive marketing and failure to warn the public, while courts in New Zealand and the Netherlands have upheld a corporate duty of care to mitigate emissions, with the latter ordering Royal Dutch Shell to reduce CO2 emissions to comply with the Paris Agreement. Plaintiffs seeking for accountability for climate risks and supply chain emissions have a facilitated way of making climate claims under the French Law on the Duty of Vigilance. Additionally, the Commission on Human Rights of the Philippines concluded after a seven-year investigation into Carbon Majors [10] for climate change responsibility, that business enterprises were responsible for respecting human rights and avoiding harm to the environment or climate change impacts regardless of whether domestic laws already exist or are fully enforced. [11]

Domestic enforcement

In the demand of climate actions from governments an enlarged number of cases have been using existing constitutional and fundamental rights secured under domestic law.

In Europe, Courts have recognized governments’ duty to protect fundamental rights and minimize climate change risks. While human and climate rights are utilized as argumentation and some successes can be attributed to those, challenges of specific projects or policies based on human rights obligations have had limited success, as courts often defer to the executive branch’s discretion. Outside of Europe the right to a healthy environment is also being used to challenge national climate policies in the global south. The Brazilian Supreme Court ruled that the Paris Agreement has “supranational” status, prioritizing it over conflicting laws, with similar rulings seen in Mexico, Norway, and Brazil. [12]

Regarding indigenous people, who are disproportionately affected due to their connection to the land and specific vulnerabilities, there have been some successful cases recognising the impact of climate change on Indigenous rights. However overall, indigenous-specific cases have had limited success. The identified investor-state dispute settlements (ISDS) [13] cases concerning climate change policies mainly aim for monetary compensation rather than overturning regulations. However, some domestic courts have limited corporations’ ability to seek compensation for the effects of climate policies on their assets, affecting some pending ISDS cases. [14]

Fight against Greenwashing

Greenwashing cases – often based on national consumer protection or corporate laws – involve companies being sued for greenwashing campaigns, misleading or fraudulent disclosures and plaintiffs relying on misrepresentative statements to make financial decisions. [15] Cases regarding the first have been increasingly filed, e.g. in Australia and France, where claims of providing clean natural gas and plans for net-zero emissions by 2040 allegedly violated Australian consumer protection and corporation laws and respectively claims of Total’s net-zero advertising campaign were allegedly false and misleading in France. [16]

Failure to adapt and the impacts of adaptation

Although Courts are increasingly seeing cases related to adaptation efforts with parties seeking compensation for damages by inadequate adaptations or injunctive relief for failure to prepare for known climate risks the overall number of cases remains limited.

Examples include lawsuits in the US challenging ExxonMobil’s failure to prepare its marine terminal for climate impacts and cases dealing with government actions to address coastal flooding risks through permitting denials in Pakistan and the US. Additionally, some cases question governments’ lack of consideration of adaptation measures in response to specific climate-related challenges, such as landslides in Uganda. [17]

Future directions

Climate change litigation is likely to increase in several areas in the coming years. Especially cases addressing the needs and status of people displaced by climate change impacts, results of extreme weather events and the failure to appropriately plan for them are expected to increase. Another emerging aspect will be extraterritorial responsibility, with states and corporations at risk of courts holding them accountable for climate-related harm that occurs beyond their borders. This might be particularly interesting regarding natural carbon sinks, in particular the ocean, which are rising in importance.

Furthermore, decarbonization strategies are being developed in the context of socioeconomic issues like inequality and racial injustice. A just transition is crucial for achieving fair and successful decarbonization, especially in the global south. Just transition cases focus on questioning the development and implementation of climate policies and their impact on human rights. [18]

Climate litigation involving vulnerable groups and “backlash” cases (seeking to resist positive climate initiatives) will likely continue as the impacts of climate change become more evident and the need for climate action increases. [19]

Regarding climate disclosures the regulatory context will prospectively change, with the European Commission and the US Securities and Exchange Commission proposing new rules to enhance reporting on climate-related information. If implemented, a completely new range of greenwashing cases will be enabled.

If the UN Environment Programme keeps its publishing rhythm, the next status review can be expected in 2026. In the meantime, the Sabin Center (co-authors of the report) and the Grantham Institute at LSE maintain databases of climate cases, and the latter publishes its own annual snapshot of global trends in climate change litigation [20].
 

[1] Total number of jurisdictions: 65

[2] P. 15 GCLR

[3] Australia

[4] The human rights of the Indigenous Torres Strait Islanders

[5] In Daniel Billy and others v. Australia

[6] P. 28 GCLR

[7] E.g. Vanuatu seeking one from the International Court of Justice; Antigua and Barbuda and Tuvalu seeking one from the International Tribunal for the Law of the Sea

[8] Further: The East African Court of Justice saw a case against the Governments of Tanzania and Uganda concerning the East African Crude Oil Pipeline; The Court of Justice of the European Union and the European Court of Human Rights have also dealt with climate-related cases, with some dismissals and priority hearings for specific cases.

[9] Increased number of cases from 2020 to 2022

[10] Specifically, 47 fossil fuel-producing companies

[10] P. 51- 54

[12] P. 55 – 59 GCLR

[13] Investor-state dispute settlements

[14] P. 60 – 71 GCLR

[15] E.g. investments in high emitting greenhouse gas activities or pension funds

[16] P. 55 – 59 GCLR

[17] P. 60 GCLR

[18] P. 72 GCLR

[19] P. 60 – 71 GCLR

[20] The June 2023 report: Global trends in climate change litigation: 2023 snapshot - Grantham Research Institute on climate change and the environment (lse.ac.uk)