Climate Change Litigation Is Global
February 21, 2023
As readers of this blog may know, climate litigation is exploding across U.S. courts. States, municipalities, nonprofits, investors, children, and myriad other plaintiffs are bringing lawsuits against private actors for contributing to global climate change and against government officials for failing to take steps to stop it. I have written on this blog about one aspect of these cases of interest to transnational litigators—that is, whether the foreign affairs issues in climate litigation support federal jurisdiction. (Hint: no!)
Importantly, though, climate litigation is not a purely U.S. phenomenon. Although we all know Lord Denning’s famous quip that “[a]s moth is drawn to the light, so is a litigant drawn to the United States,” climate change litigation seems to exploding across the world too. The indispensable Climate Change Litigation Database maintained by the Sabin Center for Climate Change Law includes legal actions filed in 48 countries outside of the United States. The database also includes legal actions related to climate in the East African Court of Justice, the European Committee on Social Rights, the European Court of Human Rights, the European Union, the Inter-American System of Human Rights, the International Centre for Settlement of Investment Disputes, the International Tribunal for the Law of the Sea, the Permanent Court of Arbitration, the United Nations, and the World Trade Organization. The American Journal of International Law also has covered climate litigation in the global south.
I cannot do justice to the full scope of these litigation efforts, but I will draw readers’ attention to two cases that might be of particular interest. First, substantial litigation efforts in the United States and abroad have targeted fossil fuel companies, but the activist group Client Earth has opened a new front with a lawsuit against individual board members of Shell in an English court. Client Earth is a Shell shareholder, and the lawsuit alleges that the board members are personally liable for their failure to transition the company out of the fossil fuel business fast enough. The New York Times covered the suit, and no doubt there will be copycat lawsuits filed in other jurisdictions against other defendants.
Second, moving from foreign to international tribunals, the Republic of Vanuatu is leading a campaign to seek an advisory opinion from the International Court of Justice (ICJ) on climate change. The island nation wants the ICJ to opine on the following questions:
(1) What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for present and future generations;
(2) What are the legal consequences under these obligations for States which, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to: (a) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change? (b) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?
While the advisory opinion would not be an enforceable judgment against a state or private actor, it could be an important tool in both the political and legal fights against climate change.