Surge in Court Cases over Climate Change shows increasing role of litigation in addressing the climate crisis
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Surge in Court Cases over Climate Change shows increasing role of litigation in addressing the climate crisis
Climate litigation cases have spiked in recent years, making the courtroom increasingly relevant to efforts to address climate change around the world.
A UN Environment Programme (UNEP) report released finds that climate cases have nearly doubled over the last three years and are increasingly compelling governments and corporate actors to implement their climate commitments, as well as pursue more ambitious climate change mitigation and adaptation goals.
In 2017, 884 cases were brought in 24 countries; as of 2020, cases had nearly doubled, with at least 1,550 climate change cases filed in 38 countries (39 including the European Union courts). While climate litigation continues to be concentrated in high-income countries, the report also sheds light about the expected trend to further grow in the global south.
Establishment of United Nationals Framework
In 1992, the United Nations Framework Convention on Climate Change (UNFCCC) was introduced, providing a foundational platform for nations to discuss curbing global temperature rises. This led to the Kyoto Protocol in 1997, which imposed legally binding emissions reduction targets on developed countries. The Paris Agreement, adopted in 2015 by 196 countries, further aimed to restrain the temperature rise to below 2 degrees Celsius, offering flexibility for nations to set their unique climate targets.
Despite the global consensus, some major carbon emitters have wavered in their commitments, notably the US, which oscillated in its stance, and China, which pledged to achieve carbon neutrality by 2060. With the escalating climate crisis, climate litigation surged.
Ireland
In Ireland, a judicial review claiming that the country is set to fall short of its legally-binding climate targets was launched in early September. Friends of the Irish Environment (FIE) claims that the government has failed to show with a sufficient level of specificity that its climate action plan for 2023 will reduce greenhouse gas emissions in line with legislation.
The UK
The UK government faces a legal challenge from the Good Law Project, Friends of the Earth and Client Earth which is going to the High Court for a rolled up hearing from February 20-22 next year. The Good Law Project’s part of the case focuses on the government’s refusal to publish the risk tables associated with each of its net zero policies. It believes this is unlawful and wants to force ministers to disclose them to the public and Parliament.
ECtHR’s Grand Chamber of 17 judges: Duarte Agostinho et al. v Portugal and 32 Others
Last month, six young people from Portugal took 32 countries to trial over their failure to avert the climate disaster at a landmark hearing before the European Court of Human Rights. The case targets all EU member states and also includes the UK, Switzerland, Norway and Turkey. It seeks a binding decision to prompt these governments to combat climate change more decisively. The case suggests that government inaction on climate change breaches human rights.
America
The second biggest polluter in the world, the US, is also the centre of climate litigation. As of the end of last year, 1,522 cases had been filed in America – compared with 658 cases in all other jurisdictions in the world combined.
In August a judge in Montana ruled in favour of a group of young people in Held v Montana, a case experts say will alter the climate litigation landscape. It is the first-ever constitutional climate case in US history to go to trial and at least four others are to follow, including one brought by young people in Hawaii.
India
India is the third biggest polluter in the world after China and the US but so far its courts have been reluctant to intervene in the climate crisis.
Japan
Japan, which is the fourth biggest polluter in the world, has seen five legal cases on climate litigation, all brought by concerned residents over the construction and operation of coal-fired power plants.
Africa
In November 2020, four civil society organisations brought a case against the governments of the United Republic of Tanzania and Uganda in the East African Court of Justice, requesting an injunction to halt the construction of the East African Crude Oil Pipeline. The paucity of climate cases in Africa may be the result of weak legislative frameworks, a slow judicial process or limited financial resources.
Latin America
In Latin America plaintiffs include NGOs, indigenous peoples, children, union workers and political parties. The primary defendants have been governments.
Ecocide
An increasing number of nations are also also considering legislation to classify ‘ecocide’ as a crime.
Ecocide refers to mass damage and destruction of ecosystems – severe harm to nature which is widespread or long-term. The Stop Ecocide Foundation’s definition is intended for adoption by the International Criminal Court via an amendment to the Rome Statute and is also under consideration by individual countries.
Mexico
Mexico has proposed legislation seeking to penalise “any unlawful or wanton act committed with the knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment”. If ratified, individuals convicted of ecocide might face imprisonment for up to 15 years and potential daily fines up to 1,500 pesos (£70).
A handful of countries globally, including Vietnam, Ukraine, and Russia, have criminalised ecocide. In Ukraine, the public prosecutor is scrutinising a possible ecocide case against Russia, pertaining to the Nova Kakhovka dam breach.
In 2021, France became the first EU nation to enshrine ecocide in its legal code, albeit with language less stringent than many activists anticipated. A precedent case centred on carcinogenic substances is ongoing.
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