Insights from the ‘Global Trends in Climate Change Litigation: 2023 Snapshot’ Report

On 29 June 2023, the Grantham Research Institute on Climate Change and the Environment published its fifth annual ‘Global Trends in Climate Change Litigation: 2023 Snapshot’ Report (the “Report”). The Report focuses on developments in global climate change litigation over the period May 2022 to May 2023.

KEY TAKEAWAYS

• Although the growth rate in climate change litigation is slowing, the diversity in cases is still expanding, with an increasing number of cases filed against corporates based on a more complex range of legal arguments. These include innovative arguments based on human rights and constitutional rights (which are also being brought in the Global South) and a number of “strategic” cases aimed at influencing decision-making related to climate change.
• Cases challenging “climate-washing” in particular are on the rise. And cases looking at what constitutes a reasonable investment strategy in the context of climate change are also being put to judicial bodies.
• There have been three requests for advisory opinions from international courts and tribunals which are expected to impact future litigation, to clarify the duties and legal obligations of states in relation to climate change.
• There will likely be an increase in cases focusing on the biodiversity-climate nexus, including deforestation-free supply chains, with courts being asked to attribute sources of harm to biodiversity, which would involve analysis of parent company and supply chain responsibility.
• While the majority of cases identified pursue “climate-aligned” outcomes, there is an increase in “non-climate-aligned” litigation (looking to delay or obstruct climate action) including outside the US, and the emergence of “just transition litigation”.

• It remains crucial for businesses to be aware and engage with the complex landscape of climate litigation and ESG litigation more broadly.

The geographical scope of climate litigation continues to expand

As of May 2023, the databases cited in the Report contained 2,341 ongoing or concluded cases of climate change litigation from around the world. This compares to 2,002 cases cited in the 2022 Grantham Institute Report (page 4) (see our previous blog post).

While the Report notes that the growth rate in climate change litigation is slowing, climate change litigation has been captured in the Sabin Center’s climate change litigation database (the “database”) in seven new jurisdictions, including China and Russia.

The growth in cases continues to vary across jurisdictions. The US remains the country with the highest number of documented climate cases (1,590), followed by Australia (130) and the United Kingdom (102). The Report also notes that while the majority of cases are filed in the Global North, with Germany standing out as having a high number of recent cases (from 27 to 59 since the 2022 Report), 135 cases in the Global South are now captured in the database, and national contexts are important to develop an understanding of how these trends have developed and are likely to evolve.

The continuing trend of “strategic” climate litigation

The Report notes that the number of “strategic” cases, aimed at influencing the broader debate around decision-making related to climate change, continues to rise. 

In particular, there has been significant increase in “climate-washing” cases, focusing on companies’ alleged climate misinformation and misleading green claims. 26 “climate-washing” cases were filed in 2022, compared to fewer than 10 in 2020. The cases are increasingly against companies, and focus on the credibility of climate commitments and investments in or support for climate action, product specific challenges (including the use of certain terms like net zero, climate neutrality, and deforestation-free) and obscuring climate risks, leading to requests for disclosure. 

The Report observes that the increasing number of climate-washing cases against companies reflect broader concerns with corporate accountability for climate pledges. A number of these cases are being brought by investors, with some support from institutional investors.

Diversity of cases

A reasonably small number of cases have looked at what constitutes a reasonable investment strategy in this context and have considered both sustained and future predicted impacts. It is thought that further litigation (which may be driven by investors) will help to clarify responsibilities in this regard.

The Report makes clear that not all strategic litigation is aligned with climate goals, and while the most “non-climate aligned” cases (looking to delay or obstruct climate action) have been filed in the US (including cases referred to as “ESG backlash” litigation), cases pursuing similar agendas are being seen in other jurisdictions, for example in Belgium and the Netherlands.

The Report also refers to the emergence of “just transition litigation” (which is distinct from “non-climate aligned” litigation) where claimants are challenging the manner in which climate action is being taken, and the balance struck between advancing climate action and the rights of affected communities, for example in Mexico, Chile and Brazil.

Future trends of climate litigation 

The Report notes that the three requests for advisory opinions, from the International Tribunal on the Law of the Sea, the Inter-American Court of Human Rights and the International Court of Justice respectively, to clarify the duties and legal obligations of states in relation to certain specific aspects of the impacts of climate change, are expected to influence the future interpretation of states’ legal obligations with respect to climate change and climate policy (although the opinions themselves will be non-binding). 

The Report also observes that there will likely be an increase in cases focusing on the biodiversity-climate nexus, including deforestation-free supply chains, and courts will be asked to consider how to accurately attribute the sources of harm to biodiversity, involving an analysis of parent company and supply chain responsibility. 

The Report also anticipates a shift in emphasis to focus on the duties of governments and corporations to protect the ocean from further impacts of climate change, as well as a growth in claims following extreme weather events and in relation to “super climate pollutants”.  

Outcomes and impacts of climate litigation 

The Report concludes that climate litigation is an “important force in global and domestic climate governance”. 

As a result, it remains crucial for businesses to be aware of and engage with the complex landscape of climate litigation, and ESG litigation more broadly, as some of these issues start to converge (for example, in relation to human rights). 

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