Climate change litigation shows no sign of abating as plaintiffs use a variety of strategies to bring lawsuits against governments and Carbon Majors
Human rights are increasingly being used to support climate change cases in courts around the world, and plaintiffs are using alternative strategies to bring lawsuits against major fossil fuel companies, finds a new global review of climate litigation published today (July 3rd) by the Grantham Research Institute on Climate Change and the Environment at the London School of Economics and Political Science.
The report, Global trends in climate change litigation: 2020 snapshot, reviews key developments around the world in climate litigation between May 2019 and May 2020. It finds that there was an escalation in the use of litigation by activists, advocacy groups, cities (Minnesota and DC most recently|) and states. There have also been important developments in how cases are argued and the type of litigation strategies that are being employed by litigants.
In some countries, litigation and direct protest were blended, forming part of a broader strategy of environment and climate advocacy. More than 2,800 people were arrested over two periods of mass protest in the UK, in April and October 2019, with hundreds more arrested around the world. Protesters were encouraged to present particular messaging in their statements to the police and the courts, ultimately influencing how courts address climate change more broadly.
The report also finds that the success of a small number of high-profile climate cases has led to an uptick in litigation relying on human rights arguments over the past 12 months. There are ongoing legal proceedings regarding states’ human rights obligations to mitigate climate change in Ireland, France, Belgium, Sweden, Switzerland, Germany, the United States, Canada, Peru and South Korea. Arguments relied on by litigants in these cases often centre on the idea that reducing emissions with the highest possible level of ambition amounts to a due diligence standard for complying with human rights obligations.
The Urgenda case forms part of this rapidly evolving body of cases regarding states’ human rights obligations to urgently mitigate climate change. The Dutch Supreme Court ruling in December 2019 was the first in the world in which a highest level domestic court established a state’s duty to reduce emissions by an absolute minimum amount. The Dutch government’s response, in the form of a commitment to reduce the capacity of its remaining coal-fired power stations by 75 per cent and a €3 billion package of measures to reduce Dutch emissions by 2020 is indicative of the type of pro-regulatory impacts that can result from climate litigation.
The report also finds evidence that even where cases are unsuccessful, they may influence potential future litigation.
“What we’re seeing in cases like Teitiota in New Zeland and Juliana in the US Court of Appeals are decisions that did not rule in favour of the plaintiffs but that included statements that recognise the risks imposed by climate change, leaving the door open for future successes in different circumstances,” said co-author Joana Setzer, Assistant Professorial Research Fellow at the Grantham Research Institute.
The report describes a variety of strategies, in addition to human rights, that are being used to bring lawsuits against major emitting companies – known as the ‘Carbon Majors’ – ranging from claims of nuisance and deceptive ‘green washing’ to fraud and disclosure-related lawsuits. There are currently at least 40 ongoing climate cases worldwide against Carbon Majors, 33 of which are in the United States.
Some regulatory challenges to permits authorising high emitting projects have also been successful in regulating emissions. These decisions could lead to effective mitigation, provided that the Court mandates are not overturned by ministerial action or inaction.
However, the risks and economic costs involved in litigation are also underscored in the report. These include legal and administrative costs, legal fees and fines and awards of damages. Indirect financial impacts include increasing premiums under liability insurance policies and potential impacts on market valuation.
Although climate change litigation is spreading around the world, the majority of cases are still in the US. At the end of May 2020 the Climate Change Laws of the World database featured 374 court cases in 36 countries (excluding the US) and eight regional or international jurisdictions, as well as 1,872 climate laws and policies in 198 jurisdictions. The Sabin Center’s database for the United States featured 1,213 climate lawsuits in the US up to the end of May 2020.
The report reveals that some trends remain unchanged over the period, with over 80 per cent of cases having been brought against governments, typically by corporations or individuals, similar to previous years. There has also been little change in how favourable case outcomes are to effective climate policy. For non-US cases, 58 per cent (187) of cases had outcomes favourable to climate change action, 33 per cent (106) had unfavourable outcomes, and 9 per cent (28) had no discernible likely impact on climate policy.
“We have found looking at the data that outside of the United States, judges appear more inclined to support more effective climate action,” said co-author Rebecca Byrnes, policy analyst at the Grantham Research Institute.
The report also gives cause for concern that the COVID-19 crisis is being used to roll back environmental regulations, potentially causing an increase in emissions in both the short and long term. For instance, there are reports of environmental assessments for high-emitting developments being relaxed in India, and reduced law enforcement to combat deforestation in Brazil, imposing additional adverse impacts on rural communities and Indigenous peoples. In this regard, litigation could have an important role in preventing further erosion of the environmental rule of law in the midst of the global pandemic. Another possible source of climate litigation could be challenges to government bailouts of the oil, airline and car industries.
Read the policy brief “Global trends in climate change litigation: 2020 snapshot”.
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For further information and for interview requests please contact Niamh Brannigan at email@example.com or +44 (0) 7933997989
Notes for editors
You to attend a virtual panel event that we are holding: Climate Litigation – insights from global experience, on Friday 3 July 2020, at 8am EDT / 1pm BST / 2pm CEST.
The panel will focus on the extent to which climate litigation is driving policy change, and the potential effects of the COVID-19 pandemic on future cases.
It will also be an opportunity for us to publish and present our new report “Global trends in climate litigation: 2020 snapshot”.
– Lord Carnwath (former Justice of The Supreme Court of the United Kingdom)
– James Thornton (ClientEarth)
– Irum Ahsan (Asian Development Bank)
– Joana Setzer (GRI)
Chair: Robert Falkner (GRI Research Director)
Moderator: Michael Burger (Sabin Center Executive Director)
Live Q&A session at the end.
The event is part of London Climate Action Week.
If you want to join, please register here
About The Grantham Research Institute on Climate Change and the Environment
Established in 2008 at the London School of Economics and Political Science, the Institute brings together international expertise on economics, as well as finance, geography, the environment, international development and political economy to establish a world-leading centre for policy-relevant research, teaching and training in climate change and the environment. It is funded by the Grantham Foundation for the Protection of the Environment. www.lse.ac.uk/grantham/
About The Centre for Climate Change Economics and Policy (CCCEP)
The Centre for Climate Change Economics and Policy (CCCEP) was established in 2008 to advance public and private action on climate change through rigorous, innovative research. The Centre is hosted jointly by the University of Leeds and the London School of Economics and Political Science. It is funded by the UK Economic and Social Research Council. www.cccep.ac.uk
About The Sabin Center for Climate Change Law at Columbia Law School
The Sabin Center for Climate Change Law at Columbia Law School develops legal techniques to fight climate change, trains law students and lawyers in their use, and provides the legal profession and the public with up-to-date resources on key topics in climate law and regulation. It works closely with the scientists at Columbia University’s Earth Institute and with a wide range of governmental, nongovernmental and academic organisations. www.climate.law.columbia/edu