The Judiciary is becoming acquainted with a new type of litigation: lawsuits against inaction to tackle global warming. By pushing for stricter climate regulation or trying to make carbon emitters accountable for their emissions and requesting damages, these lawsuits are writing a new chapter in climate change mitigation. And the phenomenon seems to be here to stay: this new type of litigation is becoming more and more common.
There are, broadly speaking, two types of climate lawsuits. In the first type, affected people sue governments – recently, companies as well – that they consider negligent in tackling climate change. Among these lawsuits, the 24 June, 2015 decision that demanded the Dutch government to revise its commitment to curb carbon emissions so that in 2020 they would be at least 25% less than in 1990 is widely known. Plaintiffs argued that the previous commitment was not in tandem with the responsibility of a developed country such as The Netherlands regarding climate change mitigation. Brought to court by the Urgenda Foundation and 900 Dutch citizens, it was the first judicial decision of its kind and became a precedent. In November 2015, Sarah Thomson, a New Zealander, filed a similar case against her government under the same arguments. In the same month, Saúl Luciano Lliuya, a Peruvian farmer, filed, in Germany, a lawsuit against the German electric power utility RWE. Mr. Lliuya argues that RWE is partly responsible for glacial melting in the Andes, increasing the volume of a lake above Huaraz, the city where he lives. He requests the company to pay for safety measures at the lake – payment proportional to the company’s contribution to climate change – so that Huaraz does not become a flooded area. The case was accepted by the Regional Court of Essen and is running its course.
US citizens have also started to mobilize. Our Children’s Trust, leading different children, has been filing lawsuits in the US, arguing that climate change violates the youngest generation’s rights to life, liberty and property, and that governments are liable when they do not act against it to protect essential public trust resources. In April 29, 2016, the Trust and 07 children won the case against the Oregon Department of Ecology: it shall promulgate a carbon emissions reduction rule by the end of 2016 and make recommendations to the state legislature on science-based carbon emission reductions in the 2017 legislative session. The Trust also has 04 other state cases underway (Colorado, Massachusetts, Pennsylvania and Washington) and has filed a Landmark US Federal Climate Lawsuit, accepted by the Court in April 08, 2016 (hearings expected in September 2016).
A new case could become another potential landmark. Recently, the Philippines Commission on Human Rights, boosted by typhoon survivors – in the last decade, 04 large-scale typhoons have struck the Philippines – and non governmental organizations, and supported by more than 30,000 Filipinos, has sent 47 major carbon emitters (among them Shell, BP and Chevron) a piece accusing them of breaching human fundamental rights (to life, food, water, sanitation, housing and self determination). The breach is due to climate change, aggravated by the companies in question due to their carbon emissions. If accepted – the full legal investigation should start in October, after the companies have responded –, the lawsuit will be the first to judge the responsibility of private actors in causing climate change, and many others could follow.
The second type of lawsuits attacks false or incorrect disclosure of the carbon impact of different activities. In August 2014 WWF won a case against Peabody Energy, the world biggest coal company. Peabody had been advertising in favor of coal in energy generation, arguing that its clean coal technology was a solution for energy in developing countries. WWF argued the ad was not clear in pointing that the technology was not enough to zero carbon emissions, and thus had important impact on climate change. The United Kingdom Advertising Standards Authority decided that, without further clarification of the impacts of coal on climate change, the ad should no longer be disseminated. This is a step forward in the demand to increase transparency of businesses’ carbon footprint.
Although cases of the first type have been mushrooming, they still have limited effectiveness in pushing climate action. It forces Administrations to push stricter climate standards, but any movement in this direction takes time – cases involving private companies could have different consequences, depending on the content of the judicial decision. Cases of the second type, however, have great potential of disrupting established behavior regarding climate change mitigation, especially when regulation requiring companies to disclose their carbon footprint is enacted – this has been a cause defended by different social actors around the world, and has already been adopted in countries like France and UK. When carbon footprint becomes an important variable in investment decisions, investors could also become plaintiffs, suing companies that fail to correctly disclose the carbon impacts of their activities as their investments could be penalized. And insurance companies could also file suit to recoup previous expenses from companies that failed to correctly report their carbon footprints.
Another set of lawsuits will challenge international courts: how to decide cases involving climate refugees, people that lose their homes due to climate change? As island states disappear due to rising sea levels, large areas become flooded due to glacial melting, others become too dry to allow even subsistence farming, hurricanes, typhoons and tsunamis become more frequent, millions of people will migrate to survive. It is urgent that the international community starts to discuss how to resettle these populations. And the way it is current dealing with Syrians is not a positive precedent.
Global warming is a complex issue for courts, but climate lawsuits are here to stay. Climate change is the greatest challenge humanity current faces and its consequences touch all aspects of daily living. Current legal remedies are insufficient to settle many of the issues that will follow, so legal systems will need to adapt to this new reality. It is a positive sign to see many people getting involved and demanding action, but there is a lot more to be done: work has just started.
Climate Change News, Oil majors summoned to Philippines human rights inquiry, news from 27 Jul 2016 available at <http://www.climatechangenews.com/2016/07/27/oil-majors-summoned-to-philippines-human-rights-inquiry/>, accessed 29 Jul 2016.
Germanwatch, Peruvian farmer sues German utility RWE over dangers related to glacial melting, available at <https://germanwatch.org/en/11302>, accessed 29 Jul 2016.
New Zealand Herald, Student sues Government over climate targets, news from 12 Nov 2015 available at <http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11544334>, accessed 29 Jul 2016.
Our Children’s Trust, Information on US climate lawsuits available at <http://www.ourchildrenstrust.org>, accessed 29 Jul 2016.
Urgenda Foundation, Information on The Netherlands lawsuit available at <http://www.urgenda.nl/en/climate-case/>, accessed 29 Jul 2016.
Larissa Basso is a PhD Candidate at the Institute of International Relations of University of Brasília and member of the International System at the Anthropocene and Climate Change Research Network. Contact: <firstname.lastname@example.org>