Can Climate Litigation Support Global Action on Climate Change?

By Alejandra Cicero and Jesse Coleman
October 24, 2016

On Oct. 5, states representing more than 55 percent of global carbon emissions ratified the Paris Climate Agreement, marking a momentous day for action on climate change. Swift ratification of the agreement reflects global consensus on the urgent need for tangible climate action, consensus that is mirrored in other global commitments, including Goal 13 of the Sustainable Development Goals.

The Paris Agreement will now enter into force on Nov. 4, less than one year after its conclusion. Yet commencement does not by itself guarantee fulfillment of the commitments enshrined in the landmark agreement. Achieving global climate change priorities will require action at all levels, by all stakeholders, and by means of all available mechanisms. As the focus shifts from consensus to implementation, can “climate litigation” provide a mechanism for individuals, civil society, and governments to support and reinforce global action on climate change?

Claims that fall under the umbrella term “climate litigation” can include all claimslodged at national, regional and international levels where “an issue of fact or law regarding the substance or policy of climate change causes and impacts” is raised. The term thus covers a wide range of substantive and procedural claims that seek to promote, or indeed to challenge, climate action.

In the United States, for example, claims have ranged from common law to statutory claims, claims based on public international law, constitutional claims and petitions concerning endangered species. Noteworthy claims include: the 2007 decision of the Supreme Court in Massachusetts v. EPA; a claim brought by 21 youths (aged 8 to 19) and climate scientist James E. Hansen against the federal government alleging that failure to take action with respect to climate change violated the plaintiffs’ constitutional rights; and the ongoing investigation initiated by the New York State Attorney General concerning Exxon Mobil’s disclosures regarding risks posed by climate change, a line of inquiry that has also been picked up by the Securities and Exchange Commission. Indeed, from the mid-1990s through 2013, more than 420 climate claims were resolved in the U.S. alone, compared to 173 claims addressed by non-U.S. courts.

Recent cases in several jurisdictions outside the U.S. may indicate a growing momentum toward “climate justice,” with individuals and civil society advancing rights-based arguments in seeking to hold governments and corporations accountable for acts and omissions concerning climate change. In Pakistan, for example, a citizen succeeded in obtaining an order from the Green Bench of the Lahore High Court requiring implementation of the country’s Framework for Implementation of Climate Change Policy, with the court concluding that failure by the federal and Punjab governments to take concrete action with respect to the framework threatened the fundamental rights of the citizens of Pakistan, as protected by the Pakistani Constitution and international law. A similar claim was filed this year by a 7-year-old girl on behalf of all Pakistani citizens challenging acts and omissions of the federal and Sindh governments with respect to climate change.

In the Netherlands, a foundation’s claim against the state resulted in the Hague District Court ordering the state to reduce Dutch greenhouse gas emissions to at least 25 percent below 1990 levels by the year 2020. The case inspired a similar claim in Belgium.

While these cases aim to compel government action to address climate change, others are directed at influencing corporate conduct or imposing corporate liability. A petition recently submitted to the Commission on Human Rights of the Philippines, for example, specifically seeks to hold the “Carbon Majors” accountable for alleged human rights implications of climate change. Submitted by Greenpeace Southeast Asia and the Philippine Rural Reconstruction Movement (with support from 12 other civil society organizations and more than 1,200 individuals), the claim is unique in terms of its scope, targeting corporations based both within and outside the Philippines. An official investigation of all 47 respondent companies is due to begin this month, though the commission may only compel companies with offices in the Philippines to participate in public hearings.

Individuals and civil society seeking to influence climate action are also turning to regional and international forums for help. The European Court of Human Rights and Inter-American Commission on Human Rights have both received claims concerning violations of rights to life, health, property and information in the context of climate change. As the human rights implications of climate change are increasingly realized, documented and acknowledged, the role played by human rights tribunals is likely to increase.

Although a dispute concerning climate change has yet to be submitted to the International Court of Justice, the court has decided cases relating to sustainable development and the environment more generally. Given the complex and developing nature of states’ obligations with respect to climate change, it is possible that the court may be called upon to issue an advisory opinion on the matter (eitherwith respect to public international law generally, or specifically pursuant to the Paris Agreement). Perhaps unexpectedly, the International Criminal Court announced last month that it would “give particular consideration to prosecuting [individuals and states for] Rome statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land,” illustrating yet further engagement from international legal actors with climate justice.

As these examples illustrate, individuals and organizations around the world are engaging with domestic, regional, and international courts and tribunals to try to advance or compel climate action. However, the impact of this engagement has yet to be determined. Will a sufficiently strong and coherent jurisprudential narrative on legal responsibility for acts and omissions with respect to climate change develop? To what extent could this narrative succeed in meaningfully influencing private sector action on climate change? In the absence of an enforcement mechanism under the Paris Agreement, could climate litigation provide a crucial means of ensuring compliance with the commitments enshrined in that agreement?

These and other questions will be up for discussion at the 11th Annual Columbia International Investment Conference on “Climate Change and Sustainable Investment in Natural Resources: From Consensus to Action.” For more information, and to register for the Conference, see here.

Alejandra Cicero is a legal fellow and Jesse Coleman is a legal researcher at the Columbia Center on Sustainable Investment. The authors would like to thank Lise Johnson and Brooke Guven for their helpful comments.