In the wake of Typhoon Haiyan, which devastated the Philippines in 2013, a group of organisations and individuals in the country and elsewhere petitioned the Commission on Human Rights of the Philippines to investigate whether fossil fuel companies violate or threaten to violate human rights by contributing to climate change. At least 6,300 people died in the storm, and 29,000 were injured.
In early May of this year, the commission released its report. It found that nearly 50 major fossil fuel companies should be held accountable for the human rights impacts of their carbon-producing activities and alter their practices to reduce climate risk.
Greenpeace, whose Southeast Asia chapter was among the petitioners, calls the report a “landmark.” Some observers claim it provides a legal tool for holding fossil fuel companies accountable for climate impacts in the Philippines. In theory, it could be an important development for climate litigation around the world.
Climate litigation refers to attempts to use a government’s legal system to compel a corporation, government or other party to take responsibility for climate impacts and change behaviour that the plaintiff argues harms the climate; carbon emissions causing sea-level rise, for instance. It’s part of a broader term, environmental litigation, which also incorporates other human activities that hurt the environment, such as pollution in the ocean.
I would say it’s almost certain any time an environmental law is weakened, there’s corporate money behind the effort.
Martin Wagner, director of international programs, Earthjustice
As human actions cause more and more damage to ecosystems and human health, people, environmental organisations, non-governmental organisations (NGOs), nonprofits and others are turning to the courts to right these perceived wrongs.
And while cases of climate litigation have been on the rise around the world, plaintiffs often face an uphill battle against the monied and otherwise powerful entities they’re taking on. But some experts note that the outcome of the trial isn’t the only way to define victory; often, when climate lawsuits are accompanied by activism, the attention that activism raises can be just as important as a win or loss inside the courtroom.
The United Nations Environment Programme’s (UNEP’s) Global Climate Litigation Report: 2020 Status Review reported some 1,550 cases of climate litigation across 38 countries, nearly twice the number (884) included in UNEP’s 2017 report on the topic.
The 2022 Global Trends in Climate Change Litigation report by researchers from the London School of Economics and Political Science found that in the past eight years, more than 1,200 cases of climate litigation were filed, whereas only about 800 had been filed from 1986 to 2014 (totals that may include cases looking to roll back climate regulations as well as those seeking to hold polluters accountable).
More and more countries are seeing such litigation. The 2020 case numbers reported by the UNEP report included 1,200 in the US and 350 in the rest of the world. The current numbers are sitting at around 1,440 in the US and 580 in other countries.
“From something that started very much in the US, now we have climate litigation growing in several countries, also in the Global South,” says Joana Setzer, an assistant professorial research fellow at the Grantham Research Institute and one of the authors of the Global Trends report, which found similar numbers. Of the 2,002 completed or ongoing cases in its database, 1,426 were filed in the US with the remaining 576 happening elsewhere, including 88 in the Global South.
People in developing nations may have different priorities than those in developed nations when it comes to environmental court battles, says Kim Bouwer, an assistant professor in law at Durham Law School in the UK
In the US and Europe, for instance, individuals or groups may try to litigate a government into changing an environmental policy, while people in developing countries often sue to improve or protect their livelihoods. For example, Setzer says, people in developing nations may focus on things like industry impacts on water quality rather than public policies about greenhouse gas emissions.
That said, often the benefits of winning a climate case can have an impact beyond the plaintiffs. For example, climate litigation can benefit less economically well-off people more than the wealthy because they are more likely to be impacted by the negative effects of climate change, says Martin Wagner, director of the nonprofit environmental law organisation Earthjustice’s International program. “The poor are on the front lines of the harms from climate events,” he says.
The high cost of court
Although climate litigation is becoming more commonplace, it can be cost prohibitive for many. But, says Michael Burger — executive director of the Sabin Center for Climate Change Law at Columbia Law School in New York, which contributed data to the Global Climate Litigation and Global Trends in Climate Change Litigation reports — access to high-quality and committed legal support is important in lawsuits against powerful and monied actors, who can usually afford legal fees better than individuals or NGOs.
“It is a huge difference,” Setzer says, adding that accessing the legal system can be cost prohibitive even in developed nations.
Climate litigation can come with other challenges as well. In one case, after the town of Imperial Beach, California, filed a lawsuit against ExxonMobil and various other fossil-fuel corporations that, if successful, would compel them to pay for defending the city from sea-level rise caused by climate change, the oil giant filed its own suit claiming that the Imperial Beach legal actions and those of other California municipalities were part of a collusion effort to extort money from the industry.
The company is also attempting to use a Texas law to force California officials who have claimed fossil-fuel companies have misled the public about climate change to be questioned under oath and provide documents even before any legal action is taken.
In another case, environmental group ClientEarth is gearing up to sue Shell’s board of directors. The group argues that the board has failed to implement a climate strategy that aligns with the Paris Agreement and that this is a breach of their duties under the UK Companies Act. The act states that a company’s board is legally responsible for the company’s success. If ClientEarth loses, it could be responsible for the full cost of the litigation, including the defendants’ legal fees.
Considering the different laws and economic situations of countries around the world, geography may also be a factor in legal access and success. Courts in developing nations may have fewer resources than their peers in the so-called Global North, Bouwer says. As such, they might be less willing to take on cases.
While court cases are always going to require a lot of resources, which will usually favour parties with deep pockets, such as corporations, plaintiffs with fewer resources looking to bring forward an environmental case can still hire quality legal representation, and the best lawyers aren’t always the most expensive, Earthjustice’s Wagner says.
Some environmental organisations, such as Ecojustice, regularly offer free legal help, says Jolene Lin, associate professor at the National University of Singapore’s Faculty of Law and co-author of the paper, “Transnational Climate Litigation: The Contribution of the Global South.” As part of their mandates, such environmental organisations may seek out cases against government or business parties to bring forward in developing nations, according to Lin.
Beyond the courtroom
Corporations have tools beyond money to use in the legal sphere. For instance, they can pressure governments into changing laws, according to Wagner. In this way, a plaintiff seeking climate justice might win a court battle, but the victory could evaporate when a government changes laws to favour the private sector.
The Trump administration, for example, weakened environmental protections in the wake of BP lobbying — and Wagner notes that similar things also happen outside the US “I would say it’s almost certain any time an environmental law is weakened, there’s corporate money behind the effort,” he says.
However, effecting change in climate policy isn’t always just about the final decision, Setzer says. Even if a plaintiff loses, there can be gains in the awareness built along the way. For example, in 2017, Plan B, a nonprofit organisation working to counter climate change, filed a case against the UK’s secretary of state for business, energy and industrial strategy, aiming to get the UK to set more robust emission reduction goals. The case was dismissed, and then appealed, but the appeal was ultimately rejected.
Even though the courts appeared uninterested in hearing the nonprofit’s case, Bouwer notes that the effort came with a good deal of activism and, eventually, the UK announced efforts to reach net zero greenhouse gas emissions. (Though recently, critics say the UK government is defying its own targets by announcing new oil drilling in the North Sea.)
In a report by Bouwer and Setzer that outlines climate litigation and activism, the UK case is considered a “fail with benefits,” or one that aids climate action or helps create new legal pathways for future cases. “It did work, just not in the courts,” Bouwer says. “A win in the courts isn’t always the best win.”
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