Court Claims for Climate Damages Are a New Trend
In the latest report issued by the IPCC (UN Intergovernmental Panel on Climate Change), the term used to collectively refer to climate-related lawsuits, administrative proceedings, inquiries, and investigations is described as a strategy that has influenced ambition and outcomes in this area. Joana Setzer, assistant professor at the London School of Economics Grantham Research Institute on Climate Change and the Environment, was born in Brazil, but has lived in England for 15 years. She is one of the leading experts on this subject. Since 2020, she has led a project that maintains a database on legislation, public policies, and climate litigation cases around the world. As part of this initiative, Setzer and fellow researcher Catherine Higham launched a last week which identified 2,002 climate litigation cases since 1986. The number of suits has doubled since 2015. The study points out that judicialisation has become a way to demand climate commitments from governments and to sue fossil fuel companies. "Lawsuits outside the US have increased significantly this past year", says Setzer. She explains that this phenomenon has also grown in the Global South, especially in Latin America. In Brazil, Setzer describes some unprecedented features of some "green agenda" cases being reviewed by Brazil's Supreme Federal Court (STF), including one to fight illegal deforestation in the Amazon. Last week, the STF ruled that the government must not resort to "contingency budget management", that is, the temporary suspension or postponement of some of the expenses approved under the current Budget Law. Another striking decision was recently taken by the US Supreme Court on the case known as State of West Virginia vs EPA (US Environmental Protection Agency). In that case, however, litigation was used to oppose climate action, . "That decision highlights how important it is for countries to enact clear legislation that is capable of legitimising the efforts of governments and regulatory agencies towards protecting the climate", says Setzer. The London School of Economics has a partnership with the Sabin Center [for Climate Change Law] at Columbia University (US), which maintains a database of all climate-related lawsuits at global level. The also includes all current climate legislation and policies in the world, since the very first ones, dating back to the late 1980s. Back then, there were very few, mostly in the United States, and later in Australia. Over time, especially since 2015, there has been a change not only in the number of cases, but also because it became a global phenomenon, with cases in Latin America, Africa, Europe, and Asia. In total, we are aware of over 2,000 cases in the world today, of which more than 1,000 are in the US. What is interesting is that this number has doubled since 2015. Yes. In 2015, for example, a case was filed by a farmer named Ashgar Leghari against the government of Pakistan. He claimed that the State of Pakistan was not prepared to adapt to climate change. He added that the government had a law that, in principle, required that a number of policies should be put in place, but they had never left the drawing board. The judge ruled that, indeed, the government was less active than it should have been and, very importantly, that this was a human rights issue, and that the State's failure to take those measures affected people's right to life and health. The second case I would like to mention was brought to . In 2015, the District Court in The Hague ruled in favour of Urgendas claim, which was basically recognition that the Dutch government was not showing adequate ambition in dealing with climate change. Their argument was: the Netherlands is a rich country, and has all it takes to set more ambitious goals. If you consider the principle of separation of powers, this is a complicated issue. The Legislative branch had legislated, and the Executive was acting upon it. So, it was not a matter of inaction, such as the one in Pakistan, but rather a call for higher ambition. It was a very interesting case. The District Court accepted the claim, the government appealed, and one of their arguments was the separation of powers. The other was that the Netherlands accounted for a very small share of global emissions. However, the Court of Appeals ordered the government to do more, so the government appealed again. Eventually, the case reached the Dutch Supreme Court, which upheld all previous decisions. As a result, the government was obliged to reduce emissions and bring the coal sector to an end. There is a very important case called , which says that the US has actively invested in activities that are dangerous for future generations. It has been filed by a group of youth. The first decision was in their favour, but it was later reversed. The case is still on appeal. It is very interesting to see that, during the Trump administration, when there was an explicit effort to deregulate environmental legislation, the number of litigations increased significantly. It is as if [those claims] were seen as a way to stop retrogression, something that we are also observing in Brazil. At the same time, litigation has also been used in the US to oppose climate action. The most important case is West Virginia vs EPA (United States Environmental Protection Agency), which was heard by the Supreme Court [last week]. The decision to regulate the reduction of greenhouse gas emissions. The case was filed by the state of West Virginia and 18 other Republican-led states, together with some of the country's biggest coal companies. From a wider perspective, that decision highlights how important it is for countries to enact clear legislation that is capable of legitimising the actions of governments and regulatory agencies towards protecting the climate. Climate litigation in the Global South is a relatively new phenomenon, and one that has been on the rise. This year, we have seen the highest number of cases ever in the Global South. Today, we know of 88 cases in the Global South: 47 in Latin America the vast majority; 28 cases in the Asia-Pacific region; and 13 in Africa. However, it is worth pointing out that the fact that only 88 cases are known to us does not mean that there is no climate litigation in the Global South. There is, indeed, a long history of environmental litigation cases addressing very visible problems, which have an impact on people's day-to-day, such as water contamination, or waste management. These are often much more palpable problems than the wider climate issue. So, it is important to remember that there are thousands of cases in the Global South that are relevant to climate protection, but are simply not filed as climate litigation cases. Climate litigation in Brazil has increased a lot. In recent years, the main focus has been the Bolsonaro government's inadequate enforcement of the law. There are also cases that address the deregulation of various bodies that finance climate action similar to what I mentioned regarding Trump. There is a case, for example, that . It resulted in very interesting proceedings, including the . Brazil has done something unique, which several other courts around the world could very well replicate: the STF has recognised that they are not experts in this area. Therefore, they invited civil society, academia, the private sector, trade unions, industry federations, the agricultural sector, NGOs, and Indigenous communities to take part in the hearing. The participants were very representative of the complexity of the situation, and, in Barroso's words, it was an opportunity for the STF to be educated on this matter. There are a number of other very interesting cases in Brazil, such as one filed by (a subsidiary company responsible for managing BNDES's shares in several Brazilian companies). Conectas claimed that climate risks and damage were not being considered in those financial operations. It is potentially a very relevant case, considering that BNDES and BNDESPar are the main sources of finance for the Brazilian economy. It's an area within climate litigation that has grown a lot recently. A colleague and I have all current cases, and we were able to find over 100 lawsuits that addressed both climate and human rights. This has become a key aspect in several cases, as it humanises the issue of climate change. One thing is hearing about polar bears in the Arctic, while another is talking about this being a problem that will result in people dying, starving, having nothing to drink, and having to leave their homes because of floods. All legal systems agree that protecting the right to life as the paramount form of protection, and these cases highlight that urgency. In addition, this development has been very important from an intergenerational perspective. These cases enable you to protect future generations whether you have such protection enshrined in your Constitution, or, as in some countries, you have specific actors to represent them. These suits build on those that addressed tobacco and asbestos. They all had one thing in common: they sued corporations that were not doing anything illegal, and whose activities were allowed by the State. However, at some point, people were able to prove that their activities were harmful. Cigarettes and asbestos cause cancer. So, those companies started sponsoring disinformation campaigns and did not stop doing what they did. There was a first wave of [climate] cases in the early 2000s, including after Hurricane Katrina. All those cases failed. However, the new claims have a better chance of winning because the world today is not the same as it was in the 2000s. There is much more awareness of the problem, and science is much better established. But there is still something missing, which is what we call a causal link: how can you prove that emissions resulted in damage? This is where a new element is added to the equation: . Research shows that despite the fact that these events would have happened anyway, they were much more extreme and more deadly because of what could be attributed to climate change. One of the best examples is a Luciano Lliuya, who lives in an Andean village called Huaraz. He filed a lawsuit against [energy utility] RWE in Germany, where RWE has its headquarters. He claimed that snow will melt from the mountains, and will flood his village. He showed that RWE contributed with x percent of total emissions, and that the cost of protecting the village with stronger structures that will keep the snow from flooding will cost a certain amount of money. And then he asked RWE to pay for that x percent, which is actually a very low sum: 21,000 euros when the case was filed. Although it is a paltry sum, its significance is huge. It reinforces the narrative that this is a global issue related to climate injustice, and this can open the floodgates for other claims. Considering the trend that we have been observing, I'd say yes more and more litigation cases have been seeking to hold individuals accountable. So, under this trend, you could, in principle, blame a CEO, a consultant, a lawyer, or a president who, despite being aware of a problem, and having a law that ordered them to do one thing, did the opposite. In the specific case of Bolsonaro, his disregard for the law is so patent that it led to worldwide revolt. In October 2021, a very interesting case was initiated against Bolsonaro before the ICC (International Criminal Court): it was called . It is a case that, of course, will take time; and even if it reaches the conclusion that there has been a crime, it does not mean that Bolsonaro will be arrested. But the idea is to have wider recognition that he is committing a crime against humanity. It is not just a crime against Brazil, against Brazilians, or against Indigenous Brazilians: he is committing a crime against humanity. Assistant Professor at the London School of Economics Grantham Research Institute on Climate Change and the Environment. Professor Setzer has a Law degree from the Pontifical Catholic University of Sao Paulo (PUC-SP), a master's degree from the University of Sao Paulo (USP), and a master's and a doctoral degree from the LSE. Professor Setzer has been based in England for 15 years. Previously, she worked in Brazil as an environmental lawyer for 8 years. is a series of reports and interviews with new players and experts on climate change in Brazil and around the world. This special coverage will also focus on the responses to the climate crisis during the 2022 general elections in Brazil and at COP27 (UN Climate Conference to take place in Egypt in November 2022). This project is supported by the Open Society Foundations.