Climate and human rights court cases

Our key takeaway: 2023: Companies - watch out for the court case connecting climate and human rights! A number of new cases and court decisions are coming down the pipeline this year involving the private sector’s links to climate change and human rights. What started out as historic (the Royal Dutch Shell 2021 case in the Netherlands, applying human rights methodology to climate emissions, using the human rights impacts from climate change as a reason for doing so), will soon become mainstream. A growing number of court cases are challenging the energy sector - both for their carbon emissions, but also for not integrating a rights-based approach into their climate strategies (known as just transition cases). These just transition cases are not anti-energy, they are pro-climate justice. As impacts on people from the climate crisis, and the actions taken to respond to the climate crisis accelerate, so too will these court cases. The inter-connections are visible in the world. The inter-connections are being made in court rooms by plaintiffs and judges. Time for companies to make the inter-connections in their work - grounded in internationally recognised methodologies.

New research and reporting is detailing an upward trajectory in lawsuits holding both governments and companies to account for human rights impacts caused by climate change inaction, renewable energy projects and fossil fuel investments:

• Key trends in just transition litigation: The Sabin Center for Climate Change Law at Columbia Law School released Just Transition Litigation in Latin America: An Initial Categorization of Climate Litigation Cases Amid the Energy Transition (January 2023). The researchers identified 20 cases based on the concept of just transition in Latin American countries. The cases relate to four categories of projects within the energy sector: decommissioning of existing fossil fuel projects (2 cases), mining or infrastructure for transition minerals like lithium (4 cases), new technologies in renewable energy (10 cases), and subsidies for fossil fuel projects (1 case). Interestingly, plaintiffs draw on a variety of different human rights to make their case, including labour rights, indigenous peoples’ rights, the right to a healthy environment and other aspects of environmental rights codified at national level. Researchers found that this is a relatively new but growing phenomenon. Despite their small sample set, the authors note a distinct uptick in cases over the past few years, with just transition cases more than doubling in Latin America in the last three years.

• Plaintiffs are pro-climate justice, not anti-energy: The authors of the Sabin Center research underscore that just transition lawsuits are a distinct and burgeoning category of litigation: “Although many of these cases would traditionally be considered environmental litigation – as these refer to the socio-environmental impacts of mining and energy projects – they peripherally relate to climate change with a broad decarbonization strategy for an energy transition at its core.” The research also points out a new way to understand the objectives of such cases. Researchers analysed whether the cases are driven by “pro-energy” or “anti-energy” sentiments, as they have been traditionally categorised. They found that the majority of cases oppose fossil fuel projects “without opposing the energy transition as such. Our report thereby sheds light on a new type of climate litigation that uses just transition framing to promote more just pro-climate policies.” When taken together with the profile of plaintiffs—the majority of whom are NGOs representing communities as well as indigenous communities themselves—their research suggests that just transition litigation is not a threat to decarbonisation. Rather, the authors interpret the findings to suggest that “ensuring that there is adequate participation of all stakeholders affected in the energy transition – among other substantive and procedural requirements depending on the jurisdiction – are essential to avoiding litigation and further delays to national decarbonization.”

• Looking forward, “a watershed year for climate litigation”: In a recent piece in The Guardian, "Why 2023 will be a watershed year for climate litigation" (4 January 2023), Isabella Kaminski writes that “hearings and judgments across the world [are] poised to throw light on the worst perpetrators, give victims a voice and force recalcitrant governments and companies into action.” A number of new cases and court decisions are coming down the pipeline this year, including many involving the private sector’s links to climate change and related human rights impacts. For example, the U.S. Supreme Court has been asked to settle the question of which courts can hear climate litigation against companies, potentially opening the door for more cases to be filed. Courts in Australia have recently decided several cases blocking local fossil fuel projects and are set to hear others, while courts in Germany and France are hearing cases against home-state corporations for climate impacts abroad. The Brazilian national development bank is under examination by Brazilian courts, in what Kaminski calls “the first case of its kind [which could also have] significant repercussions on wider climate finance.” Kaminski also predicts that “[t]he financial sector, in particular, is likely to be a big target, and there will be continuing waves of related litigation targeting plastics and biodiversity loss.” At the same time, 2023 will see a number of cases brought by residents against their own governments for failure to set or meet greenhouse gas emissions goals, continued investment in fossil fuels, climate-caused catastrophes and impacts to health driven by heat, water scarcity and other environmental concerns.