Are courts the new front line for climate justice?

by Maysa Zorob and Marion Cadier | Business and Human Rights Resource Centre
Wednesday, 13 June 2018 09:00 GMT

People hold banners as they protest next to the Brandenburg Gate, beside the U.S. embassy, against the U.S. withdrawal from the Paris climate change deal, in Berlin, Germany, June 2, 2017. REUTERS/Fabrizio Bensch

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In the US alone, 14 climate lawsuits against companies are going through the courts, all of which were filed over the past year

In lieu of bold steps from governments and companies to reduce greenhouse gas emissions, climate justice advocates and lawyers have stepped up to force their hand through litigation. Traditionally, legal cases have been brought against governments, but there is now a steep rise in climate lawsuits brought directly against fossil fuel companies. In the United States alone, 14 climate lawsuits against companies are currently making their way through the courts, all of which were filed over the past year.

The worsening harm of climate change on marginalised communities, especially in the global south (particularly through cyclones, floods, heatwaves and wildfires), epitomises the injustice of corporate human rights abuse. Just 100 major companies have been linked to over 70 percent of global CO2 emissions since 1988. It makes sense that those that have reaped profits from extracting, selling and burning fossil fuels bear a fair share of the costs we all face, and reduce future impacts.

But legal avenues and arguments against companies are still being tested (with none of the above cases having reached the merits stage) and the jury is out on their effectiveness, efficacy, and impact. Business & Human Rights Resource Centre recently reviewed ongoing lawsuits against companies and interviewed some of the advocates and lawyers involved for our Corporate Legal Accountability Annual Briefing.

Here is what we found out:

Scientific research and investigative journalism have bolstered legal claims: Research attributing shares of global emissions to specific companies has facilitated legal cases seeking to hold private companies liable for their role in climate change. So too has evidence that companies were aware of their contribution to climate change, and its impacts, and worked to deceive or misinform the public and investors.

Climate litigation is used as a tool for the broader climate justice movement: Lawsuits look to recover the costs for climate adaptation and resilience, but they are also used as a strategic tool to hold emitters accountable and to prompt more responsible climate policies by companies. Litigation is complementary to non-judicial approaches, which are important levers to pressure companies to be more transparent and take bolder steps to contribute to tackling climate change.

Human rights and environmental lawyers can learn from each other: Environmental lawyers have pioneered and mastered approaches on climate justice that human rights lawyers can learn from. Equally, human rights legal considerations can play a powerful complementary role in environmental litigation. The use of both human rights and environmental law in establishing legal arguments reinforces the value of strong collaboration between advocates from both fields to hold companies accountable.

Novel approaches and collaborations for climate justice are emerging: New strategies include shareholder activism, litigation, and legislative efforts, as well as attempts to establish fiduciary obligations of company officials and/or third-party liability of insurers.

Carbon majors are on the offensive while climate activism is increasingly restricted: Companies’ responses to legal action have traditionally been aggressive and well-financed, and climate litigation is no different. Plaintiffs are likely to face long and costly proceedings, and can expect combative responses by defendant companies, including through aggressive public campaigns. Restrictions on civic freedoms, in particular Strategic Lawsuits Against Public Participation (SLAPPs), also threaten environmental organizations, activists, journalists and scientists seeking to prompt action against climate change.

The outcome of these lawsuits is uncertain, and the road ahead presents many challenges: not least because the response of carbon majors can be expected to be aggressive, ruthless and well-financed.

Nonetheless, the rising trend of climate change litigation is one to watch.

Maysa Zorob is a programme manager and Marion Cadier is a researcher with the Business and Human Rights Resource Centre