The rising tide of climate litigation
Climate activists, young and old, are increasingly using the courts as well as the streets to try and reduce greenhouse gas emissions
Protests and activism about climate and other environmental issues have often been about mostly non-violent direct actions – blocking roads, marches, getting in the way of ships, boycotts, and throwing stuff at art.
That’s tending to be less effective now for several reasons. Disrupting travel and defacing art are annoying and confusing people, undermining activists’ messages and playing into the media hands of the companies (and governments) they should be focussed on.
In several countries, policing tactics against even peaceful protests are hardening and sentences are getting tougher. This is raising concerns that civil liberties are being undermined, and governments and companies are taking stronger courses of action to avoid being held to account.
Bringing in the lawyers
Increasingly, climate and environmental activists are using litigation not just loud hailers. High-vis vests are being joined by legal gowns and wigs. Researchers at the London School of Economics, along with others, are keeping track of climate related litigations.
The number of such cases both in developed and developing countries continue to grow. Activists have brought cases against both governments and companies, while companies have also taken some NGOs and individuals to court.
“The United States remains the country with the highest number of documented climate cases, with 1,745 cases in total, and 129 new cases filed in 2023. After the US, the countries with the highest number of recorded cases filed in 2023 were the UK with 24 cases, Brazil with 10 cases, and Germany with 7 cases. These three countries also have high aggregate numbers of recorded cases, with the UK currently at 139 cases, Brazil at 82 cases, and Germany at 60.” [Setzer & Higham. Global Trends in Climate Change Litigation: 2024 Snapshot]
Governments, and states, are being sued for not doing enough to reduce greenhouse gas emissions or protect the health and safety of current and future citizens. Earlier this year, for example, the European Court of Human Rights ruled that Switzerland was violating the human rights of its citizens by inadequate action on climate change. A judgment by the Supreme Court of India established a constitutional right to be free from the adverse effects of climate change.
The International Court of Justice, a UN body, has also been asked, after lobbying by several small island nations, to develop an opinion on “the obligations of States in respect of climate change.” This, the island nations hope, will make larger greenhouse gas emitting countries more accountable for climate impacts.
“Fifteen judges from around the world will seek to answer two questions: What are countries obliged to do under international law to protect the climate and environment from human-caused greenhouse gas emissions? And what are the legal consequences for governments where their acts, or lack of action, have significantly harmed the climate and environment?”
While non-binding, the Courts decision, if it comes out in favour of the island nations, is likely to lead to many domestic and international legal actions against governments and companies.
One of the LSE researchers views litigation as a "powerful storytelling tool." It can complement the science (often more successfully) in communicating the problem and its underlying causes.
The long-term effectiveness of such litigation is uncertain
Winning a court case is one thing, having a long-term tangible effect is another. Some governments have changed their policies to help reduce emissions. Others have ignored, delayed, or changed the rules rather than directly comply. Companies that have cases against them (whether or not they succeed) often see a small decline in share prices, at least for a short time. The longer-term effectiveness of litigations (successful or not) on corporate levels of carbon emissions are unclear, although the financial and reputational costs can influence investors.
The behaviours of fossil fuel companies don’t seem to have been affected by such litigation so far. However, the increasing frequency of such court cases is likely to influence the risk assessments of their insurance companies and raise insurance premiums.
Companies are using litigation against climate activists too to obstruct and deter protest actions.
An influential local litigation decision
Earlier this year in Aotearoa New Zealand, Mr Smith (Ngāpuhi and Ngāti Kahu) a political activist was successful in the Supreme Court in challenging an Appeals Court decision that prevented him from pleading his case in the High Court. He had attempted to take seven private companies in the dairy, steel, petroleum and coal industries to court on the basis that their greenhouse gas emissions were threatening his traditional connection to coast land.
Smith has brought the case on behalf of the whenua (land), wai (freshwater) and moana (sea). Previous cases here and elsewhere that tried to sue individual companies for the impact of their emissions have failed. The explicit relevance to Tikanga (traditional custom, law and practices) was seen as the influential factor by the Supreme Court.
While the Court indicated that Mr Smith’s case has several challenges to overcome and may not succeed, allowing it to go to trial is seen as a substantial advance.
The Supreme Court ruled that:
“… the novel nature of the claims and the significance of the alleged harm was a factor counting against striking the claims out without a full trial. The Court reasoned that a full trial would mean that a decision could be made with the benefit of evidence and full argument.”
This ruling, which may make it harder for companies to get such cases summarily dismissed, is likely to encourage other activists here and elsewhere to bring climate change (and other) claims that rely on traditional practices and customs. However, in the current political climate, more conservative or populist governments may also seek to restrict such cultural and Tikanga-based claims.
More litigation on the horizon
The London School of Economic researchers anticipate three future climate litigation trends:
Post-disaster cases – legal disputes over whether disaster recovery efforts just restore fossil-fuel infrastructure that seem likely to have contributed to climate-related disasters.
Ecocide and criminal law – clearer directives on environmental crimes, such as those being developed in the European Union.
Environmental and climate litigation synergies – Litigation strategies developed for climate issues being adopted for other environmental problems, such as plastic pollution and rights-based environmental cases.
So there is likely to be a surge of sue and counter suit. But relying on the law to reduce greenhouse gas emissions will, by itself, be too little too late.
H/T to Cheryl Doig for getting me to look at this more closely