This article was co-written by trainee solicitor Chloe Pearson.
The first half of 2024 has seen a variety of climate change rulings across different jurisdictions around the world. This article reflects on the state of play and considers the trajectory of climate change litigation as we move into the second half of 2024 and beyond.
Tried and tested judicial review approach cemented
Well-funded campaigning bodies are making real progress using existing legal remedies against governmental bodies in the UK. In May 2024, ClientEarth, Friends of the Earth and Good Law Project successfully brought a judicial review against the UK government in relation to the UK'S Carbon Budget Delivery Plan (CBDP), following an earlier successful ruling on the government's related Climate Action Plan in 2023. In this later case, Friends of the Earth & Ors v Secretary of State for Energy Security and Net Zero, the English High Court agreed with the claimants that the government's CBDP was unlawful and breached provisions of the Climate Change Act 2008. The policies and proposals in the CBDP were based on unsupported assumptions and the government did not have sufficient information to determine whether the policies and proposals could be delivered in full.
This case is the latest in a series of judicial reviews brought by climate activist groups in the UK. Whilst not all have been successful, it is illustrative of the fact that judicial review has become an established way for parties to hold governments and public bodies to account in relation to climate change. We expect to see more of these types of challenges in the future.
Expansion into human rights causes of action
The first half of 2024 has also seen groups bring novel claims in the European Court of Human Rights ("ECHR") with some success. In April 2024, three linked cases were heard together: KlimaSeniorinnen Schweiz and Others v Switzerland, Carême v France (Carême), and Duarte Agostinho and Others v Portugal and 32 Others (Duarte Agostinho). The claimant in KlimaSeniorinnen, an association of over 2,000 elderly women in Switzerland, successfully argued that Switzerland's failure to adopt a domestic regulatory framework to quantify the country's greenhouse gas emissions and to meet its own emissions targets breached Article 8, the right to private and family life. Article 6(1), the right to a fair trial, had also been breached as the Swiss courts had failed to hear legal challenges in respect of Switzerland's inaction. This is the first time that a state's failure to protect individuals' human rights within the realm of climate change had been successfully challenged and represents a real development in the climate change litigation sphere. It is likely to act as impetus for other human rights claims.
It should be noted however that there remain limits as to how far the human rights regime can be used to further climate change claims at this stage as the two other cases, Carême and Duarte Agostinho, failed. The ECHR ruled that the claim in Carême was inadmissible as the claimant had ceased to live in the relevant area. Duarte Agostinho failed because the claimants had not exhausted their national rights with the ECHR also ruling that the claimants were only entitled to bring claims against Portugal, as the claimants' home country, but not against the other states. Prospective future claimants will therefore need to carefully consider how they focus their human rights claims to avoid falling foul of limitations like these.
Testing the boundaries in tort
Novel arguments based on tort are also being put forward by activists though it is too early to tell at this stage whether they will succeed. In the New Zealand case of Smith v Fonterra, Mr Smith successfully appealed against a strike out order made in his claim against seven New Zealand companies which alleges (i) public nuisance, (ii) negligence and (iii) a novel duty to "make corporates responsible to the public for their emissions". Mr Smith's underlying claim argues that the defendant companies are responsible for emitting or supplying products which release greenhouse gases and that as a result, they have damaged and are damaging places of significance to him and his community. He seeks a declaration that the defendants have acted unlawfully and an injunction requiring the defendants to i) reach net zero by 2050 or ii) immediately cease contributing/emitting to greenhouse gas emissions. Although the strike-out hearing did not consider the underlying claim, the case is an interesting example of how activists continue to put forward ambitious claims, testing which areas of the law can be utilised for climate change litigation and whether climate-related duties can be established against corporate bodies. If Mr Smith is successful on his underlying claim, this will be another significant development in climate change litigation as it will expand possible causes of action and broaden the accountability of corporations in relation to their climate impact. We await the outcome of this case with interest.
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To discuss issues raised in this article in more detail, please reach out to a member of our Disputes & Investigation team.
