A US Supreme Court ruling this week is set to open the floodgates for climate lawsuits against fossil fuel companies that have been blocked for years by jurisdictional disputes. The decision comes on the heels of a bumper year for global climate litigation in 2022 and ahead of major climate rulings expected from international courts in coming months. As environmental disruption intensifies globally, is legal action an effective way to counter the climate crisis?
Justices at the US Supreme Court on Monday turned down appeals from five major oil companies, enabling municipalities to file lawsuits to hold energy companies accountable for climate change. The lawsuits must now be heard in state courts, a venue often seen as more favourable to plaintiffs than federal court
The decision was greeted as good news by environmentalists, after years of administrative wrangling over the cases brought in Rhode Island, California, Colorado, Hawaii and Maryland seeking climate-related damages against Exxon Mobil Corp, Suncor Energy Inc, Chevron Corp and others.
“These lawsuits have been bogged down in jurisdictional disputes because of the fossil fuel industry’s delay tactics,” said Richard Wiles, president of the Washington DC-based Center for Climate Integrity. “Now, thanks to the Supreme Court’s decision, there is a clear path forward. This was a major step forward for communities that have been fighting for years to put oil companies on trial.”
“The decision allows the more than two dozen cases filed in the US against the oil and gas industry to proceed in state courts, closer to where climate impacts are occurring,” added Nikki Reisch, Climate and Energy Program Director at the Center for International Environment Law (CIEL). “It clears the way for aggrieved communities to finally have their day in court.”
A rising tide
In recent years climate litigation has emerged as a new and promising battle ground for environmental protections. Cases in the US (home to the most climate lawsuits of any single nation) will now form part of a “rising tide” of climate litigation around the world, according to Reisch.
Since 2015, the number of climate lawsuits brought globally has more than doubled. Roughly one-quarter of all climate cases ever brought were filed between 2020 and 2022.
“There is no sign of this trend slowing or stopping. To the contrary, it’s accelerating and expanding,” said Reisch.
Recent cases have included some “remarkable wins in a very short period of time", she added.
They include a 2017 lawsuit that saw the first case of a company facing legal charges on climate grounds when judges in Germany accepted a case brought by farmer and mountain guide Saul Luciano Lliuya accusing German electricity provider, RWE, of causing a rise in greenhouse gases that could trigger devastating floods in his native Peru.
In 2021, judges for the first time ordered a company to emit less CO2 in a landmark ruling by Dutch courts against oil giant Shell.
>> Read more: Shell ordered to go further with carbon emissions cuts in landmark Dutch case
There is a sense that more boundary-pushing rulings are on the horizon. In the Shell case, for instance, judges ruled on the potential for future harm but not on the negative impact of past emissions.
2023: ‘A vanguard year’
The larger rulings help galvanise other, smaller cases and create a snowball effect. The more individual climate cases succeed in the courts, the more they set new legal precedents that allow other climate cases to succeed – which the majority do. More than half (54%) of decided non-US cases had an outcome that is “favourable to climate action” a 2022 report from the Grantham Research Institute found.
The stage is set for climate lawsuits in 2023 to break new ground. “It will be a vanguard year for climate litigation, based on all the past successes in the past,” said Louise Fournier, legal counsel at Greenpeace International. “I think we’ll see more and more cases against corporations, not only in Europe or in the US, but also in the Global South.”
Previously, most climate lawsuits were brought before national legal systems, but a new avenue of litigation is opening international courts. In January 2023, Chile and Columbia successfully called for an advisory opinion on the scope of state obligations for responding to the climate emergency at the Inter American Court of Human Rights. In March, landmark cases were brought to the European Court of Human Rights.
The decisions made in these courts are likely to influence the highest international court. In March 2023, the International Court of Justice (ICJ), agreed to issue its own landmark advisory opinion on climate change obligations of nation states. Environmentalists hope it will contain guidance on “questions of loss, damage and finance and the consequences if you breach those obligations”, according to Fournier.
Such guidance would not only allow plaintiffs around the world to cite ICJ advice in their cases but also “definitely influence climate negotiations and national climate policies”, said Fournier.
Pushing the boundaries
Increasingly, cases are not just being brought against major polluters, but also against other actors in the environmental sphere: the state, food and agriculture, transport, plastics and finance sectors. There is also an avenue for an increase in cases against individuals that could “create a sense of personal responsibility on decision makers” said Catherine Higham, policy fellow at the Grantham Research Institute on Climate Change and the Environment at the London School of Economics.
One such case has been brought by a group of law students against the board directors of oil multinational BP. Another accuses former Brazilian President Jair Bolsonaro of crimes against humanity for his alleged role in the destruction of the Amazon rainforest.
“Those cases are really pushing the boundaries of what we understand to be possible within existing legal systems,” said Higham. They may also have limited chance of courtroom success, she added, although they can be influential in other ways.
In many instances, climate lawsuit dynamics still have a David vs. Goliath feel. More than 70% of all climate cases are filed by NGOs and individuals often against multinational conglomerates with deep pockets. But the fact that such confrontations are possible – and increasingly successful – is meaningful.
“There is a sense of agency that individuals and groups of people have in bringing cases against major corporations,” said Fournier. “The fact that they can go to court and be on an equal balance-of-power is really monumental.”
Even by simply filing a case the plaintiffs make a statement. “Litigants can generate publicity around it, and they can force the defendants in the case and other stakeholders to engage with them,” explainned Higham. “That can have a real impact on the policy landscape, and how different stakeholders like companies and governments are understanding things like climate risk.”
Changing perceptions and encouraging systemic change is perhaps where climate litigation is most effective. But without long-term plans to tackle climate change caused by humans, legal victories can ring hollow.
“What lawsuits do is highlight gaps in regulatory action. And it is absolutely desirable, from all kinds of perspectives, that we see strong regulatory action coming from government, rather than relying on litigation in the courts,” said Higham.
“It’s critical that climate cases be part of broader social movements,” added Reisch. “Litigation serves as an important deterrent and a lever to accelerate action, but no lawsuit will solve the climate crisis on its own.”
