Climate change litigation: 2023 wrapped, and a promising 2024

By Paula Moreno-Cervera de la Cuesta

Climate change litigation (or “climate litigation”) is on the rise. According to the Global Climate Litigation Report, issued by the United Nations Environment Programme (UNEP) and the Sabin Center for Climate Change Law at Columbia University, the number of climate cases has doubled in the last five years, amounting to 2,180 in 65 jurisdictions on December 31, 2022.

Since then, there have been unprecedented advances in climate litigation, making 2023 a “watershed year” in the field. In this brief 2023 climate litigation commentary, we will focus on international, and European cases.

A revolution in the international fora

Climate change litigation has expanded into the international legal sphere in an unprecedented way. This phenomenon is occurring both at a consultative and jurisdictional level. According to the latest data of the Sabin Center, in 2023, 70 cases were filed outside the United States, including international, regional courts; and other quasi-judicial, or adjudicatory bodies.

On the one hand, three key international tribunals (namely, the International Tribunal for the Law of the Sea (“ITLOS”), the Interamerican Court of Human Rights (“IACtHR”), and the International Court of Justice (“ICJ”) have accepted to hear three climate change advisory opinions.

Despite not having jurisdictional effects, advisory opinions are an important opportunity to clarify the legal obligations of States with respect to climate change.

Tribunal	Requested by	Questions asked	Status
ITLOS	Commission of Small Island States Insulares	Clarification on: (a) whether greenhouse gas emissions qualify as marine pollution, and if so, what are the obligations of State Parties to the United Nations Convention on the Law of the Sea (“UNCLOS”) to prevent, reduce and control such pollution under international law, and (b) the obligations of these countries to protect and preserve the marine environment from climate change impacts.	Hearings concluded. Advisory opinion expected by mid-2024
ICJ	United Nations General Assembly	(a) What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations; (b) What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect (i) States, including small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change? (ii) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?	Written comments to be submitted until March 22, 2024, and written replies until June 24, 2024.
IACtHR	Chile and Colombia	The petition refers to various topics, in summary, (i) State obligations to prevent and guarantee human rights before climate emergencies, (ii) State obligation to protect the right to life against the climate emergency in the light of human rights and science standards, (iii) to clarify obligations of States to protect the rights of children and future generations from climate change, (iv) to clarify the nature of State obligations to provide judicial remedy for protection and reparation before the climate emergency, (v) States obligations on environmental defenders’ protection, and (vi) clarification regarding the differentiated State obligations and cooperation between the Organization of American States members. For more detail, please see.	Hearings in the first semester of 2024.

Tribunal

Requested by

Questions asked

Status

ITLOS

Commission of Small Island States Insulares

Clarification on:

(a) whether greenhouse gas emissions qualify as marine pollution, and if so, what are the obligations of State Parties to the United Nations Convention on the Law of the Sea (“UNCLOS”) to prevent, reduce and control such pollution under international law, and

(b) the obligations of these countries to protect and preserve the marine environment from climate change impacts.

Hearings concluded. Advisory opinion expected by mid-2024

ICJ

United Nations General Assembly

(a) What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations;

(b) What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect

(i) States, including small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?

(ii) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?

Written comments to be submitted until March 22, 2024, and written replies until June 24, 2024.

IACtHR

Chile and Colombia

The petition refers to various topics, in summary, (i) State obligations to prevent and guarantee human rights before climate emergencies, (ii) State obligation to protect the right to life against the climate emergency in the light of human rights and science standards, (iii) to clarify obligations of States to protect the rights of children and future generations from climate change, (iv) to clarify the nature of State obligations to provide judicial remedy for protection and reparation before the climate emergency, (v) States obligations on environmental defenders’ protection, and (vi) clarification regarding the differentiated State obligations and cooperation between the Organization of American States members. For more detail, please see.

Hearings in the first semester of 2024.

On the other hand, in Europe, the European Court of Human Rights (“ECtHR”) has several climate cases pending before it. By September 2023, the first three cases were heard by the Grand Chamber, and are expected to be decided in 2024:

Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (hearing)
Duarte Agostinho and Others v. Portugal and Others (hearing)
Carême v. France (hearing)

Despite cases posing several admissibility challenges, in 2024, the ECtHR has the opportunity to adopt decisions to become a leading human rights tribunal on human rights protection against climate change.

Wins and failures at the national level

At the national level (awaiting the decisions of the ECtHR), domestic courts continue to examine the adequacy of regulatory responses to climate change. In this regard, there is still large discrepancies between several jurisdictions.

In Belgium, the Brussels Court of Appeal ruled – basing its decision on Articles 2 and 8 of the European Convention on Human Rights, as well as Belgian civil law – that Belgium had failed to reduce global warming according to their international obligations. In this sense, the Court imposed GHG reduction percentages to several Belgian regions. For more information on the Klimaatzaak case.

In Spain, the Spanish Supreme Court ruled on the first two climate cases in Spain. The Spanish apex court found that Spanish climate efforts were aligned with EU commitments and the Paris Agreement. As such, the Spanish Supreme Court separated from many of the judgements issued across Europe, strongly leaning on the issue of separation of powers. For more information, see our publication on this topic.

Expansion of cases against companies: greenwashing and the financial sector

Furthermore, legal actions against companies related to climate issues is also growing rapidly, specifically regarding the variety of legal arguments being used. Recent developments on climate or green advertising, as well as cases tackling the financial sector are worth highlighting due to their expansive potential.

Greenwashing cases

The incremental obligations to include climate and net-zero strategies within companies has also translated in the augmentation of greenwashing cases. Specialized administrative agencies and courts all over Europe are increasingly receiving complaints by consumers due to misleading advertising based on consumer and advertisement codes.

These cases tackle both advertising campaigns that promote products as climate-friendly or carbon neutral, and companies’ climate strategies, when they are not seconded by scientifically accurate data.

Some prominent examples are: Klima Allianz v. FIFA 2022 World Cup (Switzerland), Various climate neutral claims before the Regional Court of Frankfurt am Main (Germany), TotalEnergies group and Gaz France on net zero and environmental values (France) or KLM’s advertising campaign on CO2 compensation and alternative fuels (Netherlands).

These cases are expected to grow in number considering future EU regulation (“Green claims Directive”) will empower consumers and give them new legal grounds to fight greenwashing.

Litigation in the financial sector

Furthermore, while climate claims against the financial sector are not new (e.g., 2017 – BankTrack, et al. vs. ING Bank), recent cases have brought in a new perspective, focused on scrutinizing prudent financial management rather than mere information disclosure cases.

Applicants base their claims on legal due diligence laws and/or the alignment of investment portfolios with climate obligations. In France, two cases against the bank BNP Paribas under the French Law of Vigilance were brought in early 2023 (case, and case).

In this respect, these cases are forecasted to increase with the approval of the EU Corporate Sustainability Due Diligence Directive (“CSDD”). For more information regarding this risks, please see 2023 ECB Legal Conference, and 2023 Network for Greening the Financial System reports.

What to expect in 2024?

Against the backdrop of a global temperature rise of 3%, and the need to reduce emissions a 42% to achieve 1,5 °C, climate litigation is “key tool in delivering climate justice“.

Following the advancements of this past year, 2024 seems a promising year for climate litigation. Landmark decisions are expected to be issued, which will set crucial precedents and provide a legal framework for future cases, shaping the trajectory of climate litigation.

Additionally, this year ahead also will entail the adoption of crucial legislation which will empower climate litigation against corporations, making climate litigation a non-neglectable risk.