Mary Robinson, who served as the UN Secretary General’s Special Envoy on Climate Change, has called climate change “very likely, the single greatest human rights challenge of the 21st century” 1 . That is certainly why, during the last decade, a new class of litigation now commonly termed "climate change litigation" has been growing. This notion covers various types of legal proceedings related to climate change: actions have been brought against companies, States, or even city administrations. Companies contribute to climate change by emitting greenhouse gases in their own operations and/or failing to manage greenhouse gas emissions in their value chains. Climate change adversely affects many human rights such as the right to life, to health, to food and housing, so corporate conduct in relation to their own greenhouse gas emissions and those of their business relationships is directly relevant to their responsibility to respect human rights. As of June 2021, there is only one case where a company was found liable in a case of climate change litigation. But an increasing number of such cases are brought before courts around the world. These actions can be classified in two categories: 1. disputes brought against companies due to specific damage allegedly suffered by individuals or communities as a result of their contribution to climate change and; 2. claims related to the overall negative impact on human rights of the greenhouse gas emissions of those companies.
Climate change litigation based on specific damage
As of today, the only climate change cases that have reached a court decision are claims of the first category, where victims allege a company is responsible for having caused specific damage. The following cases have been chosen to illustrate the variety of grounds on which claimants have based their claims.
Native village of Kivalina v. ExxonMobil Corp. (status: concluded) 2
Native Alaskans from Kivalina, a small village of 400 residents, face the direct effect of climate change in their village by the increasing erosion due to sea level rise and weather variations. On 26 February 2008, they brought a “nuisance” action against 24 oil, energy and utility companies 3 before the U.S. District Court of California for their contributon to global warming which has allegedly caused severe harm to Kivalina. They state, for example, that "houses and buildings were in imminent danger of falling into the sea as the village is battered by storms and its ground crumbles from underneath it". On 30 September 2009, the district court dismissed the claim, considering that the question of how best to address climate change was political and that the plaintiffs had been unable to demonstrate that the companies’ specific emissions had caused them injury. The appeal was unsuccessful. In recent years American courts have repeatedly rejected climate change lawsuits under the Political Question Doctrine 4 , whereby judges refuse to hear a case that would involve encroachment on political power or that is a societal issue 5 . In a similar climate change tort case opposing the City of Oakland to five oil companies, the judge refused to rule, stating that: « courts must also respect and defer to the other co-equal branches of government when the problem at hand clearly deserves a solution best addressed by those branches » 6 .
Lliuya v. RWE AG (status: on appeal) 7
In November 2015, Saúl Luciano Lliuya, a Peruvian farmer living in Huaraz (Peru) brought a claim against RWE AG (Germany’s largest electricity producer) to the District Court of Essen, Germany, for knowingly contributing to climate change by the emission of a great amount of greenhouse gases. Mr Lliuya claimed that these emissions were partially responsible for the melting of mountain glaciers located near his town of Huaraz (where 120,000 people live). He also claimed that the melting of the glaciers provoked another threat: the volume of Lake Palcacocha, a glacial lake located above Huaraz, increased substantially since 1975, with an acceleration since 2003. Mr. Lliuya claimed that in the event of a flood wave his house would likely be flooded. The claimant requested the German Court to declare RWE’s share of liability and to order it to bear the costs of adequate preventative measures proportional to its contribution to the damage under Article 287 of the German Code of Civil Procedure. This would amount to 0.47 percent (which is proportional to its share of worldwide greenhouse gas emissions). The court however dismissed the claim, stating that “the statement of claim must concretely specify an impairment to be removed or to be desisted from to the degree that the specificity necessary for enforcement is ensured” 8 and affirming that such condition of specificity was not met in the case at hand. The court found that RWE could not qualify as a “disturber” under the relevant provisions of German law due to the lack of causation between the company’s conduct and the alleged impairment. The court affirmed that the pollutants emitted by RWE merely constituted a fraction of global emissions, highlighting in particular that every living being is to an extent an emitter. It is the cumulative co-action of all emitters that could cause the flood hazard. Thus, according to the court, the supposed flood risk of the glacial lake would not be eliminated if the defendant’s particular emissions were not to exist, as every single emission of greenhouse gas contributes to climate change. In November 2017, Mr Lliuya appealed the decision of the court of first instance. At the time of writing the case was still pending.
Rhode Island v. Chevron Corp. (status: pending) 9
On 2 July 2018, the State of Rhode Island (USA), filed a claim against 21 energy companies for their contribution to climate change. the plaintiff alleges that “since the mid-20th century, the production and use of fossil fuel products [by these companies] has directly and substantially contributed to the dramatic rise in emissions of greenhouse gas pollution and increased carbon dioxide concentrations in the atmosphere” thus violating the State Environmental Rights Act. As a consequence, the State faces a rise in sea levels, along with an increased frequency and severity of flooding, extreme precipitation events, drought, as well as climate disruption as a result of ocean warming and acidification. Rhode Island claims that production, promotion and marketing of fossil fuel products by the 21 defendant companies along with ’simultaneous concealment of the known hazards of these products, and their championing of anti-science campaigns’ actually and proximately caused Rhode Island’s injuries. Rhode Island is seeking compensatory damages, equitable relief (including abatement of nuisances), punitive damages, disgorgement of profits and costs. After a long argument as to which court would have jurisdiction over this case (whether state or federal), the case is currently pending before the Rhode Island state court 10 .
FIDH and Waorani community v. PetroOriental S. A. (status: on appeal)
On 10 December 2020, FIDH and its member organisation Acción Ecológica, along with the Union of People Affected by Chevron-Texaco (UDAPT) and members of the Waorani indigenous people, filed a claim in Ecuador against the oil company PetroOriental SA, a subsidiary of China National Petroleum Corporation (CNCP). The claimants argue that the company’s gas flaring and venting in oil block 14 during petroleum extraction, and the resulting atmospheric pollution and its direct effect on climate change constitute an ongoing, persistent violation of human rights and nature 11 . The claim is a constitutional protection action based on Ecuador’s Constitution which establishes in Article.71 that the alteration of nature’s cycles results in a violation of nature’s rights. On April 19, 2021 a constitutional judge of the Judicial Unit for the family, Women, Children and Adolescents of Francisco de Orellana, ruled in favour of the oil company. However, the plaintiffs announces they would proceed with an appeal 12 . If the action against PetroOriental is successful, it would be the first time that climate change is directly related to a violation of constitutional rights in Ecuador 13 .
In each of these cases, the claimants alleged specific damage due to climate change, either as individuals or as communities. Considering the greenhouse gas emitting companies to be contributors to climate change, they initiated legal proceedings against them to request either the cessation of their activities or the corresponding compensation for the damages caused 14 . However, courts appear to be reluctant to attribute liability to companies for damage linked to climate change, either for political reasons or for lack of sufficiently specific legal grounds to address the matter, thus raising the issue of the adequacy of current legislation to ensure effective remedies to individuals, including cessation of the harmful activities and guarantees of non-repetition.However, climate litigation is considerably recent and many cases are still pending - with the notable examples of the Lliuya v. RWE case and the case that the FIDH is bringing together with the Waorani community against PetroOriental - thus possibly paving the way for interesting developments in the near future.
Climate change litigation based on the overall human rights impact of companies’ greenhouse gas emissions
So far, as detailed below, there has been one landmark decision condemning a company for the human rights impacts of the climate crisis to which they contribute through their GHG emissions. However, this type of climate change litigation is developing, and potentially precedent-setting cases are currently pending before different courts.
Smith v. Fronterra Co-Operative Group Limited (status: concluded) 15
In 2019, Plaintiff Michael John Smith, a member of the Ngāpuhi and Ngāti Kahu indigenous community of New Zealand, sued several major greenhouse-gas emitting facilities, including Fonterra Co-operative Group Limited, Genesis Energy Limited and Dairy Holdings limited, before the High Court of New Zealand. The plaintiff alleged the companies were acting negligently, that their emissions constituted a public nuisance and breached an inchoate duty to cease contributing to climate change. In March 2020, the court dismissed the plaintiff’s two first claims on nuisance and negligence, expressing doubt about the plaintiff’s causation argument: « [t]he defendants’ collective emissions are minuscule in the context of the global greenhouse gas emissions which are causing climate change and it is the global greenhouse gas emissions which are pleaded as being likely to cause damage […] » However, the court declined to strike the third claim that was based on « a duty cognizable at law to cease contributing to climate change » and did not foreclose the possibility of the law of tort recognising a new duty emerging in the age of the climate crisis that restrains GHG emitters from contributing to climate change. More specifically, the Court stated that Mr. Smith’s claim “may lead to a further evolution of the law of tort [in New Zealand]. It may be, for example, that the special damage rule in public nuisance could be modified; it may be that the science of climate change will lead to a greater ability to model the potential effects of emissions. These are issues that can only be properly explored at [a new] trial. I am unwilling to rule out the third cause of action and exclude the possibility that tort law might recognize a new obligation that could help Mr. Smith”.
Milieudefensie v. Royal Dutch Shell
On 5 April 2019, Milieudefensie/Friends of the Earth Netherlands filed a claim against Royal Dutch Shell on behalf of 17.379 co-plaintiffs and 6 associations for its alleged unlawful endangerment (“hazardous negligence”) and violation of human rights because of its (lack of a) climate policy 16 . The plaintiffs asked the Dutch Supreme Court to impose on Shell an obligation to reduce its CO2 emissions by 45% by 2030 and to zero by 2050, in line with the Paris Climate Agreement. , The claimants argue that the climate change impacts of Shell’s activities violate a duty of care under Dutch law and that “Shell is not allowed to cause a major danger to others when measures can be taken to prevent that danger from occurring” 17 . The qualification of an act as unlawful endangerment will depend on the claimants proving that the danger is significant enough 18 , Shell is sufficiently aware of the problem 19 and there are alternatives available to Shell 20 . Besides, Shell has a duty of care to take action to reduce its greenhouse gas emissions under Book 6 Section 162 of the Dutch Civil Code, which refers to unlawful endangerment. In their claim, the plaintiffs cite the Urgenda case 21 whereby the Court of Appeal of the Hague considered that insufficient action against climate change is indeed contrary to Articles 2 and 8 of the European Convention on Human Rights: the Court confirmed the decision of the lower courts, obliging the Netherlands to take all measures suitable for reducing greenhouse gas emissions by at least 25% by 2020. The Supreme Court also ruled in favor of Urgenda. Even if this landmark decision was held against a State, the Netherlands, the plaintiffs extended these arguments concerning the human rights impacts of climate change and implications for human rights responsibilities as equally applicable to corporate actors such as Shell.
A landmark decision was issued on 26th May 2021 in which the Court upholds plaintiffs’ claims recognizing that Shell Group’s activities have a substantial impact on climate change through its emissions, which exceeds the emissions of many states including the Netherlands. As a result, the Court ordered the company, both directly and via the companies and legal entities that forms the Shell group, to limit the CO2 emissions into the atmosphere and reduce them by at least net 45% at end 2030.
To reach this decision, the Court established that corporations have a responsibility to respect human rights which is independent from whether or not states fulfil their human rights obligations, citing the UN Guiding Principles on Businesses and Human Rights (UNGPs) and other widely accepted soft law instruments such as the OECD Guidelines on Multinational Enterprises. The Court established that the UNGPs are suitable as a guideline on the interpretation of the unwritten standard of care and affirmed that they constitute an authoritative and internationally endorsed “soft law” instrument which set out the responsibilities of states and businesses in relation to human rights 22 .
Remarkably, this is the first time that a national jurisdiction has cited the UNGPs and OECD Guidelines to issue a decision and impose obligations on a company. Indeed, the Court relied on these sources of “soft law” to make an interpretation of the unwritten duty of care present in the Dutch law (Book 6 Section 162 Dutch Civil Code) and conclude that Shell has responsibilities towards the respect of human rights. This sets an important precedent for other jurisdictions to interpret corporate liability according to these international standards in the future. After the decision was issued, Shell said it would appeal the judgement.
Notre Affaire à Tous et al. v. Total (status: pending)
On January 28, 2020, “Notre Affaire à Tous”, a coalition made up of a group of French organizations (Sherpa, Zea, and Les Eco Maires) and several French local governments, filed a complaint against the oil company Total, before the Nanterre District court. Plaintiffs allege that France’s duty of vigilance Law of 2017 requires French companies to respect a “plan de vigilance” that identifies and seeks to mitigate risks to human rights, fundamental freedoms, the environment and public health that could result directly or indirectly from the operations of the company and of the facilities it controls abroad. Plaintiffs ask the Court to order Total to recognize the climate risks of its business and take action consistent with a goal of keeping global warming at or below 1.5°C since Total would be responsible for approximately 1% of global greenhouse gas emissions.
Without responding on the merits, Total raised the lack of jurisdiction of the Nanterre judicial court and requested that the dispute be brought before the Commercial Court. In an order issued on 11 February 2021, Total’s plea of lack of jurisdiction was rejected and the court confirmed the jurisdiction of the civil court to rule on the claim. The judge considered that, as "non-traders", the claimants have "a right of option, which they may exercise at their convenience, between the judicial court, which they have validly seized, and the commercial court” 23 . The Nanterre District court has a unique opportunity to recognize the impact of this company on climate change and thus on human rights and the environment. This would pave the way for other similar French companies to be brought to justice 24 .
City of Oakland v. BP PLC (status: pending)
In 2017, the cities of Oakland and San Francisco sued five oil gas companies (BP PLC, Chevron Corporation, CONOPHILLIPS, Exxon Mobil and Royal Dutch Shell PLC), before the California state court. Plaintiffs alleged that these five companies, who are responsible for over eleven percent of global carbon dioxide emissions 25 , knew that their activities contributed to climate change and continued to produce and actively promote their products anyway. The plaintiffs argued that these actions by the companies constituted public nuisance under California state law. For this reason, the Court was asked by the plaintiffs to order these companies to create an abatement fund to pay for municipal climate change adaptation programs for Oakland and San Francisco 26 .
However, the energy companies requested the case to be judged by a federal court, because the cities’ public-nuisance claim was governed by federal common law. The request was granted by the federal district court for the Northern District of California who sustained that it had federal-question jurisdiction under 28 U.S.C. § 1331 because the cities’ claim was “necessarily governed by federal common law.” 27 The plaintiffs filed a motion to remand the case to State Court, but the Federal Court denied the motion and found that federal common law of nuisance could apply.This forced the plaintiffs to amend their claim and include a federal nuisance claim, but submitting redlines showing the differences between their original complaints and the amended complaints. Shortly after, on June 25, 2018, the California Federal Court dismissed the public nuisance lawsuits arguing:
“This order fully accepts the vast scientific consensus that the combustion of fossil fuels has materially increased atmospheric carbon dioxide levels, which in turn has increased the median temperature of the planet and accelerated sea level rise. But questions of how to appropriately balance these worldwide negatives against the worldwide positives of the energy itself, and of how to allocate the pluses and minuses among the nations of the world, demand the expertise of our environmental agencies, our diplomats, our Executive, and at least the Senate. Nuisance suits in various United States judicial districts regarding conduct worldwide are far less likely to solve the problem and, indeed, could interfere with reaching a worldwide consensus.” In short, the court stated, “[t]he problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case” 28
On August 24, 2018, the cities of San Francisco and Oakland appealed to the Ninth Circuit Court of Appeals the dismissal as well as the denial of remand to the state court. In the appeal, both cities argued “first that the district court erred in denying their motion to remand to state court in the absence of complete preemption of their state law public nuisance claim” and that “their claims were not governed by federal common law and that there was no other basis for removal jurisdiction”. Secondly, the cities argued that the district court’s dismissal of the action—based on the “supposedly ’extraterritorial’ reach” of the claims and potential interference with “foreign policy”—“rested on a mischaracterization” of their public nuisance claims as seeking to regulate or enjoin greenhouse gas emissions. The municipalities insisted on the fact that “their actions [were] seeking only an equitable abatement remedy to mitigate local harms caused by climate change based on the defendants’ wrongful promotion of their fossil fuel products while intentionally failing to disclose material information and/or affirmatively making misleading statements about the inevitable, devastating impacts on coastal communities it knew would result from the expanded use of … otherwise lawful products.” 29
On May 26, 2020, the Ninth Circuit Court of Appeals reversed the federal district court’s determination that federal-question jurisdiction provided a basis for removal and remanded for the district court to determine whether there was an alternative basis for jurisdiction. Among other things, the Ninth Circuit sustained that the cities’ nuisance claim did not raise “a substantial federal question”, and while the case involved some “federal interests” (energy policy, national security, and foreign policy), “this was not sufficient to establish federal-question jurisdiction”. On January 8, 2021, the companies filed a petition for writ of certiorari to the Supreme Court seeking review of the Ninth Circuit’s decision, which was declined by the court in June of 2021.
In parallel, on January 28, 2021, Oakland and San Francisco filed a motion in the federal district court for the Northern District of California to amend their complaints to withdraw claims under the federal common law of public nuisance so that the sole remaining claims would be alleged violation of California’s representative public nuisance law.On August 4, 2021, the federal district court for the Northern District of California stayed proceedings in Oakland’s and San Francisco’s cases, in which a renewed motion to remand and motion to amend are pending, until a relevant decision is taken by the Ninth Circuit in the case County of San Mateo v. Chevron Corp". 30
There is no doubt that the recent Shell decision set a global precedent as for the first time, a judicial body explicitly recognised that companies have an obligation to reduce their impact on climate change in order to respect human rights. This jurisprudential shift will surely have repercussions on the cases that are pending before different courts, such as Notre Affaire à Tous v. Total, and will also open the way for other companies to be held accountable soon for their contribution to climate change.
On the other hand, National Human Rights Institutions (NHRI’s) are also playing an important role in investigating the current impacts of business activities on human rights and the environment. Indeed, the National Commission on Human Rights of the Philippines has conducted an inquiry to assess the impacts of Carbon Major companies on human rights in the country, leading to a groundbreaking decision. Read more about the case.
Conclusion about climate change litigation against companies
Climate change litigation is still in its infancy and many claims so far have failed. However, there is a global trend pushing boundaries and creating a growing body of precedents around the world 31 , also encouraged by the global attention on the issue. New laws and judicial precedents will continue to develop and shape the legal basis for liability of corporate actors in relation to climate change. The clear illustration of this trend is the landmark Shell ruling, discussed above, which sets an important precedent and paves the way for other companies whose activities impact climate change to be held accountable for their activities. It is undoubtedly an important step, but it demonstrates that there is still a long road ahead. The decision of the Netherlands’ Supreme Court in favour of the Urgenda Foundation 32 and the Shell case are also signs that the international human rights framework will provide a robust basis for such liability. The recognition by the highest Dutch court that the Netherlands’ human rights obligations provide a legal basis to compel stronger and more rapid action by the Government is vitally important. As of today, individuals and communities wishing to hold companies liable for human rights abuses resulting from their contribution to climate change still face important challenges. A critical difficulty is the absence of hard law imposing specific duties in this regard, as well as clear legal grounds to anchor liability. While some international instruments 33 establish responsibilities on companies to respect of human rights 34 , these instruments remain part of “soft” law and are therefore difficult to enforce. In addition, they do not address the particular responsibilities of companies regarding climate change. In this context, companies continue to rely primarily on national law to guide their conduct and argue compliance with the law to reject accusations of liability. Another difficulty is the position expressed by some judges that climate change is a political issue which, as such, they are not prepared to entertain. 35
However, while demonstrating the causal nexus between the companies’ activities and adverse climate change effects may have so far been challenging for purposes of establishing liability, the law and climate litigation are evolving rapidly and after the 2021 Shell decision we have begun to see positive judicial results..