Study: Climate change increasingly raised as a human rights issue in court cases

Climate change is increasingly being harnessed as a human rights issue in legal claims and court cases around the world, as the mass popularity of disruptive climate activism over the past year - such as the protests from Extinction Rebellion in the UK - starts to influence how courts address the issue.

That is the broad conclusion from a global review of climate litigation carried out by the Grantham Research Institute on Climate Change and the Environment at the London School of Economics and Political Science (LSE), which analyses climate-related legal actions in the year since May 2019.

Released today, the findings indicate that as awareness and concern about the impacts of climate change on society grows, there are increasing instances of activists, advocacy groups, and city and regional authorities turning to the courts to further climate action.

The majority of cases are still being tried in the US, where there were more than 1,200 climate lawsuits in the year ending in May 2020, according to the Sabin Center for Climate Change Law's database.

Across 36 countries excluding the US, meanwhile, the database featured 374 court cases and eight regional or international jurisdictions, as well as almost 1,900 climate laws and policies in 198 jurisdictions, the study found.

In addition to the growing number of high profile cases, there have also been important developments in how cases are argued and the type of litigation strategies employed by litigants, according to the study.

It points to examples of litigation blending directly with activism, such as mass protests led by Extinction Rebellion in the UK in both April and October 2019, which saw more than 2,800 people arrested for acts of peaceful civil disobedience, along with hundreds more in other parts of the world.

Those arrested were encouraged to present particular messaging in their statements to the police and the courts on why climate risks necessitated their action - an approach the report authors said was "ultimately influencing how courts address climate change more broadly".

There are also growing numbers of court cases around the world which seek to present combatting climate change as a human rights obligation for governments, with the study highlighting ongoing legal proceedings along these lines in Ireland, France, Belgium, Sweden, Switzerland, Germany, the US, Canada, Peru, and South Korea.

In perhaps the most high profile case, campaign group Urgenda took legal action against the Dutch government in a bid to force through more ambitious decarbonisation policies, arguing that failing to urgently take action to mitigate climate change contravened the government's human rights obligations towards its citizens.

The resulting landmark ruling from the Dutch Supreme Court in December 2019 was the first in the world in which a highest level domestic court established a state's duty to reduce emissions by a minimum amount. And, as a result, the Dutch government was forced to respond with a more ambitious climate plan in May this year committing the Netherlands to cut its coal power capacity by 75 per cent while also setting out a €3bn package of other climate mitigation measures.

The study also highlights how even in climate litigation cases around the world that are ultimately unsuccessful in their aims, there is the potential to influence future litigation and raise the profile of climate-related issues.

"What we're seeing in cases like Teitiota in New Zeland and Juliana in the US Court of Appeals are decisions that did not rule in favour of the plaintiffs but that included statements that recognise the risks imposed by climate change, leaving the door open for future successes in different circumstances," said study co-author Joana Setzer, assistant professorial research fellow at LSE's Grantham Research Institute.

However, the report also emphasised the risks and economic costs involved in taking climate action through the courts, such as legal fees, administrative costs, fines and damages.

And the study warned that the Covid-19 crisis was being used in some instances to roll back environmental regulation - such as reduced law enforcement to combat deforestation in Brazil - potentially causing an increase in emissions in both the short and long term.

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