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Lawyers to the rescue? The promise and perils of climate litigation

Alexander McManis | Climate Change & Energy Security Fellow

Over the last five years, climate activists have been increasingly taking to courts to force major polluters to curb their emissions. Climate litigation, the practice of using legal suits to force companies and governments to take climate action, has rapidly grown in popularity, with 762 climate ligation cases filed internationally over the last five years.

Promising signs

Climate activists have had some significant wins. In December 2019, the Dutch Supreme Court upheld a lower court verdict in Urgenda finding the Dutch government was acting unlawfully by failing to reduce greenhouse gas emissions by at least 25% by 2020. The government responded by accelerating the closure of coal power plants and introducing a €3 billion green investment package. In 2018, legal charity Client Earth bought shares in Enea, a Polish power company, and successfully sued it over its plan to build Poland’s last coal-fired power station, arguing it was an “indefensible financial risk”. Enea abandoned the plant. Coal mining licences have been blocked by Australian and South African courts over climate impacts, and in 2019 a Kenyan court set aside a licence to build coal-fired power plan after its owners inadequately dressed pollution concerns. Settlements in Australian cases against superannuation funds and banks have forced those industries to increase their disclosure of climate risk.

These successes may suggest litigation is a way to force governments and companies to take action without getting bogged down in the divisive legislative politics that has stymied progress in many countries. There are two main reasons for this. Firstly, the universal nature of climate change means that litigants can often pick between jurisdictions to sue in, depending on which presents the most favourable environment. For example, a Peruvian farmer is currently suing energy company RWE in a German regional court over the effects of RWE’s emissions on climate change and subsequently his farm in the Andes Mountains. This jurisdiction-shopping may allow environmentalists to more effectively target major emitters that are largely insulated by friendly local governments.

Secondly, in many countries the courts are less politicised than legislative politics and have more freedom to make decisions which might be unpopular or go against vested interests, but are necessary to prevent catastrophic climate change. Judges apply different reasoning to politicians, and are often insulated by tenure provisions, making them less worried about public opinion. Roger Cox, a lawyer in the Urgenda cases, has suggested that “our courts are the only reliable institutional tools left in our democracy to free ourselves from the dangers our governments pose to us.”

Some cautionary notes

But it is unclear whether courts are fit for this purpose. In some jurisdictions, courts have been reluctant to adjudicate on climate cases, viewing climate action as a legislative matter. Last year in Juliana, a US federal appeals court dismissed a claim a group of American children which alleged the federal executive’s failure to prevent dangerous levels of greenhouse gas emissions violated their constitutional rights. The court found the subject matter of the claim was not appropriate for judicial determination, preferring it be dealt with by the legislature. Judges may also not be as insulated from the politics as they once were. Fighting with courts has become a standard play for populist politicians worldwide. Brian Preston, Chief Judge of the New South Wales Land and Environment Court, noted “[j]udges are subject to the slings and arrows of outraged governments, media and citizenry. It takes courage to … make unpopular decisions that will result in public denunciation”. Moreover, governments can change laws to address decisions they do not agree with.

Currently environmentalists are fighting an uphill battle. The resources disparity between plaintiffs filing these suits and the companies and governments they are targeting is vast. ExxonMobil has been able to stare down 25 climate-related suits in the US since 2008, including suits brought by city and state attorneys-general. Meanwhile major law firms and other litigation funders are often reluctant to back climate litigation because of the perceived legal uncertainties and difficulties in obtaining favourable verdicts.

The role lawyers can play

It should be remembered that the climate litigation field is still in its infancy. We know that landmark cases like Urgenda are rare but that does not mean climate litigation will not play an important role in the fight against climate change. While they might not be as eye-catching as billion dollar claims against majorscarbon emitters or governments, suits regarding climate risk disclosure make companies and investors of all sizes more aware of their actions’ environmental impacts. Legal fees and damages payouts are concrete risks for investors and executives, appreciable in a way ‘social obligations’ often are not. If high-emitting investments become more costly, investors will adjust their behaviour. Additionally, Noel Hurtley SC and Sebastian Harford Davidson, leading commercial barristers, recently released a legal opinion which concluded that “the exposure of individual directors to ‘climate change litigation’ is increasing, probably exponentially, with time”. When director’s personal liability is on the line, a strong incentive to act on climate change is created.

To date most climate litigation has focused on the US, Europe and Australia. The opportunities for climate litigation globally are only now beginning explored. In 2015, a Pakistani farmer successfully sued the national government over its non-implementation of climate policies. South Korean and Pervian courts are hearing cases alleging governments violated plaintiffs’ constitutional rights through climate inaction. This new wave of litigation may show ingenious ways to force governments into action in ways that have not yet been considered in western cases.

Litigation should also be seen in a broader social context. Climate litigation helps keep climate action on the news and makes people to realise that climate change is not some distant risk but something effecting their businesses, liabilities and pensions today. To solve a wicked problem like climate change, you need as many people engaged as possible. Climate litigation can certainly assist in that, consequently making it a valuable tool for years to come.

Alexander McManis is the Climate Change & Energy Security Fellow for Young Australians in International Affairs.


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