Author :
L. Delta Merner
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What’s New in Climate Lawsuits?

   

 The Equation Read More 

The pace of climate litigation is accelerating; it’s a challenge to keep up with all the new rulings and announcements. Luckily, researchers at the Grantham Research Institute at the London School of Economics publish an annual report that tracks climate litigation, highlighting the trends in litigation efforts and the expanding role of courts in climate action. Below I share some of the trends over the past year and provide a quick update on key case decisions that have come in over just the last month.

Number and reach: The Global Trends report notes that 2023 saw the filing of over 230 new climate cases—the global number of cases now reaches over 2,600. As you can see in the graph from the report posted below, while we continue to see new cases, the overall growth rate of new filings may be slowing. This trend suggests a strategic consolidation, with efforts concentrated on cases anticipated to have high impacts.

It’s not just the number of cases that is important. The United States has historically and continues to dominate in number of filed cases, but climate litigation is spreading to more countries. This past year saw new cases filed in Panama and Portugal for the first time. To date, there are cases in 55 countries.

Greenwashing: This report outlines key trends including the rise in greenwashing cases, which challenge false claims by companies and governments about their climate action plans. More than 140 such cases have been filed, and to date about 70% of decided cases have brought accountability in support of the climate (55 of the 77 cases that have reached a decision). It’s so energizing to hear about these wins that are pushing back on egregious climate and green-washing of the past and present.

Polluter damages: This year we also saw an increase in cases that seek monetary damages from companies for their contributions to climate change, known as “polluter pays” cases. These cases are particularly prominent in the United States, where dozens of local governments are increasingly taking legal action against major fossil fuel companies. For instance, California filed a groundbreaking lawsuit against five major oil companies, accusing them of misleading the public about the risks of fossil fuels and demanding accountability for their role in climate change. Oil and gas industry actors have continually challenged these cases in the US, slowing down progress, but keeping us busy as we track numerous cases.

International decisions: International climate litigation has also gained prominence, with major international courts and tribunals being asked to rule on climate-related issues. Although only 5% of climate cases have been brought before international courts, these cases have substantial potential to influence domestic proceedings. This year we saw an important opinion by the International Tribunal for the Law of the Sea, which recognized global warming emissions as a marine pollutant and calls for  states to take ‘all necessary measures to prevent, reduce, and control marine pollution from anthropogenic GHG emissions’. My colleague Dr. Carly Phillips testified before the Inter-American Court of Human Rights to inform their pending climate advisory opinion.

Anti-climate cases: While climate litigation is on the rise, there is also a concerning trend of anti-climate cases aimed at obstructing or delaying climate action. These cases, often referred to as ESG (Environmental, Social, Governance) backlash cases and SLAPP (Strategic Litigation Against Public Participation) suits, are strategically used by companies and interest groups to challenge climate policies and intimidate activists. Earlier this year ExxonMobil actually sued its own investor groups to block their repeated shareholder proposals for faster climate action. These legal actions are not necessarily against climate action itself but often target the manner and implementation of climate policies, thereby complicating and slowing down progress towards climate goals.

In the last month alone, we’ve seen important rulings, requests, settlements, and a worrying vote. Here is a quick review:

Colorado court advances case, yet again: ExxonMobil and subsidiaries of Suncor Energy lost their bid to dismiss a lawsuit brought by the city and Country of Boulder, Colorado. The ruling, delivered by Boulder County District Court Judge Robert Gunning, rejected the companies’ arguments that Colorado’s courts lacked jurisdiction and that federal law preempted the state-law claims. This decision allows Boulder to seek damages under Colorado tort law for the harms caused by the energy companies’ actions, such as devastating wildfires. This case was originally brought in 2018, and the people of Boulder are inching closer to their day in court.

Oil companies seek to overturn Hawai’i Supreme Court ruling: In late 2023, the Hawai’i Supreme Court ruled that a 2020 lawsuit brought by Honolulu against major oil and gas companies was allowed to proceed, rejecting the oil companies’ arguments that federal law preempted the state-law claims. The industry didn’t like the ruling, and fifteen oil companies once again turned to the Supreme Court to review the state decisions. The U.S. Supreme Court has invited the Biden administration to provide its views on two appeals involving Honolulu’s efforts to hold major oil and gas companies accountable for climate change impacts.

Hawai’i youth reach settlement on decarbonization plan: In a groundbreaking development, Hawai’i agreed to a settlement lead by Indigenous teen plaintiffs who sued the state for violating their constitutional rights by contributing to climate change. The settlement commits Hawai’i to decarbonize its transportation system by 2045 and includes a road map for achieving zero emissions in ground, sea, and inter island air transportation. This settlement is enforceable in court, marking a significant step in making state climate commitments legally binding and ensuring accountability through litigation.

UK permits must account for all emissions: The United Kingdom’s Supreme Court ruled that planners reviewing well drilling permits must consider the global warming emissions from burning the extracted oil. This decision came after Sarah Finch, the plaintiff in the case, challenged Surrey County Council’s approval of additional oil wells without assessing the future emissions from burning the oil. The ruling sets a precedent for considering the full lifecycle emissions of fossil fuel projects, bolstering climate accountability in planning processes.

Swiss Parliament rejects the ECHR Ruling: In a disappointing turn of events, the Swiss parliament voted to reject a landmark ruling by the European Court of Human Rights (ECHR) that found Switzerland had violated the human rights of older women through inadequate climate policies. The ECHR ruling was hailed as a breakthrough, but the Swiss parliament’s decision not to comply raises questions about the enforceability of international court rulings and the effectiveness of international legal mechanisms in compelling climate action.

The developments highlighted in the Global Trends report and recent court cases underscore the critical role of litigation in advancing climate action and accountability. Litigation serves as a powerful tool to enforce existing climate commitments, challenge deceptive practices by corporations, and push for more ambitious policies. However, the mixed responses to international rulings, as seen in Switzerland, indicate that the path to comprehensive and enforceable global climate action remains complex.

As climate litigation continues to evolve, the need for robust communication and collaboration between scientists and legal practitioners becomes increasingly important. Ensuring that legal strategies are informed by the latest scientific evidence is essential for achieving successful outcomes in court and driving meaningful climate action. The dynamic landscape of climate litigation offers both challenges and opportunities, highlighting the urgency of continued legal, scientific, and policy efforts to address the climate crisis.

 

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