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April 24, 2024
Climate Justice

Why climate lawsuits can hold polluters accountable and transform society

Insight by Stella Levantesi

The European Court of Human Rights (ECHR) has ruled that the lack of adequate climate policies by governments violates fundamental human rights: it's a landmark verdict. For the first time, the ECHR has sided with a group of Swiss women, recognizing the right to climate protection as a human right.

The Klima Seniorinnen, a group of 2400 elderly Swiss women, argue that Switzerland should do its part to mitigate the climate crisis, particularly emphasizing that elderly women are more likely to die from heatwaves, which are becoming more intense and frequent due to global warming.

The court ruled that Swiss authorities have not developed a sufficiently effective and timely strategy to reduce emissions.

"[The ECHR's ruling] was an important judgment that, in some way, deferred to national judges the task of addressing these issues, and we believe that this decision reinforces the need for national judges to take on the task of addressing these issues when brought to court by citizens", explained Marica di Pierri, spokesperson and research director of the italian NGO A Sud.

The Strasbourg Court dismissed two other cases, one involving a French mayor against France and another involving a group of young Portuguese against 32 European countries, known as the "Duarte case" after one of the young plaintiffs.

"It feels like a mixed result because two of the cases were inadmissible", said Corina Heri, a law researcher at the University of Zurich. "But it's actually a great success".

Climate lawsuits on the Rise 

Climate lawsuits are a strategic tool not only to push for climate action and address inadequate climate responses by states and governments, but also to pressure and hold companies contributing to global warming and ecosystem destruction accountable.

Climate lawsuits are on the rise, and according to an annual report by UNEP, people are increasingly turning to courts to fight the climate crisis: children and youth, women's groups, local communities, and indigenous populations, among others, are playing an increasingly important role in bringing lawsuits and pushing for action in a growing number of countries worldwide.

“We're seeing a wide range of climate-related legal actions today, from tort to consumer protection to human rights. Together, these legal actions represent one of the most exciting areas of climate action today.", explained Benjamin Franta, Senior Research Fellow for Climate Litigation at the Oxford Sustainable Law Programme at the University of Oxford and founder of its Climate Litigation Lab, a research center on climate litigation.

By December 2022, 2,180 climate-related cases had been filed in 65 jurisdictions, including domestic courts, international and regional courts, and other judicial bodies. This is a steady increase from 884 cases in 2017 and 1,550 cases in 2020.

Although cases in the United States still represent the vast majority of global cases, the overall percentage of cases outside the United States is also increasing. Excluding US cases, Europe has the highest percentage of cases at 31.2%. Oceania, with Australia, represents 23.2% of cases. South America has 9.5% of cases. Asia and Africa have the lowest representation, with 6.6% and 2.3%, respectively. According to the report, some regions remain underrepresented due to gaps in current research.

Climate Litigation in Italy 

Italy is also seeing emerging climate lawsuits. In 2019, over 200 plaintiffs, including individuals and associations, launched the "Giudizio Universale" (“The Last Judgment”) campaign, which filed the first climate lawsuit against the Italian state in June 2021.

In March 2024, the case was closed with a ruling of inadmissibility by the judge. "The Italian court decided not to decide, therefore it said it lacked jurisdiction, and this decision is even more questionable after the judgment from the Strasbourg Court just a few days ago", Di Pierri emphasized.

The legal team of the “Rete legalità per il clima”, which followed the case, argues that "the judgment, on the one hand, blatantly contradicts the EU Charter of Fundamental Rights and the ECHR" and "on the other hand, it is also contradictory becauseit recognizes the severity and lethal urgency of the climate emergency, but it also states that in Italy there is no possibility of recourse to a judge to obtain preventive protection against this situation, despite such protection being recognized by the Constitutional Court". "Therefore, all the conditions are there to challenge it", they added.

According to Di Pierri, "this is a missed opportunity for our country. Where does our country stand? The decision makes us think that Italy somehow lags behind other European cases", she added.

In May 2023, Greenpeace Italy and ReCommon announced a lawsuit against Eni, claiming that the company used "lobbying and greenwashing" to promote the production of fossil fuels despite being aware since 1970 of the climate risks posed by its products. The two groups based the lawsuit on a similar case filed in the Netherlands against the oil company Royal Dutch Shell to compel the company to reduce its carbon emissions by 45% by 2030.

In Court against polluting companies and greenwashing 

Global climate litigation, the UNEP report shows, is currently following a number of trends in different areas: the use of "climate rights" in climate-related lawsuits, the application of law at the national level, avoiding fossil fuel extraction and leaving carbon sinks in the ground, corporate responsibility, disclosure of climate information and greenwashing, and failure to adapt to climate change and the impacts of adaptation. Indeed, one of the growing legal strands concerns greenwashing and misleading marketing by companies.

In March 2024, a Dutch court ruled that advertising by the airline company KLM was misleading and unlawful. According to the court's decision, the Dutch airline misled consumers with vague environmental statements and painted "an overly rosy picture" of its sustainable aviation fuel. This ruling is also considered a historic decision regarding climate-related lawsuits.

According to researchers from the US Climate Social Science Network, the first legal actions against greenwashing involved companies marketing polluting products as sustainable to promote the perception of being "green" companies. Even today, many lawsuits are filed on the basis that a company's marketing campaigns, for example, are misleading and deceive consumers and shareholders, or overstate their real commitment to climate and environmental protection. The gap between what a company promotes and its actual climate commitments, researchers write, can be termed climate washing.

"A decade ago, climate litigation was still largely within the realm of traditional environmental law. Today, we see a much larger emphasis on corporate accountability, based on newly discovered evidence that the Carbon Majors understood the global warming harms of their products decades ago, and then concealed that information from the public. We're also seeing a steady growth in human-rights-based actions, as the human rights implications of climate change become more widely recognized.", Franta explained.

According to the Grantham Research Institute (GRI) report from the London School of Economics (LSE), in many cases, lawsuits are filed against private sector companies, often in collaboration with governmental entities, and it is no coincidence that fossil fuel companies are amongst the most frequently involved.

Among other things, lawsuits against companies challenge misleading claims about their activities, concealment of investment plans in high-carbon projects, failure to comply with environmental and climate regulations, and accusations of intentionally hiding information and data on their emissions contributions and their role in the climate crisis.

The power of climate lawsuits 

Climate lawsuits play a crucial role in the arsenal to combat climate chaos. "Courts are uniquely positioned to hold powerful industries to account, including the fossil fuel industry", said Franta. The GRI report also speaks of "strategic" lawsuits, those that ultimately aim to bring about a "transformation of society".

"After decades of inadequate progress, climate litigation is one of the most promising avenues for holding polluters to account, fighting disinformation, protecting human rights, and reducing carbon pollution", Franta declared. Climate litigation can also impact corporate finances.

Another study from the Grantham Research Institute examines the stock market's reaction to news of a new climate lawsuit and concludes that climate lawsuits also represent a financial risk for fossil fuel-producing companies because they lower the share prices of major polluters. Although modest, researchers conclude that the decline in the value of major polluters is statistically significant and due to legal action.

"We didn't know before if the markets cared about climate litigation", Misato Sato, lead author of the study, told The Guardian. "It’s the first evidence supporting what was suspected before; that polluting firms and especially carbon majors now face litigation risk, in addition to transition and physical risk". 

Finally, there are impacts concerning the relationship between lawsuits and climate policies.

"There are many cases where judges have acknowledged the claims brought to court and, according to some analyses, where climate litigation haspromoted, even in the absence of a expressly favorable ruling on the requests, an improvement in climate policies also due to public opinion and media pressure", Di Pierri explained.

"These are partial pieces of evidence, but they indicate that [litigation] is still a useful tool in this sense because what is being asked for is essentially an increase in climate ambitions and an improvement in policies to reduce climate-altering emissions".

Translated in English by Voice Over

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