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Climate change litigation is growing in importance and scope. Climate change-related cases have more than doubled worldwide since 2015. As the Report records, roughly 800 such cases were filed in the 28 years between 1986 and 2014 but over 1,200 cases have been filed in the subsequent 8 years to mid-2022, of which roughly 300 were filed in the last one and a half years.
This rise reflects both the growing urgency with which wider society views the issues posed by climate change and a changing legal environment. Both have enabled litigation to become an instrument of pressure on governments, corporations and other actors to walk their talk on climate change.
The Report covers the 12 months between
Perhaps the most significant trend recognised by the Report is the growth of litigation in the Global South.1 This year's snapshot identified 47 climate cases in
Litigation Trends
Climate change cases are mostly brought by NGOs, interested individuals, companies and trade associations against two broadly defined categories of defendant: governments (the most frequent) and corporations. The approach of claimants in each case comes, in part, down to their respective litigation strategies:
- Challenging government framework2
- Challenging corporate framework3
- Enforcing climate standards
- Challenging flow of public financing for climate-unfriendly projects4
- Challenging failure to adapt to climate change policies5
- Damages for climate impact6
- "Climate-washing"7
- Personal responsibility8
Governments
National governments remain the most frequent target of climate change litigation, with subnational governments beginning to be caught in the crosshairs. For instance, in
Corporations
Climate cases brought against corporate entities have become more diverse. Historically, there has been a focus on the so-called 'Carbon Majors',9 with these cases brought primarily in the US. However, a growing number of cases have been brought against the Carbon Majors outside of the US (13 in recent years against
In 2021, out of 38 cases filed against corporations, 22 were against defendants outside the fossil fuel sector, including companies involved in food and agriculture, transport, plastics, and finance. An underlying trend identified by the Report is the link between the public debate on individuals' consumer habits and the contribution that companies make via new products, advertising, and corporate climate action. As such, litigants are increasingly likely to target high-emitting industries that have so far avoided public scrutiny, such as in textiles, shipping, and aviation.
Following the landmark
In
Directors
A crucial aspect of the diversification of climate cases against corporate actors is the emergence of lawsuits based on shareholders' rights or directors' duties. The Report predicts that these cases will develop significantly in coming years. A recent example that confirms this trend, and perhaps the first ever case seeking to hold directors personally liable for a company's net zero failures, is ClientEarth v Board of Directors of
Undoubtedly, this case will set an important precedent for derivative actions against a company's board for failing to properly divert efforts towards achieving net zero. Additionally, directors may need to consider a broader application of their duties in light of climate-based requirements.
Corporate Greenwashing
Litigation against climate-related greenwashing seeks to hold companies liable for climate misinformation. Broadly speaking, these cases challenge misleading communications under three categories:
- Corporate and government commitments;
- Product attributes; and
- Disclosure of climate investments, financial risks and harm caused by companies.
The case of
The Report observes that this form of litigation is gaining pace. Companies, especially those in the fossil fuel sector, will need to pay attention to their PR strategies and tone down over-bold climate statements.
Future Trends
Climate change litigation is an expanding and evolving field of law. Case numbers continue to rise, but more importantly, the range of claimants and defendants as well as the subjects of their disputes continue to diversify.
Emerging trends include litigation focused on personal responsibility, such as criminal actions against the directors of polluting entities, as well as international litigation directed at attempting to gain redress for the "loss and damage" caused by climate change.15
Further trends include litigation targeted at ensuring governments and major corporate emitters comply with the legally binding targets they have set themselves for reducing greenhouse gas emissions, for instance by challenging plans that rely too heavily on unproven or even non-existent emission removal technologies. Indeed, a developing understanding of corporate and governmental greenwashing is predicted to lead to further cases challenging entities that act inconsistently with commitments and targets, or that mislead the public and interested parties about their products and actions.
As the world develops a growing understanding of devastating biodiversity loss caused and exacerbated by climate change, the nexus between the two is also recognised by the Report as a key area for future litigation. Indeed, climate litigation continues to grow in dialogue with climate science. For instance, gases like methane, also called short-lived climate pollutants, which are often more potent than carbon dioxide in terms of their short-term warming potential, will require the most drastic short-term reductions and are thus likely be the focus of the most urgent upcoming litigation. Finally, non-CO2 warming impacts of certain industries may come to be targeted under the same logic soon.
These trends will not remain in the future for long. On
Footnotes
1 According to the Report, this is a term, along with 'Global North', favoured by scholars and policymakers based on economic inequalities. Crucially, 'Global South' is not a homogeneous group of countries.
2 E.g. -
3 E.g. - Milieudefensie et al. v
4 E.g. -
5 E.g. -
6 E.g. - Luciano Lliuya v
7 Climate-washing, or climate-related greenwashing, is the use of unsubstantiated or misleading claims about climate or environmental credentials, or the selective disclosure of climate performance. E.g. - The first net zero emissions claims case:
8 E.g. - ClientEarth v Board of Directors of
9 'Carbon Majors' refers to a list of energy and cement companies identified by the
10 United Nations Human Rights Council, The Human right to clean, healthy and sustainable environment, A/HRC/RES/48/13.
11 European Commission, Proposal for a Directive of the
12 Milieudefensie et al. v
13 See ClientEarth's Press Release and FAQ webpage for a full account of the claim.
14
15 See communication filed at the ICC in
16 ACF to challenge Woodside's
17 Climate group sues Dutch airline KLM over 'greenwashing' adverts, the Guardian (24 May 2022).
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