Environmental Justice: Increase in Legal Actions

Sophie Ranson investigates the surge in environmental and climate litigation, and how court action can be used as a tool to achieve justice.

Photo by Tingey Injury Law Firm

The use of the courts in the fight against climate injustice is becoming increasingly commonplace. A 2023 report from the UN Environment Programme (UNEP) found that global climate litigation cases more than doubled in five years – rising from 884 in 2017 to 2,180 in 2022.

At the root of this is frustration over government inaction. "There is a distressingly growing gap between the level of greenhouse gas reductions the world needs to achieve in order to meet its temperature targets, and the actions that governments are actually taking to lower emissions,” said Michael Gerrard, Faculty Director at the Sabin Centre for Climate Change Law. “This inevitably will lead more people to resort to the courts.”

Now, governments are being held to account by groups and individuals through litigation. Climate-related cases occurred in 65 forums worldwide, across all judicial court levels, from regional to national to international, as well as tribunals and quasi-judicial bodies.

The report identified six main categories of claims:

• Cases relying on human rights enshrined in international law and national constitutions

• Challenges to domestic non-enforcement of climate-related laws and policies

• Litigants seeking to keep fossil fuels in the ground

• Advocates for greater climate disclosures and an end to greenwashing

• Claims addressing corporate liability and responsibility for climate harms

• Claims addressing failures to adapt to the impacts of climate change.

While the majority of cases originated in the US, 17% arose in non-Western countries. This includes Small Island Developing States (SIDS), which home some of the world’s most at-risk communities to the effects of climate change.

Did you know? The total number of cases connected to climate change more than doubled in the five years since 2017. - United Nations

New Voices Take Centre Stage in the Courtroom

Climate litigation has created a stage for previously marginalised groups, such as young people and women, to make their case.

In 2016, a seven-year-old girl from Karachi, Pakistan sued her country’s Supreme Court for violating her human rights for allowing the burning of coal for electricity generation. One year later, a nine-year-old named Ridhima from India filed a similar case.

“My government has failed to take steps to regulate and reduce greenhouse gas emissions, which are causing extreme climate conditions. This will impact both me and future generations,” Ridhima told The Independent.

The UNEP report identified a total of 34 cases that were instigated by, or on behalf of, people aged 25 and under. Yet engagement in climate change litigation remains intergenerational. In March 2023, thousands of senior women banded together to sue their home country of Switzerland before the European Court of Human Rights, demanding more radical climate action.

Companies, too, are feeling the heat, as courts order organisations to cough up for inadequate environmental action. In June 2023, a German court ruled that carmakers Volkswagen and Mercedes-Benz owe compensation for emissions-cheating devices.

Commenting on the landmark 2021 court decision that oil giant Royal Dutch Shell must slash its emissions by 45% by 2030, Paul Benson, a lawyer for NGO Client Earth said: "[It] shows the Paris agreement has teeth - not just against governments, but against companies."

"This resolution sends a message that nobody can take nature, clean air and water, or a stable climate away from us – at least, not without a fight" - Inger Andersen, UN Environment Programme Executive Director, on a UN decision to declare a healthy environment a human right

Fighting For a Healthy Environment

Roda Verheyen, a successful environmental lawyer from Germany, attributed the increased use of climate litigation to three factors: court timings, evidence and culture. The nature of climate change litigation means that some cases may wait years for resolution. “Courts take a long time to actually come to conclusions," she told the BBC, giving the plaintiff time to add to their body of evidence.

Simultaneously, an ever-growing body of research cements climate change as a man-made phenomenon. This makes lawyers better positioned to defend plaintiffs in court.

"And then obviously the narrative of what society perceives climate change to be has changed," she commented. "A lot of law is flexible to some degree, because you always have to interpret existing rules. And when [judges] do that, they take into account societal norms and how belief systems might have changed."

In 2022, for example, the UN declared a ‘healthy environment’ a human right. While not legally binding, the intergovernmental organisation hopes the move will have a trickle-down effect on national climate policies. It is also expected that the new UN policy will fuel rising climate action in the courtroom by environmental campaigners.

"This resolution sends a message that nobody can take nature, clean air and water, or a stable climate away from us – at least, not without a fight," according to Inger Andersen, Executive Director of UNEP.

But climate litigation isn’t a silver bullet for climate action, Benson warned. "It's just one of the levers [alongside activism, policy and science] that can be pulled to trigger necessary change."

---

Similar articles: UK Government Sued Over Climate Policy

Researched by Phoebe Agnew-Bass / Editor: Laura Pollard / Online Editor: Harry Hetherington

---

A not-for-profit paper, advocating for those topics that matter. Subscribe from £1.16 today.