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Holding to account: The rising power of climate litigation

  • Written by  Sophie Tuson
  • Published in Climate
Holding to account: The rising power of climate litigation
02 Nov
2021
Lawyers are using the power of the courts to challenge governments and companies that fail to act on climate change

On 24 June 2015, the Hague District Court in the Netherlands handed down a ruling that will go down in history. In a landmark decision, it found that the Dutch government has a legal duty of care to prevent dangerous climate change and, in light of that duty, was failing to cut greenhouse gas (GHG) emissions quickly enough. It ordered the government to reduce emissions by a quarter by the end of 2020 (compared to 1990 levels). Four years later, and following two appeals by the state, the Supreme Court of the Netherlands agreed. It held that the risk of climate change is a human rights issue falling under the auspices of the European Convention on Human Rights – in particular the right to life (Article 2) and the right to a private and family life (Article 8). The Dutch government therefore has a legal duty not to act in a way that infringes those rights.

The case, brought by the Urgenda Foundation on behalf of 886 Dutch citizens, was nothing short of groundbreaking. It was the first in the world to establish a legal duty on a government to prevent dangerous climate change. As Dennis van Berkel, legal counsel to the Urgenda Foundation and one of the lawyers who worked on the case, explains, establishing this legal accountability was the driving force of the case. ‘We said that there’s a general duty of care from a government towards its citizens,’ he says. ‘Climate change is a unique threat in its size and potential impacts, which really can be catastrophic. We know that we’re heading in that direction and that governments recognise the science and what needs to be done. Therefore, we think that we can force governments to keep their word and to actually do what they promised, which is to reduce emissions sufficiently so that this catastrophe can be prevented.’

In response to the court’s decision, the Dutch government has taken huge steps to ‘keep its promise’ on climate change. This includes dramatically reducing the capacity of coal-fired power plants and administering a €3 billion package of low-carbon investments. The judgment and the public debate around the case also paved the way for a new Climate Act in 2019.

ON THE RISE

When people think about the solutions for tackling climate change, they might naturally think of the role of scientists, technologists and politicians. They might not think of a courtroom full of lawyers. But, as the recent run of successful legal cases against governments and fossil fuel giants has shown, climate litigation is becoming an increasingly powerful tool. A 2021 report produced by two researchers from the Grantham Research Institute on Climate Change and the Environment totted up incidents of climate change-related legal action. It found that cases have more than doubled since 2015: just over 800 were filed between 1986 and 2014, while over 1,000 cases have been brought in the last six years. The majority (1,387 out of 1,841) were filed before courts in the USA, while the remaining 454 were filed before courts in 39 other countries and 13 international or regional courts and tribunals (including the courts of the European Union). Such cases are also increasingly successful: to date, 58 per cent have had outcomes favourable to climate change action.

These trends look set to continue. The researchers behind the Grantham paper predict that ‘climate change litigation will continue to grow, reflecting the increasing urgency with which the climate crisis is viewed by the general public’. Urgenda seems to agree. Since its landmark case, the organisation has established the Climate Litigation Network to share information and provide support to others considering similar legal action.

One such Urgenda-style case was brought by Friends of the Irish Environment (FIE) against the Irish government in 2017. FIE challenged the legality of the government’s climate plan on the grounds that it didn’t properly set out how the government intended to reduce GHG emissions and achieve its 2050 goals. In July 2020, the Supreme Court of Ireland agreed, quashing the government’s 2017 National Mitigation Plan for being ‘excessively vague or aspirational’ and falling ‘well short’ of the level of detail legally required under Irish law. The government was ordered to re-draft the plan.

The case garnered significant public support, with an online petition attracting 20,000 signatures, packed court rooms and funding from the clothing company Patagonia helping to raise the case’s public profile. The judgment was also timely, handed down in the midst of the government’s drafting of new climate legislation. Ireland’s new climate law of July 2021 now legally binds the country to a steep emissions-reduction path of 51 per cent by 2030 (compared to 2018 levels).

The message from the courts so far seems clear: countries have a direct responsibility for their own emissions and must do their part to reduce them in line with their fair share of global emissions reductions. Ascertaining just what a country’s ‘fair share’ is can be a difficult question, but courts are increasingly using the available science around carbon budgets to provide an answer. In doing so, they’re also grappling with important issues of equity and the rights of future generations.

In April 2021, in a case brought by a group of youth claimants, the German Constitutional Court ruled that the German government’s failure to set any emissions-reduction targets post 2030 in the Federal Climate Change Act 2019, placed an unreasonable and disproportionate burden on future generations. According to the court, ‘one generation must not be allowed to consume large portions of the CO2 budget while bearing a relatively minor share of the reduction effort, if this would involve leaving subsequent generations with a drastic reduction burden and expose their lives to serious losses of freedom’. The message was unequivocal: governments can’t leave future generations with the burden of cleaning up the mess caused by current and previous generations.

shutterstock 1012991041Royal Dutch Shell Plc was recently ordered to slash emissions by a Dutch court. Image: Shutterstock

The impact of the German case has been breathtaking. Within two months of the court’s decision, the German parliament amended the Federal Climate Change Act to re-plot its emissionsreduction trajectory. Germany will now target 65 per cent emissions reduction by 2030, 80 per cent by 2040 and net zero by 2045. This has triggered immediate changes, particularly in the energy sector, with the government announcing an €8-billion investment package for clean-hydrogen projects to drive Germany’s transition to low-carbon energy and stake its place as a world leader in this fuel technology.

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A POWERFUL TOOL

These sorts of climate change cases have a dual impact. As Elspeth Jones, deputy CEO at the legal-environmental NGO ClientEarth, explains, the law has the power to hold governments, fossil fuel companies and other stakeholders to account for their failure to take sufficient action on climate change, but it can also change mindsets and societal norms. The former is hugely important in a world of numerous pledges and promises, in which it isn’t always clear what the repercussions are for failure or lack of effort. ‘Right at the heart of ensuring that everybody acts in a way that doesn’t unduly harm the environment sits the law and the institutions around the law – the lawmakers, the law enforcers, the courts,’ says Jones. ‘Without that, you just don’t have accountability for environmental harm.’

Van Berkel agrees: ‘There’s no enforcement mechanism in the context of the Paris Agreement that forces countries to actually do enough so that they can reach the target. It’s just completely absent. And courts are now filling that portion.’

When it comes to the second impact: changing mindsets, we might traditionally think of the law lagging behind social values and norms – playing ‘catch up’. But there are examples where a legal change actually precedes a wider societal shift (the 2007 UK smoking ban being one). The Grantham report noted that the number of ‘strategic’ cases are dramatically on the rise, which the authors identify as those that go beyond the concerns of the individual litigant and aim to bring about some broader societal shift. ‘Those changes in the law that come through parliament, through the lawmaker, or through a judge-made decision in court, where the judge interprets the law in a new way or extends the law and sets a precedent for future judges – those decisions can actually shift societal mindsets. And there you have really high leverage,’ says Jones.

THE SHELL EFFECT

On 26 May 2021, the most high-profile and dramatic climate case against a company to date came to a head. The Hague District Court ruled that Royal Dutch Shell – the Anglo-Dutch multinational oil and gas company – was in breach of its duty of care under Dutch civil law by failing to have in place an adequate strategy to prevent dangerous climate change. According to the court, Shell’s ‘Energy Transition Strategy’ fell well short of what’s required to limit climate impacts on human rights and keep within a 1.5°C pathway. Shell is now legally required to cut its net CO2 emissions by 45 per cent by 2030 (compared to 2019 levels).

The case, which was brought by Friends of the Earth Netherlands, a group of other NGOs and 17,379 Dutch citizens, demonstrates the power of climate litigation to drive change among some of the world’s largest emitters.

The ruling was historic for a number of reasons. It’s the first time a court has found that a company has a legal duty to reduce its emissions in line with the goals set under the Paris Agreement. The breadth of the court order is also remarkable, extending to Shell’s entire business, across all countries in which it operates, and also to emissions throughout Shell’s value chain, including ‘scope 3’ emissions of end users (such as emissions from cars burning Shell’s petrol). By including these emissions, the court has made clear that fossil fuel companies such as Shell can no longer push the burden of behavioural change onto consumers. Instead, they must fundamentally change their products and business models to reduce their end users’ emissions.

The ruling, compounded by a heightened sense of litigation risk by other fossil fuel companies, is having a significant effect on the regulatory landscape in the Netherlands. ‘Many commentators have said that the judgment in the Netherlands against Shell has done two things,’ says van Berkel. ‘It has led to large emitters in the Netherlands advocating for green industrial policies much more than they previously did, by lobbying for active government policies to reduce emissions; and also, the government itself seems to be more willing to invest and help these companies to reduce their emissions.’

The case is also likely to have major consequences for other big companies. In its judgment, the Dutch court set out a framework for assessing corporate responsibility for climate change that has the potential to be transferred to other jurisdictions and other large emitters. ‘I wouldn’t be surprised if we start seeing more of these types of cases. The Shell case was based on what we would understand in English law to be a tortious duty of care, and that principle exists in jurisdictions all over the world,’ says Jones. (Tort law is the branch of law that deals with civil wrongs as opposed to criminal wrongs.)

Van Berkel agrees. ‘What we’ll see in climate litigation more broadly going forward, is that not only will governments be called to account on their responsibilities, but that companies similarly have responsibilities – be it human rights responsibilities as in the Shell case, or towards their shareholders,’ he says. ‘That is one trend that has already started and is very likely to expand.’

With litigation now a significant risk for companies, investors are certainly taking note. The same day that the Dutch court ruled on Shell’s case, Chevron shareholders approved a resolution requiring the company to also curb ‘scope three’ emissions. Meanwhile, ExxonMobil shareholders, supported by the world’s largest investment fund manager, Blackrock, voted to replace three long-serving board members with experts in renewable energy and climate science.

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CONSIDERING ECOCIDE

For some environmental lawyers, the existing legal frameworks regulating and punishing those responsible for environmental damage do not go far enough. There are now growing calls to make ‘ecocide’ (the mass damage and destruction of ecosystems) a criminal offence under international law. The organisation Stop Ecocide International is leading the charge by campaigning to make ecocide a crime at the International Criminal Court (ICC). This would place it on par with genocide and war crimes and could make individuals in ratifying countries (such as the controlling minds of fossil fuel companies) criminally liable for severe or widespread environmental damage caused by their companies. At least eight ICC member states have already expressed interest in these proposals as well as the Pope and the European Parliament.

In June, an independent expert panel of criminal and environmental lawyers, convened by Stop Ecocide International, published a legal definition of the new crime. It is hoped this could be used as a basis for amending the ICC’s governing document, the Rome Statute, and introducing ecocide as the fifth international crime. Passing this amendment would require at least a two-thirds majority of ICC member states (there are 123) – at which point ecocide would become a crime in ratifying nations.

The criminalisation of ecocide is also increasingly being debated at a national level by governments around the world. In September, Senator Raúl Paz Alonzo of Yucután in Mexico presented a bill before the Senate which would make ecocide a serious crime in Mexico. This would expand the existing legal sanctions in the country for crimes against the environment (which are currently limited to economic sanctions) to include imprisonment. In Chile, the Subcommittee on the General Framework for Human, Environmental & Natural Rights of the Constitutional Convention recently proposed an amendment to the new constitution that would also introduce ecocide as a crime.

Taking this approach could be a legal gamechanger for protecting the environment. It would certainly signal an end to corporate immunity and would likely help to redirect business and finance away from harmful environmental practices. Proponents also point to the potentially powerful moral force. If we begin to see harming the natural world in a similar way to harming individuals, this has the potential to dramatically shift mindsets about our individual relationship with, and responsibility towards, the natural world.

THE FUTURE OF CLIMATE LITIGATION

The legal victories that have taken place to date only tell part of the story. As environmental lawyers know only too well, there remain many obstacles to bringing a successful case. The cost of litigation can be prohibitively high, particularly if you’re up against a corporate giant in a jurisdiction in which you risk having to pay a large chunk of its legal costs if you lose. The challenge of finding sufficient funding (whether through philanthropy, crowd-funding or other streams) and suitable insurance to cover the risk can prevent many good cases getting off the ground.

As Jones explains, it can also be difficult to match the people or organisations that have ‘standing’ (the legal right) to bring a case with those that have the motivation to do so. ‘ClientEarth has the appetite to take cases in the public interest, but we don’t always have standing as an organisation. That can be a key challenge – putting together the right group of claimants to bring a case.’ Finally, there’s the issue of delay. Litigation can be painfully slow, often taking many years (including appeals) to reach a final decision. It clearly isn’t a quick-fix strategy. Nevertheless, it can have powerful leverage if your case is successful.

In the race to net zero, lawyers now have momentum on their side. A winning case can produce a domino effect around the world, inspiring future litigants and adding to the pool of case law for future judges. The upswell of public support for climate litigation – demonstrated by the packed court rooms, the increasing use of crowd-funding and the number of citizen-claimants – helps to win the hearts of judges, further tipping the balance in claimants’ favour. This public participation also suggests that environmental activists and members of the public are increasingly taking to the courts, rather than (or in addition to) the streets to voice their anger over climate inaction. And, crucially, the threat of litigation (on top of public and shareholder pressure), means that it’s no longer viable for some governments, fossil fuel companies or financial market actors to turn a blind eye to their impact on the climate.

Against this backdrop, environmental lawyers will continue to play a key role in the transition to net zero. The fight for the climate has never been more urgent and all the signs suggest that it will continue to play out in the courtroom.

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