Governments around the world are being forced to set out clear rules for action following a “surge” in climate litigation. .
A new report from the Climate Litigation Network explores how 10 years of court cases have helped establish “binding legal duties” for leaders and big polluters to help protect citizens from climate harm.
Many of these legal battles were inspired by the groundbreaking Urgenda case, which marked the first time a court anywhere in the world ordered a government to take stronger climate action.
The ruling came after the non-profit Urgenda Foundation, along with almost 1,000 citizens, petitioned Dutch courts to hold the government to its own commitments to reduce emissions, protect the public and uphold human rights.
Climate cases are ‘restoring agency and trust’
The report, titled Laying the foundations for our shared future: how ten years of climate cases built a legal architecture for climate protection, argues that the rise of climate litigation is a direct response to governmental and corporate failure to address the “defining challenge of our time”.
Globally, almost nine in ten people (89 per cent) want their governments to do more to tackle climate change – yet only one in five people believe their government will keep its promises.
“In this context, climate litigation has become a means of restoring agency and trust,” the report reads.
“Litigation allows citizens to seek accountability through independent courts, which promise to assess their plight according to the law rather than short-term political pressures.”
Climate defences
Successfully suing a government or powerful company once seemed impossible, but long-standing defences are now being challenged. Since the 1990s, corporations have relied on a trio of key arguments to “resist accountability” in the courts.
These are the “leave it to politics defence” which argues that climate policy is too complex for the courts; the “drop in the ocean” defence, which claims that a single country or company is too globally insignificant to create enforceable legal duties; and the “choose any target” defence, which says that governments and companies are free to determine the level and timing of their emissions reductions.
Case by case, the power of these defences has dwindled, resulting in strengthened climate targets and amended laws in countries like Brazil, Germany, Ireland, the Netherlands and South Korea.
This has helped lay down legal foundations that also empower communities to challenge once untouchable fossil fuel giants like Shell and TotalEnergies.
Climate change in the courts
The report details a number of successful climate cases that have gone through the courts following the Urgenda case.
For example, in 2015, Asghar Leghair filed a case against the Pakistani Government demanding that it do more to protect the country from increasinglysevere climate impacts. The Lahore High Court ruled in favour of Leghair, ordering the establishment of a Climate Change Commission and tasked government agencies with implementing climate policies.
In Switzerland, members of KilmaSeniorinnen challenged the government’s climate inaction as a violation of their human rights.
The case led to a landmark decision of the European Court of Human Rights, which found that Switzerland was in fact breaking its human rights obligations by failing to adopt a sufficient reduction pathway for greenhouse gas emissions.
Even failed court cases, like Pabai v Commonwealth of Australia, have successfully drawn national attention to the existential threat climate change poses and underscored the need for stronger government action.
This case saw two elders from the Torres Strait Islands file a class action against the Australian Government in 2021 over rising sea levels that threatened their community.
In 2015, mountain guide and farmer Saúl Luciano Lliuya took RWE, Germany’s largest electricity producer, to court.
Lliyua argued that the company’s emissions were contributing to the melting of glaciers in Peru, and that RWE should help pay for flood defences for the city of Huaraz.
Despite the case failing, the court’s ruling now means that if a major carbon emitter refuses to take “protective measures”, then it could be held responsible for costs proportional to its share of emissions, even before damages occur.
Overall, the report says these kinds of cases have created legal building blocks defining how governments must reduce emissions to prevent dangerous climate change. This includes limiting temperature increase to 1.5℃, as outlined in the Paris Agreement, and ensuring that big polluters can be held accountable for climate damages.
A ‘legal imperative’
“What was a moral imperative ten years ago has become a legal imperative,” says Sarah Mead, co-director of the Climate Litigation Network.
“Big polluters – the governments and companies most responsible for climate change – have a duty to pull their weight in the global effort to stop dangerous climate change.”
Mead adds that the world’s highest-emitting companies shouldn’t be able to “pollute with impunity” and profit “on the back of our future”, arguing the courts are now catching up.
Dennis van Berkle, Legal Counsel at Urgenda, says that over the past decade, people have used the courts to build an accountability framework from the ground up.
“We’ve never been in a better place to use the law to protect people and the planet from climate change,” he adds.