Climate Litigation on the Rise, says 2023 Report

Climate litigation is rising globally and becoming an effective tool to hold countries and public corporations accountable for their climate mitigation actions and emissions and deliver climate justice.

The Global Climate Litigation Report: 2023 Status Review, which updates previous United Nations Environment Programme reports published in 2017 and 2020, provides an overview of climate change litigation and an update of global climate change litigation trends.

The research comes against the backdrop of simultaneous unprecedented heatwaves in the large parts of the Northern and record sea ice loss in Antarctica, as southern hemisphere countries like Australia are bracing for an El Niño-charged summer.

Based on a review of climate change-focused cases collected up to 31 December 2022 by the Sabin Center for Climate Change Law at Columbia University and Global Climate Change Litigation Databases, data shows that the total number of climate change cases has more than doubled since the first report on the issue, from 884 in 2017 to 2,180 in 2022 filed in 65 jurisdictions. In 2020, 1,550 cases were filed.

While the majority of the cases have been brought in the United States (1,522 cases accounting for 70% of the global total), climate litigation is taking up root in all parts of the world, with 17% of the cases coming from developing countries, including small island developing states (SIDS).

Following the US in total number of climate change cases are Australia (127), United Kingdom (79), Germany (38), Canada (34), Brazil (30), New Zealand (26), France (22), Mexico (18), Spain (17), and Indonesia (12).

The climate change litigation databases provide two databases, one for the US climate change litigation and one for the global climate change litigation, which includes other countries and jurisdictions worldwide.

The United States climate change litigations are grouped according to the type of claims and the principal laws they address, such as federal statutory claims, constitutional claims, state law claims, common law claims, public trust claims, securities and financial regulation, trade agreements, adaptation, and climate change protester and scientists.

The global climate change limitation database includes all cases in various countries and jurisdictions except for the United States. Cases can be browsed by jurisdiction or by principal law.

According to the report, most ongoing climate litigation falls into one or more of six categories:

1) cases relying on human rights enshrined in international law and national constitutions;

2) challenges to domestic non-enforcement of climate-related laws and policies;

3) litigants seeking to keep fossil fuels in the ground;

4) advocates for greater climate disclosures and an end to greenwashing;

5) claims addressing corporate liability and responsibility for climate harms; and,

6) claims addressing failures to adapt to the impacts of climate change. 

“Children and youth, women’s groups, local communities, and Indigenous Peoples, among others, are taking a prominent role in bringing these cases and driving climate change governance reform in more and more countries around the world”, the report notes.

UNEP presents the following key climate litigation cases and matters covered in the report: 

• The UN Human Rights Committee concluded for the first time that a country has violated international human rights law through climate policy and climate inaction, finding Australia’s government is in violation of its human rights obligations to Torres Strait Islanders; 
• Brazil’s Supreme Court held that the Paris Agreement is a human rights treaty which enjoys “supranational” status;  
• A Dutch court ordered oil and gas company Shell to comply with the Paris Agreement and reduce its carbon dioxide emissions by 45 per cent from 2019 levels by 2030. This was the first time a court found a private company to have a duty under the Paris Agreement;  
• Germany’s court struck down parts of the Federal Climate Protection Act as incompatible with the rights to life and health;  
• A court in Paris held that France’s climate inaction and failure to meet its carbon budget goals have caused climate-related ecological damages;
• A United Kingdom court found that the government had failed to comply with its legal duties under its Climate Change Act 2008 when approving its net-zero strategy;  and,
• Efforts to obtain advisory opinions on climate change from the International Court of Justice and the International Tribunal for the Law of the Sea are being initiated and driven by Small Island Developing States. 

Future trends in climate litigation

According to the report, the accelerating impacts of climate change will see climate change litigation grow in the coming years. Revisiting the forecasts made in the 2017 and 2020 reports suggests that litigation in the following areas: climate migration, pre- and post-disaster conditions, implementation of the judicial decisions themselves, anti-climate” cases – or backlash cases, transnational responsibility, and lawsuits brought by vulnerable groups will continue to grow.