Is litigation aiding the transition from fossil fuels to green energy?
Climate litigation has doubled since 2015, with the impact of cases often stretching far beyond the final court verdict
Hawaiian children are suing their local transport department over pollution concerns. Transport Action Network has issued a legal challenge against the UK government for its road investment strategy. And Greenpeace Germany filed a lawsuit against Volkswagen AG for failing to protect the planet.
There is an uptick in litigation against fossil fuel-driven transport, driven by concerns about the planet’s climate. But do these legal actions affect transport strategies, and do they push businesses towards positive climate action?
In 2022, the IPCC recognised the role that litigation can play in affecting “the outcome and ambition of climate governance”. The number of climate-related lawsuits has doubled since 2015, with almost a quarter of those cases filed since the start of 2020, according to Global Trends in Climate Litigation, an annual report by the Grantham Research Institute on Climate Change and the Environment at the London School of Economics and Political Science.
Joana Setzer is assistant professor at the institute and the report’s co-author. Much of climate litigation is against governments, she says, inspired by the landmark case between Dutch citizens and the Urgenda Foundation NGO versus the state of the Netherlands in 2015.
“The district courts of the Hague agreed that the government wasn’t doing enough to prevent climate change. It was the first time you had a court telling a government to raise ambitions and that was a turning point,” she explains. “The whole landscape changed quite dramatically after that.”
Globally, there are now 73 cases challenging governments’ overall response to climate change. And of the eight where decisions have already been issued by the country’s highest court, six had favourable outcomes for climate action.
But Setzer points out that suits are no longer limited to the carbon majors but extending into other sectors. “In 2021, 16 of the 38 cases against corporate defendants were filed against fossil fuel companies, while more than half were filed against defendants in other sectors, with transport, food and agriculture, plastics and finance all targeted in multiple cases,” she says.
In her opinion, these claims are increasing partly as climate litigation cases have support from the wider community. “Climate change is widely discussed now, and there is more expertise among lawyers who are better prepared to bring these cases and judges who are more accepting of these cases,” she says.
Ugo Taddei leads the Clean Air team within the Strategic Litigation programme at the NGO ClientEarth. He believes that such suits are effective in bringing about environmental action. “Air pollution is falling twice as steeply in cities in Germany where air quality litigation has been taken, compared with those with no legal interventions,” he says.
On the corporate side, he adds, litigation sends strong market signals to companies. The automotive sector, for example, has been greatly affected by air pollution rising to the top of the health agenda in the past decade, with legal challenges to authorities that have failed to comply with regulations to limit air pollution across Europe.
ClientEarth has been involved in several of these cases, notably winning three national challenges on air pollution against the UK government. “In the final ruling in 2018, the judge said good intention from the government is not enough. We need ClientEarth to keep putting pressure on the government so it will deliver,” he says.
“When I joined ClientEarth in 2014, more than one in two cars purchased in the EU was diesel. Last year, for the first time more electric vehicles were sold than diesel – more than 20%. I couldn’t have imagined such a quick shift. Clean air was hardly a topic in the media before,” he says.
In 2020, the UK government announced a ban on new petrol and diesel cars by 2030, which is 10 years earlier than it had previously committed to achieving. A 2035 ban on internal combustion engine vehicles is on the table at EU level.
Climate litigation with such strategic ambition is on the rise, according to Setzer. This refers to cases where the claimants’ motives go beyond the concerns of the individual case and seek to “bring about some broader societal shift”, be that climate action, raising public awareness or nudging the behaviour of government or industry actors.
An increasing number of suits are being filed in the Global South. Based in Nairobi, Mark Odaga is defending rights programme manager at Natural Justice, an environmental justice NGO. He says: “Litigation empowers communities and defends their rights. The process can be a path towards restorative justice for communities bearing the brunt of climate impact.”
Even when legal challenges are lost, the cases can be significant in terms of raising the profile of an issue. Transport Action Network didn’t ultimately stop the UK government’s £27bn road-building programme but, according to the NGO’s founder and director Chris Todd, the action was successful in other ways. “It got lots of people in the industry and media talking about the impact of road-building on the government’s carbon targets, which really raised awareness,” he says.
“Ultimately, we got the government to accept there was a need to review the national policy statement afterwards, and it acknowledged the transport to decarbonisation plan was out of date and needed to be reviewed. We see that as a direct result of our badgering through legal challenge.”
One of the new trends in climate litigation is a shifting of cases from the company to the individual, observes Setzer. “Instead of suing the company, a case is brought against the CEO. Or against a minister instead of the government.” This is seen with ClientEarth’s current legal action against Shell’s board of directors for mismanaging climate risk, which could have a powerful effect in terms of making individuals think twice before they plan.
“Litigation is a powerful storytelling tool,” says Setzer. “The more media coverage these cases get, the more cases there are and the greater the reputational damage can be for companies. It’s become a self-reinforcing mechanism – which encourages behaviour change.”