From niche to mainstream: the road ahead for climate litigation
Image Source: Governance Institute of Australia
Climate change has become a household term. As the climate crisis grows increasingly pressing, climate litigation has proven instrumental as a driver for change. On January 26, 2021, the United Nations Environment Programme (UNEP), in cooperation with the Sabin Center for Climate Change Law at Columbia University, launched their Global Climate Litigation Report: 2020 Status Review (GCLR), providing the international climate community with an overview of the state of climate litigation. This blog post highlights the Report’s key takeaways, and adds to the debate by discussing other relevant developments and trends that I anticipate will gain traction in the near to mid-term future.
GCLR key takeaways
The 2017 edition of the Report accounted for 884 cases brought in 24 countries. As of July 1, 2020, the number of cases had nearly doubled, with at least 1,550 climate change cases filed in 38 countries, a development the Report rightly hails as a growing tidal wave of climate cases that is driving much-needed change. True to UNEP’s institutional mission of promoting the environmental rule of law, the Report highlights its fundamental importance – as the relationship between poor management of natural resources and zoonotic diseases becomes increasingly evident – to prevent future pandemics.
The Report identifies five types of cases, namely those regarding consumer and investor misrepresentation claims; pre- and post-disaster claims; implementation of courts’ orders; law and science of climate attribution; and claims before international adjudicatory bodies. In a comprehensive effort to catalogue cases, the Report finds that climate litigation often falls into one or more of six categories: climate rights; domestic enforcement; keeping fossil fuels in the ground; corporate liability and responsibility; failure to adapt and the impacts of adaptation; and climate disclosures and greenwashing. The Report states that governments are the most frequent defendants in climate change cases, and that cases against private parties as defendants are premised on a wide array of legal theories, categorized as follows: statutory or policy causes of action; constitutional and human rights arguments; common law/tort theories; and hybrid duty of care/public trust theories combining elements of common law, constitutional rights, and statutory provisions.
Other emerging trends
One fast-growing trend, that is highly likely to generate a new wave of climate litigation, is the role of the finance industry in climate change. Indeed, there is increasing awareness that, without restricting the flow of cash to high-emitting activities, there is little chance of meeting the goals of the Paris Agreement. These developments are not limited to private financial institutions. Development banks have been facing heightened scrutiny over the climate impacts of their activities. At a summit held in November 2020, the world’s public development banks pledged to align their financial firepower with the Paris Agreement, but avoided a firm commitment to phase out fossil fuel financing. As a source of funding for many large infrastructure projects, including in the energy sector, public development institutions are key to efforts to steer finance away from fossil fuels and into low-carbon projects. Together, such institutions invest around $2.3 trillion each year - equivalent to 10% of all global investments from public and private sources.
Another trend that shall impact the future of climate litigation is Environmental, Social, and Governance (ESG). Although it is not a new concept, ESG became something of a buzzword in the post-pandemic scenario, and its implications extend well beyond the matters of corporate climate greenwashing mentioned in the Report. Indeed, in the wake of the increased centrality of ESG, several developments have the potential of triggering litigation. Shareholder activism is likely to demand transparent disclosures, stress testing for climate resilience, low-carbon transitioning, and responsible divestment. As a corollary of this trend, we may witness a new wave of cases premised on fiduciary duty theories. Also, beyond traditional consumer misinformation claims, stakeholder capitalism shall spotlight matters of climate justice, such as climate racism and climate impacts on social and gender inequality, that may become increasingly prominent arguments in climate cases, such as those related to exacerbation of health issues by climate factors and their disproportionate impact on vulnerable communities. As I envision it, this process encompasses two complementary avenues that can be explored by litigators. On the one hand, ESG reporting processes have been progressively incorporating human rights obligations, particularly with regard to its ‘S’ portion. On the other, climate change is ubiquitous and transversal to all three letters of the acronym. As ESG obligations progressively become mandatory and more stringent across jurisdictions - a trend that seems inexorable -, climate litigators shall be able to deploy arguments challenging concrete, objective ESG obligations - such as those based on fiduciary duty, supply chain liability, and disclosure obligations - that both reinforce and confer much-needed granularity to catch-all human rights concepts. Rights-based approaches provide a robust framework in which to argue climate cases, while ESG-based litigation can unfold in terms of challenging non-compliance with specific obligations, helping overcome procedural hurdles typically found in climate cases, such as those related to attribution, standing, and justiciability.
Another relevant development to be closely tracked by climate litigators and policymakers is the strengthening of transnational climate litigation. The possibilities are numerous: climate litigation challenging the practice of outsourcing emissions, that is, entities that are cleaner in their countries of origin but concentrate their emissions in other countries (the 2017 French devoir de vigilance law, for instance, has a relevant component of extraterritoriality, ordering the French-based transnational companies to which it applies to disclose all of their domestic and overseas emissions); climate litigation challenging IPCC Scope 3 emissions or global value chains cutting across several jurisdictions; or litigation under trade agreements, whose implementation increasingly hinge on stringent environmental and climate provisions.
In light of the absence of a specialized international adjudicatory body with universal jurisdiction over environmental or climate matters, domestic courts shall continue to play a fundamental role. Climate Law is a particularly fertile ground for dialogue between domestic and international adjudicatory bodies, as well as for circulation of legal models. In this sense, the Report’s assertion that litigants are increasingly bringing claims before international adjudicatory bodies that, regardless of their lack of enforcement authority, may shift or inform judicial understanding, is particularly relevant. Climate disputes increasingly unfold outside the courtroom, e.g. before the OECD, securities regulators, advertisement regulators, environmental licensing authorities, and other governmental agencies. As climate litigation expands, so shall the array of venues before which climate claims are brought.
It is also worth mentioning that although, to date, they have appeared mostly as defendants, it is likely that we shall see more corporations as plaintiffs in climate cases. Indeed, I anticipate that, reputational risks aside, companies shall increasingly take the offensive and initiate litigation challenging ESG and climate obligations. Investor-state dispute settlement (ISDS) procedures, as highlighted in the Report, are a development to watch closely. ISDS is a system through which investors can sue countries for discriminatory practices, and has been criticized – particularly the procedures related to the Energy Charter Treaty - as capable of hindering ambitious climate action. Another harbinger of this trend is the recent RenovaBio case, a claim filed by fossil fuel distributors in Brazil aiming at lowering annual mandatory decarbonization targets.
Finally, science will play an increasingly relevant role in climate litigation. The Report anticipates an increase in cases dealing with attribution science as a means to assign responsibility for contributions to climate change. To do so effectively, I believe that a couple of initiatives are in order. Firstly, is important to tailor scientific findings by jurisdiction, in order to account for different greenhouse gas emissions profiles. Brazil, for instance, is highly biodiverse, home to the largest extension of Amazon rainforest, and the world’s sixth-largest greenhouse gas emitter. Its emissions are largely driven by land use and deforestation, and the country seen a significant increase in climate litigation, both in terms of numbers and legal strategies, in the past year. Secondly, it is strategically sound to decode attribution science in terms of legal concepts that are particular to each jurisdiction, providing a working legal framework that local courts are already familiar with. Thirdly, it is important to bring economists into the fold, in order to quantify the adverse economic impacts of climate inaction. Rather encouraging examples of courts showing deference to climate science include the Dutch court’s adoption of IPCC scenarios as a judicial standard in the Urgenda case, and the Climate Fund Case – the first climate case to reach the Brazilian Supreme Court, in June 2020 –, in which a public hearing was ordered ex officio by the court, in recognition that the subject requires interdisciplinary knowledge regarding scientific, socio-environmental, and economic aspects.
These are major developments for climate litigation. The substantial body of knowledge amassed in recent years, surveyed by the Report, will be instrumental to deal with the upcoming wave of cases. Beyond procedure, climate litigation will increasingly require in-depth knowledge of sophisticated scientific, economic, and legal material concepts, as well as a great deal of transversal and strategic thinking.
Attorney qualified in New York and Brazil
PhD, International Law (UFRGS); LLM, Environmental Law & Policy (Stanford)
Postdoctoral Laureate, Make Our Planet Great Again Program (Presidency of France)