The number of climate litigation cases against corporates grew 33% in 2023, a significant increase on the outstanding cases currently live around the world.

According to research from the Grantham Institute on Climate Change and the Environment, 2023 saw 230 new climate cases worldwide, with 47 against companies.

The UK was among the top three countries for new litigation cases with 24, behind the US on 129 but ahead of Germany’s 7 and Australia with 6.

But the institute also warned in its report that corporates are beginning to play a different role in litigation, with 50 cases launched last year seeking to block or oppose climate and ESG measures.

Though the number of cases overall continues to expand, the rate at which they are being opened appears to have slowed, according to Grantham. There is some uncertainty about what the growing body of cases might mean.

Authors of the report say it “remains difficult to determine” whether climate litigation is “advancing or hindering” climate action, and this despite relatively high levels of success for litigants, especially in climate-washing cases.

The report adds that it is “crucial” to recognise that not all litigation is “aligned” with climate goals.

“Courts may also be used as a venue for advancing agendas that seek to delay or derail climate action…”.

Cases against companies include more than 30 “polluter must pay” cases seeking to “hold corporates accountable” for greenhouse gas emissions. There is also a rise in “corporate framework” cases that seek to force group companies into alignment with national climate goals.

Transition risk cases

A new category of case has also emerged—“transition risk” cases—cases filed against company directors for their management of climate risk.

Examples include ClientEarth pursuing the directors of Shell, though this case was eventually dismissed by the High Court. Another is the Métamorphoses v TotalEnergies case in France, where the directors were sued for allegedly distributing dividends unlawfully.

But it is also clear that companies in some jurisdictions are using courts to strike back at climate and ESG campaigners.

“At times,” the report says, “actors involved in such cases appear to be intentionally seeking to use legal tactics to obstruct climate action.” The cases are often called “strategic”, “anti-climate” or “backlash” litigation.

A majority of the cases have been lodged in the US, though there are others. In the Spence v American Airlines case, the airline was accused of “breaching fiduciary duties” by prioritising ESG objectives over financial returns. The case continues.

This year a case was launched in US courts challenging the right of regulators to introduce mandatory climate-risk reporting rules. In another case, Exxon sued activist investors, although public outrage eventually forced the energy giant to end the litigation.

Climate litigation is growing but it is evolving not just as a tool for campaign groups but also for big corporates and state actors seeking to stymie moves toward environmentally-focused policy. Courtroom clashes are likely to continue for some time to come.