Global Climate Litigation in 2023

The year 2023 marked a critical juncture in the ongoing global movement toward climate accountability, with the initiation of at least 230 new climate-related cases across multiple jurisdictions. These legal actions, aimed at holding governments and corporations responsible for addressing the growing threat of climate change, underscore the escalating momentum for climate action. Although the total number of cases increased, the pace of expansion slowed compared to prior years, signaling a potential consolidation and strategic focus on high-impact litigation.

The Geographical Expansion of Climate Litigation

Notably, climate litigation extended its reach to new frontiers in 2023, as lawsuits were filed for the first time in countries such as Panama and Portugal. This widening geographical scope reflects the increasingly global nature of the climate crisis and the corresponding legal efforts to mitigate its effects. As climate litigation gains traction in diverse legal systems, it further exemplifies the universality of the call for climate justice and accountability.

International Courts and Tribunals: A Growing Role

In 2023, international climate change litigation made substantial headway, with significant cases brought before major international courts and tribunals. Although only 5% of climate litigation has been adjudicated in international courts to date, these cases hold considerable potential to influence domestic legal proceedings. The rulings and advisory opinions of international courts, particularly those that address state obligations under international climate agreements, are likely to set important precedents that will reverberate in national courts around the world. This reflects an increasing recognition of climate change as a matter of international law, with far-reaching implications for governance and policy.

Government Accountability: The Rise of Framework Cases

2023 witnessed a series of landmark “government framework” cases, which challenge the adequacy of governmental climate policies in relation to their international commitments and domestic responsibilities. These cases are pivotal in determining whether states are fulfilling their obligations to mitigate climate change under both national and international frameworks.

A particularly significant development is the forthcoming decision by the European Court of Human Rights in KlimaSeniorinnen and ors. v. Switzerland, expected in April 2024. This case, brought by a group of senior citizens, argues that Switzerland’s inadequate response to climate change violates their fundamental human rights. The court’s ruling is anticipated to trigger a wave of similar lawsuits across Europe, with far-reaching consequences for national climate policies and human rights protections.

Corporate Climate Litigation: Increasing Scrutiny and Accountability

Parallel to governmental litigation, the corporate sector faced heightened scrutiny in 2023. From 2015 to the present, approximately 230 climate-related cases have been filed against corporations, reflecting the growing insistence on corporate responsibility in addressing climate change. Several critical trends emerged in corporate climate litigation during 2023.

A surge in cases addressing deceptive corporate claims regarding environmental sustainability, often referred to as “climate-washing,” marked a significant development. In 2023 alone, 47 new climate-washing cases were initiated, bringing the total to over 140. These cases have overwhelmingly favored the claimants, with more than 70% of concluded cases resulting in rulings against the corporations, demonstrating the increasing legal intolerance for false environmental claims and misleading sustainability practices.

Another prominent area of corporate litigation involves the “polluter pays” principle, wherein companies are held liable for their contributions to greenhouse gas emissions and the resultant climate-related harm. Currently, over 30 cases worldwide are seeking to hold major corporations accountable for their historical and ongoing emissions. These cases represent a critical avenue for compensating communities and regions disproportionately affected by climate change, particularly those in the Global South.

Strategic lawsuits aimed at compelling companies to align their operations and governance frameworks with global climate goals have continued to proliferate. These cases focus on ensuring that companies integrate climate risk into their corporate strategies and adhere to international standards on climate mitigation.

Let me remind you that in April 2019, environmental group Milieudefensie/Friends of the Earth Netherlands and several co-plaintiffs, including other NGOs and over 17,000 citizens, filed a lawsuit against Shell, alleging that the company’s contributions to climate change violated its duty of care under Dutch law and its human rights obligations. The plaintiffs sought a ruling from the Hague District Court, demanding that Shell reduce its CO2 emissions by 45% by 2030, compared to 2010 levels, and achieve net-zero emissions by 2050, aligning with the Paris Climate Agreement. This case built on the precedent set by the Urgenda ruling, which found that the Dutch government’s inadequate climate action violated its duty of care to citizens. The plaintiffs extended this argument to the private sector, asserting that Shell had a legal obligation to reduce emissions under both Dutch civil law and the European Convention on Human Rights. In May 2021, the Hague District Court ruled in favor of the plaintiffs, ordering Shell to reduce its emissions by 45% by 2030 across all activities, including its own operations (Scope 1), emissions from purchased energy (Scope 2), and emissions from the use of its products (Scope 3). The Court rejected Shell’s defense that it was not legally required to adhere to such reductions and dismissed claims that Shell’s obligations were preempted by the EU Emissions Trading System (ETS). The ruling was made provisionally enforceable, meaning Shell must begin implementing the reductions even while the case is under appeal. This decision marked a significant victory for climate activists, establishing corporate responsibility for emissions across the entire value chain and affirming that Shell must contribute to mitigating the global climate crisis.

A newly recognized category of litigation, “transition risk” cases, involves lawsuits filed against corporate directors and officers for mismanaging climate risks. These cases are being driven by shareholders seeking accountability for corporate decisions that fail to consider the financial risks associated with climate change. One example in 2023 saw shareholders of the Polish energy company Enea approve litigation against former directors for their plans to invest in new coal power plants—a decision seen as misaligned with global decarbonization efforts.

Non-Aligned Climate Cases: Challenging the Climate Agenda

While the majority of climate litigation aligns with the goal of accelerating climate action, a significant minority of cases filed in 2023 sought to challenge or complicate these efforts. Nearly 50 cases fell into this category, with litigants either opposing specific climate policies or questioning the manner in which climate measures were being implemented. These non-aligned cases highlight the complexities inherent in balancing environmental, social, and economic objectives.

ESG Backlash Cases challenge the incorporation of Environmental, Social, and Governance (ESG) criteria into financial decision-making, often arguing that an overemphasis on ESG may undermine economic performance or restrict access to certain markets. This backlash reflects broader societal debates on the role of ESG in corporate governance and financial stability.

Strategic Litigation Against Public Participation (SLAPP) suits remain a significant obstacle for NGOs and activists pursuing climate-related goals. These suits are intended to deter public interest groups from advocating for stronger climate policies by burdening them with costly and time-consuming litigation. The rise of SLAPP suits highlights the ongoing conflict between vested interests in fossil fuels and the broader climate movement.

As governments introduce climate policies that may disproportionately impact vulnerable communities, just transition cases have emerged to challenge the fairness and equity of such policies. These cases typically focus on the human rights implications of climate policies, questioning whether sufficient attention has been paid to the social and economic costs of transitioning to a low-carbon economy.

An emerging category of “green v. green” cases reflects the growing tension between competing environmental priorities, such as biodiversity conservation and climate mitigation. These cases often involve disputes over whether climate policies may inadvertently harm other environmental goals, such as protecting endangered species or preserving natural ecosystems.

Looking Forward: Strategic Climate Litigation as a Catalyst for Change

The consolidation of strategic climate litigation efforts in 2023 signals a maturing of the global climate justice movement. With cases spreading to new jurisdictions and expanding into novel legal areas, climate litigation is increasingly becoming a powerful tool for shaping public policy and corporate governance. Moreover, the involvement of international courts and tribunals will likely influence the trajectory of future cases, providing a robust legal framework for addressing transboundary climate issues.

As governments, corporations, and civil society navigate the complexities of the global climate crisis, the role of the judiciary in adjudicating climate-related disputes will only become more prominent. The continuing rise of corporate accountability cases, particularly those targeting climate-washing, polluter pays, and corporate governance, underscores the need for robust legal frameworks that align corporate behavior with global climate objectives.

Meanwhile, the emergence of non-aligned climate cases demonstrates the inherent tensions in implementing climate policies that are both ambitious and equitable. The challenge for policymakers and the judiciary will be to ensure that climate action is pursued in a way that balances environmental protection with social justice and economic resilience.

In sum, the year 2023 has underscored the increasing significance of climate litigation as a force for advancing climate action on a global scale. As this dynamic area of law continues to evolve, it will play a crucial role in shaping the future of climate governance and accountability.