Court action for climate justice: a growing movement
Activists are increasingly taking to the courts to seek climate justice – and winning. As a result of a Supreme Court ruling, Brazil recently became the first country to recognise the Paris Agreement as a human rights treaty. In Australia and South Africa, civil society won legal challenges against extractive companies. A UK court found the government’s net zero plan inadequate and ordered it to develop a better one. Progress is also being made at the international level. In a landmark decision, the UN Human Rights Committee called on Australia’s government TO pay compensation for climate harm, bringing hope to those pushing for progress on financing for climate damage at COP27.
This September, the thousands of young people mobilised around Fridays for Future’s Global Climate Strike doubled down, calling for reparations for those worst affected by the climate crisis. They demanded wealthy countries foot the bill for the global damage they have caused. Just weeks ahead of the COP27 climate change summit, they were back on the streets putting pressure on world leaders to come up with a detailed plan that includes goals, targets and numbers.
In recent years street action – mass protests and non-violent civil disobedience – has helped push the climate crisis up the agenda. Simultaneously, civil society has done its best to engage in multilateral processes such as the COP series of summits – including the next meeting in Egypt this November – to advocate for more ambitious climate commitments from states.
But climate activists are increasingly using a complementary tactic: they’re taking to the courts to hold states and corporations to account for their actions – and their lack of action. In their quest for climate justice, they are turning to judicial systems at the national, regional and global levels.
As documented by the Grantham Research Institute on Climate Change and the Environment, climate change litigation has grown steadily over the years. Globally, more than 2,000 cases have been filed since 2015, with around a quarter coming between 2020 and 2022 alone.
Cases have been filed not only against states but also against companies, particularly fossil fuel corporations, and the number of ambitious cases seeking for governments to be held to human rights commitments has risen. Cases seeking to claim financial compensation for climate harm – known as loss and damage funding– have also started to emerge. What initially seemed largely a US phenomenon is now a global trend.
Earlier this year, the Intergovernmental Panel on Climate Change, the United Nations (UN) body responsible for advancing knowledge on climate change, recognised the role of climate litigation in increasing the ambition and improving the outcomes of climate governance.
In 2022, civil society has won several victories that have exposed the deep connection between climate change and human rights, determined that communities need to be consulted, translated general principles into actionable decisions and tackled the problem of allocating responsibility.
With its vital Amazon region under threat, Brazil has become a fertile testing ground for climate litigation. This year the Supreme Federal Court, ruling in its first climate case, made Brazil the first country in the world to recognise the Paris Agreement on climate change as a human rights treaty – a decision with far-reaching implications.
In Australia and South Africa, civil society has won legal challenges against extractive giants Santos and Shell. The Australian case has particularly powerful implications for improving consultation standards with Indigenous peoples over mining projects.
South African civil society organisations (CSOs) also won a case against their government, with a ruling that recognised air pollution as a rights violation and ordered the government to implement regulations to prioritise air quality management.
In the UK, civil society scored a victory as a court found the government’s Net Zero Strategy inadequate and ordered it to develop a more detailed plan to ensure the effective implementation of its Climate Change Act and the achievement of its targets.
At the regional level, things have spiced up as a lawsuit brought by six young Portuguese climate activists to hold 33 European states accountable for failing to act on the climate crisis has been given top priority at the European Court of Human Rights.
And a global institution came into play as the UN Human Rights Committee found the Australian government responsible for violating Indigenous people’s rights in response to a civil society complaint brought on behalf of residents of four islands off the Australian coast.
This decision made clear that while climate change is a global problem it doesn’t mean responsibilities can be evaded. It also showed people around the world that climate justice can be pursued at the international level when national justice systems have been unable or unwilling to deliver. The fact that the Human Rights Committee ordered compensation be paid to those whose rights had been violated also brought a ray of hope for those pushing for progress on loss and damage financing at COP27.
The Paris Agreement: a human rights treaty
In June, Brazil’s Supreme Federal Court concluded that the Paris Agreement is a human rights treaty under Brazilian law and ordered the government to reactivate the Climate Fund and release resources it had withheld to help mitigate the impacts of climate change.
The lawsuit had been brought by four political parties and supported by several CSOs, four of which had provided legal and technical support and submitted amicus – friend of the court – briefs. The reason this and other climate cases have been brought by political parties is that this is the only way allegations of fundamental rights violations can be heard directly by the Supreme Court.
The plaintiffs argued that the Climate Fund, set up in 2009, had not been operational since 2019. Under the government of climate-denying President Jair Bolsonaro it has repeatedly failed to develop its annual plans and provide funding for projects to mitigate climate change.
In September 2020, the Supreme Court held a hearing that included scientists, academics, civil society and Indigenous group representatives. Its ruling noted the increasing deforestation of the Brazilian Amazon as a large source of Brazil’s emissions – the country is the world’s fifth-largest carbon emitter – and identified the Climate Fund as the main tool available to the Brazilian government to cut emissions. Its refusal to use it was determined to be a breach by omission of the Brazilian Constitution, which establishes ‘the right to an ecologically balanced environment, an asset for common use by the people and essential to a healthy quality of life’, and therefore requires the state ‘to defend and preserve it for present and future generations’.
BREAKING: If you're feeling down by the US Supreme Court ruling on regulation of emissions, cheer up with good, amazing news from Brazil: our Supreme Court has just ruled that the Paris Agreement is a human rights treaty. This has enormous implications for future cases. Why? 🧵 pic.twitter.com/WYRMSRUC1s— Caio Borges 🌵 包凯越 (@caiosborges) June 30, 2022
The implications of the ruling are clear and far-reaching. As a human rights treaty, the Paris Agreement becomes a constitutional amendment, gaining legal status above ordinary legislation. From now on, any law passed by the Brazilian Congress and any policy designed by the Brazilian government that conflict with the Paris Agreement will be considered unconstitutional and therefore not valid. It will fall upon the courts to scrutinise more closely every law and policy to ensure their compliance with the Paris Agreement.
Voices from the frontline
Daniela Silva is co-founder of the Aldeias Project, an education, art, culture and environment project for children and young people in the municipality of Altamira, in the Brazilian state of Pará.
The Paris Agreement is undoubtedly an important legal instrument, and it is good that, as a human rights treaty signed by the Brazilian state, it has acquired constitutional status. But like all of Brazil’s legal documents, including the Federal Constitution, it must be fully implemented, especially by public managers who keep on violating human and environmental rights regardless of what is stated in the Brazilian Constitution.
For the Paris Agreement to be implemented and make an impact on the daily life of Brazilians, it must be disseminated among the people who suffer the climate crisis the most: Indigenous populations, riverside dwellers and Black communities in city outskirts. It is also important for the international community to take decisive action and put pressure on the Brazilian government for it actually to fulfil the agreement.
The October elections are perhaps one of the most important in Brazil’s history. There is a lot at stake when it comes to the Amazon region. Bolsonaro, the incumbent, has unleashed uncontrolled deforestation, land grabs and illegal mining on Indigenous lands. He is also encouraging violence against human and environmental rights defenders in the Amazon.
With Bolsonaro there is no possibility of dialogue or engagement of organised civil society in decision-making on environmental matters. If Bolsonaro continues as president of Brazil, it is a threat to the Amazon and its peoples, and therefore to humanity. We are experiencing a global climate crisis and we need world leaders focusing on working alongside civil society, scientists and the international community to put together short, medium and long-term solutions to tackle it.
This is an edited extract from our conversation with Daniela. Read the full interview here.
The Brazilian Supreme Court currently has at least two additional climate cases pending: one demanding the proper implementation of the Action Plan for Prevention and Control of Deforestation in the Amazon, and another denouncing the government’s failure to properly manage the Amazon Fund, a forest preservation initiative.
At the same time, the CSOs that supported the case against the Brazilian government are involved in lawsuits brought by the state against corporations. The Climate Observatory, for instance, has joined the state’s legal proceedings against private groups responsible for large-scale Amazon deforestation.
Governments held accountable
In March, the climate CSOs GroundWork and Vukani Environmental Justice Movement in Action won a case against the South African government. The ruling recognised air pollution, a major issue in South Africa, as a violation of constitutional rights, and forced the government to implement regulations prioritising air quality management in the Mpumalanga Highveld region.
The climate activists, represented by activist lawyers’ organisation the Centre for Environmental Rights, launched their #DeadlyAir litigation in 2019 to demand the government clean up the toxic air in Mpumalanga. The judges found that when air quality fails to meet national standards the right to healthy air is being violated and that South Africa’s environment minister has a legal duty to pass and enforce air quality regulations.
According to GroundWork’s director, the ruling was important in that it recognised the right to healthy air as ‘realisable here and now, not gradually over time’.
In the UK, civil society’s victory offered an example of the growing category of what are called ‘framework cases’ – lawsuits challenging a government’s ambition to respond to climate change or its lack of actions taken to realise a stated ambition.
In July, the High Court ruled against the UK government in a case brought by groups including Client Earth, Friends of the Earth and the Good Law Project. The court argued that the government’s Net Zero Strategy was inadequate, since it’s too vague to ensure the statutory targets set out in the UK’s Climate Change Act would be met, and ordered it to develop a more detailed strategy for parliamentary and public scrutiny.
The ruling was a political embarrassment to the government, which had tried to showcase the UK as a climate leader when it presented the strategy in October 2021 ahead of hosting COP26 the following month. Now UK civil society will work to keep up pressure to abide by the ruling on the government of new Prime Minister Liz Truss, which has pledged to extract more oil and gas.
Corporations under the spotlight
In September, Australia’s Tiwi Islands residents won a federal court challenge against private corporation Santos, brought over the potentially harmful economic, environmental, cultural and spiritual impacts of its Barossa gas drilling project in the Timor Sea.
Traditional communities claimed that the project posed a risk not only to their food sources but also to their age-old spiritual connection to the sea. The Environment Defenders Office argued that the approval granted to the project was unlawful because Santos had not adequately consulted with the Indigenous Munupi clan as required by law and had provided insufficient information to the Tiwi Land Council.
The court’s ruling focused on a substantial procedural issue: what the company had tried to pass off as ‘consultation’ with local communities was designed as a rubber stamp rather than a genuine process to seek free, prior and informed consent and give communities the chance to refuse consent. Approval was therefore withdrawn and the project was suspended.
#BREAKING: Tiwi Traditional Owner Dennis Tipakalippa has won his landmark case over Santos’ approvals to drill precious Tiwi Sea Country!— Environmental Defenders Office (@EDOLawyers) September 21, 2022
The Federal Court of Australia has found that Santos failed to consult Traditional Owners as required. pic.twitter.com/WXcHLWRH1s
Also in September, South African environmental activists won a case against Shell. A court in Makhanda, Eastern Cape province, upheld a ban on the use of seismic waves to explore for oil and gas off the Indian Ocean coast, which activists argued would have a potentially harmful impact on whales and other marine life.
The lawsuit had been filed by several environmental and human rights CSOs and organisations representing traditional communities and small-scale fishers, including Green Connection and Sustaining the Wild Coast.
We were denied the right to give or refuse our consent, so we took Shell to court – and won.
With this decision, the court overruled a 2014 decision granting the energy giant the right to explore for oil and gas in the Algoa and Transkei exploration areas off the coast of South Africa.
The ruling also had an impact on the South African government, which had backed Shell’s project and criticised those opposing it as thwarting investment in the country’s development.
Voices from the frontline
Sinegugu Zukulu is programme manager of Sustaining the Wild Coast, a South African CSO that works with coastal communities of Eastern Mpondoland, South Africa, to protect their land, livelihoods and culture.
We wanted to have Shell’s exploration permit revoked because we saw it as a threat to our livelihood and to a safe environment. You just need to google what happened with Shell in Ogoniland in Nigeria and you will understand our concerns. We don’t want an oil spill on our coasts.
But just like any other government, South Africa wants to attract investment, particularly by multinational corporations such as Shell, with which it has a great relationship. That’s why our court case set us not just against Shell but also against our government.
A big challenge was the government’s delegitimising narrative. The Ministry of Mineral Resources and Energy labelled us as ‘anti-development’. The government refused to listen to us and to have an open dialogue about Shell’s potentially negative impact on coastal communities.
South Africa has good environmental legislation, but much of it is lacking in implementation, so that is what the environmental movement focuses on. The law is very clear; our constitution says we have the right to a safe and healthy environment. If someone wants to do something on our land, we should be consulted, and we weren’t. We were denied the right to give or refuse our consent, so we took Shell to court – and won.
South African civil society enjoys the freedoms needed to challenge the government in court. But financial resources were critical. We had no money to travel to communities and mobilise them, so we did all our mobilisation work through social media, where we provided information, published press releases and shared videos. We had to look for a law firm that was able and willing to take this matter to court, and that would agree to take the risk even if there were not enough financial resources. Fortunately, we were able to find several legal firms that were willing to come to our rescue. These are firms that prioritise human rights issues and support litigation by Indigenous communities, and fortunately the judges required Shell and our government to pay our litigation costs.
This victory means a lot in terms of our right to self-determination as guaranteed by the United Nations, as it made it clear that free, prior and informed consent must always be sought. It also ratified our constitutional right to a safe and healthy environment.
This is an edited extract from our conversation with Sinegugu. Read the full interview here.
In July it was announced that a lawsuit seeking to hold 33 states – the 27 members of the European Union plus Norway, Russia, Switzerland, Turkey, Ukraine and the UK – accountable for their insufficient efforts to cut greenhouse gas emissions would be fast-tracked to the Grand Chamber of the European Court of Human Rights. This is a panel of top judges that examines serious cases relating to the interpretation of the European Convention of Human Rights or other human rights protocols.
The complaint was filed two years ago by six young Portuguese climate activists, three of them aged under 18, represented by the Global Legal Action Network, an international human rights CSO, which raised over US$30,000 through crowdfunding. The young plaintiffs explained that they decided to sue their government because they felt it was the only way to be taken seriously and force it to fulfil what are otherwise empty promises.
The group argues that the forest fires that have ravaged Portugal every year since 2017 – that have affected some of them personally – are a direct result of climate change, as are the storms that put the house of two of them, located on the coast, at risk of damage or destruction. As young people who will have to live with the impacts of today’s bad decisions for decades to come, the plaintiffs called out the unfairness of current leaders making reckless choices without consulting those whose future they are jeopardising.
If the court finds in their favour, the governments involved would be legally required not only to ramp up their domestic emissions cuts but also to tackle those they are responsible for in other countries, including by multinational companies headquartered in their countries.
Climate and human rights at the UN-level
In September, the UN Human Rights Committee – a body of experts in charge of monitoring compliance with the International Covenant on Civil and Political Rights (ICCPR) – found the Australian government responsible for the violation of Indigenous people’s rights to ‘enjoy their culture and be free from arbitrary interferences with their private life, family and home’. The Committee found that this violation resulted from the government’s failure to take action to cut emissions and adopt adequate adaptation, resilience and defence measures.
The ground-breaking decision came in response to a complaint filed three years earlier by the environmental legal organisation ClientEarth on behalf of 14 Indigenous people – eight adults and six children – from Boigu, Masig, Poruma and Warraber, four low-lying islands off Australia’s northern coast.
The Committee asked the Australian government to compensate Indigenous people from the four islands for the harm they have suffered, engage in meaningful consultations to assess their needs and take measures to secure the continuation of their communities’ safe existence. Globally, this is significant for potentially normalising the concept of loss and damage financing.
While the ICCPR has no enforcement mechanism, the states that have signed and ratified it, making them open to scrutiny by the Human Rights Committee, tend to comply with its decisions. Australia is one such state. For its new government, which came to power in May following an election in which climate change was a central issue, and which has recently passed the country’s first climate legislation in a decade, follow up is the next big test of its climate commitment.
The road to climate justice
The endless succession of extreme weather events – catastrophic floods in Pakistan, South Africa and Central Europe, horror heatwaves in India and across Europe, raging wildfires from Portugal to Lebanon and Turkey, to name just a few of the recent emergencies – make clear the climate crisis is a present reality and the time to act is now.
That is what civil society is doing: while acting on the ground to try to ease the human suffering caused by these human-influenced disasters, it’s putting pressure on governments and businesses to make the right choices – and activating safeguards when they don’t.
Street mobilisation has yielded many achievements. In response to the pressure, political leaders have been forced to pay attention. Many did one basic thing civil society demanded – listen to the science – and some have granted civil society access – often very limited – to decision-making spaces at the domestic, regional and international levels. But they also did a lot of lip service to the climate emergency without making much difference to policies and outcomes.
By taking to the courts, civil society is forcing climate deniers like Bolsonaro to look at the reality of climate change and act on it, as well as holding those posturing as climate champions – such as the UK government – to their own promises. Governments who boast about their ‘net zero’ targets and companies heavily invested in greenwashing PR now know they are expected to walk the talk. They’re being closely scrutinised and should expect to end up in court if they don’t back words with actions.
The recent breakthroughs in climate litigation show that civil society’s broad coalition strategy works, allowing it to tackle an issue as complex as climate change from as many different angles as possible. Climate litigation isn’t a substitute for other forms of civil society action, but a vital complementary strategy to help get the most from collective efforts.
As courts embrace the human rights framework to tackle climate cases, they are also ordering financial compensation and restitution for climate-related rights violations. Civil society will keep striving to carry this fight into climate negotiations, working with supportive states, to push for real progress on loss and damage financing at COP27. Civil society will do so in the hope that it works exactly as the states and businesses that have resisted change for so long fear: as an accelerator of action towards global climate justice.
OUR CALLS FOR ACTION
Civil society should intensify coalition working to advance climate justice through all available tactics, including litigation.
Courts should give priority to climate cases, take a human rights-based approach and work to normalise the idea of reparations for the damage caused.
Global north states should face their historic responsibility and commit to making genuine progress on loss and damage financing at COP27.
Cover photo by Horacio Villalobos/Corbis via Getty Images