Challenging government responses to climate change through framework litigation

This follow-up report to the Grantham Research Institute’s recent 2022 report on Global trends in climate litigation, explores a subset of climate litigation in which governments’ policy responses to climate change are challenged, which we call ‘government framework litigation‘.

Successful framework cases may have a significant impact on government decision-making, requiring governments to develop and implement more ambitious policy responses to climate change. Government framework litigation may also result in rapid changes to policy landscapes.

Main messages

• Government framework cases may challenge the overall level of ambition of a government’s response to climate change or a government’s failure to implement measures adequate to achieve the ambition.
• These kinds of cases originate in the broader use of strategic litigation as a tool for instigating social change, most commonly by civil society movements. They often consciously ‘borrow’ strategic approaches from a small handful of high-profile cases.
• At least 80 framework litigation cases have been filed against governments around the world (as of 31 July 2022) and just under half of these were filed in 2021 alone. The majority of cases to date have been filed in Global North countries (63 cases), with a significant minority in Latin America (8) and South Asia (7).
• Most government framework cases are ongoing. However, of the 9 cases challenging national-level policies that have been heard so far, 7 have had outcomes favourable to climate action.
• Framework climate litigation affects not only governments that are already responding or that might come to be involved in these lawsuits, but also companies, investors and stakeholders who are part of or are interested in efforts to promote a low-carbon transition.

Recommendations

• National and sub-national policymakers should take time to understand the positive obligations to make decisions informed by the latest climate science that are emerging because of these cases.
• Parliamentarians and legislators should familiarise themselves with the emerging transnational jurisprudence from framework cases and use it to inform the drafting of clear and ambitious framework legislation.
• Companies and investors should ensure that they understand the actual and potential framework climate cases that exist in the jurisdictions in which they operate. These cases and their direct and indirect impacts should be factored into transition risk assessments.
• Potential climate litigants should think carefully about when and how to bring framework cases, particularly in light of the challenges of enforcing rulings. Framework cases must be accompanied by ongoing and extensive strategies for engagement if they are to play a continuing role in achieving policy outcomes.