The tepid ambition of UN climate agreements, together with their plodding implementation, has provoked a growing number of independent actions to remedy climate injustice through litigation.

To date, most of these cases have been facilitated by civil society organisations against national governments. These actions typically seek either to demonstrate that a project is inconsistent with government climate change policy, or that the policy itself is inadequate. Recent US initiatives have also seen sub-national authorities targeting the oil majors for their contribution to destructive global warming, or for their denial of established science.

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. Having successfully negotiated regional legal hoops, the case is due to be heard by a Federal judge. To no surprise, the Trump administration is making every attempt to have the lawsuit dismissed.

A similar civil society challenge to the inadequacy of government action in Europe has also been influential. 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.” Exxon has responded with a stalling counter-suit and activity around the Twitter hashtag #Exxonknew confirms the depth of public interest in the case.

In a significant new direction for climate litigation, a number of Californian cities have launched actions against oil majors, seeking restitution for the rise in sea level that compels the investment of public funds in coastal defences. Success might have far-reaching consequences, opening the door to the financing of adaptation projects around the world through the “polluter pays” principle.

Human rights law offers a very different channel for the pursuit of climate justice, if not exactly under the heading of litigation. 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.

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 2017 resolution that focuses on children’s vulnerability to the impacts of climate change. This vulnerability ranges from exposure to extreme weather events to the health risks associated with high temperatures. The resolution reminds governments to respect their obligations in international law towards the protection of child rights.

The current landscape of climate litigation may soon acquire an added dimension, opened up by the fast-evolving science of event attribution. Through analysis of datasets, scientists can now quantify the change in probability of an extreme weather event on account of climate change. There is sufficient precedent in other contexts to believe that courts will accept this line of argument, thereby overcoming the longstanding presumption that it is impossible to blame climate change for a disaster event. The capacity to identify the fingerprint of global warming clears a path for damage claimants to reach responsible governments or corporations.

******

more Climate Justice briefings (updated March 2018)
Climate Justice
Kyoto Protocol
Paris Climate Agreement
Climate Justice and Right to Development
Climate Finance
Loss and Damage
Climate Displacement
Source material and useful links