Climate change litigation is any legal proceedings that connect, in one aspect or another, to climate change. It is a type of public interest litigation, because it is litigation that affects the public in general as well as (instead of only) the person or entity that brings the case to court. It can involve public or private companies, national or local governments, or other public authorities. Climate change may not always be the central theme of the litigation,[1] and climate change litigation can include both proceedings for judicial review of administrative action by public bodies and negligence-based civil proceedings against companies and more recently against government.[2]
The path for achieving things that matter is seldom easy or smooth, and commencing a climate change case certainly has its obstacles. There are often procedural challenges to overcome, such as whether the court hearing the matter has the power to do so (jurisdiction) and whether the person or entity bringing the action has the right to do so (standing). The “interest at stake has to be genuine, the issue has to be serious, it has to be an issue that can be validly resolved by a court and lastly, there should be no other effective way to bring the dispute before the court”[3]. Moreover, an act or omission amounting to a breach of a legal obligation and, in an action for negligence, a causal link between the act or omission and the resulting harm must also be established.
The Courts – to boldly go where no court has gone before…?
The courts have an incredibly important role to play. They can play it safe and not upset the applecart, or they can be bold and creative in the way they deal with these cases and set new precedents that will advance the fight against climate change. There have been many climate litigation cases filed all over the world. What is interesting is the different ways they have been dealt with by the courts in the respective countries.
The ‘poster-child’ of climate change litigation is the landmark decision in Urgenda[4] from the Netherlands. Despite the State’s argument that the applicants (Urgenda Foundation, a public benefit organisation) had no legal right to bring the matter to court and that the debate on policy relating to climate change mitigation should take place in parliament rather than the courts, the judges (both at the first instance and on appeal) were creative in their reasoning in allowing the matter to be heard. The courts took a bold position in their interpretation of the law and ruled in favour of the applicants.
In the Pakistan case of Leghari,[5] a Pakistani farmer argued that the failure on the part of his government in delaying the implementation of the nation’s climate change policy and not prioritising and developing adaptive measures and resilience to climate change violated citizens’ fundamental constitutional rights. Despite the fact that Pakistan’s Constitution did not provide its citizens the specific right to environmental protection, the judge relied innovatively on the general rights in the Constitution and coupled it with international law principles and ordered the government to ensure that the climate change framework was implemented.
In fact, the judge in the Thomson[6] case in New Zealand, after having consulted various other climate litigation cases such as the Urgenda case, commented that climate litigation cases “illustrate that it may be appropriate for domestic courts to play a role in Government decision making about climate change policy…The various domestic courts have held they have a proper role to play in Government decision making on this topic…”.[7]
However, a difference in interpretation of a statutory provision by courts can result in very different outcomes. In R (Plan B Earth & Others) v The Secretary of State for Transport,[8]the England and Wales Court of Appeal, upholding the applicant’s appeal on climate change grounds, held that the Minister had acted unlawfully by not taking into account the Paris Agreement[9] when designating the Airports National Policy Statement (ANPS). The UK Government accepted the Court of Appeal’s decision. However, the operators of Heathrow Airport appealed to the Supreme Court. The Supreme Court overturned the Court of Appeal’s decision and held that when the ANPS was designated, the “Government’s approach on how to adapt its domestic policies to contribute to the global goals of the Paris Agreement was still in a process of development”[10] and did not amount to government policy. As such the Minister was not acting unlawfully by taking into account less stringent climate targets in the ANPS. This decision means that Heathrow Airport Ltd can now apply for planning permission for the third runway. Whether it is approved by the planning authorities remains to be seen.[11]
Most recently, in the case of Milieudefensie et al. v. Royal Dutch Shell,[12] the plaintiffs used arguments relating to duty of care similar to those in the Urgenda case[13] and extended this duty to private corporations. The Dutch court ruled that Shell owed a duty of care under Dutch law to take steps to mitigate climate change and that “(i)n the court’s view, RDS’ [Shell’s] policy, policy intentions and ambitions for the Shell group largely amount to rather intangible, undefined and nonbinding plans for the long-term (2050).”[14] Significantly, this is the first time a national court has imposed a duty on a private corporation to put in place corporate strategies to ensure that it can meet the emissions targets of the Paris Agreement. Shell has indicated that it will appeal the decision.[15]
These cases demonstrate that climate change litigation can be successful despite challenges, and that governments can be held to account if their climate change policies are not sufficiently robust to meet the international commitments to which they have agreed.
An interesting trend
A trend has emerged where corporate entities such as superannuation/pension funds are also being held to account by individuals expecting them to disclose their portfolio holdings, and to provide information on whether they conduct climate scenario analysis to inform their investment strategies so as to ensure that they comply with their country’s international climate change policy commitments.
A recent example is the case of McVeigh v. Retail Employees Superannuation Trust,[16] where the issue at stake was whether the Australian pension fund had violated the law by failing to disclose information on climate change business risks and its strategies to address these risks. This case was settled between the parties in early November 2020, with the pension fund agreeing to incorporate climate change business risks on its investments and making a commitment to implement a goal of reaching a net-zero carbon footprint by 2050.
There is no turning back. Governments and corporations are being held accountable and litigation is being used tactically for this purpose. Even in cases such as the Juliana case[17] in the US, whilst the Ninth Circuit Court of Appeal decided that the plaintiffs had no legal right to bring the case before the court, the court did acknowledge that executive and legislature were not acting reasonably and may have relinquished their obligation to deal with the reality of the climate crisis.[18]
The trend and what next?
The list of cases referred to here is by no means exhaustive. There is certainly a trend towards using climate change litigation strategically to push for effective climate change action and there has been an increase in climate change litigation cases in the last 6 years.[19]
Interestingly however, many of the cases addressed here were dealt with by civil courts and not specialist environmental courts. Whilst it is important to pursue climate change litigation, it is equally (if not more) important to ensure that there are specialist judges and courts that can deal with these cases and are able to look beyond procedure and delve into the substance of the cases.
In fact, ERCS published a report[20] on 5 October that calls for the creation of an Environmental Court for Scotland that would “improve accessibility, reduce costs and plug Scotland’s accountability gap over the environment.”[21] Many countries including Bangladesh have specialist environmental courts. So, is there a need or an imperative to set up an environmental court in Scotland? That perhaps is a discussion for another blog.
Meet Kaur is a senior advocate & solicitor (Singapore) with a keen interest in international environmental law, climate change law, international investment law & sustainable development. She was in private practice for many years and also served as General Counsel to the Building & Construction Authority of Singapore for 12 years.
This blog was written by an ERCS supporter and we welcome writers to share their thoughts and engage in debate on all aspects of environmental rights. The views expressed are theirs alone and do not necessarily reflect ERCS’s position. ERCS is not responsible for the accuracy of any information supplied.
[1] See Jacqueline Peel, Hari Osofsky and Anita Foerster, ‘Shaping the “next Generation” of Climate Change Litigation in Australia’ (2017) 41 Melbourne University Law Review 793, 802 for a diagram that offers a succinct and interesting conceptualisation of climate change litigation which could include a whole spectrum of cases that may not have climate change as a main theme, but appear in the periphery and can be defined as a climate change case.
[2] Mark Clarke & Tallat Hussain, ‘Climate change litigation: A new class of action’ (White & Case, 13 November 2018) <https://www.whitecase.com/sites/default/files/2019-11/thought-leadership-climate-change-litigation-new-class.pdf> accessed 7 October 2020.
[3] Francesco Sindico, Makane Moise Mbengue and Kathryn McKenzie, “Climate Change and the Individual: An Overview” in Francesco Sindico and Makane Moise Mbengue, Comparative Climate Litigation: Beyond the Usual Suspects, (Springer: Switzerland 2021) 8.
[4] Urgenda Foundation v the Kingdom of the Netherlands ECLI:NL: RBDHA: 2015:719 & ECLI:NL: GHDHA: 2018:2610.
[5] Ashgar Leghari v Federation of Pakistan [2015] W.P. No. 25501/2015, Lahore High Court Green Bench Pakistan.
[6] Sarah Lorraine Thomson v. The Minister for Climate Change Issues. (An action brought by a law student against the then government for making decisions that were insufficient to combat climate change and founded on irrelevant information) CIV 2015-485-919 [2017] NZHC 733, 2 November 2017.
[7] Ibid para 133.
[8] [2020] EWCA Civ 214.
[9] Paris Agreement (Paris, 12 December 2015, in force 4 November 2016) 55 ILM 740.
[10] R (on the application of Friends of the Earth Ltd and others) (Respondents) v Heathrow Airport Ltd (Appellant) [2020] UKSC 52, para 111.
[11] Plan B Earth have indicated in the press that they are considering taking this matter to the European Court of Human Rights – (see https://www.theguardian.com/environment/2020/dec/16/top-uk-court-overturns-block-on-heathrows-third-runway) <accessed 16 December 2020>.
[12] Milieudefensie et al. v. Royal Dutch Shell ECLI: ECLI:NL: RBDHA: 2021:5337.
[13] Urgenda (n 4).
[14] Milieudefensie et al. v. Royal Dutch Shell (n14) para 4.5.2
[15] Shell confirms decision to appeal court ruling in Netherlands climate case, July 2021 (https://www.shell.com/media/news-and-media-releases/2021/shell-confirms-decision-to-appeal-court-ruling-in-netherlands-climate-case.html) <accessed 28 September 2021>.
[16] NSD1333/2018 New South Wales Registry – Federal Court of Australia.
[17] Kelsey Cascadia Rose Juliana v The United States of America [2016] (Case no 217F. Supp 3d 1224) District of Oregon; No. 18-36082 D.C. No. 6:15-cv-01517- United States Court of Appeals for The Ninth Circuit -saw a group of young people filing a climate lawsuit against the Government claiming that its fossil fuel policies violated their fundamental constitutional rights to life, liberty, and property, and they petitioned the court to require the Government to develop a climate change policy to reduce CO2 emissions to meet the goal of limiting global warming to 1.5° Celsius.
[18] Hillary Aidun ‘Juliana in the World: Comparing the Ninth Circuit’s Decision to Foreign Rights-Based Climate Litigation’ (Climate Law Blog Sabin Centre for Climate Change, 13 March 2020) (http://blogs.law.columbia.edu/climatechange/2020/03/13/juliana-in-the-world-comparing-the-ninth-circuits-decision-to-foreign-rights-based-climate-litigation/) <accessed 9 April 2020>.
[19] see Setzer J and Higham C (2021) Global trends in climate change litigation: 2021 snapshot. London: Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy, London School of Economics and Political Science (https://www.lse.ac.uk/granthaminstitute/publication/global-trends-in-climate-litigation-2021-snapshot/) <accessed 28 September 2021>.
[20] Christman,B, October 2021, Why Scotland needs an environmental court or tribunal, ERCS (https://www.ercs.scot/wp/wp-content/uploads/2021/10/ECT_report_Oct-2021-v2.pdf) <accessed 14 October 2021>.
[21] ERCS, 5 October 2021, Press Release: Environmental Court Report published. (https://www.ercs.scot/news/environmental-court-report-published/) <accessed 14 October 2021>.
