Abstract
The world’s climate is changing rapidly, and the urgency for an effective response is widely acknowledged by scientists, corporations, and nations. Climate litigation, a term referring to the growing number of lawsuits where climate change and its impacts are central or contributing factors, has emerged as a significant legal and financial issue. This blog highlights the significance of core climate change cases, which focus on damages directly caused by climate change. These cases have been spotlighted in international forums like COP26 and COP28, underscoring the slow progress by governments and corporations in addressing climate change and the role of litigation in enforcing existing laws and driving systemic changes.
Introduction
The world’s climate is changing rapidly and leading scientists, corporations and most nations agree that there should be an urgent response to it. Climate litigation is a broad and still maturing term that refers to the rapidly growing body of lawsuits in which climate change and its impacts are either a contributing or key consideration in legal argumentation and adjudication.[1]Presently climate change is not a mere scientific and environmental issue but it has transformed into a financial and legal issue. The world’s first ever climate change lawsuit was the State of Massachusetts v Environmental Protection Agency[2] filed in the United States of America in the year 1990. According to the climate change litigation database by the Sabin Center for Climate Change Law at Columbia Law School.[3] There has been an exponential increase in the climate change lawsuits globally Increasing from 177 lawsuits in 2013 to 2180 in 2023 with an approximate annual increase by 25.11%. Many cases can be seen as ‘incidental’ climate change litigation. Here, climate change is a minor part of the lawsuit. Examples include industry groups challenging a zoning rule that bans building or expanding fossil fuel terminals, claims against companies for “false green advertising,” and cases to protect climate change beliefs under employment laws.[4]Different types of climate change litigation can be against government, corporations, human rights cases, financial and fiduciary duty cases and local environment protection cases.[5] Here we only focus on the core climate change cases that are litigation which centers on damages directly caused by climate change. Climate change litigation has become a point of focus in the recent COP(Conference of Parties) demonstrating its increasing significance in resolving the shortcomings of climate action and holding organizations responsible. COP26 in Glasgow also acknowledged the rising trend in climate litigation. It underscored that slow progress by governments and corporations in addressing climate change has spurred an increase in lawsuits. The conference discussed various high-profile cases, such as the landmark decision in Urgenda Foundation v. State of the Netherlands, where the Dutch Supreme Court mandated the government to meet specific emission reduction targets based on human rights obligations.[6] COP28 which was held in Dubai between November 30 to December 12, 2023 notably emphasized litigation as a crucial mechanism to drive climate action. Discussions highlighted that litigation serves as a powerful tool to enforce existing laws and push for systemic changes, especially in the context of inadequate government regulations and enforcement.[7] Climate change has stood as a main cause of melting glaciers, extreme weather events and rising sea levels. The main goal of these lawsuits is to hold the main polluters accountable for their actions and provide compensation to those affected by it.
Legal Trends in Climate Change Lawsuits
The Paris Agreement is a landmark international treaty adopted in the year 2015 at the 21st Conference of the Parties (COP21) to the United Nations Framework Convention on Climate Change (UNFCCC) in Paris, France. The Paris Agreement’s central aim is to strengthen the global response to the threat of climate change by keeping a global temperature rise this century well below 2 degrees Celsius above pre-industrial levels and to pursue efforts to limit the temperature increase even further to 1.5 degrees Celsius.[8] Climate change litigation has surged dramatically in recent years. This increase is primarily due to rising public awareness, scientific consensus on climate change, and the legal and moral commitments set by international treaties such as the Paris Agreement. There are various trends in which these climate change lawsuits are filed and we shall discuss them below:
Human Rights: A great deal of climate change lawsuits are filed on the basis of human rights. For example, Urgenda Foundation v. The State of the Netherlands[9] is a landmark case where a Dutch environmental group, the Urgenda Foundation, and 900 Dutch people sued the Dutch government to force it to do more to combat global climate change. The Hague court ordered the Dutch state to limit GHG emissions to 25% below 1990 levels by 2020, ruling that the government’s existing pledge to reduce emissions by 17% was insufficient to meet the state’s fair contribution to the UN goal of keeping global temperature increases within two degrees Celsius of pre-industrial levels. The court determined that the state had a responsibility to implement climate change mitigation measures owing to the “severity of the consequences of climate change and the great risk of climate change occurring.” In reaching this conclusion, the court cited (without directly applying) Article 21 of the Dutch Constitution; EU emissions reduction targets; principles under the European Convention on Human Rights; the “no harm” principle of international law; the doctrine of hazardous negligence; the principle of fairness, the precautionary principle, and the sustainability principle embodied in the UN Framework Convention on Climate Change
The youth leading climate change cases: Action by young plaintiffs asserting that the federal government violated their constitutional rights by causing dangerous carbon dioxide concentrations in the case of Juliana v United States.[10]
Administrative Climate Change also gained momentum in the Global South. For example, a local group of people in Nigeria brought a case in front of the Nigerian Federal Court to stop the Nigerian Government from flaring gas in the Nigerian Delta due to the adverse effects on inhabitants’ health as well as emission of GHGs contributing to climate change.[11]
Violation of Fundamental Rights: In 2015 a Pakistani appellate Court in the judgment of Leghari v Republic of Pakistan[12] held that the Pakistan Government’s failure to implement the 2012 National Climate Change Policy(2014 – 2030) offends the fundamental rights of citizens.
Corporate Accountability: In the case of Milieudefensie et al. v. Royal Dutch Shell[13] The environmental group Milieudefensie/Friends of the Earth Netherlands and co-plaintiffs served Shell a court summons alleging Shell’s contributions to climate change violate its duty of care under Dutch law and human rights obligations. The case was filed in the Hague District Court. Co-plaintiffs include other NGOs and more than 17,000 citizens. Shell was ordered to cut its CO2 emissions by 45% by 2030.
Another significant recent decision analyzing the appropriateness of emission reduction objectives is the German Federal Constitutional Court’s ruling in Neubauer v Germany[14], which was issued on April 29, 2021. In that decision, the Court ruled that elements of the Federal Climate Protection Act were incompatible with basic rights because they did not include sufficient measures for lowering emissions beginning in 2031. The Court agreed with the young plaintiffs’ contention that the Act harmed future generations by deferring the principal responsibility of lowering emissions until beyond 2030, and ordered German legislators to set new reduction targets by the end of 2022.
Challenges
In climate change litigation, plaintiffs often face significant challenges in proving that a particular defendant is liable for environmental harm. The global nature of climate change, coupled with the cumulative effects of emissions over decades, complicates the attribution of specific damages to individual actors.
One of the fundamental obstacles is the diffuse responsibility for climate change. Emissions result from a multitude of sources, including industrial activities, transportation, and deforestation, among others. This widespread and historical contribution to greenhouse gas accumulation makes it difficult to pinpoint a single entity or individual as primarily responsible for specific climate-related damages.
Moreover, the scientific complexity of climate change further complicates litigation. Although there is a strong consensus that human activities are the primary drivers of global warming, establishing a direct causal link between a defendant’s actions and particular climate impacts involves intricate scientific evidence. Plaintiffs must demonstrate that the defendant’s emissions significantly contributed to the specific harm they experienced, a task that is challenging given the interconnectedness of global emissions.
Another issue is the legal concept of standing, which requires plaintiffs to show that they have suffered a direct and tangible harm that can be attributed to the defendant. This can be particularly difficult in climate cases, where harms are often widespread and diffuse, affecting entire communities or ecosystems rather than individuals. For instance, the difficulties in establishing liability for climate change are illustrated by a 2006 Australian federal administrative case, Wildlife Preservation Society of Queensland Proserpine/Whitsundry Branch Inc. v. Minister for the Environment & Heritage (Federal Court of Australia, 2006).[15] The Judge held that “…I am far from satisfied that the burning of coal at some unidentified place in the world, the production of greenhouse gasses from such combustion, its contribution towards global warming and the impact of global warming upon a protected matter, can be so described.”
This can be resolved with climate attribution science. By delineating a causative link between GHG emissions and localised physical effects, the developing field of attribution science might one day provide the evidentiary basis for establishing climate liability.
In the case of Comer v Murphy Oil, Plaintiffs contended that defendants, which included firms that produced fossil fuels and electric utilities, were responsible for greenhouse gas emissions that exacerbated Hurricane Katrina’s intensity and caused damage to plaintiffs’ properties. Plaintiffs alleged: “Prior to striking the Mississippi Gulf Coast, Hurricane Katrina had developed into a cyclonic storm of unprecedented strength and destruction, fueled and intensified by the warm waters and warm environmental conditions present in the Atlantic Ocean, Caribbean Sea, and the Gulf of Mexico. These high sea surface temperatures, which were a direct and proximate result of the defendants’ greenhouse gas emissions, increased the intensity and magnitude of Hurricane Katrina.”[16]
Conclusion
In the era where climate accountability is significant, the legal system plays an important role in the functioning of environmental proceedings and ensuring that the cost of climate change is borne by those who are liable. The drastic surge in the climate change litigation stands as a strong reminder of the imminent need for action.
This blog is authored by Manjumol R S, a student of KIIT School of Law
[1] Geetanjali Ganguly, Joana Setzer and Veerle Heyvaert, “If at First You Don’t Succeed: Suing Corporations for Climate Change”, Oxford Journal of Legal Studies (2018), 3
[2] Environmental Protection Agency: Overview of Massachusetts v EPA https://www.epa.gov/clean-air-act-overview/summary-supreme-court-decision-massachusetts-v-epa
[3] Sabin Centre for Climate Change Law https://climate.law.columbia.edu/
[4] Grantham Institute of Climate Change and the Environment.
[5] LSE Grantham Research Institute: Climate Change Litigation
[6] COP26: Together for our planet
[7] UN Climate Change Conference – UAE
[8] UNFCCC (United Nations Framework on Climate Change) Paris Agreement
[9] Urgenda Foundation v State of Netherlands, Climate Change Litigation Database
[10] https://climatecasechart.com/case/juliana-v-united-states/
[11] Gmebre v Shell Petroleum Development Company of Nigeria Ltd.
[12] https://climatecasechart.com/non-us-case/ashgar-leghari-v-federation-of-pakistan/
[13] https://climatecasechart.com
[14]https://www.cambridge.org/core/journals/german-law-journal/article/neubauer-et-al-versus-germany-planetary-climate-litigation-for-the-anthropocene/1292D5E1F466077F00CDBE9EDB35070E
[15] Federal Court of Australia [2006] FCA 736 https://www.informea.org/sites/default/files/court-decisions/COU-156368.pdf
[16]change-litigation/wp-content/uploads/sites/16/case-documents/2011/20110527_docket-111-cv-00220_complaint-1 .pdf