Climate litigation is becoming one of the legal avenues, taken by the citizens, environmental groups, local governments (cities), shareholders and investors. The amount of climate change-related claims aiming to hold the governments accountable and the companies liable is on the rise worldwide.
According to one of the leading international law firms White and Case listed, climate litigation is driven by the following rationales: (i) compensation for the costs of adaptation to climate change; (ii) challenging climate change-related legislation and policies, or their application; (iii) preventing future emissions and contributions to climate change; (iv) requiring governments or regulators to take action to meet national or international commitments; (v) raising awareness and exerting pressure on corporate actors, regulators or investors. Courts are adjudicating disputes over action or inaction related to climate change mitigation and adaptation efforts.
In their submissions, the plaintiffs make use of: (i) the national commitments and NDCs in arguments about the adequacy or inadequacy of efforts by national governments to protect individual rights vis-à-vis climate change and its impacts (UNEP, 2017); (ii) the conventional legal strategies against the companies that provide false statements and financial reports about the impact and responses to increasing climate risks and costs of the climate regulations through an enforcement of the anti-fraud laws (SDWatch, 2018) or requirement to properly disclose climate risk, that is “a major or material risk” to business (Abrahams v Commonwealth Bank of Australia, 2017); (iii) provisions of constitutional law and human rights (Urgenda Foundation vs Kingdom of Netherlands, 2018)
Urgenda case represents an interesting development and sets a new benchmark in climate regulation, at least in the EU area. In 2018, Urgenda Foundation and over 900 citizens succeed in their rights based claim before The Hague Court of Appeal against the Dutch government (Urgenda Foundation v the Kingdom of Netherlands). The government must now reduce carbon dioxide emissions by a minimum of 25 percent compared to 1990 levels. This is the first decision by any court in the world ordering a state to limit its greenhouse gas emissions, where the constitution and human rights where invoked(previous cases where based on the statutory mandates). Although the Dutch government aims to appeal the ruling, the case became a new landmark ruling in climate litigation and climate action.
Another interesting development in climate litigation in the context of invoking national, federal or constitutional law occurred in case Juliana v. The United States (reviewed by the SDWatch earlier). Sabin Center for Climate Change Law (Columbia Law School) provided the following summary.
In February 2019 the government filed its opening brief in the appeal. The government argued that the plaintiffs lacked standing and that the lawsuit “is categorically not a case or controversy within the meaning of Article III” because it would require courts to “review and assess the entirety of Congress’s and the Executive Branch’s programs and regulatory decisions relating to climate change and then to pass on the comprehensive constitutionality of all of those policies, programs, and inaction in the aggregate.” The government also contended that the plaintiffs were required to proceed under the Administrative Procedure Act and that their constitutional claims were without merit. In addition, the government asserted that there was no federal public trust doctrine and that, even if there were, the Clean Air Act had displaced it. The government further argued that even if the federal public trust doctrine existed and had not been displaced, it would not cover the “climate system” or atmosphere. The government also filed a three-volume set of excerpts from the record. Juliana v. United States, No. 18-36082 (9th Cir. opening brief, record excerpts: vol. 1, vol. 2, vol. 3Feb. 1, 2019); No. 6:15-cv-01517 (D. Or. orderJan. 8, 2019).
In overall, the trends demonstrate the increasing pressure on: (i) companies to accurately factor in and disclose the business risks associated with climate change and the costs of the compliance with climate change regulations; (ii) investors and (iii) governments to walk their talk and commitments related to climate change mitigation and adaptation efforts and effective protection of the citizens from the impacts of climate change.
