Climate Litigation Boost by IPCC Report News and Research

A recent UN climate report provides key confirmation of lawsuits that force fossil fuel companies to pay for climate damage and governments to be more aggressive in climate mitigation.

The landmark report last week from the Intergovernmental Panel on Climate Change credits this trend of climate disputes by influencing “the outcome and ambition of climate governance.”

The IPCC report is by the world’s leading climate scientists and focuses on how society can curb greenhouse gas emissions and halt the worst effects of global warming. It notes that “outside the formal climate policy processes, climate disputes are another important arena for various actors to confront and interact on how climate change should be managed.”

The report says that since 2015, almost 40 cases have been initiated against governments that challenge their efforts to mitigate or adapt to climate change. And it says that litigation has the potential to “affect the austerity and ambition of climate governance.”

“If they succeed,” the report states, “such cases could lead to an increase in a country’s overall ambition to tackle climate change.”

Governments, as well as the oil and gas industry and its allies, have criticized the moods as inappropriate for asking a court, rather than legislators, to resolve climate issues. Proponents of her case have been working to make the actual transcript of this statement available online.

“You can make people question the importance of litigation or minimize the effects of litigation, but having it in the IPCC, having all this consensus, having all these nations sign it – it gives an important, established voice that justifies the existence of the cases. “, Says Delta Merner, leader of the Union of Concerned Scientists’ Science Hub for Climate Litigation, which provides scientific evidence for climate disputes.

Merner also noted that the North American chapter of the IPCC report highlights climate disinformation for the first time. A number of US climate cases are based on allegations of consumer fraud claiming that fossil fuel companies have misled the public about the dangers of climate change (ClimatewireMarch 10).

“The IPCC notes as a scientific consensus that the rhetoric and misinformation about climate change is deliberately undermining science, contributing to misconceptions about scientific consensus, and blocking action against climate change,” she said.

From franchise to credible tool

The new report is the last part of a large three-part climate assessment by the IPCC. The first two sections, published in February and August last year, described how the climate system is changing and how these changes are affecting the planet’s human and natural systems (GreenwireApril 4).

The February report also noted the role of climate disputes, but the latest report devotes an entire section of a chapter to practice.

“It gives credibility to climate disputes as a tool,” said Andrew Gage, a lawyer at West Coast Environmental Law in Vancouver, British Columbia. “This is something that the courts themselves can see as a validation that they have a role to play in these cases.”

He noted that both reports also provide a major boost for attribution science – a growing field of research examining whether and how much climate change contributes to extreme weather events.

Gage said the fossil fuel industry rarely challenges the IPCC’s climate findings in court because its researchers have contributed to the review.

“Once the IPCC has come to conclusions, it’s harder for any of the players to say ‘We do not agree’ when they were involved,” he said.

The report also notes that litigation is used to argue against financial investment in the fossil fuel industry. It cites a “groundbreaking ruling” from the Hague District Court in the Netherlands in May 2021, which held the Royal Dutch Shell PLC legally responsible for greenhouse gas emissions (ClimatewireMay 27).

The report also highlights claims that have been made against banks, pension funds and investment funds for not incorporating climate risk into their decision-making and for revealing climate risks for beneficiaries.

“These litigation also affects the financial market without directly involving specific financial institutions in the case, but in some way they aim to change their perceptions of risk and attitudes towards high-carbon activities,” the report said.

Gage, from West Coast Environmental Law, said the report could put more companies on alert.

“Certainly, investors and financial advisers and regulators may be affected somewhat by the fact that climate disputes are less of a fringe issue and more something that they will need to take into account in their business decisions on a daily basis,” he said.

A “powerful force” in climate control

In the United States, pro-regulatory litigation is more likely to win targets involving renewable energy and energy efficiency, and more likely to lose in cases involving coal-fired power plants, according to the IPCC report.

It notes that outside the United States, more than half of the cases are decided in favor of climate action. And it says that cases can have effects outside the courtroom.

“These effects include changes in the parties’ behavior, public opinion, economic and reputational consequences for the actors involved and the impact on further litigation,” the report notes.

It says that cases have “attracted a lot of media attention, which in turn can affect how climate policy is perceived.”

The report notes that although there is evidence that cases have affected climate policy, “it is still unclear to what extent climate disputes actually result in new climate rules and policies and to what extent this applies to all cases.”

But it is added, “there is now a growing academic consensus that climate disputes have become a powerful force in climate governance.”

Loyola University New Orleans law professor Karen Sokol said the IPCC predicted the upswing in litigation, writing in its 2007 report that “there is likely to be an increase in litigation when countries and citizens become dissatisfied with the pace of international and national climate change decision-making.”

Now, she said, “it is clear that this is a global phenomenon and that it is expanding across jurisdictions and meeting places, invoking national and local laws. … This is part of our response, and it is here to stay.”

The report states that most climate cases are in the USA, Australia and Europe, and that they have only recently appeared in developing countries. It says that courts have played a “more active role in climate governance” in democratic countries, but notes that recent legal reforms have emerged in non-democracies. In China, for example, environmental legislation of general interest allows individuals and groups to initiate environmental disputes.

The report acknowledges that there has not been enough research on “whether and to what extent different legal traditions and political systems affect the role and significance of climate disputes.”

A new wave of climate disputes

The report provides a primer on both state and corporate litigation, noting that lawsuits against governments can be divided into two categories: claims that challenge the government’s efforts to mitigate or adapt to climate change, and claims that sue governments for allowing fossil fuels. fuels.

The first court victories against governments in cases filed in the Netherlands and Pakistan in 2015 “justified a wave of similar climate change disputes worldwide,” according to the report.

Since then, 37 cases have questioned the effectiveness of legislation and policy. Several cases are also trying to form new legal concepts such as “natural rights” – which have been recognized in Colombia. In the United States, however, a tribunal ruled in March that it did not have jurisdiction to rule on a “natural law case” that challenged an Minnesota oil pipeline permit (Energy wireMarch 15th).

The report describes a case in the Netherlands where the country’s highest court ruled in 2019 that the Dutch government must reduce greenhouse gas emissions by 25 percent by 2020 from 1990 levels.

A Dutch environmental group focusing on renewable energy conversions first sued the government in 2015. A lower court ruled in its favor, and the Supreme Court upheld the decision in Urgenda Foundation v. The Netherlands during 2019.

In its decision, the Supreme Court cited IPCC reports as “broadly based scientific insights” that should be taken into account “when giving substance to the positive obligations imposed on the state.”

Since the first ruling in 2015, the report says, “significant changes in the climate policy environment” have occurred in the Netherlands, including the introduction of a climate law and the government’s decision to close all remaining coal-fired power plants by 2030.

The report also notes challenges to state permits, including a ruling in Pretoria, South Africa, which found that climate change can be taken into account when approving coal-fired power plants.

It also points to a ruling in Australia that found that the environment minister was obliged to “take care” of Australian children when deciding whether to approve a coal mine. However, an appellate court overturned the decision three weeks ago, writing that the requirement of “duty of care” was “inappropriate for resolution” by the judiciary (ClimatewireMarch 16).

The report also describes lawsuits against the oil and gas industry from local authorities and activists, who demand compensation for climate-related damage linked to the burning of fossil fuels.

Many of the U.S. cases involve cities and states suing fossil fuel companies, but these lawsuits have been filed in court and disputes over where they should be heard. Many challengers have filed lawsuits in state courts, but the industry has tried to move cases to federal courts. , where they envision a friendlier reception. The Supreme Court’s conservative 6-3 majority has appeared skeptical of the climate goals.

Reprinted from E&E News with permission from POLITICO, LLC. Copyright 2022. E&E News provides important news for energy and environmental professionals.

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