Our key takeaway: Courts continue to serve as an important battleground for action on climate change, with a growing numbers of cases filed against both governments and the private sector by litigants seeking to spur action on climate ambition, transparency, the just transition and more. The last two years alone saw around 300 climate-related cases brought, reflecting a quarter of the 1,200 cases seen in the eight years between 2014 and 2022. Governments are largely on the chopping block, as are expected targets like fossil fuel companies—but more and more, other sectors are coming into the crosshairs of litigants, with over half of climate-related cases against companies in the last calendar year filed against defendants in food and agriculture, transport, plastics and finance. The growth of climate-related litigation (including litigation linking climate change to human rights) parallels the rise in regulatory instruments that require companies to conduct human rights due diligence. The signal for the private sector is clearer than ever: the era of voluntary “nice-to-have”efforts is quickly being overtaken by mandatory “must-haves.”
Together with partners at the Columbia Law School Sabin Center for Climate Change Law and the Centre for Climate Change Economics and Policy, the Grantham Research Institute on Climate Change and the Environment at the London School of Economics has released its latest synthesis of key trends and developments in climate litigation between May 2021 and May 2022, Global Trends in Climate Change Litigation: 2022 Snapshot (June 2022). The report draws on data for cases filed over the course of 12 months before national and subnational courts, international courts, regional courts and tribunals:
- Litigation shaping “outcome and ambition” on climate governance: Litigation is a key tool for strategically influencing governments and the private sector on climate change: “The role of litigation in affecting ‘the outcome and ambition of climate governance’ was recognised by the Intergovernmental Panel on Climate Change Working Group III in 2022, in a document approved by representatives of every member state.” In total, the number of litigation cases related to climate change has more than doubled since 2015, with a cumulative total of 2,002 cases tracked by the authors. Of these, 800 cases were filed between 1986 and 2014 and 1,200 cases were filed between 2014 and 2022—with one quarter of those filed in just the last two years. Geographically, the majority of cases are still in “Global North” countries, although the authors are seeing increased litigation in the “Global South” with at least 88 cases spanning Latin America and the Caribbean (47 cases), Asia-Pacific (28 cases) and Africa (13 cases). The bulk of cases studied by the authors are against governments, taking the form of so-called “framework cases” that intend to “enforce or enhance climate commitments made by governments.” A striking development in recent years is the rising number of framework cases decided in favour of climate-aligned goals: “Of the eight framework cases where decisions have been issued by the country’s highest court, six have had favourable outcomes for climate action.” Many framework cases are strategically designed to accelerate climate progress, though not all are aligned with climate goals and a number are aimed at delaying climate action. The authors are also seeing rising cases against the private sector, most notably Carbon Majors and other fossil fuel companies. That said, it’s not just fossil fuels in the spotlight: “In the calendar year 2021, while 16 of the 38 cases against corporate defendants were filed against fossil fuel companies, more than half were filed against defendants in other sectors, with food and agriculture, transport, plastics and finance all being targeted in multiple cases.”
- Alignment with top COP26 issue areas: The authors found that many of the cases filed in the preceding year are aligned with the outcomes and issues identified by the international community at COP26. In addition to the growth of framework cases pushing for governments to design and implement more ambitious climate strategies, there are also cases that are advocating for decreasing government support for fossil fuels: “Cases integrate arguments about governmental support for fossil fuel use – whether through policies, permits or subsidies – with arguments about human and constitutional rights. These cases take the arguments and standards developed in the ‘framework’ cases against governments and apply them at a more operational level.” The authors are finding that these types of cases are growing in the Global South, “where litigants are mounting large-scale challenges to policies that would involve the development of untapped fossil fuel reserves and ‘lock in’ development pathways dependent on fossil fuels.” Another COP-aligned trend is that climate litigation continues to embrace human rights law as a key vehicle. There are currently three cases linking climate with constitutional and human rights before the European Court of Human Rights, but “one area in which rights-based climate litigation is playing an important role is in litigation against companies, particularly in light of the development of standards for corporate human rights due diligence.” The authors point out that “[t]he prediction that the decision in Milieudefensie et al. v. Royal Dutch Shell plc. would result in more rights-based strategic cases brought against companies is slowly materialising.” Some cases are also focused on the role of finance, seeking to “clarify the legal obligations of both public and private financial institutions for their ‘portfolio emissions.’” Interestingly, the authors are seeing a shift from litigation seeking more disclosure from financial institutions on their climate change contributions towards more impact-oriented “cases focused on questions about what prudent financial management means in the context of the transition to a low-carbon economy.”
- Trends for the coming year: The authors identify five trends for the coming year. For one, they “anticipate more litigation focusing on personal responsibility (ranging from criminal actions to cases focused on the duties of directors, officers and trustees to manage climate risks), but also international litigation addressing the prevention of and redress (or ‘loss and damage’) for climate change.” They also expect to see more litigation targeted against governments and companies that are overlying on GHG removal or negative emissions technology. Further, there will likely be more cases focused on “short-lived climate pollutants” and more cases that explicitly bring biodiversity into the mix. Finally, the authors anticipate a growth in suits filed against greenwashing (or “climate-washing”) claims, “with the aim of holding companies or states to account for various forms of climate misinformation before domestic courts and other bodies.”
