Climate change is a global concern that is causing more widespread devastating effects; as a consequence, already existing grievances and inequalities are exacerbated by environmental changes and, therefore, are leading to climate related disputes. Such contentions are confronted in climate litigation cases that are, more and more, catching on around the world. As a matter of facts, people whose lives are bearing the consequences of climate-change related issues or are expecting to be damaged in the future by aggravated climate conditions, are already pursuing judicial remedies in order to mitigate and find compensation for climate change-related shortcomings. Climate litigation is also used to leverage more ambitious climate policies aimed at alleviating environmental risks and disasters (1).
According to Golnaraghi et al., the current rise in climate change litigation is taking place against a backdrop of increasing societal awareness and scientific knowledge of climate change, changing requirements for States and corporations triggered by the proliferation of national and international agreements and commitments on climate change, and an evolution in the fields of energy production, transportation, and heavy industry. To reach the climate change goals set out in the Paris Agreement (2) and pivot away from fossil fuel dependence, policy advisors are outlining the need for dramatic business model transformations in different economic sectors as well as profound changes in everyday life that impact core and essential sectors of the world economy (3).
There is increasing evidence to suggest that we are entering a period of transition to a zero-emissions economy, with initiatives gaining momentum in both the public and private sectors. The availability of new technologies, such as green, clean and carbon capture and storage (CCS) technologies, is coupled with the apparent growing appetite of governments to support the transition to a zero-emissions economy, and some governments are including “green” investments in their post-Covid-19 recovery plans. New technologies are making it possible to monitor, analyze, and assess risks at the system level for optimal management.
Other important developments are taking place in the financial sector. These include the increasing adoption of the Financial Stability Board’s (FSB) Task Force on Climate-related Financial Disclosures (TCFD) recommendations for assessing and disclosing climate risk and supporting informed investment decision-making, sustainable finance initiatives to mobilize mainstream finance to invest in transition and climate (3).
Climate change is producing new laws, standards, and duties of care necessary to mitigate its increasingly devastating effects. In particular, the recognition of a duty to protect against damage associated with climate change has provided potential litigants with an additional choice of grounds and encouraged innovative use of existing laws. International commitments by nation states and policy responses to climate change have given rise to a large number of new laws and regulations, such as carbon taxes and restrictions on certain materials or processes. This leads to increased compliance efforts for companies, especially in high-carbon sectors. Enforcement of these laws and regulations can result in inspections, penalties, fines, or lawsuits. At the same time, raising environmental protection standards and lowering the legal thresholds for accessing environmental justice in order to make claims more likely.
As a matter of facts, since the adoption of the Paris Agreement, climate litigation has gained pace, and increased in volume, which means that more people file appeals in such cases, and climate litigation is finally expanding in its scope and geographical coverage. In actual facts, climate litigation cases can be classified in a variety of ways. While some claims are brought in pursuit of private interest alone, there are other situations in which cases are increasingly designed to achieve outcomes that go beyond obtaining results for the litigant bringing the case. In this sense, the term climate litigation encompasses civil and administrative proceedings undertaken in pursuit of private interests, which may not involve an activist intent, such as litigation aimed at upholding planning approvals or clarifying reporting requirements under an emissions trading scheme (4). These cases, that are usually presented by governments, NGOs, business as well as individuals, seek to advance climate policies, drive behavioral shifts in key actors, and/or create awareness and encourage public debate. To date, the majority of cases have been brought against governments but the number of lawsuits against corporate entities, particularly carbon majors, is on the rise (3).
As specified, the goals of climate litigation cases are mainly to advance climate policies, drive behavioral shifts in key actors, and/or create awareness and encourage public debate. However, climate litigation can actually be “anti-climate” as well and thus oppose climate change adaptation and/or mitigation policies, legislation, and projects. “Anti-climate” lawsuits underline the complex issues related to sharing the burden of the transition from fossil fuels and managing climate change. Here too, lawsuits have been filed by different actors, such as individuals, companies, NGOs and even governments. Climate lawsuits are mainly filed against governments and companies.
As mentioned, interest in climate-related litigation is on the rise, reflecting the growing realization that the courts can be a forum for the advancement of climate justice and a focal point for bringing together concerned citizens to assert claims for wrongs suffered in circumstances where climate change is strongly called into play. it is timely to understand how to act to make these legal proceedings effective and concrete, as well as to spread awareness that climate causes damage to the environment and that these can result in wrongs affecting individuals. If the goal is to achieve a transition to a net-zero economy, the failure to implement a well-planned transition could create stranded assets. More stringent emissions standards should therefore be implemented. Moreover, stringent limits on greenhouse gas emissions should also be included in the regulatory permits issued to new activities/particular sectors, and adaptation measures to new and innovative regulations aimed at protecting the environment against the adverse effects of climate change should be accelerated, in order to achieve the goals, set at both national and international level. it is also desirable to increase spending on resilience-building initiatives in order to repair the climate and environmental claims that led to the court case. On top of that, success in this can only be achieved if awareness about the climate crisis increases and governments, corporates and all involved individuals implement strong climate commitment (3).
It is desirable that, in the future, climate litigation can be used to fill the accountability gap on loss and damage (article 8 of the Paris Agreement) thereby requiring a respondent State or corporate actor to provide adequate compensation for climate harm that has already occurred (5).
References:
1) https://academic.oup.com/ojls/article/38/4/841/5140101
2) https://unfccc.int/sites/default/files/english_paris_agreement.pdf
3)https://www.genevaassociation.org/sites/default/files/research-topics-document type/pdf_public/climate_litigation_04-07-2021.pdf
4) https://academic.oup.com/jel/article-abstract/30/3/483/5055379
5) https://cadmus.eui.eu/bitstream/handle/1814/72765/LAW%20WP%202021_12.pdf?sequence=1&isAllowed=y
By The European Institute for International Law and International Relations.
