The legal profession’s concern over climate change isn’t new (the first climate lawsuit was filed in 1986), but what is new is the unprecedented scale and diversity of claims related to climate change across the United States and internationally. Since 2015, over 1,000 new climate-related cases have been brought worldwide, and the cumulative number of cases has more than doubled. Most of these cases sit in U.S. courts, but they span nearly 40 countries around the world.
As climate change litigation grows, its complexity does, too. Many academic centers have been established to track, inform, and interface with climate lawsuits, such as Columbia University’s Sabin Center for Climate Change Law, New York University’s Climate Litigation Accelerator, and the University of Oxford’s Sustainable Law Programme. For busy lawyers, getting a handle on this emerging growth area can be a challenge. Here are hot spots to watch as climate litigation expands worldwide.
Since 2017, more than 20 suits have been filed against oil and gas companies by governmental entities across the United States, including seven by state attorneys general. These suits generally allege historical and ongoing unlawful deceptive conduct by the defendants, including concealment of internal knowledge regarding global warming, affirmative misrepresentations of climate science, and ongoing deception regarding the defendants’ activities and fossil fuel products. Much of the historical evidence supporting these cases has been developed within the last decade by academics, journalists, and other researchers, and the evidentiary basis for the plaintiffs’ claims continues to expand. Nineteen of these suits remain ongoing, and their number has grown steadily, with four filed in 2021.
For the most part, these suits fall into two categories: cost recovery and consumer protection. Thirteen cost recovery suits are ongoing under various causes of action including public nuisance, private nuisance, negligence, trespass, failure to warn, design defect, conspiracy, and unjust enrichment. These suits seek compensation for climate adaptation costs, such as sea walls, on the theory that the defendants’ allegedly unlawful conduct substantially contributed to those costs. (A recent study, for example, estimated the cost of sea walls to protect from sea level rise to be at least $400 billion nationwide by 2040.) Because sea level rise is easily attributable to global warming, most of these suits have been filed by coastal cities, counties, and states, although ongoing advances in climate attribution science suggest that cost recovery suits may soon expand in geographic scope and the types of damages claimed.
Thirteen consumer protection cases also remain ongoing (seven seek both cost recovery and consumer protection). These suits are brought under state consumer protection statutes barring misleading consumer-facing communications and other unfair business practices. The evidentiary basis for these actions is similar to that for cost recovery suits, although the applicable statutes often don’t require a showing of damages and instead carry a civil penalty for each instance of materially misleading communication. These statutes helped undergird successful litigation against tobacco and opioid companies in the 1990s and 2010s, respectively.
Since 2017, these cost recovery and consumer protection suits have largely been occupied with pretrial motions, and no case has yet reached the merits. Plaintiffs, however, have generally prevailed against venue and dismissal motions, and at least some of these cases are expected to go to trial in 2022.
Outside the United States, another legal approach has gained considerable traction: suits against governments and corporations seeking injunctions ordering alignment with the Paris Agreement. The Paris Agreement, an international treaty on climate change adopted in 2015, seeks to limit global warming to 2 degrees Celsius or 1.5 degrees Celsius, if possible (global warming has already reached 1.1 degrees Celsius). The treaty is legally binding procedurally but not in terms of reducing greenhouse gas (GHG) pollution. However, because over 190 countries are party to the agreement, it provides a consensus regarding the level to which global warming should be limited, if possible.
In 2013, the Dutch foundation Urgenda filed suit against the Dutch government, alleging that the country’s inadequate GHG reduction policies violated the human rights of Dutch citizens. The Hague District Court agreed, ordering the government to set policies to reduce national GHG pollution by 25 percent by 2020 (compared to 1990 levels), which was affirmed by The Hague Court of Appeals and ultimately, in 2019, the Dutch Supreme Court. The courts based their decision on the minimum GHG reduction the Intergovernmental Panel on Climate Change had determined was necessary to prevent global warming of 2 degrees Celsius, as well as Articles 2 and 8 of the European Convention on Human Rights.
Building from the Urgenda decision, in 2019 the Dutch foundation Milieudefensie and co-plaintiffs filed suit against Royal Dutch Shell, seeking a similar injunction ordering the multinational fossil fuel company to align its business operations with the goals of the Paris Agreement. Milieudefensie based its claim on the Netherlands’ duty of care law (Dutch Civil Code Book 6, section 162) as well as Articles 2 and 8 of the European Convention on Human Rights. In 2021, The Hague District Court ruled for the plaintiffs, ordering Royal Dutch Shell to reduce GHG pollution across its entire product chain (including sold products) by 45 percent by 2030 compared to 2019 levels. The decision marked the first time a business enterprise was held liable for its contribution to global warming. Royal Dutch Shell has indicated it plans to appeal.
The Milieudefensie court examined the climate problem in detail and issued a number of significant holdings, including that:
Actions seeking injunctions based on duties of care have spread throughout Europe. In 2018, the French nonprofit Notre Affaire à Tous and other plaintiffs filed suit against the French government under the French Charter for the Environment and the European Convention for the Protection of Human Rights and Fundamental Freedoms, seeking various remedies including injunctions to compel compliance with the goals of the Paris Agreement and nationwide adaptation to climate change. In 2021, the administrative court of Paris ordered the state to take immediate action to comply with its existing climate commitments, which include a 40 percent reduction in GHG pollution by 2030 (compared to 1990 levels) and carbon neutrality by 2050.
Similarly, in 2021 the Federal Constitutional Court of Germany, in response to a suit brought by German youth under the Basic Law (the country’s constitution), found Germany’s Federal Climate Protection Act inadequate to protect human rights, ordering the government to pursue measures consistent with the goals of the Paris Agreement and holding that “one generation must not be allowed to consume large parts of the CO2 budget under a comparatively mild reduction burden if this would at the same time leave future generations with a radical reduction burden . . . and expose their lives to serious losses of freedom.” Building off this ruling, Greenpeace Germany is currently seeking a Paris Injunction against Volkswagen, the world’s second largest car manufacturer. A similar suit has been filed in Italy (against the government) and will be heard in December 2021.
The United States and Europe aren’t the only places where action is heating up. In 2021, the Federal Court of Australia ruled that governmental decision makers have a duty of care toward children in the country to avoid causing them harm through global warming pollution, a decision that may significantly impact fossil fuel project approvals in Australia going forward. And recently, Vanuatu announced it will seek an advisory opinion on climate change from the International Court of Justice, which may influence domestic and international courts worldwide.
For any lawyer interested in corporate accountability, human rights, the environment, or the fate of the world, climate litigation is an area to watch and engage. The drivers behind these suits—worsening global warming, growing evidence of corporate malfeasance, advances in science allowing attribution of impacts and damages, increasing viability of non-fossil energy systems, and broadening psychological and political salience of climate—all point toward more action in the future. As the world continues to heat up, climate litigation will, too.
