Litigation is increasingly being used as a means of advancing – or delaying – effective climate action.
As discussed in our recent legal update on the Grantham Research Institute on Climate Change and the Environment’s 2021 Global Trends in Climate Change Litigation Policy Report (the “2021 Report“), between 2015 and 2021, there was a marked increase in the number of such climate-related cases being brought against private sector actors. This reflects the growing recognition by prospective litigants of litigation as an effective means of influencing the actions private sector actors are taking to address climate change.
Most recently, the London School of Economics’ Grantham Research Institute on Climate Change and the Environment’s 2022 Global Trends in Climate Change Litigation Policy Report (the “2022 Report“) confirms that litigation against private sector actors continues to expand as an avenue for climate action. We discuss the trends identified in the 2022 Report in this blog post.
The trends identified in the 2022 Report
The 2022 Report identifies 161 climate-related cases as being filed between May 2021 and May 2022, of which 30 were filed against private sector actors. As was the case with the findings of the 2021 Report, the ‘energy sector’ was targeted the most frequently: the 2022 Report identifies companies involved in the extraction, refining and sale of fossil fuels as the target of 12 of these filings. An interesting characteristic of the more recent filings relates to jurisdiction: whereas the cases identified in the 2021 Report were almost exclusively brought in the US, the 2022 Report notes that cases are now ‘more significantly’ being brought outside of the US.
The ‘plastics’ sector was the second most targeted, with four cases being brought against companies operating in this sector. Companies in the ‘food and agriculture’, ‘finance’ and ‘transport’ sectors were also common targets, with three cases being brought against companies in each of these sectors. For a discussion of some of the main reasons behind the increase in climate-related litigation against private sector actors, please read our recent legal update here.
In addition to trends regarding the private sector actors that are being targeted by litigants, the 2022 Report also sheds light on trends pertaining to the strategies of litigants, which can be both climate-aligned and non-climate-aligned. The climate-aligned strategies identified in the 2022 Report include challenging corporate frameworks, climate-washing and public financing, whilst the non-climate-aligned strategies identified often relate to stranded assets (i.e. seeking compensation from governments as a result of the introduction of climate policies) and challenging regulatory powers and mandates. Interestingly, the 2022 Report states that non-climate-aligned strategies are becoming increasingly prevalent.
The 2022 Report identifies five ‘case areas to watch’ in the coming year, in which significant activity is expected; namely cases that:
- Involve personal responsibility;
- Challenge commitments that rely heavily on greenhouse gas emission removals or negative emissions technologies;
- Focus on short-lived climate pollutants;
- Are explicitly concerned with the nexus between climate and biodiversity; and
- Bring claims to gain redress for the “loss and damage” resulting from climate change.
The 2022 Report identifies a link between the public debate on individuals’ consumer habits and the contribution that companies make via new products, advertising, and corporate climate action. As such, the 2022 Report suggests that, as has been seen with the increase in litigation against agricultural companies, other high emitting sectors, such as heavy-duty industry, textiles, shipping and aviation, may become significant targets for litigants. It is likely that such cases would be centred around the above ‘case areas to watch’. As noted in our previous legal update, however, the prospect of climate-related litigation is not necessarily sector-specific or limited to particular industries; all private sector participants need to be aware of this heightened litigation risk.