Climate Lawsuits Are On The Rise. This Is What They're Based On.
Litigation is increasingly being used to compel countries, municipalities, and companies to reduce their carbon emissions or achieve net zero, says a new report by Columbia University’s Sabin Center for Climate Change Law and the UN Environment Programme.
According to the report, the number of climate cases has more than doubled in the last five years, and litigation is expected to continually increase. The report says that as of the start of this year, there are 2,180 climate change cases underway around the world, with 1,522 in the United States alone. There are cases in 55 countries, with many in Britain, Europe, and Australia, along with a growing number in Asia and the Global South. Apart from the report, the director of global legal strategy at the Foundation for International Law for the Environment in the Netherlands said that about 50 percent of cases are being won.
“Litigation is a critical tool that’s available to a wide range of actors, including governments at all levels, nongovernmental organizations and community groups, individuals and the private sector to seek to advance climate action,” said Michael Burger, executive director of the Sabin Center.
Many U.S. cases so far have been thrown out of court, however, or are being stalled by procedural arguments or jurisdictional battles. Climate cases have often fared better in other countries because of legally binding human rights commitments or constitutions with enshrined environmental rights.
What are climate lawsuits based on?
The report describes six major categories of climate lawsuits.
Climate rights. These cases claim that fundamental human rights to life, health, food and water protected by international laws or national constitutions have been violated when climate action is not taken.
For example, in September 2022 in a case filed by eight Indigenous residents of Australia, the UN Human Rights Commission determined that the Australian government failed to protect the lives and human rights of Indigenous Torres Strait Islanders from climate disaster because its climate policy was inadequate.
The decision ordered Australia to implement significant climate adaptation measures.
Domestic enforcement of international climate change commitments. Countries and their agencies that make climate commitments via legislation, regulations or policy statements can be challenged on the efficacy of the commitments or if the commitments don’t translate into enough action to secure human rights, the right to a healthy environment, the rights of nature or a combination of these.
In 2021, German young people won their suit Neubauer et al v. Germany, when parts of the Federal Climate Protection Act were struck down because they violated human rights. The government was ordered to implement climate efforts in line with the Paris Agreement. The Federal Constitutional Court said, “one generation must not be allowed to consume large parts of the CO2 budget under a comparatively mild reduction burden if this would at the same time leave future generations with a radical reduction burden . . . and expose their lives to serious losses of freedom.”
Keeping fossil fuels and carbon sinks in the ground. Some cases challenge fossil fuel projects and the permitting processes that fail to take climate implications into consideration. In 2021, law students in New Zealand sued the Minister for Energy and Resources over its decision to grant permits for oil and gas exploration. They claimed the decision was inconsistent with New Zealand’s Zero Carbon Act and its commitments under the Paris Agreement. The case is pending.
Corporate liability and responsibility. These lawsuits attempt to hold fossil fuel producers responsible for climate change impacts because the fossil fuels they produce are a public nuisance or because the companies have failed to warn the public about the potential harms their products cause.
Minnesota is suing the American Petroleum Institute and several fossil fuel companies, claiming they knew about the harmful impacts of fossil fuels for decades, but downplayed the risks. For instance, a 1968 paper commissioned by the American Petroleum Institute cautioned that if the burning of fossil fuels continued, “There seems to be no doubt that the potential damage to our environment could be severe.” Instead of warning the public, the fossil fuel companies engaged in a strategic “multi-pronged campaign of deception” over 30 years to protect their profits. The case is headed to state court.
Climate disclosures and greenwashing. Many cases are challenging misleading corporate statements about climate change or citing greenwashing. For instance environmental groups in the Netherlands are suing KLM for its “Fly Responsibly” ad campaign that claims its carbon offsets and alternative fuels will make flying sustainable. They accuse KLM of using misleading advertising to make the company seem more environmentally friendly than it really is. The case is pending.
Failure to adapt and impacts of adaptation. Governments and companies are being sued for ignoring climate risks and not taking steps to prepare for climate change impacts. Some cases seek compensation for adaptation strategies that had unintended harmful impacts. In 2021, the Conservation Law Foundation filed citizen suits against Shell Oil, claiming it had not properly adapted its bulk storage and fuel terminals in New Haven, Conn., to withstand climate change impacts. The case is moving ahead to trial.
Other legal strategies
In the United States, most cases are brought under existing environmental, natural resources, energy, and land-use laws. One example is the National Environmental Policy Act, which says that federal agencies must consider environmental effects in their planning and decision making. The Clean Air Act, which regulates air pollution, is also the basis for some cases since Massachusetts vs EPA, the 2007 U.S. Supreme Court decision establishing that the Environmental Protection Agency has authority under the act to regulate greenhouse gas emissions. The Endangered Species Act is cited in some suits because in 1978 the Supreme Court ruled that federal agencies must ensure that their actions do not harm any endangered species.
“Cases [relying on these laws] are seeking to adjust existing law to address the climate crisis,” said Burger. The loss of ecosystem services may also be the basis for lawsuits, as the loss of biodiversity can disrupt businesses and value chains through changes in the availability of or access to resources.
Most companies do not consider the cascading risks climate change can trigger—political instability, social unrest, food scarcity, mass migration and deteriorating human rights—in their risk assessments. This can leave their boards susceptible to legal actions for painting too rosy a financial picture, or liable for damages that might have been avoided had the full risks been considered.
Earlier this year, the environmental charity ClientEarth, a Shell shareholder, brought a case against Shell’s board of directors, claiming that the board was not adequately managing the company’s multiple climate risks, thus jeopardizing the company’s future. It was the first significant lawsuit brought by a shareholder against a board for failing to prepare for the risks of climate change. However, the suit was dismissed; London’s high court found that Shell’s board needs the ability to make decisions based on competing considerations.
Climate activists are also going after companies whose products are contributing to climate change, but make claims to the contrary. In 2018, a California resident brought a class action suit against Keurig, maker of plastic coffee pods because the company claimed its pods are recyclable, though in many places they are not.
Plastic waste is a significant contributor to climate change because it releases methane as it degrades. A federal judge in California approved a $10 million settlement in 2022 and required the company to qualify its recycling claims.
The nonprofit Earth Island Institute brought a suit against Coca Cola in 2021 because of its claims that it is a “sustainable and environmentally friendly company” even though it is one of the world’s largest generators of plastic pollution. The case was dismissed because Coca Cola’s statements about its future goals were found to be “aspirational,” and therefore didn’t violate consumer protection laws.
Some food companies have become targets as well. Oatly, the Swedish company that produces oat milk, was sued for greenwashing because its ads overstated how climate friendly the product is. In 2022, the UK Advertising Standards Authority banned Oatly’s ads. Indigenous groups from Brazil and Colombia brought suit in France against the French supermarket chain Casino because it sells beef that contributes to deforestation in the Amazon. The lawsuit is based on a French “duty of vigilance” law that says companies must identify and prevent impacts on human rights and the environment that stem from their supply chains. The case is pending.
Financial institutions are also facing lawsuits from consumers who claim their investments are causing environmental harm or are greenwashed. A group headed by Oxfam France and Friends of the Earth France have sued BNP Paribas, purportedly the largest financier of fossil fuel expansion in Europe, claiming its huge investments violate the duty of vigilance law. The case is pending.
The decisions in some cases have set precedents for climate litigation in the United States and around the globe.
In Massachusetts v. EPA, the U.S. Supreme Court asserted EPA’s authority under the Clean Air Act to regulate greenhouse gas emissions. “The court in that case also determined that the states have standing to sue based on existing climate harms,” said Burger. “It was the first case in which climate science factored in a major way in terms of establishing, at least for the purposes of standing, that climate harms are real. They are actual and imminent. And they are concrete and particularized and experienced by individual states, sufficient to give them standing.”
The Urgenda Foundation, a Dutch environmental group, and Dutch citizens sued their government because it was not doing enough to combat climate change. “The Dutch courts determined that under Dutch law, the national government’s decision to roll back its climate commitments and decrease its ambitions was a violation of the government’s duty of care under Dutch law to its own citizens,” said Burger. In 2019, the Dutch Supreme Court ordered the government to reduce greenhouse gas emissions to at least 25 percent below 1990 levels by 2020. The Netherlands achieved this reduction on schedule. The case was the first to establish that a government has a legal duty to prevent the dangerous impacts of climate change. There have been many other cases filed around the world attempting to follow on Urgenda’s success.
Milieudefensie v. Royal Dutch Shell, brought by Dutch Friends of the Earth, is one of the most high-profile climate lawsuits based on human rights and international standards for climate change. Building on the Urgenda case, it was the first major case in which a company was ordered to comply with the Paris Agreement. In May 2021, the District Court of The Hague found that Shell’s greenhouse gas emissions violate its duty of care and human rights obligations. To comply with the Paris Agreement, Shell was ordered to reduce its carbon dioxide emissions by at least 45 percent by 2030, compared with 2019. The company has appealed the decision; the Court of Appeals is expected to reach a verdict in 2024.
“There have also been major decisions in Pakistan, and in Colombia affirming that national governments have constitutional responsibilities, in the case of Pakistan to actually implement its climate commitments,“ said Burger. “It had a climate plan in place, and the court held that the government has an obligation to actually implement the plan.”
Pending cases to watch
Some cases, if successful, could set important new precedents upon which future climate litigation might rely.
In 2023,105 United Nations member countries led by Vanuatu, a vulnerable Pacific Island nation, asked the International Court of Justice to issue an opinion that would clarify the rights and responsibilities of states with regard to climate action. They are asking the court to spell out the legal obligations of states to protect their people from climate impacts, and if there are legal consequences for failing to meet those obligations.
While the opinion will be nonbinding, it would clarify what obligations countries have under international law to tackle climate change.
In France, six duty of vigilance cases have been brought against a variety of companies: including McDonald’s, BNP Paribas, Yves Rocher and Danone. The cases will help determine the vigilance standards that corporations must meet, and could have global implications. France passed its duty of vigilance law in 2017, requiring large corporations to identify and manage their environmental, human rights and health risks. Germany and the Netherlands followed suit. In 2022, ClientEarth, Surfrider Europes and Zero Waste France sued Danone, claiming its vigilance plan is not doing enough to reduce its plastic pollution. A decision in favor of the plaintiffs could enshrine corporate responsibility in the law. The case is pending.
The Sabin/UN report says that almost two dozen states and cities in the United States have filed suit against fossil fuel companies for damages as they realize that climate impacts are costing them money. The trend began in 2017 when California cities and counties sued the companies using state tort laws, designed to protect consumers from false advertising. In 2018, Boulder and San Miguel County in Colorado sued Suncor Energy and ExxonMobil, claiming that they produced fossil fuels knowing their products would lead to heat waves, wildfires, droughts and floods. The city and county of Honolulu, Hawaii, also sued multiple fossil fuel companies in 2020 because of decades of disinformation.
None of these consumer protection cases has gone to trial because they have been held up by companies’ wrangling about whether the cases should be litigated in federal or state court. They argue that the cases are not really about deceptive advertising, which state laws address, but about climate change. They contend an issue of this scale should be tried in federal courts (which are friendlier to corporations). One law professor at the University of Hawaii posited another rationale for their claim: “They are petrified of state courts, who are closer to the problem, closer to the issues, and absolutely terrified of going in front of juries of real people.”
“There is no other instance where this particular issue has been so important,” said Burger. In April, the U.S. Supreme Court declined to hear the Boulder case, which means it will move to trial in a Colorado state court. Whatever the decision, it could affect all the other consumer protection cases. A final verdict is likely still years away.
In 2020, 16 young people filed a lawsuit claiming that Montana is violating their constitutional rights to a healthy environment, safety, health and happiness by supporting an energy system dependent on fossil fuels. In August, a state judge issued a landmark ruling in favor of the young Montana climate activists. The victory could influence other cases. In addition to similar lawsuits filed by young people in Utah, Hawaii and Virginia, climate lawsuits are being brought by young people around the world. Among them is a class action case involving 600 young people including Greta Thunberg, who filed against Sweden for failing to take sufficient action against climate change.
The future of climate litigation
Attribution science, which investigates the extent to which climate change influences extreme weather, can determine with increasing accuracy if climate change made some events more severe and more likely to occur, and if so, by how much. This will increase the ability to determine the responsibility of states and other actors, said Burger.
“Climate science has always been integral to climate litigation,” he said. “Now that certain aspects of attribution science are continuing to advance and certainty levels are increasing around various connections, different causes of action are being brought to court.”
The Sabin/UN report projects that as responsibility for climate impacts becomes clearer, fossil fuel companies will continue to file “backlash” cases to protect their assets against climate activists.
While the kinds of climate cases already described are expected to continue to increase, the report also predicts that the future will bring cases dealing with migrants and asylum seekers trying to relocate from their home countries or regions due to climate change. And because climate impacts disproportionately affect Indigenous communities around the world, they will likely file suits seeking changes in climate policies, or damages for climate harm.
“I often say that people go to court when other systems fail,” said Burger. “It’s not the best place to reach optimal policy results. But it is a critical and necessary lever to address inequities in power and to force action where those who are responsible for taking action on climate change fail to do so.”