Climate Litigation is here to stay, but what does this mean for you?
Climate litigation has been on the rise over the last decade but what has caused this increase? And what does this even mean for our regular everyday life?
What is Climate Litigation?
Climate Litigation is the act of taking legal action to combat the climate crisis and involves arguments relating to climate change.
An example of recent litigation in the UK is the ongoing lawsuit ClientEarth brought against the UK government over their climate plan.
When and how does climate litigation occur?
These types of lawsuits occur when a person, or group of persons, believe that the government (or state, department, company, or even another individuals) is in breach of climate laws or regulations. For example, in the ongoing ClientEarth case against the UK Government, ClientEarth is arguing that although the UK published a revised Net Zero Strategy to combat climate change, this was not enough. They claim that their inaction breaches the Climate Change Act 2009.
Other types of cases include the granting of controversial infrastructure development licences For example, in Australia a lawsuit was filed against the Federal Court over the proposed Woodside Scarborough Gas Project. The Australian Conservation Foundation claimed the project would significantly contribute to carbon dioxide emissions and negatively impact the Great Barrier Reef.
The rights of man, and of nature
Many cases are taken to court based on the argument that “rights” have not been upheld. The United Nations Human Rights convention outlines many of the rights that humans should be granted unconditionally. These include rights prohibiting arbitrary deprivation of life, torture, cruel, or degrading treatment or punishment, or discrimination, and many more. In July 2022, the UN published a resolution on the right to a healthy environment which can be referred to in climate lawsuits.
In addition to our human rights, there is a growing movement calling for the assertion of Rights of Nature into national courts to help protect biodiversity. This encourages a different approach to litigation. Rights of Nature is the idea that nature should have legal rights offering wholly or partly, the same protection as people and corporations; that ecosystems and species have legal rights to exist, thrive, and regenerate. There are specific types of Rights of Nature which include Freshwater Rights, Ocean Rights, and River Rights.
Ecuador was the first country in the world to grant rights of nature in 2008 in a new constitution. They were followed by the US, Bolivia, India, New Zealand, and Panama (amongst others!). Some include rights of nature regulations at the national level while others established these rights at more local levels, For example, the City of Pittsburgh was one of the first major municipalities in the US to recognise Rights of Nature.Recently in the UK a Rights of Rivers Motion was passed to protect the River Ouse in East Sussex. This will lead to the creation of a Charter which will give rivers a voice, redefine human-river interactions and will give rivers a voice to promote sustainable river systems.
Litigators can use the rights based approach in court, arguing that a specific action (or sometimes lack of action!) breaches human rights or nature’s rights, and therefore stronger environmental measures are needed.
The importance of amending regulations
Our ever growing knowledge of our planet and nature also has an important role to play in litigation, as we become better equipped to create and amend laws to better protect our world. As our scientific knowledge has significantly increased in areas relating to climate crisis, land use, biodiversity, pollution, and the oceans has increased, regulation of these areas needs revamping to ensure that laws represent their interconnections.
For example, in the US and Canada studies looked into the language of various laws relating to oceans, clean water, and pollution prevention relating to the topic of ocean acidification. In the US, the language relating to chains of pollutants makes it hard to litigate on the impacts of ocean acidification. In Canada, there are stronger grounds for lawsuits because of specific regulation in the Fisheries Act which determines that “heated water” could be considered as degradation of water quality. This could provide stronger grounds (referring to the basis or justification for something) for lawsuits than in the US context.
This demonstrates the need to update or create new regulations which better protect the environment by using stronger and more specific language.
Other notable upcoming or ongoing cases include:
- In Scotland, the Good Law Project, with Environmental Rights Centre for Scotland, is taking action against the Scottish government.They are demanding that ministers take urgent measures to uphold their commitments on mitigating climate change impacts.
- In Ireland, a judicial review began in September 2023 which claims that the country will fail to achieve their legally binding climate targets.
- In the European Union, 6 young Portuguese people took all EU member states (plus the UK, Switzerland, Norway, and Turkey) to the European Court of Human Rights. They are arguing that governments’ inaction on climate change mitigation and adaptation breaches human rights.
- In the US, the ruling of Held v. Montana is the first constitutional climate case in US history to go to trial. In a 103 page ruling, it was found that the state legislation fell short on their requirement to consider the climate impact of energy projects.
You can find more information on these cases and a longer list of cases here.
Numerous international bodies such as the International Panel on Climate Change (IPCC), the International Panel on Biodiversity and Ecosystem Services (IPBES), the International Union for Conservation of Nature (IUCN), and Fauna and Flora International, have published reports on the continuing negative trends in climate and biodiversity. Efforts are being made globally to combat these trends by improving legal infrastructures so that climate and biodiversity are at the forefront of decision making.
You can learn more about this and the different aspects of climate litigation around the world on the Climate Change Legal Initiative (C2LI) website.
There are several organisations who can help you stay up to date with climate litigation news. Check out…
- Global Trends in Climate Litigation 2023 Snapshot hosted by the Sabin Center for Climate Change Law for global updates.
- For cases in the United States, go to Climate Case Chart
To learn more about Rights of Nature, River Rights, and Ocean Rights check out…
- Earth Law Center
- International Rivers
- The Universal Declaration on Ocean Rights and the One Ocean Race.
You can also support organisations such as the Nature Conservancy, ClientEarth, Friends of the Earth, the Marine Conservation Society, and the Good Law Project who have all taken legal action to fight for our climate and biodiversity.
Featured image created by the author using documents from ClimateCaseCharts.com and stock images on Canva
*Please note: This article represents the ideas and thoughts of the author and is not representative of their other affiliations.