The New Frontier of Just Transition Litigation

Our key takeaway: The use of human rights in climate change litigation is on the rise. We are seeing a growing number of rights-based claims against states and public authorities, but also increasingly companies. These cases are expecting corporate actors to undertake climate change adaptation and/or mitigation strategies, and can be based on a positive or negative duty, or corporate procedural duties. On the flip side of the coin (or the ‘far side of the moon’, to quote Annalisa Savaresi and Joana Setzer), we are seeing a growth in just transition litigation: these are cases against states and companies for not taking human rights into account as they transition to net zero. Their analysis underscores the imperative of taking a rights-based approach to climate change decision making. To conclude with their words: We “need to explore the new frontier of just transition litigation to better understand how governments and corporations can address the climate emergency and deliver net zero emissions, and an energy transition that is inclusive and in line with human rights.”

Annalisa Savaresi and Joana Setzer have published ‘Rights-based litigation in the climate emergency: mapping the landscape and new knowledge frontiers’ in a new special issue of the Journal of Human Rights and the Environment. The article is available here, and the authors’ summary is available here:

• “Mapping the whole of the moon”: the authors use data from the world’s largest climate litigation databases to identify 112 climate ‘cases’ – including judicial and non-judicial complaints – that rely in whole or in part on human rights. The authors “compare these facets of rights-based litigation in the climate emergency to the two sides of the moon. On the ‘near side of the moon’, we have rights-based litigation that aligns with climate objectives, by demanding state and corporate actors to undertake climate change adaptation and/or mitigation strategies. On the ‘far side of the moon’, we have rights-based litigation that does not align with climate objectives, and opposes climate adaptation and/or mitigation projects, policies or legislation.” Litigation on the far side of the moon does not “object to climate action in and of itself, but rather to the way in which it is carried out and/or to its impact on the enjoyment of human rights.” These lawsuits are ‘just transition litigation’, defined as “cases that rely in whole or in part on human rights to question the distribution of the benefits and burdens of the transition away from fossil fuels and towards net zero emissions.” The authors underscore the need to “consider all rights-based litigation concerning climate action, in order get a clearer and more comprehensive appreciation of the role of human rights law and remedies in the climate emergency.”
• On the ‘near side of the moon’: trends in rights-based climate litigation: the authors highlight a number of trends in right-based climate litigation, for instance related to geography, timing and nature of applicants. Although defendants in climate cases have traditionally been states and public authorities (since states are the primary duty-bearers under human rights law), “there is a small but rapidly increasing number of rights-based climate cases that specifically target corporations, asking domestic courts and non-judicial bodies to interpret corporate due diligence obligations in light of human rights law and of the temperature goal enshrined in the Paris Agreement.” The authors highlight the “ground-breaking nature and potentially revolutionary impacts” of these cases against companies. The authors categorize rights-based climate cases brought against corporations depending on whether they are based on a duty (e.g. a positive duty to reduce emissions, a positive duty to support climate policies, a negative duty to refrain from causing harm) or corporate procedural duties (e.g. insufficient disclosure of emissions, climate vulnerability and stranded assets; failure to consult affected communities).
• The ‘far side of the moon: growth in just transition litigation: the authors highlight evidence of just transition litigation targeting both corporate actors and states for breaches of human rights obligations. These relate in particular to “breaches of the human rights to culture, food, water and the rights of Indigenous Peoples. In other just transition cases, applicants allege breaches of the right to access to justice, associated with the adoption of climate change projects, such as the authorisation of wind farms.” The authors underscore that “[w]hile fossil fuel-based economies have created winners and losers, changing the status quo entails striking new equilibria between competing societal interests. In this connection, the notion of a ‘just transition’ has been invoked to highlight that the benefits of decarbonisation should be shared, and that those who stand to lose should be supported.” The authors underscore the importance of adopting a rights-based approach to climate change decision making, and “highlight the need to explore the new frontier of just transition litigation to better understand how governments and corporations can address the climate emergency and deliver net zero emissions, and an energy transition that is inclusive and in line with human rights.”