Changing Activism: Climate Litigation

Published: 29 June 2023

As corporations and governments stall on their net-zero promises, climate activists are turning to legal action to drive forward a just transition.

As corporations and governments stall on their net-zero promises, climate activists are turning to legal action to drive forward a just transition. Globally, the cumulative number of climate change-related cases has more than doubled since 2015 (LSE, 2022). In addition to enforcing or enhancing climate commitments, further legal cases have been brought against fossil fuel companies, especially outside the United States. Cases against corporate actors are increasingly targeting the food and agriculture, transport, plastics and finance sectors.

Recent litigation cases align with the key issues highlighted by the international community at COP26, with the phasing out of fossil fuels across the energy sector an important area for legal accountability. A recent report has highlighted global trends in climate litigation, with more than 50% of climate cases having direct judicial outcomes that can be understood as favourable to climate action.

Held v Montana
A recent case in Montana, where youth plaintiffs have accused state officials of violating their right to a healthy environment has brought to the fore the role of legislation in aiding climate action and accountability.

The groundbreaking trial, which centred around Montana’s responsibility for the climate crisis saw lawyers on each side present stark perspectives on whether the state of Montana was liable for a range of impacts that were being felt by communities, because of the climate crisis. The lawsuit, Held v Montana, will mark the first-ever constitutional climate trial in US history.

Although the judge, Kathy Seeley, has said the court lacks authority to issue an injunctive ruling, the case could set a precedent for other litigants to hold governments, oil and gas companies and corporations accountable for contributing to climate change. One of the key issues is whether Montana has violated the 1972 state Constitution by preventing agencies from considering the effects of climate change when evaluating projects, including coal mines. Even a declaratory decision that says the government is violating the state Constitution’s right to a 'clean and healthful environment' would be groundbreaking, legal observers have said.

The case has also highlighted the changing role of climate scientists who are becoming increasingly involved in climate advocacy and activism. In the courthouse, climate scientists and other experts painted a dire portrait of climate calamities on behalf of the 16 young challengers, warning that increased carbon dioxide emissions are altering Montana's iconic glaciers and rivers. Steve Running, part of a 2007 Nobel Peace Prize-winning climate science research team, told the court that there was 'no doubt' climate change is altering Montana by increasing wildfires and reducing snowfall.

Corporate accountability
In addition to governmental accountability, corporations are coming under increasing pressure from legal challenges over ‘greenwashing’. The need to combat greenwashing came under the spotlight at the UN summit, COP26, in November 2021. Greenwashing is the use of unsubstantiated or misleading claims about, or selective disclosure of, environmental performance or best practice for commercial or political gain. Mounting pressure from a wide range of public and private stakeholders is enabling a rise in legal action against greenwashing, amplifying an existing trend in climate litigation that will only continue to grow.

At COP26, the UN Secretary-General announced a new ‘High-Level Expert Group’ to establish clear standards to measure and analyse net-zero commitments from non-state actors. An International Sustainability Standards Board was announced too, to develop a global baseline of sustainability disclosure standards to meet investors’ information needs.
Greenwashing (sometimes known as climate-washing) litigation is part of a wider movement of climate litigation that uses consumer protection, civil and commercial legislation that exists worldwide to address the issue of unsubstantiated claims. Greenwashing litigation can often invoke or rely on arguments that are relatable and accessible to the public. Support from the wider population is usually a key argument in cases with growing public support for climate action acting as an important leverage in accountability processes.

Increasing climate litigation has opened a further avenue that holds governments and large corporations accountable for their contemporary and historical role in contributing to climate change. The legal impact of trials, like the Held v Montana case in the United States, will not only be felt in legislation and policy but may also have a butterfly effect.
Those responsible for stalling on climate action and enabling a just transition are now being challenged in the courts more often, and with greater consequences. Litigation efforts have emerged from years of dedicated, crucial activism that has raised the public profile of the climate crisis. Taking climate action to the courts offers hope for the climate justice movement, who have seen implementation on ‘net-zero' commitments and just transition principles linger behind the necessary action needed to ensure millions of unnecessary deaths are avoided.

By Ben Murphy, Education Officer, Centre for Sustainable Solutions.

Image credit: Dave Gardner – creative, National Forest Foundation.  

First published: 29 June 2023