Nature Sustainability published Conceptualising Just Transition Litigation (October 2024), a study co-authored by 20 experts from 16 institutions. The study seeks to define and conceptualise the phenomenon of ‘just transition litigation’ so that we can generate empirical evidence on the impacts of the transition, the challenges it raises and how these may be resolved.
Human Level’s Take
- Just transition litigation is on the rise. By studying just transition litigation, we can better understand what just transition (or lack thereof) looks like in practice on the ground - as well as how to craft laws and policies that integrate consideration for justice.
- Just transition litigation against governments - and companies - will increase as we advance. In particular, due diligence laws and soft law instruments are used to hold companies to account for not applying a rights-based approach to their climate mitigation and adaptation efforts
- People are not against the climate transition itself - but they want the transition to happen in a way that is fair.
- Just transition litigation is not about disputing the need to advance urgently with the transition. Rather, it is about considering distributive justice (that certain people do not suffer disproportionate social and environmental impacts), procedural justice (that the processes through which decisions are made are fair), and recognition justice (that people most affected have a voice in decision-making).
- Companies, now is the time to ask key questions: Are we ready if we have to face a just transition lawsuit? Are we proactively integrating just transition considerations into our climate adaptation and mitigation actions?
“The transition poses a complex policy challenge: how can we rapidly and urgently decarbonise, while maintaining distributive, procedural and recognition justice? These goals are often in tension with one another.”
Conceptualising Just Transition Litigation (October 2024)
For Further Reading
- The value in further analysing just transition litigation: Further defining and conceptualising the phenomenon of ‘just transition litigation’ can bring a number of benefits. In particular, we can further gather empirical evidence on the impacts of the transition, the challenges it raises and how these may be resolved. This can help us gauge what a ‘just transition’ entails in a given context. This in turn can help us craft laws and policies that better factor in the rights and legitimate interests of those affected by the transition. This can also help ensure that just transition litigation does not have a chilling effect on climate change adaptation and mitigation measures. This is particularly important - as just transition litigation is set to expand and diversify.
- A working definition of just transition litigation and its key characteristics: The report defines just transition litigation as litigation that articulates justice questions, “challenging laws, projects and policies aimed at delivering climate change adaptation and/or mitigation.” Just transition litigation does not seek to undermine climate action - but to question how it takes place. It seeks to shine “a spotlight on the inequalities associated with the transition, particularly in terms of the distribution of socio-economic and environmental benefits and burdens, and of participation in decision-making.” Just transition litigation is characterised by (1) its subject matter (questions of justice) and (2) the litigants who formulate these questions (parties whose circumstances, opinions and knowledge are often less reflected in law and decision-making).
- Three types of just transition litigation: There are three fundamental dimensions of justice identified in the climate, environmental and energy justice literature. (1) Distributive justice concerns the allocation of benefits and burdens, focusing on how these are distributed among different communities or groups. These just transition lawsuits typically contest the disproportionate social and environmental impacts inflicted on individuals and/or communities by projects such as wind farms or hydroelectric dams (e.g.: communities contesting nuisance produced by the operation of wind farms in Australia). (2) Procedural justice addresses the fairness of the processes through which decisions are made (e.g., representatives of Indigenous and traditional communities contesting the inadequate impact assessment and lack of oversight by the Brazilian authorities regarding the operation of a dam). (3) Recognition justice considers whose interests and experiences are acknowledged and who has a voice in decision-making and legislative processes (e.g., Indigenous Peoples in the Colombian Amazon arguing that private companies implementing forest carbon storage projects on their lands violated their rights to self-determination, cultural integrity, autonomous governance, and territory). Some just transition litigation has all three.
- The legal bases of just transition litigation: Just transition litigation draws upon a variety of legal doctrines, rights and interests. Just transition litigation may be brought before various adjudicatory bodies at both national and international levels, and can rely on a range of legal bases, including administrative, constitutional, energy, environmental, human rights, labour, and planning law. Of particular interest, human rights due diligence - embodied in corporate due diligence law and in soft law - is used to target companies’ approach to the transition. For instance, the report describes the case brought against energy company EDF in France related to its wind farm in Mexico, and the OECD National Contact Point instance brought against FCA Italy related to human rights impacts associated with the extraction of transition minerals.
- Next steps: The study suggest further building out a database of just transition lawsuits, building on the proposed categorisation in the study. This in turn could be used to investigate the drivers of this litigation, as well as the effects of just transition litigation - and feed into further clarity on what just transition entails in practice.
