Climate litigation

Question 1

What is climate litigation? And why is this used?

Answer 1

• in short: climate change related cases
  
  • cases before judicial or quasi-judicial bodies that involve material issues of climate science, policy, or law
  • climate aligned and non-climate-aligned cases
• increasingly used as an instrument to advance climate action
  
  • aimed at creating systematic change
  • strategic cases: the claimants’ motives for bringing the cases go beyond the concerns of the individual and aim to bring about some broader societal shift, using it as an instrument to enforce of enhance climate commitments made by governments

Question 2

What are the 3 waves of climate litigation?

Answer 2

• first wave (pre-2007): primarily consisted of administrative cases against government bodies aimed at raising environmental standards, occured mainly in the US and Australia
• second wave (2007-15): an expansion of climate litigation to european countries and a growing awareness of litigation as a gap-filler in the absence of ambitious int. action
• third wave (20015-present): further expansion and diversificaiton in terms of the type of claim, the volume of cases, the type of defendents, and the number of justifications in which cases are being brought

Question 3

What are the overall trends and developments in climate litigation?

Answer 3

• majority of cases in the global north, however increasing number of cases in the global south
• most cases brought against governments
• claimants typically corporations, NGOs and individuals
• the number of strategic cases continues to rise: cases where courts have found that national governments or legislatures, even companies, failed to respond adequately to climate change, different typse of strategies
• high success rate: 54% of cases in the CCLW database had outcomes favourable to climate change action

Question 4

What are the 3 phases in litigation/process in the courts?

Answer 4

• justiciability (is it something the court are gonna hear and decide on the merits?)
• merits (grounds of review, sources of legal rights and obligations?)
• remedies

Question 5

What are grounds used in cases brought to court against governments to enhance/enforce climate commitments?

Answer 5

• breach of int. law obligations
• human rights
• domestic climate legislation
• consitutional law
• administrative law
• duty of care

Question 6

What are grounds used in cases brought to court against private parties?

Answer 6

• corporate libility
• financial risks
• fiduciary duties (loyalty, confidentiality, disclose, care ++)
• corporate due diligence
• human rights

Question 7

What are the challenges of climate litigation?

Answer 7

• standing: who can bring a case to the court?
• separation or balance of powers: what can the court decide?
• causal link between the damage and the person accused of being responsible

Question 8

What are some examples of cases on climate litigation?

Answer 8

• constitutional
  
  • Neubauer v. Germany: provisions of the German climate protection law were incompatible with the Constitution due to its failure to (1) articulate emission reduction targets beyond 2030 and (2) sufficiently protect younger generations from being strapped with disproportionately severe restrictions on behavior in order to limit warming to well below two degrees Celsius
  • Greenpeace nordic v. minestry of petroleum and energy/Norway: legality of issuing licences to drill for oil in the barents sea, interpretation of art. 112 of the constitution, stating it does give some substnative rights but only to the realm of norway, not to others, been taken up to the ECtHR to view human rights aspects (art. 2, 8, 13 and 14)
• private sector and financial actors increasinly involved
  
  • Milieudefensie et al v. Royal dutch shell plc: a company had a duty to reduce emissions, owed to by the Dutch people
• human rights
  
  • Urgenda Foundation v. State of the Netherlands: first in the world in which citizens established that their government has a legal duty to prevent dangerous climate change, ECHR art. 2 + 8 (the court determined that the Dutch government has an obligation under the ECHR to protect these rights from the real threat of climate change)
• personal liability?
  
  • Clientearth v. Shell’s board of directors
• contantly new types of cases and arguments
  
  • investment decisions - fiduciary duties: Ewan McGaughey et al. v. Universities superannuation scheme limited
  • greenwashing/climate washing: Greenpeace france and others. v. Totatlenergies SE