INTRODUCTION
As of today, the global temperature has reached 1.1 degrees Celsius. This may not sound too bad until we investigate the widespread disruption. Various UN commissions have predicted the increase in global warming and its escalated threats to the ecosystem. UNEP has predicted that the global temperature will hit 2.8 degrees Celsius by the end of the century, which is better than the previous prediction of 4 degrees Celsius. Nonetheless, it remains far from the Paris Agreement target.
As society gets more familiar with the threats of global warming, climate litigation provides society with a means of making their concerns about the inactiveness of the government and corporate groups. IPCC has recognised the influence of climate litigation on the outcome and ambition for the first time. It has also been identified as an important means of influencing climate policies outside the formal UNFCC process.
This blog will delve deeper into the facets of climate litigation and its impact on corporate behaviour through analysis of judgements and pending cases with huge potential.
But before that, we should understand what it is.
Following the similar nature of any concept, the climate litigation concept cannot be narrowed down to one single definition. However, for the sake of understanding this crucial concept it is essential to look out for some sort of definition. For instance, the Sabin Centre has defined these types of litigation as “cases that raise material issues of law or fact relating to climate change mitigation, adaption or the science of climate change.”
TRACING CLIMATE LITIGATION THROUGH HISTORY
Like most concepts around, the first climate litigation was too filed in the USA in 1986, which contested the Federal Agency’s decision not to evaluate the impact of its fuel economy standards on global warming. This led to the inception of the first wave in the 1980s, which witnessed challenges against administrative processes in Australia and the USA. The second wave began in 2007 with increased legislation to reduce greenhouse emissions after the negotiations of the Kyoto Protocol. In 2015, people started to seek to hold government and private corporations responsible for their inaction on climate change.
As climate change was inherently considered the government’s responsibility, the initial cases were directed towards the government’s alleged failures to take appropriate action to curb the harmful effects of climate change. In a landmark case, the Supreme Court of the Netherlands found in 2019 that the Dutch government had obligations to reduce emissions and also set a 25% target by 2020 as its responsibility. Similarly, the Paris administrative tribunal found the French government in breach of its obligations to fight climate change and ordered it to take the necessary steps by 2022 to compensate for the harm caused by its failures to reach the 2015 and 2018 targets.
However, governments cannot be regarded as the sole actors in this entire play. There are also actors, who are more responsible for the existing and future emissions and are working without any restrictions or penalty for the harm already done. These actors are the high-emission corporate groups like fossil fuel companies, aviation, steel and pharmacy companies. The Hague District Court gave the first such ruling in 2021 in Milieudefensie vs Royal Dutch Shell PLC, where a private company was ordered to reduce its worldwide greenhouse gas emission by 45% by 2030 in line with UN Paris Agreement targets.
As of 31 December 2022, the total number of climate change cases has reached its all-time with 2,180 cases. Most of the cases have been filed in the USA, followed by Australia, the UK and Germany. The representation of Africa is the lowest, followed by Asia. In India, there are only 11 such cases, which shows hope but is not sufficient considering the consequences faced by India today.
KEY LEGAL APPROACHES
The evolution of climate litigation can also be understood from the perspective of the reasoning behind bringing such cases.
Most cases brought in the domestic forums have argued that climate rights emerge from the existing constitutional and international law under fundamental rights. This can be observed in a landmark judgement delivered by UNHRC in Torres Strait Islanders Petition in 2022, where it found that the Australian government had violated the human rights obligations towards the Indigenous Torres Strait Islanders through inaction towards climate change. This was the first time, that a UN body found a country violating international human rights law through inadequate climate policy. Similarly, the International Criminal Court was requested to investigate former Brazilian President Jair Bolsonaro for his contribution to crimes against humanity resulting from deforestation in the Amazon Rainforest.
The Milieudefensie case worked on the same principle of human rights violation. However, a judgement by New Zealand took a different approach to this. In Smith v. Fonterra Co-operative Group Ltd. (2022), the court ruled that the companies had no duty of care towards the plaintiffs as the tort law would not be an appropriate means for dealing with climate change and hence, granted leave to appeal to the New Zealand Supreme Court.
An interesting addition in climate change litigation was brought by the United Kingdom in the Vedanta case, where the Supreme Court of the UK allowed Zambian villagers to sue Vedanta Resources Ltd. And its Zambian subsidiary, Konkola Copper Mines plc.., ruling that the parent company should not only publish group-wide policies but also implement them. The court also created an extended corporate liability on the parent company for its subsidiary’s actions or inactions in the Okpabi case.
Several cases have been filed for pressuring the companies to publish disclosures about their activities affecting the climate. This, however, leads a company into a dilemma. If a company publishes its real impact on climate, then it may risk losing its investors. However, if it does not then, it too may raise speculations and possible loss of investors. To come out of this lose-lose situation companies have taken a middle path of ‘greenwashing’.
Greenwashing is a process of either over-emphasising the environmental benefits or underplaying the risks of climate change risks by a company to avoid losing its investors. Many climate litigations have challenged climate disclosures by various companies to be greenwashed. For instance, in the Milieudefensie case, the Hague Court found that the Shell company had falsely claimed to be aligned with the Paris Agreement target. However, this is only one of many challenges faced by climate litigators.
CHALLENGES AND OVERCOMING
The exponential increment in climate litigations both numbers and scope, leads to the emergence of some hurdles, greenwashing being the prime example of it. Other challenges include jurisdictional hurdles, backlash cases, investor-state dispute settlements, just transition, and criminal charges against climate activists. Let’s understand what these challenges are and their possible recourses.
Climate change consequences are not something thatis limited to a company, region or country. And neither should be the purview of litigations. Therefore, it can be safely assumed that extraterritorial jurisdiction will likely become the most used avenue for climate litigations.
With the rise of pro-regulatory climate litigations, anti-regulations or backlash cases are also on the rise, which aims to delay or dismantle any regulation that promotes actions towards climate change. This requires good judicial skills to distinguish between the intentions of the petitioners.
Many companies use the classic defence mechanism of charging criminal charges on the over-enthusiastic climate activists, mostly for trespassing on the properties of companies.
These challenges no matter how big they are would not be able to bring the downfall of climate litigations.
CONCLUSION
Climate litigation has become a vital tool in addressing the climate crisis, making governments and corporations liable alike. Landmark rulings highlight its role in enforcing emissions reductions and influencing policy changes. While challenges like greenwashing, jurisdictional barriers, and backlash lawsuits persist, these cases underscore the growing recognition of climate change as a legal and ethical issue.
Beyond legal victories, climate litigation empowers communities, amplifies the voices of vulnerable populations, and pressures corporations to adopt sustainable practices. However, its success depends on sustained public engagement and international collaboration to overcome resistance from powerful entities.
As the climate crisis intensifies, the importance of these legal battles will only grow. Climate litigation is not just a mechanism for accountability but a beacon of hope for a future where justice and sustainability can go hand in hand.
Author(s) Name: Vaiddhriti Narayan Singh (Hidayatullah National Law University, Raipur)
