Can we sue our way out of the climate crisis?
Reported by Chloe Balhatchet, PhD Student, Yusuf Hamied Department of Chemistry, University of Cambridge
From Greta Thunberg to elderly Australian nuns, increasing numbers of people are taking legal action to demand governments and companies do more to tackle climate change. Now, with the development of attribution science – which allows individual weather events to be attributed to climate change – a new frontier of climate litigation is opening, and the front line features a Peruvian farmer suing a German energy company for flood damages. Will lawsuits be key in the race to net zero?
In October 2022, as part of the first in-person Cambridge Zero Climate Change Festival we explored the intersection between climate change and the law. What does the rise in litigious climate action mean for society as we race to meet climate targets? And how does the future look with the development of attribution science, which allows individual weather events to be attributed to climate change? We were joined by panellists at the frontier of climate litigation: Rupert Stuart-Smith, Research Associate in Climate Science and the Law at the Oxford Sustainable Law Programme; Sam Hunter-Jones, senior lawyer at ClientEarth, focussing on climate accountability; Georgia Elliott-Smith, Managing Director of sustainability consultancy Element Four, and a legal activist; Dr Sihan Li, Lecturer in Climate Science at the University of Sheffield. Our fifth panellist, Prof Joana Setzer, Assistant Professorial Research Fellow at the Grantham Research Institute on Climate Change and the Environment, at the London School of Economics and Political Science, was unable to make it but contributed a recorded speech. The event was organised and chaired by Dr Alex Bradley, a Darwin College Cambridge Zero David MacKay Research Associate and Postdoctoral Research Associate at the British Antarctic Survey.
Climate litigation is an emerging field of environmental law which predominantly addresses climate change driven issues, from cases against governments for violations against human rights, and failures to enforce commitments on climate change mitigation and adaptation, to those against corporate greenwashing and non-disclosures. The panel discussion illustrated that climate litigation has a broad definition, and a growing role to play in climate action within our society. It is heterogeneous with strategic litigation cases which aim to invoke broader societal change from government and corporations. Climate litigation is both prevalent - with more than 2,100 cases involving climate in the US – and widespread – with cases taking place across 43 countries and through 15 international courts. And what about the role of climate litigation? Our panellists expressed that its key role is to address gaps in action by government and companies. In fact, the Intergovernmental Panel on Climate Change (IPCC) working group III (responsible for assessing options for mitigating climate change through limiting or preventing greenhouse gas emissions) identified climate litigation as a key form of action.
Attribution science, an active climate research field which seeks to quantify the impact of climate change on the likelihood and severity of individual extreme weather events, is expected to be very useful in bringing effective litigation. We are no stranger to extreme weather events, after a summer that has seen a third of Pakistan submerged in floodwater and temperature records broken across Europe and the US. Ten years ago, it wasn’t easy to answer if these extreme weather events were caused by climate change, with the IPCC in 2014 stating attribution science as promising, but uncertain. The most recent report from working group I (responsible for assessing the physical scientific basis of the climate system and climate change) now states it is virtually certain that global warming made extreme weather events worse, and it is now possible to characterise the human influence on both the magnitude (i.e. extremity), and their probability – from flooding to wildfires and coral bleaching. The use of this interdisciplinary research in courts unlocks the potential of the law to address climate-related governance gaps.
Not only does climate litigation address climate justice by directly confronting those responsible for climate change, it also addresses climate accessibility, with lawsuits allowing minority groups, who are least responsible for the rising emissions, to seek reparations for the losses they face. One case highlighted by our panel was that of the Torres Strait Islanders’, a case in which eight islanders took action against Australia. The case was supported by environmental law charity ClientEarth and brought before the UN Human Rights Committee, as the islanders were faced with sea-level rise which threatened to displace them from their islands, infringing their rights to culture and family and homelife. Australia was found to have failed to adopt timely and adequate adaptation measures, and so was instructed to provide claimants with compensation and to ensure the claimants’ continued safe existence on the islands. Cases have also been filed that aim to establish the liability of corporations for climate-related risks/losses suffered by specific communities. In Lliuya Vs. RWE (a German energy company and one of the largest polluters in Europe) the claim was against a corporation for human-induced deglaciation in Peru. Lake Palcacocha, a glacial lake in the Cordillera Blanca range, is now 34 times larger than it was in the mid-1940s. In 1941, the lake outburst and killed 1,800 people, and therefore now displays a significantly increased risk of flooding for local communities. Attribution science through observations and modelling in 2021 showed Greenhouse gases are responsible for 95% of the observed warming of 1°C in the area. These breakthroughs serve to empower the communities who suffer most greatly from climate change, offering the potential for compensation and restitution.
The challenges involved in successfully bringing a case forward lie in demonstrating that the risk is real, and subsequently if climate change is responsible for this risk. Despite the advances in attribution science there are still limitations. The panellists called for more studies and higher quality data from the global south, particularly regarding precipitation studies. Moreover, there are difficulties in the attribution and definition of compound extreme weather events, which lead to cascading disastrous impacts. Nevertheless, you don’t necessarily need full scientific certainty to successfully bring these cases, and the current gaps in our knowledge give motivation for further research to address these and maximise the impact of climate litigation.
You don’t have to be a lawyer or climate scientist to contribute to fighting climate change using climate litigation. Climate litigation is climate activism. And climate litigation is accessible. One panellist was inspired to act themselves when the UK emissions trading scheme (2021), developed after leaving the European Union, put the UK emissions cap 20% above the business-as-usual emissions, and none of the corresponding policy documents referred to targets set by the Paris Agreement. As a result, climate litigation action against the government was taken by campaigners supported by crowdfunding. Despite losing the case, the outcome ruled that the Paris Agreement targets must be considered on the short-medium timescale when making new policy, rather than only at the 2050 endpoint. It was further argued that there is a huge amount that can also be done by campaigners naming and shaming consumer brands and exposing the greenwashing of industry with legal action. Using attribution science, climate activists are equipped with a new method of seeking climate justice.
Climate litigation is done in the interest of the Earth’s inhabitants and action is taken systemically to have maximum impact. Successful cases can set precedents that allow other cases to succeed. With numbers of climate litigation cases rising, this leads to more ambitious cases, with greater potential gains from larger emitters. The message is clear, don’t wait for other people to take climate litigation action. Make it you.
Image credit: Dr Alex Bradley