Is litigation aiding the transition from fossil fuels to green energy?

Hawai­ian chil­dren are suing their local trans­port depart­ment over pol­lu­tion con­cerns. Trans­port Action Net­work has issued a legal chal­lenge against the UK gov­ern­ment for its road invest­ment strat­e­gy. And Green­peace Ger­many filed a law­suit against Volk­swa­gen AG for fail­ing to pro­tect the plan­et. 

There is an uptick in lit­i­ga­tion against fos­sil fuel-dri­ven trans­port, dri­ven by con­cerns about the planet’s cli­mate. But do these legal actions affect trans­port strate­gies, and do they push busi­ness­es towards pos­i­tive cli­mate action?

In 2022, the IPCC recog­nised the role that lit­i­ga­tion can play in affect­ing “the out­come and ambi­tion of cli­mate gov­er­nance”. The num­ber of cli­mate-relat­ed law­suits has dou­bled since 2015, with almost a quar­ter of those cas­es filed since the start of 2020, accord­ing to Glob­al Trends in Cli­mate Lit­i­ga­tion, an annu­al report by the Grantham Research Insti­tute on Cli­mate Change and the Envi­ron­ment at the Lon­don School of Eco­nom­ics and Polit­i­cal Sci­ence. 

Joana Set­zer is assis­tant pro­fes­sor at the insti­tute and the report’s co-author. Much of cli­mate lit­i­ga­tion is against gov­ern­ments, she says, inspired by the land­mark case between Dutch cit­i­zens and the Urgen­da Foun­da­tion NGO ver­sus the state of the Nether­lands in 2015. 

“The dis­trict courts of the Hague agreed that the gov­ern­ment wasn’t doing enough to pre­vent cli­mate change. It was the first time you had a court telling a gov­ern­ment to raise ambi­tions and that was a turn­ing point,” she explains. “The whole land­scape changed quite dra­mat­i­cal­ly after that.”

Glob­al­ly, there are now 73 cas­es chal­leng­ing gov­ern­ments’ over­all response to cli­mate change. And of the eight where deci­sions have already been issued by the country’s high­est court, six had favourable out­comes for cli­mate action.

But Set­zer points out that suits are no longer lim­it­ed to the car­bon majors but extend­ing into oth­er sec­tors. “In 2021, 16 of the 38 cas­es against cor­po­rate defen­dants were filed against fos­sil fuel com­pa­nies, while more than half were filed against defen­dants in oth­er sec­tors, with trans­port, food and agri­cul­ture, plas­tics and finance all tar­get­ed in mul­ti­ple cas­es,” she says. 

In her opin­ion, these claims are increas­ing part­ly as cli­mate lit­i­ga­tion cas­es have sup­port from the wider com­mu­ni­ty. “Cli­mate change is wide­ly dis­cussed now, and there is more exper­tise among lawyers who are bet­ter pre­pared to bring these cas­es and judges who are more accept­ing of these cas­es,” she says.

Ugo Tad­dei leads the Clean Air team with­in the Strate­gic Lit­i­ga­tion pro­gramme at the NGO Clien­tEarth. He believes that such suits are effec­tive in bring­ing about envi­ron­men­tal action. “Air pol­lu­tion is falling twice as steeply in cities in Ger­many where air qual­i­ty lit­i­ga­tion has been tak­en, com­pared with those with no legal inter­ven­tions,” he says.

On the cor­po­rate side, he adds, lit­i­ga­tion sends strong mar­ket sig­nals to com­pa­nies. The auto­mo­tive sec­tor, for exam­ple, has been great­ly affect­ed by air pol­lu­tion ris­ing to the top of the health agen­da in the past decade, with legal chal­lenges to author­i­ties that have failed to com­ply with reg­u­la­tions to lim­it air pol­lu­tion across Europe.

Clien­tEarth has been involved in sev­er­al of these cas­es, notably win­ning three nation­al chal­lenges on air pol­lu­tion against the UK gov­ern­ment. “In the final rul­ing in 2018, the judge said good inten­tion from the gov­ern­ment is not enough. We need Clien­tEarth to keep putting pres­sure on the gov­ern­ment so it will deliv­er,” he says.  

“When I joined Clien­tEarth in 2014, more than one in two cars pur­chased in the EU was diesel. Last year, for the first time more elec­tric vehi­cles were sold than diesel – more than 20%. I couldn’t have imag­ined such a quick shift. Clean air was hard­ly a top­ic in the media before,” he says. 

In 2020, the UK gov­ern­ment announced a ban on new petrol and diesel cars by 2030, which is 10 years ear­li­er than it had pre­vi­ous­ly com­mit­ted to achiev­ing. A 2035 ban on inter­nal com­bus­tion engine vehi­cles is on the table at EU lev­el.

Cli­mate lit­i­ga­tion with such strate­gic ambi­tion is on the rise, accord­ing to Set­zer. This refers to cas­es where the claimants’ motives go beyond the con­cerns of the indi­vid­ual case and seek to “bring about some broad­er soci­etal shift”, be that cli­mate action, rais­ing pub­lic aware­ness or nudg­ing the behav­iour of gov­ern­ment or indus­try actors.

An increas­ing num­ber of suits are being filed in the Glob­al South. Based in Nairo­bi, Mark Oda­ga is defend­ing rights pro­gramme man­ag­er at Nat­ur­al Jus­tice, an envi­ron­men­tal jus­tice NGO. He says: “Lit­i­ga­tion empow­ers com­mu­ni­ties and defends their rights. The process can be a path towards restora­tive jus­tice for com­mu­ni­ties bear­ing the brunt of cli­mate impact.”

Even when legal chal­lenges are lost, the cas­es can be sig­nif­i­cant in terms of rais­ing the pro­file of an issue. Trans­port Action Net­work didn’t ulti­mate­ly stop the UK government’s £27bn road-build­ing pro­gramme but, accord­ing to the NGO’s founder and direc­tor Chris Todd, the action was suc­cess­ful in oth­er ways. “It got lots of peo­ple in the indus­try and media talk­ing about the impact of road-build­ing on the government’s car­bon tar­gets, which real­ly raised aware­ness,” he says.

“Ulti­mate­ly, we got the gov­ern­ment to accept there was a need to review the nation­al pol­i­cy state­ment after­wards, and it acknowl­edged the trans­port to decar­bon­i­sa­tion plan was out of date and need­ed to be reviewed. We see that as a direct result of our bad­ger­ing through legal chal­lenge.”

One of the new trends in cli­mate lit­i­ga­tion is a shift­ing of cas­es from the com­pa­ny to the indi­vid­ual, observes Set­zer. “Instead of suing the com­pa­ny, a case is brought against the CEO. Or against a min­is­ter instead of the gov­ern­ment.” This is seen with ClientEarth’s cur­rent legal action against Shell’s board of direc­tors for mis­man­ag­ing cli­mate risk, which could have a pow­er­ful effect in terms of mak­ing indi­vid­u­als think twice before they plan.

“Lit­i­ga­tion is a pow­er­ful sto­ry­telling tool,” says Set­zer. “The more media cov­er­age these cas­es get, the more cas­es there are and the greater the rep­u­ta­tion­al dam­age can be for com­pa­nies. It’s become a self-rein­forc­ing mech­a­nism – which encour­ages behav­iour change.”