Why are we seeing a rise in climate litigation cases at this time?
The first reason for civil society to pursue climate litigation is the failure of multilevel commitments and governance to address the climate crisis, that is, the lack of effective climate mitigation, adaptation and justice despite thirty years of global climate governance. Crucially, the Paris agreement, with its aim to keep the temperature increase within 1,5 degrees above pre-industrial levels, has provided a legal context to evaluate, to challenge and to enhance public and private climate action via litigation.
To date, more than 1200 cases have been filed since 2015, most of them in the United States. Cases have been brought in forty-four countries, and in fifteen international or regional courts and tribunals. There has also been a steep increase in Global South courts.
Why is Aurora suing the Swedish state?
In November of last year, the Aurora organisation, representing over 600 people under the age of twenty-six, initiated a litigation against the Swedish state for its insufficient climate policies. Aurora’s key claim is that those under the age of twenty-six living in Sweden are at risk of having their human rights violated by future negative impacts of climate change. Aurora argues that the Swedish state has a responsibility to mitigate this risk in order to protect rights enshrined in the Swedish Constitution and in the European Convention on Human Rights.
Currently, the case is being examined by Nacka District Court to decide whether to try it on its merits.*
Is the Aurora case similar to other climate litigation cases?
By invoking human rights to hold the Swedish state accountable, the Aurora case is in line with broader trends in climate litigation.
Court filings from cases across the world show six main purposes litigants are trying to achieve:
1. Use human rights to compel climate action
2. Hold governments to their legislative and policy commitments
3. Keep fossil fuels in the ground
4. Claim corporate liability and responsibility for climate harms
5. Establish liability for failure to adapt to climate change
6. Put an end to greenwashing
Have any climate litigation cases been successful?
High profile cases to enhance states’ climate mitigation policies have been successful, to varying degrees, in the Netherlands, in France, in Germany and in Ireland. Among cases against private entities, a ground-breaking judgement came in 2021, when a Dutch court ordered Shell to reduce its emissions by 45% by 2030, relative to 2019, across all activities including both its own emissions and end-use emissions. This was the first time a private company was made accountable for the violation of a duty of care and human rights obligations by failing to take adequate action to curb its contribution to climate change.
High profile climate litigation directed at private companies, often major emitters, holds the promise of establishing accountability for specific actors. Such a development would make resources available for compensating climate harm and would clarify in the public sphere who are the perpetrators of climate crimes.
After a string of successes in 2022 across cases involving both public and private entities, with Indonesia and Australia standing out, 2023 is set to become a watershed year for climate litigation.
How are climate litigation cases having an impact outside of the courts?
Beyond success or failure in court, litigation can provide important social movement and political payoffs, even in the absence of legal victories. Irrespective of outcomes in court, litigation can contribute to broader campaigns to enhance access to justice for others and to highlight the failings of current legal systems.
The Aurora case is an example of a climate lawsuit playing out both within and beyond the courtroom. Their strategic litigation work aims not only to influence climate policy in Sweden, but also raise public awareness, shape climate change narratives, and mobilise a future generation of climate activists.
Aurora for example organises frequent actions in parallel to the legal action. These include demonstrations, media appearances, and social media campaigns emphasising the links between climate change and issues such as vulnerability, intersectionality and Indigenous rights.
What is the connection between climate litigation and social mobilisation?
Pursuing climate litigation implies for litigants the effort to join social mobilization, advocacy and activism with legal opportunities and with scientific evidence, both in the courts and in the streets. Such collaborations across the social, legal and scientific fields display the synergistic work inherent to climate litigation. This is particularly true for “strategic litigation”, that is, legal cases that aim to bring about broader societal shifts by, for example, changing how an entire industry thinks or by putting climate concerns at the heart of all policy making.
Litigation can thus be seen as a legal mobilisation strategy that complements and extends grassroots political organising to effect social change. Climate litigation is the latest in a long list of social struggles that employ the courts in their repertoire of action. Notable examples from the past include the civil rights movement, the gay rights movement and the environmental justice movement.
From an activist point of view, a legal case that puts climate change at the center can be leveraged to publicly expose climate-related grievances. The cases can also be used to highlight marginalized identities, vulnerabilities and local issues that are usually out of sight, fostering a societal awareness of who suffers the effects of climate change now and in the future, as well as how these impacts interact with social inequalities, and affect human rights.
Furthermore, legal mobilisation creates the possibility for consensus building around certain framings or battles and may provide a source of institutional and symbolic leverage against opponents. When amplified by media attention, legal mobilization becomes a political pressure tactic to advance the climate movement’s goals – by influencing the process of policy implementation or by forcing its formalization – and even a tool of movement building.
What is the role of science in driving climate litigation cases?
Different branches of natural and social sciences are fundamental in providing context and evidence (from calculating carbon budgets to documenting environmental change). Climate science can be critical in determining whether litigants have standing to sue and to substantiate claims that defendants' actions (or inactions) have caused or will cause the plaintiffs' alleged harm.
Promising recent developments in the science of climate attribution could provide the evidence to establish causal links between specific emitters, changes in the climate system, impacts and harm. Social sciences are crucial too: from public health studies that detail psycho-social impacts, to historical research on past obstruction to climate action, and to research that disentangles social complexities of impacts and responsibility.
Researchers can also contribute by studying climate litigation itself and the relations with social movements in different countries, to provide input on the historical, social and political contexts within which climate litigation is occurring. In our research at LUCSUS, for example, we are studying the synergies established between activism, law and science in climate litigation cases around the world to understand how their combined impact could be enhanced.
What is happening within the realm of climate litigation currently?
An emerging trend in climate litigation involves the defense of activists charged in court for direct actions that disrupt social life to influence climate politics. Repression of activism is on the rise, with most governments around the world increasingly criminalizing direct actions, including in Sweden.
Activists involved in these trials face the risk of jail time and legal fees, but also utilize the court setting to educate the judges, the juries and the public on the reality and dangers of climate change, justifying their action in the name of urgency, self-defense, and necessity to prevent greater harm and despite the attempts from some judges to keep motivations based on climate concerns out of the court. Climate activism on trial is probably going to be one of the next big waves of climate litigation cases.
*Since this article was written, Nacka district court has decided to go forward with the Aurora litigation case against the Swedish state. The case will now be decided in the courts.