Climate Litigation

updated September 2016

The plodding performance of UN climate negotiations, together with the fragility of principles of equity and fairness laid down in the 1992 UN Framework Convention on Climate Change, has provoked a growing number of independent actions to remedy the injustice of climate change through litigation.

These actions can be divided between those that seek redress through national laws protecting the rights of citizens and those that work within recognised frameworks of international law governing human rights or the environment. The International Court of Justice and the International Criminal Court have also been invoked in the cause of climate reparations.

The most eye-catching example of litigation at national level is the action coordinated by Our Children’s Trust in the US against the federal government. A group of 21 youngsters under the age of twenty argues that failure to reduce the combustion of fossil fuels violates their constitutional rights to life, liberty and property. At a district court hearing in Oregon, the first of many legal hoops that must be negotiated, the judge ruled in favour of the action.

A similar civil society challenge to the inadequacy of government action in Europe has enjoyed dramatic success. Although the case is pending appeal, the Dutch government has been forced to ratchet up its target for emissions reduction after a 2015 lawsuit filed by the Urgenda Foundation was upheld. The judge ruled that “the State must do more to avert the imminent danger caused by climate change.”

The slow fuse of potential litigation against Exxon Mobil and other US oil majors for their role in climate denial has finally been lit. In November 2015 New York State Attorney General Eric Schneiderman issued a subpoena to Exxon demanding documents relating to the full history of the company’s understanding of the science of global warming.

This action has since mushroomed when Schneiderman announced that an alliance of 17 state attorney generals would investigate fossil fuel companies under their jurisdiction. Their efforts will focus on whether the corporations have been “committing fraud in an effort to maximize their short-term profit at the expense of the people we represent.” Activity around the Twitter hashtag #Exxonknew confirms the depth of public interest in the case.

Influential human rights advocates such as Mary Robinson, former UN High Commissioner for Human Rights, and Olivier De Schutter, former UN Special Rapporteur on the Right to Food, have led a movement which argues that climate change is undermining individual rights to food, water and health.

Enforcement of international human rights law is pursued more by disclosure and peer pressure than by set piece court actions. A potential landmark example has been triggered by a petition by Greenpeace to the Philippines Commission on Human Rights. The Commission has responded by challenging 47 international corporations to answer the case that their emissions jeopardize fundamental rights of Philippine citizens to “life, food, water, sanitation, adequate housing.” After hearings which must be attended by company officials, the Commission will make recommendations to the government.

The UN’s Human Rights Council has lent support to rights-based actions through a formal resolution in 2015 that “the adverse effects of climate change have a range of implications, both direct and indirect, for the effective enjoyment of human rights.”

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