From the rise of the youth plaintiff to greenwashing claims, Climate Home News explores the major trends in climate litigation
This week Germany’s supreme court ruled that the country’s climate law is partly unconstitutional and ordered the government to draw up clear emissions reduction targets after 2030.
The case was brought by nine youth climate activists who argued that the law in its current form violates their right to a humane future, as it does not go far enough to reduce emissions and limit global temperature rise to 1.5C.
German energy minister Peter Altmaier described the ruling as “big and meaningful” and said it was “epochal” for the rights of young people and climate protection.
Climate litigation is a maturing field. Over the past decade, lawyers have tested several strategies for challenging climate harm or inaction through the courts.
Here Climate Home News explores which legal avenues have been successful and which approaches have failed.
Lawsuits that argue that governments have a human rights obligation to avoid dangerous levels of global warming are becoming increasingly widespread and successful, said Joana Setzer, a research fellow at the Grantham Research Institute on Climate Change and the Environment at Imperial College London.
The most pivotal climate lawsuit in the past decade, the landmark Urgenda case in the Netherlands, centred on human rights.
In 2019, the Dutch Supreme Court ordered the government to cut its greenhouse gas emissions by 25% by the end of 2020, compared to 1990 levels, as its minimum fair share to tackle climate change.
The case was brought by the Urgenda Foundation, a climate group representing the interests of 900 Dutch citizens who argued that the government was putting them in “unacceptable danger”, by setting an insufficient emissions reduction goal of 14-17% by 2020, from 1990 levels.
The court ruled that the government had failed to protect the human rights of its citizens by violating Articles 2 (right to life) and 8 (right to respect for private and family life) of the European Court of Human Rights (ECHR).
The Urgenda verdict sparked a wave of human rights lawsuits around the world, from New Zealand to Ireland.
Climate group Friends of the Irish Environment (FIE) used similar arguments when it brought a case against the Irish government for failing to take adequate action to curb emissions and protect its citizens’ right to life. The Irish Supreme Court ordered the government to draw up a new emissions mitigation plan, but did not tackle the human rights arguments invoked by FIE.
The right to life has also formed the backbone of high-profile climate displacement cases.
The most famous relates to Ioane Teitiota, a man from Kiribati living in New Zealand, who fought numerous legal battles to stop him being deported back to the Pacific island nation. Teitiota argued that returning to a nation threatened by rising sea levels and other climate impacts posed a serious risk to his life.
After New Zealand’s Supreme Court rejected Teitiota’s asylum claim as a climate change refugee, he took his case to the UN Human Rights Committee.
While the committee denied Teitiota’s claim on the grounds that he did not face imminent danger, it did rule in January 2020 that countries may not deport people who face climate-related risks that violate their right to life.
The committee stated that “given the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realised.”
“That recognition is significant; at some point countries could have an obligation to accept climate refugees,” Hillary Aidun, climate law fellow at Columbia University’s Sabin Center for Climate Law, told Climate Home News.
Another major theme is intergenerational inequity. “We see a trend of youth plaintiffs seeking to vindicate their rights as well as the rights of future generations,” said Aidun.
Youth activists who are unable to vote have found a powerful way to make their voices heard: by organising climate strikes and filing lawsuits, said Kate McKenzie, a legal researcher at the Strathclyde Centre for Environmental Law and Governance.
One of the most pivotal cases is a lawsuit filed by six Portuguese young people at the European Court of Human Rights in Strasbourg. They have filed a legal action accusing 33 countries of violating their right life by not doing their fair share to tackle the climate crisis.
This case highlights the urgency needed to tackle the climate crisis, McKenzie told Climate Home News. “With youth activism there is a sense of ‘we are running out of time.’ Governments don’t get to keep doing things slowly like they are used to doing,” said McKenzie.
Young activists make powerful plaintiffs as they represent current and future generations who will suffer the worst impacts of climate change, Setzer told Climate Home News.
“Often you cannot get the courts to protect generations that do not yet exist. Children are going to live another 80 years. They can force governments to make decisions about 2050 targets and change behaviours now in order to achieve those ambitious targets,” said Setzer.
Young people successfully used the future generations argument in a case brought before Colombia’s Supreme Court. 25 young people argued that the government’s failure to curb deforestation of the Amazon rainforest threatened their rights and those of future generations.
The court agreed with their arguments and ordered the government to come up with a plan to reduce deforestation.
What made this case unique was that it recognised the Amazon rainforest as an entity with its own rights.
“Most countries don’t protect the environment as an entity. It’s all about humans,” said Setzer, noting that just 13 countries reference protecting the environment in their constitutions.
Despite their clear contribution to global carbon emissions, it is difficult to hold big polluters accountable in court.
The tobacco litigation strategy, which directly linked smoking to disease, hasn’t worked for climate activists, said Setzer.
“One of the complicating factors is attribution: how much climate change can you attribute to a particular company?” said Aidun. “We have yet to see to what extent corporations can be held accountable for climate change.”
An ongoing case involving Royal Dutch Shell may change this. The case, which is being heard by the high court in the Netherlands, is testing whether the Paris Agreement applies to corporations and oil companies can be held liable for their CO2 emissions.
Seven environmental groups are demanding that Shell cut its CO2 emissions by 45% by 2030 and to zero by 2050, compared to 2019 levels, in line with the toughest 1.5C temperature limit in the Paris pact.
Campaigners have built their case on the Urgenda precedent and argue that the duty of care law applies to companies as well as governments. A verdict is expected in May.
A victory for the campaigners would force one of the world’s largest energy companies to quickly phase down production of oil and gas and invest in clean energy sources instead.
Experts say it is a landmark case for corporate responsibility which could spark a wave of litigation cases against other big polluters, if campaigners win.
“It forces behaviours to change in the future and that is very important,” said Setzer.
Most liability cases focus on claiming damages for past harm caused by climate change, whereas the Shell case looks into the future, she added.
Greenwashing claims which accuse companies of misleading advertising campaigns are also on the rise. “People relate easily to greenwashing,” said Setzer. “No one likes being cheated.”
In 2018, environmental law charity ClientEarth lodged a complaint against BP, accusing the oil company of misleading the public by focusing on its low-carbon products, when over 96% of its annual spending is on oil and gas. ClientEarth argued that this type of advertising was in breach of guidelines for multinational firms issued by the Organisation for Economic Cooperation and Development.
The legal complaint led to BP withdrawing the adverts. Lawyers said it set an important precedent that greenwashing cases can be challenged under international standards.
“It set a precedent for people to use the OECD guidelines to hold companies to account for their greenwashing on the basis of consumer interests,” ClientEarth lawyer Johnny White told Climate Home News.
“Fossil fuel companies using advertising to mislead the public over their climate impact were essentially put on notice,” White added.
“[Greenwashing cases] won’t change climate change, but they will change consumer and corporate behaviour,” Setzer said.