CLIMATE LITIGATION – THE GRANTHAM RESEARCH INSTITUTE ON CLIMATE CHANGE AND THE ENVIRONMENT PUBLISHES ITS 2024 GLOBAL TRENDS IN CLIMATE LITIGATION REPORT

According to the Grantham Institute’s 2024 Global Trends in Climate Change Litigation Policy Report (the “Report“) – which was published on 27 June 2024 – climate-related litigation against private sector actors continues to be on the rise. The Report highlights that over 230 climate-related lawsuits have been initiated against corporations and trade associations since 2015, with over two thirds of those lawsuits filed since 2020. The Report also highlights that the growth rate of climate-related cases is showing signs of stabilisation, at over 200 new climate-related cases per year. The risk of private sector actors facing climate-related lawsuits is not, therefore, showing any signs of diminishing.

Trends in climate-related litigation against private sector actors

According to the Report, in 2023, around 70% of all climate-related cases involved government actors among the defendants, whilst only 25% involved private sector actors. Nonetheless, the Report highlights that over 153 cases have been brought against private sector actors since 2020. Although such cases have traditionally focussed on the fossil fuel sector, the Report shows that cases are increasingly being launched across other sectors, such as airlines, the food & beverage industry, e-commerce and financial services.

The Report groups the claims filed against private sector actors into the following key categories:

• ‘Integrating climate considerations’ cases: cases seeking to integrate climate-related considerations into decisions on a given project or sectoral policy. 97 of these cases were filed in 2023, most of which concerned the licensing or development of new fossil fuel production and fossil fuel electricity generation;
• ‘Polluter pays’ cases: cases seeking damages from defendants based on alleged contributions to harmful climate change impacts. Five of these cases were filed in 2023, most of which were filed by subnational governments in the US against carbon majors;
• ‘Corporate framework’ cases: cases seeking to disincentivise companies from continuing with high-emitting activities by requiring changes to group-level policies and corporate governance. Three of these cases were filed in 2023, which were all directly linked to the Paris Agreement goal of limiting warming to 1.5 °C or to the concept of net zero;
• ‘Failure to adopt’ cases: cases challenging companies for failing to address climate risks. Eight of these cases were filed in 2023;
• ‘Transition risk’ cases: cases concerning the mismanagement of low-carbon transition risk by directors, officers and other company personnel. One of these cases was filed in 2023 by an energy company against its former directors who had supported the company’s previous investments in fossil fuel-based assets;
• ‘Climate-washing’ cases: cases challenging corporate narratives regarding contributions to the transition to a low carbon future. 47 of these cases were filed in 2023, bringing the recorded total to more than 140, which mainly centred on allegedly misleading claims regarding the climate neutrality of products and services. These cases have been largely successfull, with over 70% of completed cases decided in favour of the claimants; and
• ‘Turning off the taps’ cases: cases challenging the flow of finance to projects and activities that are not aligned with positive climate action. 6 of these cases were filed in 2023.

However, not all climate-related action has been aligned with climate goals. Nearly 50 of the 230 climate-related lawsuits filed in 2023 were filed by claimants that appear to be intentionally seeking to obstruct climate action. Such cases include:

• ESG backlash cases: cases challenging the incorporation of climate risk into financial decision making. In the US, significant cases were filed in 2023 alleging breaches of fiduciary duty and allegations concerning deceptive practices; and
• Strategic litigation against public participation (“SLAPP”) suits: SLAPP suits against NGOs and shareholder activists that seek to deter them from pursuing climate agendas.

More general trends in climate-related litigation

The Report also notes, among other things, that:

• Climate-related cases are spreading to more countries:  the US remains the country with the highest number of documented climate cases (1,745 in total, with 129 filed in 2023). The UK (139 in total, with 24 filed in 2023), Brazil (82 in total, with 10 filed in 2023) and Germany (60 in total, with 7 filed in 2023) follow. Climate-related cases have also been filed for the first time in Panama and Portugal, whilst older cases have been identified in Hungary and Namibia, demonstrating the increasingly global nature of climate-related lawsuits;
• Cases are increasingly being filed before international and regional courts and tribunals: 5% of all climate-related cases have been filed before international and regional courts and tribunals, such as the Court of Justice of the EU and the European Court of Human Rights. Around 45% of these cases have been filed before international human rights courts, bodies and tribunals, which reflects the growing trend in the use of human rights arguments in climate-related cases. These cases have significant potential to influence future domestic proceedings; and
• Claimants are predominately NGOs and individuals: in 2023, claimants in over 70% of all cases included either individuals, NGOs or both, reflecting the increasing deffort by civil society actors to use the courts to take action to combat climate change (for further detail on the motives of such claimants, please read our earlier blog posts in relation to the Grantham Institute’s 2021, 2022 and 2023 reports here, here and here).

Future trends

The Report anticipates the following future trends in climate-related litigation:

• Post-disaster cases: disputes over recovery efforts following climate disasters;
• Ecocide and criminal law: disputes over environmental crimes; and
• Environmental and climate litigation synergies: the adoption of climate-related litigation strategies to broader environmental cases, such as plastic pollution.

However, the future risk of facing climate-related litigation is by no means limited to these issues, and so all private sector actors need to be aware of the heightened litigation risk illustrated by the Report.