Climate Litigation Strategies
The damage that humans are doing to the global climate may be one of the gravest injustices of all time. Some people are profiting enormously from damaging the climate, while others are bearing the costs. Many who will suffer the most are contributing almost nothing to the damage. Courts around the world are stepping up to address climate injustice and pushing governments to protect threatened communities and the environment.
Ten years ago, the United States Supreme Court recognized:
“The harms associated with climate change are serious and well recognized.”
Massachusetts v. EPA, 549 U.S. 497 (2007)
More recently a Pakistani court urged:
“From Environmental Justice . . . we need to move to Climate Change Justice.”
Asghar Leghari v. Federation of Pakistan, W.P. No. 25501/2015, Climate Change Order (4 September 2015)
Courts around the world are considering a growing number of climate cases. Citizens and organizations are turning to judicial systems to protect the rights of those impacted by the changing climate; require governments to take bolder action to stop harmful emissions; urge governments to help communities adapt; evaluate climate impacts before approving projects; ensure governments keep commitments they have made in the international arena; hold corporations accountable, and more.
ELAW provides this brief overview of legal strategies to advance climate justice. We focus on legal arguments that can be supported by judgments from around the world. [Some of the judgments we have compiled are not climate-specific cases, but could be used to build a strong climate case.] We welcome suggestions of other legal strategies or cases to add to this resource.
Lawyers representing communities concerned about the climate will need to be creative because courts have limited experience in developing appropriate remedies for climate impacts. As this important area of environmental and human rights law evolves, ELAW is tracking decisions and new legal strategies that show promise for achieving climate justice.
[Note: For lawyers thinking about potential climate cases for the first time, we have a brief primer to help orient you to some of the basic concepts.]
Cases seeking to mitigate climate impacts have challenged specific regulations, projects or activities, as well as seeking orders to require governments to take bolder actions to reduce emissions.
In Urgenda Foundation v. The State of the Netherlands, the Hague District Court found that the Netherlands must do more to avert the imminent danger posed by climate change in view of its duty of care to protect and improve the living environment. C/09/456689/HA ZA 13-1396 (24 June 2015) (Decision upheld by the Supreme Court in 2019). The Court found a sufficient causal link “can be assumed to exist” between Dutch emissions, global climate change, and the effects. The Court determined the Dutch government must reduce CO2 emissions by a minimum of 25% (compared to 1990) by 2020 to fulfill its obligation to protect and improve the living environment against the imminent danger caused by climate change.
Similarly, cases seeking adaptation measures could be filed against governments or private entities that are responsible for climate impacts or have a duty to protect people from those impacts. Courts are beginning to recognize governments may have a duty to protect citizens from climate impacts and help build resiliency.
A farmer in Pakistan filed a public interest litigation alleging the government’s inaction and delay in implementing the National Climate Change Policy and addressing vulnerabilities associated with climate change violates the fundamental constitutional rights to life and dignity. Asghar Leghari v. Federation of Pakistan (W. P. No. 25501/2015). The Green Bench declared:
Climate Change is a defining challenge of our time and has led to dramatic alterations in our planet’s climate system. For Pakistan, these climatic variations have primarily resulted in heavy floods and droughts, raising serious concerns regarding water and food security. On a legal and constitutional plane this is clarion call for the protection of fundamental rights of the citizens of Pakistan, in particular, the vulnerable and weak segments of the society who are unable to approach this Court.
Id., Order of 4 September 2015, at Para. 6.
The Green Bench invoked the right to life and the right to dignity protected by the Constitution of Pakistan and international principles, including intergenerational equity and the precautionary principle, to call for a “move to Climate Change Justice.” Para. 7.
Finding that federal and provincial officials had done little to implement adaptation measures to cope with changing climatic patterns, which threaten food, water, and energy security, the Green Bench directed responsible ministries and departments to: appoint a focal person on climate change to appear before the Green Bench, and prepare a list of adaption measures to be completed by the end of 2015. The Green Bench also established a Climate Change Commission to help the Court monitor progress and achieve compliance with guidelines. See Para. 8.
In a second order, issued 14 September 2015, the Green Bench recognized “[f]or Pakistan, climate change is no longer a distant threat-we are already feeling and experiencing its impacts across the country and the region. The country experienced devastating floods during the last three years. These changes come with far reaching consequences and real economic costs.” Para. 3. For that reason, the Green Bench explained, it is important to implement the recommendations in Pakistan’s National Climate Change Policy “to ensure that climate change is mainstreamed in economically and socially vulnerable sectors of the economy and to steer Pakistan towards climate resilient development.” Para. 9
The Green Bench listed each official appointed as a “focal person” on climate change and the members of the Climate Change Commission. The Green Bench retained jurisdiction (continuing mandamus) to hear reports from representatives concerning their progress.
Several cases have been filed seeking damages from entities responsible for climate change, but these cases are still working their way through the courts, so we don’t have any helpful decisions to share at this point.
ELAW has a report describing laws and jurisprudence in a few countries that could be used to bring strong cases.
Climate Impact Assessments
Environmental impact assessment (EIA) is one of the most commonly used tools to inform decisionmakers and the public about the anticipated environmental, social, and economic impacts of a proposed development or activity. Few EIA laws specifically require climate change considerations to be included in impact assessments. For this reason, decisionmakers are apt to avoid any rigorous analysis of the impact of a proposed project on the climate or whether a project is viable in the face of a changing climate. Courts around the world, however, are recognizing that climate change during the EIA process.
U.S. regulations implementing the National Environmental Policy Act require environmental impact statements (EISs) to include a discussion of the direct, indirect, and cumulative effects of a proposed project. 40 C.F.R. §§ 1502.16 and 1508.25. Although the regulations do not specifically require analysis of climate impacts, some courts have found that climate impacts should be considered as indirect and cumulative impacts of proposed projects. For example, in Border Power Plant Working Group v. Department of Energy, the plaintiffs challenged the environmental assessment (EA) prepared for required permits and rights-of-way to build electricity transmission lines. 260 F. Supp. 2d 997, 1006 (S.D. Cal. 2003). A federal district court found the EA inadequate in its analysis of the environmental impacts of the proposed electricity transmission lines because it failed to address the significance of increased GHG emissions generated by power plants providing electricity that would be carried over the lines. Id. at 1028-1029. (Subsequently, the Department of Energy prepared an EIS, which was found to be adequate in Border Power Plant Working Group v. Department of Energy, 467 F. Supp. 2d 1040, 1070 (S.D. Cal. 2006)).
In 2006, the Australian New South Wales Land and Environment Court declared that the impact of burning coal at a power plant should be studied as an indirect impact of coal mining. In Gray v. The Minister for Planning  NSWLEC 720, petitioner Peter Gray challenged a decision by the Director-General of the Department of Planning that the EIA prepared by the proponent of the proposed Anvil Mine was adequate. Gray asserted among other things that the EIA should have considered the impact to the climate of burning the mined coal at a coal-fired power plant.
The Court explained:
Climate change/global warming is widely recognised as a significant environmental impact to which there are many contributors worldwide…The fact there are many contributors globally does not mean the contribution from a single large source…should be ignored in the environmental assessment process…
* * *
I consider there is a sufficiently proximate link between the mining of a very substantial reserve of thermal coal in NSW, the only purpose of which is for use as fuel in power stations, and the emission of GHG which contribute to climate change/global warming, which is impacting now and likely to continue to do so on the Australian and consequently NSW environment, to require assessment of that GHG contribution of the coal when burnt in an environmental assessment[.]
* * *
While the Court has a limited role in judicial review proceedings in that it is not to intrude on the merits of the administrative decision under challenge…it is apparent that there is a failure to take the principle of intergenerational equity into account by a requirement for a detailed GHG assessment in the [environmental assessment] if the major component of GHG which results from the use of the coal…is not required to be assessed. That is a failure of a legal requirement to take into account the principle of intergenerational equity.
* * *
Environmental assessment is intended to enable decision makers to be properly informed about the future environmental consequences of the project before them. The environmental assessment is a prediction of what the impacts might be given that the project is yet to be built. It is not appropriate to limit the scope of the environmental assessment on the basis that GHG emissions may or may not be subject to regulation in the future whether in NSW or overseas. The fact that it is difficult to quantify an impact with precision does not mean it should not be done.
Id. at paras. 98, 100, 126 and 138.
In, Earthlife Africa Johannesburg v. Minister of Environmental Affairs and others, Case no. 65662/16 (2017), Earthlife Africa Johannesburg sought judicial review of a decision by the Department of Environmental Affairs (DEA) granting an environmental authorization for a coal-fired power plant and a decision by the Minister of Environmental Affairs not to withdraw the authorization as part of an appeal of the authorization.
The DEA granted the application for environmental authorization even though the underlying environmental impact assessment report (EIR) did not address the proposed power plant’s direct impact on the climate, how it will aggravate climate impacts that will be felt in the region such as water scarcity, or the project’s resiliency to climate change.
Rejecting the argument that the law does not specifically require a climate impact assessment, the Court said:
The absence of express provision in the statute requiring a climate change impact assessment does not entail that there is no legal duty to consider climate change as a relevant consideration…[T]he climate change impacts are undoubtedly a relevant consideration as contemplated [in the National Environmental Management Act][.]
Id. at para 87.
The Court also dismissed the argument that a climate impact assessment cannot be required because no explicit guidelines exist for preparing one. The Court explained that “an environmental impact assessment is inherently open-ended and context specific. The scoping process that precedes an environmental impact assessment provides opportunity for delineating the exercise and guidance on the nature of the climate change impacts that must be assessed and considered.” Id. at para. 89.
The Court referred both to under the Paris Agreement and South Africa’s relevant legislation to determine that “climate change impacts of coal-fired power stations are relevant factors that must be considered before granting environmental authorisation.” Id. at para. 91.
What should a climate impact assessment look like?
In 2012, the International Association for Impact Assessment (IAIA) published a set of international best practice principles for climate change and environmental impact assessment. Climate Change in Impact Assessment: International Best Practice Principles, Special Publication Series No. 8. (April 2012) The IAIA best practice principles state that an impact assessment should explicitly address whether a proposal will, directly or indirectly, increase or decrease GHG emissions. Id., p. 2.
Courts are beginning to weigh in on the adequacy of climate impact assessments, as well.
In the South African case described above, the Court found that the DEA issued its decision granting an environmental authorization for a coal-fired power plant based only on “scant climate change information consisting of [a] single paragraph in the EIR, which…was wholly insufficient.” Earthlife Africa Johannesburg v. Minister of Environmental Affairs and others, Case no. 65662/16 (2017) at para. 94.
A U.S. court took issue with an environmental impact statement (EIS) that discounted the significance of greenhouse gas emissions associated with a proposed coal mining project on the basis that if the coal was not mined in the particular project, the same amount would simply be mined somewhere else and used for electricity production. the court directed the EIS to be revised.
In another case, environmental organizations challenged a decision by the Office of Surface Mining to allow the expansion of a mine in Montana. Montana Environmental Information Center v. U.S. Office of Surface Mining, Civ. No. 15-106-M-DWM (D. Mont. 2017) It was estimated that the expansion would open access to more than 132 million tons of coal under government- and privately-owned land. A majority (95%) of the coal produced at the mine is shipped overseas to Korea, Japan, and the Netherlands. The environmental organizations alleged, among other things, that the project’s environmental assessment (EA) was deficient because OSM failed to take a “hard look” at the indirect and cumulative effects of coal transportation, coal exports, and coal combustion related to the project, and ignored foreseeable greenhouse gas emissions.
With regard to the indirect and cumulative impacts of coal transportation, the district court agreed with the environmental organizations that the OSM unreasonably limited the scope of its analysis. The court rejected OSM’s claim that evaluating the environmental impacts of coal transportation would be “speculative” given the uncertainty about future transportation routes and combustion locations. The court noted that there are limited rail routes for coal transportation to export terminals outside of Montana and the EA contained estimates of where the coal would be shipped; therefore, “a degree of reasonable foreseeability exists” for OSM to consider indirect and cumulative effects of coal transportation. Id., pp. 28-32. The court also rejected OSM’s claim that there were no reliable methods to assess the social and environmental impacts of coal trains. Id., p. 32.
Although the EA estimated the quantity of greenhouse gas emissions that would occur from coal combustion, the environmental organizations argued that OSM neglected to assess the indirect and cumulative impacts of these emissions in the EA for the proposed mine expansion, even though the agency had a cost-benefit tool available for this purpose.
The district court held that although cost-benefit analysis is not required in environmental assessments, the OSM improperly emphasized the economic benefits of coal production while completely excluding any discussion of the costs of greenhouse gas emissions. The court stated: “[T]he Mining Plan EA concluded not that the specific effects of greenhouse gas emissions from the expansion would be too uncertain to predict, but that there would in fact be no effects from those emissions, because other coal would be burned in its stead. This conclusion is illogical, and places the Enforcement Office’s thumb on the scale by inflating the benefits of the action while minimizing its impacts.” Id., p. 46.
The district court blocked further coal mining within the proposed expansion areas. Id., p. 64.
UNFCCC and the Paris Agreement
At least one court has found that commitments made under the international climate regime create a framework under which governments should make decisions. In a case brought by an environmental organization and Dutch citizens, the Hague District Court in the Netherlands reviewed that country’s responsibilities under the UNFCCC legal regime and recognized that these international commitments create “the framework for and the manner in which the State exercises its powers” to protect citizens against the imminent danger caused by climate change. Urgenda Foundation v. The State of the Netherlands, C/09/456689/HA ZA 13-1396 (24 June 2015) (Para.4.63) (Decision upheld by the Supreme Court in 2019) Similarly, a South African court has determined the and that
Causation and Countering de Minimus Claims
The Hague District Court found a sufficient causal link “can be assumed to exist” between Dutch emissions, global climate change, and the effects. Urgenda Foundation v. The State of the Netherlands, C/09/456689/HA ZA 13-1396 (24 June 2015) (Hague District Court) at para. 4.90 (Decision upheld by the Supreme Court in 2019). Other courts have found links between and stated that a single
Courts have found that the precautionary principle should be applied to protect the right to a healthy environment, which could be asserted in a climate case. For example, in 2013, in a case considering the potential impact of trial crops of genetically-modified eggplant, the Philippines Court of Appeals recognized there is no scientific certainty and invoked the from the threat posed by approved field trials of the genetically-modified crops. In a case addressing impacts of climate change in Pakistan, the Lahore High Court Green Bench concluded that
Right to Life
In 2015, the Lahore High Court Green Bench invoked constitutional rights, including the right to life, to address climate change in Pakistan. In Ashgar Leghari v. Federation of Pakistan, W.P. No. 25501/2015, a farmer alleged that the government of Pakistan’s inaction and delay in implementing the National Climate Change Policy and addressing vulnerabilities associated with climate change violates fundamental constitutional rights to life and dignity.
In its first order, issued in September 2015, the Green Bench declared:
Climate Change is a defining challenge of our time and has led to dramatic alterations in our planet’s climate system…On a legal and constitutional plane this is clarion call for the protection of fundamental rights of the citizens of Pakistan, in particular, the vulnerable and weak segments of the society who are unable to approach this Court.
Fundamental rights, like the right to life (article 9) which includes the right to a healthy and clean environment and right to human dignity (article 14) read with constitutional principles of democracy, equality, social, economic and political justice include within their ambit and commitment, the international environmental principles of sustainable development, precautionary principle, environmental impact assessment, inter and intra-generational equity and public trust doctrine. Environment and its protection has taken a center stage in the scheme of our constitutional rights. It appears that we have to move on. The existing environmental jurisprudence has to be fashioned to meet the needs of something more urgent and overpowering i.e., Climate Change. From Environmental Justice, which was largely localized and limited to our own ecosystems and biodiversity, we need to move to Climate Change Justice. Fundamental rights lay at the foundation of these two overlapping justice systems. Right to life, right to human dignity, right to property and right to information under articles 9, 14, 23 and 19A of the Constitution read with the constitutional values of political, economic and social justice provide the necessary judicial toolkit to address and monitor the Government’s response to climate change.
Ashgar Leghari, at paras. 6-7.
Recognizing the serious threat that climate change poses to food, water, and energy security, the Green Bench directed government ministries and departments to identify and begin implementing climate change adaptation measures for the protection of Pakistani citizens. The Green Bench also established a Climate Change Commission to help the Court monitor progress and achieve compliance with guidelines. Ashgar Leghari, at para. 8. The Green Bench retained jurisdiction to hear reports from representatives concerning their progress.
Right to a Healthy Environment
Courts have also interpreted the right to a healthy environment to include protections that are important in the context of climate change.
Article 24 of the Constitution of South Africa declares:
Everyone has the right –
(a) to an environment that is not harmful to their health or well-being; and
(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that –
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.
The Constitution of the Republic of South Africa, 1996 (Art. 24).
Interpreting this Constitutional provision, the Gauteng Division of the High Court declared:
Section 24 recognises the interrelationship between the environment and development. Environmental considerations are balanced with socio-economic considerations through the ideal of sustainable development…Climate change poses a substantial risk to sustainable development in South Africa. The effects of climate change, in the form of rising temperatures, greater water scarcity, and the increasing frequency of natural disasters pose substantial risks. Sustainable development is at the same time integrally linked with the principle of intergenerational justice requiring the state to take reasonable measures protect the environment ‘for the benefit of present and future generations’ and hence adequate consideration of climate change. Short-term needs must be evaluated and weighed against long-term consequences.
Earthlife Africa Johannesburg v. Minister of Environmental Affairs and others, Case no. 65662/16 (2017), the Gauteng Division of the High Court, para. 82 (internal citation omitted).
Around the world, governments continue to plan new coal-fired power plants and seek to extend the life of existing plants. These facilities rain toxic pollutants and particulate matter on nearby communities, poisoning their air and water.