Activists are increasingly taking the climate fight to the courts

KlimaSeniorinnen, a group of seniors, is taking the Swiww government to the European Court of Human Rights for failing to protect the environment, 27 October, 2020. (KEYSTONE/Leandre Duggan)

As the climate emergency continues to gather international attention, advocates are demanding that governments be held to account for climate inaction, a trend expected to grow.

On Wednesday, a court in Paris found the French state guilty of not doing enough to curb its greenhouse emissions. This is only the latest of groundbreaking legal cases filed by climate activists against governments and private action for failing to protect the environment.

A report by the UN Environment Programme released last week found that the number of climate legal cases such as this one had nearly doubled in the last three years. Over 1,550 cases were filed in 38 countries in 2020 compared with 884 in 24 countries in 2017. The authors expect an increase in climate litigation in local and international courts in the coming years.

Sébastien Duyck, senior attorney for the Center for International Environmental Law (CIEL), echoes the report's findings. “Unfortunately, until governments and corporate actors get their act together, I can only expect this trend to continue to increase,” he says.

Running out of options. For Duyck, this surge in legal action has been fuelled by a feeling of “running out of options” in the face of the climate emergency.

“The gap between policies and the commitments that governments agreed to at the international level, through the Paris Agreement, is becoming more and more transparent,” he says. “We are running out of options, and we need to use all tools available to make sure that governments live up to their responsibility to protect the people that elected them.”

This has also motivated new groups of people, including elderly people and children, to seek legal action and demand that their right to a health environment is upheld. In Switzerland, a group of seniors is suing the government before the European Court of Human Rights for failing to protect their health from the worsening heat waves caused by global warming.

Following suit. Certain cases have also served as an inspiration to others, Duyck argues. “We have seen some very significant judicial victories that really served as an inspiration that actually shows that litigation, despite all its flaws, does actually help sometimes,” he says, citing the example of Urgenda vs. Netherlands, where the Supreme Court ordered the Dutch government to limit greenhouse gas emissions to 25 per cent below 1990 levels by 2020.

According to the report, while climate litigation has been mainly concentrated in high-income countries, it is spreading to other countries, with recent cases being filed in countries like Pakistan, Peru, the Philippines and South Africa.

NGOs are increasingly working together across borders, with powerful ones such as Greenpeace being behind dozens of emblematic cases.

“Litigators are seeking to learn from each other and trying to understand what are the strengths and weaknesses of different cases around the world, just like they would do if they were trying to learn from successful political campaigns or advocacy mobilisation,” Duyck says.

“Still in many places it is difficult to actually file a case which has very slim chances of success, so the exchange of lessons learned I think is critical,” he adds.

A bumpy road. Duyck notes that cases might be easier to win today thanks to important precedents being set on which judges can subsequently rely on.

Years of climate inaction is also hard for judges to ignore, he says: “With the alarming rate of climate change, but also the fact that year after year governments have failed to put in place the right measures, judges are in a much better situation to rule in favour of climate action.”

However, climate litigators face important obstacles. Most cases are brought to national and local judiciary systems, where judges tend to be more conservative and might be weary of treading in uncharted territory.

“They are concerned about how the decision that they might reach might be considered political rather than a purely legal decision,” Duyck explains. For these cases, international courts can fill the gap. Although the UNEP report highlights an increase in international cases, these still remain a minority.

Duyck also points out that climate litigation is slow, time-consuming and adversarial, and should never be the first choice for individuals and NGOs. “Ideally, these issues should be resolved by engaging in discussions [with the opposing party] and by mobilising the public,” he says.

But government inaction has been so frustrating to the point that NGOs are left with few alternatives  than resorting to the legal channels, he says.

“In the past we used to have governments that refused to act, highlighting the importance of balancing climate change and other priorities, but now we see more and more governments coming on board when it comes to the discursive dimension, saying 'yes, climate change needs to be one of our top priorities' but then again failing to act upon this,” he adds.

Breaking new ground. As cases are expected to multiply in coming years, they will also focus on companies misreporting climate risks and governments failing to adapt to extreme weather events, according to the report. People being displaced by climate change might also become a recurring theme, as sea levels continue to rise and droughts and floods become more frequent and severe.

Individuals facing criminal responsibility for their actions regarding the environment will also be a game-changing dimension to look out for, Duyck says.

Last week, two top indigenous leaders from Brazil accused President Jair Bolsonaro before the International Criminal Court of crimes against humanity over his dismantling of environmental policies, resulting in the destruction of the Amazonian forest and the killings of indigenous leaders.

“It's not a surprise that this sort of breaking new ground is happening in Brazil because of Bolsonaro who has been so outrageous in his behaviour,” Duyck says, noting that “beyond the Brazilian context, it's very interesting to see that now individual decision makers are actually facing litigation risks.”