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‘Transnational Exchange’ Influencing Climate Litigation Outcomes

Successful climate litigation cases are catalysing advancements in policy, as judges seek guidance from precedents in other jurisdictions. 

‘Transnational jurisprudence’ is playing an increasingly important role in the outcomes of high-profile court cases challenging governments’ climate policy response, or lack thereof. 

Although the incidence of climate litigation is rising, many cases are raising new and untested issues, leaving judges to look abroad for guidance, according to Catherine Higham, Policy Fellow at the London School of Economics’ Grantham Research Institute (LSE GRI) on Climate Change and the Environment. 

“In most countries, judgments given in another country are not binding,” she told ESG Investor. “However, they can be given a lot of weight by judges, depending on whether or not they think they are persuasive.” 

Because climate change litigation often forces courts to grapple with issues for the first time, there is a high level of what academics’ call ‘transnational exchange’ between courts, meaning they look to other jurisdictions for guidance.  

“This does not mean that courts in one jurisdiction will necessarily follow what happens in other jurisdictions,” she added.  

As global temperatures rise, escalating climate-related risks, the volume of climate litigation cases has more than doubled in the past five years – from 884 in 2017 to 2,180 in 2022. 

Further, a recent report by the UN Environment Programme (UNEP) and the Sabin Center for Climate Change Law at Columbia University, showed that climate litigation is becoming an integral part of securing climate action and justice. 

While most cases have been brought in the US, climate litigation is taking root all over the world, with about 17% of cases now being reported in developing countries, including small island developing states, the report noted.   

A notable example if the Held v Montana case. On 14 August, a judge ruled in favour of a case brought against the state for violating the right of young people to a “clean and healthful” environment, as referenced in the state’s constitution. Specifically, the judge agreed that the Montana Environmental Policy Act was unconstitutional as it prevented climate impacts from being considered when assessing fossil fuel permits. 

“This is part of a global trend that sees claimants challenging specific fossil fuel developments and licensing decisions along the fossil fuel supply chain,” said Higham. 

Held v Montana echoes an Australian ruling from 2021 which ruled that governments have a duty of care to protect young people from the impacts of climate change. Further, it is part of an accelerating trend in climate change litigation with almost 200 being filed in the last 12 months.   

Despite some unsuccessful cases, landmark wins like the Held v Montana case are spurring more claimants to bring cases and potentially influencing the way governments think about their responsibilities, according to Higham. 

“One of the interesting elements of [the Montana] case is that it relies on a constitutional protection for the right to a healthy environment,” she said, adding that Montana has one of the strongest protections for this right is in state law in the US, adopted also in many other countries around the world. 

“This case supports ongoing cases that use this argument, and we are likely to see more of these cases in the future,” she added.  

Catalyst for change

The practical implications of Held v Montana are not yet clear, even in the US state itself.  

According to Higham, it falls into the category of ‘strategic cases’ which refers to those initiated not only to uphold the legal rights of the plaintiffs, but also to drive changes in the legal framework and the narrative concerning climate-related matters more broadly.  

The incidence of these is rising versus on-strategic cases, typically where a new climate law has been introduced, and there are uncertainties about its application in a specific context. 

But successful cases can catalyse substantial advancements in climate change policy, said Higham, citing the Urgenda Foundation v The State of the Netherlands case.  

This case reached its verdict in 2015 through the Hague District Court ruling in favour of the plaintiffs who argued the Netherlands’ emissions reduction targets were insufficient and not in line with the guidance of the Intergovernmental Panel on Climate Change (IPCC).  

This decision was subsequently upheld by the Dutch Supreme Court in 2019. 

“Since then, the impact of this case on climate policy has been clear,” said Higham, adding that references to the Urgenda case have become commonplace in the Dutch parliament, as well as in various policy documents.  

Further, the Dutch government has undertaken notably ambitious measures, such as the premature closure of coal-fired power plants following the ruling, said Higham.  

“This serves as a testament to the tangible influence that these cases can exert on the trajectory of a country’s transition toward more sustainable practices,” she said, noting that while such impact is not guaranteed in every case, the potential for these legal victories to spur expedited policy actions is significant. 

“This phenomenon underscores the relevance of these cases for understanding transition risks on a national level,” she said.  

“The outcomes of climate litigation can trigger substantial shifts in policy dynamics, potentially accelerating the adoption of environmentally conscious measures.”  

Investors should be “attuned to the potential ripple effects” of such legal victories on a country’s policy landscape, said Higham. 

They should also be aware of a new complexity– the emergence ‘just transition’ cases, said Higham. 

“These cases may not overtly connect to climate change, possibly displaying fewer climate-aligned attributes,” she said. “However, they essentially question the fairness in the development or implementation of a climate change policy or project.” 

The Regional Government of Atacama v Ministry of Mining and Other case is an example of a just transition case. The complaint questioned the bidding process of the lithium production application, which the regional government argued was carried out without public participation and in the absence of any assessment of the activity’s potential environmental impacts on the region. 

Legal precedents 

Last week, UN human rights experts warned of the significant human rights impact of the state-run oil major Saudi Aramco across the world through its outsized contribution to the climate crisis.  

Law firm ClientEarth said the comments set “an important legal precedent” clarifying how international human rights law can be used to help hold polluting firms accountable. Although the UN communications are not judgments, they can have “a significant influence on how courts and other actors interpret and apply human rights law,” said the firm, citing the case brought by Milieudefensie against Shell in the Netherlands. 

ClientEarth filed a legal complaint in 2021 accusing Aramco of the largest ever climate-related breach of international human rights law by a business. The complaint also named the company’s key financial supporters for facilitating the company’s impact on people and the environment.  

Aramco is the world’s single biggest corporate emitter, and plans to sustain its fossil fuel production and sales through the energy transition and explore for yet more reserves. In a communiqué to the company, UN experts expressed concern about how the oil giant’s actions may contribute to undermining the Paris Agreement in the face of the existential threat to human rights posed by climate change.   

They also said the involvement of financial institutions in the financing of Saudi Aramco’s activities could be in violation of international human rights law and standards.   

It is the first time UN experts have taken action about an oil major’s human rights responsibilities for climate change under the UN Guiding Principles on Business and Human Rights, or against financial backers of oil and gas expansion.   

A ClientEarth spokesperson said the warnings “set a new legal standard for fossil fuel companies’ human rights responsibilities for the climate crisis”, in the context of the impact of recent extreme weather events.  

“People in every country, on every continent, are being affected by climate change. By failing to address its role as the single biggest corporate emitter of the greenhouse gases driving climate catastrophe across the planet, we believe Aramco is committing the world’s largest climate-linked breach of human rights law by a business.   

“At the same time, the banks and financial companies supporting Aramco’s harmful activities are continuing to enable its fossil fuel expansion plans. The UN experts could not be clearer: banks bear their own legal responsibility regarding the escalating and detrimental threat climate change poses to human rights.”   

Aramco has not provided a response to the UN experts since the Communication was sent to the company 60 days ago. 

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