Climate battles are moving into the courtroom, and lawyers are getting creative

by Reuters
Tuesday, 7 July 2020 13:38 GMT

FILE PHOTO: A climate change activist holds a sign during a demonstration of the Fridays for Future movement in Lausanne, Switzerland January 17, 2020. REUTERS/Pierre Albouy/File Photo

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Amid the slow progress of international climate negotiations, lawyers worldwide turn to courts for climate action

(Refiling to correct typographical error in last paragraph to make it "public health" instead of "pubic health")

* Litigation over carbon emissions increasing globally

* Latest cases focus on human rights, consumer protections

* Exxon Mobil says lawsuits "politically motivated"

* U.S. cases seen weakening lobbying power of oil majors

By Matthew Green, Valerie Volcovici and Emma Farge

LONDON/WASHINGTON/GENEVA, July 3 (Reuters) - Climate change may be having its day in court.


And they are getting creative -- using new legal arguments to challenge companies and governments before a judge.


"The courts are an increasingly important place for addressing the problem of climate change," said Hari Osofsky, the dean of Penn State Law and the School of International Affairs.

Already, climate campaigners are seeing glimmers of success.

In the Netherlands in December, the country's Supreme Court upheld a ruling in favour of the Urgenda campaign group's demand that the Dutch government move faster to cut carbon emissions.

And in January, a judge in Switzerland acquitted a dozen climate protesters from trespassing charges, filed after the group staged a tennis match within a branch of Credit Suisse in 2018 to draw attention to the bank's fossil fuel loans. Defence lawyers had argued that the protesters' actions were necessitated by the "imminent danger" posed by climate change. The ruling was met in court with a standing ovation.

"It was an exceptional ruling," one of the defence lawyers, Aline Bonard, told Reuters. Given that the protesters admitted to trespassing, "the infraction is undeniable."

But cases like these suggest a shift in how people are understanding the role of the judiciary in mediating cases related to the warming climate. Now, "there is bound to be a new wave of legal proceedings using a similar line of argument," Bonard said.






"As awareness of climate change grew in the general public to the extent that their disinformation campaigns were no longer acceptable, there was a pivot to greenwashing," Kate Konopka, Washington D.C.'s deputy attorney general, told Reuters.


Exxon said the Washington D.C. lawsuit was part of a "coordinated, politically motivated" campaign against energy companies and was without merit. Chevron Corp also dismissed the D.C. case, saying the litigation "distracts" from its efforts to address climate change.

Royal Dutch Shell Plc said it was "committed to playing our part" in addressing climate change, but that lawsuits "impede the collaboration needed for meaningful change."

But companies appear to be worried. The National Association of Manufacturers formed a group in 2017 to push back against "activist lawyers" for trying to scapegoat energy manufacturers.

The group, called the Manufacturers' Accountability Project, applauded a December ruling in New York clearing Exxon Mobil of securities fraud charges, after it was accused of failing to inform investors about what it knew about climate change.

"Courts are rejecting this misguided and misleading narrative, with a federal judge already calling them 'hyperbolic' last year when New York's attorney general brought claims based on essentially the same allegations," said Phil Goldberg, a lawyer representing the group.


On the human rights front, there were only five lawsuits using these arguments before 2015. Since then, there have been 40 more, said LSE report co-author Joana Setzer, an assistant professor at the London School of Economics's Grantham Research Institute on Climate Change and the Environment.

Not all of these new tactics have worked out, though.

In a high-profile decision in January, the 9th Circuit Court of Appeals in San Francisco dismissed "Juliana v. United States," in which 21 youths had accused the federal government of infringing on their rights to life and liberty by perpetuating an economic system fuelling dangerous climate change. Judge Andrew Hurwitz said he had "reluctantly" concluded that the issue was a matter for the executive and legislative branches.


"We need massive government intervention to get us out of the hole that we're in, which makes government a primary target," said Tim Crosland, director of British climate litigation charity Plan B.

The group was part of a campaign that successfully sued to block a third runway at London's Heathrow Airport, with Britain's Court of Appeal agreeing in February that the plan had failed to consider the country's commitments under the 2015 Paris climate accord. That decision is now awaiting a final appeal.


"Just as you wouldn't expect tobacco companies to be at the table when we're deciding public heath policy, the notion that the oil industry would dictate climate policy doesn't hold water," Wiles said. "They are just not going to have the same ability to dictate climate policy that they did in the past."

(Reporting by Matthew Green in London, Valerie Volcovici in Washington and Emma Farge in Geneva; Editing by Katy Daigle and Lisa Shumaker)