White & Case – An increased sense of global urgency and public awareness around climate change-related risks, along with national laws and international commitments, is driving a new class of litigation.
Crucially, the science of climate change is developing linkages to potential duties of care, facilitating alternative approaches for those seeking to demonstrate responsibility for climate change risks and increasing pressure on governmental and non-governmental actors to propel the transition to decarbonisation. This has implications for entities in carbon-intensive sectors, energy production and infrastructure development.
Climate change is now firmly on the global agenda, prompting action by political and business leaders around the world. The October 2018 report from the Intergovernmental Panel on Climate Change (IPCC) on the impacts of global warming concluded that reduction of carbon emissions below 1.5°C pre-industrial levels would require ‘rapid and far-reaching transitions in land, energy, industry, buildings, transport and cities’.
The two biggest players on the global stage—the 2015 Paris Agreement on Climate Change and the UN Sustainable Development Goals (Goal 13)—both target greenhouse gas emissions. Government action to meet these commitments has the domino effect of changing expectations for corporate action, investor diligence on climate change risk, and the role of state and local authorities. A further effect is the casting of a wide net for potential liability and, by extension, climate-related justice.
Climate change litigation
The term ‘climate change litigation’ is shorthand for a range of different proceedings connected to climate change matters. It can be directed at public and private companies, federal governments, city administrations and insurance companies. Although climate change may not always be the central issue in environmental litigation, even when it arises peripherally, judges are increasingly being asked to deal with arguments and facts related to climate change and climate science that were previously not presented before courts.
Climate change litigation has two broad categories:
- Public law actions against governments and public authorities, raising human rights, constitutional and administrative law arguments
- Private law actions based in areas of law such as tort, fraud, planning and company law.
Almost 1,000 climate change-related cases have been filed to date around the world, covering 25 countries. Overall, corporations and industrials are the most common claimants or plaintiffs in these cases, with governments being the most common defendants. In the United States, claims related to duty of care or failure to warn are analogous to the scope of past litigation over tobacco or asbestos.
The experience gained in those cases makes litigation more accessible as a means to achieve remedy for potential adverse effects of climate change and target accountability.
Source: White & Case