Climate Litigation: A growing challenge for companies and governments

Climate cases focusing on fossil fuel expansion are becoming more prevalent in the Global South as climate litigation becomes an instrument to enforce or enhance climate commitments made by governments, according to a new report

Nearly 500 climate litigation cases have been filed around the world since 2020, according to a new report published by the Grantham Research Institute on Climate Change and the Environment at the London School of Economics and Political Science.

The report shows that 475 cases were filed between January 1, 2020 and May 31, 2022. Of these, more than two-thirds (321) were filed in the United States and almost 7% (32) were in countries of the Global South. Globally, the cumulative number of climate change-related litigation cases has more than doubled since 2015. 

Number of climate litigation cases around the world, per jurisdiction (up to 31 May 2022).This figure only includes cases filed before national tribunals. The 103 cases filed before 15 international and regional bodies are not included.  

Source: The Global trends in climate change litigation: 2022 snapshot report

The report analysed records of 2002 current or past cases of climate litigation since 1986. Cases have been filed in 44 countries and 15 international or regional courts and tribunals, including the courts of the European Union. Nearly a quarter were filed since the start of 2020. There are now 88 cases from the Global South in the database—47 in Latin America and the Caribbean, 28 cases in Asia Pacific, and 13 cases in Africa. 

Who is getting sued?

Over the period May 2021 to May 2022, most cases have been brought against governments (national and subnational), typically by companies, non-governmental organisations (NGOs) and individuals. 

In this year’s study period, more than 70% of all cases were brought against governments, and 70% were filed by NGOs, individuals, or both acting together. Outside the US, NGOs and individuals represent almost 90% of the claimants.

While national governments remain the most frequent defendants, subnational governments are also becoming targets in climate litigation, for instance in Germany. Over the last 12 months, 13 complaints were filed against Länder or federal states in Germany, each challenging the subnational government’s failure to introduce or legislate sufficiently ambitious emissions reduction pathways based on the Neubauer et.al v Germany decision. 

Trends observed: Fossil fuels, finance and false information

The report found that more legal challenges are targeting the production and consumptions of oil, coal and gas. The report states: “Climate litigation cases have played an important role in the movement towards the phase-out of 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.”

The report notes that such cases are increasing in number in countries of 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”. 

For example: Exxon, Eni and Sasol are all involved in challenges to government decisions about oil and gas exploration and licensing in Guyana and South Africa. In Argentina, at least four separate claims have been filed seeking to halt offshore drilling following a resolution passed by the Ministry of Environment and Sustainable Development.

According to the report, several new and ongoing cases seek to clarify the legal obligations of both public and private financial institutions for their ‘portfolio emissions’ as a means to influence broader understanding of and approaches to climate-related financial risks within the global financial system, putting private and public financial institutions on the spot. 

Recently filed complaints confirm a shift in emphasis from cases concerned primarily with the disclosure of climate-related information to cases focused on questions about what prudent financial management means in the context of the transition to a low carbon economy.

Climate-related greenwashing litigation or ‘climate-washing’ litigation is gaining pace, the report noted. Holding companies or states to account for various forms of climate misinformation before domestic courts and other bodies is becoming a crucial step to close the credibility gap.

The number of cases with strategic ambition continues to rise. These are cases where the claimants’ motives go beyond the concerns of the individual litigant and aim to bring about some broader societal shift—including advancing climate policies, creating public awareness, or changing the behaviour of government or industry. The report says that we may see a growth of cases seeking to enforce standards aimed at preventing illegal deforestation—these would build on previous cases in both Indonesia and Brazil.

What to expect?

“Our research shows that litigation against corporate actors is becoming more diverse than ever, with cases from new sectors and industries being targeted in climate cases. The transport, plastics, and food sectors are all already facing challenges and other high emitting sectors are likely to be next in line as concern over the credibility of climate plans and growing greenhouse gas emissions continue to spread,” says one of the authors, Catherine Higham, Climate Change Laws of the World Coordinator at the Grantham Research Institute on Climate Change and the Environment, at the London School of Economics and Political Science. 

The report mentions five areas to watch in the coming years where climate litigation will pick up speed—cases involving personal responsibility; cases challenging commitments that over-rely on greenhouse gas removals or ‘negative emissions’ technologies; cases focused on short-lived climate pollutants; cases explicitly concerned with the climate and biodiversity nexus; and strategies exploring legal recourse for the ‘loss and damage’ resulting from climate change.

It is interesting to see that loss and damage seems a crucial area for litigation while it was not even picked up as a part of agenda for the Bonn Climate Conference last month, even after vehement opposition by developing and under-developed countries. 

The article was first published in CarbonCopy