Climate change litigation: See you in court

2nd November 2020


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Katharine Schofield

Climate change litigation is on the rise globally and in the UK – Huw Morris reports

Ask any environmental lawyer about climate change litigation and the conversation quickly turns to Urgenda.

An environmental foundation of that name in the Netherlands, together with 900 citizens, challenged the Dutch government to do more to prevent climate change. The district court of the Hague ordered the state to limit greenhouse gas emissions to 25% below 1990 levels by 2020, ruling that the government's pledge to reduce them by 17% was not enough to meet the state's fair contribution to the UN's goal of slashing global temperatures. The state, it concluded, has a duty to take mitigation measures due to the “severity of the consequences of climate change“.

This was the first decision by any court in the world to order a state to limit greenhouse gas emissions for reasons other than statutory mandates. Last December, the Dutch Supreme Court upheld the ruling.

Calls for action

“Urgenda has put climate change litigation at the forefront,“ says Rowan Smith, a solicitor at Leigh Day who specialises in judicial review claims with a focus on the environment and human rights. “A lot of lawyers have taken inspiration from that.“

Leigh Day is spearheading a case on behalf of environmental campaigner Georgia Elliott-Smith, who is challenging the government's decision to exclude municipal waste incinerators from the UK Emissions Trading Scheme, which will replace its EU counterpart after Brexit. Elliott-Smith argues that the exclusion of waste incinerators from the scheme is “nonsense“, especially as the 48 currently operating in the UK emit 6.6m tonnes of CO2 per year – more than Manchester and Birmingham put together. “Their exclusion greatly impedes the UK's efforts to achieve net-zero carbon, especially since dozens more are currently under construction or awaiting planning consent,“ she adds. “Incineration does not pay for the burden that its pollution places on society, and there is currently no requirement for operators to reduce carbon emissions.“

The challenge covers the government's decision to roll forward carbon emission allowances to future years, and to set a cap on allowable emissions above the level of 'business as usual' emissions. Two fundamental aspects of the UK's commitments under the Paris Agreement are central to the claim: to seek to limit global temperature increases to 1.5°C above pre-industrial levels, and to reach peak global emissions and start to reduce them 'as soon as possible'. Both commitments require substantial cuts in emissions in the short and medium term. By concentrating only on achieving net-zero by 2050, the claimant alleges the government has failed to lawfully take account of those aims.

“The Intergovernmental Panel on Climate Change has made clear on numerous occasions that the Paris Agreement requires substantial emissions reductions to be made in the short term,“ says Smith. “Since the Paris Agreement of 2015, there has been a ramping up of climate change litigation in the UK because it requires more ambitious and rapid action than just the net-zero target. We need deep cuts in carbon in the very short term to meet the target by 2050. The fear among campaigners is that the government will leave making tough decisions until it's too late.“

A gathering storm

Climate change litigation is on the rise globally, and particularly in the UK. Some observers point to the achievements of ClientEarth, the environmental law charity with offices in London, Brussels, Warsaw, Berlin and Beijing, which has won three High Court rulings ordering the UK government to produce stronger plans to improve air quality.

The Grantham Institute of Research on Climate Change and the Environment found that 1,587 climate change litigation cases have been brought since 1986. Around three-quarters were in the US; Australia had the second most and the UK is third. Previously a tactic used by NGOs, a new wave of claimants, comprising activists, shareholders, investors, cities and states, are using litigation to influence policy and corporate behaviour.

Litigation covers two strands – adaptation and mitigation on the one hand, and legal action to force through legal, policy and social change on the other. What's driving them? Observers point to the growing awareness of climate change as the most serious issue facing humanity, with legal action a convenient way to tackle the issues. International treaties are also interpreted and adjudicated by courts to make them effective. Cases are usually pursued in the public law sphere when private law challenge against a corporate organisation will do nothing to solve the problem in the long term.

What about in future? The government's transport decarbonisation policy, decisions on nuclear energy and the debate over airport expansion are widely seen as potential battlegrounds. In particular, all eyes are on the forthcoming Supreme Court ruling on Heathrow; the government's go-ahead for a third runway was previously ruled unlawful by the Court of Appeal, as it failed to take into the UK's obligations under the Paris Agreement into account. “That judgment will influence how things will go in the future,“ says Smith.

One potential cloud on the horizon is the UK government's move in August to commission an independent panel to consider reforms to judicial reviews. The panel will consider whether judicial review has encroached too far into the work of the executive branch of government. Some observers argue the panel is looking at whether the role of judges has expanded too far, pointing to last year's challenge by campaigner Gina Miller over whether the prime minister's prorogation of parliament was lawful, which was backed by the Supreme Court.

Smith says there is a danger that the panel will codify the grounds of legal challenges, which will only help the government and those defending judicial reviews. “This government could potentially rewrite the book to its own benefit by changing procedures of judicial review,“ he adds. “They call it streamlining, but that's code for making it harder for claimants.“

Climate change litigation around the world

The latest global trends in climate change litigation show emerging differences in actions, according to the Grantham Research Institute on Climate Change and the Environment. Using data compiled by Columbia University's Sabin Center for Climate Change Law, the institute says that, of the 1,587 cases brought between 1986 and the end of May 2020, 1,213 were in the US, with 374 cases in 36 other countries and eight regional or international jurisdictions.

Outside the US, the majority of cases have been brought in Australia (98 cases), the UK (62) and EU bodies and courts (57). More than 80% of non-US cases were brought against governments, typically by corporations or individuals, confirming trends in the type of plaintiff and defendant. Climate change was at the centre of the legal argument in 41% of cases, and was a peripheral issue in 59%.

In cases outside the US, 58% had outcomes favourable to climate change action, 33% had unfavourable outcomes, and 9% had no discernible likely impact on climate policy.

The Urgenda case is having an influence on strategies, with human rights arguments increasingly used. According to the institute's assistant professorial research fellow Joana Setzer, since Urgenda got under way in 2015, individuals and communities around the world have launched proceedings seeking to achieve similar rulings. There are ongoing legal proceedings in Ireland, France, Belgium, Sweden, Switzerland, Germany, the US, Canada, Peru and South Korea.

Setzer says a new wave of climate change lawsuits have been filed against major fossil fuel companies – the so-called 'carbon majors'. This new wave of litigation is spurred by developments in climate science and research – particularly efforts by Climate Accountability Institute co-director Richard Heede to quantify the historical emissions of these companies, as well as advancements in climate attribution research.

“Various strategies are being used in lawsuits against the carbon majors, ranging from claims of nuisance to fraud and disclosure-related lawsuits, particularly in the US,“ Setzer adds. “Litigants are also using strategies such as taking claims of deceptive 'greenwashing' marketing campaigns by carbon major companies to courts or to non-judicial bodies.“

Huw Morris is a freelance journalist.

Image credit: Shutterstock

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