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Global Climate Litigation Set Sights on Government, Industry

Dec. 30, 2022, 10:30 AM

While the US Supreme Court in 2022 trimmed executive authority over broad-reaching climate regulation, legal bodies around the world ruled in favor of plaintiffs looking to hold industry and officials accountable for greenhouse gas mitigation.

Companies and governments have been facing steadily moving constitutional climate lawsuits in courts across the globe, highlighting the growing influence of human rights law in global warming cases.

International courts are often better suited to address climate liability claims than in the US, due to legally binding human rights frameworks and newer constitutions with baked-in environmental rights.

Forty-seven new cases were filed globally in 2022, where observers “will likely continue to see a wide diversity of approaches to the role of courts in climate change,” according to a December post authored by Sabin Center for Climate Change Law global climate litigation fellow Maria Antonia Tigre.

In an interview with Bloomberg Law, Tigre laid out the biggest courtroom advancements, particularly for litigants looking to apply human rights frameworks to climate disasters.

“I think we’re expecting exciting things to happen,” she said.

Here are some global developments to watch.

Vanuatu

The island nation of Vanuatu and 16 other countries filed a draft resolution in November to the International Court of Justice, the judicial branch of the United Nations, requesting an advisory opinion from the body “on the obligations of States in respect of climate change.”

The submission is part of a yearslong effort by Vanuatu, which is under threat from rising sea levels, to hold richer, high-emitting countries accountable for their obligations to nations struggling under climate impacts. That effort, also known as loss and damage, played a key role in negotiations at this year’s UN Climate Change Conference in Egypt, COP27.

The International Court of Justice will hold hearings and potentially issue a non-binding advisory opinion that could affect climate litigation and loss and damage movements worldwide.

Brazil

The Brazilian Supreme Court in June ruled that the Paris Agreement is a human rights treaty, which potentially opens up future climate litigation to stricter legal standards under Brazilian law.

In Brazil, human rights treaties fall under “supranational” legal categories that place them on a pedestal within the nation’s legal framework.

The ruling was handed down in a lawsuit over the government’s alleged failure to properly spend funds earmarked for climate action. Brazil’s Climate Fund was established in 2009 as the country’s budget for its national climate plans. The money is supposed to go toward projects and research to reduce warming impacts in Brazil—one of the world’s top 10 carbon emitters.

Philippines

A multiyear investigation by the Philippines Commission on Human Rights that began in 2017 came to a close in May, concluding that 47 corporations knew about climate harms exacerbated by fossil fuel use and willfully obstructed revealing science on global warming.

The commission’s findings may force energy companies operating in the Philippines to provide remediation for the human rights infractions. The report also makes recommendations to the government to amend its “mediocre actions” to mitigate climate catastrophe.

Australia

The UN Human Rights Committee found in December that the Australian government has failed to protect the lives and human rights of indigenous Torres Strait Islanders from climate disaster.

The complaint was submitted by Islanders and their children in 2019, alleging that inadequate government climate action contributes to severe weather changes that threaten their cultural heritage, livelihoods, and homes.

That case “really has huge significance, and we can surely expect more of that, not only within the UN, but also obviously within domestic courts replicating that decision and trying to define it at a domestic level,” Tigre said of the decision.

Czech Republic

Citizens of the Czech Republic won a constitutional climate victory in June at Prague Municipal Court, where judges found that the government failed in its obligations to adequately mitigate greenhouse gases.

The plaintiffs filed the lawsuit in April 2021, claiming that the central government of the Czech Republic violated human rights law through its inaction on climate change. Some of the citizens’ claims were dismissed, but judges ultimately found the government’s insufficient carbon mitigation measures unlawful.

Peru

In 2015, Peruvian farmer Saúl Luciano Lliuya filed a complaint at a German district court against the country’s largest electricity producer, RWE, claiming that the company’s outsize emissions are helping to cause glacier meltdown around his home city of Huaraz, Peru.

The long-running case reached a milestone in 2022, when German judges took a site visit to Huaraz to see the climate impacts themselves—namely, the growth of a glacial lake that is encroaching on Huaraz.

Netherlands

Shell appealed a landmark decision from the Hague District Court in July, challenging a ruling that the company is “obliged to reduce the CO2 emissions of the Shell group’s activities by net 45% at end 2030 relative to 2019 through the Shell group’s corporate policy.”

European Court of Human Rights

Two climate lawsuits were bumped up to the highest echelon of judges at the European Court of Human Rights in 2022, which means the tribunal could issue its first climate judgment in 2023.

The Grand Chamber will hear a Portuguese youth climate case, brought by young activists against 33 countries over the country’s alleged inaction on greenhouse gas reductions. The Grand Chamber will also hear a constitutional climate case out of France, which also questions whether climate inaction violates European human rights law.

To contact the reporter on this story: Jennifer Hijazi in Washington at jhijazi@bloombergindustry.com

To contact the editors responsible for this story: Zachary Sherwood at zsherwood@bloombergindustry.com; Renee Schoof at rschoof@bloombergindustry.com