Climate Change Litigation, the key to combatting climate change?
By Elisa Hendel
The climate crisis has been coined as a global pandemic here to stay. The danger we face stemming from the effects of fossil fuel emissions are well established. It also goes without saying that unless we drastically change our ways of living, the climate crisis will wreak havoc upon us and generations to come. Especially now, while we impatiently await the political and legal repercussions of the COP26, the world has its eyes on its leaders.
However, we are not quite sure what to expect from them. This is, in particular, due to the fact that many of us have been left despondent following decades of grim political and legislative precedent.(1) It is safe to say that today’s policymakers have outright lost the fight against climate change. Recently, the US Government offered $5.7 trillion in subsidies for the national fossil fuel industry in 2017 alone,(2) appeasing world’s major emitters (many of which have unveiled no plans to decarbonize), while at the same time, pledging billions of dollars in aid to developing countries vulnerable to climate change. This disjunctive and ostensibly weak move might remind one of the notion of Western collective security and appeasement which was widespread in the West in the pre-WWII era. As today’s prominent global leaders appease oil and gas giants, like the West appeased Germany, Italy, and Japan’s expansionist demands in the 1930s, the underlying crisis (today: climate change; back then: the rise of fascism) still rages on, unbothered by the ineffective policy. The result of the global leader’s policy at the end of the 1930s was the worst socioeconomic crisis the world had yet seen. The result of today’s policy has yet to be seen. But there are few chances it will come short of a disastrous socioeconomic crisis.
What is truly baffling is that most leaders, just like their populace, are aware that today’s climate policy is ineffective - and it is still being adamantly pursued? How can it be that fossil fuel operation expansion, greenwashing, and other deeply damaging, anti-environmentalist practices are not only going seemingly unchecked, but are being encouraged by companies and states? The exasperation surrounding this phenomenon has pushed many to turn towards other means of putting a definitive end to the damage which is dirtying our atmosphere and engulfing our shores: climate change litigation.
This neonate field is the most rapidly-expanding sector in the legal industry. As of July 2021, there have been 1,800 climate change cases filed around the world.(3) The reasons for this, I would suggest are twofold; not only are companies having to grapple with new regulations and thus are in need of legal services to meet ESG guidelines, but private individuals who are seeking to make effective change are gaining the capital and momentum needed to bringing forth cases against firms and governments regarding their inaction regarding climate change. From the Netherlands, to Germany and, to Australia, courts are responding to individuals’ claims against climate change inaction. This new field of law is bustling with energy and creativity with its litigants,(4) rather interestingly, not relying on environmental law but rather on human rights law, tort law and corporate and finance law to base their (mostly successful) claims.
This piece will discuss the wild success of this wave of cases and shed light on the view that climate change litigation could very well be a new, viable, and perhaps most effective way to fight the environmental crisis we face.
Neubauer, et al. v Germany (5) and Human Rights Law
Activities that damage the environment and contribute to climate change may very well constitute egregious human rights violations -in particular, the human right to health and property. As most modern Governments strive to protect its citizens from human rights abuses, it therefore follows that the State should be held to account when its environmental standards are too low. (6)
In Neubauer it was held that such conduct was a breach of human rights law and the Government assumed a great liability. A group of German youth decided in February of 2020 claimed that in eschewing sufficient climate change mitigation policies, the German government was violating its citizens fundamental human rights. First, they argued that the 55% target drop in emissions outlined in the Federal Climate Protection Act, by 2030 from 1990 levels was insufficient to meet Germany’s obligations under the Paris Agreement. Second, they said that this insufficient target violated their human rights to life and physical integrity,(7) and that Germany must protect the natural foundations of life and behave responsibly for future generations.(8) They argued that in order for the Government to avoid being in breach of these rights, it would need to reduce GHGs by 70% from 1990 levels by 2030. In April 2021, the Court held in favour of the plaintiffs, finding that Article 20a included the protection of life and health from the dangers of climate change. It ordered the Government to amend the Federal Climate Protection Act with updated reduction targets by 31 December 2022 such that it would quickly adjust its climate law in light of the decision.
This is a case of ground breaking importance. By elevating insufficient climate change action as a human rights violation, heads turn. The mere mention of a human rights violation carries significant weight which is needed for this not-so-silent killer to be combatted. Its impact is already tangible: under the amended Act, Germany shall reduce its GHG emissions by 10% more each year compared to the prior provisions and aims to achieve climate neutrality by 2045.(9)
The list of climate change litigations grows
Neubauer was not the first case of its kind. Though it is significant that the German Federal Constitutional Court departed from its traditional stance,(10) it is even more important that it is joining dozens of other Courts around the world who have begun chastising and sanctioning Governments for failing to take efficient measures against climate change.
In May 2021, Australia, for instance, established a common law duty of care of politicians to protect young people from the dangers of climate change in the case of Sister Marie Brigid Arthur v Minister for the Environment.(11) The Australian Federal Court held in the first case of its kind that the Federal Environment Minister, Sussan Ley, has a duty of care to protect young people from the Climate Crisis. Eight teenagers sought an injunction on behalf of “all young Australians” to prevent Ley from approving a proposal to expand a coal mine, arguing this would breach her duty of care to protect younger people against future harm and personal injury from the dangers of climate change. The Federal Court of Australia held that her programme would lead to a “risk of injury from climate change” since the increased CO2 levels “will contribute to increased global surface temperatures leading to extreme weather events'' which would therefore expose “Australian children to the increased risk of personal injury, property damage and economic loss”. (12) Though this duty of care was established, and is groundbreaking in and of itself, the injunction was not granted because the judges were not satisfied that Ley’s actions constituted a breach of that duty.
How could this be? It seems to me that this is a breach of duty of care if there ever was one: Ley’s decision would only accelerate the Earth’s projection towards a 3ºC increase due to the extra “100 million tonnes of CO2” (13) (about 20% of Australia’s annual climate footprint) being released into the atmosphere. So, in the end, the Australian Minister for the Environment was allowed to continue her program of coal extraction. Australia is one of the world’s largest exporters of coal, and had the judges decided in favour of the teenagers, this might have sent a signal to the Government that these harmful practices cannot continue to happen. It seems contradictory to be a contradictory ruling. One might ask, what is the point of establishing that there is a duty if a clear breach of that duty will not be recognized nor face consequences?
Nonetheless, this case is significant. First, it opens the door to climate-based litigation under the law of negligence, both against the government and, possibly, against private companies. Secondly, since citizens will be able to sue the Government for damages caused by climate change, the approval of fossil fuel-related projects will be more difficult. Also, because of this newfound duty of care, the federal government will have to consider the impacts of the climate crisis on young people when making decisions on coal mining projects.
More human rights abuses
There is another human rights-related case which is of similar importance; Urgenda v State of the Netherlands. (14) This case was the first of its kind in that The Hague District Court determined the Dutch government must reduce GHG emissions by at least 25% (compared to 1990) by 2020 to fulfil its duty of care to protect Dutch citizens against the imminent danger caused by climate change. The Urgenda Foundation and a group of 900 Dutch citizens brought forward this case arguing that the Dutch Government was violating citizen’s rights. First the claimants argued that the Government had committed a civil wrong in violating the “duty of proper social conduct” found in the Law of Tort. Secondly, they argued that the Government’s inaction was a violation of human rights, specifically the right to life and private life. (15) As a result, not only did the claimants succeed on both grounds, but climate change rose higher on politicians’ agendas, The Climate Act was adopted, and a discussion of coal phase out was instigated. (16) Thus, this judgement gave way to more action; tangible and effective action. Another source of importance is the important role that science played in the decision. The District Court quoted extensively from the Intergovernmental Panel on Climate Change (IPCC) Assessment Reports, which report scientific information on the scope, effects and causes of climate change. This should encourage other tribunals to view the IPCC reports as respected authorities on climate science.
The landmark ruling in Milieudefensie et al v Royal Dutch Shell (17)
And of course, we are left with the Royal Dutch Shell case which effectively left the Dutch only 2% of a company they used to own 50% of. As the deadlines for climate targets was coming up, Shell announced their goals - which many believe were a joke as they were much too ineffective to meet the Paris Climate Agreement’s objectives. As a result, seven environmental foundations and 17,379 individual Dutch claimants filed a class-action lawsuit against Shell in April 2019, arguing that Shell must change its business model to invest more in renewable energy, and reach an emissions reduction target of 45% by 2030. And they succeeded.
This case was groundbreaking in that it was the first time a climate change litigation had serious, tangible effects on a multinational corporation - especially one as prominent and with as much clout as Shell. (18) In July of 2021, the court ordered the company to reduce its global carbon emissions from its 2019 levels by 45% by 2030. The court found that not doing so would be in breach of human rights, particularly against the standard of care laid down in the Dutch Civil Code as well as the rights to life (article 2) and rights to a private life, family life, home, and correspondence (article 8) of the ECHR. This Dutch case could set a precedent (19) for other environmental lawsuits against similar highly-emitting companies which have failed in taking sufficient steps to reduce their emissions.
It is highly emotive that courts are recognizing individual and collective claims for climate action. Climate change litigation continues to expand across jurisdictions as a tool to strengthen climate action. We have seen not only an increase in climate change litigation cases but also a number of new law firms who strive to combat climate change through litigation in order to keep up with this rapidly increasing field. (20) Climate change is a global problem, these cases are going to have a global impact; they create a ripple effect whereby more and more courts recognize Governments’ failings and put legal pressure on politicians. (21) The ingenious use of human rights law puts great pressure on those responsible to put an end to their wrongful practices, rectify their malfeasance, and contribute to a healthy environment. In the fight against climate change, the law, as an instrument for justice, the resolution of conflicts, and the ideal of human rights, is perhaps the most effective tool we possess. So, if you are exasperated by the lack of positive climate change legislation and enforcement, bring your case before a court. You might just win.
(1) See, among others, the thirty years-worth of mostly failed intergovernmental conferences, summits, which aimed at reducing GHG emissions (i.e. the 1992 Rio Summit, the 1997 Kyoto Protocol, and most UNFCCCs since 1995). Note that even if ideal guidelines and proposals were adopted by signatories, very few have actually achieved them, or even gotten close to doing so.
(2) Coleman C, and Dietz E, 'Fact Sheet | Fossil Fuel Subsidies: A Closer Look At Tax Breaks And Societal Costs | White Papers | EESI' (Eesi.org, 2019) <https://www.eesi.org/papers/view/fact-sheet-fossil-fuel-subsidies-a-closer-look-at-tax-breaks-and-societal-costs>
(3) Buizza R and others, 'The Role Of Science In Climate Change Litigation' (Biicl.org, 2021) <https://www.biicl.org/blog/29/the-role-of-science-in-climate-change-litigation> accessed 8 December 2021
(4) BBC, 'Can The Law Fight Climate Change?' (Law in action, 2021) <https://www.bbc.co.uk/programmes/m000t4v8>
(6) Kjellgren A, 'Andrina Kjellgren: Courts Set To Impose Human Rights Obligations On Companies?' (Hagainitiativet.se, 2021) <https://www.hagainitiativet.se/en/blogg/Andrina-Kjellgren-Courts-set-to-impose-human-rights-obligations-on-companies> accessed 12 November 2021
(7) Articles 1 and 2 of the German Constitution
(8) Article 20a of the German Constitution
(11)  FCA 56
(12) ibid 
(13) ibid [para 7]
(14)  HAZA C/09/00456689 (June 24, 2015); aff’d (Oct. 9, 2018) (District Court of the Hague, and The Hague Court of Appeal (on appeal))
(15) Specifically, Articles 2 and 8 of the European Convention on Human Rights; Article 21 of the Dutch Constitution; and the general duty of care in the Dutch civil code. Para. 4.35.
(16) Note the significance of “phase out” not “phase down” as was discussed in the COP26, indicating that Climate Change Litigation is perhaps a more effective means of tackling climate change, moreso that international agreements let by politicians and lobbyists.
(18) Shell produces 1% of global emissions according to Boffey, Daniel (30 November 2020). "Shell in court over claims it hampered fossil fuels phase-out". The Guardian
(19) MacFarlane, Sarah (26 May 2021). "Shell ordered by Dutch Court to cut carbon emissions". The Wall Street Journal
(20) Client Earth, Climate Change Counsel, Centre for International Environmental Law, Sher Edling LLP, inter alia.
(21) Setzer J, and Byrnes R, 'Global Trends In Climate Change Litigation: 2019 Snapshot' (Lse.ac.uk, 2019) <https://www.lse.ac.uk/GranthamInstitute/wp-content/uploads/2019/07/GRI_Global-trends-in-climate-change-litigation-2019-snapshot-2.pdf> accessed 12 November 2021