Litigation to stop climate change
Globally, rightsholders, their legal representatives, and CSOs are making creative use of climate litigation to push for human rights and environmental protections vis-a-vis corporate duties to respect and remedy violations.
Litigation funding
Litigation finance is when a third party, such as a hedge fund, invests in a lawsuit in return for a percentage of the lawsuit’s proceeds. “It’s a relatively new, multibillion-dollar industry where investors fund lawsuits. Here’s the idea: say someone was wronged by a big corporation but has no money to sue it. A litigation funder will pay for their court battle. In essence: they’re betting on the lawsuit the way traders bet on stocks. If it’s successful – they make money, sometimes a lot of money; if it fails – the funders get nothing – their investment is lost.”
The question for advocates of the just transition is whether litigation funding provides an opportunity to sue at scale for climate crisis issues and harms that otherwise would be out of reach to most of us.
The following are just a few examples of climate litigation aimed at advocating for human rights and environmental protections, particularly regarding corporate responsibilities to respect human rights and remedy violations:
Conectas climate suit against the BNDES
According to Conectas, “[The] first climate lawsuit against a national development bank in the world was recently filed by Conectas against the BNDES, demanding that the [State development] bank assess the impacts of its investments on the worsening climate crisis. Conectas filed in the Federal Courts of Brasília (Federal District) a lawsuit in which it calls on BNDESPar – the subsidiary of the BNDES (Brazilian Development Bank) responsible for managing the shareholder interests in companies held by the bank – to publish a plan to reduce greenhouse gas emissions that will guide its investments according to the targets of the Paris Agreement and the PNMC (National Policy on Climate Change). This is the first lawsuit of its kind against a development bank anywhere in the world. Although BNDESPar follows an Environmental and Social Policy for Operating in Capital Markets, which bans support for companies with a track record of environmental crimes and modern-day slavery, this policy does not include climate criteria. The company also does not report the carbon emissions associated with its investment portfolio.”
Portuguese suit in European Court of Human Rights
The largest-ever climate case considered by theEuropean Court of Human Rights(ECHR) was filed in September 2020 and is directed against all 27 EU member states as well as the UK, Switzerland, Norway, Russia, and Turkey. The plaintiffs are six young people from Portugal, which was devastated by heat waves and wildfires, who claim that government inaction on climate change violates their human rights. In order to compel the defendants to take action, the Portuguese plaintiffs requested a legally-binding ruling through the assistance of UK-basedGlobal Legal Action Network(GLAN). Although the ECHR dismissed the case in April 2024,in a landmark ruling it asserted that the Swiss government had violated the human rights of its citizens by not doing enough to stop climate change,which could encourage activists seeking to hold their governments accountable and influence decisions on similar cases in national courts.
A similar case in Montana, United States, was decided in August 2014 when a state judge ruled that the state’s policies that prohibit the consideration of climate change effects when reviewing coal mining, natural gas extraction, and other fossil fuel projects violate the young plaintiffs’ rights.
Peruvian suit against RWE in Germany
“In 2015, a Peruvian farmer filed a letter of complaint against RWE, a Germany energy company, in a German court, alleging his home land is threatened by climate change caused by RWE. The plaintiff asks RWE to pay repair costs for his home, relative to the percentage RWE has contributed to global warming. RWE maintains [that] a single company cannot be held responsible for the consequences of climate change. (…) In May 2022, judges and experts appointed by the court visited the Palcacocha Lake area in Peru to assess the risk and level of damage represented by the melting of the glaciers for the city of Huaraz. The case is ongoing.”