Recent high-profile legal cases have marked a sea change in climate litigation, showing that the courts are becoming an increasingly effective venue for driving international action on climate change.
In its annual snapshot of global climate litigation, the London School of Economics examined a spate of climate change cases occurring between May 2019 to May 2020 in which courts around the world ruled in favour of climate action. Around the beginning of the millennium, this type of lawsuit was rare, with only a handful of cases filed worldwide. But over the 20 years since, 1,600 lawsuits were filed, with 1,200 cases recorded in the United States alone.
Report co-authors Joana Setzer and Rebecca Byrnes—both analysts at UK’s Grantham Research Institute—say this growing catalogue of cases has been accompanied by major changes in legal strategy, with litigators making increasingly bold appeals to human rights and constitutional law. In one high-profile case tried last December, the Dutch Supreme Court upheld the verdict in the 2015 Urgenda Foundation v The State of the Netherlands case, insisting that the nation’s government must move faster to combat carbon emissions.
The 2019 verdict reinforced one of the main lessons that litigators drew from the original Urgenda case—that a human rights argument can yield a successful result in a climate case.
The momentum of the Dutch Supreme Court decision has carried on into the current year. In January 2020, one month after the Netherlands verdict, a Swiss judge acquitted a dozen young climate protestors of trespassing charges—a ruling that was greeted with cheers and a standing ovation in the courtroom.
That case dated back to 2018, when the protestors staged a mock tennis match in a Credit Suisse branch to draw attention to the bank’s fossil fuel investments. The stunt was meant to call out Swiss tennis star Roger Federer for his sponsorship deal with the bank, and to ask that he withdraw from his contract as an act of solidarity.
While they acknowledged the defendants had committed a legal infraction by occupying the Credit Suisse branch, the defence team said the protestors’ actions were justified by the “imminent danger” of the climate crisis. The court accepted the argument, ruling that the protestors’ conduct was a “necessary and proportional” response to the immense scale of the crisis at hand.
“It was an exceptional ruling,” said defence lawyer Aline Bonard, especially after her clients openly admitted to trespassing. After the success of the strategy, she added, “there is bound to be a new wave of legal proceedings using a similar line of argument.”
Now, the LSE report leaves little doubt that Bonard’s prediction is coming true, as novel forms of climate litigation arise worldwide.
In one of the most ambitious cases documented in the report, lawyers in Colombia have begun to build a new model of jurisprudence around the concept of the “rights of nature”. It mirrors the notorious Santa Clara County v. Southern Pacific Railroad decision—in which U.S. courts granted corporations the same legal rights as individuals—by arguing that the Colombian Amazon should be enfranchised as a rights-bearing subject.
Though the “rights of nature” argument is particularly ambitious, say Setzer and Byrnes, it is still representative of trends at large, as governments and NGOs become increasingly inclined to view law courts as “collaborators in the regulatory process”.
In China, for example, courts routinely support government-led efforts to mitigate climate change. In South Africa, courts not only enforce existing legislation but also help establish new climate goals by mandating that existing legislation takes new considerations into account.
In light of these recent milestones, Setzer and Byrnes conclude that—when used in conjunction with other methods—climate litigation shows considerable promise as a regulatory tool. Notably, the success rate of climate litigators is high, with positive climate policy outcomes identified in 58% of non-U.S. cases.
The sheer volume of climate cases itself also seems to be exerting useful pressure on courts and regulatory bodies. The LSE report shows that even when climate lawsuits are unsuccessful, they can deliver positive long-term impacts by laying the foundations for future legal narratives, or by eliciting a strong dissenting decision from the bench.
Yet despite recounting many positive developments in the field of climate litigation, Setzer and Byrnes also sound a note of caution: any forecasts on the future of climate litigation need to take into account that many of the legal successes of 2019 were secured in a social and political context defined by the youth-led climate protests that swept the globe that year.
Today, in the wake of COVID-19, the political landscape looks rather different, with governments and media outlets scrambling to address the public health crisis and its economic fallout first and foremost. All the same, Setzer and Byrnes suggest last year’s remarkable run of legal climate wins shows that litigation can play an important role in shaping COVID-19 recovery strategies by acting “as a check on decision-making in the post-COVID-19 recovery.”
Over the months ahead, they conclude, climate litigators and activists will likely refocus their arguments and renew their efforts. “Understanding the impacts of climate litigation will help to inform how it can be best used to hold governments and companies to account about their efforts to ensure a safer and more sustainable world after the COVID-19 pandemic,” they write.
