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Climate change litigation: trending upwards

Home Insights Climate change litigation: trending upwards

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Contributed by: Emmeline Rushbrook, Hannah Bain, Matt McMenamin and Natasha Young

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Published on: February 12, 2021

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The UN Environment Programme has published its Global Climate Litigation Report: 2020 Status Review, as an update to an earlier report from 2017. The report provides an overview of the current state of climate change litigation and gives a fresh assessment of global climate change litigation trends.

Current state of climate change litigation

Since 2017, the number of climate change cases brought to the courts around the world has doubled (over 1500 cases were filed globally in 2020). Key trends include:

  • Human rights: cases alleging that state inaction violates fundamental human rights (in international or domestic law).

  • Challenges to government enforcement: cases challenging domestic (non)enforcement of climate-related laws and policies.

  • Keeping fossil fuels in the ground: cases challenging decisions to approve fossil-fuel intensive activities (including resource management challenges).

  • Private actions: cases against companies, for their contributions to climate harms.

  • Adaptation: cases alleging failures to adapt to the climate change and the impacts of that on private interests.

  • Disclosure & Greenwashing: cases about accurate and transparent disclosure of climate risks by public and private actors.

The report also found that, while climate change cases are brought before many different courts, tribunals and other fora globally, such cases often face common core legal issues. The report summarises these legal issues as challenges to whether the court has the power to resolve the dispute, identifying the source of an enforceable climate-related right or obligation, crafting a remedy that will lessen the plaintiffs' injuries and, importantly, marshalling the science of climate attribution. In relation to the latter, the report identifies that, as cases move through the process of litigation, parties are advancing more sophisticated arguments about how to link a specific greenhouse gas emitter's actions to global climate change and how foreseeable, climate-driven weather events can be linked to specific harms suffered by plaintiffs.

Predictions for the future

The report described five types of climate cases predicted to increase in the future:

  • claims against companies for inadequate or misleading disclosure of climate-related risks;

  • claims alleging failure to properly plan for or respond to extreme weather events;

  • claims that rely on showing private or public actors have causally contributed to climate change;

  • claims before international bodies; and

  • claims to enforce implementation of court orders from successful climate litigation.

Climate change litigation in New Zealand

While climate change litigation in New Zealand remains in its relative infancy, there have been a few significant cases brought in recent years which reflect the trends outlined in the report. For example:

  • The report highlights that governments remain the most common defendant in climate-related litigation. This trend is reflected in New Zealand, where applications for judicial review have been (and are likely to continue to be) a key basis for climate action. Examples include:

    • Thompson v Minister for Climate Change issues [2017] NZHC 733, a law student challenged two decisions of the former Minister for Climate Change Issues in relation to the setting of New Zealand's climate targets. While the challenge failed on the facts of the case, the High Court confirmed that it was appropriate for domestic courts to scrutinise Government decision making about climate change policy (a move away from the courts' traditional reluctance to intervene in matters of public policy). This case is an example of the courts grappling with one of the common issues in climate litigation identified above, whether the court has the power to resolve the dispute.

    • Hauraki Coromandel Climate Change Action Inc v Thames-Coromandel District Council [2020] NZHC 3228. In that case, the High Court quashed a Thames-Coromandel District council decision not to approve the Mayor signing the Local Government Leaders' Climate Change Declaration (see our earlier update here).

  • In a more uniquely New Zealand context, representatives of the Mataatua District Maori Council have filed a claim in the Waitangi Tribunal that the Crown failed in its duty of active protection under the Treaty of Waitangi because of its allegedly inadequate action to address climate change. This challenge is a local example of the international trend of cases that allege violations of constitutional or fundamental rights.

    • In private law, the most significant development in New Zealand is Smith v Fonterra Co-operative Group Ltd [2020] NZHC 419, which is a novel tortious claim brought against seven corporate defendants in relation to their emissions activities (see our earlier update here). The Court of Appeal heard an appeal from the High Court's decision not to strike out the claim this week, and judgment has been reserved. That claim reflects an increasing international trend in litigation against larger private emitters. One of the hurdles the substantive claims in Smith may face (common to claims such as these), is establishing the causal link between a particular defendant's activities (typically just a small proportion of global greenhouse emissions) and claimant loss. 

Addressing Climate Change Litigation Risk

Ultimately, given climate litigation is often aimed at compelling governments and private institutions to pursue more ambitious climate change mitigation and adaptation goals, it should follow that those who do set meaningful and ambitious goals limit their litigation risk. The current process underway of the government setting emissions budgets and an emissions reduction plan following the finalisation of the draft package of advice from He Pou a Rangi (the Climate Change Commission) may, therefore, contribute to limiting litigation risk in New Zealand.
 
That said, while the direction of travel in New Zealand is towards increasingly climate-friendly policy, there will likely be continued opportunities for litigants to challenge official decisions, and seek to hold corporates to account through the use of strategic climate litigation. In addition, regulators may bring their own focus to this issue – with the head of the Financial Markets Authority last week expressing little patience for those who rebadge their investment products as “green” or "responsible" without good basis for doing so. 
 
 
Please contact one of our experts if you wish to discuss this update.

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