Will Judges Have the Last Word on Climate Change?: QuickTake

In the fight against climate change, one tool is proving increasingly popular: litigation. From the U.S. to Europe and India, activists, governments and concerned citizens have turned to the courts. Supporters want them to force oil companies and governments to pay for past harms and avert future threats. Opponents say climate change policy is a matter for national governments and international treaties, not a handful of judges.

1. Why turn to the courts?

Activists and environmentally minded lawyers are seeking new ways to use the law to slow global warming and assign responsibility for the resulting economic damages. They were given urgency by former President Donald Trump’s decision to remove the U.S. from the 2015 Paris climate agreement, a move that has now been reversed by his successor Joe Biden. Some believe courts are uniquely suited to impose controls where legislatures and government agencies have failed.

2. Who are the defendants?

In the U.S., it’s mostly the big oil companies, but energy producers and state and federal agencies have also been sued. Governments are the targets in much of the rest of the world, including Pakistan, India and Uganda. In Europe, local and national governments have been sued because their clean-air plans fail to meet minimum European Union requirements. These include emissions caps that target older, less efficient diesel cars that are more harmful to the environment. In April Germany’s top court ruled that Chancellor Angela Merkel’s climate-protection efforts were falling short, saying the government was putting future generations at risk by delaying the bulk of planned cuts in greenhouse-gas emissions to after 2030. It now has until the end of 2022 to specify how it plans to limit global warming in subsequent years.

3. Are international companies vulnerable?

Yes. In May Royal Dutch Shell Plc was ordered by a Dutch court to slash its emissions harder and faster than planned, a ruling that could have far-reaching consequences for the rest of the global fossil fuel industry. Shell, which said it expects to appeal the ruling, has pledged to reduce its greenhouse gas emissions by 20% within a decade, and to net-zero before 2050. That’s not enough, according to the court in The Hague, which ordered the oil producer to slash emissions 45% by 2030 compared with 2019 levels. The court said the ruling applies to the entire Shell group, raising the prospect of the company having to radically speed up its current climate and divestment policies in order to hit the new target. It’s unlikely Shell will be the only company to fall foul of the courts as the Dutch decision will likely trigger similar cases around Europe, if not the world.

4. What’s the argument?

Some claim the oil and gas industry created a “public nuisance” — an illegal threat to community welfare. Others target their products as unreasonably dangerous to the planet’s health. In the U.S., state officials have claimed that the oil corporations knew about the dangers of climate change for decades and schemed to hide the information. Many cases are based on the claim that the health of the environment is a public trust, held by the government for the benefit of future generations.

5. So it’s about human rights?

Yes, human-rights arguments are a small but growing approach. Plaintiffs make the case that climate change has threatened or taken away the 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 elderly Swiss women that their country has not done enough to protect them from rising global temperatures.

6. How have governments responded?

Some argue that judges should not be setting government policies. And they often say that the social and economic benefits from pollution sources outweigh the environmental concerns. That was the case South Africa made when it was challenged for building a coal-fired power station, since 16% of the population still has no access to electricity. The highest court in the Netherlands ordered the government to cut greenhouse gas emissions by at least 25% from benchmark 1990 levels. It’s still not clear whether the order is being followed.

7. What about energy companies?

They point to the vast economic benefits created by their products. And they say that individuals, industries and governments willingly contributed to climate change through their use of fossil fuels. They deny seeking to mislead consumers about global warming and accuse plaintiffs’ lawyers of demonizing them in search of a bonanza. Oil majors have taken steps to address concerns from investors and consumers about their environmental impact, but they’re under pressure to do more.

8. How have the cases fared?

Campaigners have won major cases against the U.K., Netherlands, Colombia and South Africa. And pending suits have changed behaviors. Germans, for example, avoided buying diesel cars since more of them might be banned from cities that fail to meet standards for particulate matter and nitrogen oxides. Stuttgart prohibited older diesel vehicles in its town center, following Hamburg, the first municipality to impose a partial ban.

9. Why do activists keep trying?

They’re seeking their tobacco moment. Anti-smoking activists and the families of cancer-stricken smokers lost claims against Big Tobacco for decades in the U.S. before the 1990s. A group of state attorneys general turned the tide by teaming up with top private lawyers to take on the industry in state courts. The victory resulted in settlements totaling $246 billion and permanent changes in the sale and marketing of cigarettes. It’s a model that climate change activists would love to duplicate.

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 Climate Changed.
  • 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.
  • A Bloomberg QuickTake on climate change.

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