Climate change litigation 2023

Our key takeaway: It’s that time of the year again - we have the latest in the global trends in climate change litigation, courtesy of The Centre for Climate Change Economics and Policy (CCCEP) and The Grantham Research Institute on Climate Change and the Environment. Climate change litigation is on the rise - and in particular, cases against companies. But these cases are rapidly evolving. For instance, in the past, we could more neatly fit cases into categories: is this a case seeking financial damages based on historic responsibility? Is this a case aiming to align the company’s activities with the Paris Agreement and human rights responsibilities? Increasingly, it’s both. There has been an “explosion” of cases based on climate misinformation and misleading green claims - climate-washing cases. And just transition cases are here to stay. And the direction of travel of lawsuits will evolve further as each year goes by. According to the authors, be prepared for future cases focused on the biodiversity–climate nexus; addressing the duties of governments and corporations to protect the ocean; and arising from extreme weather events - amongst other future developments.

The Centre for Climate Change Economics and Policy (CCCEP) and The Grantham Research Institute on Climate Change and the Environment published ‘Global trends in climate change litigation: 2023 snapshot’ (June 2023) (authored by Joana Setzer and Catherine Higham). It reviews key global developments in climate change litigation, with a focus on the period June 2022 to May 2023:

• Climate change litigation continues to grow, and in new jurisdictions: All in all, the Sabin Center’s climate litigation databases has over 2,341 climate cases - with 190 filed over the last year. There was a significant spike in cases in 2021, and since then growth has been steady (except for in the U.S. where we have seen a decline). A few points of interest: We have seen cases in seven new countries:  Bulgaria, China, Finland, Romania, Russia, Thailand and Turkey. Germany has the highest number of recent cases. Cases are rising in the Global South, based on human and constitutional rights. In addition: “Newly identified cases in China suggest that China may be developing a unique form of climate litigation, where the courts may play a role in guiding enterprises’ response to climate change.”
  

• Strategic climate cases against companies: The report finds that “strategic litigation against companies continues to develop, with cases targeting corporate actors from across a growing range of sectors.” As the cases against Governments has decreased, the cases against companies has increased. Strategic lawsuits are those that.”are filed with the aim of influencing the broader debate around decision-making with climate change relevance.” The report finds that there are eight types of strategies used in strategic cases - although a number of cases employ more than one strategy. For instance, we are seeing ‘corporate framework’ cases: “17 cases have been filed against large corporations challenging their climate plans and/or targets on the basis that these are inadequate. Some of these cases may also involve arguments about ‘climate-washing.’” We are also seeing ‘turning off the taps’ cases, with cases aimed at preventing the flow of finance to high- emitting or harmful projects or activities; and ‘failure-to-adapt’ cases: cases which “challenge a government or corporation for failure to adapt to the requirements of the climate crisis, either by failing to adapt property or operations to physical risks or by failing to consider transition risks.” The report delves into the differences between corporate liability cases, with some seeking financial damages based on historic responsibility, while others “aim to align companies’ activities with the Paris Agreement and human rights obligations.” “An important development in recent months is the merging of both types of cases.” The report further finds that increased emphasis is being placed on current and past losses due to climate-related events, “[c]ases continue to develop new arguments relating to disinformation spread by high-emitting companies about the impacts of their products”; and “[c]orporate responsibility cases continue to expand beyond the Carbon Majors”, for instance new cases invoking due diligence obligations.
  

• ‘Climate-washing’ cases, and just transition cases: The report delves into the “explosion” of climate-washing cases. These concern both climate misinformation and misleading green claims. Examples are “complaints against Glencore for expanding coal production despite net zero commitments, challenges to claims of products being ‘climate-neutral’, a case against Volkswagen for inconsistency between climate pledges and corporate lobbying, and allegations of failure to disclose climate risks by banks.” A total of 81 climate-washing cases against companies were filed between 2015 and 2022 - with the number rising recently (27 in 2021; 26 in 2022; compared to 9 in 2020 and 6 in 2019). We also seeing a growth in just transition cases filed against governments and companies. These are “cases that aim to strike a balance between advancing the transition to a low-carbon economy with protecting the rights of affected communities, highlighting the complex interests and needs involved in the transition process.”

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