Global Climate Litigation Report: 2020 Status Review

Global Climate
Litigation Report
2020 STATUS REVIEW
United Nations Environment Programme

Sabin Center for Climate Change Law
© United Nations Environment Programme (2020).
Global Climate Litigation Report: 2020 Status Review. Nairobi.
ISBN No: 978-92-807-3835-3
Job No: DEL/2333/NA
Acknowledgements
This publication was developed by the United Nations Environment Programme in cooperation with the Sabin Center for
Climate Change Law at Columbia University in the City of New York, United States of America. The report was drafted
by Michael Burger, Executive Director of the Sabin Center for Climate Change Law, and Daniel J. Metzger, Climate
Law Fellow at the Sabin Center for Climate Change Law. The final critical review and consolidation of the draft was
undertaken and overseen by Arnold Kreilhuber, Acting Director, Andrew Raine, Head of the International Environmental
Law Unit, Maria Socorro Manguiat, Head of the National Environmental Law Unit, Soo Young Hwang, Legal Officer,
Allan Meso, Legal Officer, Angela Kariuki, Programme Management Officer, and Catalina Pizarro, Associate Legal
Officer, with the Law Division of the United Nations Environment Programme.
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Disclaimer
The designations employed and the presentation of the material in this publication do not imply the expression of any
opinion whatsoever on the part of the Secretariat of the United Nations or the United Nations Environment Programme
concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of
its frontiers or boundaries.
Moreover, the views expressed do not necessarily represent the decision or the stated policy of the Secretariat of
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Produced by
Law Division
United Nations Environment Programme
P.O. Box 30552 - 00100, Nairobi, Kenya
Tel: +254 20 762 336 5
Email: law.director@unep.org
www.unep.org
Contents
Foreword .......................................................................................................... 2
Executive Summary........................................................................................... 4
Introduction....................................................................................................... 6
Part 1: The Importance of Climate Change Litigation......................................... 9
Part 2: The State of Climate Change Litigation................................................. 13

I. Survey of Climate Change Litigation................................................................................. 13
II. Trends in Climate Change Litigation.................................................................................. 13
A. Climate rights................................................................................................................ 13
B. Domestic enforcement................................................................................................. 17
C. Keeping fossil fuels – and carbon sinks – in the ground........................................... 20
D. Corporate liability and responsibility........................................................................... 22
E. Failure to adapt and impacts of adaptation................................................................ 23
F. Climate disclosures and greenwashing...................................................................... 26
III. Future Directions................................................................................................................. 27
A. Update on 2017 predictions: Climate migration and litigation in the Global South..... 29
B. Consumer and investor fraud claims .......................................................................... 29
C. Pre- and post-disaster cases........................................................................................ 30
D. Implementation challenges.......................................................................................... 30
E. Increased attention to climate attribution .................................................................. 31
F. Increasing use of international adjudicatory bodies.................................................. 31
Part 3: Legal Issues in Climate Change Litigation............................................ 37

I. Justiciability........................................................................................................................ 37
A. Standing......................................................................................................................... 37
B. Separation of powers.................................................................................................... 40
II. Sources of Climate Obligations......................................................................................... 40
A. Statutory or policy causes of action............................................................................ 40
B. Constitutional and human rights ................................................................................. 41
C. Common law/tort theories........................................................................................... 42
III. Remedies and Targets........................................................................................................ 43
IV. Attribution Science.............................................................................................................. 44
Conclusion...................................................................................................... 47
Global Climate Litigation Report: 2020 Status Review 1

Foreword
Our planet continues to navigate a climate crisis. This growing tidal wave of climate cases is driving
As reported in the United Nations Environment much needed change. The report shows how
Programme’s 2020 Emissions Gap Report, despite climate litigation is compelling governments and
a brief dip in carbon dioxide emissions caused by corporate actors to purse more ambitious climate
the COVID-19 pandemic, the world is still heading change mitigation and adaptation goals. It reports
for a temperature rise of 3°C this century. This is on key emerging trends in these cases, including
far beyond the Paris Agreement goals of limiting the role of fundamental human rights connected
global warming to well below 2°C and pursuing to a safe climate and cases that bring to life the
1.5°C. This would amount to an untenable future right to a healthy environment we now see in the
for people and planet. constitutions of over 100 countries. It outlines
how cases are forcing greater climate disclosures
However, there is hope. More and more governments and ending “corporate greenwashing” on climate
are progressively committing to net-zero emissions change. It reports how people are holding their
goals by around mid-century. Businesses are governments to account, seeking to keep fossil fuels
accelerating efforts to transition and align their in the ground and challenging non-enforcement of
operations with the goals of the Paris Agreement. climate-related laws and policies.
Children and youth are demanding a safe climate
and are forcing positive change, helping demonstrate As countries urgently seek to access and distribute
that climate change is at the forefront of a global much awaited COVID-19 vaccines, we are well
environmental rights movement. And – as illustrated advised to remember that the future impacts of
by this report - judiciaries around the world are climate change will far outstrip the devastation
increasingly playing a critical role in addressing of the current global coronavirus pandemic.
climate change. Environmental rule of law – supported and achieved
in part through strong and independent judiciaries
I am proud to introduce this report, developed – contributes as an effective vaccine against future
with the outstanding support of the Sabin Center zoonotic diseases and pandemics. The role of
for Climate Change at Columbia University. The judiciaries in combating climate change, therefore,
Global Climate Change Litigation Report – Status cannot be overstated.
Review provides an overview of the current state
of climate change litigation around the world.
It updates our 2017 report on the same and
finds there has been a rapid increase in climate
litigation. In 2017 there were 884 climate change
cases brought in 24 countries. In 2020 the number
of cases has nearly doubled with at least 1,550 Inger Andersen
cases filed in 38 countries. Executive Director
United Nations Environment Programme.
2 Global Climate Litigation Report: 2020 Status Review

© United Nations Environment Programme

Executive Summary
Climate ambition in countries around the world of climate change and the energy transition.
remains inadequate to meet the challenge of climate Summaries of significant cases appear throughout
change. As a result, individuals, communities, non- this report, providing context and examples of
governmental organizations (NGOs), business those issues and the trends they comprise.
entities, and subnational governments have turned
to the courts to seek relief through the enforcement This report also describes five types of climate cases
of existing climate laws; integration of climate action that suggest where global climate change litigation
into existing environmental, energy, and natural may be heading in the coming years. First, plaintiffs
resources laws; clear definitions of fundamental are increasingly filing consumer and investor fraud
climate rights and obligations; and compensation claims alleging that companies failed to disclose
for climate harms. As these actions become more information about climate risk or have disclosed
frequent in their occurrence, and more numerous information in a misleading way. Second, recent
overall, the body of legal precedent grows, forming years suggest a growing number of pre- and post-
an increasingly coherent field of law. disaster cases premised on a defendant’s failure to
properly plan for or manage the consequences of
This report, which updates the 2017 document extreme weather events. Third, as more cases are
by the United Nations Environment Programme filed and some reach a conclusion, implementation
(UNEP) entitled The Status of Climate Change of courts’ orders will raise new challenges. Fourth,
Litigation: A Global Review, provides an overview of courts and litigants increasingly will be called on to
the current state of climate change litigation, as well address the law and science of climate attribution
as a fresh assessment of global climate change as cases seeking to assign responsibility for
litigation trends. It finds that a rapid increase in private actors’ contributions to climate change
climate litigation has occurred around the world. and cases arguing for greater government action
The 2017 Litigation Report identified 884 cases to mitigate both advance and proliferate. Finally,
brought in 24 countries, comprised of 654 cases in litigants are increasingly bringing claims before
the United States of America and 230 cases in all international adjudicatory bodies, which may lack
other countries combined. As of 1 July 2020, the for enforcement authority but whose declarations
number of cases has nearly doubled with at least can shift and inform judicial understanding.
1,550 climate change cases filed in 38 countries (39
counting the courts of the European Union). Those Although climate change cases are premised on
cases include approximately 1,200 filed in the U.S. a broad range of legal theories, and are brought
and over 350 filed in all other countries combined. before many different courts, tribunals, and other
fora throughout the world, such cases often face
Key trends include: ongoing and increasing numbers common core legal issues. This report summarizes
of cases relying on fundamental and human those issues, which include challenges to whether
rights enshrined in international law and national the court has the power to resolve the dispute,
constitutions to compel climate action; challenging identifying the source of an enforceable climate-
domestic enforcement (and non-enforcement) of related right or obligation, crafting a remedy that
climate-related laws and policies; seeking to keep will lessen the plaintiffs’ injuries and, importantly,
fossil fuels in the ground; claiming corporate liability marshalling the science of climate attribution. As
and responsibility for climate harms; addressing cases move through the process of litigation, parties
failures to adapt and the impacts of adaptation; are advancing sophisticated arguments about how
and advocating for greater climate disclosures and to link a specific greenhouse gas emitter’s actions
an end to corporate greenwashing on the subject to global climate change and how foreseeable,

climate-driven extreme weather events can be adaptation goals. As the international community
linked to specific harms suffered by plaintiffs. advances deeper into the third decade of the
millennium—a critical decade in which nations must
In summary, the amount of climate change reverse course to dramatically reduce greenhouse
litigation is increasing, the range of legal theories gas emissions, enact reforms to achieve the United
is expanding, and it has become clear that climate Nations Sustainable Development Goals, and
cases can contribute in meaningful ways to compel also respond to and recover from the COVID-19
governments and corporate actors to pursue pandemic—climate litigation will continue to have
more ambitious climate change mitigation and an important role to play.
© Unsplash

Introduction
Countries around the world have enacted laws so does the body of legal precedent recognizing the
and adopted policies that describe national and urgency of the climate crisis and the role of courts
international responses to climate change. But the in addressing it.
current levels of both climate ambition and climate
action are inadequate to meet the challenge. In 2017, UNEP published a survey of global climate
As a consequence, individuals, communities, change litigation, identifying key developments,
nongovernmental organizations, business entities, profiling significant cases, describing then-current
subnational governments and others have brought and emerging trends, and outlining the key legal
cases seeking to compel enforcement of those laws, issues in climate change cases.1 The climate crisis
replace them with stronger ones (and sometimes has only deepened since then.2 This report provides
weaker ones), extend existing laws to address a fresh assessment of global climate change
climate change, or define the relationship between litigation and analysis of trends. It also updates
fundamental rights and the impacts of climate cases that were pending when the prior report was
change. In recent years, a number of those cases published. While most of the trends identified in
have produced clear judicial statements about the 2017 have continued in the intervening years, and
reality of climate change and the responsibility for the key legal issues discussed in the prior report
it, as well as how protection of other rights may be remain central, this report identifies new trends and
burdened by climate change impacts. As actions emerging issues in climate litigation. Except where
seeking to fill gaps in legislative and regulatory otherwise noted, this report contains information
responses to climate change continue to increase, as of 1 July 2020.
Defining “Climate Change Litigation”

This report considers “climate change litigation” when climate change keywords are only used
to include cases that raise material issues of as a passing reference to the fact of climate
law or fact relating to climate change mitigation, change and those issues are not related to
adaptation, or the science of climate change.3 the laws, policies, or actions actually at issue,
Such cases are brought before a range of the case is excluded. Similarly, this report
administrative, judicial, and other adjudicatory excludes cases that seek to accomplish goals
bodies. These cases are typically identified with arguably related to climate change adaptation
keywords like climate change, global warming, or mitigation but that do not depend on the
global change, greenhouse gas, GHGs, and sea climate change dimensions of those goals. For
level rise, but where cases actually raise issues example, lawsuits seeking to use human health
of law or fact related to climate change but do regulations to limit air pollution from coal
not use those specific terms, they are included.4 fired power plants may incidentally cause a
court to compel that power plant to emit fewer
This report excludes cases where the greenhouse gases (GHGs). Such cases are not
discussion of climate change is incidental or considered “climate change litigation” for the
where a non-climate legal theory would guide purposes of this study.5
the substantive outcome of the case. Thus,

This report proceeds in three parts. Part 1 sets law, regulation, or right provides the defendants’
the stage by describing the growing urgency of duties and obligations; what remedies are within
the climate crisis and the role that climate change the court’s power; and the science of climate
litigation plays. Part 2 describes the current state attribution in two dimensions: linking a specific
of global climate change litigation and assesses greenhouse gas (GHG) emitter’s actions to
current and emerging trends. Those trends global climate change, and linking climate-driven
reflect continued and increasing numbers of extreme weather events with harms suffered by
cases focused on one or more of the following: plaintiffs. Summaries of significant cases appear
(1) climate rights; (2) domestic enforcement; (3) throughout the report, providing context and
keeping fossil fuels in the ground; (4) corporate examples of those issues and the trends they
liability and responsibility; (5) failure to adapt comprise. The report concludes that litigation
and the impacts of adaptation; and/or (6) is central to efforts to compel governments and
climate disclosures and greenwashing. Part 3 corporate actors to undertake more ambitious
summarizes core legal issues that recur in all or climate change mitigation and adaptation goals,
nearly all climate change cases.6 Those issues and litigants around the world continue to expand
include challenges to whether a legal action is the range of theories under which defendants are
one for which courts are appropriate fora; what obligated to take climate-related action.
© Unsplash
INTRODUCTION NOTES
1 United Nations Environment Programme, The Status of Climate 4 For example, in Burgess v. Minister of Natural Resources and Forestry
Change Litigation: A Global Review (2017). Throughout this report we the plaintiff cites increased precipitation causing increased frequency
refer to the earlier work as the “2017 Litigation Report.” and severity of flooding without explicitly naming climate change. No.
2 See, e.g., Intergovernmental Panel on Climate Change, AR5 Synthesis 16-1325 CP, Statement of Claim (Ont. Sp. Ct. Sept. 14, 2016).
Report: Climate Change 2014, https://www.ipcc.ch/site/assets/ 5 Cf. Jacqueline Peel & Jolene Lin, Transnational Climate Litigation:
uploads/2018/02/SYR_AR5_FINAL_full.pdf. The Contribution of the Global South 113 Am. J. Int’l L. 679 (2019).
3 This definition also guides the collection of cases included in the Peel and Lin note that in the Global South, in particular, cases are
Sabin Center for Climate Change Law’s U.S. and Non-U.S. Climate less likely to fit into the most commonly used definitions of climate
Change Litigation charts, as well as the Climate Change Laws of the change litigation. Id. at 690–91. They argue that analyses of climate
World database, maintained jointly by the Sabin Center for Climate change litigation should include matters in which climate change
Change Law and the Grantham Research Institute at the London is a peripheral issue because those cases still “make an important
School of Economics. See also David Markell & J.B. Ruhl, An Empirical contribution to climate governance,” but similarly exclude matters
Assessment of Climate Change in the Courts: A New Jurisprudence where climate change is mentioned only incidentally. Id. at 695.
or Business as Usual?, 64 Fla. L. Rev. 15, 27 (2012) (defining climate 6 Legal systems around the world vary widely and different forms of
change litigation to include “any piece of federal, state, tribal, or local legal actions cause these issues to arise in a variety of ways. The
administrative or judicial litigation in which the . . . tribunal decisions analysis here seeks a comparative perspective and provides an
directly and expressly raise an issue of fact or law regarding the overview for legal professionals, researchers, and others.
substance or policy of climate change causes and impacts.”).

© Unsplash
1
Global Climate Litigation Report: 2020 Status Review
1 The Importance of Climate Change Litigation
Human activity has had a dramatic impact on the In light of these observed changes and the scientific
earth’s climate. Carbon dioxide (CO2) concentrations consensus on the anthropogenic sources of climate
have increased dramatically to more than double change, plaintiffs and petitioners seeking to compel
pre-industrial levels; and in just one year beginning more ambitious climate change mitigation and
in 2017, they increased at a faster rate than the adaptation on the part of governments and private
decade prior.1 Those atmospheric changes have parties have brought a wide range of climate change
brought widespread warming that, in turn, has cases before tribunals throughout the world. These
caused a range of other impacts including melting cases have sought to compel governments to
glaciers, vanishing snow cover, diminishing sea ice, accelerate their efforts to implement emissions
rising sea levels, acidifying oceans, an expanding reduction targets;3 demonstrate that national GHG
tide of displaced people, and increasingly frequent emissions goals are insufficiently ambitious or not
heavy precipitation, forest fires, and record- being pursued at all;4 connect harms suffered by
breaking temperatures.2 vulnerable communities to emitters responsible
Number of cases
230 350
CASES CASES
IN OTHER IN OTHER
COUNTRIES COUNTRIES
2017 2020
884 24 1550 38
CASES COUNTRIES CASES COUNTRIES
654 1200
CASES CASES
IN THE U.S. IN THE U.S.
Note: The data is current as of 1 July 2020.

for a share of global temperature increases;5 and physical infrastructure. For private parties,
bring global climate change concerns to bear on climate cases can produce altered regulatory
local action;6 and either force adaptation action or environments, delay or denial of proposed projects,
recover damages that result from others’ failures injunctions to adapt infrastructure, or potentially
to adapt.7 massive damages awards. To date, no court has
ordered a defendant to pay damages for climate
These cases are important for defendants, as harms caused by a defendant’s contribution to
well. For governments, climate cases can result climate change, but a number of ongoing cases
in binding judicial orders that require new climate seek just that. Similarly, parties sued for the
goals, more extensive climate regulations, reforms environmental consequences of failing to adapt
to environmental impact assessments and other their facilities or operations may be at risk of
procedures, and significant investments in social significant liability.8
Climate Deregulation
It is important to note that litigation against In Brazil, for example, at least three lawsuits have
government is not exclusively comprised of been filed against the government challenging
lawsuits seeking to compel government action. decisions to annul regulations on timber harvesting
In both the U.S. and Brazil, plaintiffs have filed and seeking to reactivate funds previously set
actions challenging government efforts to relax aside to pay for efforts to combat Amazon
climate regulation, or “deregulate.” Cases of deforestation and climate change.10 In the U.S.,
this type ultimately seek to retain more robust well over 50 lawsuits have been filed challenging
climate regulation, but they shift the typical government decisions to lift regulations relating to
roles of subnational governments and NGOs the environment, energy, and natural resources.11
seeking more ambition from governments In the U.S., for the most part, such plaintiffs have
reluctant to act on climate change, and of succeeded either by obtaining court orders halting
governments seeking to defend affirmative deregulation until procedural irregularities have
decisions to deregulate.9 been corrected or by inducing relevant agencies
to abandon deregulatory efforts.12
PART 1 NOTES
1 WMO Greenhouse Gas Bulletin No. 15 (25 Nov. 2019). 8 The U.S. utility Pacific Gas & Electric, discussed below in Section
2 See Intergovernmental Panel on Climate Change [IPCC], Special 2.B.6, provides a stark example: In 2019, facing billions of dollars
Report: Global Warming of 1.5°C (Valerie Masson-Delmotte et al. in liability for its role in causing wildfires, the company filed for
eds., 2018); U.S. Global Change Research Program, Climate Science bankruptcy. Those claims were ultimately resolved by settlements
Special Report, Fourth National Climate Assessment 10–11 (2017) valued in excess of $25 billion. See In re: PG&E Corporation, No. 19-
3 See, e.g., Urgenda Foundation v. The State of The Netherlands, The 30088, Order Confirming Debtors’ and Shareholder Proponents’ Joint
Supreme Court of the Netherlands, Case No. 19/00135 (20 December Chapter 11 Plan of Reorganization Dated June 19, 2020 (Bankr. N.D.
2019) (unofficial translation from the court).; Leghari v. Pakistan, Cal. June 20, 2020).
(2015) W.P. No. 25501/2015 (Supplemental Decision). 9 See Sections 2.B.2–3.
4 See, e.g., Friends of The Irish Environment CLG v. Ireland, [2017 10 Instituto Socioambiental et al. v. IBAMA et al., J.F., No. ACP 1009665-
No. 793 JR]; Leghari v. Pakistan, (2015) W.P. No. 25501/2015 60.2020.4.01.3200 06.04.2020 (Braz.); PSB et al. v. Federal Union,
(Supplemental Decision); Family Farmers and Greenpeace Germany S.T.F., No. 0024408-68.2020.1.00.0000, Relator: Min. Roberto Barroso
v. Germany, (2018) 00271/17/R /SP. 12.06.2020 (Braz.); see also Sam Cowie, Brazilian government taken
5 See, e.g., Lliuya v. RWE, Az. 2 O 285/15 Essen Regional Court [2015]. to court for assault on environment, climate, Mongabay (June 10,
6 See, e.g., Plan B Earth et al. v. Sec’y of State, [2020] EWCA Civ 214. 2020), https://news.mongabay.com/2020/06/brazilian-government-
7 See, e.g., Ralph Lauren 57 v. Byron Shire Council, [2016] NSWSC taken-to-court-for-assault-on-environment-climate/.
169; Harris County v. Arkema, No. 201776961 (Harris Co. Dist. Ct. 11 Roundup: Trump Era Agency Policy in the Courts, Institute for Policy
Nov. 16, 2017). Integrity (July 15, 2020), https://policyintegrity.org/trump-court-roundup.
12 Id.

© Getty Images
© Getty Images
12
2
2 The State of Climate Change Litigation
This part describes and summarizes the status of one type of case: in both instances, plaintiffs have
climate change litigation throughout the world. It argued that national GHG policies are insufficiently
discusses key cases and how they are thematically aggressive to be consistent with national climate
linked to larger categories of climate cases. It change mitigation obligations.
identifies six important categories into which most
cases can be placed and discusses trends that Cases that name private parties as defendants
both run through these cases and suggest what are premised on a wide array of different theories.
future cases are likely to be brought. Key examples include cases seeking to hold a
GHG emitter or fossil fuel producer responsible
for climate harms, and cases arguing that publicly
I. Survey of Climate Change Litigation traded companies ignored or misused knowledge
about climate change risk.
Both the number of cases filed and the number
of countries within which they have been brought
have increased rapidly in recent years: the 2017 II. Trends in Climate Change Litigation
Litigation Report identified 884 cases brought in 24
countries, comprised of 654 cases in the U.S. and Climate cases to date often fall into one or more
230 cases in all other countries combined.1 As of 1 of six categories: (1) climate rights; (2) domestic
July 2020, the number of cases tracked in the Sabin enforcement; (3) keeping fossil fuels in the ground;
Center’s database nearly doubled with at least (4) corporate liability and responsibility; (5) failure
1,550 climate change cases filed in 38 countries to adapt and the impacts of adaptation; and (6)
(39 counting the courts of the European Union).2 climate disclosures and greenwashing.5
Those cases include approximately 1,200 filed in
the U.S. and over 350 filed in all other countries A. Climate rights
combined. Outside of the U.S., Australia has seen Recent years have seen an increase in the
the largest number of cases (97), followed by the number and success of actions that assert that
United Kingdom and the European Union3 (58 and insufficient action to mitigate climate change
55 respectively).4 violates plaintiffs’ international and constitutional
rights to life, health, food, water, liberty, family life,
Governments are the most frequent defendants in and more6—a category of cases we refer to here as
climate change cases. Paradigmatic cases against “climate rights” cases. The 2017 Litigation Report
governments claim that broad policies or specific noted several key cases, including: Greenpeace
decisions are inconsistent with constitutional, Nordic Ass’n and Nature & Youth v. Ministry of
legislative, or policy commitments to reduce GHG Petroleum and Energy, where environmental NGOs
emissions. The specific policies and decisions argue that Norway’s Ministry of Petroleum and
in these cases include, but are not limited to, Energy violated the Norwegian constitution by
national emissions targets and government issuing a block of oil and gas licenses for deep-
licenses, and permits or subsidies for fossil fuel sea extraction from sites in the Barents Sea;7 In
production or use. Urgenda Foundation v. State re Court on its own motion v. State of Himachal
of the Netherlands (“Urgenda”) and Friends of the Pradesh and others, where India’s National Green
Irish Environment CLG v. Gov’t of Ireland exemplify Tribunal Principal Bench in New Delhi invoked

constitutional protection of the environment prevent significant environmental damage within
and ordered authorities to undertake measures or outside their territory and, to this end, must
to protect against environmental harms made regulate, supervise and monitor activities within
more likely and extreme by climate change;8 and their jurisdiction that could produce significant
in Decision C-035/16 of February 8, 2016, where environmental damage.”11
the Colombian Constitutional Court struck down
as unconstitutional statutory provisions that In May 2019, a group of eight Torres Strait Islanders
threatened high-altitude ecosystems, declaring submitted a petition against the Australian
the provisions unconstitutional for, among other government to the United Nations Human Rights
violations, violating the public’s right to clean water.9 Committee, alleging that Australia is violating their
human rights under the International Covenant
A group of more recent cases in international fora on Civil and Political Rights (ICCPR) by failing to
have asserted and, in some cases established, establish sufficient greenhouse gas mitigation
that climate change impacts an expanding set of targets and plans, and by failing to fund adequate
international human rights: coastal defense and resilience measures on the
islands, which are at risk of inundation due to
In November 2017, the Inter-American Court sea level rise.12 The petitioners allege Australia’s
of Human Rights issued Advisory Opinion OC- failures violate Article 27 (the right to culture),
23/17, in response to a request from Colombia, Article 17 (the right to be free from arbitrary
in which the court concluded that the right to a interference with privacy, family and home), and
healthy environment is a human right under the Article 6 (the right to life) of the ICCPR.13
American Convention on Human Rights.10 The
opinion addresses climate change throughout, In September 2019, 16 children filed a petition
acknowledging that climate change is widely alleging that Argentina, Brazil, France, Germany,
understood to interfere with the enjoyment and Turkey have violated their rights under the
of human rights, and specifically stating, “To United Nations Convention on the Rights of the
respect and to ensure the rights to life and to Child (“the Convention”) by making insufficient
personal integrity of the persons subject to cuts to greenhouse gases and by failing to use
their jurisdiction, States have the obligation to their role in the G20 to encourage the world’s
Key Trends
Increasing Advocating for Claiming Seeking to keep Addressing Challenging

numbers of cases greater climate corporate liability fossil fuels in failures to domestic
relying on disclosures and and responsibility the ground adapt and the enforcement
fundamental and an end to for climate harms impacts of (and non-en-
human rights corporate adaptation forcement) of
enshrined in greenwashing on climate-related
international law the subject of laws and
and national climate change policies
constitutions to and the energy
compel climate transition
action

biggest emitters to curb carbon pollution.14 The their constitutional rights to life, liberty, and property
petitioners claim that climate change has led to were violated by U.S. policies allowing fossil fuel
violations of their rights under the convention to production, consumption, and combustion at
life, health, the prioritization of the child’s best “dangerous levels.”20 The Court of Appeals reversed
interest, and the cultural rights of petitioners from that decision. As discussed further below, the court
indigenous communities. held that while “[t]here is much to recommend the
adoption of a comprehensive scheme to decrease
In January 2020, five U.S. tribes in Alaska and fossil fuel emissions and combat climate change,
Louisiana submitted a complaint to 10 U.N. Special both as a policy matter in general and a matter of
Rapporteurs claiming that the U.S. government national survival in particular,” the court lacked the
and state governments are violating the tribes’ power “to order, design, supervise, or implement
fundamental rights.15 The tribes argue that the they the plaintiffs’ requested remedial plan.”21 (The
are being forcibly displaced from their ancestral plaintiffs have sought rehearing of the court of
lands as a result of climate change, and that the appeals’ decision.)
U.S. government has failed to engage, consult,
acknowledge, and promote the self-determination In ENVironnement JEUnesse v. Canada, an
of the tribes as they develop adaptation strategies, environmental nonprofit organization brought
including resettlement, in violation of the tribes’ a climate change-related class action against
rights to, among others, life, health, housing, water, the Canadian government on behalf of Québec
sanitation, a healthy environment, and food.16 citizens aged 35 and under in the Superior Court
of Québec.22 Their claim alleged that by setting a
Cases brought in domestic fora have argued greenhouse gas reduction target insufficient to
that climate obligations emerge from existing avoid dangerous climate change impacts and by
constitutional and fundamental rights secured lacking an adequate plan to reach its greenhouse
under domestic law. gas emission target, Canada failed to meet its
obligations to protect the fundamental rights of
In Urgenda, the Supreme Court of the Netherlands young people under the Canadian Charter of Rights
ruled that Articles 2 and 8 of the European and Freedoms and the Québec Charter of Rights
Convention on Human Rights (ECHR), as integrated and Freedoms.23 The court agreed that the impact
into domestic Dutch law, impose enforceable of climate change on human rights is a justiciable
obligations on the state to protect the right to life issue and that the charters apply in this context,
and the right to respect for private and family life. but the court dismissed the lawsuit because the
The court concluded that those obligations require proposed class of plaintiffs was based on an
the government to take steps to reduce carbon arbitrarily-decided cut-off of persons aged 35
emissions consistent with limiting warming to an and younger. The plaintiffs appealed the court’s
average of 1.5°C.17 decision, and their appeal is now pending before
Quebec’s Court of Appeal.
In Future Generations v. Ministry of the Environment
and Others, a group of youth plaintiffs filed a In PSB et al. v. Brazil, four political parties filed
tutela alleging that their fundamental rights to a an action alleging that the government has
healthy environment, life, health, food, and water failed to properly administer the Amazon Fund, a
were threatened by climate change and the mechanism created to combat deforestation in
government’s failure to reduce deforestation in the Amazon. The parties allege that by disbanding
the Amazon.18 The Supreme Court of Colombia the fund’s technical committee responsible for
recognized that the constitutional rights to life, calculating deforestation and disbanding the
health, minimum subsistence, freedom, and human fund’s governance body, the government has
dignity were substantially linked to the environment failed its constitutional duty to preserve ecological
and the ecosystem and ordered the government to processes and to protect the natural environment.
develop and implement a plan to halt deforestation In June 2020, the Supreme Court accepted the
in the country.19 lawsuit and directed the government to provide
information on, among others, how it has managed
In Juliana et al. v. United States (“Juliana”), the trial the fund and activities related to the fund that have
court had allowed the youth plaintiffs’ claim that been implemented or suspended.24

Cases brought by or on behalf of young people security of person because of their increased
asserting unique harms to future generations have risk of injury, disease, and psychological trauma
been filed in other jurisdictions, as well. In Kim brought on by extreme weather events.33
Yujin et al. v. South Korea, 30 youth activists filed
a complaint in the South Korean Constitutional Cases in domestic fora also rely on fundamental
Court in March 2020 alleging that the nation’s and constitutional rights to challenge more
climate change law violates their rights to life and particular government policies. In Pakistan, a group
to a clean environment.25 In particular, plaintiffs of women filed a petition arguing that Pakistan has
allege that South Korea’s Framework Act on not followed through on its Paris Agreement pledge
Low Carbon, Green Growth commits to reducing to reduce GHG emissions, citing the country’s
annual nationwide greenhouse gases at a rate failure to permit any renewable energy projects
that is insufficient to keep global warming below over a period of 14 months preceding the petition.34
2°C.26 Similarly, in Álvarez et al v. Peru, a group Noting the disparate impact of climate change on
of Peruvian youth plaintiffs filed a lawsuit in women in Pakistan, they argue that the government
December 2019 alleging that their government’s has violated their constitutional right to life, to be
failure to prevent deforestation violates their right free of discrimination on the basis of sex, and to a
to enjoy a healthy environment, and their rights clean and healthy environment.35
to life, water, and health.27 Their complaint seeks
an order requiring the government to implement In Austria, Greenpeace and over 8,000 individual
policies to reach zero net deforestation in the petitioners filed an action alleging that the
Peruvian Amazon by 2025. And in Youth Verdict v. government’s tax structure for domestic and cross-
Waratah Coal, a group of plaintiffs 30 years old and border flights makes it cheaper to fly than to take the
younger filed an objection to Australia’s approval train.36 The structure, the petitioners allege, violates
of a new coal mine.28 The plaintiffs allege that their rights under both the European Convention
approving the mine would violate their rights to on Human Rights and the Charter of Fundamental
life, the protection of children, and to culture, each Rights by contributing to climate change.37
of which is protected by Queensland’s Human
Rights Act 2019.29 In Victoria Segovia v. Climate Change Commission,
a group of plaintiffs—including youth plaintiffs
Older plaintiffs have brought comparable claims as and a class of car owners who would rather not
well: in Union of Swiss Senior Women for Climate use cars if public transportation were available—
Protection v. Swiss Federal Council a group of Swiss challenged the Philippine government’s failure
seniors argued that by failing to take steps to reduce to carve out pedestrian and bicycle space on
global temperature increases, the government had the country’s roadways.38 They argued that the
violated their right to life.30 The court rejected those government’s failure violated their rights to health
claims, citing the fact that the petitioners are not and a healthful ecology, as well as executive
the only demographic affected by climate change, orders requiring roadways to be designed in a
so neither the injury nor remedy was particularized way that facilitates pedestrians and bicycles.39
to the petitioners. The court denied the plaintiffs’ claims, finding
the plaintiffs failed to show a causal connection
In Canada, indigenous groups filed a suit in between the government’s inaction and climate
the Federal Court of Canada alleging that the harms, and adding that that the government has
Canadian government’s approach to climate discretion over how it chooses to implement the
change violates their constitutional and human executive orders.40
rights.31 The plaintiffs argue that Canada’s
constitutional duty to legislate for “peace, order Finally, some cases challenge specific projects on
and good government” requires that it pass the basis of climate rights. In Norway, a coalition
laws mitigating GHG emissions.32 The plaintiffs of environmental groups sought a declaratory
further contend that they are deprived of their judgment from the Oslo District Court that Norway’s
right to life by increased risk of premature death; Ministry of Petroleum and Energy violated the
their right to liberty because climate change will Norwegian constitution by issuing a block of oil and
deprive them of the freedom to choose where gas licenses for deep-sea extraction from sites in
to live within their territories; and their right to the Barents Sea. Their petition argued that issuing

the licenses was inconsistent with Article 112 of the As the examples above demonstrate, these cases
Norwegian Constitution, which establishes a “right seek to have significant impacts, ranging from
to an environment that is conducive to health and orders that require a government to overhaul its
to a natural environment whose productivity and climate policy to, for specific projects, orders
diversity are maintained.” The lower courts rejected that resolve extended and sometimes permanent
the plaintiffs’ claims, finding that the government delays. Given the scope of the potential remedies
had appropriately considered the licenses’ relevant available where plaintiffs succeed, litigants are
climate impacts before reaching its decision, but likely to continuing filing cases premised on
the plaintiffs have been granted leave to appeal to fundamental and constitutional rights.
the Norwegian Supreme Court.41
Rights of Nature and Climate Change

Since 2017, a body of cases asserting under the protection of its legal representatives,
fundamental rights of nature, as opposed to such as, for example, by the communities that
persons, have been litigated in jurisdictions inhabit nature or that have a special relationship
around the world.42 These cases are similar to with it.”43
those asserting human rights to the extent that
they argue that the existence of certain rights Other jurisdictions have reached mixed
necessarily implies enforceable obligations results: In New Zealand, both the Whanganui
on governments, even without legislation or river44 and a national park called Te Urewera45
regulation explicitly extending those rights to were given personhood-type rights by
climate change rights. Rivers are frequently the legislation. In India, a pair of cases sought
subject of such cases. Notably, not all of these to establish rights relating to the Ganges and
cases explicitly relate to climate change. But if Yamuna rivers46 and the glaciers at the source
a court or legislature agrees that an object in of each river.47 The lower court granted those
nature possesses rights, those rights could then rights, but the decision was later overturned.
be the basis of a new action arguing that climate In the U.S., plaintiffs filed an action seeking a
change implicates those rights. declaration that the Colorado River Ecosystem
is a person capable of possessing rights to
Center for Social Justice Studies et al. v. exist, flourish, regenerate, be restored, and
Presidency of the Republic et al., a Colombian naturally evolve.48 The attorney bringing the
tutela (special constitutional claim), provides case withdrew the action before any decision
an example. Plaintiffs filed the claim seeking to was reached however, after the government
compel the government to restrain the mining threatened to seek sanctions available where
and logging activities that threatened the an attorney files a case for (among others)
ecological integrity of the Atrato River and the an improper purpose or to raise frivolous
health of nearby indigenous communities. In arguments for extending the law. Similarly, in
granting the plaintiffs’ request, the Colombian 2019 a city government amended its charter
Constitutional Court noted that “the relationship to include a provision that “Lake Erie, and
between the Constitution and the environment the Lake Erie watershed, possess the right to
is dynamic and in constant evolution,” and exist, flourish, and naturally evolve.”49 In early
describing “nature as a real subject of rights that 2020 a court struck down the provision as too
must be recognized by the States and exercised vague to enforce.50
B. Domestic enforcement adaptation through international agreements,

National and subnational governments articulate legislation, regulation, and policy statements. As
commitments to climate change mitigation and they do, those governments and their agencies

© Getty Images

become vulnerable to a variety of legal actions the court ventured into policymaking, adding that
challenging either the commitments being made “[w]hat might once have been policy has become
or how those commitments are (or are not) being law by virtue of the enactment of the 2015 Act.”56
put into practice. Although governments are the
most common defendants in litigation challenging In Mataatua District Maori Council v. New Zealand,
mitigation and adaptation commitments, analogous representatives of the Mataatua District Maori
suits have been brought against corporations and Council filed a claim alleging that New Zealand
other institutions for failing to meet their own breached its obligations to the Maori by failing to
stated climate change goals.51 implement policies to address climate change,
which violates provisions of the Waitangi Treaty
Several of the cases noted in the 2017 Litigation that make the government responsible for the
Report52 have since been resolved or advanced to “active protection” of natural resources such as
later stages of litigation. In Thomson v. Minister for forests and fisheries on behalf of the Maori. In
Climate Change Issues, the court rejected plaintiff’s 2019, New Zealand passed the Climate Change
claims that New Zealand’s Paris Agreement pledge Response (Zero Carbon) Amendment Act 2019,
was inadequate because it fell short of what setting ambitious mid-century climate mitigation
was required by New Zealand’s Climate Change targets. Plaintiffs filed an amended pleading that
Response Act 2002, citing the government’s argues that the act still fails to adequately guard
discretion about how to implement the act. The against climate change, because its targets are
court in PUSH Sweden, Nature and Youth Sweden and insufficient and unenforceable.57
Others v. Government of Sweden denied plaintiffs’
claims that the Swedish government’s response Plaintiffs have also argued that the impact
to climate change was inconsistent with its of government policies on natural resources
international commitments, because the plaintiffs demonstrates that those policies are inconsistent
themselves were not injured by those policies. In with their governments’ legislative and policy
Greenpeace Nordic Association v. Norway Ministry commitments relating to climate change. In Sheikh
of Petroleum and Energy, discussed above, the lower Asim Farooq v. Federation of Pakistan, citizens
and intermediate courts rejected plaintiffs’ claims, sued Pakistan and several administrative agencies
but the plaintiffs have been granted leave to appeal for failing to protect national forests under several
to the Norwegian Supreme Court. VZW Klimatzaak legislative acts designed to protect and restore
v. Kingdom of Belgium, in which plaintiffs allege forests.58 The court agreed, ordering, among
that Belgian law requires the government to adopt other things, that “the applicable laws . . . shall be
more ambitious climate mitigation goals than it implemented in letter and spirit in order to plant,
had previously done, remains pending after a three- protect and preserve the forest.”59
year procedural dispute.53
In the EU, plaintiffs from six countries filed suit
Several more recently filed cases argue that against the European Union to challenge the
governments have not undertaken sufficiently treatment of forest biomass as a renewable fuel
ambitious national climate mitigation actions in the European Union’s 2018 revised Renewable
in relation to existing legislative and policy Energy Directive (known as RED II). They alleged
commitments. For example in Friends of the Irish that RED II will accelerate widespread forest
Environment CLG v. Gov’t of Ireland, plaintiffs brought devastation and significantly increase greenhouse
an action arguing that Ireland’s National Mitigation gas emissions by not counting CO2 emissions
Plan is inconsistent with the Climate Action and Low from burning wood fuels. As a result, plaintiffs
Carbon Development Act (the 2015 Act) and rights contended that the policy is incompatible with
protected by the European Convention on Human the environmental objectives of the Treaty on the
Rights and the Irish Constitution.54 The lower court Functioning of the European Union and violates
denied plaintiffs’ claim, but in a ruling on 31 July the EU Charter on Fundamental Rights (Art. 32
2020 the Supreme Court of Ireland quashed the and Art. 57). In May 2020, the court dismissed the
plan.55 The court noted that the plan fell “well short action, finding that the plaintiffs lacked standing
of the level of specificity required to . . . comply with because the directive is generally applicable, and
the provisions of the 2015 Act,” and rejected the these plaintiffs did not demonstrate any individual
government’s argument that by vacating the plan, impacts unfelt by the public as a whole.60

Finally, plaintiffs have also argued that individual assessment has no inherent legal effect (although
projects—as opposed to national-scale climate it could inform a reviewable decision later).69 In
mitigation policies—violate governments’ legislative June 2020 the court denied the government’s
and policy commitments even where those individual motion, clearing the way for the case to proceed to
projects would not actually extract fossil fuels. a decision on its merits.70
In Plan B Earth v. Sec’y of State, plaintiffs argued C. Keeping fossil fuels – and carbon sinks
that the U.K.’s Airports National Policy Statement, – in the ground
prepared by the Secretary of State for Transport Courts are considering cases that challenge specific
and allowing an additional runway at London’s resource-extraction and resource-dependent
Heathrow Airport, failed to take into account the projects and that challenge environmental permitting
Paris Agreement, non-CO2 warming impacts of and review processes that plaintiffs allege overlook
aviation, and the effects the new runway would the projects’ climate change implications. All of
have on climate change beyond 2050 in violation these cases cite both the long-term, global effect of
of the Planning Act and Climate Change Act.61 investing in projects that will produce consumable
Britain’s Court of Appeal issued a decision halting fossil fuels and the local impacts on water, land use,
plans to build, finding that the secretary of state’s and air quality associated with mining and drilling
failure to consider the Paris Agreement was activities. Increasingly, these cases allege that
sufficient to invalidate the policy, adding that “the proper consideration of a project’s impacts should
Paris Agreement was so obviously material that include the extent to which the project facilitates
it had to be taken into account.”62 In May 2020, fossil fuel consumption elsewhere in the world and
the Supreme Court agreed to hear an appeal of for an extended period into the future.
the decision.63
The 2017 Litigation Report described several
In Gloucester Resources Limited v. Minister for key cases in this area: In Ali v. Federation of
Planning, a company brought an action against the Pakistan, a 7-year-old girl in Karachi brought
planning minister in New South Wales to appeal the a legal action against Pakistan and the Sindh
denial of the company’s application to construct an Province challenging the approval of a plan to
open-cut coal mine.64 The Department of Planning develop certain coal fields; the action remains
had denied the application in light of, among other pending as of July 2020.71 In Greenpeace Nordic
reasons, the indirect greenhouse gas emissions of Association v. Norway Ministry of Petroleum and
the mine, and the fact that under Section 4.15(1) Energy, discussed above, plaintiffs challenged
of the Environmental Planning and Assessment Act the state’s decision to grant certain offshore oil
the government was required to consider the public and gas development licenses. And in 2016, the
interest as part of its review of a development Colombian Constitutional Court struck down
application.65The court upheld the department’s statutory provisions allowing development in
decision, concluding that because “the negative threatened high-altitude ecosystems, since
impacts of the Project, including [among others] allowing development in those would endanger
climate change impacts, outweigh the economic carbon sinks.72
and other public benefits of the Project,” the project
was contrary to the public interest.66 Many of the cases in this category are partially
or entirely premised on environmental impact
In Ecology Action et al. v. Minister of Environment assessment (EIA) and similar planning
and Climate Change, plaintiffs alleged that the requirements. These cases often, but not always,
Canadian government improperly assessed the challenge project permitting and approval
regional consequences of exploratory drilling off decisions for failing to take climate impacts into
the coast of Newfoundland and Labrador.67 The account as part of required environmental reviews.
plaintiffs contend that the assessment, which Plan B Earth, Gloucester Resources Limited, and
would allow individual projects to avoid project- Ecology Action, discussed in the previous section,
specific assessments, failed to consider the impact are similarly premised on EIA requirements. But
of methane leakage on climate change.68 The there are many other examples, and many of those
government moved to dismiss the action as not yet challenge projects that will generate greenhouse
ready for judicial review, arguing that the regional gas emissions or destroy carbon sinks.

In Private Corporation for the Development of greater detail than it had, and to further assess the
Aysen, et al. v. Environmental Evaluation Service cumulative effects of the leases GHG emissions.77
of Chile, claimants challenged the Environmental
Assessment Service of Chile’s approval of Three recent cases outside the U.S. challenge
the proposed hydroelectric project Central decisions to construct or expand fossil fuel power
Hidroélectrica Cuervo in the Aysen region, arguing plants in light of those plants’ GHG emissions. In
the project’s assessment failed to consider the ClientEarth v. Sec’y of State, a non-profit group
potential climate impacts of disturbance to filed an action challenging the U.K. government’s
wetlands as areas of high biodiversity and to decision to approve a project converting a coal
forests as crucial carbon sinks.73 The court vacated plant to natural gas. The complaint alleges the
the Environmental Assessment Service’s approval secretary misinterpreted national policy on
of the project for a separate reason: the developers assessing greenhouse gas emissions, failed to
failed to provide sufficient compensation for properly assess the carbon-capture readiness of
disruption to wetlands and forests.74 The court also the facility, and either ignored the U.K.’s mandate
noted, however, that the assessment need only to achieve net zero greenhouse gas emissions
analyze local impacts and not climate change. by 2050 or, at a minimum, failed to adequately
explain her assessment of the net zero target. The
In Save Lamu et al. v. National Environmental trial court ruled in favor of the government, finding
Management Authority and Amu Power Co. Ltd., that the secretary had appropriately assessed the
Kenya’s National Environmental Tribunal invalidated project’s impacts and met her requirements to
a license granted to Amu Power Company for the explain the decision.78 But on 21 July 2020, the
construction of the Lamu Coal Power Station.75 Court of Appeal gave ClientEarth permission to
The tribunal found that the license was issued appeal. In Committee on the Kobe Coal-Fired Power
without proper and meaningful public participation Plant v. Japan, plaintiffs filed a lawsuit seeking an
in the process, and it ordered the power company injunction to prevent the construction and operation
to conduct a new EIA that complied with all of two new units at a coal-fired plant in Kobe, Japan.
applicable regulations and that would consider The plaintiffs’ currently pending action asserts that
Kenya’s Climate Change Act 2016, Energy Act 2019, the construction and operation of the new coal-
and Natural Resources (Classes of Transactions fired units would violate the right to clean air and
Subject to Ratification) Act, 2016. a healthy and clean environment and the right to
enjoy a stable climate; conflict with Japan’s 2030
Similar cases in the U.S. raise challenges to fossil and 2050 climate targets; and pollute in residential
fuel extraction leasing, frequently on the basis of areas where air quality standards are already being
EIA requirements. In one of the many examples, violated.79 In Fridays for Future Estonia v. Eesti
plaintiffs in WildEarth Guardians v. U.S. Bureau of Energia, plaintiffs brought an action challenging a
Land Management challenged an environmental new shale oil plant in Estonia. The plaintiffs argue
assessment addressing the sale of oil and that local authorities issued a permit to construct
gas leases affecting nearly 150,000 acres. The the new plant without adequately assessing the
plaintiffs alleged, among other deficiencies, that plant’s climate impacts, Estonia’s commitments
the environmental assessment failed to consider under the Paris Agreement, and the European
the leases’ cumulative climate change impacts. In Union’s climate mitigation targets.80 The lawsuit
May 2020 the court agreed, vacating the leases and remains pending.
finding that although “[t]he global nature of climate
change complicates an assessment of the exact Although many EIA cases involve challenges to
climate change impacts from the lease sales,” the large utility and infrastructure developments, these
government must still do so to the extent necessary types of provisions are used to challenge smaller-
to allow and informed decision about whether scale decisions as well. In R (on the application
or how to proceed with the leases.76 In WildEarth of McLennan) v. Medway Council, a claimant
Guardians v. Zinke, the court ordered the government challenged his local planning board’s decision to
to revisit its environmental assessment of another allow his neighbor to build a dormer that would
set of oil and gas leases, directing the government have blocked the claimants’ solar panels.81 The
to quantify drilling-related GHG emissions in the court ruled that the board had erred in granting
aggregate, discuss downstream GHG emissions in the neighbor’s permit without considering whether

the proposed project would affect the neighbor’s causation feature prominently in these cases, and
ability to generate electricity from his solar panels, courts are being asked to consider whether it is
reasoning that even small-scale renewable energy possible to link defendants’ emissions to climate
schemes contribute to addressing climate change. change harms sufficiently to establish jurisdiction
over the cases.
In a more unusual fossil fuel infrastructure case,
Montana v. Washington, two U.S. states allege In a separate proceeding that relies on the same
that a third state, Washington, improperly blocked history of fossil fuel industry obfuscation and
development of a port that would have allowed coal similar approaches to attributing emissions to fossil
mined in Montana and Wyoming to be exported fuel companies, In re Greenpeace Southeast Asia,
to foreign markets.82 Montana and Wyoming cite environmental organizations and individual Filipino
statements from Washington officials indicating citizens petitioned the Philippine Commission
that the state’s opposition was premised on its on Human Rights to investigate “the human
concern over the overseas emissions that burning rights implications of climate change and ocean
that coal would generate. The two states have acidification and the resulting rights violations
petitioned the U.S. Supreme Court to hear the case. in the Philippines,” naming 50 so-called “Carbon
Majors” as respondents. In 2019 the commission,
D. Corporate liability and responsibility which does not have enforcement powers of its
Despite broad consensus about the nature, own, announced that major fossil fuel companies
seriousness, and causes of climate change, defining have obligations under domestic human rights law
the precise causal relationship between a particular to address climate change impacts.88
source of emissions and individualized climate
change harms remains a challenge for litigants.83 Other cases focus on GHG emitters, rather than
As the Intergovernmental Panel on Climate fossil fuel companies. In Lliuya v. RWE AG, a
Change describes, the key causal mechanism of Peruvian farmer sued the German utility RWE
climate change is “well-mixed greenhouse gases” seeking compensation for the costs of protecting
in the atmosphere.84 Mixing obscures particular the plaintiff’s town from melting glaciers.89 The case
contributions and creates challenges for litigants was initially dismissed for several reasons, including
seeking to identify a defendant’s share. The 2017 that the plaintiff had asked the court to determine
Litigation Report described several of the key cases RWE’s precise annual contribution to global
that exemplify legal actions of this kind, noted that emissions rather than submitting an estimate, and
plaintiffs had not yet successfully established that that there was no “linear causal chain” linking the
particular emitters were the proximate cause of plaintiffs injury and RWE’s emissions.90 On appeal,
the plaintiff’s specific injuries, and further noted however, the court reversed and has now entered
leading U.S. cases in which courts did not reach the into the evidentiary stage of the lawsuit, collecting
substance of the plaintiffs’ claims.85 Things have evidence on, among other issues, the extent of GHG
changed, and not changed, since then. emissions released by defendant and on the way
in which those emissions contribute to warming of
In the U.S., more than a dozen cases are pending the atmosphere.
against fossil fuel producers seeking to hold
them responsible for a share of climate change’s In Smith v. Fronterra Co-Operative Group Limited,
impacts.86 Earlier cases established precedent the plaintiff sued several major greenhouse-gas
that plaintiffs cannot pursue common law actions emitting facilities in New Zealand, alleging that
under federal law; as a consequence, plaintiffs their emissions amount to a public nuisance,
have brought claims under state laws in numerous negligence, and breached an inchoate duty to
jurisdictions. These include claims that defendant cease contributing to climate change.91 The court
companies are liable for public nuisance due to dismissed the plaintiff’s nuisance and negligence
their production and marketing of fossil fuels, and claims, expressing doubt about the plaintiffs’
that the companies are liable for failure to warn causation argument: “[t]he defendants’ collective
the public and consumers about the foreseeable emissions are miniscule in the context of the global
harms their products cause. None of the cases greenhouse gas emissions which are causing
has yet reached a decision on the merits, and they climate change and it is the global greenhouse
are at various stages of litigation.87 Questions of gas emissions which are pleaded as being likely to

cause damage . . . .”92 Although the court dismissed a bulk storage terminal for petroleum products
the first two claims, it allowed plaintiff to proceed by failing to adapt the facility to sea level rise and
on the theory that there may be an inchoate duty to increased storm risk.94 The case has since resulted
cease contributing to climate change. in a decision deferring to the permitting authority—
in this case, the U.S. Environmental Protection
E. Failure to adapt and impacts of adaptation Agency—to address by 2022 the issues that the
Although some governments and private parties plaintiff has raised.95 A similar case is still pending
are undertaking a variety of measures to adapt in a federal court in Rhode Island.96
to the increasingly severe effects of climate
change, others are aware of those changes and Newer cases against governments have alleged
the foreseeable extreme weather events that that the governments ignored climate change risk.
climate change will bring but have not taken steps Indeed, an increasing number of cases challenge
to prepare. Courts are seeing cases challenging environmental impact assessments and planning
each—seeking compensation for adaptation and permitting decisions for built infrastructure
efforts that caused harm or damaged property and and natural resources management on the basis
seeking injunctive relief for failing to adapt in the that governments have failed to adequately
face of known climate risks. account for climate change. For example in
Burgess v. Ontario Minister of Natural Resources
The 2017 Litigation Report described how cases and Forestry, the plaintiff sued a provincial
in the aftermath of Hurricane Katrina in 2005 official in Canada responsible for managing the
emphasize the importance of sovereign immunity water level in several Canadian lakes, arguing
for litigation in the U.S. that addresses failures that although the lakes had never seen flooding
to adapt.93 It also described how challenges to historically, three floods since 2010 occurred that
adaptation measures, by contrast, can allege damaged property around the lakes.97 The plaintiff
that such measures have caused unintended or alleged that the government owed property
unnecessary harmful side effects, describing Ralph owners a duty to prevent now-foreseeable
Lauren 57 v. Byron Shire Council as an example. flooding, and breached that duty by failing to take
Finally, the 2017 Litigation Report discussed necessary steps to prevent the floods that had
Conservation Law Foundation v. ExxonMobil, in already occurred.98 In 2018, Burgess voluntarily
which plaintiffs filed a suit alleging that Exxon discontinued the case.99 In Philippi Horticultural
violated terms of a permit allowing it to operate Area Food & Farming Campaign v. MEC for
© Getty Images

© Unsplash
Local Government, Environmental Affairs and accounted for sea level rise. The court dismissed
Development Planning: Western Cape, plaintiffs the case, finding that the government’s actions
filed a lawsuit challenging an administrative were within its legal authority.106 Similarly, in
decision allowing urban development in a Pridel Investments v. Coffs Harbour City Council an
designated horticultural area, alleging that the Australian developer alleged that the city unlawfully
decision failed to adequately consider climate rejected permission to build subdivision in an area
impacts on a local aquifer. The South African High made highly susceptible to flooding by climate
Court remanded the administrative decision with change.107 The court upheld the city’s permit denial,
instructions to, among other things, reconsider finding that the precautionary principle places
the decision’s effect on existing rights related to the burden on the developer to demonstrate that
the aquifer “in the context of climate change and flood risk can be appropriately managed; here, the
water scarcity.”100 developer failed to do so.108
At the same time, there has also been an increase Cases against private parties similarly hinge
in lawsuits claiming that government steps on whether the defendant knew or should have
to address that risk have harmed or will harm known that climate change increased the risk that
plaintiffs. For example, in Cangemi v. Town of the defendant’s actions would harm others. In
East Hampton, plaintiffs filed a nuisance action Harris County v. Arkema, Inc., a local government
against local government officials in New York in Texas sued a chemical manufacturer after
State alleging that two jetties built to maintain flooding caused its facility to lose power and
a nearby inlet had stopped the flow of sand to become unable to properly refrigerate certain
their beachfront properties, causing erosion that chemicals stored at the facility that, in turn, led
diminished their property values. The governments to an explosion, fires, and a massive release
ultimately prevailed, and the court noted that the of toxic emissions. The county alleged that
jetties were reasonable despite plaintiffs’ harms portions of the facility were built in a documented
because the jetties are “necessary to keep the inlet floodplain and asked for a court order directing
open.”101 In Ambuja Cement v. Rajasthan Electricity the defendant to hire an independent disaster
Regulatory Commission, a group of manufacturers preparedness auditor and to comply with the
challenged commission rules requiring them to auditors’ recommendations.109 Separately, in
purchase some of their power from renewable Graves et al. v. Arkema, Inc., first responders and
sources or pay a surcharge for failing to do so.102 local landowners sued the same company over
The manufacturers, each of which established the same event, alleging that the company was
their own generation plants to meet their power negligent in failing to prepare for a foreseeable
needs, argued that they should not be subject storm.110 In Von Oeyen v. Southern California
to any renewable power purchase obligations Edison Co., residents of Malibu, California are
under generally applicable energy laws, and that seeking monetary damages from the local utility
regulations purporting to create that obligation are in the wake of a devastating wildfire. Plaintiffs
inconsistent with India’s Constitution, Electricity argue that the defendants failed to maintain
Act of 2003, and National Electricity Policy.103 The and operate their equipment and property
court upheld the regulations citing, among other appropriately in light of the known increased,
purposes, their “long lasting impact in protecting climate-related risks of wildfire.111
[the] environment.”104 The decision was later upheld
by the Indian Supreme Court.105 In addition to cases challenging private parties’
inaction on physical risk, courts have seen several
Several such cases address government steps to cases seeking to hold companies or asset managers
address the heightened risk of coastal flooding liable, alleging that those managers’ failures to
through permitting denials. For example in Argos adapt their investment strategies caused financial
Properties II, LLC v. City Council for Virginia Beach, harms. For example in Lynn v. Peabody Energy
a developer filed a lawsuit asserting that the city Corporation, a class of participants in Peabody
unlawfully denied its application for a proposed Energy Corporation’s employee stock option plans
rezoning of a 50-acre property for residential brought a lawsuit alleging that the plan administrator
development on the grounds that the developer violated its duty of prudence by continuing to invest
failed to provide a stormwater analysis that in the company’s stock well after public information

made it clear that doing so was unreasonable.112 they allege are misleading corporate statements
The court dismissed the case, finding that plaintiffs about climate change. These actions involve
failed to meet the high burden of describing an plaintiffs bringing suits claiming they relied on
alternative investment that “a prudent fiduciary in those statements to make financial decisions,
the same circumstances would not have viewed as well as cases brought by governments
as more likely to harm the fund than to help it.”113 enforcing securities disclosure and consumer
In Harvard Climate Justice Coalition v. President protection laws, and NGOs challenging alleged
and Fellows of Harvard College, students at the “greenwashing” campaigns.
famous university filed suit seeking to compel
the university to divest its endowment from fossil In several instances investors have filed suit
fuel companies. The Massachusetts Appeals alleging that public disclosures relating to climate
Court held that the students lacked standing to risk were misleading or fraudulent, both in relation
sue based on the purported negative impacts on to the risk that a transition away from fossil fuels
academic freedom and education at the university poses to their business or investment assets and
and declined to recognize a new tort of “intentional the risk of physical impacts to infrastructure,
investment in abnormally dangerous activities.”114 operations and supply chains associated with
climate change.
In a case targeting corporate investment in
fossil fuel infrastructure, ClientEarth v. Enea, an In City of Birmingham Retirement and Relief
environmental organization sued a Polish utility System v. Tillerson, stockholders filed a derivative
seeking annulment of a resolution consenting to suit against Exxon claiming that the company had
construction of a coal-fired power plant.115 The misled stockholders about climate-related risks to
plaintiff argued that the investment would harm its business.117 The plaintiffs allege both that Exxon
the economic interests of the company as a knew but failed to disclose the “catastrophic risk that
result of climate-related financial risks, including climate change presents to its business,” and that
rising carbon prices, increased competition from the company actively engaged in a misinformation
cheaper renewables, and the impact of EU energy campaign to muddy its own scientists’ conclusions
reforms on state subsidies for coal power under about climate change.118 In Ramirez v. Exxon Mobil,
the capacity market. On 1 August 2019, the a group of investors filed a lawsuit alleging that
court found the company resolution authorizing similar conduct violates federal securities law and
construction of the power plant to be legally seeking damages for the harms they suffered by
invalid, though on other grounds. relying on those misleading statements.119
In another case targeting investment and On the physical risk side, in York County v. Rambo
disclosure in fossil fuel infrastructure, three bond investors allege that the utility Pacific Gas
identical complaints were filed with the and Electric Company (PG&E) stated in offering
Organization for Economic Cooperation and documents for more than $4 billion worth of bonds
Development (OECD) National Contact Point in that the utility had taken appropriate precautions
Japan by Market Forces, a project affiliated with to address climate change risks, including wildfire
Friends of the Earth Australia. The complaints risks, but failed to disclose “the heightened risk
allege that three Japanese banks are in breach caused by PG&E’s own conduct and failure to
of OECD guidelines both for failing to provide comply with applicable regulations governing the
environmental and social impact assessments maintenance of electrical lines, and the hundreds
and for failing to urge project sponsors to of fires that were already being ignited annually
assess and prevent or minimize GHG emissions by the Company’s equipment.”120 In O’Donnell
associated with a number of coal power plants v. Commonwealth, investors allege that the
in Vietnam.116 Australian government failed to disclose climate
change risks in term sheets and information
F. Climate disclosures and greenwashing memoranda on two classes of exchange-traded
As public information about the nature, causes, government bonds.121 The investors allege
and impacts of climate change has become that physical and transition risks are material
increasingly available and well understood, to investors in the bonds, and that failing to
plaintiffs have brought actions challenging what address those risks may lead global credit ratings

agencies to downgrade Australia’s credit rating.122 “Greenwashing” complaints allege that corporate
The plaintiffs are seeking declarations that the advertising contains false or misleading
government breached its disclosure obligations information about environmental impacts –
and an order directing it to properly disclose here, climate change impacts. In one case, the
climate risks.123 environmental group ClientEarth filed a complaint
with the United Kingdom National Contact Point
Several governments have also alleged violation for the OECD against British Petroleum (BP),
of disclosure requirements, as well as consumer alleging that BP’s “Possibilities Everywhere”
protection laws. In People of the State of New York advertising campaign misleads the public.130
v. Exxon Mobil Corporation, New York’s attorney ClientEarth alleged that the campaign misled
general brought a suit against Exxon alleging that the public about the scale of renewable and
the company engaged in a scheme to deceive low-carbon energy in BP’s portfolio, omitted
investors by, among other things, stating one lifecycle emissions for natural gas, and claimed
proxy cost of carbon publicly but applying another inaccurate emissions savings from natural gas
in internal guidance, applying no proxy cost at all relative to coal combustion. ClientEarth alleged
to some its reserves, and stating that even under that these statements violated OECD’s Guidelines
a 2°C warming scenario the company faced for Multinational Enterprises which require,
little risk. The court ruled for Exxon, concluding among other things, that “enterprises should
(among other things) that the plaintiff had not provide accurate, verifiable and clear information
shown at trial that the statements actually misled sufficient to enable consumers to make informed
any investor.124 Massachusetts’ attorney general decisions on the environmental attributes of
brought a similar suit in Commonwealth v. Exxon products and services.”131 Though cases of this
Mobil Corporation.125 That lawsuit includes a type may not involve the scale of penalties that
broader set of factual allegations and asserts securities fraud cases do, they can nonetheless
that Exxon misled both investors and consumers have serious ramifications for a defendant’s
in Massachusetts. Consumer protection lawsuits reputation. As a result of the complaint, BP has
have been filed against Exxon and other fossil fuel withdrawn the advertising campaign and pledged
companies by the attorneys general in Minnesota that it will discontinue “corporate reputation
and Washington, D.C.126 advertising” and redirect “resources to promote
net zero policies, ideas, actions, collaborations
Two Australian cases highlight that failing to and its own net zero ambition.”132
disclose climate information altogether, as
opposed to disclosing misleading information,
provides another potential basis for litigation. III. Future Directions
In McVeigh v. Retail Employees Superannuation
Trust, an Australian pension fund sued the Retail An analysis of these and other cases, the
Employees Superannuation Trust (REST) alleging accelerating impacts of climate change, and the
that the fund violated the Corporations Act 2001, global political context suggest several areas
by inadequately responding to his request for where one might expect to see increased climate
information about the fund’s knowledge of climate change litigation in the coming years. Although
change risk, its assessment of that risk, and actions each new case is unique and the outcome of a
taken in response.127 In March 2019, the court set given case is difficult to predict, prior cases in
the maximum costs that could be recovered by some of these categories offer some evidence
either party, and the case is scheduled for trial in of how future cases may be resolved. This
November 2020.128 In Abrahams v. Commonwealth section first revisits similar predictions made
Bank of Australia, shareholders sued the in the 2017 Litigation Report and then suggests
Commonwealth Bank of Australia (CBA) alleging several additional developments the near future
that it violated the Corporations Act of 2001 by may hold: consumer and investor fraud claims,
issuing its 2016 annual report without disclosing pre- and post-disaster cases, implementation
climate change-related business risks.129 Before challenges, increased attention to climate
the court could weigh in, the shareholders attribution, and an increasing use of international
withdrew the suit after the bank issued a 2017 adjudicatory bodies.
report acknowledging those risks.

Type of climate cases
1
Consumer and investor fraud claims
Plaintiffs are increasingly filing consumer and investor fraud claims
alleging that companies failed to disclose information about climate
risk or have disclosed information in a misleading way.
2
Extreme weather events
Recent years suggest a growing number of pre-
and post-disaster cases premised on a defendant’s
failure to properly plan for or manage the
consequences of extreme weather events.
Type of
climate cases
2021
3 Courts’ orders will raise new challenges
As more cases are filed and some reach a conclusion,
implementation of courts’ orders will raise new challenges.
4
The law and science of climate attribution
As cases seeking to assign responsibility for private
actors’ contributions to climate change and cases arguing
for greater government action to mitigate both advance and
proliferate, courts and litigants will increasingly be called on
to address the law and science of climate attribution.
5
International adjudicatory bodies
Litigants are increasingly bringing claims before international
adjudicatory bodies, which may lack for enforcement authority but
whose declarations can shift and inform judicial understanding.
Impacts of COVID-19
As numerous scholars and commentators have 500 billion euros to combat climate change.133
pointed out, the populations most threatened A group of mayors of major cities around the
by climate change significantly overlap those world has similarly articulated an agenda
most severely at risk due to the COVID-19 for recovery from the pandemic that would
pandemic: women, older persons, youth, prioritize climate goals, noting that “[c]limate
especially girls and young women, Indigenous action can help accelerate economic recovery
peoples, migrants and internally displaced and enhance social equity.”134 These and
persons, and minorities and marginalised comparable plans—in addition to the significant
groups. Fittingly, there have been calls to social, economic, and political ramifications of
address climate change impacts and pandemic the pandemic—may eventually influence global
impacts in synergistic ways. For example, climate change litigation. However, it is too
in July 2020 the EU approved an economic soon to know in what ways this influence may
recovery plan and budget that includes over occur or how significant it might be.

A. Update on 2017 predictions: Climate any outcome, the petition lays out a framework for
migration and litigation in the Global South future actions seeking binding orders to address
The 2017 Litigation Report suggested that cases displacement caused by climate change.
addressing the needs and status of persons
displaced by climate change impacts would be a It is reasonable to continue to expect cases
growing litigation trend.135 The pair of cases we concerning transboundary migration to increase. It
discussed in the previous report—Ioane Teitiota is also reasonable to anticipate that an increasing
v. The Chief Executive of the Ministry of Business, number of cases will arise concerning internal
Innovation and Employment and In re: AD—remain displacement. Indeed, government obligations
the key decisions that inform how we expect courts to protect people from both transboundary and
to address these issues, though at least 20 relevant internal displacement, and the rights of persons
cases have been brought in New Zealand and forced into mobility, may become a far more
Australia thus far.136 visible part of the climate litigation landscape. As
climate change impacts like severe heat waves,
In Teitiota the Supreme Court of New Zealand denied drought, sea-level rise, and increasingly frequent
a Kiribati citizen’s refugee status, but noted that and severe extreme weather events all accelerate,
“environmental degradation resulting from climate large numbers of people will be displaced. A recent
change or other natural disasters could . . . create a World Bank report concluded that internal climate
pathway into the Refugee Convention or protected migration will increase through 2050, by which date
person jurisdiction.”137 Teitiota subsequently 143 million people in sub-Saharan Africa, South
filed a complaint before the U.N Human Rights Asia, and Latin America will be forced to move within
Committee contending that by denying his refugee their countries.141 In 2018, nearly two-thirds of the
status, New Zealand violated his right to life under people who faced internal displacement did so as
the International Covenant on Civil and Political a result of natural disasters, which are increasing
Rights.138 In January 2020, the committee found in frequency and severity as climate change
that “the effects of climate change in receiving intensifies.142 This type of litigation is made all the
states may expose individuals to a violation of more likely (and complex) by climate change’s role
their rights under [the Covenant],” but dismissed in compounding the displacing effects of political
the complaint, finding that it could only overturn a crises and other events.143
state’s decision if the domestic process was clearly
arbitrary, amounted to a manifest error, or was a The 2017 Litigation Report also predicted an
denial of justice.139 increase in litigation in the Global South. Although
most of the climate cases filed to date have been
A recently filed petition may provide some brought in the U.S. and other developed countries,
additional insight into how governments will react there is undoubtedly an increasing body of cases in
to comparable claims. As noted in Section 2.II.A the Global South that advance climate theories.144
above, in early 2020 a group of Indian tribes in As others have noted, and the data provided here
the U.S. submitted a complaint to 10 U.N. Special on the growing number and dispersion of cases
Rapporteurs alleging that their land is becoming confirm, this trend continues.145
uninhabitable both because of slow, ongoing
climate impacts like sea-level rise and because of B. Consumer and investor fraud claims
extreme weather events made worse by climate Section 2.B.E introduced several cases that
change. The petitioners contend that by failing to allege that companies failed to disclose
engage, consult, or acknowledge the tribes, and information about climate risk or have disclosed
by failing to promote adaptation strategies to information in a way that misleads consumers or
ensure the tribes’ continued self-determination, the investors. Governments have brought actions for
government has ignored violations of their rights this kind of conduct under consumer protection
to life, health, housing, water, sanitation, a healthy statutes and private parties have advanced a
environment, and food, among others.140 Even if the range of theories. It is reasonable to expect
Special Rapporteurs decide to take action on the that such cases will continue to proliferate
complaint, the government may choose whether for at least two reasons. First, as statutes,
to respond to the complaint and, in any event, is regulations, and guidelines requiring companies
not obligated to take any action. But regardless of to disclose climate risk become more common

and comprehensive, regulators, consumers, and suits seeking to compel companies to take climate
investors will likely scrutinize that information, mitigation actions provide one set of examples, as
and file suits where those disclosures are made one function of such cases is to limit the share of a
in a misleading or incomplete way. Even without company’s responsibility for future extreme weather
formal governmental regulation, guidelines like events. In Tosdal v. NorthWestern, for example,
the Task Force on Climate-related Financial a shareholder sought to compel a U.S. utility to
Disclosures’ recommendations are increasing consider his proposal that the company replace
the frequency and breadth of disclosures made production from one of its coal-fired facilities with
by publicly traded companies.146 Such cases renewable power by 2025.149 The court ruled that
present companies not only with financial risk, the decision whether to shift power production
in the form of penalties or damages, but also from coal to renewables fell within the company’s
reputational risk.147 Second, scientific advances ordinary business practices such that it need not
continue to enhance the understanding of both consider the shareholder proposal.150 Still, the case
extreme events and slow-onset environmental is an example of the kinds of claims plaintiffs may
changes, and the likelihood of particular impacts bring before an extreme weather event seeking
in particular places is becoming more readily to limit the impact of such an event (in this case,
foreseeable. Failure to disclose foreseeable the company’s potential liability for its role in
risk may give rise to litigation before, or after, a causing the event). Plaintiffs may similarly use the
disaster occurs. consumer and investor fraud theories discussed in
the preceding section to advance the same goals.
C. Pre- and post-disaster cases
As extreme weather events become more frequent D. Implementation challenges
and intense, and as slow onset changes overtake As the number and variety of climate change cases
previously “safe” locations, cases premised on a increases, plaintiffs will inevitably continue seeking
defendant’s failure to properly plan for or manage a broad range of remedies. But across all types of
the consequences of those events are also likely cases, implementation of those remedies remains
to increase. These cases can either precede an a challenge. A stark example of the challenges
extreme weather event or follow it. that plaintiffs can face in this regard is Gbemre v.
Shell Petroleum Development Company of Nigeria
Harris County v. Arkema and York County v. Rambo, Ltd., where the Federal Court of Nigeria held that
discussed above, typify the types of cases that are Shell’s flaring of methane from gas production
filed after an extreme weather event has occurred. activities on the Niger Delta violated human rights
In each, courts have been asked to review a to a clean and healthy environment protected
defendant’s action or inaction in the face of under the Constitution of Nigeria and the African
known risks that climate-related extreme events Charter on Human and Peoples’ Rights.151 For
would result in damage to plaintiffs’ property a variety of reasons, however, the decision was
and, in some cases, loss of life.148 The scope of never enforced.152 Even ostensibly cooperative
potential liability from cases of this type is broad: defendants may face real challenges implementing
any entity that arguably neglected an obligation to a court’s orders, a fact acknowledged by the Dutch
plan or prepare for climate-driven damages faces Supreme Court in Urgenda when it affirmed the
a risk that it will be sued in the wake of an extreme lower court’s decision requiring aggressive steps
weather event or after slow-moving climate to reduce GHG emissions in the same year the
impacts injure potential plaintiffs. emissions are to be achieved.153
Cases addressing extreme weather events are In contrast, in Leghari v. Federation of Pakistan the
being filed before those events occur, as well, Lahore High Court granted the claims of Ashgar
and those cases take on several forms. The Leghari, a Pakistani farmer who sued the national
Conservation Law Foundation v. ExxonMobil case and regional governments alleging they failed to
discussed in Section 2.II.E, above, offers one carry out the National Climate Change Policy of
example of how groups might lean on existing 2012 and the Framework for Implementation of
statutory requirements to seek to protect against Climate Change Policy (2014-2030). As the court
environmental and public health disasters resulting observed, the responsible government ministry
from climate-related extreme events. Shareholder had previously spelled out 734 “action points” for

implementing those acts and identified 232 of evidentiary stages of litigation in the coming years.
those as deserving priority. The court agreed the In order to prove the existence of an obligation or
government failed to make adequate progress on the breach of a duty, plaintiffs or petitioners in
those points and responded by creating a Climate some cases will likely have to demonstrate both
Change Commission composed of representatives that their injuries were caused by climate change
of key ministries, NGOs, and technical experts and that the defendant substantially contributed
to monitor the government’s progress on to climate change. Although the science that
implementing climate policy. In 2018 the Climate demonstrates these connections is increasingly
Change Commission and the court agreed that robust,159 courts have yet to fully reach the merits
sufficient progress had been made to dissolve of these types of claims, so there are few judicial
the commission, replacing it with a Standing statements directly relevant to the topic. As
Committee to oversee the remaining action points further discussed below, attribution is central to
to implement both acts.154 climate litigation, and as more cases are filed and
reach the substance of the plaintiffs’ claims, one
Future Generations v. Ministry of the Environment can expect to see increased judicial attention paid
and Others provides another example of how to this issue.
implementation can remain an ongoing challenge
even if a court grants a climate-related remedy. In F. Increasing use of international
Future Generations, as noted above, the Supreme adjudicatory bodies
Court of Colombia recognized that fundamental Finally, it is reasonable to expect to see litigants
constitutional rights are substantially linked to continuing to bring claims before international
the environment and the ecosystem.155 The court adjudicatory bodies. There are several reasons
ordered the government to ensure it meets its why cases of this type are likely to continue to
commitment to reaching net zero deforestation by proliferate. First, there is an abundance of favorable
2020, and included specific steps the government soft law available to plaintiffs in international
must take to do so.156 An analysis one year later fora. For example, the Paris Agreement required
revealed that none of the specific actions the signatories to develop nationally determined
court ordered had been fully undertaken.157 At the contributions representing their “highest possible
plaintiffs’ request, the court agreed to convene ambition,” providing a basis for litigants to argue
public hearings at which the government would that governments doing anything less are not
report on its progress, echoing the approach taken living up to that commitment.160 And favorable
in Leghari.158 statements from the Inter-American Court of
Human Rights161 and the United Nations Human
As growing numbers of cases are brought, we Rights Council162 solidify the consensus that
can expect that more will result in judicial orders climate rights are well recognized in international
that require defendants to take broad action to soft law. Recent petitions are seeking to apply these
reduce economy-wide, sectoral or individual- well-recognized rights before the Human Rights
source emissions; halt or slow deforestation and Committee and the Committee on the Rights of the
land use change; prevent fossil fuel extraction Child,163 and with U.N. Special Rapporteurs,164 each
and protect peatlands; and increase the resiliency claiming that national governments’ responses to
of communities. The complexity of efforts to climate change have been inadequate.
mitigate and adapt to climate change impacts
suggests that the ways in which those orders are International fora offer strategic opportunities
implemented—and in other cases, how they are that may be unavailable for plaintiffs in national
not implemented—will be the subject of additional and subnational courts. First, domestic regimes
litigation in the future. may be unfriendly or ineffectual when seeking
to hold domestic governments accountable.
E. Increased attention to climate attribution Even though courts throughout the world have
Cases seeking to assign climate mitigation recognized the scientific consensus on climate
obligations to governments or corporations under change, some may be reluctant to issue orders
rights-based theories, and cases seeking to impose forcing other branches of government to act for
liability on private actors for their contributions to reasons not grounded in law so much as politics
climate change, may begin to enter more formal or other factors.165 The prevalence of actions

before international bodies further suggests that before an international tribunal, creating an avenue
litigants recognize that their chances of obtaining to implicitly challenge domestic climate change
the relief or statement they seek there may be regulation that imposes costs on an investor.
better than in domestic courts.166 Second, litigants For example, in Westmoreland Coal Company v.
can choose to bring cases in international fora as Canada, a U.S. coal producer is seeking over $350
part of a broad strategy to effect change in the million in compensation after Alberta’s provincial
law. Decisions reached by international bodies government decided to phase out coal-fired power
influence the way judges and other stakeholders plants in the province by 2030.170 In TransCanada
view the law, including at a domestic level.167 v. USA, pipeline investors in Canada filed a claim
Opinions from international bodies can be used by seeking $15 billion in compensation after the U.S.
litigants in other advocacy contexts, both formal government denied necessary permits that would
and informal, even if those opinions do not create have allowed construction of the Keystone XL
enforceable obligations.168 pipeline from Canada to the U.S.171 The case has
been discontinued as the result of a reversal on the
At the same time, it is important to note that permit decision, but it remains illustrative of the
international fora may offer strategic opportunities prospects of future litigation in the ISDS area. Even
for anti-regulatory plaintiffs as well. Corporations though ISDS cases cannot directly invalidate a host
have begun using the investor-state dispute country’s regulation, they can create a meaningful
settlement (ISDS) system already built into over disincentive for governments interested in adopting
3,000 bilateral investment treaties and expected strict climate regulation.172 As a result, ISDS cases
in several other regional trade agreements not yet provide an opportunity for strategic litigation with
in force.169 ISDS processes allow foreign investors implications that extend beyond the outcome of an
to seek compensation from host governments individual case.
PART 2 NOTES
1 2017 Litigation Report at 10–11. 9 Constitutional Court, Feb. 8, 2016, Decision C-035/16. Additional
2 The countries in which a climate change case was identified for the cases identified in the 2017 Litigation Report that have invoked a
first time since 2017 are: Argentina, Brazil, Chile, Ecuador, Estonia, constitutional or domestic right to a clean or healthy environment
Indonesia, Japan, Kenya, Luxembourg, Mexico, Peru, Poland, Slovenia, include: In re Vienna-Schwechat Airport Expansion, (rejecting a
South Korea, and Uganda. third runway at Vienna airport in part because the constitutions of
3 These 55 European Union cases are in addition to matters brought in Austria and the region of Lower Austria both enshrine commitments
national courts of member states. to sustainability and environmental protection); Gbemre v. Shell
4 The likelihood that climate litigation will be filed in a particular country Petroleum Development Company of Nigeria Ltd. (finding that
depends on a range of factors that include the country’s legal culture, Shell’s gas flaring violated the constitutionally protected right to a
whether unsuccessful plaintiffs must pay the defendants’ costs, “pollution-free and healthy environment”); and Leghari v. Federation of
the degree of frustration over governments’ actions or inactions on Pakistan (finding that government’s failure to prepare for and respond
climate change, how frequent, extensive, and damaging climate- to climate change violated the constitutionally protected right to a
driven physical losses are becoming, and the existence of regulatory “healthy and clean environment”).
frameworks and judicial precedent that establish enforceable 10 The Environment and Human Rights (State Obligations in Relation to
climate-related rights and obligations. The Environment in the Context of the Protection and Guarantee of
5 As the analysis below indicates, several cases demonstrate features the Rights to Life and to Personal Integrity: Interpretation and Scope
of more than one trend and thus appear in multiple sections. Of Articles 4(1) and 5(1) in Relation to Articles 1(1) and 2 of the
6 César Rodríguez-Garavito, Human Rights: The Global South’s Route American Convention on Human Rights), Advisory Opinion OC-23/17,
to Climate Litigation, 114 AJIL Unbound 40 (2020); Jacqueline Peel & Inter-Am. Ct. H.R. (Nov. 15, 2017).
Hari Osofsky, A Rights Turn in Climate Change Litigation? 7 Transnat’l 11 Id. at IX. ¶ 5.
Envtl. L. 37, 40 (2018) (“[E]merging case law, such as the Leghari and 12 Petition of Torres Strait Islanders to the United Nations Human Rights
Urgenda decisions, illustrates a trend towards petitioners increasingly Committee Alleging Violations Stemming from Australia’s Inaction
employing rights claims in climate change lawsuits, and a growing on Climate Change, http://climatecasechart.com/non-us-case/
receptivity of courts to this framing.”). petition-of-torres-strait-islanders-to-the-united-nations-human-rights-
7 Greenpeace Nordic Ass’n v. Ministry of Petroleum and Energy (Jan. committee-alleging-violations-stemming-from-australias-inaction-on-
23, 2020), 18-060499ASD-BORG/03 (Nor.). climate-change/
8 In re Court on its own motion v. State of Himachal Pradesh, M.A. Nos. 13 Id.
389/2014, 1145/2015, 1250/2015, 324/2016 & 325/2016 (Nat’l Green 14 Sacchi et al. v. Argentina et al., Communication to the Committee on
Tribunal). the Rights of the Child (Sept. 23, 2019).

15 Rights of Indigenous People in Addressing Climate-Forced 50 Drewes Farms P'ship v. City of Toledo, 441 F. Supp. 3d 551, 557 (N.D.
Displacement, http://climatecasechart.com/non-us-case/rights-of- Ohio 2020).
indigenous-people-in-addressing-climate-forced-displacement/. The 51 See also infra Section 2.II.F.
complaint was submitted to the Special Rapporteurs on: the Human 52 See 2017 Litigation Report at 14–18.
Rights of Internally Displaced Persons; the Rights of Indigenous Peoples; 53 Belgium, Our Children’s Trust, https://www.ourchildrenstrust.org/
the Issue of Human Rights Obligations Relating to the Enjoyment of a belgium
Safe, Clean, Healthy and Sustainable Environment; the Right to Food; the 54 Friends of The Irish Environment CLG v. Ireland, [2017 No. 793 JR].
Field of Cultural Rights; the Right of Everyone to the Enjoyment of the 55 Friends of The Irish Environment CLG v. Ireland, [2020] IESC 49.
Highest Attainable Standard of Physical and Mental Health; Adequate 56 Id. at ¶¶ 9.1, 9.3.
Housing as a Component of the Right to an Adequate Standard of Living; 57 Mataatua District Maori Council v. New Zealand, Second Amended
Extreme Poverty and Human Rights; Contemporary Forms of Racism, Statement of Claim at ¶19(d) [2019] WAI 2607.
Racial Discrimination, Xenophobia and Related Intolerance; and the 58 Sheikh Asim Farooq v. Federation of Pakistan, (2018) W.P. No.
Human Right to Safe Drinking Water and Sanitation. 192069/2018.
16 Id. 59 Id. at ¶ 83.
17 Urgenda Foundation v. The State of The Netherlands, The Supreme 60 Peter Sabo and Others v. European Parliament and Council of the
Court of the Netherlands, Case No. 19/00135 (20 December 2019) European Union, Case T‑141/19, ECLI:EU:T:2020:179.
(unofficial translation from the court). 61 Plan B Earth et al. v. Sec’y of State, [2020] EWCA Civ 214.
18 Corte Suprema de Justicia [C.S.J.] [Supreme Court], abril 5, 2018, 62 Id. at ¶ 237.
M.P: L. Villabona, Expediente : 11001-22-03-000-2018-00319-01 63 R (on the application of Friends of the Earth Ltd. and others)
(Colomb.). (Respondents) v. Heathrow Airport Ltd. (Appellant), UKSC Case No.
19 Id. 2020/___. Separate plaintiffs have now filed a lawsuit seeking judicial
20 Juliana et al. v. United States, No. 6:15-cv-01517, First Amended review of the U.K.’s energy National Policy Statements, alleging that
Complaint for Declaratory and Injunctive Relief ¶ 98 (D. Or. Sept. 10, there have been fundamental changes of circumstances since the
2015). statements were designated in 2011. See Vince et al. v. Sec’y of State,
21 Juliana v. United States, 947 F.3d 1159, 1171 (9th Cir. 2020). CO/1832/2020 (Planning Court).
22 ENVironnement JEUnesse v. Canada, No. 500-06-000955-183 (2018). 64 [2019] NSWLEC 7.
23 Id. 65 [2019] NSWLEC 7 at ¶ 22.
24 S.T.F., No. 0024408-68.2020.1.00.0000, Relator: Min. Roberto Barroso 66 [2019] NSWLEC 7 at ¶ 688.
12.06.2020 (Braz.). 67 Ecology Action, et al. v. Minister of Environment and Climate Change,
25 Kim Yujin et al. v. South Korea, Constitutional Complaint at pp. 2–3. CAN 2020 FC 663.
26 Kim Yujin et al. v. South Korea, Constitutional Complaint at pp. 7–12. 68 Application at para. 20, Ecology Action, et al. v. Minister of
27 Álvarez et al. v. Peru, http://climatecasechart.com/non-us-case/ Environment and Climate Change (May 11, 2020).
alvarez-et-al-v-peru 69 Order & Reasons at para. 28, Ecology Action, et al. v. Minister of
28 Youth Verdict v. Waratah Coal, [2020] QLC 33 (Australia), http:// Environment and Climate Change (June 2, 2020).
climatecasechart.com/non-us-case/youth-verdict-v-waratah-coal/ 70 Order & Reasons at para. 40, Ecology Action, et al. v. Minister of
29 Human Rights Act 2019 (Qld) (Australia), https://www.legislation.qld. Environment and Climate Change (June 2, 2020).
gov.au/view/pdf/asmade/act-2019-005 71 Ali v. Pakistan, Constitutional Petition No. ___ / I of 2016.
30 The Swiss petitioners ground their claims in articles 10 (right to 72 Constitutional Court, Feb. 8, 2016, Decision C-035/16.
life), 73 (sustainability principle), and 74 (precautionary principle) 73 Private Corporation for the Development of Aysen, et al. v.
of the Swiss Constitution, and in articles 2 and 8 of the European Environmental Evaluation Service of Chile, (2016) R-42-2017.
Convention on Human Rights, which Switzerland has ratified. Union 74 Id.
of Swiss Senior Women for Climate Protection v. Swiss Federal 75 Save Lamu et al. v. National Environmental Management Authority
Council [Verein KlimaSeniorinnen Schweiz v. Bundesrat], at para. 1(a) and Amu Power Co. Ltd, Tribunal Appeal No. Net 196 of 2016
(filed Oct. 25, 2016). available at http://kenyalaw.org/caselaw/cases/view/176697/
31 Lho’imggin et al. v. Her Majesty the Queen, No. T-211-20, Complaint 76 WildEarth Guardians v. U.S. Bureau of Land Mgmt., No. 4:18-cv-
(Fed. Ct. Feb 10, 2020) (Canada). 00073, 2020 WL 2104760, at *11 (D. Mont. May 1, 2020)
32 Id. at ¶ 85 (“The peace, order and good government power imposes 77 WildEarth Guardians v. Zinke, 368 F. Supp. 3d 41, 67–83 (D.D.C.
a positive obligation on the defendant to pass laws that ensure that 2019). In this case, the court did not immediately vacate the leases,
Canada’s GHG emissions are now, and will be into the foreseeable but retained jurisdiction over the matter while the government revisits
future, consistent with its constitutional duty to the plaintiffs and with the assessments and invited plaintiffs to address whether the
its international commitments . . . .”). renewed assessments satisfy the government’s obligation. Id. at 85.
33 Id. at ¶ 88. 78 [2020] EWHC 1303 (Admin).
34 Maria Khan v. Pakistan, Constitutional Petition No. 8960 of 2019, at 79 Citizens’ Committee on the Kobe Coal-Fired Power Plant v. Japan,
¶¶ 2–3. Climate Case Chart, http://climatecasechart.com/non-us-case/
35 Maria Khan v. Pakistan, Constitutional Petition No. 8960 of 2019, at citizens-committee-on-the-kobe-coal-fired-power-plant-v-japan/.
¶¶ 27C–E. 80 Campaigners take Estonian government to court over plans to build
36 Greenpeace et al. v. Austria, http://climatecasechart.com/non-us- new shale oil plant, euronews (June 16, 2020), https://www.euronews.
case/greenpeace-v-austria/ com/2020/06/16/campaigners-take-estonian-government-to-court-
37 http://climatecasechart.com/non-us-case/greenpeace-v-austria/ over-plans-to-build-new-shale-oil-plant.
38 Victoria Segovia et al. v. Climate Change Commission, 806 Phil. 1019 81 [2019] EWHC 1738 (Admin).
(2017) (Philippines). 82 Montana et al. v. Washington, No. 22O152 Motion for Leave to File Bill of
39 Id. at 8–10. Complaint, Bill of Complaint, and Brief in Support (U.S. Jan. 21, 2020).
40 Id. at 10–11 83 Maria L. Banda, Climate Science in the Courts: A Review of U.S. and
41 Greenpeace Nordic Ass’n v. Ministry of Petroleum and Energy (Jan. International Judicial Pronouncements vi (2020) (“[V]ast judicial
23, 2020), 18-060499ASD-BORG/03 (Nor.), agreement exists on the causes, extent, urgency, and consequences
42 See Cristy Clark et al., Can You Hear the Rivers Sing, 45 Ecology L.Q. of climate change . . . [but] the judicial consensus on climate science
787, 791 (2018). has not translated into judicial intervention.”)
43 Center for Social Justice Studies et al. v. Presidency of the Republic 84 IPCC AR5, WG1 § 6.3.
et al. (November 10, 2016) Judgment T-622/16 (The Atrato River 85 See 2017 Litigation Report at 20, discussing Connecticut v. Am.
Case), Constitutional Court of Colombia (2016), http://files. Elec. Power Co., 582 F.3d 309, 318 (2d Cir. 2009), rev’d, 564 U.S.
harmonywithnatureun.org/uploads/upload838.pdf 410 (2011); Native Vill. of Kivalina v. Exxon Mobil Corp., 663 F. Supp.
44 Te Awa Tupua (Whanganui Claims Settlement) Act 2017, s 14 (N.Z.) 2d 863, 880–81 (N.D. Cal. 2009), aff’d on other grounds, 696 F.3d
45 Te Urewera Act § 11 (2014). 849 (9th Cir. 2012); Washington Envtl. Council v. Bellon, 732 F.3d
46 Mohd. Salim v. State of Uttarakhand & Others, (2017) Uttarakhand HC 1131, 1143 (9th Cir. 2013) (concluding that health impacts, property
126 (India). damage, and impaired recreational and aesthetic opportunities
47 Lalit Miglani v. State of Uttarakhand & Others, (2017) MCC 139/2017 confer standing on the plaintiffs, but that plaintiffs could not
48 Colorado River Ecosystem v. Colorado, Amended Complaint for differentiate defendant’s share of responsibility from the “numerous
Declaratory and Injunctive Relief at ¶ 113, 2017 WL 9472427 (Nov. 16, independent sources of GHG emissions, both within and outside the
2017). United States.”).
49 Toledo Mun. Code ch. XVII, § 254(a)

86 See, e.g., State v. American Petroleum Institute, No. 62-CV-20-3837 115 ClientEarth v. Enea S.A., No. IX GC 1118/18, Judgment (July 31,
(Minn. 2nd Dist. Ct. June 24, 2020); City & County of Honolulu v. 2019).
Sunoco LP, No. 1CCV-20-0000380 (Haw. 1st Cir. Ct. Mar. 9, 2020); 116 Market Forces v. SMBC, MUFG and Mizuho, OECD Watch (Sept. 18,
Mayor & City Council of Baltimore v. BP P.L.C., No. 24-C-18-004219 2018), https://complaints.oecdwatch.org/cases/Case_535.
(Md. Cir. Ct. July 20, 2018); Rhode Island v. Shell Oil Products Co., No. 117 City of Birmingham v. Tillerson, No. 3:19-cv-20949, Verified
PC-2018-4716 (R.I. Super. Ct. July 2, 2018); King County v. BP P.L.C., Stockholder Derivative Complaint ¶¶ 3–5 (D.N.J. Dec. 2, 2019).
No. 18-2-11859-0 (Wash. Super. Ct. May 9, 2018); Board of County 118 Id. ¶ 7.
Commissioners of Boulder County, No. 2018CV030349 (Colo. Dist. 119 Ramirez v. Exxon Mobil Corp., Consolidated Complaint for Violations
Ct. Apr. 17, 2018); City of New York v. BP P.L.C., No. 1:18-cv-00182 of the Federal Securities Laws ¶¶ 246–317, 334 F. Supp. 3d 832 (N.D.
(S.D.N.Y. Jan. 9, 2018); City of Oakland v. BP p.l.c., No. CGC-17- Tex. 2018).
561370 (Cal. Super. Ct. Sept. 19, 2017); County of San Mateo v. 120 York County et al. v. Rambo et al., No. 5:19-CV-00994, Class Action
Chevron Corp., No. 17CIV03222 (Cal. Super. Ct. July 17, 2017). Complaint (N.D. Cal. Feb. 22, 2019).
87 For example, in City of New York v. BP P.L.C., New York City brought a 121 O’Donnell v. Commonwealth of Australia, VID 482/2020, Concise
suit against five of the world’s largest fossil fuel producers, alleging Statement at ¶ 8.
that through worldwide production, marketing, and sale of those 122 Id. at ¶¶ 15–17.
products, the defendants have contributed to temperature increases 123 Id. at ¶ 26.
and sea-level rise that place the city at risk. 325 F. Supp. 3d 466, 468 124 People v. Exxon Mobil Corp., 65 Misc. 3d 1233(A) (N.Y. Sup. Ct. 2019).
(S.D.N.Y. 2018). The court concluded that addressing global emissions 125 Commonwealth v. Exxon Mobil Corporation, No. 19-3333 (Mass.
were a subject for political branches of government to decide, not Super Ct. Oct. 24, 2019).
the courts, and dismissed plaintiffs’ case. The case has now been 126 See State v. American Petroleum Institute, No. 62-CV-20-3837 (Minn.
appealed, but the court of appeals has not issued a decision. 2nd Dist. Ct. June 24, 2020); District of Columbia v. Exxon Mobil
88 In re Greenpeace Southeast Asia and Others, Case No. CHR- Corp., No. 2020 CA 002892 B (D.C. Super. Ct. June 25, 2020).
NI-2016-0001 (Sept. 9, 2019) (Phil.). As of this writing, the 127 No. NSD1333/2018, Concise Statement at ¶ 13.
commission has not yet issued a final report. 128 No. NSD1333/2018, Order dated March 14, 2019, Order dated June
89 Az. 2 O 285/15 Essen Regional Court [2015]. 10, 2020.
90 [David Loses the Fight Against Goliath], Frankfurter Allgemeine 129 No. VID 879/2017.
Zeitung, Dec. 15, 2016, ([“A flood risk would however not be attributed 130 Complaint against BP in respect of violations of the OECD Guidelines,
singly to RWE AG.”]. http://climatecasechart.com/non-us-case/complaint-against-bp-in-
91 [2020] NZHC 419. respect-of-violations-of-the-oecd-guidelines/.
92 [2020] NZHC 419 at ¶ 82. 131 Complaint against BP in respect of violations of the OECD Guidelines
93 See In re Katrina Canal Breaches Litigation, 696 F.3d 436, 441 (5th Cir. at ¶ 22.3.
2012) (en banc); St. Bernard Parish Government v. United States, 121 132 Press Release, British Petroleum, “BP sets ambition for net zero
Fed. Cl. 687 (Ct. Cl. 2015). by 2050, fundamentally changing organisation to deliver” (Feb. 12,
94 Conservation Law Found. v. ExxonMobil Corp., No. CV 16-11950-MLW, 2020), https://www.bp.com/content/dam/bp/business-sites/en/
2019 WL 7598579, Complaint (D. Mass. May 6, 2019) [hereinafter global/corporate/12-feb-2020/bp-sets-ambition-for-net-zero-by-2050-
CLF Complaint] fundamentally-changing-organisation-to-deliver.pdf
95 Conservation Law Found. v. ExxonMobil, No. CV 16-11950-MLW, 2020 133 European Council EUCO 10/20, Special Meeting of the European
WL 1332949, at *14 (D. Mass. Mar. 21, 2020). Council (17, 18, 19, 20 and 21 July 2020) – Conclusions (July 21,
96 Conservation Law Found. v. Shell Oil Products US, No. 17-cv-00396, 2020); see also Ewa Krukowska & Lara Millan Lombrana, EU Approves
Conservation Law Foundation’s Second Amended Complaint for Biggest Green Stimulus in History With $572 Billion Plan Bloomberg
Declaratory and Injunctive Relief and Civil Penalties (D.R.I. Aug. 2, Green (July 21, 2020), https://www.bloomberg.com/news/
2019). articles/2020-07-21/eu-approves-biggest-green-stimulus-in-history-
97 Burgess v. Minister of Natural Resources and Forestry, No. 16-1325 with-572-billion-plan.
CP, Statement of Claim (Ont. Sp. Ct. Sept. 14, 2016). 134 C40 Mayors’ Agenda for a Green and Just Recovery 10 (2020),
98 Id. ¶ 18–19. https://www.c40knowledgehub.org/s/article/C40-Mayors-Agenda-
99 Burgess v. Minister of Natural Resources and Forestry, No. 16-1325 for-a-Green-and-Just-Recovery?language=en_US.
CP, Notice of Discontinuance (Ont. Sp. Ct. Aug. 7, 2018) 135 See 2017 Litigation Report at 25.
100 Philippi Horticultural Area Food & Farming Campaign v. MEC for 136 Jane McAdam, Building International Approaches to Climate Change,
Local Government, Environmental Affairs and Development Planning: Disasters, and Displacement, 33 Windsor Y. B. Access Just. 1, 5
Western Cape, No. 16779/17 (High Ct. Cape Town Div. Feb. 17, 2020). (2016).
101 Cangemi v. Town of E. Hampton, 374 F. Supp. 3d 227, 239 (E.D.N.Y. 137 [2015] NZSC 107 ¶ 13.
2019). 138 Views adopted by the Committee under article 5 (4) of the Optional
102 Ambuja Cement v. Rajasthan Electricity Regulatory Commission, Protocol, concerning communication No. 2728/2016 ¶ 3.
2012 ELR (Rajasthan) 1146, Civil Writ Petition Nos. 2772/2012, 139 Id. ¶¶ 9.11–.12.
5128/2007, 5720/2007 at ¶ 1 (India). 140 Rights of Indigenous People in Addressing Climate-Forced
103 Id. at ¶ 1. Displacement, http://climatecasechart.com/non-us-case/rights-of-
104 Id. at ¶ 55. indigenous-people-in-addressing-climate-forced-displacement/.
105 Hindustan Zinc Ltd. v. Rajasthan Electricity Regulatory Commission, 141 Kanta Kumari Rigaud et al., World Bank, Groundswell: Preparing for
2012 SCC 611 (2015) (India). Internal Climate Migration at xv, xix (2018)
106 Argos Properties II, LLC v. City Council for Virginia Beach, No. 142 See Internal Displacement Monitoring Centre, Global Report on
CL18002289-00 (Va. Cir. Ct. May 24, 2018). Internal Displacement [in] 2019 6 (2019), https://www.internal-
107 Pridel Investments v. Coffs Harbour City Council, [2017] NSWLEC displacement.org/sites/default/files/publications/documents/2019-
1042. IDMC-GRID.pdf; see also Intergovernmental Panel on Climate Change
108 Id. at 159–60. Pridel Investments is one of many comparable cases in [IPCC], Special Report: Global Warming of 1.5°C (Valerie Masson-
Australia and the U.K. challenging permits denied on climate change Delmotte et al. eds., 2018).
grounds. See, e.g., Newton and Anor v. Great Lakes Council, [2013] 143 United Nations High Commissioner for Refugees, Global Trends:
NSWLEC 1248 (Australia); Restall & Ors v. Hobsons Bay City Council, Forced Displacement in 2019 12 (2020), https://www.unhcr.org/
[2010] VCAT 1348 (Australia); Goldfinch (Projects) Limited v. National en-us/statistics/unhcrstats/5ee200e37/unhcr-global-trends-2019.
Assembly for Wales, [2002] EWHC 1275 (U.K.). html (“Climate change and natural disasters can exacerbate threats
109 Harris County v. Arkema, No. 201776961, Complaint at ¶ 7.21 (Harris that force people to flee within their country or across international
Co. Dist. Ct. Nov. 16, 2017). borders. The interplay between climate, conflict, hunger, poverty and
110 Graves et al. v. Arkema, Inc., No. 2017-58465 (Harris Co. Dist. Ct. persecution creates increasingly complex emergencies.”)
Sept. 7, 2017). 144 Joana Setzer and Lisa Benjamin, Climate Litigation in the Global
111 Von Oeyen v. Southern California Edison, No. 19STCV04409, South: Constraints and Innovations 9 Transnat’l Envtl. L. 77, 78 (2020).
Complaint for Damages and Injunctive Relief ¶ 107 (Cal. Super. Ct. 145 See supra Section 2.I.A; see also Jacqueline Peel & Jolene Lin,
Feb. 8, 2019). Transnational Climate Litigation: The Contribution of the Global South
112 Lynn v. Peabody Energy Corp., 250 F. Supp. 3d 372, 375 (E.D. Mo. 113 Am. J. Int’l L. 679 (2019).
2017).
113 Id. at 381 (quoting Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. 409,
428 (2014)).
114 Harvard Climate Justice Coal. v. President & Fellows of Harvard Coll.,
60 N.E.3d 380, 383 (2016).

146 See Jennifer Burns et al., Deloitte, The Atmosphere for Climate- 162 The U.N. Human Rights Council has adopted a series of resolutions
Change Disclosure (2020), https://www2.deloitte.com/content/dam/ clarifying how climate change relates to human rights. See, e.g.,
Deloitte/us/Documents/center-for-board-effectiveness/us-climate- H.R.C. Res 42/21 (July 12, 2019) (recognizing the rights of persons
change-otba-march-2020.pdf; Task Force on Climate-related Financial with disabilities are disproportionately burdened by climate change);
Disclosures, Recommendations of the Task Force on Climate-related H.R.C. Res. 35/20 (June 22, 2017) (recognizing the urgency of
Financial Disclosures 6 (2017) [hereinafter TCFD Recommendations], addressing rights of displaced persons in light of negative impacts
https://www.fsb-tcfd.org/wp-content/uploads/2017/06/FINAL- of climate change); H.R.C. Res. 32/33 (July 1, 2016) (encouraging
TCFD-Report-062817.pdf; Donnelley Financial Solutions, The State of parties to incorporate human rights into mitigation and adaptation
Climate Risk Disclosure: A Survey of US Companies 4 (2019), https:// actions); H.R.C. Res. 26/27 (July 15, 2014) (encouraging all states
www.dfinsolutions.com/sites/default/files/documents/2019-10/ to increase international dialogue and cooperation to meet climate
TCFD_II_Climate_Disclosure_V10_revisedFINAL.pdf; Kristoffer needs of developing countries); H.R.C. Res. 18/22 (Oct. 17, 2011)
Tigue, Climate Change Becomes an Issue for Ratings Agencies, (recognizing that human rights obligations can inform and strengthen
Inside Climate News (Aug. 5, 2019), https://insideclimatenews.org/ climate change policy making); H.R.C. Res. 10/4 (March 25, 2009)
news/04082019/climate-change-ratings-agencies-financial-risk- (affirming that climate change impacts effect the enjoyment of
cities-companies. human rights).
147 See TCFD Recommendations at 6. 163 Sacchi et al. v. Argentina et al., Communication to the Committee on
148 See supra subsections 2.II.B, 2.II.F. the Rights of the Child (Sept. 23, 2019).
149 Tosdal v. NorthWestern Corp., No. CV 19-205-M-DLC, 2020 WL 164 Rights of Indigenous People in Addressing Climate-Forced
896757, at *1 (D. Mont. Feb. 25, 2020). Displacement, http://climatecasechart.com/non-us-case/rights-of-
150 Id. indigenous-people-in-addressing-climate-forced-displacement/
151 Gbemre v. Shell PDC Nigeria Limited, FHC/B/CS/53/05. 165 Banda, supra note 101, at 109 (“At the appellate level, the judiciary,
152 Bukola Faturoti, Godswill Agbaitoro & Obinna Onya, Environmental especially in the United States, has exercised restraint, largely
Protection in the Nigerian Oil and Gas Industry and Jonah Gbemre v. deferring to the representative branches of government to bring
Shell PDC Nigeria Limited: Let the Plunder Continue, 27 Afr. J. Int’l & forward solutions to the climate challenge.”).
Comp. L. 225, 235 (2019) ( “Unfortunately, Gbemre has been turned 166 Cf. Rodriguez-Garavito, supra note 24 at 43 (“When courts are
into a pyrrhic victory by the Nigerian federal government when it failed independent and have adequate institutional capacity, the judicial
to implement the decision of the court. While the court may have the route is a particularly attractive one for litigants frustrated with the
power to declare unconstitutional any law made by the legislative arm government’s or corporations’ actions or omissions with regards to
of the government, this power does not include law-making.”). environmental protection.”).
153 Urgenda Foundation v The State of The Netherlands, The Supreme 167 See Kenneth W. Abbott, Strengthening the Transnational Regime
Court of the Netherlands, Case No. 19/00135 (20 December Complex for Climate Change 3 Transnat’l Entvl. L. 57, 74 (2014)
2019) ¶ 7.5.3 (“[T]he State has not sufficiently substantiated (“Transnational demonstration effects reveal the feasibility, benefits
that the reduction of at least 25% by 2020 is an impossible or and appropriateness of rules, programmes or activities. Transnational
disproportionate burden, as . . . the State has moreover been aware norms and programmes modify the political calculations of
of the seriousness of the climate problem for some time and initially interest groups within states, converting participants from potential
pursued a policy aimed at a 30% reduction by 2020.”). opponents to supporters.”).
154 Joana Setzer & Lisa Benjamin, Climate Change Litigation in the Global 168 Hari M. Osofsky, Climate Change Litigation as Pluralist Legal Dialogue,
South: Constraints and Innovations, 9 Transnat’l Envtl. L. 77, 97–98 43 Stan. J. Intl’l L. 181, 218 (2007) (“Although the formal effects
(2020). of supranational petitioning processes are often limited, they can
155 Corte Suprema de Justicia [C.S.J.] [Supreme Court], abril 5, 2018, potentially have a far greater informal impact. They may put pressure
M.P: L. Villabona, Expediente : 11001-22-03-000-2018-00319-01 on a government to change its behavior, even as that government
(Colomb.). denounces the supranational body's decision. More indirectly, these
156 Corte Suprema de Justicia [C.S.J.] [Supreme Court], abril 5, 2018, petitions can be used in other advocacy contexts-e.g., as persuasive
M.P: L. Villabona, Expediente : 11001-22-03-000-2018-00319-01 authority in more binding sub-national and national litigation or as
(Colomb.). symbols in media campaigns-and thus become part of broader civil
157 Santiago Ardila Sierra, The Colombian government has failed to society initiatives.”).
fulfill the Supreme Court’s landmark order to protect the Amazon, 169 Kyla Tienhaara, Regulatory Chill in a Warming World: The Threat to
DeJusticia.org (April 5, 2019), https://www.dejusticia.org/en/ Climate Policy Posed by Investor-State Dispute Settlement 7 Transnat’l
the-colombian-government-has-failed-to-fulfill-the-supreme-courts- Envtl. L. 229, 230 (2018).
landmark-order-to-protect-the-amazon/. 170 Westmoreland Coal Company v. Canada (I), (ICSID Case No.
158 Rodriguez-Garavito, supra note 24. ARB/18/__) .https://investmentpolicy.unctad.org/investment-dispute-
159 Michael Burger et. al., The Law and Science of Climate Change settlement/cases/936/westmoreland-v-canada.
Attribution, 45 Colum. J. Envtl. L. 57, 65 (2020) (“[T]he existing body of 171 TransCanada Corporation and TransCanada PipeLines Limited v.
detection and attribution research is now quite large and the findings United States of America (ICSID Case No. ARB/16/21), https://
are sufficiently robust to support a wide variety of applications, investmentpolicy.unctad.org/investment-dispute-settlement/
including . . . policy, planning, and legal functions.”) cases/720/transcanada-v-usa
160 Paris Agreement, Art. 4(3). 172 Tienhaara, supra note 187, at 233. (“[T]he regulatory chill hypothesis
161 The Environment and Human Rights (State Obligations in Relation to suggests that in some instances (not all, or there would be no ISDS
The Environment in the Context of the Protection and Guarantee of cases) governments will fail to enact or enforce bona fide regulatory
the Rights to Life and to Personal Integrity: Interpretation and Scope measures (or modify measures to such an extent that their original
of Articles 4(1) and 5(1) in Relation to Articles 1(1) and 2 of the intent is undermined or their effectiveness is severely diminished) as
American Convention on Human Rights), Advisory Opinion OC-23/17, a result of concerns about ISDS.”).
Inter-Am. Ct. H.R. (Nov. 15, 2017).

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36
3
3 Legal Issues in Climate Change Litigation
Despite their many differences, a common set of “standing” to bring their claim. “Standing” refers to
issues pervades climate cases. These include the set of requirements that a plaintiff must meet in
questions about who is the appropriate party to order to demonstrate that they are entitled to bring
bring the case, what source of climate-related a claim before the court. For example, plaintiffs
rights or obligations is implicated by the harms they in the United States must show that they were
experienced, and whether the tribunal to which they injured, that their injury was caused by defendants’
bring their claim is equipped to provide a remedy. actions, and that there is a remedy the court could
This part describes the ways these issues arise at order that would mitigate or compensate for the
the different stages of a climate change case.1 injury in some way.4 Legal definitions of who has
standing vary across different jurisdictions, but
generally include requirements that the parties
I. Justiciability bringing a legal action have a genuine and current
stake in the outcome, that the dispute is one a
Justiciability encompasses all the threshold court is capable of resolving, and that the court
barriers that may prevent a plaintiff’s claim from has some authority to order a remedy that would
being considered by the court.2 Justiciability help the plaintiffs.
includes both formal, legal dimensions and
practical questions for courts with discretion The 2017 Litigation Report noted that the doctrine
in how they apply these doctrines. The specific has been a central issue in climate litigation
barriers vary by jurisdiction, but the two that pose in the U.S.,5 and an occasional challenge for
notable challenges for climate change litigants plaintiffs outside the U.S.,6 and that the question
are common to most jurisdictions. First, a plaintiff of standing had featured less prominently in
must have standing to bring the case. Second, courts in the developing world, as evidenced by
a plaintiff’s claim must not require the court to cases in Pakistan,7 India,8 Nigeria,9 Columbia,10
resolve questions that are reserved for other and the Philippines.11
branches of government to decide.
Recent decisions confirm that standing remains
Although the contours of justiciability questions a prominent question in climate cases, and
vary across jurisdictions, most share two critical that courts’ approaches vary. A recent decision
elements. First, justiciability questions are from the U.S. Court of Appeals for the District of
preliminary, meaning that courts apply them Columbia accepts that global climate change can
before reaching any review of the substance of a result in injury to a specific plaintiff. In Natural
plaintiff’s claim. Second, justiciability doctrines Resources Defense Council v. Wheeler, plaintiff
are theoretically agnostic as to the merits of the challenged the government’s decision to repeal
claim, meaning that neither the importance of a GHG regulation, thereby allowing increased
the question nor the strength of a plaintiff’s likely emissions of hydrofluorocarbons (HFCs).12 The
evidence is relevant if the claim cannot be heard.3 court’s discussion of standing is matter-of-fact:
“the [change] will lead to an increase in HFC
A. Standing emissions, which will in turn lead to an increase
Courts in most jurisdictions must consider whether in climate change, which will threaten petitioners’
the parties attempting to bring a legal action have coastal property.”13 Since the court could undo

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the regulatory challenge, it reasoned that the where “the damage claimed by [the plaintiff] is
petitioners had not only established injury and neither particular nor direct; it is not appreciably
causation, but also that the court was empowered more serious or substantial in degree than that
to redress their injury.14 suffered by the public generally and there is no
difference in kind between the damage that . . .
In contrast in Smith v. Fronterra Co-Operative other land owners, and members of the public
Group Limited, the Auckland High Court found who live in or use the coastal/marine area may
that a plaintiff did not have standing to pursue suffer.”15 Similarly, in Armando Ferrão Carvalho and
a nuisance claim premised on GHG emissions Others v. The European Parliament and the Council

a group of EU citizens brought a claim in the EU Finally, the question of standing remains less of a
General Court alleging that the EU’s greenhouse barrier in courts in developing countries. In Save
gas reduction targets were insufficient, impairing Lamu et al. v. National Environmental Management
the plaintiffs’ fundamental rights.16 The court Authority and Amu Power Co. Ltd., for example,
dismissed the action because plaintiffs were Kenya’s National Environmental Tribunal simply
not directly and individually affected by the EU’s noted that claimants challenging a new coal plant’s
emissions targets. license were aggrieved.17
Standing in Juliana & Urgenda

Two of the most famous climate cases, Juliana halting U.S. policies promoting fossil fuel use
v. United States and Urgenda Foundation v. State would actually help heal plaintiffs’ injuries.
of the Netherlands, highlight how complex a Further, the majority went on to conclude that
court’s inquiry into standing can be, and how it lacked the power to grant the relief plaintiffs
even judges who hear the same evidence from sought, since doing so would require “a host of
the same parties may reach different, even complex policy decisions entrusted, for better
contradictory conclusions about whether the or worse, to the wisdom and discretion of the
case may proceed. executive and legislative branches.”20
In Juliana, 21 youth plaintiffs filed suit against In contrast, the dissenting judge wrote that even a
the U.S. government asking it to develop a plan small step toward slowing climate change would
to phase out fossil fuel emissions and stabilize help, and plaintiffs could therefore pursue their
the climate system to protect vital resources claim: “The majority portrays any relief we can
upon which the plaintiffs depend.18 They argued offer as just a drop in the bucket. . . . But we are
that the climate system is critical to their perilously close to an overflowing bucket. These
constitutional rights to life, liberty, and property; final drops matter. A lot.”21 In concluding that the
that the government violated plaintiffs’ rights by court has a duty to remedy a constitutional harm,
allowing fossil fuel production, consumption, the dissenting judge pointed out that courts are
and combustion at dangerous levels; and that often compelled to “fashion and effectuate relief
the government failed to maintain the integrity to right legal wrongs, even when—as frequently
of public trust resources within the sovereign’s happens—it requires that [they] instruct the other
jurisdiction for present and future generations. The branches as to the constitutional limitations on
plaintiffs asked the court to “[o]rder Defendants to their power.”22
prepare and implement an enforceable national
remedial plan to phase out fossil fuel emissions The majority’s decision is binding despite the
and draw down excess atmospheric CO2 so as to points raised by the dissent. The plaintiffs are
stabilize the climate system.”19 seeking review of the majority’s decision.
The trial court agreed that plaintiffs had standing In Urgenda, the lower court held that Urgenda
and could proceed to the substance of their had standing on its own behalf under a Dutch
claims. On appeal of that decision, however, a law specifically allowing class actions brought
2–1 majority of the appellate court concluded by interest groups.23 The court rejected the
that plaintiffs did not have standing because they argument that the 886 individual claimants had
could not show a decision in their favor would standing, however, “partly in view of practical
remedy their harm. Even accepting that “[t]he grounds” because their claims could not result
record leaves little basis for denying that climate in a different outcome than Urgenda’s claim as
change is occurring at an increasingly rapid an organization.24 The District Court’s decision
pace,” and that “[t]he government affirmatively was upheld at the Court of Appeals and not
promotes fossil fuel use in a host of ways,” the disputed when the parties ultimately reached
majority expressed skepticism about whether the Dutch Supreme Court.

B. Separation of powers be quashed, because the plan did not include
Separation of powers refers to the principle that one adequate measures to achieve Ireland’s GHG
branch of government generally cannot act outside reduction goals.28 The court expressed significant
the authority granted to it by a constitution or skepticism about whether the plan was justiciable
other laws. This doctrine is particularly significant at all, and ultimately refused plaintiffs’ claim noting
where a court is asked to issue an order that would that “[t]here may be circumstances in which a court
invade the authority granted to another branch of may make a mandatory order against an organ of
government. In the context of litigation, laws that State, but only when there is a . . . . conscious and
mandate a separation of powers typically dictate deliberate decision by the organ of the State to act
that courts should only resolve disputes between in breach of its constitutional obligations to other
the parties actually before the court (rather than parties.”29 In a decision issued 31 July 2020, the
engaging in quasi-legislative work), disputes for Supreme Court rejected this reasoning, quashing
which there is a principled basis in law or equity the plan and adding that “what might well have
to decide which party’s claim should prevail, and been a non-justiciable question of policy clearly
disputes arising from harms that the court has the became justiciable . . . by virtue of the 2015 Act.
power to remedy. The fact that policy became law obliges this Court
to consider whether the Plan complied with the
The 2017 Litigation Report noted that, like standing, legal obligations” imposed by the 2015 Act.30
separation of powers has been a central issue in the
climate litigation in the U.S.25 In Connecticut v. AEP, In Future Generations v. Ministry of the Environment
the U.S. Supreme Court concluded that by enacting and Others, a group of 25 youth plaintiffs sued the
legislation concerning air pollution, the legislature Colombian government and several other entities,
had “displaced” the judiciary’s authority to provide arguing that the government’s failure to prevent
a remedy for common law claims brought under deforestation violates plaintiffs’ fundamental rights.31
federal law that allege climate change harms.26 The The Supreme Court of Colombia recognized that
Supreme Court of the Netherlands took a different the fundamental constitutional rights of life, health,
view in Urgenda, concluding that it had the authority minimum subsistence, freedom, and human dignity
to determine that the government’s failure to were substantially linked to the environment and
legislate could violate a duty, and that it could order the ecosystem. The court ordered the government
the government to achieve a certain goal so long to formulate and implement action plans to address
as the government retained discretion over how it deforestation in the Amazon region.
would reach that goal.
Separation or balance of powers plays a central II. Sources of Climate Obligations

role in several recent cases. In Family Farmers and
Greenpeace Germany v. Germany, plaintiffs sued to In addition to showing that a claim is justiciable, a
compel the German government to meet its stated plaintiff must also articulate a judicially enforceable
goal of reducing national GHG emissions by 40 basis for the climate right or obligation the defendant
percent of 1990 levels by 2020. The court declined is alleged to have violated. Plaintiffs around the
to order the government to make specific changes world have tested a wide array of theories. In this
to the national Climate Protection Program, citing section, we expand on three of the most frequently
the government’s wide discretion in selecting cited bases for climate cases, though individual
what measures to use to achieve emissions cases may assert multiple theories or hybrid
goals. But the court agreed with plaintiffs that arguments that draw on more than one basis.
the government’s policy was subject to judicial
review and must, at minimum, effectively protect A. Statutory or policy causes of action
fundamental rights potentially vulnerable to In many jurisdictions, statutes or national policies
climate change impacts.27 have codified climate change obligations for private
and public actors, providing a basis for legal actions
In Friends of the Irish Environment CLG v. Gov’t disputing those obligations’ legality, applicability, or
of Ireland, the lower court rejected a claim that implementation. The specific contours of the rights
Ireland’s approval of a National Mitigation Plan and obligations codified vary significantly across
addressed to climate change issues should jurisdictions, but statutory causes of action are,

by far, the most frequently cited bases for climate climate change those laws frequently provide a
litigation. Of nearly 1,600 cases tracked in the basis for climate change litigation. No such laws
Sabin Center for Climate Change Law’s litigation articulate a private right of action against an
databases, over 1,200 are premised on statutory or individual emitter for their share of the responsibility
policy causes of action. In the U.S. as of July 2020, for climate change, but where these laws articulate
plaintiffs have filed 200 cases under the Clean Air a national commitment to a specific mitigation goal,
Act, 252 under the National Environmental Policy they have provided a basis for cases challenging
Act (NEPA), and 139 under the Endangered Species governments’ implementation of that goal. The
Act.32 That is approximately 50 percent of all U.S. 2017 Litigation Report noted examples of such
cases, filed under only three statutes. actions in Austria, New Zealand, and Pakistan.38
Recent cases have similarly used statutes and
The 2017 Litigation Report highlighted several policies as the basis for cases against governments.
statutory schemes that have spawned significant In Friends of the Irish Environment CLG v. Gov’t of
litigation. The development of the EU Emissions Ireland, plaintiffs successfully challenged Ireland’s
Trading System under the Kyoto Protocol led to approval of a National Mitigation Plan, arguing
a stream of cases in both national and EU courts the plan violated Ireland’s Climate Action and Low
challenging the directive establishing the scheme Carbon Development Act.39 In VZW Klimatzaak v.
and challenging its applicability to certain sectors Kingdom of Belgium, still pending after a three-year
or countries.33 Environmental impact assessment procedural dispute, plaintiffs allege that Belgian
(EIA) and environmental permitting requirements law requires the government to do more to mitigate
comprise a large portion of Australian climate climate change.40 And in Sheikh Asim Farooq v.
change litigation.34 Notably, Australian state Federation of Pakistan, Pakistani citizens sued their
courts have generally agreed that direct GHG government and several administrative agencies for
emissions should be considered in the permitting failing to protect national forests under legislative
process, but have diverged in regards to indirect, or acts designed to protect and restore forests.41
“downstream,” emissions.35 In the past, they have
not usually found emissions sufficient to justify B. Constitutional and human rights
rejection of a proposed project,36 but more recent As noted above, the number of actions that assert
cases suggest that they may be becoming more that climate inaction violates constitutional and
inclined to support rejecting a project principally on human rights has increased in recent years. Yet,
climate grounds.37 these cases are quantitatively a small proportion of
all climate litigation—of nearly 1,600 cases in the
Not surprisingly, where countries have adopted Sabin Center’s database, just over 100 are based
national laws or policies that explicitly address on constitutional and human rights, and the public
© Getty Images

trust doctrine. Still, as the discussion on these C. Common law/tort theories
“climate rights” cases above indicates, they have In common law jurisdictions plaintiffs have brought
an outsized impact on overall climate governance actions alleging a government or private actor that
because they typically seek bold, conspicuous contributes to climate change is committing a tort,
remedies. And unsurprisingly, ambitious “climate causing a nuisance, or (particularly where parties
rights” cases have garnered disproportionate have instead failed to act) behaving negligently.
attention in the scholarship on climate change Plaintiffs then argue they are entitled to some
litigation to date.42 form of judicial relief for the damages caused by
that behavior. Although these causes of action
The cases in this category include both those are generally not available in civil law jurisdictions,
premised on fundamental and human rights some of those jurisdictions recognize comparable
and cases premised on constitutional rights in statutory causes of action.
individual countries. Most nations around the world
have guaranteed their citizens a constitutional right The same theories frequently provide a basis for
to a clean environment, a healthy environment, or challenges to defendants’ failures to adapt, and for
both—and courts around the world have begun to actions addressing the impacts of adaptation. These
grapple with the implications of these provisions actions seek compensation where defendants were
for climate litigants. According a 2019 survey, at aware of foreseeable climate change impacts but
least seven countries have incorporated rights failed to take steps to prepare. Cases of this kind
specifically addressing climate change into may also address steps to deal with climate risk
their constitutions.43 And as of a 2012 survey, that themselves harmed plaintiffs. And cases may
there were already at least 92 countries that address corporate failures to amend disclosures in
have granted constitutional status to the right light of foreseeable climate risks, as well as failures
to a clean or healthy environment, and a total of to adjust business practices in light of those risks.
177 countries recognize the right either through In each instance, the cases depend on whether the
their constitutions, environmental legislation, defendant knew or should have known that climate
court decisions, or ratification of an international change increased the risk that the defendant’s
agreement.44 Litigants bringing climate actions in actions would harm others.
national courts have been a primary driver in forcing
courts to consider the reach of the constitutional Common law cases are rare relative to other
right to a clean or healthy environment in the sources of climate obligations. As of July 2020,
context of addressing climate harms. Human fewer than 50 of the nearly 1,600 cases in the Sabin
rights treaties do not explicitly recognize a right to Center’s databases were based on common law
a clean environment or stable climate, and as the climate obligations. To date, no court has awarded
Committee on the Elimination of Discrimination a plaintiff damages for climate change harms
against Women notes, ‘[s]ituations of crisis suffered as a result of a defendant’s contribution to
exacerbate pre-existing gender inequalities and climate change. In contrast, the failure to adapt to
compound the intersecting forms of discrimination climate change has driven at least one utility in the
against, among others, women living in poverty, U.S. into bankruptcy. Litigation addressing failures
indigenous women, women belonging to ethnic, to adapt is likely to increase in the coming years,
racial, religious and sexual minority groups, and negligence is a key premise for such suits.
women with disabilities, refugee and asylum- As these cases become more frequent, they may
seeking women, internally displaced, stateless and become even more common than climate rights
migrant women, rural women, unmarried women, cases, though their impact will depend on the scope
adolescents and older women, who are often of remedies courts award.
disproportionately affected compared with men or
other women.45 Still, U.N. treaty bodies interpreting Because common law jurisdictions allow judges to
those treaties, scholars, and a growing number of recognize new causes of action under appropriate
courts have recognized that a changing climate circumstances, plaintiffs can seek to have courts
can threaten basic rights to life, health, water, food, recognize novel climate-related theories. In
family life, and more.46 Several recent cases and Smith v. Fronterra Co-Operative Group Limited, for
petitions have built on plaintiffs’ early successes in example, plaintiff asked the court to recognize
making this connection.47 an inchoate “duty cognizable at law to cease

contributing to climate change”; the court denied al. v. Royal Dutch Shell plc. have brought an action
a motion to dismiss the claim.48 In Harvard Climate seeking to extend Urgenda’s holding to private
Justice Coalition v. President & Fellows of Harvard parties as well as governments, and seeking an
College, plaintiff asked the court to recognize order that the same duty of care requires Shell
a tort of “intentional investment in abnormally to reduce its emissions by 45 percent of its 2010
dangerous activities.” (That case was dismissed levels by 2030. In another case in another context
for lack of standing.) but seeking a similar result, Notre Affaire à Tous
v. Total, a group of French non-profits, allege
Finally, it is important to note that even though that France’s duty of vigilance statute requires
the causes of action differ slightly, plaintiffs may the French oil company Total to recognize the
have success with comparable claims in civil law climate risks of its business and take action
jurisdictions. In Urgenda, for example, the court consistent with a goal of keeping global warming
recognized that the government owes a duty of at or below 1.5°C. This is the first claim to be
care to its citizens under the Dutch code, and made under the statute, which was introduced
that duty was the basis for the Urgenda decision in 2017, and will be crucial in determining future
discussed above. Plaintiffs in Milieudefensie et interpretation and application.
Hybrid Approaches: Duty of Care and Public Trust

Although the sources of substantive climate the scope of that duty in reference to Dutch
rights and obligations described in this constitutional rights and human rights under
report are conceptually distinct from one the European Convention on Human Rights
another, several significant climate cases (ECHR). The public trust approach taken
have proceeded under theories that combine in Juliana can similarly be understood as a
elements of common law, constitutional hybrid, arguing that the common law doctrine
rights, and statutory provisions. In Urgenda, is informed by, and enforceable because of,
the Supreme Court cited a duty of care owed constitutional provisions. In many of the cases
by the government to its citizens. Duties of seeking to hold governments to their policy
care generally exist at common law and define commitments, plaintiffs argue that violating
the standard of conduct a party must meet statutory mandates to undertake mitigation
to avoid a negligence claim. The duty of care efforts violates human rights or rights to a
at issue in Urgenda was codified in the Dutch clean and healthy environment.49
Code, however, and the Supreme Court defined
III. Remedies and Targets claimants for, among other reasons, failing to
properly manage climate-worsened wildfire risks,
The cases discussed in the preceding sections and ultimately reached settlements valued at over
illustrate that parties bringing climate change $25 billion.50 Likewise, injunctive remedies can be
litigation seek a wide range of remedies. There limited and targeted, like the plaintiff’s request for
is substantial variety even among conventional authorization to use rock and concrete shoreline
remedies. On one hand, some cases bring barriers in Ralph Lauren 57, but can also be broad
damages claims that are relatively modest, tailored and far-reaching, like plaintiffs’ request for an order
claims like the Lliuya plaintiff’s request for 0.47 reforming Exxon’s corporate governance in City
percent of the costs of protecting his town from of Birmingham and the Urgenda plaintiffs’ order
glacial flooding. On the other hand, the U.S. utility requiring their national government to implement
Pacific Gas & Electric was sued by a variety of policy changes on a vast scale.

IV. Attribution Science claimed by Mr Smith.”52 In contrast, courts have
found emissions associated with projects and
Attributing a defendant’s emissions to climate programs ranging from individual airport runways
change overall (“source attribution”) and linking to fossil fuel leases to national vehicle emissions
climate change to specific climate change impacts standards sufficient. In all of these examples, a
(“impact attribution”) plays a major role in many robust articulation of how emitters or producers
climate cases, including those seeking to compel bear responsibility for a share of global climate
national governments to take action on climate change may be necessary to sway the courts in
change and those seeking to hold corporations liable favor of the plaintiffs.
for their contribution to climate change. In Juliana,
for example, the plaintiffs submitted over 1,000 Impact attribution is a challenge for parties that must
pages of expert reports detailing the fundamental show that a particular extreme weather event was
science of climate change, its observed and or was not caused by climate change. For example,
projected impacts, and the ways in which the U.S. in In re Upstream Addicks and Barker (Texas) Flood-
government and the fossil fuel industry contributed Control Reservoirs v. United States, plaintiffs sued
to the problem. In response, defendants submitted the government after extensive rainfall during
hundreds of pages of their own expert reports Hurricane Harvey inundated government-controlled
contesting the reliability, soundness and validity of reservoirs and caused plaintiffs’ properties to flood.
the plaintiffs’ experts’ submissions. Both parties cited climate change to support their
arguments: Plaintiffs alleged that the amount of
Source attribution has been a key challenge in rainfall was unusual, but that the known effects of
several cases, and courts have reached varying climate change suggest that the amount of rainfall
results. For example, in Dual Gas Pty. Ltd. v. EPA, could have been foreseen. The government argued
the Victorian Civil and Administrative Tribunal in that the fact of climate change is the reason that
Australia noted, “The emission of a few tonnes of extreme rainfall could not have been foreseen. Both
GHG from a small factory . . . would not in our view parties, thus, run into the question of whether and
give rise to standing . . . even though it represents an to what extent a particular weather event can be
incremental GHG increase.”51 In Smith v. Fronterra caused or worsened by climate change. The court
Co-Operative Group Limited, the court observed ruled that the flooding was foreseeable and that
that “defendants’ collective emissions are the plaintiffs were entitled to compensation but did
miniscule in the context of the global greenhouse not address the parties’ discussion of the role of
gas emissions which are causing climate change climate change.53
and it is the global greenhouse gas emissions
which are pleaded as being likely to cause Attribution will continue to play a central role in
damage to Mr Smith. In these circumstances, in climate change litigation of all types, and courts will
my view, reasonable persons in the shoes of the require both plaintiffs and defendants to address
defendants could not have foreseen the damage these critical questions in a persuasive way.
PART 3 NOTES
1 Many of the themes discussed here were analyzed in the 2017 5 See 2017 Litigation Report at 28–29. The key cases are, on one hand,
Litigation Report. They remain key legal issues. This report Massachusetts v. EPA, where the U.S. Supreme Court concluded that
includes an updated discussion of justiciability and sources the State of Massachusetts had standing— relying on the State’s
of climate obligations and adds analyses discussing the status as quasi-sovereign within the federal system—to challenge
implementation of judicial orders and the role of attribution federal government’s failure to regulate GHG emissions from new
science in climate litigation. motor vehicles. 549 U.S. 497, 526 (2007). On the other hand, in
2 Margit Cohn, Form, Formula and Constitutional Ethos: The Political Comer v. Murphy Oil USA, the Fifth Circuit Court of Appeals found
Question/justiciability Doctrine in Three Common Law Systems, 59 that landowners harmed by Hurricane Katrina did not have standing
Am. J. Comp. L. 675, 677 (2011). to bring a civil conspiracy claim against fossil fuel and chemical
3 Id. at 677–78. companies, because the landowners’ injuries were not traceable to
4 See generally Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). the companies’ conduct. 585 F.3d 855, 860 (5th Cir. 2009).

6 2017 Litigation Report at 28–29. In Urgenda, the foundation was 33 E.g., Judgment No. 5347/2008 of October 6, 2008, Supreme Court
permitted to maintain an action against the government, but the of Spain, Administrative Litigation Division (Section 5) Appeal No.
individual plaintiffs were not granted standing separate from that of 100/2005 (Spain); Re Emission Quotas: Decision No. 2010-622 DC
the organization. In Haughton v. Minister for Planning and Macquarie of Dec. 28, 2010 (France); U.S. Steel Košice v. Commission of the
Generation, a plaintiff could pursue a climate case where the European Communities (Slovakia); Republic of Poland v. Commission
plaintiff had a “special interest” in the alleged harms, and not merely of the European Communities (Poland); Republic of Estonia v.
“intellectual or emotional concern. [2011] NSWLEC 217, ¶¶ 101–102. Commission of the European Communities; Buzzi Unicem SpA v.
7 Leghari v. Pakistan, (2015) W.P. No. 25501/2015 (Supplemental Commission of the European Communities (Estonia).
Decision) at 3. 34 See Gloucester Resources Limited v. Minister for Planning, [2019]
8 State of Himachal Pradesh, M.A. Nos. 389/2014, 1145/2015, NSWLEC 7 (appealing denial of permit to develop a new open-cut
1250/2015, 324/2016 & 325/2016 (Nat’l Green Tribunal). coal mine in New South Wales); Terminals Pty Ltd. v. Greater Geelong
9 Gbemre v. Shell PDC Nigeria Limited, FHC/B/CS/53/05. City Council, [2005] VCAT 1988 (challenging permitting of a chemical
10 Constitutional Court, Feb. 8, 2016, Decision C-035/16. storage facility).
11 Greenpeace Southeast Asia and Philippine Rural Reconstruction 35 See Gray v. Minister for Planning [2006] 152 LGERA 258; Xstrata Coal
Movement, Petition to the Commission on Human Rights of the Queensland v Friends of the Earth [2012] QLC 013.
Philippines Requesting for Investigation of the Responsibility of the 36 E.g., Re Australian Conservation Foundation, [2004] 140 LGERA 100
Carbon Majors for Human Rights Violations or Threats of Violations (holding that the assessment panel must consider the impacts of
Resulting from the Impacts of Climate Change. GHG emissions on the environment); Greenpeace v Redbank Power,
12 Nat. Res. Def. Council v. Wheeler, 955 F.3d 68, 76 (D.C. Cir. 2020). [1994] 86 LGERA 143, 153–55 (finding that the project should be
13 Id. at 77. approved despite climate change impacts).
14 Id. 37 Gloucester Resources Limited v. Minister for Planning, [2019]
15 [2020] NZHC 419 at ¶ 62. NSWLEC 7 (upholding governments denial of application for new coal
16 Armando Carvalho and Others v. European Parliament and Council of mine finding the project was not a “sustainable use” in light of, among
the European Union, Case T-330/18, ECLI:EU:T:2019:324. others, climate impacts).
17 Save Lamu et al. v. National Environmental Management Authority 38 See Klimaschutzgesetz [Climate Protection Act], Bgbl. I Nr. 106, 4
and Amu Power Co. Ltd., Tribunal Appeal No. Net 196 of 2016 at ¶ 3. (Nov. 2011); Thomson v. Minister for Climate Change Issues [2017
18 Juliana v. United States, 217 F. Supp. 3d 1224, 1248 (D. Or. 2016). No. 793 JR]; Leghari v. Federation of Pakistan.
19 First Amended Complaint for Declaratory and Injunctive Relief, Prayer 39 Friends of The Irish Environment CLG v. Ireland, [2020] IESC 49.
for Relief ¶ 7, Juliana v. United States, 217 F. Supp. 3d 1224 (D. Or. 40 Belgium, Our Children’s Trust https://www.ourchildrenstrust.org/
2016) (No. 6:15-cv-01517). belgium.
20 Id. at 1171. 41 Sheikh Asim Farooq v. Federation of Pakistan, (2018) W.P. No.
21 Id. at 1182 (Staton, J. dissenting) (emphasis in original). 192069/2018.
22 Id. at 1184. (Staton, J. dissenting) 42 Joana Setzer & Lisa C. Vanhala, Climate Change Litigation: A Review
23 Urgenda Foundation v. State of the Netherlands, C/09/456689 / HA of Research on Courts and Litigants in Climate Governance 10 Wiley
ZA 13-1396 (English translation). Interdisciplinary Reviews: Climate Change at 13 (“[T]he research
24 Id. has focused primarily on small numbers of high-profile cases
25 See 2017 Litigation Report at 30. concentrated in North America, Europe and Australia.”).
26 Am. Elec. Power v. Connecticut, 564 U.S. at 415; see also Kivalina, 43 James R. May & Erin Daly, Global Climate Constitutionalism and
696 F.3d at 856 (finding that plaintiffs’ federal common law claims Justice in the Courts, in Global Climate Change Constitutionalism
pertaining to climate change had been displaced by the regulation of (Jordi Jaria Manzano & Susana Borràs eds., forthcoming 2020).
greenhouse gas emissions under the Clean Air Act). 44 David Boyd, The Constitutional Right to a Healthy Environment, Env’t
27 Family Farmers and Greenpeace Germany v. Germany, (2018) Sci. & Pol’y for Sustainable Dev., July–Aug. 2012.
00271/17/R /SP. 45 See e.g., H.R.C. Gen. Comment No. 36, CCPR/C/GC/36 (Oct. 30,
28 [2017 No. 793 JR] at ¶ 12. 2018) (recognizing states’ obligation to address climate change
29 [2017 No. 793 JR] at ¶ 91. Later the court added that “[i]t appears as it threatens the right to life); Committee on the Elimination of
to me that the sections of the Act under consideration are couched Discrimination against Women (CEDAW), Gen. Recommendation
in terms of policy measures and considerations. I accept the No. 37, CEDAW/C/GC/37 (Mar. 13, 2018).
submission of the respondent, that even if the Act and the Plan 46 See supra notes 232–34.
are justiciable, given the wording of each, a considerable margin 47 See supra Section 2.II.A.
of discretion is conferred on the Government as to how it should 48 See supra note 109.
achieve the National Transition Objective. I also accept that it is 49 See infra Section 2.II.C.
not part of the function of the court to second-guess the opinion of 50 See In re: PG&E Corporation, No. 19-30088, Order Confirming Debtors’
Government on such issues.” Id. at ¶ 97 and Shareholder Proponents’ Joint Chapter 11 Plan of Reorganization
30 Friends of The Irish Environment CLG v. Ireland, [2020] IESC 49, ¶ 8.15 Dated June 19, 2020 (Bankr. N.D. Cal. June 20, 2020).
(emphasis added). 51 Dual Gas Pty Ltd. v Env’t Protection Authority [2012] VCAT 308, ¶ 134.
31 Corte Suprema de Justicia [C.S.J.] [Supreme Court], abril 5, 2018, M.P: (Austl.).
L. Villabona, Expediente : 11001-22-03-000-2018-00319-01 (Colomb.). 52 [2020] NZHC 419 at ¶ 82.
32 See also Dena Adler, U.S. Climate Change Litigation in the Age 53 In re Upstream Addicks & Barker (Texas) Flood-Control Reservoirs,
of Trump: Year Two (2019), http://columbiaclimatelaw.com/ 146 Fed. Cl. 219, 256 (2019).
files/2019/06/Adler-2019-06-US-Climate-Change-Litigation-in-Age-of-
Trump-Year-2-Report.pdf; Sabrina McCormick et al., Strategies In and
Outcomes of Climate Change Litigation in the United States, 8 Nature
Climate Change 829 (2018); Jessica Wentz, Climate Change and
Environmental Impact Assessment, in Decision Making in Envtl. L. vol
II 283 (Michael Faure general ed. 2016).

© Unsplash

Conclusion
Litigation remains a central feature of ongoing been discriminated against on the basis of age,
efforts to promote climate change mitigation gender, race, ethnicity, religion, migrant status or
and adaptation efforts. The number and variety other forms of discrimination. Future studies also
of climate change cases continues to increase, address whether the remedies that plaintiffs have
as does the geographical range in which climate won or are seeking are adequate to heal the climate
litigation takes place. Analyses to date have harms they are suffering—and if not, what remedies
often overlooked the overwhelming prevalence would be?
of cases premised on statutes and policies and
favored cases premised on rights-based theories. Once litigants do bring a case, they continue to
Yet, statutes and policies are by far the most address many of the same legal issues identified
commonly cited sources of climate obligations; in UNEP’s 2017 Litigation Report, including the
rights-based cases and common law actions make recurring questions of standing and separation
up a comparatively small portion of all climate of powers, with decisions from different courts
change cases. Nonetheless, this disparity is likely cutting in sometimes conflicting directions. Further,
to continue given the compelling narratives that as older cases proceed into later stages of the
drive many rights-based and common law climate litigation process, the science of climate change
cases—their emphases on the extraordinary attribution will play a central role in many of these
nature of the climate crisis, the sheer inadequacy cases. The existing body of scientific literature
of government action, alleged malfeasance and provides a basis for parties to make sophisticated
negligence by corporate actors, and these cases’ arguments attributing climate change to specific
potential to result in “game-changing” decisions. emitters and attributing harms to climate change,
but courts confronting this evidence will break new
Similarly, analyses to date (including this one) ground as they reach conclusions about which
have not fully explored critical questions about the parties are responsible and the extent of those
people affected by climate change. Future studies parties’ responsibility.
may explore who becomes a plaintiff in a climate
change case, why they do, whether the groups The growing amount of litigation and its global
most vulnerable to or most affected by climate distribution suggests that litigants, courts, and
change have access to adequate legal process, and international tribunals will be presented with many
whether their claims are being adjudicated fairly. more opportunities to resolve the pressing dangers
Those groups include persons whose rights have created by climate change in the coming years.

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Global Climate

United Nations Environment Programme

Part 1: The Importance of Climate Change Litigation......................................... 9

Part 2: The State of Climate Change Litigation................................................. 13

Part 3: Legal Issues in Climate Change Litigation............................................ 37

Global Climate Litigation Report: 2020 Status Review 1

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Defining “Climate Change Litigation”

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Note: The data is current as of 1 July 2020.

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Increasing Advocating for Claiming Seeking to keep Addressing Challenging

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Rights of Nature and Climate Change

B. Domestic enforcement adaptation through international agreements,

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Standing in Juliana & Urgenda

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Separation or balance of powers plays a central II. Sources of Climate Obligations

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Hybrid Approaches: Duty of Care and Public Trust

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