(Bloomberg) -- In the fight against climate change, there's a tool that's increasingly popular: litigation. Around the world, activists have turned to the courts. They want to force oil companies and governments to pay for past harms and to avert future threats, and they're using the law to assign blame for damage. Opponents say climate policy is not a matter for judges but for national governments and international agreements, such as those on methane and deforestation unveiled at the United Nations COP26 climate summit in November.
1. Who are the targets?
In the U.S. it's mostly the big oil companies, but also electricity producers and American state and federal agencies. Elected leaders are the targets in much of the rest of the world, including India and South Africa. In Europe, local and national authorities have been sued because their clean-air plans fail to meet European Union requirements. These include emissions caps that aim to limit the harm to the environment from older, less efficient diesel cars. Some climate activists argue that courts are uniquely suited to impose controls where legislatures and government agencies have failed.
2. What are the high-profile cases?
In April 2021, Germany's top court ruled that the nation's climate-protection efforts were falling short, saying they were putting future generations at risk by delaying the bulk of planned cuts in greenhouse gas emissions until after 2030. National leaders have until the end of 2022 to specify how they plan to limit global warming in subsequent years. In another landmark ruling, the highest Dutch court ordered authorities in December 2019 to cut greenhouse gas emissions by at least 25% by the end of 2020 from benchmark 1990 levels, noting that global warming could jeopardize food supplies and cause the sea level to rise. Campaigners have also won major cases against the U.K., Colombia and South Africa.
3. Are companies vulnerable?
Yes. In May 2021, Royal Dutch Shell Plc, which plans to change its name to Shell Plc, was ordered by a Dutch court to slash emissions harder and faster than planned. Shell, which said it would appeal the decision, had already pledged to reduce its emissions of gases such as carbon dioxide and methane by an overall 20% within a decade, and to net-zero before 2050, meaning the amount of greenhouse gases emitted into the atmosphere would not exceed the quantity removed. That wasn't enough, according to the court. In October, the company announced more ambitious targets. Rulings can also go the other way. In April 2021, the U.S. Court of Appeals in New York found in favor of Exxon Mobil, Chevron, BP, Shell and ConocoPhillips, absolving them of financial responsibility for harm caused by global warming.
4. What case do plaintiffs make?
Activists say climate change has threatened basic rights to shelter, health, food, water and even life. Arguments range from Colombian children's claims that the deforestation of the Amazon deprives them of a healthy environment, to the assertion of hundreds of Swiss women that their country has not done enough to protect them from rising global temperatures. Other cases focus on the financial cost of environmental damage.
5. How are governments responding?
Some argue that judges should not be setting policies. They are focused on joining with other nations in agreements like those reached at the COP26 summit. And they argue that the economic benefits from activities that generate pollution outweigh environmental concerns. That was the case South Africa made when it was challenged in 2017 for building a coal-fired power station, since 16% of its population still has no access to electricity.
6. What about energy companies?
They point to economic benefits created by their products and say that individuals and industries contributed to climate change by using fossil fuels. They deny seeking to mislead consumers and accuse plaintiffs' lawyers of demonizing them. Large oil companies have taken steps to address concerns from investors and consumers about their environmental impact, but they're under pressure to do more.
7. What's the big goal for activists?
They're seeking their tobacco moment. Anti-smoking activists and families of cancer-stricken smokers lost claims against Big Tobacco for decades in the U.S. before the 1990s, when the public-health cost became an issue. A group of state attorneys general teamed up with top private lawyers to win settlements totaling $246 billion and permanent changes in the sale and marketing of cigarettes. After the ruling there was a significant decline in the prevalence of smoking in the country.
The Reference Shelf
- Bloomberg articles on the Dutch court ruling against Shell and the German constitutional court ruling on climate-protection efforts.
- Bloomberg coverage of suits can be found at Green Insight.
- The National Association of Manufacturers has an Accountability Project tracking environmental suits against U.S. industries.
- A Bloomberg story on the EU reaching a climate deal on binding goals.
- A Bloomberg graphic tracks lawsuits.
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