By Johanna Reichel, Second Year, LL.B. Programme.
With only nine years left until climate change becomes irreversible, stopping or slowing it down becomes increasingly crucial every day. One judicial instrument among others to combat climate change is climate change litigation which is gradually perceived to change climate-related policy outcomes and corporate behaviour.
The most prominent case when talking about climate change litigation is Urgenda.In this case, the Dutch Supreme Court ruled in favour of 900 citizens assisted by the Urgenda Foundation and ordered the government to reduce greenhouse gas emission (GHG) by at least 25% by the end of 2020. This “show horse” of climate change litigation is an almost perfect example of invoking human rights to force States to act ‘greener’.
Climate change litigation cases, especially ones relying on human rights, are increasing. When the defendant is the respective government, the claimants can rely on human rights. Especially the right to life and the right to effective remedies have been used more often strategically and successfully by NGO’s and individuals.
Urgenda paved the way for other individuals, such as Ashgar Leghari, a farmer in Pakistan, to hold their governments accountable via litigation. Mr Leghari challenged the Pakistani government for its failure to carry out core provisions of the National Climate Change Policy of 2012. He succeeded and the government was ordered to implement a climate adaption plan.
In 2018, Colombia’s Supreme Court ordered the authorities to implement action plans to address deforestation in the Amazon, another major cause of climate change. As the ‘lung of the world’, the Amazon Forest stores large amounts of carbon that would otherwise be released into the atmosphere and thereby increasing the world’s temperature.
As demonstrated, climate change litigation is a tool to influence climate change law and policy. Nevertheless, as corporations are responsible for over 71% of global emissions, holding them accountable is essential to stop climate change. However, as the provisions in the Human Right Charters are only addressed to public bodies, corporations cannot be held liable under them. After failed attempts in the early 2000s, the second wave of litigation rose with cases such as Huaraz Case where Saúl Luciano Lliuya, a Peruvian farmer, is suing the German multinational energy company RWE in Germany to hold them accountable for their impact on climate change. He is basing his claim on the German Code of Civil procedure, yet the outcome must be awaited as SARS COVID-19 delayed the process.
The precedent for climate change litigation against corporations was recently set in Milieudefensie v Shell. In May 2021, Shell was ordered to cut their GHG by 2030 by 45%. Relying on the Urgenda precedent and the fact that Shell’s GHG was twice as high as the Netherland’s, the court permitted the claim under the European Convention on Human Rights.
Despite the fact that courts do not always rule in favour of the environment, corporations can be influenced to act ‘greener’ due to media coverage. ExxonMobile, for example, misled the public about climate change’s potential business risks to rationalize their behaviour by funding climate change denial front groups and spreading disinformation about climate science. Despite winning the case, the subsequent public and financial scrutiny damaged their reputation, and their credit rating was downgraded. In conclusion, climate change litigation is accurately seen as a tool to influence climate change policies and corporate behaviour. However, cases such as Urgenda and Milieudefensie, while demonstrating an ideal outcome, are rare and must be built upon. Milieudefensie, in particular, needs to be further observed as Shell will undoubtedly appeal the decision. Nevertheless, even unsuccessful cases can drive climate change action long term as public awareness is raised through media attention and a broad public discussion is forced.
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 Supreme Court of the Netherlands, 20 December 2019, ECLI:NL:HR:2019:2007, English translation ECLI:NL:2019:2007
’Climate Case – Urgenda’ (Urgenda, 2019) <https://www.urgenda.nl/en/themas/climate-case/> accessed 18 May 2021; Supreme Court of the Netherlands, 20 December 2019, ECLI:NL:HR:2019:2007, English translation ECLI:NL:2019:2007
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 Universal Declaration of Human Rights 1848, art. 3; International Covenant on Civil and Political Rights 1966, art. 6
 Universal Declaration of Human Rights 1848, art. 8; International Covenant on Civil and Political Rights 1966, art. 2(3)
 Asghar Leghari v Federation of Pakistan (2015) W.P. No 25501/201
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