Insights from the "Global Trends in Climate Change Litigation: 2024 Snapshot" Report

On 27 June 2024, the Grantham Research Institute on Climate Change and the Environment published its sixth annual ‘Global Trends in Climate Change Litigation: 2024 Snapshot’ Report (the “Report”). The Report focuses on developments in global climate change litigation over the period May 2023 to May 2024.

Key takeaways 

• Although the growth rate in new cases may be slowing down, the global footprint of climate change litigation continues to expand (with cases now in 55 jurisdictions). There is a continued increase in “climate-washing” cases, challenging governments or corporates’ alleged climate misinformation or misleading claims. Over 70% of these cases decided so far have been in favour of the claimant (54 out of 77). 
• The role of human rights-related arguments in climate change litigation is becoming increasingly prominent as adverse impacts of climate change become more evident. 45% of all international litigation involved human rights courts, bodies or tribunals. 
• The unprecedent ECHR judgment in the KlimaSeniorinnen and Others v. Switzerland case may establish an important precedent for future claims challenging governments’ climate ambitions and responses.
• The first of three advisory opinions was issued, clarifying specific legal obligations of State parties under the United Nations Convention on the Law of the Sea. Advisory opinions from the Inter-American Court of Human Rights and the International Court of Justice are expected in late 2024 and early 2025. 
• 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), and in litigation intended to challenge the manner in which climate action is taken (“just transition” litigation and “green vs green” litigation).
• As climate litigation continues to drive shifts in thinking and behaviour among many stakeholder groups, it remains crucial for businesses to be aware of and engage with the complex landscape of climate litigation and ESG litigation more broadly.

A continued geographical expansion

Despite a potential slowing in the growth rate of new cases, the global footprint of climate litigation continues to expand. 

As of May 2024, the databases cited in the Report recorded 2,666 cases, up from the 2,341 cases reported in the 2023 Grantham Institute Report (see our previous blog post). New cases were filed for the first time in Panama and Portugal, while previously filed cases in Hungary and Namibia were identified for the first time. The total number of countries in which climate cases have been recorded has now risen to 55. 

The United States continues to see the highest number of recorded cases (1,745), followed by the UK (139), Australia (132), Brazil (82), and Germany (60). The UK saw 24 new cases filed in 2023. Whilst the majority of cases continue to be filed in the Global North, cases in the Global South are on an upwards trajectory, with more than 200 now recorded in the databases (up from 135 in 2023). 

The diversification of “strategic” climate litigation

The Report notes that the number of “strategic” cases, which are aimed at influencing the broader debate around decision-making related to climate change, continues to rise and the arguments deployed by claimants continue to evolve.

Climate-washing

The Report notes continued growth in “climate-washing” cases, which challenge governments or corporates’ alleged climate misinformation or misleading claims. The databases now record over 140 climate-washing cases, up from “a mere handful” in 2017. These cases focus on the use of specific terms (such as “net zero”, “climate neutrality”, and “deforestation-free”) in product and brand-advertising, and on the credibility of a company’s climate commitments or solutions. Whilst the majority of cases tend to be brought by regulators before quasi-judicial bodies, a growing number of cases are being brought before national courts. 

The Report observes that climate-washing cases are more often decided in favour of the claimant (54 of the 77 recorded cases). 

Rights-based litigation

The Report states that 2023 saw significant development in respect of rights-based climate cases, particularly before international courts (with 45% of all international litigation brought before a human rights-related body). 

In April 2024, the European Court of Human Rights (ECHR) handed down its  judgment in KlimaSeniorinnen and Others v. Switzerland, ruling that Article 8 of the European Convention on Human Rights entails a positive obligation for States to provide protection against adverse effects on human health from harmful effects and risks caused by climate change (see our previous blog post). 

In India, a judgment handed down by its Supreme Court established a new constitutional right to be free from the adverse effects of climate change.

The Report observes that the role of human rights is becoming increasingly prominent as adverse impacts of climate change become more evident. 

The first of three advisory opinions is issued

In May 2024, the International Tribunal for the Law of the Sea issued its advisory opinion confirming that all anthropogenic greenhouse gas emissions constitute marine pollution and clarifying that States must take all measures to prevent, reduce and control emissions and to protect and preserve the marine environment against the impact of climate change. 

This is the first of three requests for international advisory opinions, with those by the Inter-American Court of Human Rights and the International Court of Justice expected in late 2024 and early 2025 respectively. 

Although these opinions are not binding, the Report observes that they carry substantial legal and moral weight. It is likely that these decisions will be used as building blocks for further climate litigation.

Challenging “status green”

The Report states that nearly 50 (21%) of the cases filed in 2023 were not aligned with climate goals and sought either to delay or obstruct climate action (so-called “ESG backlash” litigation), or challenge the manner in which climate action is taken and the extent to which it balances the rights of affected communities (referred to as “just transition” litigation).

The Report also observes an increase in “green vs. green” litigation, where cases present a trade-off between climate or other environmental aims (e.g. biodiversity). Similarly to “just transition” litigation, these cases do not oppose climate action – rather, they intend to challenge the way in which climate action is taken.

“Transition risk” cases 

In this year’s analysis a new category of “transition risk” cases was introduced, which includes cases filed against corporate directors and officers for their management of climate risks (see for example our previous blog post about the ClientEarth v Shell Board of Directors case). 

“Transition risk” cases concern the alleged (mis)management of low-carbon transition risk by directors, officers and others tasked with ensuring the success of a business. One new case was filed in 2023 and just 17 such cases have been recorded since 2015. In December 2023, the Polish energy company Enea indicated its intention to sue several of its former directors who had supported the company’s investments in the cancelled Ostroleka C coal-fired power station project. This is a new category of cases introduced this year to reflect an increase in litigation over the management of transition risk.

Future trends

The Report observes that the update to the OECD Guidelines for Multinational Enterprises demonstrates increased expectations for corporate due diligence. In the EU, the new Corporate Sustainability Due Diligence Directive (“CSDDD”) will require in-scope companies to adopt and put into effect a climate transition plan to make their business model compatible with limiting global warming to 1.5°C under the Paris Agreement. The CSDDD has since been adopted and Member States will have until 26 July 2026 to transpose it into domestic law (see our previous blog post). The Report observes that this may create a period of uncertainty for stakeholders, which is likely to give rise to new climate cases as corporates and stakeholders alike look to clarify what is required under the new legal regime.

The Report notes that several countries are adopting new legislation to fold the concept of “ecocide” into criminal law. In February 2024, Belgium became the first country in the EU to introduce ecocide as an international crime (see our previous blog post), and the EU adopted a new Directive containing an extended list of environmental crimes including an equivalent to ecocide (see our previous blog post). The Report notes it is not always clear how developments around the concept of ecocide will translate into climate law, but discussions around the concept are starting to take place. The Report notes that several efforts have already been made to involve the International Criminal Court in climate issues.

The Report also states that, as the frequency and intensity of climate-related disasters continue to rise, it expects a new category of legal disputes to emerge around the question of what “good” recovery looks like (referred to as “post-disaster” cases). 

Finally, the Report states that effective strategies in climate litigation cases are increasingly likely to be transferred to and integrated into other types of environmental cases (e.g. plastics litigation). In particular, it expects that rights-based environmental cases will continue to leverage climate arguments (and vice versa). 

Conclusion 

As illustrated by the Report, climate litigation continues to drive shifts in thinking and behaviour among many stakeholder groups (including courts, regulators, financiers and insurers).

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).  

For further information, please see our ESG Litigation and Risk Management page. 

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