The fight for climate justice has entered a new arena: the courts.
Climate litigation is an increasingly popular tool for climate activist groups to hold businesses and governments accountable for their emissions and climate policies.
A recent report has found that 226 new climate cases were filed that were strategic – meaning the plaintiffs sought not only to win their case but also to advance the greater climate movement.
This brings the total number of strategic cases ever filed to 2,967 across almost 60 countries, according to the report by the Grantham Research Institute on Climate Change and the Environment.
Join us for a deep dive into what climate litigation is, the different types of climate cases, the strategies involved and the outcomes so far.
Climate litigation is typically defined as any legal case about the climate crisis, ranging from court cases that focus on climate change as a central issue to those that do not mention it specifically but affect mitigation or adaptation (such as those against fracking).
One of the world’s first climate cases was one that challenged the U.S. federal government’s decision to not prepare an environmental impact statement on the fuel economy standards of cars in 1986.
Since then, climate litigation has evolved over three waves.
The first began in Australia and the U.S. in the 1980s, challenging failures of their administrations to consider the climate impacts of their policies.
The second wave, beginning in 2007 when the Kyoto Protocol came into force, saw a significant rise in cases against governments, especially in Europe.
The third and current wave has been since the Paris Agreement was signed in 2015. It has seen litigation expand to include shareholder activism and the use of constitutional and human rights laws.
More recently, Global South countries and activists have been calling for rich countries to pay for climate loss and damage, which has been a central issue at recent UN climate conferences.
While litigation and loss and damage complement each other, they adopt different approaches: litigation assigns legal responsibility for actions, while loss and damage aims to secure financial compensation from big emitters.
While the vast majority of cases have been launched against governments, more than 250 strategic cases have been filed against companies or their leadership since 2015, according to the Grantham Research Institute report.
The sectors being targeted are expanding to include sectors like livestock, food and retail, and plastics.
The report also notes that case numbers have been rapidly growing in the Global South, which now contributes around 9 percent of strategic cases. Cases have been largely concentrated in high-emitting emerging economies like Brazil, South Africa and India.
Momentum for litigation has been building since 2020, and nearly 60 countries in the Global South have seen climate litigation. Unlike in the Global North, more than half of these cases are initiated by governments, public prosecutors or regulators.
There have also been many cases that focus on climate-adjacent issues rather than the climate crisis itself. For example, China has seen more than 500 cases relating to the protection of carbon sinks, energy transition contracts and carbon market regulation.
These cases are not currently included in global climate litigation databases like the one cited in the report – if they were, the total number of ‘climate cases’ worldwide could be much higher.
The report lists a few common types of strategies used in climate litigation around the world.
Government framework cases challenge the ambition or roll-out of a government’s climate policy and are a central pillar of climate litigation.
An example is Do-Hyun Kim et al. v. South Korea. In this case, South Korea’s Constitutional Court found that the government’s weak emissions reduction targets for 2030 left an unfair burden on future generations and ordered amendments to the law.
Integrating climate considerations cases focus on whether a state or other body has failed to consider the climate impacts of their policies and actions. This is a common strategy that has especially been used to obstruct fossil fuel projects.
There have been several landmark rulings in Europe, including the Norwegian Supreme Court suspending approval for some North Sea oil fields. In May, the European Free Trade Association Court also issued an advisory opinion confirming that Scope 3 (downstream) emissions from projects are within the scope of its impacts and can thus be litigated.
In polluter pays litigation, plaintiffs argue that defendants should pay them monetary compensation based on their contributions to the climate crisis. Their main argument is that companies should be held legally responsible for the harmful impacts of their emissions.
While some cases have successfully held companies responsible for localized environmental damage, no company has yet been found responsible for global climate impacts.
In May, a German court dismissed the widely watched case Lliuya v. RWE, in which a Peruvian farmer challenged German energy company RWE for its emissions, leading to greater flood risks in his town.
However, the court agreed that major greenhouse gas emitters can, in principle, be liable for harm caused by their emissions – thus setting a significant legal precedent.
Corporate framework cases challenge companies’ group-wide strategies to hold them accountable for their emissions. Such cases usually cite due diligence standards, tort law and human rights obligations.
Courts have largely refrained from imposing hard emissions limits on companies. In Milieudefensie v. Shell in 2021, a Dutch court had ordered the oil and gas company Shell to reduce its emissions by 45 percent by 2030.
However, a court of appeal overturned the order, arguing that there was insufficient scientific consensus on a specific percentage that companies should be required to reduce their emissions by.
Milieudefensie, the Dutch arm of Friends of the Earth, is now appealing to the Dutch Supreme Court.
Failure-to-adapt cases target private or state entities for ignoring foreseeable climate risks. While most climate cases overall focus on mitigation, these cases are centered on adaptation.
An example is Assad vs. Seu, in which a Hawaiian utility company was accused of ignoring wildfire risks due to the climate crisis but taking no meaningful action before Maui’s devastating wildfires in 2023.
Transition risk litigation is a newer category of litigation that targets businesses and pension funds for not considering climate risks and the possibility of stranded assets. Instead of focusing on societal harm, these cases concern the risk of financial losses.
Only one case was filed last year: Kim Min et al. v. Kim Tae-Hyun et al. in South Korea, which accused the leadership of the country’s national pension fund with violating their fiduciary duty by not addressing climate-related risks, including failing to divest from coal.
Climate-washing cases are more common and have been used against companies or governments that inaccurately portray themselves as more climate-friendly than they really are.
Some argue that these legal actions run the risk of encourage ‘greenhushing’, in which companies scale down their sustainability messaging to reduce liability. Others believe this is a good thing as companies are forced to retract false carbon neutrality pledges.
Turning-off-the-taps cases seek to shift the financial sector away from high-emitting sectors, arguing that investment decisions should consider climate risks.
An important new case is Milieudefensie v. ING, which was filed in the Amsterdam District Court earlier this year. It claims that Dutch bank ING is violating its duty of care under Dutch and international law by continuing to fund fossil fuels since the Paris Agreement was signed.
Climate litigation has made its way to international courts. In July, the International Court of Justice made a landmark advisory opinion that states are legally responsible for their greenhouse gas emissions and that those harmed by the climate crisis could be entitled to reparations.
And in May 2024, the International Tribunal on the Law of the Sea issued an advisory opinion that countries are obliged to manage their marine greenhouse gas emissions. This opens up a path for new lawsuits to hold governments responsible for reducing their marine emissions accordingly.
But the Grantham Research Institute report also notes that lawsuits have been filed against climate action, too. Especially in the U.S., these include challenges to new climate disclosure rules and lawsuits against sustainability labels or voluntary climate pledges using anti-fiduciary or anti-trust laws.
Other cases, referred to as just transition or ‘green versus green’ cases, have been filed against climate mitigation or adaptation projects that could harm local communities or biodiversity. These cases emphasize the need to better balance climate and other environmental goals, including questions of fairness.
Despite these setbacks, climate litigation is already seeing impacts outside courtrooms and in legislatures.
The Philippines, for example, is developing the world’s first climate accountability bill, which aims to hold corporations responsible for the climate loss and damage they cause.
In the U.S., the states of New York and Vermont have passed climate superfund laws that aim to bill fossil fuel companies for the costs of climate disasters. Six other states are considering similar laws despite legal challenges from corporate lobbying groups and the Trump administration.
The aim is simple: to make it more expensive for major emitters to emit. Even the risk of facing a climate lawsuit could be seen as an incentive to start cutting emissions.
While it’s too soon to tell, just a few successful landmark cases could be enough to force companies to take the climate crisis more seriously.
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