On 30 June 2022, the Grantham Research Institute on Climate Change and the Environment (“GRI”) published the ‘Global Trends in Climate Change Litigation: 2022 Snapshot’ Report (the “Report”). The Report focuses on developments in global climate change litigation over the period May 2021 to May 2022.
As expected, the findings of the Report indicate that the importance and scale of climate litigation as a strategy for climate change action is only increasing, and the range of targets and actors involved in climate litigation is diversifying over time. This is consistent with an observation of the Intergovernmental Panel on Climate Change Report 2022 (“IPCC Report”), which recognised that litigation affects “the outcome and ambition of climate governance” (page 50 of the IPCC Report). The Report highlights how climate change litigation is increasingly important in deploying effective action against climate change and achieving ‘net zero’ globally.
The geographical scope of climate litigation is expanding
The Report describes the exponential increase in climate change litigation cases globally. This upwards trend has a distinct geography, with the calendar year 2021 seeing the highest annual number of recorded cases outside the US.
As of May 2022, the databases cited in the Report contains 2,002 ongoing or concluded cases of climate change litigation from around the world. This compares to 1,841 cases cited in the 2021 Grantham Institute Report (page 5). Within this rising trend over the past year, there is growing climate litigation action in the Global South, with 47 cases recorded in Latin America and the Caribbean, 28 in Asia Pacific, and 13 cases in Africa. Cases are also spreading to new jurisdictions: cases were identified for the first time in Italy, Denmark, and Papa New Guinea.
The trend of “strategic” climate litigation continues
The Report notes that the number of cases filed with strategic ambition is rising. A case is said to be ‘strategically litigated’ when it is seen as one step in a bigger effort to achieve the goal of changing policy, social norms, or behaviours. The Report recognises that climate litigation is firmly establishing itself as an activist strategy across different jurisdictions.
Consistent with that finding, the Report also observes the widening pool of actors in climate litigation. While most climate litigation claims are still brought against national governments (over the past year, 70% of all cases were brought against governments), subnational governments are a growing target. Last year, 13 complaints were filed against Länder or federal states in Germany, each challenging the subnational government’s failure to legislate sufficiently ambitious emissions reduction pathways.
Climate litigation claims are increasingly being issued against a wider range of corporate businesses than before. Historically, climate litigation against companies centred on cases against the carbon majors (energy and cement companies who are historical contributors to greenhouse gas (“GHG”) emissions, mostly based in the US). This trend has continued, but increasingly outside the US, with at least 13 cases filed against European carbon majors before courts or administrative bodies in Europe, and at least two challenges launched in Australia against the gas company, Santos. Separately, although 16 of the 38 cases filed against corporate actors in the calendar year 2021 were filed against fossil fuel companies, the Report notes that more than half of cases were filed against defendants in other sectors, including food and agriculture, transport, plastics, and finance.
“Climate-washing” litigation is on the rise
The Report considers how climate-related greenwashing litigation, coined ‘climate-washing’ litigation, is gaining pace. Its aim is to hold companies to account for various forms of climate misinformation.
A separate report titled ‘Climate-Washing Litigation: Legal Liability for Misleading Climate Communications’ (2022) has noted that at least 20 ‘climate-washing’ cases have been filed before courts in the US, Australia, France, and the Netherlands since 2016, while a further 27 cases have been filed before non-judicial oversight bodies (such as advertising standards boards).
A glimpse into the future of climate litigation
The Report observes that ‘negative emissions’ cases are an area of growth in terms of climate litigation. This is litigation against governments and major emitters challenging commitments that over-rely on GHG removals or ‘negative emissions’ technologies. A recent example of this type of case is the challenge to Italian Energy giant Eni’s business plan, which was said not to conform with the OECD Guidelines for Multi-National Enterprises and involved an over-reliance on GHG removals or ‘negative emissions’ technologies.
The Report also anticipates a rise in litigation addressing the prevention of and redress (‘loss and damage’) for climate change. The Bali Action Plan (2007) calls for “means to address loss and damage associated with climate change impacts” in developing countries that are vulnerable to the effects of climate change. During COP26, Antigua and Barbuda and Tuvalu announced the launch of a Commission of Small Island States on Climate Change and International Law, focusing on the development of rules of international law concerning climate change. Vanuatu is campaigning for the International Court of Justice to clarify state obligations about the prevention of and redress of climate change. Litigation focusing on ‘loss and damage’ is a practical tool for climate action.
A further area of focus is the individual responsibility of actors involved in the fossil fuel industry. Company directors can, and will, be challenged to uphold their legal duties to manage climate risk, by preparing their companies for the ‘net zero transition’. In March 2022, ClientEarth, in its capacity as a shareholder, sent a pre-action letter to Shell’s Board of Directors, noting in the briefing letter that “ClientEarth’s claim is the first attempt to hold a company’s Board of Directors personally liable for failing to properly prepare for the net-zero transition”.
To receive the latest updates on climate litigation, sign up for the Linklaters ESG Disputes Bulletin by contacting us at firstname.lastname@example.org.