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Climate litigations on the rise

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Globally, the number of climate litigations has more than doubled since 2015. In the last six years alone, more than 1,000 new cases have been launched. Disputes have diverse participants and goals. However, they do not necessarily favor climate action *.


What are climate litigations and how many such cases exist at all?


Climate litigations are disputes before administrative, judicial and other investigative bodies, in domestic and international courts and similar institutions, in which issues of rights or facts related to the science of climate change, as well as climate change mitigation and adaptation issues take center stage.


According to a report by the Grantham Research Institute for Climate Change and the Environment (London School of Economics and Political Science), the cumulative global number of such disputes has more than doubled since 2015. While in the period 1986-2014 eight hundred such cases were recorded, in the last six years alone, more than 1,000 climate disputes have been initiated. The period of sharp increase in the number of disputes directly coincides with the period after the signing of the Paris Climate Agreement.

Klimatski sporovi Climate litigations
Graph 1: Trends in number of climate litigations 1986-2021 (source: cited report)

The database used in the report contains 1,841 court cases from around the world (as of May 2021). The majority of climate disputes concern the United States (1,387), while the remaining (454) are recorded in 39 other countries and 13 international or regional courts. Outside the US, most cases are observed in Australia (115), the UK (73) and the EU (58). Most cases are lawsuits from the so-called global north, but it is noticeable that court cases of this kind are growing in the global south. At least 58 cases from 18 jurisdictions in the global south have been identified.


The analyzed information used in the mentioned report usually excludes disputes in which climate change is a secondary topic or if climate change is not explicitly mentioned. However, it should be borne in mind that such cases may ultimately have a significant potential impact on efforts to adapt and mitigate the effects of climate change at the local level (e.g. these may be cases associated with increased levels of air pollution where climate change is not the primary topic, but measures can contribute to slowing climate change).

Target groups, strategies and success of climate disputes


Climate litigations are targeting a wider range of actors from private and financial sectors, and there is a growing variety of arguments used, including topics such as greenwashing and futures responsibility. The largest number of climate litigations is directed against governments, and most disputes are initiated by corporations, the NGO sector and individuals. Below is a graphical representation of the number of climate litigations by type of applicant in countries outside the United States, in which we see that the largest number of disputes in non-US countries in 2020 came from the NGO sector and individuals.

Tužioci u klimatskim sporovima Climate litigations applicants
Graph 2: Overview of the applicants in climate litigations outside of the USA (source: cited report)

EXAMPLES OF CLIMATE LITIGATIONS

Friends of the Earth, et al. vs. Royal Dutch Shell
One of the most famous cases in recent times is the dispute initiated by the organization Friends of the Earth with six other environmental organizations and over 17,000 citizens against the oil company Shell. In April 2019, the group sued Shell in the District Court in The Hague (where Shell is headquartered) for their contribution to climate change. Applicants have demanded that the court rule that Shell must reduce its emissions by 45% by 2030 compared to 2010 and that it must achieve zero emissions by 2050, in accordance with the Paris Climate Agreement.

In May this year, the court ruled that Shell must reduce its carbon dioxide emissions by 45% within this decade. This historic verdict will have a significant impact on the entire market and all oil companies.

More about this case:
http://climatecasechart.com/climate-change-litigation/non-us-case/milieudefensie-et-al-v-royal-dutch-shell-plc/
https://www.foei.org/news/climate_litigation_shell

BankTrack, et al. Vs. ING Bank

BankTrack and its associates filed a lawsuit against ING Bank for failing to adequately comply with the objectives of the Paris Agreement. The indictment alleges that ING violated the provisions on the environment and consumer protection from the Guidelines for International Enterprises of the Organization for Economic Cooperation and Development. Specifically, the accusation concerned a failure to report indirect emissions from products financed by the bank.

As a result of this process, ING Bank has accepted an agreement to comply with internationally recognized methodologies for measuring and defining objectives related to the Bank’s impact on climate change.

More about the case: http://climatecasechart.com/climate-change-litigation/non-us-case/banktrack-et-al-vs-ing-bank/

In addition to the general growth trend, there is a dramatic increase in the so-called strategic cases. The main motives of the initiators of strategic cases are broader social goals related to the improvement of climate policies, the creation of public awareness or changes in the behavior of governments or industry representatives. The rapid growth of strategic cases implies that climate disputes are becoming increasingly popular as a strategy of activists.

Trends in strategies in climate litigations

The following strategies stand out, although there is interference in cases:

1) Compliance with climate goals
After the Paris Climate Agreement, climate disputes became an instrument for implementing and increasing the obligations of governments (National Determined Contributions).

2) Challenging projects and policies
Disputers are increasingly targeting specific high-profile projects or policies (e.g. opposing a proposal for a new coal mine in the UK). Such cases mainly focus on omissions in procedures related to adequate environmental impact assessment and usually result in project prolongation.

3) Cases related to the constitution and human rights
Climate change is now recognized as “the biggest human rights crisis of recent times”. Such cases are appearing more and more, a record 29 cases are identified in 2020.

4) Invocation of responsibility
Prosecutors find new arguments to accuse governments and companies of lacking responsibility for current and past decisions.

5) Cases related to corporations and financial markets
There is a noticeable increase in such cases, as well as the arguments and strategies used. Some disputes are over insufficient or inadequate communication on climate change, others criticize the passivity and responsibility of companies. A small number of significant disputes aim to force financial markets and their decision-making to move towards a climate-complementary way of doing business.

6) Cases related to adaptation
Cases involving mitigation have been identified more frequently. However, 180 cases related to the topic of adaptation were observed (100 in the USA, 80 in other countries, of which 61 in Australia)

On the other hand, the phenomenon of a growing number of disputes undermining activities in the fields of adaptation and mitigation of climate change is noticeable. This type of dispute includes cases of direct opposition to climate action, but also those that seek to slow down or withdraw climate action or policies.

EXAMPLES OF CLIMATE DISPUTES AFFECTING THE SLOWING OR WITHDRAWAL OF CLIMATE ACTIONS AND POLICIES


Uniper Vs. The Netherlands


One of the most well-known cases of this kind, which aims to oppose climate action, is the case of Uniper vs. Netherlands. In April this year, a German energy company launched a lawsuit against the Dutch government, claiming that the government’s plans to phase out coal by 2030 are contrary to the multilateral energy cooperation agreement (Energy Charter Treaty).
You can see more about this case at: https://climate-laws.org/geographies/international/litigation_cases/uniper-v-netherlands
Also interesting are the following cases of this type: RWE vs. Kingdom of the Netherlands and West Virginia vs. Environmental Protection Agency

Quantitative analysis of the outcome of completed disputes outside the US in the CCLW database shows that 58% of cases (215) had a positive result in terms of climate action, 32% (118) had an unfavorable outcome, while 10% (36) had no visible impact on climate policies.

CLIMATE LITIGATIONS
Graph 3: Overview of cases by the final result regarding climate action (cases outside of the USA) Source: cited report

The future of climate litigations


The report states that the number of court cases related to the topic of climate change is expected to continue to grow in the future. Also, the accusations and the accused parties are expected to diversify even more, which is a consequence of the increased understanding of the roles of different participants who are part of the transition to a global economy with net zero emissions. Moreover, the number of lawsuits against financial market participants is expected to increase.


In addition, there is a good chance that lawsuits will be increasingly directed against governments and companies that are the largest emitters of harmful gases, and which fail to define long-term strategies supported by specific short-term plans and goals for reducing emissions. Three areas to look at more in the future are supply chain litigation, then cases in which governments support the fossil fuel industry, as cases linked to a “fair transition.”

*Climate action in the text means any activity or initiative aimed at reducing emissions of harmful gases that cause accelerated climate change.


References:

Setzer J. and Higham C. (2021) Global trends in climate change litigation: 2021 snapshot. London: Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy, London School of Economics and Political Science. (available at: https://www.lse.ac.uk/granthaminstitute/publication/global-trends-in-climate-litigation-2021-snapshot/)

http://climatecasechart.com/climate-change-litigation/

https://climate-laws.org/

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