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1、Global trends in climate change litigation:2023 snapshotJoana Setzer and Catherine Higham The Centre for Climate Change Economics and Policy(CCCEP)The Centre for Climate Change Economics and Policy(CCCEP)was established in 2008 to advance public and private action on climate change through rigorous,
2、innovative research.The Centre is hosted jointly by the University of Leeds and the London School of Economics and Political Science.It is funded by the UK Economic and Social Research Council.www.cccep.ac.uk The Grantham Research Institute on Climate Change and the EnvironmentThe Grantham Research
3、Institute on Climate Change and the Environment was established in 2008 at the London School of Economics and Political Science.The Institute brings together international expertise on economics,as well as finance,geography,the environment,international development and political economy to establish
4、 a world-leading centre for policy-relevant research,teaching and training in climate change and the environment.It is funded by the Grantham Foundation for the Protection of the Environment,which also funds the Grantham Institute Climate Change and the Environment at Imperial College London.www.lse
5、.ac.uk/grantham About the authors Joana SetzerJoana Setzer is an Assistant Professorial Research Fellow at the Grantham Research Institute on Climate Change and the Environment.CatherineCatherine HighamHigham is a Policy Fellow(Climate Change Laws of the World)at the Grantham Research Institute on C
6、limate Change and the Environment.Acknowledgements This report could not have been written without the work of Dr Maria Antonia Tigre,Professor Michael Gerrard,and Michael Burger,and the Sabin Center for Climate Change Laws Network of Peer Reviewers,who have worked so hard to keep track of the many
7、developments in global climate cases.We are also grateful for the comments and inputs provided by Dr Tigre and Mr Burger on the content of this report.The authors also thank Tiffanie Chan,Dr Ian Higham,Dr Kim Bouwer,Nigel Brook,Prof Cynthia Williams,Sophie Prinz,Zaneta Sedilekova,Jasper Teulings,Let
8、ty Thomas and Dr Yue Zhao for their helpful review comments on this report.Special thanks go to Emily Bradeen for her invaluable research assistance and inputs to the writing of this report,and to Isabela Keuschnigg for her support,in particular with navigating the many new developments in German cl
9、imate litigation.Georgina Kyriacou copy-edited the report,with production support from Natalie Pearson.The authors declare financial support from the Economic and Social Research Council(ESRC),the Foundation for International Law for the Environment(FILE)and the Grantham Foundation for the Protectio
10、n of the Environment for the submitted work.The authors declare no other relationships or activities that could appear to have influenced the submitted work.The views in this report are those of the authors and do not necessarily represent those of the host institutions or funders.Any errors and omi
11、ssions remain those of the authors.This report was first published in June 2023 by the Grantham Research Institute on Climate Change and the Environment and the Centre for Climate Change Economics and Policy.The authors,2023 Permissions requests should be directed to the Grantham Research Institute.
12、Suggested citation:Suggested citation:Setzer J and Higham C(2023)Global Trends in Climate Change Litigation:2023 Snapshot.London:Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy,London School of Economics and Political Science 1 1 C
13、ontents SummarySummary .2 2 IntroductionIntroduction .8 8 Part I.Understanding overall trendsPart I.Understanding overall trends .11 11 Location and timing of cases .11 11 Claimants and defendants:key actors in climate litigation .1818 Strategic climate change litigation and case strategies .1919 Ou
14、tcomes and impacts of climate litigation .2727 Part II:Litigation trends in focusPart II:Litigation trends in focus .3232 Developments in litigation against governments:the roles of human rights and climate legislation .3232 Frontiers of corporate liability litigation:past and future responsibility,
15、and loss and damage .3535 Managing climate risks:good investments in a warming world?.3737 Climate-washing and green claims .3939 Combined strategies targeting the full lifecycle of high-emitting activities .4242 Future trends .4444 ConclusionConclusion .4747 Appendix.Methodological notesAppendix.Me
16、thodological notes .4848 ReferencesReferences .5050 2 2 Summary This report reviews key global developments in climate change litigation,with a focus on the period June 2022 to May 2023,drawing primarily on the Climate Change Litigation databases maintained by the Sabin Centre for Climate Change Law
17、.This report reviews key global developments in climate change litigation,with a focus on the period June 2022 to May 2023,drawing primarily on the Climate Change Litigation databases maintained by the Sabin Centre for Climate Change Law.Overview of observations and trends Case numbers continue to g
18、row but the overall rate of growth may be slowing Case numbers continue to grow but the overall rate of growth may be slowing Overall,more than 2,341 cases have been captured in the Sabin Centers climate litigation databases.Around two-thirds of these cases(1,557)have been filed since 2015,the year
19、of the Paris Agreement.Of these,190 were filed in the last 12 months.Although the overall number of cases continues to grow,the growth rate may be slowing.This appears to be due in part to a continuing decline in the number of cases filed in the United States in the years since the end of the Trump
20、administration.Outside the US,growth has remained relatively steady,except in 2021,when there was a significant spike in the number of cases filed.Climate change litigation continues to be identified in new jurisdictions Climate change litigation continues to be identified in new jurisdictions In th
21、e past 12 months,cases from seven new jurisdictions were added to the databases:Bulgaria,China,Finland,Romania,Russia,Thailand and Turkey.The growth in new cases continues to vary Key trends,1 June 202231 May 2023 2,341 cases have been captured in the Sabin Centers climate change litigation database
22、s,190 of which were filed in the last 12 months.The growth rate in cases appears to beslowing but diversity in cases is still expanding.Climate change litigation has now been additionally identified in Bulgaria,China,Finland,Romania,Russia,Thailand and Turkey.More than 50%of climate cases have direc
23、t judicial outcomes that can be understood asfavourable to climate action.Climate cases continue to have significant indirect impactson climate change decision-making beyond the courtroom,too.Domestic legal protections(e.g.for the right to a healthy environment)along withdomestic climate legislation
24、,play a critical role in cases against governments.Litigants are employing recognisable strategies across different jurisdictions.Mostrecorded cases are climate-aligned outcomes but non-climate aligned litigation(e.g.ESG backlash)is increasing.More cases are being filed against corporate actors,with
25、 a more complex range of legalarguments.Around 20 cases filed by US cities and states against the Carbon Majors arenow likely to go to trial.There has been growth in climate-washing cases challenging the accuracy of greenclaims and commitments.Some cases seeking financial damages are also challengin
26、gdisinformation,with many relying on consumer protection law.Challenges to the climate policy response of governments and companies have grownsignificantly in number outside the US.Litigation concerning investment decisions is increasing and can help clarify theparameters within which decisions shou
27、ld be made in the context of climate change.High-emitting activities are now more likely to be challenged at different points in theirlifecycle,from initial financing to final project approval.3 3 significantly between jurisdictions,with Germany standing out as having a high number of recent cases.A
28、lthough the majority of cases are filed in the Global North,new cases continue to be identified in the Global South(135),with innovative arguments based on human and constitutional rights being a common theme.Newly identified cases in China suggest that China may be developing a unique form of clima
29、te litigation,where the courts may play a role in guiding enterprises response to climate change.T Three requests for advisory opinions from international courts and tribunals may shape hree requests for advisory opinions from international courts and tribunals may shape future litigationfuture liti
30、gation Requests for advisory opinions have been filed before the International Tribunal on the Law of the Sea(ITLOS),the Inter-American Court of Human Rights and the International Court of Justice.Although such opinions are non-binding,they have great potential to shape the future development of cli
31、mate change law.Outside the USOutside the US,NGOs and individuals continue to file many climate cases,targeting a diverse NGOs and individuals continue to file many climate cases,targeting a diverse range of actorsrange of actors,including coincluding companiempanies s Nearly 90%of the cases filed s
32、ince June 2022 outside the US(hereafter referred to as Global cases)have been brought by non-governmental organisations(NGOs),individuals,or both acting together,continuing a trend from previous years.However,there has been a decline in the proportion of Global cases filed gainst governments.Histori
33、cally,these have made up 70%of cases;in the last 12 months only around 54%of cases filed were targeting this group.On the other hand,strategic litigation against companies continues to develop,with cases targeting corporate actors from across a growing range of sectors.The number of straThe number o
34、f strategic cases continues to tegic cases continues to riserise,with,with litigants employing recognisable strategies litigants employing recognisable strategies across different jurisdictionsacross different jurisdictions Many climate cases can be classified as strategic,meaning that they are file
35、d with the aim of influencing the broader debate around decision-making with climate change relevance.Litigants in strategic cases often use similar strategies to those employed elsewhere.In assessing the strategies used in strategic cases that were filed outside the US between 2015 and May 2023 we
36、identify the following:1 Government fGovernment frameworkramework casescases:81 cases have been filed against governments outside the US,which seek to challenge their overall climate policy response.Cases may be focused on challenging the lack of ambition of the response,or a failure to implement po
37、licies or legislation,or both.Corporate frameworkCorporate framework cases:cases:17 cases have been filed against large corporations challenging their climate plans and/or targets on the basis that these are inadequate.Some of these cases may also involve arguments about climate-washing(see below).I
38、 Integrating climate considerationsntegrating climate considerations cases cases:206 cases that seek to integrate climate considerations,standards or principles into a given decision have been filed globally.Such cases are often filed with the dual goal of stopping specific harmful policies and/or p
39、rojects and making climate concerns more mainstream among policymakers.Many such cases challenge the development of new fossil fuel projects.Turning off the tapsTurning off the taps cases cases:28 cases aimed at preventing the flow of finance to high-emitting or harmful projects or activities have b
40、een filed globally,14 against public bodies 1 Many cases employ more than one strategy and are therefore counted more than once.4 4 or state-owned financial institutions(such as export credit agencies),and 12 against private parties including banks and pension funds.FailureFailure-toto-adaptadapt ca
41、ses:cases:14 cases challenge a government or corporation for failure to adapt to the requirements of the climate crisis,either by failing to adapt property or operations to physical risks or by failing to consider transition risks.Polluter paysPolluter pays (compensa(compensation)tion)casescases:17
42、cases seeking monetary damages or awards from defendants based on an alleged contribution to climate change harms have been filed.These include cases seeking compensation for past and present loss and damage associated with climate change;contributions to the costs of adapting to anticipated future
43、climate impacts;compensation to offset emissions,where defendants activities have caused damage to carbon climate sinks.ClimateClimate-washingwashing cases cases:57 cases challenge inaccurate government or corporate narratives regarding contributions to the transition to a low-carbon future,or misin
44、formation about climate science.The overwhelming majority of these(52)have been filed against corporations.Personal responsibilityPersonal responsibility cases cases:8 cases seek to incentivise the prioritisation of climate issues among public and private decision-makers,by attributing personal resp
45、onsibility,whether criminal or civil,for a failure to adequately manage climate risks.The last few years have seen an explosion of climateThe last few years have seen an explosion of climate-washing caseswashing cases One strategy that has seen significant growth in recent years has been the focus o
46、n companies so-called climate-washing activities,concerning both climate misinformation and misleading green claims.In addition to looking at non-US cases,in Part II of the report we took a more in-depth look at the growth in both US and non-US cases filed against companies and changes in this figur
47、e over time.We find that a total of 81 climate-washing cases against companies were filed between 2015 and 2022.Of these,27 were filed in 2021 and 26 were filed in 2022,compared with just 9 cases in 2020 and 6 cases in 2019.Not all Not all strastrategic litigation aims to advance climate actiontegic
48、 litigation aims to advance climate action Strategic litigation may seek to delay or prevent climate action.We call this non-climate aligned litigation.Outside the US,such litigation can be difficult to identify,in part because cases are less likely to fall within the fairly narrow definition of cli
49、mate litigation employed in the databases.Nonetheless,new cases challenging government powers to regulate or intervene in certain areas have been identified in the last 12 months.In the US anti-ESG environmental/social/governance backlash litigation is one of the most recent trends to emerge.Just Ju
50、st t transition cases ransition cases are are being filed against governments and companiesbeing filed against governments and companies Climate litigation is commonly associated with pro-regulatory(i.e.climate-aligned)cases aimed at advancing climate action and anti-regulatory(i.e.non-climate-align
51、ed)cases seeking to delay or obstruct climate action.We also distinguish just transition litigation:cases that aim to strike a balance between advancing the transition to a low-carbon economy with protecting the rights of affected communities,highlighting the complex interests and needs involved in
52、the transition process.Climate change litigation continues to havClimate change litigation continues to have significant impacts on climate governancee significant impacts on climate governance An assessment of direct judicial outcomes in climate change cases indicates that more than 50%of the 549 c
53、ases in which either an interim or final decision has so far been rendered have outcomes favourable to climate action.Some cases with a favourable outcome have directly led to new climate policies and action.However,even when there is a positive judicial outcome,it is not always clear that the way i
54、n which a judgment is implemented would lead to an increase in climate mitigation or adaptation.5 5 To understand the impact of climate litigation on climate governance and beyond,it is also critical to look at indirect impacts.These include the way in which climate litigation is amplifying percepti
55、ons and awareness of climate change risks among key stakeholders,including financial regulators and the legal community;the way in which climate change litigation is impacting the markets,with new research suggesting that litigation against companies impacts their share prices;and the way in which e
56、ven unsuccessful litigation can shape narratives around climate action,encouraging decision-makers to change their approach.Trends in focus:recent developments in climate litigation Against Against governmentsgovernments:t the he role of human rights and the role of climate legislationrole of human
57、rights and the role of climate legislation In the past 12 months there have been significant developments in government framework cases,also known as systemic climate litigation or Urgenda-style cases after the Urgenda Foundation v.State of the Netherlands case.International and regional courts are
58、playing a key role in the devInternational and regional courts are playing a key role in the development of jurisprudence elopment of jurisprudence relevant to framework cases relevant to framework cases Recent developments at the international level include a decision by the UN Human Rights Committ
59、ee in the case of Daniel Billy and others v.Australia,finding that states have an obligation to take adaptation measures to protect the human rights of citizens.The European Court of Human Rights is soon expected to rule on three cases that further question states obligation to protect human rights
60、through the adoption of ambitious mitigation targets(KlimaSeniorinnen v.Switzerland and Careme v.France,heard in May 2023,and Duarte Agostinho et al.v.Portugal and 32 Others,scheduled for September).Domestic legal protections are also of Domestic legal protections are also of critical importancecrit
61、ical importance Domestic legal protections,such as the constitutional right to a healthy environment,have been part of the basis for framework cases to advance in various countries(e.g.Held v.Montana and Navahine F.v.Hawaii Department of Transportation).At the same time,climate change framework laws
62、 continue to offer a statutory basis for new cases both at the framework and the sectoral level(see Deutsche Umwelthilfe v.Germany).H Human rights arguments against governments uman rights arguments against governments are used extensively are used extensively beyond fbeyond framework casesramework
63、cases This has been seen,for example,in the Cancel Coal case in South Africa,where arguments and evidence similar to those first developed in framework cases were used to challenge a government procurement process.Against Against corporations:corporations:past and future responsibility,and loss and
64、damage past and future responsibility,and loss and damage Efforts to establish corporate responsibility for harm from climate change caused by products have gained traction in recent years.Around 60 cases have been filed globally against the so-called Carbon Majors,with 20 of the 29 US cases filed b
65、y cities and states.A A mmerging erging of parallel trendsof parallel trends in corporate casesin corporate cases has occurred in the past 12 monthshas occurred in the past 12 months Corporate liability cases have been characterised by significant differences in the type of relief sought.Some seek f
66、inancial damages based on historic responsibility.Others aim to align companies activities with the Paris Agreement and human rights obligations.An important development in recent months is the merging of both types of cases(e.g.Asmania et al.v.Holcim and Greenpeace Italy et al.v.ENI S.p.A).I Increa
67、sed emphasis ncreased emphasis is being placed is being placed on current and past losseson current and past losses Cases such as Asmania highlight damages already suffered due to climate-related events.Loss and damage arguments are increasingly prevalent in polluter-pays cases.For instance,Municipa
68、lities of Puerto Rico v.Exxon Mobil Corp links hurricane impacts to compounded losses sustained by the communities.6 6 Disinformation Disinformation is becoming is becoming increasingly importantincreasingly important Cases continue to develop new arguments relating to disinformation spread by high-
69、emitting companies about the impacts of their products.Municipalities of Puerto Rico v.Exxon Mobil Corp accuses fossil fuel companies of continuous deception,amounting to racketeering activities.The case uses claims under the Racketeer Influenced and Corrupt Organizations Act(RICO),a piece of legisl
70、ation that was previously used in past cases against the tobacco industry.Corporate responsibility cases continue to expandCorporate responsibility cases continue to expand beyond the Carbon Majorsbeyond the Carbon Majors Several cases filed against auto manufacturers in Germany seeking to prohibit
71、the production and sale of internal combustion engine vehicles have now been dismissed.However,new cases continue to be filed invoking due diligence obligations,including cases involving financial institutions.Managing climate risks:good investments in a warming world?Managing climate risks:good inv
72、estments in a warming world?Recent litigation cases have focused on the question of what constitutes a reasonable investment strategy in the context of the low-carbon transition.These cases involve interpreting legal obligations under corporate and financial law to protect firms,shareholders,investo
73、rs and beneficiaries.Focus on predicted future impactsFocus on predicted future impacts of current investment decisionsof current investment decisions Early cases filed by shareholders focused on financial impacts already sustained by the company due to mismanagement and failure to disclose climate
74、risks.More recent cases,such as ClientEarth v.Shell Board of Directors,focus on predicted future impacts,arguing that continued investment in fossil fuel projects will lead to long-term losses.While the initial case was rejected by the UK High Court,it raises questions about decision-makers role in
75、determining our planetary future and the need to adapt to the reality of climate change.Litigation can help clarify responsibilities Litigation can help clarify responsibilities and encourage active engagement with uncertainty by and encourage active engagement with uncertainty by key decisionkey de
76、cision-makersmakers Adapting decision-making and risk management systems to the complexity of climate change remains a challenge,meaning that active and transparent engagement with uncertainty is critical.Litigation can help clarify obligations and responsibilities,as seen in the case of Butler-Slos
77、s v.Charities Commission,where trustees successfully sought confirmation that aligning investments with environmental goals is not a breach of fiduciary duties.ClimateClimate-washing and green claimswashing and green claims ClimateClimate-washing cases have surged in recent yearswashing cases have s
78、urged in recent years and in the future are likely to be shaped by and in the future are likely to be shaped by new laws and standards plus action from enforcement agenciesnew laws and standards plus action from enforcement agencies These cases cover various types of misinformation,including challen
79、ges to corporate climate commitments,claims about product attributes,overstated investments or support for climate action,and failure to disclose climate risks.Examples include complaints against Glencore for expanding coal production despite net zero commitments,challenges to claims of products bei
80、ng climate-neutral,a case against Volkswagen for inconsistency between climate pledges and corporate lobbying,and allegations of failure to disclose climate risks by banks.There have also been complaints regarding state-sponsored greenwashing in Australia and challenges to the EUs Green Taxonomy.Law
81、s and standards,such as the now updated OECD Guidelines,EU Directive on Green Claims,and initiatives by regulatory bodies,are becoming more common.This could lead to further litigation and discourage climate-washing behaviour.Combined strategies targeting Combined strategies targeting the the full l
82、ifecycle of full lifecycle of highhigh-emitting activitiesemitting activities Key highKey high-emitting sectors are increasingly subject to litigation all along the value chainemitting sectors are increasingly subject to litigation all along the value chain Cases continue to be filed against new fos
83、sil fuel developments targeting multiple stages of the value chain,from project development cases(e.g.Sierra Club Canada Foundation et al.v.7 7 Minister of Environment and Climate Change Canada et al.)to cases concerning financing for the entire sector(e.g.Notre Affaire Tous v.BNP Paribas).Similar t
84、rends are observed in cases addressing deforestation,where lawsuits target financing and communications by agriculture companies contributing to deforestation(e.g.a second lawsuit against BNP Paribas by Brazilian and French NGOs and the complaint filed with the US Securities and Exchange Commission
85、against Brazilian meat giant JBS).Future trends We predict increasing litigation focused on the following issues in the coming years:L Litigationitigation focused on the biodiversityfocused on the biodiversity climate nexusclimate nexus,particularly arguing that more ambitious measures are needed to
86、 restore forests and enhance their carbon absorption capacities F Futureuture cases cases a ad ddressingdressing the duties of governments and corporations to protect the oceanthe duties of governments and corporations to protect the ocean from further climate impacts and to explore ocean acidificat
87、ion and ocean-based carbon dioxide removal techniques L Litigationitigation arising from extreme weather events where climate change may not be the arising from extreme weather events where climate change may not be the central focus,central focus,but where cases can still have significant implicati
88、ons for climate action C Casesases concerning shortconcerning short-lived clived climate pollutants,limate pollutants,such as methane and black carbon soot,which are identified by scientists as crucial targets for mitigation International litigation between states,International litigation between st
89、ates,particularly regarding disputes over fossil fuel production and use.The Indonesian island of Pari,which lies just above sea level and is thus vulnerable to sea level rise.(See the case of Asmania v.Holcim,outlined on p36.)Photo:zvg 8 8 Introduction This is the fifth annual instalment of the Gra
90、ntham Research Institutes Global trends in climate change litigation series.Each report provides a synthesis of the latest research and developments in the climate change litigation field,outlining general trends to date as well as focusing on cases filed in the previous 12 months.This reports focus
91、 is the period 1 June 2022 to 31 May 2023 and contains an update on case numbers,metrics and categorisations based on those used in previous years reports,along with a thematic review of recent cases.Defining climate change litigation Our primary goal in this series is to help readers understand the
92、 ways in which the law and the courts are being used as a tool to advance and challenge a variety of often inconsistent climate change-related agendas.To provide a succinct and coherent overview of this rapidly evolving field,we adopt a fairly narrow definition of climate change litigation.We consid
93、er such litigation to include cases before judicial and quasi-judicial bodies(this includes bodies such as arbitral tribunals,national human rights institutions,consumer watchdogs,and OECD National Contact Points,to name just a few)that involve material issues of climate change science,policy,or law
94、.This is the approach adopted by the Sabin Center for Climate Change Law at Columbia Law School in identifying cases for inclusion in its Climate Change Litigation Databases,which form the primary data source for this report.We acknowledge that although it is helpful for our purposes,this definition
95、 of climate change litigation has its limitations.As many scholars have noted,there will be numerous cases in which neither climate change science nor climate change law is at the heart of the case,but which will nonetheless have a serious impact on the volume of greenhouse gas emissions or on a cou
96、ntrys resilience to climate change(see Peel and Osofsky,2020;Bouwer,2018;Hilson,2010).Notably,the narrow definition of climate change cases adopted here excludes other forms of environmental litigation,which may focus primarily on legal protections for biodiversity or air quality but which may never
97、theless have significant co-benefits for climate action.Similarly,cases in which climate change is a more peripheral issue are not included in this study,largely because those cases are not included in the climate litigation databases due to insufficient capacity to process an ever larger number of
98、cases.We should point out that climate litigation in countries of the Global South is more likely to bring in climate change issues at the periphery of the argument,and therefore excluding these cases may contribute to indicating a bias towards climate litigation in Global North countries(Peel and L
99、in,2019).For example,a recent report on climate change in Indonesia identified at least 80 criminal cases in which the term climate change featured in at least one court document,including witness statements(Sulistiawati,2023).Many of these cases are centred on responsibility for forest fires and il
100、legal deforestation and include a“superficial”(ibid.)mention of climate change in the context of the longer-term impacts of such activities.While peripheral cases can play a role in shaping climate jurisprudence,and may when taken in aggregate be important for global climate action,such cases will n
101、ot be discussed in this report for the reasons stated.Data sources The primary source of data for this report is the Global Climate Change Litigation database maintained by the Sabin Center for Climate Change Law,supported by institutional partners including the Grantham Research Institute on Climat
102、e Change and the Environment.A separate US Climate Change Litigation Database is maintained by the Sabin Center in collaboration with the law firm Arnold&Porter.This report focuses primarily on lessons to be drawn from the Global(i.e.non-US)database,but supplements this by drawing on US data where w
103、e deem this helpful for highlighting similarities and differences between trends in the US and those elsewhere.9 9 Data coverage and limitations Since 2021,coverage of many jurisdictions has improved,thanks to the Sabin Centers convening of the Peer Review Network of Climate Litigation,a group of sc
104、holars and practitioners from around the world who track litigation within specified geographical areas and participate in ongoing information-and knowledge-sharing and dialogue about climate litigation.Nonetheless,the databases are unlikely to contain every case from every court in every country.Th
105、e US Climate Change Litigation Database benefits from the assistance of commercial litigation databases in the US and is therefore likely to be more comprehensive than the Global database.The databases offer a diverse and cross-cutting sample of cases covering a wide range of geographies,levels of g
106、overnment and types of actors and argument,enabling observations to be made about trends and innovations,which often inform and inspire further litigation efforts.While we attempt to give combined figures for cases in and outside the US,in some instances,given the high volume of US cases,we treat US
107、 and non-US cases separately.Box A.Understanding climate-alignment of cases and the emergence of just transition litigation Attention on climate litigation tends to focus on cases seeking to advance climate action(Setzer and Higham,2022),sometimes referred to as pro-regulatory cases.However,not all
108、climate litigation is filed with that aim in mind.Climate litigation can also be brought to challenge the introduction of regulations or policies that would lead to greenhouse gas emission reductions or other positive climate outcomes.Such cases have in the past been referred to as anti-regulatory(P
109、eel and Osofksy,2015),defensive(Ghaleigh,2010)or simply anti(Hilson,2010).For the most part they are filed by litigants who have a financial or ideological interest in delaying or obstructing climate action.As in our previous reports,we adopt the terms climate-aligned and non-climate-aligned to desc
110、ribe these two types of cases.We use the idea of alignment to reflect the fact that the litigants motivation for filing a given case may extend beyond the desire to accelerate or delay global or local climate action agendas.In this report we introduce a third distinct category of cases:just transiti
111、on litigation.These are cases that challenge not the lack of climate action but the manner in which that action is being taken(see further discussion on p.18).In our 2022 report we classified such cases as a sub-category of non-climate-aligned litigation.However,as our understanding of the issues in
112、volved in these cases evolves,it is evident that this is too simplistic a way of understanding the complex issues raised.As we discuss in further detail below,the objective of just transition litigation is not to undermine climate action.Often,the applicants aim is to strike a better balance between
113、 the actions taken to advance the transition and the rights of communities impacted by those actions.In this regard,the examination of just transition litigation highlights the diverse interests and needs that co-exist in the transition to a low-carbon economy(Savaresi et al.,forthcoming;Tigre et al
114、.,2023b).1010 Structure of the report Part IPart I of the report provides an update on overall global trends in climate litigation,discusses the increased use of strategic climate litigation and some of the strategies employed,reviews the direct outcomes of litigation and provides a discussion of th
115、e broader impacts and costs of litigation.Part IIPart II takes a more detailed look at some of the strategies identified in Part I and at the interrelationships between them.We then move on to a discussion of possible future trends in litigation,focusing on the climate policy areas we think are most
116、 likely to be subject to legal controversy in the coming months and years.A brief conclusion sums up and looks to future trends.More detail about our methodology is provided in the Appendix.Box B.Improving the provision of data on climate law In previous years,data for this report series has been dr
117、awn from the Climate Change Laws of the World(CCLW)database,maintained by the Grantham Research Institute in partnership with the Sabin Center.The CCLW database contains the most comprehensive global dataset of climate change legislation and policy from around the world.This database has since May 2
118、023 been upgraded through a new partnership with climate tech start-up Climate Policy Radar,which enables users to benefit from tools grounded in machine learning and natural language processing techniques to search for information within the full text of laws and policies and in multiple languages.
119、Prior to the upgrade,the CCLW database also offered litigation data drawn from the Global Climate Change Litigation database.As a temporary measure,litigation and legislation data will be offered separately as the Grantham Research Institute,the Sabin Center and Climate Policy Radar work together to
120、 develop a single integrated global resource to better support data users.Access the datasets at:climate-laws.org and .11 11 Part I.Understanding overall trends In this section we provide an update on overall trends,including global case numbers and the timing,location,actors and focus of climate ch
121、ange litigation.We discuss the increased use of strategic climate litigation and some of the strategies employed by litigants,review the direct outcomes of litigation and provide a discussion of the broader impacts and costs that litigation can entail.Location and timing of cases Cases over timeCase
122、s over time Overall,at least 2,341 cases have been captured in the Sabin Centers climate litigation databases.2 Of these,190 were filed in the last 12 months(i.e.1 June 2022 to 31 May 2023).Around two-thirds of the total cases(1,157)have been filed since 2015,the year of the Paris Agreement.That yea
123、r saw the start of a new wave of litigation characterised by increasing diversity in the range of legal arguments used and the geographical spread of the cases(Setzer and Higham,2022).The growth rate in new climate cases may be The growth rate in new climate cases may be slowingslowing Although the
124、overall body of cases has continued to grow,data from the last few years suggests that growth may be slowing(see Figure 1.1).In the calendar year 2021 a total of 266 new cases were filed,while in 2022 this figure was 222.Figure 1.1.Total climate change cases over time,US and non-US(1986 to 31 May 20
125、23)Note:Data collection for 2023 is still underway,and there may be a small delay between cases being filed and being identified and processed for inclusion in the databases,therefore the 2023 data are incomplete.Source:Authors based on Sabin Center databases 2 Includes all cases in the most recent
126、data download for US cases available on 31 May 2023(updated on 23 May),and all cases included in the Global database,or being processed for inclusion in the Global database,as of 31 May 2023.05003008947020004200520062007200
127、82009200000222023USAll other countries 1212 Part of the slowdown in the overall rate of growth may be the fact that US case numbers peaked in 2020,the last year of the Trump presidency(see further Silverman-Roati,2021).By contrast,the number of non-US case
128、s filed each year continues to see fairly steady incremental growth,except in 2021 when there was a significant surge in cases.While it is not clear what caused this surge,one explanation may lie in increased availability of resources within and engagement from the NGO community who were actively in
129、volved in pursuing climate litigation around this time(see also discussion of claimants and defendants on p.18 below).Of course,many climate cases particularly those involving requests for financial compensation are still at very early stages.Should such cases meet with success,it is likely their nu
130、mber would increase,particularly in light of early interest shown by funders of commercial litigation(see Setzer and Higham,2021;Kaminski,2023;Hodgson,2023).Cases by countryCases by country Cases have been filed in at least 51 countries from across every region of the world(see Figure 1.2).Cases hav
131、e also been filed before international or regional bodies,courts or tribunals,which is discussed further later on.In the past year,cases from seven new jurisdictions have been added to the Global database:Bulgaria(first case filed in 2021),China(first case filed in 2016),Finland(first case filed in
132、2022),Romania(first case filed in 2023),Russia(first case filed in 2022),Thailand(first case filed in 2022),and Turkey(first case filed in 2021).The United States remains the country with the highest number of documented climate cases,with 1,590 cases in total.Next is Australia,where 130 cases have
133、been identified,and the United Kingdom,where 102 cases have been identified.67 cases have been filed before the Court of Justice of the European Union.Relatively high numbers of cases have also been documented in Germany(59),Brazil(40),and Canada(35).Figure 1.2.Number of climate litigation cases aro
134、und the world,per jurisdiction(up to 31 May 2023)Note:Cumulative figures to 31 May 2023.This figure only includes cases filed before national courts or quasi-judicial bodies specific to a given country.The 118 cases filed before international or regional bodies,including the courts of the European U
135、nion,are not included.Source:Authors based on Sabin Center databases.Created with .1313 National contextNational contexts s inform the nature and number of climate casesinform the nature and number of climate cases The number of cases is growing at varying rates across different jurisdictions.For ex
136、ample,the number of German cases documented in the Global database has doubled since our last report(increasing from 27 to 59).This may in part be explained by an increase in climate litigation in the wake of the successful outcome in Neubauer et al.v.Germany,which has been described as leading to a
137、 new generation of German cases(EUFJE National Report Germany,2022).Subsequent cases concern the implementation of the Climate Protection Act which was the subject of the Neubauer judgment at the sectoral level(e.g.BUND v.Germany;Deutsche Umwelthilfe v.Germany(LULUCF),subnational climate action(e.g
138、Luca Salis et al.v.State of Sachsen-Anhalt),and cases challenging the transition plans of corporations,including those in the auto industry(e.g.Kaiser et al.v.Volkswagen AG).Complaints to consumer protection bodies and courts concerning climate-washing make a significant proportion of the cases(21 o
139、ut of 59 see further discussion in Part II).This rapid rise in cases in Germany in recent years provides a good reminder of the need to take national contexts and specificities into account when considering trends in litigation(see also Box 1.1).Box 1.1.How climate change legislation shapes climate
140、change litigation and vice versa Not all climate change litigation relies on climate change legislation,that is,on legislation specifically introduced as part of a countrys climate policy response.Instead,many of the highest-profile climate change litigation cases have been based in pre-existing leg
141、al duties,such as obligations under constitutional,human rights,consumer protection,or tort law.In these cases,litigants are asking the courts to interpret how such well-established legal duties should be interpreted in the face of novel fact patterns involving climate change.Nonetheless,the existen
142、ce of climate change-specific legislation,particularly climate change framework legislation,is likely to shape the form of climate litigation in a given country.Around 60 countries around the world have now adopted domestic climate change framework laws that establish long-term climate change object
143、ives,and also introduce the institutions and inter-institutional processes required to meet them(Higham et al.,2021;Averchenkova et al.,2017;Iacobuta et al.,2018).Of these,nearly half include a target to achieve net zero emissions by 2060 or earlier.Such laws often enshrine commitments made at the i
144、nternational level through countries Nationally Determined Contributions(NDCs).However,national laws may also be more ambitious than the NDCs(at least initially)and surpass them in scope.National variation in the design of these laws has a significant impact on the legal arguments adopted by litigan
145、ts in climate change litigation cases,as discussed further in Part II.Frequently,such legislation is adopted or amended to create the necessary governance arrangements to support ambitious climate policy programmes and is then followed by further legislative action aimed at implementing specific cli
146、mate policy measures.Such legislation may be shaped in part by past climate change litigation within a given jurisdiction,as in the case of Germany,where new climate targets were introduced following the case of Neubauer et al.v Germany.The existence of such legislation is also likely to shape the f
147、uture direction of litigation efforts(for further discussion of this phenomenon in the European context see Higham et al.,2023).1414 Cases in the Global SouthCases in the Global South Historically,most climate cases falling within our definition have been filed in the Global North.3 However,recent y
148、ears have seen a growth in cases filed before courts in the Global South,along with improvements in the collection of such cases.Overall,135 cases from the Global South have now been captured in the database,with more than 50 of those filed since 2020(see Figure 1.3).Figure 1.3.Number of climate lit
149、igation cases in the Global South over time(2004 up to 31 May 2023)Source:Authors based on Sabin Center databases Several key trends specific to Global South climate litigation have previously been identified.Among the most important trends are the innovative use of human rights arguments(Garavito,2
150、020),particularly arguments relying on the right to a healthy environment,and cases seeking to address gaps in the enforcement of pre-existing environmental legislation aimed at preventing environmental degradation(Lin and Peel,2019;Setzer and Benjamin,2020a,2020b;Ohdedar,2022).Such arguments have b
151、een most frequently used before Latin American courts(Auz,2022;de Vilchez and Savaresi,2023;Tigre et al.,2023b),but also in Africa(Bouwer,2022;Bouwer et al.,forthcoming 2024;Loser,forthcoming),and to a lesser extent in Asia.In many cases such legislation may not be specifically targeted at climate i
152、ssues.This year,for the first time,cases from China have been added to the Global database,with indications that Chinese courts may continue to develop a unique form of climate litigation appropriate to their national context(see Box 1.2 below).3 The distinction between the Global South and Global N
153、orth is based on economic inequalities,but the Global South is not a homogeneous group of countries:legal development and legal capacity vary by country.We use the list of G77+China countries to determine if a country is in the Global South.05420052006200720082009 2010 2011 2012 2013 2014
154、 2015 2016 2017 2018 2019 2020 2021 2022 2023Global South Cases 1515 D Developments inevelopments in Global South jurisdictions thatGlobal South jurisdictions that illustrate key trendsillustrate key trends South Africa:An important decision was recently handed by a South African Court in Sustaining
155、 the Wild Coast NPC and Others v.Minister of Mineral Resources and Energy and Others(Moodley,2022).In September 2022 the High Court of South Africa confirmed that the grant of an exploration right for oil and gas,resulting in the need to conduct a seismic survey along the South Coast of South Africa
156、,was unlawful.The Court referred to the unburnable fossil fuel reserves and the inconsistency of further oil and gas exploitation with South Africas international climate change commitments.To understand developments in South Africa in full,we need to look beyond the narrow definition of climate cas
157、es.One relevant case is Trustees for the Time Being of the Groundwork Trust and Vukani Environmental Justice Alliance Movement in Action v.Minister of Environmental Affairs(the Deadly Air case),in which the applicants challenged the failure of the South African government to protect peoples constitu
158、tional rights to health and wellbeing from toxic levels of ambient air pollution caused by coal-fired power generation projects in South Africas Mpumalanga province,an area in which 12 coal-fired power stations,a coal-to-liquids plant,a refinery,and many polluting industries and mines are located.So
159、uth Africas Climate Change Act has been delayed and awaiting promulgation for over two years(Loser,forthcoming),so the case was brought as pollution and coal litigation.Professor David Boyd,the UN Special Rapporteur for Human Rights and Environment,intervened as a friend of the court.In March 2022 t
160、he Pretoria High Court issued a landmark decision,and the South African government was for the first time declared in breach of a constitutional right due to the health impacts of air pollution.Box 1.2.Climate litigation in China The first two Chinese cases to be included in the database were filed
161、simultaneously in 2016 by Chinese NGO The Friends of Nature against two state-owned utility companies in the provinces of Gansu and Ningxia.The NGO argued that the companies failure to connect all available renewable power in the province to the grid violated the law on renewable energy,and that the
162、 companies should be held responsible for the environmental damage caused by the unnecessary continued reliance on coal power.The case against Gansu was settled in April 2023,with the Gansu state company agreeing to invest at least 913 million RMB in the construction of new energy supporting grids a
163、nd improve the grids transmission capacity of electricity generated by new energy sources.The second lawsuit Friend of Nature v.Ningxia State Grid is still pending.While these cases were brought against state-owned companies,“it would be unthinkable for courts to pre-empt explicit central policy by
164、overstepping into political roles”in cases more directly targeting government bodies(Yan,2020:374).However,there is potential for cases to be brought between private parties,as suggested by the third climate case filed in China Beijing Fengfujiuxin Marketing and Technology Co.Ltd.v.Zhongyan Zhichuan
165、g Blockchain Co.Ltd.China does not yet have a specific law on climate change,but courts can use existing government climate policies to interpret existing legal duties in favour of more ambitious climate action(Zhu,2022).The possibility that courts in China will increasingly be required to determine
166、 disputes with climate change dimensions is supported by a recent media release by the Supreme Peoples Court of the Peoples Republic of China,after the court issued a new guideline on environmental protection.According to the media release,the guideline“stipulates that courts nationwide need to guid
167、e enterprises to save energy and reduce carbon emissions”.1616 Indonesia:In July 2022,a group of Indonesian youth filed a complaint against the government before the National Human Rights Commission,arguing that the government had failed to fulfil its obligations to protect their human rights includ
168、ing the right to a healthy environment(Indonesian Youths and others v.Indonesia).The case builds on a previous investigation by a national human rights institution,the Philippines Commission on Human Rights,the nearly seven-year-long National Inquiry on Climate Change.That inquiry investigated wheth
169、er 47 of the largest fossil fuel companies in the world had violated the human rights of Filipinos.It was concluded in May 2022,with the Commission stating that major corporate emitters,including their value chains,may be compelled to undertake human rights due diligence and be held accountable for
170、failure to remediate human rights abuses arising from their business operations(see further Setzer and Higham,2022).Although the Indonesian case differs in its focus on the government,the previous Inquiry may provide an important model.Brazil:In July 2022,Brazils constitutional and highest court gav
171、e an unprecedented recognition to the importance of the Paris Agreement.The judgment was given in PSB et al.v.Brazil(on Climate Fund)(ADPF 708),which challenged the government-induced paralysis of the Climate Fund,established by Brazils National Policy on Climate Change to promote the financing of c
172、limate mitigation and adaptation projects.The decision brings significant lessons in a broad range of aspects of climate litigation(Tigre and Setzer,unpublished).The court found for the first time in global climate change litigation that the Paris Agreement is a human rights treaty.This recognition
173、helps parties to integrate climate change and human rights into a shared framework for action,promoting greater accountability,international cooperation and climate justice(Knox,2020).The decision also recognised the importance of climate finance to mitigate greenhouse gas emissions,and addresses ch
174、allenges over the separation of powers.Procedurally,the case provides several legal innovations,including the possibility of having political parties as plaintiffs and the court holding a public hearing to inform the justices on the science and facts of climate change.The court invited 66 experts to
175、 speak,among them scientists,environmentalists,indigenous people,representatives from the agribusiness and financial sectors,economists,academics,parliamentarians and representatives of the federal and state governments.Plenary session,Brazilian Supreme Court,during the judgement on the PSB et al.v.
176、Brazil case on the Climate Fund.Photo:Carlos Moura/SFT.1717 Another case in Brazil shows how litigants in the Global South are innovating in other areas.In June 2022,a Brazilian NGO filed a lawsuit against Brazils national development bank and its investment arm(Conectas Direitos Humanos v.BNDES and
177、 BNDESpar).The NGO claims that BNDESpar,which is responsible for managing BNDESs shareholdings in various high emitting companies,has no procedure in place for assessing the impact of its investments on the climate,and that this is a violation of Brazils commitments under both the Paris Agreement an
178、d the National Policy on Climate Change.Turkey:A case in Turkey also demonstrates some of the challenges facing Global South communities as the impacts of climate change manifest.A cooperative of fishermen operating around the Marmara Lake,a wetland of national importance,filed a case against the go
179、vernment(S.S.Glmarmara ve evresi Su rnleri Kooperatifi v.Republic of Trkiye Ministry of Agriculture and Forestry,Manisa Directorate of Provincial Agriculture and Forestry).The fishermen alleged that the government had failed to prevent the deterioration and drying up of the lake through a failure to
180、 conduct adequate environmental impact assessments for various infrastructure projects,as well as a failure to implement international obligations regarding climate change mitigation.The applicants argue that due to the governments failure to protect the lake,they should be exempt from paying for th
181、eir fisheries licences.International and regional casesInternational and regional cases Although the vast majority of climate cases are filed before domestic courts and the courts of the EU,there have been at least 50 cases or complaints filed before 11 international and regional courts and tribunal
182、s,and before UN Treaty Bodies and Special Procedures and the UN Framework Convention on Climate Change(UNFCCC)Kyoto Protocol Compliance Committee.4 Around 20 of these cases have been filed before human rights bodies,while 12 have been filed before Investor-State Dispute Settlement(ISDS)bodies under
183、International Investment Agreements(see further Fermeglia et al.,forthcoming).5 Ten of the remaining cases were complaints under the non-compliance procedure of the Kyoto Protocol,filed between 2009 and 2018.During the past 12 months,four new cases have been filed before international bodies.These i
184、nclude three requests for advisory opinions from international courts and one complaint requesting that prosecutors from the International Criminal Court investigate the Board of BP for its role in climate change.Three requests for advisory opinions from international courts Three requests for advis
185、ory opinions from international courts Requests for advisory opinions have been filed before the International Tribunal on the Law of the Sea(ITLOS),the Inter-American Court of Human Rights(IACtHR)and the International Court of Justice(ICJ).The request to ITLOS,submitted by the Commission of Small I
186、sland States on Climate Change and International Law,asks the Court to clarify what States obligations are under the United Nations Convention on the Law of the Sea(UNCLOS)in terms of preventing,reducing and controlling pollution of the marine environment and protecting and preserving the marine env
187、ironment in relation to climate change impacts.This is the first time that an advisory opinion has been sought on specific issues associated with sea level rise,and climate change more 4 Currently,we are aware of cases filed or complaints submitted before the following bodies:International Court of
188、Justice,International Tribunal on the Law of the Sea,Inter-American Court of Human Rights,Inter-American Commission on Human Rights,East African Court of Human Rights,European Court of Human Rights,World Trade Organisation Dispute Settlement Body,UNFCCC(Kyoto Protocol Compliance Committee),UN Human
189、Rights Committee and UN Committee on the Rights of the Child,Office of the Prosecutor of the International Criminal Court,various UN Special Procedures,UN Secretary General,Permanent Court of Arbitration,Stockholm Chamber of Commerce,and International Centre for the Settlement of Investment Disputes
190、.As discussed,cases have also been filed before the Court of Justice of the European Union and the European General Court,but we treat cases before EU courts as comparable to cases before domestic courts given the EUs unique supranational status.5 This is only a small sample of all climate-relevant
191、ISDS cases,included for reference,which are more comprehensively mapped elsewhere.1818 generally.It builds on an established track record developed in UNCLOS case law in relation to obligations to protect the marine environment,and advances a legal exploration of the climateocean nexus(Roland Holst,
192、2022).The request to the IACtHR was made jointly by Chile and Colombia,and asks for clarification on the scope of state obligations,in both individual and collective dimensions,to respond to the climate crisis.The request includes questions about climate adaptation and environmental defenders protec
193、tion,matters that were overlooked by a previous advisory opinion(OC-23/17)in which the IACtHR recognised the justiciable right to a healthy environment,making reference to climate change(Viveros and Auz,2023).Also for the first time,the ICJ,the worlds highest court,has been asked to consider the que
194、stion of climate change.The request for an advisory opinion was made by a group of 18 states led by the small island nation of Vanuatu and took over three years to be tabled,in part because standing rules mean that requests for such opinions can only be brought by public international bodies,and the
195、refore require a broad base of support among member states.On 29 March 2023,the UN General Assembly unanimously adopted a resolution to ask the ICJ for an advisory opinion on climate change.The resolution asks the ICJ to clarify the duties of states to protect the climate system and the rights of pr
196、esent and future generations from climate-induced harms,as well as the legal consequences for states that have caused significant climate harm to the planet and its most vulnerable communities.While there is a risk of a cacophony of differing opinions arising from the cases,it is possible that the d
197、ifferences in scope of each request may instead help ensure complementarity and consistency between the opinions ultimately given by the courts(Auz and Viveros-Uehara,2023),which are likely to play a significant role in shaping future cases against governments around the world.Even if advisory opini
198、ons from international courts are almost invariably non-binding,commentators have suggested that they nonetheless carry significant legal and moral weight,providing new reference points for legal discourse(Roland Holst,2022).An advisory opinion from the ICJ,in particular,could make clear that nation
199、s whose emissions of greenhouse gases contribute to serious harm in other countries have a duty under international law to cease or alter their harmful activities(Kysar,2022).The concretisation of reasoning on legal obligations of states adopted in such cases is also likely to inform the decisions o
200、f other courts around the world(Savaresi et al.,2021).Claimants and defendants:key actors in climate litigation N NGOs and GOs and i individuals continue to file ndividuals continue to file a high number ofa high number of climatclimate casese cases Nearly 90%of the cases filed during the 12 months
201、since June 2022 outside the US(hereafter referred to as Global cases)have been brought by non-governmental organisations(NGOs),individuals,or both acting together.This is consistent with our previous years findings.In the US,the percentage remains lower,with just over 70%of cases brought by these ac
202、tors,and a relatively high proportion(13%)of US cases filed in the last year brought by corporations and trade associations.However,it should be noted that this trend is fairly recent.If we compare these figures with the overall number of cases filed since 1986,we see that the proportion of cases fi
203、led by these actors has changed over time:in total just under 60%(440 out of 751)of all Global cases have been filed by NGOs and individuals,while Sabin Center research into cases filed in the US in the four years of the Trump administration demonstrates that around 70%of cases were filed by NGOs(Si
204、lverman-Roati,2021).6 6 Cases brought by NGOs in their capacity as shareholders are classified as NGO cases(e.g.ClientEarth v.Shell Board of Directors).1919 The increasing number of global cases filed by NGOs and individuals largely mirrors the increase in strategic and semi-strategic climate cases
205、filed in recent years(discussed below),showing that litigation continues to be used as a tool for groups that tend to be excluded or who are unsatisfied with climate governance decisions to try to get a seat at the negotiating table(Batros and Khan,2022).Outside the US,cOutside the US,cases are targ
206、eting a more diverse range of actorsases are targeting a more diverse range of actors,beyond governments,beyond governments An examination of the climate litigation datasets suggests that historically,the majority of climate cases have been filed against governments.However,over the past 12 months,t
207、here has been a decline in the proportion of Global cases filed against governments.Only around 52%of the 61 cases filed between 1 June 2022 and 31 May 2023 were uniquely targeting this group.In addition,the four international advisory opinions concern the obligations of governments,but we classifie
208、d them as not having an individual defendant.7 On the other hand,just over 40%of cases were filed with corporations or trade bodies among the defendants(we include here five cases filed against the international football governing body FIFA in a range of European countries,alleging that the organisa
209、tion was involved in greenwashing around the World Cup).8 Strategic climate change litigation and case strategies It is increasingly understood that climate change litigation is being used strategically“as a tool to influence policy outcomes and/or to change corporate and societal behaviour”(Bouwer
210、and Setzer,2020).In such cases,the focus is on achieving pro-regulatory impacts,although anti-climate uses of strategic litigation(opposing climate change adaptation and/or mitigation policies,legislation or projects)are also possible(Golnarghi et al.,2021).In part,the climate change movement has al
211、ready learned from strategic human rights litigation(Silbert,2022).Batros and Khan(2022)discuss further lessons that strategic climate litigation can learn from strategic human rights litigation:the importance of identifying the role of the litigation as part of an overall theory of change(i.e.a set
212、 of interventions that are expected to lead to a desired outcome);consideration about challenges of implementation of judgments;and the need to evaluate risks of strategies.Defining a case as strategic is a subjective and often imperfect effort(see the Appendix for more on our methodology).For the p
213、urposes of this study,we consider the following key components when classifying a case as strategic.Where some but not all of these factors are present,we consider cases to be semi-strategic;however,we count semi-strategic and strategic cases as one group given that they share more similarities than
214、 differences for the purpose of this discussion.The key components are:Identity of the plaintiffs.Identity of the plaintiffs.In strategic litigation the plaintiffs are selected to communicate a carefully designed message(Peel and Markey-Towler,2021).Most cases of strategic climate litigation are fil
215、ed by an NGO,individual campaigner,a Member of Parliament or political party.Okoth and Odaga(2021)refer to litigation plus,an approach whereby as well as selecting claimants,the NGO and its lawyers work with communities to develop legal strategies around their concerns.others use the term movement l
216、awyering to emphasise the importance of co-creating strategic litigation with affected communities at the centre(Cummings,2017).Claimants are usually represented by an experienced legal team with a track record of bringing other strategic legal interventions(Peel and Markey-Towler,2022).7 It is open
217、 to debate whether these requests strictly count as litigation,but as they are critical to the development of the law in this area we have included them as such in this report.8 Cases filed against individual directors on behalf of a corporations are recorded in our dataset as involving both the cor
218、poration and individuals.2020 Identity of Identity of the defendantthe defendants s.Strategic climate litigation has targeted actors that make the largest direct contribution to the problem(e.g.governments that can legislate and the largest emitters of CO2)and actors who mislead the public about the
219、ir climate action or consideration of climate risks.In addition to targeting the obvious suspects,strategic litigation can be brought against actors that are not so visible but are crucial for the survivability of the value chain,such as the public authorities that grant the licences and permits nec
220、essary for high emitters to carry out core activities,and the financial institutions that provide the necessary capital or insurance for high emitters to develop their core activities.This latter approach,which builds on systems thinking,is described by Solana et al.(2023)as systemic lawyering.A Aim
221、im of the litigation.of the litigation.Strategic litigation sees advocates using climate litigation“to drive ambition in climate action,taking a long view beyond the immediate success or failure of individual cases”(Bouwer and Setzer,2020).Strategic cases seek remedies that extend beyond the situati
222、on of individual litigants and contribute to intended policy and regulatory impacts(Peel and Markey-Towler,2021).Objectives for litigation might differ when comparing Global South jurisdictions with rich or developed countries(Setzer and Benjamin,2020a),and in any one country the strategies might ch
223、ange quite significantly depending on the directions established by national leaders(e.g.climate litigation during the Trump era see Gerrard and McTiernan,2018).If the If the case case is one piece of ais one piece of a larger larger puzzlepuzzle.Strategic litigation is part of a broader advocacy st
224、rategy of one or several organisations(Eilstrup-Sangiovanni,2019).When the legal intervention is connected to a larger advocacy strategy,it is possible to observe that the lawsuit complements or focuses on specific aspects of messages that will be raised by one or a group of organisations outside th
225、e courts.These efforts will be carried out by NGOs lobbying or pressurising legislators and policymakers,or sending letters to targeted companies,or by protesters taking to the streets.The climate litigation movement is also part of an emergent transnational climate litigation network that generates
226、 ideas and facilitates intellectual and financial resources to litigants(Iyengar,2023).Media coverage and a communications campaign are often another part of this larger puzzle.Figure 1.4.Strategic cases filed outside the US over time Source:Authors based on Sabin Center databases 020406080100120199
227、4702000420052006200720082009200000222023Number of casesYearStrategic Cases 2121 Strategic litigation against companiesStrategic litigation against companies Strategic litigation against companies is an area of increasing in
228、terest to many actors.Early examples of such litigation were filed in the US and focused on fossil fuel companies.More recently,the number of strategic cases challenging corporate action has started to diversify,with cases filed in new geographies and against companies in a wide range of sectors.Cas
229、es are focused on companies,financial institutions and trade associations in recognition of the fact that these organisations often have a significant influence on climate action,often to the serious detriment of citizens(Brulle and Downie,2022).When analysing all cases filed against companies betwe
230、en the start of 2015 and the end of 2022,we observe that 80%can be classed as strategic or semi-strategic.The year 2021 saw the highest number of corporate cases filed to date,with more than 30 cases so far identified(representing around 30%of all strategic cases filed that year).Analysis of these c
231、ases confirms their increasing diversification,with cases targeting companies in an increasingly diverse range of sectors over time(see Figure 1.5).One of the reasons for this trend appears to be a significant increase in climate-washing cases that is,cases seeking to hold companies accountable for
232、claims about the climate-friendliness of their operations,products or services(discussed further below).Part of the shift may also be attributable to the increasing sophistication of litigation strategies and the identification of new pressure points within corporate value chains,particularly regard
233、ing the provision of finance for high-emitting activities.Together with the increase in the types of cases and actors involved,there is a growing effort to understand the unique aspects of climate litigation across the corporate world.For example,in this last year a new global initiative examining t
234、he unique aspects of climate litigation across the corporate world was launched the Global Perspectives on Corporate Climate Legal Tactics,led by the British Institute of International and Comparative Law(BIICL).Figure 1.5.Number of cases against corporations by sector type,including US and Global c
235、ases(20152022)Strategies in climateStrategies in climate-aligned casealigned case Note:For the most part,the classification of sector type is based on data about defendant companies drawn from the Orbis database.However,we have classified cases concerning energy generation using fossil fuels and cas
236、es concerning fossil fuel exploration production and transport according to the subject matter of the case rather than the sector listed on Orbis,given the high volume of such cases.Source:Authors based on Sabin Center databases 2222 Types of Types of strategies in climatestrategies in climate-align
237、ed casesaligned cases In our 2022 report,we developed a typology of strategies being deployed by litigants in cases against companies and governments around the world in climate-aligned cases.This typology is just one of many ways to understand the diversity of climate change litigation cases,with o
238、ther classifications emphasising different aspects of the phenomenon(see also UNEP,forthcoming).Our aim here is to help the reader understand more about the theories of change that underlie different types of cases.Many cases employ multiple strategies concurrently.Last year,we applied that typology
239、 to all strategic and semi-strategic global cases filed since 2015,the year of the Paris Agreement.This year,we provide an updated assessment,and identify key growth areas.As the field has developed,we have also made several modifications to the typology:In last In last years years report,we include
240、d report,we included a strategy typea strategy type labelled labelled public financepublic finance.This year we.This year we have broadened that category to inclhave broadened that category to includeude cases against both public and private cases against both public and private f financial inancial
241、 institutionsinstitutions and and w we e call this broader category call this broader category turning off the tapsturning off the taps:since all cases that use this approach share a common goal of depriving high-emitting activities of vital financial resources,even if such activities remain legal.T
242、he complexities of this group of cases and of the legal obligations governing the incorporation of climate risks is further discussed in Part II.Cases using this strategy also often employ a secondary strategy as well.We have added a new category to capture the three requests for advisory opinions W
243、e have added a new category to capture the three requests for advisory opinions described abovedescribed above,since the strategy adopted in such cases clearly differs from those used in contentious proceedings.We call these cases Global Guidance cases.WWe have modified the description of several ca
244、tegories to make cleare have modified the description of several categories to make clear the multiple types of the multiple types of casecases s included within them.included within them.This also includes modifying the title of our previous category of compensation cases to polluter pays cases.The
245、 results of our review of 382 climate-aligned strategic or semi-strategic cases identified in the Global database and filed between 1 January 2015 and 31 May 2023 are outlined in Table 1.1.(We have identified more than 430 strategies.This is more than the number of cases as several cases use more th
246、an one strategy,as noted above.)Table 1.1.Climate-aligned litigation strategies in Global cases Strategy typeStrategy type (with examples)(with examples)No.of cases in which this strategy is No.of cases in which this strategy is used,by dused,by defendant typeefendant type 20222022 20232023 Governme
247、nt framework:Cases that challenge the implementation or ambition of climate targets and policies affecting the whole of a countrys economy and society.They can be divided into two broad types:(i)ambition cases,concerning the absence,adequacy or design of a governments policy response to climate chan
248、ge;and(ii)implementation cases,concerning the enforcement of climate protection measures to meet existing targets or implement existing plans(Higham et al.,2022).Cases often raise issues concerning the validity or interpretation of climate change framework laws.By focusing on the framework within wh
249、ich climate action should happen,litigants seek to have an impact on a broad range of operational decisions.Recent examples:Anton Foley and others v.Sweden;Iten ELC Petition No.007 of 2022.Government(65)Government(81)2323 Corporate framework:Cases that seek to disincentivise companies from continuin
250、g with high emitting activities by requiring changes in corporate governance and decision-making.These cases focus on company-wide policies and strategies,and frequently draw on human rights and environmental due diligence standards.They have been brought before national courts,and proceedings have
251、also been opened before OECD national contact points and national human rights bodies(both types are included in our case count).It is common for these cases to draw heavily on the legal theories developed in framework cases against governments,but due to the different responsibilities of government
252、s and companies they should be viewed as a distinct category.Recent examples:Notre Affaire Tous and others v.BNP Paribas;Greenpeace Italy et al.v.ENI S.p.A.,the Italian Ministry of Economy and Finance and Cassa Depositi e Prestiti S.p.A.;ClientEarth v.Shell Board of Directors.Corporate(12)Corporate(
253、16)Corporate and government together(1)Integrating climate considerations:Cases that seek to integrate climate considerations,standards,or principles into a given decision,with the dual goal of stopping specific harmful policies and projects,and mainstreaming climate concerns in policymaking*.Cases
254、may challenge new policies developed without careful consideration of climate impacts,or decisions to roll back or reduce the level of ambition in existing climate policies.Cases may also focus on permits and licensing related to high emitting activities and individual projects.Recent examples:Mexic
255、an Center for Environmental Law(CEMDA)v.Ministry of Energy and Others(on the Energy Sector Program 2022);Dennis Murphy Tipakalippa v.National Offshore Petroleum Safety and Environmental Management Authority and Anor;R(Finch on behalf of the Weald Action Group and Others)v.Surrey County Council(and O
256、thers).Government(103)Corporate(20)Government and corporate together(4)Government(165)Corporate(22)Government and corporate together(12)No defendant(7)Turning off the taps:Cases that challenge the flow of finance to projects and activities that are not aligned with climate action.Cases may be filed
257、against public or private financial institutions,or a combination of the two.Cases may also be filed by shareholders.Their common goal is to amplify the importance of climate risk in financial decision-making,increasing the cost of capital for high emitting activities to the point where such activit
258、ies become economically unviable,even if they remain legally permissible.Recent examples:Conectas Direitos Humanos v.BNDES and BNDESPAR;Notre Affaire Tous and others v.BNP Paribas.Government(n/a)Corporate(n/a)Government(14)Corporate(12)Failure to adapt:Cases that challenge a government or corporatio
259、n for failure to take climate risks into account.Cases may allege(i)failure to consider and address the current or future threats posed by climate change to a given facility or area(Markell and Ruhl,2012;UNEP,2021);or(ii)failure to develop systems to identify and manage physical and transition risks
260、,i.e.a failure to adapt to the low-carbon transition(Golnaraghi at al.,2021).Many of the latter group of cases have been filed against financial service providers.Recent example:S.S.Glmarmara ve evresi Su rnleri Government(3)Corporation(5)Government(7)Corporation(4)Individual and corporation(1)Gover
261、nment and individual(1)No defendant(1)2424 Kooperatifi v.Republic of Trkiye Ministry of Agriculture and Forestry,Manisa Directorate of Provincial Agriculture and Forestry.Polluter pays(compensation):Cases seeking monetary damages or awards from defendants based on an alleged contribution to climate
262、change harms.These cases seek to implement the polluter pays principle,and disincentivise greenhouse gas pollution by impacting the profitability of high emitting activities.Three different avenues have been used to date:(i)compensation for past and present loss and damage associated with climate ch
263、ange;(ii)contributions to the costs of adapting to anticipated future climate impacts;(iii)compensation to offset emissions,where those activities have caused damage to carbon climate sinks.Recent examples:Asmania et al.v.Holcim;Ministerio Publico Federal v.de Rezende.Government(0)Corporate(8)Indivi
264、dual(1)Government(5)Corporate(11)Individual(1)Climate-washing:Cases that challenge inaccurate government or corporate narratives regarding contributions to the transition to a low-carbon future(Benjamin et al.,2022).Cases can concern misleading claims asserting that products or services are more cli
265、mate-friendly than they really are.Increasingly,these cases focus on claims regarding terms such as net zero,climate neutrality and deforestation-free.They can also concern the degree to which misinformation campaigns,or failure to disclose known risks,have contributed to harm caused by climate chan
266、ge.Recent examples:Verbraucherzentrale Baden-Wuerttemberg v.DWS;Church of England Pensions Board and others v.Volkswagen AG;Climate Alliance Switzerland v.FIFA.Government(3)Corporate(13)Government(5)Corporate(52)Personal responsibility:These cases seek to incentivise the prioritisation of climate is
267、sues among public and private decision-makers,by attributing personal responsibility for a failure to adequately manage climate risks to particular individuals.Cases may include actions filed by shareholders or pension fund beneficiaries.They may also involve requests for criminal prosecutions of in
268、dividuals,with cases of this type filed against both politicians(e.g.Bolsonaro,former president of Brazil)and corporate actors(such as the Board of BP).There is also growing discussion in the literature of responsibility for professionals that may enable climate-damaging activities,such as lawyers a
269、nd accountants(Vaughan,2022),although no cases have so far been identified.Recent example:ClientEarth v.Shell Board of Directors.Individual acting for a corporation(1)Individual acting for a government(0)Individual acting for a corporation(4)Individual acting for a government(4)Global guidance:These
270、 cases seek to engage the normative authority of international courts on climate issues in a way that may influence the future development of climate diplomacy and the future interpretation of states legal obligations by both international and domestic courts and tribunals.This strategy contributes
271、to establishing a stronger foundation for further action,but does not necessarily anticipate an immediate impact on greenhouse gas Non-contentious,concern obligations of governments(1)Non-contentious,concern obligations of governments(4)2525 emissions.Recent examples:advisory opinions filed before t
272、he ICJ,ITLOS and IACtHR.Notes:*The standards in question may be drawn from national legislation,international conventions or soft-law instruments.The cases often involve questions about the application of existing legal standards such as requirements to consider environmental impacts,including cumul
273、ative environmental impacts to the issue of climate change even when climate change is not explicitly mentioned in the legislation or policy.Where the case number is 0 for the year 2022,this is because no such cases were documented in our 2022 report,even though we anticipated that such cases might
274、be possible.All 2023 case numbers are based on the empirical review of cases.Where the case number is listed as n/a for 2022 this is because we did not previously include this category in the report,or we did not include the defendant type within the category(e.g.previously the turning off the taps
275、category was referred to as public finance and only involved government defendants).The case of Notre Affaire Tous and others v.BNP Paribas is used as an example of both a corporate framework case and a turning off the taps case as it is an important example of a case employing two strategies concur
276、rently.In Part II,we provide more in-depth analysis of some of the key trends identified above.However,from the outset,it is critical to note that although litigants may use different combinations of strategies in any given case,they frequently seek to apply these to the same key issues.For example,
277、if we look at the last 12 months,we see developments in a range of cases employing different combinations of strategies targeting fossil fuel supply-side activities,plus deforestation and land use.Cases target different actors(public and private financial institutions,companies,permitting authoritie
278、s)and different decision points in the lifecycle of fossil fuel and agricultural commodities(licensing/permitting,financing,production,and transportation).This litigation exists in tandem with the increasingly intense debate about fossil fuel phase-outs and deforestation-free supply chains in intern
279、ational and domestic climate policy circles(van Asselt and Green,2022;Partiti,2021).Youth plaintiff Georgi testifies while Judge Seeley listens in the Held v.Montana case.Photo:Robin Loznak/Our Childrens Trust.2626 Strategies in nonStrategies in non-climateclimate-aligned casesaligned cases Not all
280、strategic litigation is aligned with climate goals.We have identified 16 non-climate-aligned strategic cases in the Global database filed since 2015.9 We divide the strategies present into three types:R Regulatory powersegulatory powers cases,in which litigants argue that a government body or branch
281、 of government has exceeded its authority in introducing climate regulations.Stranded assetsStranded assets cases,in which litigants seek compensation from a government,alleging that a climate-justified policy measure has impacted their property rights through either reducing the value of an asset o
282、r preventing its use entirely.These cases may be filed with the dual goals of recouping on losses(a non-strategic ambition)and dissuading governments from introducing further regulation and/or encouraging the repeal of regulations,i.e.creating regulatory chill(a strategic ambition),making these case
283、s extremely challenging to classify.Strategic litigation against public participationStrategic litigation against public participation cases,in which a government or company files a case against those engaging in climate action to try to dissuade them and others from future action.In the past 12 mon
284、ths,only two new strategic non-climate-aligned cases have been recorded in the Global database.These include an unsuccessful regulatory powers challenge to a decree adopted by the Region of Flanders in Belgium,which prohibits the installation and replacement of new oil boilers(Belgische Federatie de
285、r Brandstoffenhandelaars vzw and Others and Lamine v.Flemish Government),and an unsuccessful stranded assets case filed by German companies RWE and Uniper before the Dutch courts seeking compensation following the early closure date imposed on one of its coal-fired power plants as a result of the Du
286、tch coal phaseout law(RWE and Uniper v.State of the Netherlands Ministry of Climate and Energy).The Dutch domestic proceedings are running in parallel with requests for arbitration made by the companies under the ISDS provisions of the Energy Charter Treaty,an international agreement that has been t
287、he subject of extensive controversy because of the wide protections it offers to fossil fuel investors(see ClientEarth 2022).10 In the US,non-climate-aligned cases are well documented,with recent cases including a challenge to Minnesotas efforts to introduce greenhouse gas standards for vehicles(Min
288、nesota Automobile Dealers Association v.Minnesota Pollution Control Agency)and another challenging Los Angeles ban on oil drilling(Warren E&P inc.v.City of Los Angeles).Another strand of non-climate aligned claims emerging in the US can be understood as ESG backlash litigation.In May 2023 twenty-thr
289、ee Republican state attorneys general sent a letter to members of the Net-Zero Insurance Alliance(NZIA)expressing“serious concerns”about whether the NZIAs requirements comply with federal and state laws.As a result of growing US political pressure and material antitrust risks(Smith and Bryan,2023),s
290、everal global insurers started to quit the NZIA,which is one part of the Glasgow Financial Alliance for Net Zero(GFANZ)created by the former Bank of England governor Mark Carney before the UN climate summit COP26 in 2021.GFANZ and its members have come under attack from Republican politicians in the
291、 US who target collective climate action groups whom they perceive to be unfairly hitting the oil and gas industry.The story continues to grow in complexity:at least one Republican state attorney general,the attorney general of Kentucky,is now the subject of a lawsuit seeking to prevent his office f
292、rom investigating ESG investing in the state.The lawsuit was filed by a bank trade association and affordable financer(HOPE of Kentucky,LLC v.Cameron).9 This is only a small sub-sample of all climate-relevant ISDS claims documented to date(see Fermeglia et al.,forthcoming).Similarly,there may be cla
293、ims before other forms of arbitral tribunal of which we are not yet aware.10 Following unsuccessful negotiations on the creation of a fossil fuel carve-out for the Treaty,a number of European states signed up to the Treaty have signalled their intention to withdraw from the Treaty and are calling fo
294、r a coordinated EU exit(Fermeglia et al.,forthcoming).2727 One reason there are relatively few non-climate-aligned strategic cases in the Global database may be the difficulty of identifying such cases as climate cases.For example,the past year has seen two challenges to climate-friendly government
295、actions filed in Europe that do not strictly meet the definition of climate change litigation outlined above.The first is a case filed by US oil giant Exxon Mobil challenging the EUs decision to impose a solidarity tax on oil and gas companies as part of its response to the energy crisis provoked by
296、 Russias illegal invasion of Ukraine.While the case is clearly part of a corporate pushback against the new regulations(and as such may or may not be considered strategic litigation),it does not involve a clear issue of climate law or policy,since ostensibly the primary motivation for the policy mea
297、sures under challenge(RePower EU)is energy security,and Exxons challenge relates to the legal authority of the EU institutions to levy such a tax(Partington,2022).Similarly,a case filed by Dutch Airline KLM against Schiphol Airport that aimed to reduce flight traffic,resulted in a suspension of new
298、measures by the airport,although it appears from news reports that the proceedings centred on aspects of the policy intended to address noise pollution rather than greenhouse gas emissions(see Taylor,2023).Just Just t transition casesransition cases Climate litigation is a complex phenomenon,and inc
299、reasingly the binary distinction that we make between aligned and non-aligned is insufficient to describe lawsuits raising questions over the justice and fairness of measures adopted to deliver climate action.To describe such claims,scholars have developed the term just transition litigation(Savares
300、i and Setzer,2022).The term just transition is now widely used to reflect the idea of a transition to a low-carbon economy in which the benefits and burdens of climate impacts and action on climate change are shared fairly among different sectors of society,and in which everyone is given a voice in
301、decision-making processes that will affect their lives and livelihoods.Although originally grounded in the labour movement,the term has now taken on a broader resonance,and is engaging questions of distributive,procedural and recognition justice(Wang and Lo,2021).In turn,just transition litigation c
302、an be defined as lawsuits raising questions over the justice and fairness of measures adopted to deliver climate action(Savaresi et al.,under review).Just transition litigation must be brought by or on behalf of those who are negatively affected and structurally disadvantaged by the transition such
303、as workers,indigenous and traditional communities,women,children,minorities and other marginalised or vulnerable groups(ibid.).There may be overlap between categories,with some cases that make arguments about the insufficiency of climate action to protect human rights also making arguments about the
304、 distributional impacts of current policies(e.g.Mexican Center for Environmental Law CEMDA v.Ministry of Energy and Others on the Energy Sector Program 2022).Others,like Regional Government of Atacama v.Ministry of Mining and Others(2022),raise concerns over human rights violations associated with m
305、ineral extraction activities aimed to facilitate the transition.Still other cases might challenge policies purporting to advance the just transition,but which in reality would have limited benefits for communities and would entrench high emitting activities(e.g.ADI 7095 Complexo Termeltrico Jorge La
306、cerda).Outcomes and impacts of climate litigation One of the most critical questions for all actors interested in climate change litigation is:does it work?However,this question is too simplistic.It is now well established that climate litigation can have a range of impacts,and that each case can ha
307、ve diverse impacts.These are often characterised as either direct impactsdirect impacts,where the result of the case results in a statement of law that requires a change in the behaviour of the defendant(and potentially similar actors),or indirect impactsindirect impacts,where the case results in in
308、creasing costs and risks for an actor or actors,changes in public awareness,changes in policy or a variety of other types of change(Peel and Osofsky,2015;Setzer,2022).In addition to distinguishing between direct and indirect impacts,it is also helpful to separate impacts from outcomes,as even a succ
309、essful final judgment(i.e.positive outcome)may not always result in a direct impact(Setzer et al.,forthcoming).Moreover,2828 impacts can occur even before a case is filed and contribute to shifts in understanding and behaviour both during and for many years after the legal proceedings(Solana,2020).P
310、eel et al.(2022)undertook a review of 280 publications addressing the impacts of climate change litigation:i.e.publications that examine key aspects relating to how climate change litigation achieves impact and in what circumstances.They find that there has been a significant focus in the impact lit
311、erature on high-profile cases cases decided by the highest court in a judicial system,cases that received high media attention,or cases that are novel in some way,e.g.employing a novel legal theory or interpretation.However,discussion of impacts is typically brief and speculative,written close in ti
312、me to case developments and therefore limited in assessment of longer-term impacts.Overall,Peel et al.conclude that care should be taken in extrapolating lessons about the strategic value of different litigation targets,jurisdictions or forums,or legal avenues pursued in claims.There remains a resea
313、rch gap in“systemic,empirical,and long-term”studies on the impacts of climate litigation(ibid:16).Bearing these limitations in mind,below we first provide a brief overview of outcomes of cases filed outside the US and the potential impacts of climate litigation(see also Appendix:Methodological notes
314、).We look at the direct judicial outcomes of cases where an interim or final decision has been issued,building on our analysis from previous years.We then provide comments on the ways in which litigation may be influencing the behaviour of different actors,particularly corporate and financial market
315、 actors.Judicial Judicial o outcomesutcomes:innovation and complexityinnovation and complexity Around 55%of the 549 cases in which either an interim or final decision has so far been rendered have had outcomes that are favourable to climate action(see Figure 1.6).Cases are classified as neutral when
316、 it is not possible to assess whether the judgment would have a positive or negative impact on climate action.Cases may also be assessed as positive even where not all grounds argued by the claimants were successful(see further the Appendix:Methodological notes).Figure 1.6.Outcomes in global climate
317、 litigation Source:Authors using Sabin Centers databases However,this figure only tells part of the story.If we compare the success of cases by year of filing,we see a more complex picture emerging(see Figure 1.7).Although there was a spike in the number of unsuccessful cases when a group of 13 simi
318、lar cases filed in Germany in 2021 were all dismissed simultaneously,cases filed more recently have seen a more even distribution of favourable and unfavourable outcomes.It is of course also worth noting that many cases filed in recent years,and therefore the majority of those using many of the more
319、 innovative strategies described above,have yet to conclude:161 of the 301 cases filed outside the US since the start of 2020 are still awaiting decisions.301497192FavourableNeutralWithdrawn or settledUnfavourable 2929 Figure 1.7.Outcomes in Global climate cases over time Source:Authors using Sabin
320、Centers databases Favourable Favourable o outcomes do not autcomes do not always lead to clear impactslways lead to clear impacts In some cases,the climate action resulting from a favourable outcome may be relatively easy to identify,but in others it is more difficult.Two cases show this contrast.Th
321、e first is the Australian case of Bushfire Survivors v.EPA,which resulted in the creation of the Climate Change Policy and Plan for 20232026,and the beginning of a process that“will eventually translate into hard emissions limits on licences”(Collins,2023).The second is the UK case of Friends of the
322、 Earth v.Secretary of State for BEIS(Net Zero Strategy),decided in July 2022.The judgment was hailed a victory by campaign groups after the court ordered the government to revise its Net Zero Strategy and make it more transparent,especially when the government did not appeal the ruling(Higham and Se
323、tzer,2022).However,when the government subsequently issued a revised strategy in part in response to the court order and in part following a change in leadership the result was a document that“scales back”commitments in some areas in comparison to the previous iteration(Dehon and Parekh 2023).Furthe
324、r litigation on the same question is a possibility,which could result in a change in course,but this is far from certain.The impacts of the French Conseil dEtats judgment in the case of Grande-Synthe v.France are similarly hard to assess.In that case,the Conseil dEtat ordered the French government t
325、o increase new measures to meet legislated 2030 greenhouse gas emission reduction targets.According to media reports,earlier this year the Court reviewed the governments progress and found it inadequate.The court then ordered new measures to reduce emissions within a year to compensate for a lack of
326、 progress,despite the courts acknowledgement that the government had made good-faith efforts to comply with its order(AFP,2023).A further complication is introduced when we try to understand the impacts in terms of greenhouse gas emission reductions linked to climate action or policy changes arising
327、 from climate litigation.Mayer(2022)goes as far as to question whether litigation could lead to new legislation which in turn displaces emissions to new jurisdictions(so-called carbon leakage).However,recent empirical analysis finds no evidence of this phenomenon occurring as a result of 01020304050
328、6070806920002000420052006200720082009200000222023FavourableUnfavourableNeutralWithdrawn or settled 3030 the stock of existing legislation(Eskander and Fankhauser,2023),and there is no reason to believe legislation arising a
329、s a result of litigation would be any different.Indirect impacts of litigationIndirect impacts of litigation If we look beyond the outcomes,we see an even more complex picture emerging.Below we discuss three areas where there appears to be growing evidence of the indirect impacts of the types of lit
330、igation discussed above.AmplifyingAmplifying climate riskclimate risk Finance is one sector that is starting to take considerable interest in the issue of climate change litigation.In last years report we noted the increasing volume of evidence to show that actors external to the core community of c
331、limate litigation practitioners were starting to take the phenomenon of climate change litigation seriously.We suggested this evidence could be used as a proxy to understand where litigation risk might be influencing decision-making,citing references to climate litigation in the Bank of Englands cli
332、mate stress testing exercise and a paper on climate litigation produced by the Network for Greening the Financial System(Higham and Setzer,2022).New stakeholders have been engaging with climate litigation in the last 12 months,including the Climate Financial Risk Forum(CFRF),a joint initiative by th
333、e Prudential Regulatory Authority(PRA)and the Financial Conduct Authority(FCA)in the UK that brings together senior financial sector representatives to share their experiences in managing climate-related risks and opportunities.The CFRF published a report in December 2022 to guide the thinking of insurers and related stakeholders in their approach to managing and mitigating climate litigation risk