Estelle Sutherland
More than ever, climate change litigation is being used across Europe as a weapon in the fight for climate justice.
In late November 2022, over 600 young activists filed a lawsuit against the Swedish state, claiming that their government’s ineffective response to climate change constituted a violation of the European Convention of Human Rights (ECHR). This class action suit was lodged by members of the predominantly youth-driven Swedish Aurora group. The case, Anton Foley and others v Sweden, is one such example of the growing prevalence of climate litigation in Europe as a method of holding governments and corporations legally accountable for their negligence.
Sweden’s recently appointed centre-right government is facing mass criticism from NGOs and civil society for its climate change policy, or lack thereof. Since his appointment in October 2022, Prime Minister Kristersson has moved to abolish the Ministry of Environment. Concerningly, the government is set to retreat from the country’s previously active position on environmental protection, with minimal discussion of climate issues in its election campaign.
Although yet to be heard, the Aurora lawsuit aims to hold the Swedish government accountable its failure to take sufficient climate action. This lawsuit has been two years in the making and comes after two letters were sent to the Swedish government in May and October 2022. They outlined the concerns and requests of the Aurora group, including the demand that the government does its fair share to limit greenhouse gas emissions. However, the second of these—sent following the election—received no reply. The ensuing lawsuit alleged that the government’s climate inaction constitutes a violation of the plaintiffs’ human rights, including the rights to life, private and family life, non-discrimination, and property under the ECHR.
Across Europe, we are witnessing a similar outcry against governments, corporations, and individuals. In 2021, the first climate action lawsuit against the Czech government was lodged by the NGO Klimatická žaloba ČR and a local municipality as co-plaintiffs. They named the ministries of Environment, Agriculture, and Trade as defendants. The Municipal Court in Prague found that these ministries failed to implement sufficient measures to achieve a 55 per cent reduction in greenhouse gas emissions by 2030 (as compared to 1990 levels). Corporations are also feeling the heat across Europe. In the recent case of Les Amis de la Terre and Sherpa v Perenco, two NGOs sought access to documents held by a private French oil company. This legal action was taken against Perenco, which operates as an oil explorer in the Democratic Republic of Congo, to determine its role in widespread pollution and ecological harm across the country.
Climate change litigation is likely here to stay. Traditional instruments of environmental law, such as international declarations, treaties, and conferences remain limited in their power to compel governments and corporations to comply with environmental obligations. Instead, tackling climate change through litigation is a valuable route for a number of reasons. Firstly, in this form of litigation, environmental harm is given a monetary value, therefore allowing plaintiffs to claim compensation for the harms caused. Climate litigation also gives governments and corporations a financial incentive to be proactive in order to avoid making crippling payouts to litigants.
Importantly, national courts can make companies and governments legally accountable to their domestic legal systems and enforce climate targets or the creation of achievable emissions goals. As seen in Perenco, climate litigation can also compel entities to disclose information about the extent of their compliance. Finally, it can also be used to expose and invalidate instances of “greenwashing" – that is, exaggerated or false representations of climate change mitigation efforts often used by corporations. This may include, for example, altering the packaging of products to appear recycled or making misleading claims regarding the sustainability of a product in advertising.
On the other hand, we have also seen a rise in litigation from fossil fuel companies and investors. Globally, these companies are increasingly turning to the courts seeking compensation and blocking climate litigation. The risk is many larger companies may be tempted to factor litigation expenses into operating costs, rather than address the environmental harm caused by their practices. As such, the path forward for climate litigation will not be without barriers.
In comparison to traditional methods of activism, civil legal action can produce outcomes that are binding and enforceable. Addressing the effects of climate change is undoubtedly a priority for many Europeans, and recent events have shown that litigation will continue to be an integral tool for ordinary citizens in the fight for climate justice. As such, the Aurora litigation is a timely reminder to us of the importance of social mobilisation in the fight against climate inaction.
Estelle Sutherland is completing her Juris Doctor at the University of Melbourne.