The number of climate change-related cases worldwide more than doubled in the past six years, according to recent data from the Grantham Research Institute on Climate Change and the Environment at the London School of Economics.
More than 1,000 cases globally have been brought in the last six years, since the Paris Agreement in 2015 — with 191 new climate change cases being filed between May 2020 and May 2021. This compares to about 800 cases filed from 1986 to 2014.
While the majority of claims since 1986 have been in the U.S. — with the EU and Australia being other jurisdictions with the highest volume of cases — in the past year, cases were filed for the first time in Guyana, Taiwan, the East African Court of Human Rights and the European Court of Human Rights.
While claims against corporations have historically been dominated by cases against fossil fuel companies, claims are now being filed against a wider range of private sector organizations. For example, in 2020, an action was brought against dairy company Fonterra claiming a duty of care to reduce emissions, and cases were also filed against companies with a more indirect role such as those in the financial services sector.
Non-governmental organizations (NGOs) and individuals are responsible for an increasing number of claims. And, ‘strategic’ cases, which aim to bring about some broader societal shift such as advancing climate policies, creating public awareness, or changing the behavior of government, are also dramatically on the rise.
A report from the UN Environment Program (UNEP) released earlier this year corroborates these findings. Key trends trends in climate litigation, according to the UNEP, include:
- Violations of ‘climate rights’, i.e. fundamental human rights including the right to life, health, food, and water.
- Failures of governments to enforce their commitments on climate change mitigation and adaptation.
- ‘Greenwashing’ and non-disclosures, when corporate messaging contains false or misleading information about climate change impacts.
The Grantham Institute researchers predict that climate change litigation will continue to grow and diversify. Growth areas include supply and value chain litigation; cases challenging government support to the fossil fuel industry; and so-called ‘just transition’ cases, in which claimants oppose climate change adaptation or mitigation projects due to their impacts on the environment and communities.
Corporations should also be wary of potential actions that can occur outside of the courtroom, explain Mark Clarke and Clare Connellan, partners at international law firm White & Case. The rising sense of urgency to mitigate the effects of climate change has prompted shareholders to utilize traditional business mechanisms, such as voting on environmental resolutions at annual meetings to decrease the company’s carbon footprint.
In the last year, shareholders at a number of financial and energy companies have proposed and voted in favor of setting climate targets in line with the Paris Agreement, though not all have passed. Some companies are also being asked by their shareholders to disclose how their business models will be compatible with a net zero economy.