A Yearly Update on Climate Change Litigation, the 2021 Edition

26 Oct A Yearly Update on Climate Change Litigation, the 2021 Edition

For a number of years, the Environmental Law Centre (“ELC”) has published a semi-regular blog series highlighting some of the major climate change litigation around the world – a rapidly expanding area of law. For example, between 1986 and 2014 approximately 800 climate change litigation cases were filed. However, in the years afterwards, between 2014 and 2020, over 1,000 have already been filed.[1] Clearly, the number of cases has seen a major increase.

Rather than listing new cases (which would be a long list), this blog will instead focus on some of the themes that have emerged along with the ongoing spread of climate litigation. Ideally, understanding the types of climate litigation will help predict what may be successful in Canada in the coming months and years. To do this, we will focus on work from two research organizations, the London School of Economics and the Geneva Association.

One way to track the current trends in climate litigation strategies comes from the London School of Economics Grantham Research Institute on Climate Change and the Environment. They suggest that there are four main types of climate case or cases that focus on:[2]

1. 1. compliance with climate commitments;
   2. constitutional and human rights;
   3. corporate and financial markets; and
   4. adaptation.

On the other hand, the Geneva Association takes a slightly different approach, classifying litigation by:[3]

• • motivation (private interest vs strategic cases);
  • litigants (defendants & claimants); and
  • the extent to which the case is about climate change.

We will use both lists to highlight what has been happening in the climate litigation sphere.

Notably, one of the key findings in both surveys is that climate change is becoming a source of new laws, obligations, standards, and duties of care.[4] It is also expanding the idea of who can bring a climate change case and why. One type of climate litigation centres around specific harms. This might look like opposition to a specific project or compensation for the infrastructure required to adapt to the ongoing effects of climate change. [5] In contrast, strategic litigation not only seeks an immediate legal remedy but also seeks to raise awareness, drive behavioural shifts, or start a debate.[6]

Compliance with Climate Commitments

One of the most common types of climate litigation are those cases focused on national compliance with climate commitments. These cases seek to hold governments to account for failing to act in a manner that is consistent with their global responsibility for climate commitments, particularly after the successful negotiation of the Paris Agreement.[7] The Grantham Institute further divides these cases into two categories: (1) claims regarding government action or omission; and (2) claims regarding the authorisation of third-party activities.[8]

1. Claims Regarding Government Action or Omission

One recent example of a claim regarding government action or omission is the British case Plan B Earth et al. v Prime Minister.[9] This case was brought by a group of British claimants in May 2021. They argue that the UK government violated their human rights by failing to implement effective measures to uphold its Paris Agreement commitments and seek a court order requiring the UK government to urgently implement a legislative and administrative framework sufficient to uphold these commitments.[10] We will have to wait and see if this application is successful but it is interesting to see these types of cases build on the achievement of the Netherlands v Urgenda decision (read more about this case here) which challenged the adequacy of the Dutch national climate plan.[11]

On the other hand…

While climate litigation that attempts to hold governments accountable for their contributions to the negative effects of climate change clearly continues, litigation that attempts to undermine climate commitments has also begun. The Grantham Institute noticed an uptick in these types of cases, specifically those that challenged government actions and other decisions taken in pursuit of climate commitments.[12] These cases undermine climate change law and policy, often on the basis of constitutional protections for property rights or alleged breaches of international investment agreements.[13]

2. Claims Regarding the Authorisation of Third-Party Activity

The second sub-category are those files which go after governments or other public authorities for authorising third party activities which led to increased GHG emissions. In their findings, the Grantham Institute highlighted that these cases are typically challenges to the approval processes for new fossil-fuel intensive projects.[14]

One interesting example of this type of climate litigation is the Australian decision of Sharma v Minister for the Environment.[15] It was initiated by a group of Australian youth in light of a decision due to be taken on an extension to the Vickery Coal Mine, which, if approved, would have resulted in an increase of GHG emissions equal to 100 Mt Co²-equivalent.[16] The claimants asked the Court for declaratory and injunctive relief stopping the Minister from approving the mine extension and arguing that there is a duty of care owed to the children of Australia under sections 130 and 133 of the Environment Protection and Biodiversity Conservation Act to ensure they are not caused harm as a consequence of climate change.[17] While the Court did not agree to the injunction, the Federal Court of Australia did recognize a novel duty of care under the law of negligence and found that this duty of care was owed by the federal government to the children of Australia.[18] The duty required the Minister to exercise her power under sections 130 and 133 of Environment Protection and Biodiversity Conservation Act with such reasonable care so as to not cause the children of Australia harm resulting from the extraction of coal and subsequent emissions of CO² into the Earth’s atmosphere.[19]

Human Rights Decisions

The next theme identified is the increase in the number of cases focused on human rights. In fact, dozens of human rights focused cases were filed in 2020 and 2021 alone.[20] These cases are often particularly important because of the accompanying media campaigns, which even in the event of a negative court outcome, may help to shift public opinion.

A Focus on the Financial

Corporate and financial cases have thus far been dominated by claims against fossil fuel companies and are generally based on arguments that the activities of these companies directly relate to GHG emissions.[21] Notably, as of mid-2021, there were 33 ongoing climate cases worldwide against the so-called ‘Carbon Majors’. The term Carbon Majors was derived from work by Richard Heed which seeks to attribute 63% of the CO² and methane emissions released between 1751 and 2010 to 90 companies.[22] These Carbon Majors are increasingly the target of strategic litigation and litigants seek to establish corporate liability by arguing that they were responsible for climate change, relying on new work done to attribute emissions to this small number of emitters.[23]

More recent cases have ranged from direct litigation against companies with the highest historical emissions, to cases involving other industries with a high carbon footprint, and now to more indirect cases such as those against financial markets.[24]

An interesting shift in the corporate space has been an increased focus on claims related to financial risks, fiduciary duties and corporate due diligence.[25] For example, the issue of what should be considered adequate disclosure on climate related risks for shareholders, consumers, and investors.[26] While there has been clear focus on corporate entities, cases have also been brought against companies, fund managers, and fiduciaries for their failure to manage climate change risk including physical and transition risks.[27] This area of litigation has also started to focus more on government due diligence. These are cases brought against governments for failing to disclose the material risks of climate change associated with government bonds.[28]

Another offshoot of corporate focused litigation is the idea of corporate due diligence and greenwashing. For example, in April 2021 ClientEarth, an international environmental organization, released research claiming that the advertising campaigns of large fossil fuel companies are misleading the public on climate change. [29] This idea has also been seen in the courtroom. In June 2020, the State of Minnesota filed a case against Exxon Mobil, Koch Industries Inc. and the American Petroleum Institute alleging that these organisations had engaged in deception and fraud through their advertising campaigns and disinformation.[30]

How did these cases take off?

Taking these themes into account, it is also interesting to consider factors that have led to an increase in the overall number of climate litigation files. The Geneva Association highlights seven key factors including:

1. Increased physical and transition risk: this idea suggests that as the physical and transition risks associated with climate change become more obvious, litigation will follow. For example, those who have already suffered loss and damage due to extreme weather, wildfires, and sea level rise have already started to turn to the courts for help.[31]
2. Increasing awareness of the climate crisis: in the last few years, public campaigns including the viral ‘Fridays for Future’ campaign have gained tremendous momentum and as a result, interest in climate litigation has also increased.[32]
3. Stronger climate commitments: The Paris Agreement really kicked off the idea of holding national governments to account for their international commitments. As we go into COP26, it will be interesting to see how this progresses along with future international accords.[33]
4. Availability of funding: With attention comes funding and this new funding has expanded into three new types: contingency fee arrangements, third-party litigation financing, and crowdfunding.[34] Each offers new litigants an opportunity to get involved, particularly if they would have not been able to afford to pursue litigation without these options.
5. Evolving legal duties: A duty of care is a legal obligation to take reasonable care to avoid causing damage. As new causes of action are brought in the pursuit of climate goals, we have also seen an expanded duty of care required by governments. This has changed to include the requirement to protect citizens from the harmful effects of climate change.[35] New legal duties are also being imposed upon financial sectors including to disclose and manage climate change risks on behalf of their shareholders – with the opportunity for shareholders to bring a claim against them if they do not do so.[36]
6. Developments in climate change attribution science: attribution science refers to a field of research that attempts to identify the extent to which human influence is associated with specific weather and climate events, perhaps helping to clarify the always complicated ‘but for’ test to prove liability.[37]
7. The implications of COVID-19: as with everything, it is still unclear what the impacts of the ongoing pandemic will be on climate litigation but it will be important to watch.

While climate may have been overshadowed by Covid this year, it is clear that using the courts to advance climate-related goals has arrived. Stay tuned to this space for future blogs and case commentary.

[1] Joana Setzer & Catherine Higham, “Global trends in climate change litigation: 2021 snapshot” (July 2021) Grantham Research Institute on Climate Change and the Environment at 4 online: https://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2021/07/Global-trends-in-climate-change-litigation_2021-snapshot.pdf [Setzer & Higham].

[2] Ibid at 6-7.

[3] Maryam Golnaraghi et al., “Climate Change Litigation: Insights into the evolving global landscape” (April 2021) The Geneva Association at 6 online: https://www.genevaassociation.org/sites/default/files/research-topics-document-type/pdf_public/climate_litigation_04-07-2021.pdf[Golnaraghi et al.].

[4] Ibid at 5.

[5] Setzer & Higham, supra note 1 at 28.

[6] Golnaraghi et al., supra note 3 at 19.

[7] Setzer & Higham, supra note 1 at 23.

[8] Ibid at 23.

[9] Plan B Earth v The Prime Minister, (2021) Application to High Court of Justice Queen’s Bench Division online: http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2021/20210501_13442_complaint.pdf.

[10] Grantham Research Institute on Climate Change and Environment, “Plan B Earth and Others v. Prime Minister” online: https://climate-laws.org/geographies/united-kingdom/litigation_cases/plan-b-earth-and-others-v-prime-minister.

[11] The State of the Netherlands v Stichting Urgenda, 19/00135 (20 December 2019) online: https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:HR:2019:2007.

[12] Setzer & Higham, supra note 1 at 26.

[13] Ibid at 26.

[14] Ibid at 25.

[15] Sharma v Minister for the Environment, [2021] FCA 560.

[16] Ibid at para 7.

[17] Ibid at paras 10 & 11.

[18] Ibid at 502.

[19] Ibid at 513; Setzer & Higham, supra note 1 at 25.

[20] Ibid at 32.

[21] Setzer & Higham, supra note 1 at 27.

[22] Richard Heede, “Tracing anthropogenic carbon dioxide and methane emissions to fossil fuel and cement producers, 1854-2010” (22 November 2013) Climate Change 122, 229-241 online: https://link.springer.com/article/10.1007/s10584-013-0986-y.

[23] Golnaraghi et al., supra note 3 at 21.

[24] Ibid at 27-28.

[25] Setzer & Higham, supra note 1 at 29.

[26] Ibid at 29.

[27] Setzer & Higham, supra note 1 at 29.

[28] O’Donnell v Commonwealth, [2020] FCA Complaint File Number VID482/2020 online: http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2020/20200722_11843_complaint.pdf.

[29] ClientEarth, “Revealed: 9 examples of fossil fuel company greenwashing” (19 April 2021) online: https://www.clientearth.org/latest/latest-updates/news/revealed-9-examples-of-fossil-fuel-company-greenwashing/.

[30] Climate Case Chart, Summary of Minnesota v American Petroleum Institute (2020) online: http://climatecasechart.com/climate-change-litigation/case/state-v-american-petroleum-institute/.

[31] Golnaraghi et al., supra note 3 at 25.

[32] Golnaraghi et al., supra note 3 at 25.

[33] Ibid at 25.

[34] Ibid at 25-26.

[35] Ibid at 26-27.

[36] Ibid at 27.

[37] Ibid at 27-28.

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