Climate Litigation - Can the Courts Save the Planet?
From wildfires in LA to fatal flooding in Thailand and Malaysia, our planet has witnessed innumerable climate disasters with no end in sight, making it clear that we have a crisis on our hands. Countless attempts. from Greta Thunberg’s school strikes and Just Stop Oil’s vandalism of Van Gogh’s Sunflowers, all the way to the United Nations’ Paris Agreement have been made to save our planet. While meaningful progress remains elusive, could the courts be the key to meaningful change?
Filing legal claims to combat climate harm is not easy. Aside from the ability to constrain judicial intervention, the broad scope of environmental statutes and policies makes it difficult for courts to decide which rules to apply. Furthermore, the difficulty of providing a direct causal link between the defendant’s actions and the environmental harm has led to the dismissal of several claims, such as in Barasich v Columbia Gulf Transmission 2006. Corporations often seem to hold the upper hand with just 15% of cases in the US being aimed at companies, compared to a 40% average across the world. The UK had the second-highest number of cases, accounting for 24%.
Is this surge in cases just noise, or are the courts truly making a difference in the fight against climate change? What is holding corporations accountable when a few global juggernauts are inarguably responsible for the vast majority of the world’s emissions? Climate litigation has grown exponentially since the Paris Agreement 2015, with more than 2,666 cases filed globally. Climate litigation can both address issues early through legal judgments or regulatory change and shape public dialogue to generate pressure on businesses. Claims against government policy decisions have an impact on overall public perception, as demonstrated by the 2024 general election campaign. Here, the Labour and Conservative parties promised differing policies in relation to climate mitigation and adaptation.
There have also been notable legal victories with high-profile cases such as Urgenda Foundation v State of the Netherlands. In 2018, the Hague Court of Appeal concluded that by failing to reduce greenhouse gas emissions by at least 25% by the end of 2020, the Dutch government is acting unlawfully in contravention of its duty of care under Articles 2 and 8 of the ECHR. This was the first decision by any court in the world ordering states to limit greenhouse gas emissions for other obligations than mere statutory mandates. Furthermore, the landmark ruling of Verein Klima Seniorinnen Schweiz v Switzerland concluded that Article 8 of the European Convention on Human Rights encompasses a right for individuals to effective protection from the state from the serious adverse effects of climate change. The judgment will likely lead to further litigation and this in turn is likely to increase the pressure on the UK Government to ensure that it continues to set clear targets, be consistent on implementation and make policy in an open and transparent way.
However, these victories do not symbolise the existence of litigation to merely support activists. It is important to remember that upholding the law is still the courts’ primary purpose. The case of Milieudefensie et al. v Royal Dutch Shell considered Shell’s appeal against one of the most significant climate litigation rulings in recent years, namely the 2021 ruling of the District Court of The Hague, in which Shell was ordered to reduce its greenhouse gas emissions across its global operations by 45% by the end of 2030. The Court of Appeal ruled that Shell, as a major oil and gas producer, has a “special responsibility” to reduce its greenhouse gas emissions. Nevertheless, Shell does not have an “absolute [emissions] reduction” obligation of 45%; under EU law, it will not have such an obligation for the foreseeable future. Hence, it is evident that climate litigation exists not to legally legitimate activist concerns, but to hold companies accountable insofar as the law allows them to do so.
Recent reports show that there has been a significant increase in litigation that seeks to hold companies responsible for the impacts of climate change. In response, many corporations have committed to reaching net-zero emissions in line with Paris Agreement goals. These claims are often accompanied by a flurry of activity designed to demonstrate their bona fides to the environmental community. As a result, continued public and legal pressure is vital to ensure these gestures are not just displays of corporate greenwashing. In the last decade, about 230 strategic climate cases have been filed against companies. Litigants continue to file new ‘corporate framework’ cases, which seek to ensure companies align their policies with climate goals. This growing trend is driving a shift in thinking and behaviour across various stakeholders in America. Plaintiffs have started to file cases under state law instead of common law with the hope that state courts might approach the question of the separation of powers differently from federal district courts.
Courts seem to be increasingly holding corporations accountable. There is an emerging pattern of cases whereby claimants from the Global South sue companies domiciled in the Global North for their activities abroad. Such cases push the parent company to set policies and standards for their subsidiaries which might provide a path to holding parent companies responsible for the effects of climate change. Furthermore, claims brought by activists now focus on broader policies rather than specific projects with some success, mirrored in jurisdictions like South Africa, Japan and New Zealand. In the UK, cases such as Finch v Surrey County Council represent a trajectory shift. Here, the Supreme Court recognised that the main issue with new oil and gas projects is the pollution from burning fossil fuels, not extraction and that this should be considered when granting permission for drilling sites.
Whilst courts are turning towards a more open-minded approach for these cases, climate litigation still faces setbacks, such as the dismissal of Friends of the Earth’s challenge to Britain’s climate change plan. This demonstrates that whilst climate litigation can make significant improvements in some instances, it is not a blanket solution for all the intricate complexities surrounding the fight against climate change. Courts have undeniably been a force for change, but they will not use litigation solely to prioritise the concerns of activists over those of businesses. It is impossible for them to ‘save the climate’ in one fell swoop, but it seems likely that with their ever-increasing significance incremental legal victories will drive lasting change.
By Saanvi Shenoy
