A placard reading ‘Separate Oil & State’ is visible against the US Supreme Court in the background. Photo: Mark Dixon/Wikimedia Commons, CC BY 2.0
- Accountability is in many ways the next major frontier in global climate action – and at the national level, the most direct mode of accountability is climate litigation.
- Climate cases in recent years have mostly been preventive and future-looking in nature, often seeking to establish preventive obligations and duties of care.
- Duties of care have proven the central driving force of climate litigation, although their source can vary depending on the context.
Climate litigation was a significant topic of discussion at the COP26 climate conference in Glasgow last month. At various side and independent events, creative insights emerged from a litany of court experiences around the world.
The focus on litigation was expected: accountability is in many ways the next major frontier in global climate action. The main areas of pressure at COP26 were on developed countries to honour unkept promises on climate finance, on the monitoring of purported cuts in fossil fuels, and on the losses and damages owed to vulnerable countries. From this, we could say that one of the central questions looming over climate action today is that of accountability.
The main focus of accountability is on the targets promised by governments and corporations. Promises can be seen through treaties ratified, nationally determined contributions and long-term strategies announced, climate and environmental laws passed, and pledges made. Mechanisms of accountability are essential to ensure that these promises do not attenuate to hollow statements used merely to leverage negotiating positions at international conferences.
At the national level, perhaps the most direct mode of accountability is climate litigation.
Litigation is often assumed to be the last resort or the least effective instrument of climate policy – due mainly to the prevailing notion that climate action should be forward-looking and that litigation focuses on damages and remedy for past actions. There emerge many innate conflicts between the law and climate change in backward-looking cases, such as proving causation and culpability. Apart from a few exceptions, like the landmark Leghari v. Pakistan (2015), decisions in these cases tend not to favour the plaintiff.
However, and perhaps consequently, climate cases in recent years have mostly been preventive and future-looking in nature, often seeking to establish preventive obligations and duties of care.
Types and uses
Although most, and also the most robust, judgements have applied existing legal principles to discover novel duties with respect to climate change, we can’t deny that climate litigation is playing an important role in climate policy. These cases can broadly be classified into two types: those against the state and those against corporations. The majority are of the former type.
Cases against the state
The principal form that cases against the state take are called systemic mitigation cases. They seek to compel the state, or one of its organs, to increase overall mitigation efforts. Apart from the already well-discussed Urgenda v. the Netherlands (2019), where the court ordered the government to raise its emissions goal for 2020 from 17% to 25% from 1990 levels, a good example of systemic mitigation cases is Neubauer v. Germany (2021). A constitutional court in Germany ruled that in order to meet Paris Agreement targets, the German climate law’s ambition to reduce emissions by 55% (from 1990 levels) by 2030 would be insufficient, and thus raised it to 70%. Both duties were found in part in human rights claims.
While courts can be used to increase the ambition of climate laws and policies, laws can in turn be a tool to improve the government’s ambitions. The Irish climate law requires the government to approve a ‘national mitigation plan’ at least once every five years. In Friends of the Irish Environment v. Ireland (2020), courts ruled that the short-term targets of the 2017 mitigation plan were insufficient to meet the long-term goals of the climate Act.
Cases against corporations
Perhaps the most bracing result for climate activists against corporations was Milieudefensie v. Royal Dutch Shell (2021). A Dutch court ordered Shell to reduce its global carbon emissions from 2019 by 45% by 2030. Although the district court in question didn’t have global jurisdiction, the fact that Shell is headquartered in the Netherlands allowed the judgement to apply to over a thousand of its companies worldwide. There is even a directive for Shell to apply its ‘best endeavours’ to comprehend scope-3 emissions – those arising from the use of its products down the supply chain – in its endeavours, another propitious precedent for climate activists.
Cases against large corporations, particularly fossil-fuel companies, have the potential to significantly impact the global mitigation effort. One of the most consequential arguments in the world is currently unfolding in the Guyanese Supreme Court. Upon the verdict of Thomas & de Freitas v. Guyana (ongoing) hangs the fate of 10 million barrels of oil still beneath the surface. Guyana’s decision to issue exploration permits to Exxon Mobil is being challenged based on constitutional human rights claims. If the petitioners win, the case could prevent the emission of 4 billion tonnes of greenhouse gases.
Litigation can also force financial institutions like pension funds to incorporate climate risks in investments and banks to disclose information about their financing, and perhaps choke funds for emitters.
The PR potential of going green has also opened the door to a rush in the private sector, some of which manifests in the sort of wild and inaccurate promises we now know as greenwashing. Litigation can prove a powerful mode of accountability in this regard. ACCR v. Santos is currently probing the claims of the latter, a natural gas company, that claims to be on track to net-zero by 2040, allegedly based on carbon capture and storage technology that doesn’t yet exist.
Hooks for climate litigation
Although most climate cases have been brought by individuals and NGOs hoping to use the court to ramp up ambition, litigation in novel contexts or genres like climate change must still be brought, and cases decided, using hooks in existing law. Given most judgments are forward-looking, courts have been careful to avoid the appearance of setting new policy and thus threaten the separation of powers. Instead, they have discovered duties and obligations in the civil code, the constitution, treaties and tort and common law.
Duties of care have proven the central driving force of climate litigation, although their source can vary depending on the context. In systemic mitigation cases, the best hooks for crafting novel duties have been domestic human rights law and standard civil law provisions, such as existing duties of care. Human rights allow duties on states to be generated in absolute terms.
The defence of relative utility, often used by states to argue that no one state can single-handedly solve the climate problem, hasn’t proven strong enough to rebuff the normative force of rights. The courts in Neubauer, for example, said, “The fact that the German state is incapable of halting climate change on its own and is reliant upon international involvement … does not, in principle, rule out the possibility of a duty of protection arising from fundamental rights.”
In countries with no civil codes or charters of human rights, tort law – straightforward claims of negligence, nuisance and such – has been an important source for climate litigation.
These hooks are often interpreted in reference to other sources of standards, such as IPCC reports, international law, UN FCCC and the Paris Agreement, and the state responsibilities articulated therein. The fact that governments constitute the IPCC, whose recent Sixth Assessment Report declares it to be “unequivocal that human influence has warmed the atmosphere”, that “every tonne of CO2 emissions adds to global warming” and “that there is a near-linear relationship between cumulative … emissions and the global warming they cause”, could prove pivotal in establishing novel duties of care. Already, the standards of care established in Urgenda, Neubauer and Shell have, given the Paris Agreement obligation to keep warming to 1.5º C, been determined largely on IPCC findings.
In developing countries, where the Six Assessment Report extends the line of causation to major present and future natural disasters, judicially established preventive obligations could emerge from the increasingly confident language of the IPCC. Given Indian courts have interpreted the constitutional right to life in the context of the environment, and in recent years, referred to climate impacts and pledges like the NDC (e.g. Hanuman Aroskar v. India), the ground seems prepared for a repeat of international trends in domestic climate litigation.
Duties of care incumbent upon the state have increasingly also been transplanted to private contexts, most notably in the Shell case. In greenwashing cases, and cases of misrepresentation in general, many other areas of the law enter the fray, such as consumer protection and corporate law, as in the case of Santos.
A survey of climate cases around the world thus shows that litigation is playing a central role not only in holding private, national and international promises to account but also in directing climate policy for the future.
Anirudh Sridhar is a visiting researcher at the Centre for Policy Research, New Delhi.