Our key takeaway: Climate change litigation is on the rise globally - from 884 across 39 jurisdictions in 2017 to 2,180 across 65 jurisdictions in 2022. This is not surprising given litigation is being used as a central tool to “compel governments and corporate actors to undertake more ambitious climate change mitigation and adaptation goals.” A rise in climate change litigation brings more innovative legal arguments and we’re seeing this play out in claims attempting to draw connections between a company’s activities and operations and global climate change, and foreseeable climate-driven impacts and specific harms to people. In particular, companies should look out for cases based on the just transition and ensuring people are centred in the transition to a sustainable economy; the corporate duty to mitigate greenhouse gas (GHG) emissions; corporate liability for adaptation to climate change; and greenwashing campaigns.
The UN Environment Programme and Sabin Center for Climate Change Law released Global Climate Litigation Report - 2023 Status Review (July 2023):
- Key trends in climate litigation: Climate change litigation is growing - from 884 cases in 2017 to 2,180 cases in 2022 globally. It is also growing regionally with cases in the Global South gaining visibility. The report highlights key developments that are shifting the legal landscape. These include i) “Ongoing and increasing numbers of cases relying on human rights enshrined in international law and national constitutions to compel climate action”; ii) "Challenging the domestic enforcement (and non-enforcement) of climate-related laws and policies”; iii) “Seeking to keep fossil fuels and carbon sinks in the ground”; iv) “Claiming corporate liability and responsibility for climate harms”; v) “Advocating for greater climate disclosures and an end to greenwashing”; and vi) “Addressing failures to adapt and the impacts of adaptation.”
- How will companies be affected?: The report highlights the growing number of cases brought against private entities based on corporate liability and responsibility. The corporate duty to mitigate emissions was recently analysed in Milieudefensie et al.v. Royal Dutch Shell (2022). The Hague District Court ruled that Royal Dutch Shell had a duty to mitigate GHG emissions as set out in the 2015 Paris Agreement. The legal basis for its decision included “climate-related human rights responsibilities and tort-based duties, including those related to corporate due diligence”, as well as “an unwritten standard of care based on the goals of the Paris Agreement and the United Nations Guiding Principles on Business and Human Rights.” In Envol Vert et al. v. Casino (2021), NGOs sued Casino, a French supermarket chain, for its “supply chain emissions related to the cattle industry in Brazil and Colombia.” More specifically, it challenged “emissions outsourcing” where corporates’ products cause significant pollution in other countries. The corporate liability for adaptation to climate change has also been addressed in a number of cases, which are pending before courts. For instance, a Peruvian farmer sought compensation from a German utility company for the costs of protecting their home and town from melting glaciers in Luciano Lliuya v. RWE AG (2022). Another category of cases involves claims brought against companies for greenwashing campaigns primarily based on consumer protection or corporate laws. These cases are filed by a range of stakeholders such as investors who allege that companies’ “public disclosures relating to climate risks were misleading or fraudulent, both in relation to the risk that a transition away from fossil fuels poses to their business or investment assets and the risk of physical impacts to infrastructure, operations and supply chains associated with climate change.”
- What direction of travel for climate change litigation: The report highlights three broad categories of cases that we could expect to see more of in the future. The three categories are i) Transnational responsibility. This sets out whether, and to what extent, a State is responsible for human rights violations that stems from its conduct in another State; ii) Cases brought by vulnerable groups. These are brought by groups such as Indigenous Peoples and communities, women, children and the elderly who are disproportionately impacted by the effects of climate change due to inherent vulnerabilities despite having done the least to contribute to climate and environmental degradation. Examples of such cases can be found in Argentina, Australia, Canada, Ecuador, France, New Zealand and the USA. Notably, the report states that these “cases provide insight into how Indigenous-specific domestic legal approaches may shape climate-related adjudication going forward”; iii) Backlash cases which include Investor-State dispute settlements, just transition cases, and claims against climate activists. Just transition cases are based on the premise that transitioning to a low-carbon economy must bring everyone along, particularly workers and communities dependent on the fossil fuel industry for jobs and livelihoods. An example given is Company Workers Union of Maritima & Commercial Somarco Limited and Others v. Ministry of Energy (2021). The Supreme Court of Chile emphasised the importance of a just transition strategy to workers and ordered the government “to implement a plan for the reinsertion into the labour market of workers affected by the decarbonization process, consulting them in that process and adopting control measures to ensure compliance.”
