Two years ago, the United Nations General Assembly proclaimed that a healthy environment is a human right. Though enshrined in a resolution nothing about the declaration was legally binding. The goal of this statement was to give campaigners a basis upon which they might challenge ecological destruction in their own jurisdictions. Data shows that these kinds of legal challenges are gathering pace. But whether they can lead to meaningful emissions reductions – or even adequate compensation for those most affected – remains to be seen.

According to the Sabin Center for Climate Change Law at Columbia University, the total number of climate-related court cases more than doubled between 2017 and the end of 2022. At that time, some 2,200 cases had been filed in 65 jurisdictions worldwide – 70% were in the US. Nearly 90% of the non-US cases filed in the past two years were brought by non-governmental organisations, individuals or both working in tandem.

One of the most consequential rulings in recent memory concerned an association of 2,000 older Swiss women, known as KlimaSeniorinnen Schweiz, and the European Court of Human Rights (ECHR) in Strasbourg. The group argued their government’s inaction on climate change constituted a threat to their health, as older people are more vulnerable during heatwaves. Ultimately, the ECHR found that Switzerland has a responsibility to protect its citizens and can, therefore, be held to account for failing to curb greenhouse gas (GHG) emissions.

The ruling marked the first time a transnational court specialising in human rights chose to uphold the right to climate protection. ‘The significance of this decision cannot be overestimated,’ says Cordelia Bähr, lawyer for the KlimaSeniorinnen. ‘It will be of great importance for further climate lawsuits against states and companies worldwide and increase their chances of success.’ But the excitement that surrounded the victory has proved short-lived – with the Swiss parliament voting not to comply with the ECHR’s ruling on the grounds that it already has a climate strategy in place.

The parliament’s lower chamber claimed in a statement that the court had ‘exceeded the limits of permissible legal development’. Legislators voted to dismiss the court’s decision by a margin of 111 to 72, with 10 abstentions. All 46 Council of Europe members are meant to accept ECHR rulings as legally binding, so it appears this fight is far from over. No member state has yet refused to implement a judgment, although cases can be referred back to the court in exceptional circumstances.

The dispute in Switzerland, which is ongoing, illustrates just how tricky it can be to get individual nations to abide by transnational decrees, especially if they’re politically unpopular. There are even a few examples of lawmakers resisting rulings by domestic courts, although not always successfully. In 2015 the District Court of The Hague ruled that the Netherlands must cut its GHG emissions by at least 25% by the end of 2020 – and the government appealed.

Three years later, the country’s Court of Appeal upheld the decision, which was the first to establish that governments have a legal duty to their citizens to prevent climate change. The government then took the matter to the Supreme Court, where it lost once again in 2019. Urgenda, the foundation responsible for the original lawsuit, now claims to have inspired some 70 citizen-led climate cases worldwide.

Waging war in the UK courts 
In the UK, environmental charities have been waging their own court battles against inadequate climate policies. In May, the High Court found that the government’s existing climate strategy was unlawful, meaning the Energy Secretary is expected to draw up a new plan within 12 months.

‘This time the court made it emphatically clear: the government cannot just cross its fingers and hope for high-risk technologies and uncertain policies to plug the huge gaps in its plans,’ says Sam Hunter Jones, a lawyer with environmental charity ClientEarth. The government’s revised strategy must ensure the UK can meet its target of reducing emissions by more than two-thirds by 2030 and adhere to its carbon budget. Neither goal is presently within reach.

Campaigners in Surrey also won a victory in late June when the Supreme Court decreed that the environmental impact of emissions from burning fossil fuels must be considered in planning applications for new drilling projects. Local activist Sarah Finch and the Weald Action Group have been battling against Surrey County Council’s decision to approve oil production in the area for the past four years. When politicians first greenlit a fossil fuel project at Horse Hill, their impact assessment only factored in the operational emissions from extracting the oil.

Now that the country’s highest court has decided that Surrey’s local government should also have factored in so-called downstream emissions, the decision may influence other planning bodies. Finch lost an earlier battle over the project in the High Court and went on to challenge a Court of Appeal ruling that also dismissed her case. Campaigners hope the recent win may also provide a precedent to push back against a proposed coal mine in Cumbria and new North Sea oil and gas exploration.

The [UK] government cannot just cross its fingers and hope for high-risk technologies and uncertain policies to plug the huge gaps in its plans.’ – Sam Hunter Jones, a lawyer with environmental charity ClientEarth.

Across the Atlantic, state and municipal governments are increasingly pursuing legal action against oil companies for their part in the climate crisis. In February, the City of Chicago sued six of the majors – including BP, Shell and ExxonMobil – as well as affiliated trade bodies for ‘deceiving’ [their word] consumers about the dangers of their products. In a complaint spanning almost 200 pages, city officials outlined 11 claims, from negligence to fraud and unjust enrichment. It is ultimately seeking financial compensation on behalf of its citizens, although it has not yet specified its desired sum.

‘Evidence shows that these defendants intentionally misled Chicago residents about the climate change-related dangers associated with their oil and gas products,’ says Mary Richardson-Lowry, the city’s Lead Attorney. ‘If unabated, climate change could result in catastrophic impacts on our city.’

Meanwhile, California’s government is hoping to invoke consumer protection laws to claw back oil company profits. The lawsuit was initially filed last September (2023), although it has recently been updated to include examples of misleading marketing by fossil fuel producers. If successful, the state would deposit the resulting funds into a restitution fund for residents impacted by climate-linked disasters. The companies at the centre of this litigation have said that climate policy is best handled by federal lawmakers – not state courts. Ryan Meyers, Senior Vice President of the American Petroleum Institute, called the California action a ‘coordinated campaign to wage meritless, politicised lawsuits against a foundational American industry’.

The Guardian newspaper also quoted a Shell spokesperson as saying the company does ‘not believe the courtroom is the right venue to address climate change’.

According to a report from the LSE’s Grantham Research Institute, around 20 cases filed by US state and city authorities are likely to go to trial.

The question of whether litigation actually ‘works’ to materially reduce pollution or deliver justice to communities is invariably a complicated one. Even if a case doesn’t result in a tangible change, such as a financial settlement for a disaster-hit community, the publicity generated in the courtroom can influence policy and shift public opinion. The Grantham Institute’s researchers found that more than 50% of the cases in which either an interim or a final decision has been issued have had outcomes that favour climate action.

It may be that one legal case can’t change the course of history – but that won’t stop communities from seeking climate justice. 

• Further reading: ‘NGO report calls for fossil fuel tax to help poor countries recover from climate change damage’. A new Climate Damages Tax has been proposed in a bid to generate much-needed funds to help countries least responsible for the climate crisis cope with the costs, while also helping to accelerate the phase out of fossil fuels by making their production more expensive through progressively ratcheting up the tax rate each year.
• Canada’s oil sands present a paradox between economic growth and environmental stewardship. As some of the world’s largest reserves of heavy crude oil, they are integral to meeting global energy demands. However, their environmental impact, characterised by significant greenhouse gas emissions and extensive landscape disruption, has sparked international concern and domestic debate.