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Climate Lawfare – Civil society is ramping up litigation to stop the fossil fuel juggernaut (Part One)

Climate Lawfare – Civil society is ramping up litigation to stop the fossil fuel juggernaut (Part One)
Number of cases to date in countries globally. (Image: Climate trends litigation Report)
Don Pinnock
By Don Pinnock
18 Aug 2024
Facebook
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As we skid almost uncontrollably down the highway of freaky climate and loss of species, ordinary citizens are attempting to slam on the brakes with an increasingly effective tool: the law.

There’s a growing awareness that the stable world we know is coming to an end, and that governments and corporations are unable or unwilling to solve the environmental problems we now face. This realisation has resulted in civilians in many countries turning to the courts to combat a range of issues around the impacts of global warming. 

climate litigation switzerland Senior women fight for rights in Switzerland. (Photo: Climate Trends Litigation Report)



The runaway climate train needs the brakes slammed on before it runs out of rails. This task is increasingly being taken on by civil society NGOs and individuals, including children, women’s groups, indigenous people and environmental lawyers who see litigation as an avenue to hold polluters and politicians to account.  

In a report released this year, the United Nations Environment Programme with the Sabin Centre has tracked 2,666 climate change cases filed in 65 jurisdictions – more than 200 in the Global South – since 2020. 

Often litigators lose but, with each successful or failed challenge, lessons are being learned. Within and across global borders, civil society wins are increasing, and successful cases then motivate the filing of similar claims in other jurisdictions. 

In the background of these cases hover their quarry: the dark lords of oil and coal and their state representatives. According to the Carbon Majors Database, 80% of all CO2 emissions from fossil fuels and cement production can be linked to a mere 57 companies. Just 20 of them are responsible for a third of all carbon emissions. In the seven years since the Paris Agreement on climate change, these companies actually increased production. 

Far from taking responsibility, the fossil fuel industry, including companies like Exxon Mobil, BP, Chevron and Shell, have poured millions of dollars into efforts to discredit the science of climate change and obstruct climate policy. Meanwhile, they are investing heavily to obtain more prospecting rights, including off the coasts of Africa.

Turning to law


climate litigation cases Number of climate litigation cases within and outside the US, 1986-2023. (Image: Climate Trends Litigation Report)



Citizen challenges include litigation over failure to abide by the Paris Agreement on CO2 reductions, violations of the Rights of the Child Convention by endangering childhood, litigation by islanders attempting to stop sea-level rise, halting deforestation in the Amazon and the construction of oil pipelines and oil and gas exploration.

climate litigation cases Distribution of cases. (Image: Climate Trends Litigation Report)



Governments are being confronted for permitting excessive greenhouse gas emissions and the failure to abide by local climate change legislation. Corporations are being taken to task for the construction of coal-fired power plants, conducting seismic surveys in sensitive seas, and the expansion of Brazilian feedlots, thereby failing to reduce methane emissions from farting cattle. 

Litigation


There have been demands for compensation from the impact of melting glaciers, litigation against banks for making climate-damaging investments in fossil fuel, misrepresentation of “green” products, failure to plan for future impacts of climate change like flooding, landslides or drought, and for greenwashing: making untrue claims about reducing emissions and “net-zero” projects. 

The South African government has been challenged on a number of fronts for what are deemed inappropriate decisions. 

Growth of climate litigation. (Image: Climate trends litigation Report)



These include the failure to consider climate change in environmental impacts statements by the Department of Environmental Affairs, the failure to adequately consider climate impacts and emissions in approving a natural gas power plant, the failure to consider the climate impacts of offshore oil and gas exploration, the approval of coal-fired power stations and over a decision granting an exploration right on the Wild Coast.

In Cape Town’s Philippi farming area an NGO successfully blocked an administrative decision approving urban development in the area. 

climate litigation Supporters celebrate after Fossielvrij’s win against KLM. (Photo: Climate trends litigation Report)



These are examples of a large number of successes:

  • Following a legal challenge, the Dutch Supreme Court ruled that the government must cut greenhouse gas emissions by at least 25% by the end of 2020 compared with 1990 levels to protect human rights.

  • In 2022 a ‘Deadly Air’ case was brought against the South African government by two environmental justice groups over air pollution on the Highveld. The judgement found that the poor air quality in this area was in breach of the residents’ constitutional rights to an environment not harmful to their health and well-being and confirmed that clean air is a constitutional right.

  • A group of young plaintiffs sued the US government for violating their constitutional rights by promoting the use of fossil fuels and contributing to climate change. Although the case was ultimately dismissed, it raised awareness of the value of a rights-based approach to climate litigation.

  • A Dutch court ordered Shell to reduce its global net carbon emissions by 45% by 2030 compared with 2019 levels, a landmark ruling that could set a precedent for holding corporations accountable for their contributions to climate change

  • In a case before the UN Committee on the Rights of the Child, 16 children alleged that the countries’ climate actions violated their rights under the UN Convention on the Rights of the Child. The committee found the case admissible, a significant milestone for children’s rights and climate litigation.

  • A 16-year-old girl sued the Indian government for failing to take adequate measures to combat climate change, which threatened her fundamental rights. The Delhi High Court ruled in her favour, ordering the government to prepare a national climate change action plan.

  • A Pakistani farmer sued his government for failing to implement the country’s climate change policy, arguing that it violated his fundamental rights. The Lahore High Court ruled in his favour, ordering the government to establish a Climate Change Commission.

  • Twenty-three citizens from the Philippines filed a complaint with the Commission on Human Rights of the Philippines against 47 fossil fuel companies, alleging that their contributions to climate change violated the Filipinos’ human rights. The commission found the case admissible.

  • The Islamabad High Court in Pakistan ruled that the government’s failure to protect the Islamabad Capital Territory from environmental degradation, including biodiversity loss, violated the fundamental rights of citizens.

  • An Indonesian environmental NGO sued the governor of South Sumatra for issuing permits that allowed the clearing of peatlands, which threatened biodiversity. The court ruled in favour of the NGO, ordering the permits to be revoked.

  • In 2020, in a case brought by four women over retirement age, the European Court of Human Rights ruled that Switzerland had failed to establish an adequate regulatory framework to limit greenhouse gas emissions, and it is now required to do so.


Children make a stand


A number of legal challenges have come from, or on behalf of, children and young adults. By the end of 2022 the UN report found that about 34 such cases had been filed in Australia, Brazil, Canada, Colombia, Germany, Guyana, India, Ireland, Italy, Mexico, Netherlands, New Zealand, Norway, Pakistan, the Philippines, Poland, South Korea, South Africa, Spain, Chile, Switzerland, Uganda and the United Kingdom. Children and youth plaintiffs are arguing that because of their age, they will have to endure for much longer than adults the effects of climate change – which will intensify over time. 

Two claims were led by girls as young as seven and nine. In Pakistan, a seven-year-old challenged the country’s climate policies for failing to protect her rights as a child, and in India, a nine-year-old girl challenged the adequacy of India’s climate mitigation efforts based on the issue of public trust. Both failed, but lessons were learned.

Other examples include children who filed a petition to the UN Committee on the Rights of the Child in 2021 alleging that Argentina, Brazil, France, Germany and Turkey violated their rights under the United Nations Convention on the Rights of the Child by making insufficient cuts to greenhouse gas emissions.

Six Portuguese teenagers filed a complaint against the European Union for failing to take sufficient action on climate change, and a similar case by young people was filed in Austria. In Norway six teenagers helped by Greenpeace opened litigation against the government for continued oil exploration in the North Sea. 

In South Africa, the Climate Alliance launched a youth-led constitutional challenge against the minister of mineral resources and energy and others questioning the government’s plans to procure new coal-fired power electricity.

Corporations in the crosshairs


climate litigation Climate activists protest outside ING's head office in Amsterdam, demanding the bank to stop financing the climate crisis. (Photo: Climate Trends Litigation Report)



Companies from many sectors are now aware that they risk being taken to court over climate – 230 such cases were filed against companies in 2023 alone. They are being challenged for prioritising profits over environmental safety. 

Cases have been filed in Chile, Colombia, Estonia, Japan, Kenya, Norway, Pakistan, New Zealand, the UK and US to keep fossil fuels in the ground. There have been challenges to destructive mining, exploration without consultation or companies lying about climate risk. 

The French supermarket chain Casino was sued by an NGO for “outsourcing emissions” in its supply chain to cattle farms in Brazil and Colombia. In Germany, three cases were filed against the car manufacturers BMW, Mercedes-Benz and Volkswagen respectively to stop producing fossil fuel-emitting cars.

Affected unequally


While climate change affects people worldwide, it affects them unequally. Apart from cases filed on behalf of children, indigenous groups and women are also increasingly becoming more active in litigation. (Indigenous peoples’ territories contain nearly 80% of the world’s biodiversity.)

There have, predictably, also been backlash cases that aim to delay or dismantle existing or emerging regulations that promote climate action. These include criminal cases brought against climate activists in Australia, Canada, France, New Zealand, Switzerland and the UK.

More to come


According to the UN report, climate litigation against fossil fuel producers and state administrations that collude with them or fail to enforce their own laws are set to rise. These cases are increasingly likely, says the report, to come from vulnerable groups like children, women, indigenous groups and citizens from low-lying islands at risk from sea level rise. 

climate justice Number of cases to date in countries globally. (Image: Climate trends litigation Report)



Law is the story a society tells about itself and is the basis of any social structure apart from a dictatorship. In using it to challenge the failure to take the measures necessary to stop the deliberate disruption of the stable climate, civil society is tapping into the one thing that could slow down the climate juggernaut.

The planet is old and patient, but time is running out to sustain many of its living systems – including us. Steven West, in his podcast Philosophise This, warns that the state of the global environment, dubbed a polycrisis, demands a significant change in human relationships to the world and each other – and is in fact inevitable. 

“How ready we are for it when it happens,” he says, “will determine how the world ends up on the other side of it”. DM

Tomorrow: Climate Lawfare – Cormac Cullinan: Wild Law and the long fight for environmental justice (Part Two)

https://www.youtube.com/watch?v=REeWvTRUpMk

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