Climate litigation—lawsuits against governments and companies for damage to the environment—are “absolutely necessary to hold people to account for not taking enough action on climate change,” according to a UN special rapporteur.

Ian Fry, special rapporteur at the UN on human rights, made the comments to the Financial Times  amid expectations that climate litigation is on the rise.

NGOs or community groups have increasingly been launching legal action against either companies or governments for what are claimed to be offences against the environment.

This month will see publication of the Grantham Institute’s 2023 Climate Litigation Report. This time last year, the institute found that litigation on climate issues had more than doubled since 2015.

Since then, UK campaign group ClientEarth has launched legal action against Shell’s board directors (though that appears to be failing), while mining giant BHP faces a £36bn class action for losses incurred by the 2015 collapse of the Fundão dam in Brazil.

Ahead of its report launch, the Grantham Institute says: “Over the past year, the climate litigation field has seen novel case strategies deployed against a broad array of government and corporate actors. Notable examples in the private sector include a world-first case brought against Shell’s board of directors, as well as against a commercial bank (BNP Paribas). Three new cases have also been brought against Russia, Finland and Sweden, to challenge the inadequacy of their national climate plans.”

In harm’s way

Lawyers and observers at this year’s World Economic Forum summit in Davos warned attendees that climate litigation cases would rise.

Alice Garton, director of global legal strategy at the Foundation for International Law for the Environment, said she could see cases rising. “And that’s a great shame because it means that more harm has ensued, therefore more people are justified in bringing their cases to court.”

At the same event, Sebastian Vos, chair of the public policy practice at law firm Covington & Burling, said new legislation being introduced by the EU—including the Corporate Sustainability Due Diligence Directive—could prompt even more cases.

One of the key components of the directive is its “accountability” clauses, which allow legal cases to be brought against EU companies for undermining human rights or damaging the environment. Final wrangling between EU institutions over the content of the directive is still to happen but the directive is expected to become law next year.

The case brought by NGO ClientEarth against Shell is perhaps the most notable climate case to be brought in the UK. Many observers claimed it could set a legal precedent, because it claimed that Shell directors had failed in their fiduciary duties by “failing to adopt and implement an energy transition strategy that aligns with the Paris Agreement”.

In May, the High Court ruled the case could not go ahead because, it said, ClientEarth did not have “standing”—sufficient personal interest—to launch the action. ClientEarth claims it does and is bringing an appeal.

In France, NGOs Friends of the Earth, Oxfam and Notre Affaire à Tous have brought a claim against BNP Paribas for its continued support of the fossil fuels industry. The bank has said it is on an “exit path” from oil.

Fossil fuel focus

Last year, the Grantham Institute said the total number of litigation cases since 2015 now stood at 2,000.

In 2021, courts saw 38 climate class actions brought against corporates, with around half filed against fossil fuel companies; in 2022, 12 out of 30 cases were against fossil fuel companies. Cases have also been brought against the plastics sector, in addition to the food, agriculture and financial services sectors.

Cases are brought to enforce climate standards, for organisational failure to adapt to climate change, and to seek damages. Some, including a case against Shell by the Dutch NGO Milieudefensie, aim at changing corporate governance rules and decision making.

The trend is clear: many groups feel government and big corporates are failing to tackle climate change and are willing to use the courts to push home their message. Grantham’s next report should tell us whether that campaign is picking up steam.