Where we are with climate litigation: a 2024 snapshot

Like average global temperatures, the number of climate change litigation cases are rising. 2023 was the hottest year ever recorded, with 2024 set to surpass the record. It is yet to be seen if climate change litigation will follow a similar trajectory, but a 2023 report commissioned by the LSE shows that the cumulative number of climate change cases have doubled since the Paris Agreement was signed in 2015, to over 2,300 cases. The increase in public pressure on governments and corporations internationally is driving this trend as the impacts of climate change can no longer be ignored.

At present, the majority of cases have been brought in the “Global North” whereas the areas facing the greatest impacts of climate change are the “Global South” and vulnerable communities face the brunt of the impact. In the UK in particular, the Courts have proved themselves to be clear on the science of climate change and the risks posed by it. However, so far, cases have not been easy wins for the claimants (if at all), though many climate campaigners do not see a loss in the courts as a complete failure: the accumulation of the pressure on climate action including on government, and increased media attention and public knowledge resulting in ‘indirect’ actions are often the main objectives and considered strategically important.

Identifying and categorising climate litigation can be difficult. In Climate Change Litigation (2020), J Peel and HM Osofsky, both respected academics from the University of Melbourne, proposed a four tier-system to distinguish between types of climate litigation, based on how central climate change is to the core issue of relevant disputes. The categories range from those disputes in which climate change is the central issue, through those in which it is either a peripheral issue or a motivation in bringing the dispute, to those in which there is no specific climate change framing, but where the outcome may have an impact on climate mitigation or adaptation.

In this article, we focus on cases where climate change is either a peripheral or central issue to the core of the dispute.

1. UK litigation

In the UK, climate change litigation at present falls into three key tranches:

1. Cases against government;
2. Cases against corporations; and
3. “Responsive” cases (in which challenges to positive action relating to climate change are brought).

Cases against government: public law cases

At present, most climate change cases in the UK are challenges to government and public bodies (both local and central). Following the Paris Agreement, the UK government made a number of policy changes to implement successful adherence to the Agreement. This included the target reduction of emissions being amended to 100% by 2050 (under an amendment to the Climate Change Act 2008) and the creation of an independent, advisory body to the government: the Climate Change Committee (“CCC”).

Consequently, the UK was regarded as a world-leader in climate policy: however, ambitious targets come coupled with high standards. In the UK, central and local governments have been pressed on decisions which claimants allege to be inconsistent with climate commitments. A few relevant cases include:

• Friends of the Earth v United Kingdom Export Finance [2023]: Friends of the Earth sought Judicial Review over the decision of the UK government to finance a natural gas project in Mozambique, which the NGO considered was not consistent with the Paris Agreement, even though the project was not on UK soil. In this case, the District Court Judges were split and so the case was referred to the Court of Appeal, where it was dismissed. The Supreme Court refused permission for a further appeal. Despite the loss, Friends of the Earth were pleased that the UK government ultimately introduced a new policy to stop investing in international fossil fuel projects with public funds.
• R (Finch) v Surrey County Council [2022]: this case was brought against Surrey County Council following its decision to permit the expansion of an onshore oil well. The case hinges on the alleged “failure” of the council to assess the environmental impact of the downstream greenhouse gas emissions from the oil extracted from the site, rather than just the greenhouse gas emissions from the site’s “construction, production, decommissioning and subsequent restoration”, as part of the Environmental Impact Assessment which is a major component of the planning application. We await the outcome of the Supreme Court hearing, following the unsuccessful claim before the High Court and Court of Appeal. The decision will have wide ranging impact if the downstream emissions are found to be necessary to include in Environmental Impact Assessments.
• R (on the application of ClientEarth) v Financial Conduct Authority [2023]: environmental law charity ClientEarth was unsuccessful in its request for Judicial Review of the UK’s financial services regulator, the Financial Conduct Authority (“FCA“), in response to the recent IPO of Ithaca Energy Plc (“Ithaca“), an oil and gas producer with interests in the North Sea. The application was initially refused on the papers, but ClientEarth exercised their right to an oral hearing where the application was again refused. The Judge decided the case was unarguable on all grounds, ruling that the FCA had acted in accordance with its obligations (by accepting Ithaca’s IPO), which did not amount to part of the UK’s environmental legislation, and confirming that it is not the FCA’s purpose to protect or otherwise regulate the environment.
• R (Friends of the Earth Ltd) v Secretary of State for Energy Security and Net Zero (“SSESNZ”); ClientEarth v SSESNZ; Good Law Project v SSESNZ [2024]: the case concerned a tri-partite challenge by Friends of the Earth, Good Law Project and ClientEarth to the government’s Carbon Budget Delivery Plan (“CBDP”). The CBDP sets out the economy-wide package of proposals and policies which the Government believes will meet the delivery of future Carbon Budgets. The CCC found that the plans would cut less than a fifth of emissions necessary to reduce emissions to the required levels by 2033 (at the beginning of the sixth Carbon Budget). The Claimants argued that the CBDP breached the Climate Change Act 2008, as it was based on a number of assumptions that were irrational, most notably in assuming that all the listed proposals and policies in the CBDP would be delivered in full. On 3 May 2024, the High Court found in favour of the Claimants on 4 of the 5 grounds pursued, concluding that the Secretary of State did not have the information necessary to find that the proposed policies would be delivered as stated in full.
• Cases against airport expansion have so far ruled in favour of the airports. In the notable case of R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd [2020] UKSC 52, the Supreme Court ruled that Heathrow could apply for planning permission for its third runway and considered that the expansion of Heathrow Airport was not unlawful on climate change grounds. The trend in claims against airport expansion continued nonetheless: in Bristol Airport Action Network Co-ordinating Committee v Secretary of State for Levelling Up, Housing and Communities [2023], the High Court dismissed a challenge brought by local campaigners against the expansion of Bristol Airport by 20%. The claimant group lost on all six grounds it argued, four relating to carbon dioxide emissions from the additional aircrafts, one relating to other emissions and the last to local habitat. The case hinged on the carbon trading scheme introduced under the Climate Change Act 2008, and whether including carbon emissions within planning considerations would be deemed to be “double counting”. A similar case was brought in relation to Manston Airport redevelopment and was also dismissed in the first instance. An appeal, pursued solely on non-environmental grounds, was dismissed by the Court of Appeal in May 2024 (R (Dawes) v Secretary of State for Transport [2024]).

It should be noted that many (if not all) of these cases include non-binding judicial commentary noting the significance of climate change. The UK judiciary’s approach to climate change is arguably ahead of many other jurisdictions.

Cases against corporations: activist company law claims

There is a growing trend in bringing high-profile litigation against corporates for their climate-related actions. Climate physics has expanded the ability of potential claimants to attribute climate change-caused damages to those who emit the greenhouse gas emissions. For high-emitting sectors (such as the oil and gas industry), litigation may arise at multiple points in the life of a project, from an initial board decision to initiate a project through the approach to implementation and the implementation process itself. Any step or decision taken may come in for scrutiny, complaint and, ultimately, dispute.

Many cases have been brought by “activist” shareholders: a trend where company shares are purchased by those who wish to see change in a business. For example, in ClientEarth v Shell and others [2023] EWHC 218 (Ch), ClientEarth, which held 27 shares in Shell plc at the time of claim, sought to bring a derivative claim under the Companies Act 2006. ClientEarth argued that Shell’s directors had breached their statutory and other “incidental” duties in taking certain decisions which, ClientEarth argued, were not in the long-term interests of Shell to be Net Zero by 2050. A derivative claim is one which allows shareholders to bring claims on behalf of a company itself, where the shareholders believe that those controlling the business are not acting in its best interests. The High Court dismissed ClientEarth’s claim, rejecting the existence of extra “incidental” duties on Shell’s directors and stating that ClientEarth did not have a prima facie case to bring the claim (meaning that the Court was not satisfied there was enough evidence to continue the proceedings). The lack of evidence meant that there was no basis on which the directors could reasonably have concluded that the actions they had taken had not been in the interests of Shell. The Court of Appeal later upheld the decision of the High Court.

In a further case on derivative action, McGaughey and Davies v Universities Superannuation Scheme Ltd and Directors [2023] EWCA Civ 873, members of the University Superannuation Scheme – one of the largest pensions schemes in the UK, worth around £90 billion – sought to hold the directors of the corporate trustee to account on the basis that their investments in fossil fuels were at odds with their commitment to be Net Zero by 2050. The claim failed at first instance: “as there was no prima facie case of loss in relation to this claim it falls at the first hurdle” and the claimants appealed. The appeal also failed, with the Court of Appeal holding that “the derivative procedural mechanism is not intended to enable the would be claimants to avoid other procedural hurdles”.

“Responsive” cases

Despite the evidence on climate change and the progressive outlook of the UK judiciary, many remain sceptical and the Court has seen numerous disputes arising in response to climate action. Groups such as Extinction Rebellion, Just Stop Oil and Insulate Britain have been the subject of significant media attention due to their unconventional protesting strategies, but are not above the law. Multiple claims have been brought against climate protestors to reduce disruption caused by their protests.

There have been a series of “Persons Unknown” cases, including:

• National Highways Ltd v Persons Unknown and others [2023] EWCA Civ 182: the Court of Appeal overturned a High Court Judge’s decision to refuse summary judgment in claims for final injunctions where the defendants had failed to engage in the litigation. National Highways brought their claim against unnamed individuals following a spate of protests by Insulate Britain protesters (who want to see Britain’s social housing properly insulated by 2025) with aims to restrict flow of traffic on and around the M25. National Highways sought summary judgment and final injunctions on the basis of trespass and nuisance. In April 2024, the injunction (which was originally in place for 12 months) was for a second time renewed for a further year, aimed at preventing climate protestors from stopping traffic on the M25. National Highways currently enjoy the right to review the injunction on the papers alone to prevent further legal fees being incurred by the publicly funded body.
• Transport for London v Persons Unknown and others [2023] EWHC 1038 (KB): in a further case against the Insulate Britain group, Transport for London brought a claim, this time under the Highways Act 1980, to protect the rights of the public to the “use and enjoyment” of the highways. Transport for London was successful, and Morris J found the defendants’ acts had constituted trespass and both private and public nuisance.
• Shell UK Ltd v Persons Unknown [2023] EWHC 1229 (KB): Shell’s UK entity brought this case against “Persons Unknown” seeking to restrict protesting at their petrol stations. They were successful and subsequently an Order was produced, restricting anyone “in connection with protest campaigns” from “disrupting the sale or supply of fuel” at Shell petrol stations in England and Wales.

Following a string of criminal damage cases in which climate protesters were acquitted of criminal damage by juries, having cited their political and philosophical views as reason for their actions under the “lawful excuse” defence, the position under UK law has been clarified. In a ruling on 18 March 2024, the Court of Appeal stated that the political or philosophical beliefs of climate protestors can no longer be raised as a “lawful excuse” defence to criminal damage. The Court of Appeal found there is unlikely to be a direct link between climate change and the criminal damage resulting from a protest. Specifically, it was noted that the “lawful excuse” defence was not drafted with the intention to give protestors a defence based on the “merits, urgency or importance of their cause (nor the perceived need to draw attention to a cause or situation)”.

2. International litigation

International climate litigation follows a similar pattern to that in the UK, with both governments and private entities being held accountable for their roles in the climate crisis. In addition, as in the UK, climate protestors and activists also face court action for their activity.

The Netherlands is considered a leader in the race to litigate. Three significant examples include:

• Urgenda Foundation v State of the Netherlands: the first instance court concluded that the State has a duty to take climate change mitigation measures due to the “severity of the consequences of climate change and the great risk of climate change occurring.” In December 2019, the Supreme Court of the Netherlands upheld the decision under Articles 2 and 8 of the ECHR. This was a significant decision as the Court found that the State was failing to prevent foreseeable harm from climate change and that the State had a legal obligation to protect its citizens from the dangers of climate change.
• Greenpeace v Dutch Government re KLM airlines: Against the background of the Dutch government’s financial bailout of KLM airlines in the aftermath of the pandemic, Greenpeace cited the European Convention on Human Rights and the Paris Agreement, to establish that the Dutch government has a duty of care to prevent the high risk of dangerous climate change. The court concluded that the State does not have a legally enforceable obligation to attach climate conditions to a bailout package.
• Friends of the Earth v Royal Dutch Shell: the plaintiffs sought a ruling from the Court that Shell must reduce its CO₂ emissions by 45% by 2030 compared to 2010 levels and to zero by 2050, in line with the Paris Agreement. The case is an attempt to extend the Urgenda duty to a private company. Friends of the Earth were successful: “the court acknowledges that RDS cannot solve this global problem on its own. However, this does not absolve RDS of its individual partial responsibility to do its part regarding the emissions of the Shell group, which it can control and influence.”. The case is now under appeal.

Examples of other international cases of note:

• Verein KlimaSeniorinnen Schweiz and others v Switzerland (ECtHR): in a landmark ruling in April 2024, the European Court of Human Rights ruled in a majority of 16 votes to one that the rights of an association of older Swiss women under Articles 6 and 8 of the European Convention on Human Rights (the “Convention”) had been violated. The case stems from the association of over 2,000 older women who are concerned about the impact of climate change on their health, noting an increased mortality rate during heat waves. The Court found that the Swiss Federation had failed to comply with its positive obligations under the Convention regarding climate change.
• Luciano Lliuya v RWE AG: this is an ongoing case brought by a Peruvian farmer who claims that the energy corporate RWE contributed to climate change by emitting substantial volumes of GHGs and therefore bears some responsibility for the melting glacier near his town of Huaraz, which created a lake which interferes with his farmland. The claim was dismissed in the first instance but is with the appeal court, the Higher Regional Court of Hamm, where a decision is expected soon following a site visit by an expert during the coronavirus pandemic. The case has been ongoing for more than 9 years.
• Exxon Mobil Corp. v Arjuna Capital, LLC: Exxon filed an action in Texas Federal Court seeking a declaratory judgment that they may exclude a shareholder proposal regarding climate change from its proxy statement. After the complaint was filed, the shareholders withdrew their proposal but in a status report, Exxon confirmed it would continue its lawsuit to prevent future claims. The proposal would otherwise have gone to a vote in Exxon’s shareholder meeting in May 2024.

3. Wider climate-related issues

Climate change will – and does already – have an impact on the wider legal industry. We have focused this article on disputes in which climate change is either a core or peripheral issue. In many more cases, climate change will not be a key issue but may nevertheless have some bearing on the decision, or the wider impact of decision-making in light of that decision.

Day-to-day contractual drafting (and ultimately, any related disputes) is already influenced by climate change, take for example the growth of the Chancery Lane Project in the UK, however this type of climate change legal work remains outside of the press spotlight. There is enormous potential for a wide range of business-to-business disputes arising from the challenges of adapting and responding to climate change.

Further, the impact of climate change has had a knock-on effect in supply chain management and consequent disputes, often caused by unpredictable weather events which can disrupt the production of goods and their subsequent transport.

Greenwashing is also an expanding area of contention, see for example our recent post on the Competition and Markets Authority’s investigation and outcome relating to the sustainable fashion claims of ASOS, Boohoo and George at Asda.

Commentary

The overarching theme of climate litigation is a desire to hold those responsible for adhering to targets accountable, and to ensure that those targets, and the tools for achieving them, are appropriate as society moves towards a decarbonised and sustainable future. As with all things, however, there is a delicate balance to be struck between the ongoing need for change (for example in relation to energy transition) and maintaining broad expectations around our way of life (such as international travel and supply chains and the consequent impact on airport expansion). Where the balance finally settles will ultimately lie with the Courts, and our view is that the cases considered in this article are only the “start of the beginning”. Climate litigation will be an increasing presence in both UK and international Courts for many years to come.

This article was written by Suzanne Padmore, Rachael Waring and Sasha Anisman.