Trends in climate change litigation

Grantham Research Institute has published the report Global Trends in Climate Change Litigation: 2022 Snapshot which outlines global trends in climate change litigation over the past year. According to the report, litigation related to climate change continues to grow in case numbers, importance, and geographical spread. Most disputes are still brought against governments, but lawsuits against companies, mainly in fossil fuels and other sectors with significant emissions linked to their value chains, are becoming more common.

The question of how to define climate change litigation is debated and the definition is likely to evolve as the field evolves. For the purposes of the report, climate change litigation was given a narrow definition, which means that the discussion below focuses on cases before judicial and quasi-judicial bodies that involve material issues of climate change science, policy, or law. Complaints to administrative bodies have also been included to the extent that they are indicative of an important trend or development in the field.

Climate change litigation is growing in case numbers and geographical spread

The report, which is Grantham Research Institute’s fourth in a series of annual reports on global trends in the field, notes that climate change litigation continues to grow in case numbers and have more than doubled worldwide since the Paris Agreement was signed in 2015. The increase is now taking place at a dramatic pace, which is clear from the fact that in the 28 years between 1986 and 2014 there were around 800 such disputes, compared to over 1,200 cases initiated in the last eight years up to mid-2022.

Climate change litigation is also growing in terms of geographical spread, with several ongoing cases in the United States, the Global South and European countries including Nordic countries such as Norway, Denmark and Sweden.

The increase in climate change litigation reflects the growing concern of society at large regarding the problems resulting from climate change, but also a changing legal environment. Taken together, this has meant that climate change litigation is now an increasingly common instrument for putting pressure on governments, companies and other actors.

Various sectors are affected

In contrast to how it was the past, various types of companies now appear as parties in climate change disputes. Historically, climate-related claims have been directed at large companies with significant greenhouse gas emissions within the energy and cement sectors, mainly based in the United States. Disputes against such types of companies has continued to grow in number and increasingly spread outside the United States, with litigation against companies based in Europe and Australia, among other places, before national courts and administrative bodies.

A growing trend over the past year is that climate-related disputes are increasingly being brought against companies in other sectors as well. In the last year, more than half of the defendants where companies in other sectors, including food and agriculture, plastics, transport, finance, clothing and media.

Continued increase of strategic cases

According to the report, the number of cases with a strategic ambition continues to increase. A case can be considered strategic when the claimants’ motives go beyond the concerns of the individual litigant and aim to bring about some broader societal shift, i.e. the focus is on making those legal interventions that are deemed to have the greatest legal and structural impact. This means, for example, that action is not necessarily taken against the companies that contribute the most emissions, but rather that certain key nodes and links in a certain system are identified and intervened against with the aim of achieving the greatest possible regulatory change. The trend also shows that the use of litigation as a form of public advocacy is increasing.

To better understand climate change litigation and how the trend may evolve, the climate change litigation cases can be divided into different categories based on the type of strategy behind it. The most common strategy involves enforcing climate standards. In these cases, proceedings are brought against companies regarding specific projects that are not aligned with the climate goals, but also, increasingly, corporate policies with regard to a specific area or aspect of its supply chain. Furthermore, it is common with cases regarding corporate framework which seeks to create disincentives for companies to continue with activities that contribute to large greenhouse gas emissions by requiring changes to corporate governance and decision-making. These cases often refer to standards requiring companies to conduct due diligence on human right and the environment. As an example of such standard, the report mentions the Proposal for a Directive on Corporate Sustainability Due Diligence adopted by the European Commission that we have previously written about in a number of articles (see here, among others). In addition, there are also disputes concerning, among other things, the liability of companies for damage caused by climate change.

Most of the climate-related disputes settled outside of the United States have been in favour of the climate movement. In addition, there are many climate-related disputes that are still ongoing and have not yet been finally settled by the highest court. The fact that the legal effects of these cases are currently uncertain does not prevent decision-making from being affected by the threat of possible future litigation. Already, there are examples of planned projects being put on hold and other decisions being made considering the risk of climate change litigation. Thus, the threat of climate change litigation has already proved to have a significant impact on corporate behaviour.

Future trends

Climate change litigation continues to grow in case numbers, but more importantly, the companies and sectors targeted continue to diversify. According to the report, disputes regarding climate washing is a trend to keep an extra eye on in the upcoming year, i.e. disputes aiming to holding companies legally responsible for misleading climate claims. Examples of such situations include misleading information about products or actions, actions that are inconsistent with commitments and targets, or when public bodies or companies over-rely on unproven or even non-existent technologies to remove green house gas or “negative emissions”.

Another trend is the increase of litigation focusing on personal responsibility among decision-makers who have contributed to or failed to adequately manage risks for certain individuals or groups affected by climate change. Business leaders can and will increasingly be challenged to uphold their legal obligations to manage climate risks by preparing their companies for ”net zero” emissions.

As society’s understanding of the ongoing devastating loss of biodiversity caused by climate change grows, the link between them is expected to be the subject of future litigation. According to the report, industries such as agriculture and forestry, as well as other land use, are therefore likely to be the focus of future climate change litigation. Furthermore, a growth in cases seeking to prevent illegal deforestation in forest-rich nations, as well as more cases seeking compensation for the loss of ecosystems that sequester greenhouse gases.

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