The Grantham Research Institute on Climate Change and the Environment published its sixth annual report on Global trends in climate change litigation: 2024 snapshot (June 2024). The report provides the lay of the land when it comes to the number and types of climate cases filed in 2023.
Human Level’s Take: The type of legal strategies and arguments being used in climate cases against companies and state actors are growing - more than 230 new climate cases were filed in 2023, and 230 cases have been filed against companies and trade associations since 2015. Of note is the growing trend toward using human rights arguments in climate cases. For instance, just transition cases - which challenge the way climate measures are designed and implemented in relation to its impacts on people - increasingly draw on human rights grounds. While the majority of just transition cases focus on climate mitigation measures, we’re seeing a growing number of cases focusing on climate adaptation measures. Similarly, green vs. green cases are spotlighted in the report as the type that challenge the way climate measures are designed. These cases look at the potential trade-offs between climate and biodiversity or other environmental aims. So, what does this all mean for companies? It means that no company is immune from lawsuits being filed against them, no matter what sector or what type of company. It means that companies must conduct robust human rights and environmental due diligence when designing and implementing climate measures. It means that companies will likely face greater scrutiny and lawsuits over their climate policies and actions, and how they are adopting a rights-based lens to their approach.
Key points from the report:
- More than 230 new climate cases were filed in 2023: While the overall rate of growth of new climate cases slowed in 2023, the report suggests that this may point to “a consolidation and concentration of strategic litigation efforts in areas anticipated to have high impact.” The report also finds that climate change litigation is spreading to more countries (e.g., with cases filed in Panama and Portugal for the first time), including in the Global South. In addition, 2023 was a significant year for international climate litigation (i.e., climate cases filed before international and regional courts and tribunals) particularly those involving human rights. This reflects a growing trend toward using human rights arguments in climate cases. An example of this is the International Tribunal on the Law of the Sea issuing its advisory opinion in May 2024 finding that greenhouse gas emissions is a source of marine pollution and that states have obligations to prevent such pollution and restore damaged ocean ecosystems. Moreover, cases continued to be filed against companies in 2023, with many sectors now at risk of being taken to court over climate. The report finds that cases are now being launched in sectors beyond the fossil fuel industry, including airlines, the food and beverage industry, e-commerce and financial services.
- Climate-aligned strategic cases use diverse case strategies: The report identifies eight strategies used in climate cases: 1) ‘government framework’ cases, which challenge the ambition or implementation of governments' climate policies; 2) ‘integrating climate considerations’ cases, which seek to integrate climate considerations on a project or sectoral policy; 3) ‘polluter pays’ cases. These cases seek monetary damages from defendants based on an alleged contribution to harmful climate change impacts; 4) ‘corporate framework’ cases, which require changes to companies’ group-level policies and corporate governance; 5) ‘failure to adapt’ cases, which challenge a government or company’s failure to address climate risks. The physical and mental health impacts of climate change are increasingly the focus of this type of litigation; 6) ‘transition risk’ cases. These concern the mismanagement of low-carbon transition risk by directors; 7) ‘climate-washing’ cases, which challenge misleading government or corporate narratives regarding their contributions to the low-carbon transition; and 8) ‘turning off the taps’ cases. These challenge the flow of finance to projects and activities that are not aligned with climate action.
- Just transition and green vs. green cases: The report identifies two types of cases that challenge how climate action is designed: just transition cases and green vs. green cases. These differ from opposing the need for such action (for instance, ESG backlash and SLAPP cases.) Just transition cases are typically filed by individuals, communities or labour groups who argue that climate action is a threat to human rights if it is not designed with people in mind. Green vs. green cases looks at the trade-offs between climate action and their impacts on biodiversity and nature. An example is the Indian Supreme Court case of M.K. Ranjitsinh and Others v. Union of India, and cases opposing offshore wind projects in the US claiming these constitute a threat to whale populations.
