The climate gets the benefit of the doubt

Even though the balance is still far from right in real life, climate claims are gaining more and more significance in jurisprudence. | Illustration: Elisa Debora Hofmann

It’s only since the turn of the new millennium that the climate crisis has begun occupying our courts more frequently, even though the first climate lawsuits were already filed in the 1980s and 90s. “In the early days, it was mostly about rising sea levels”, says the lawyer Andreas Hösli, who is currently writing his doctoral thesis at the University of Zurich. “Those lawsuits were dismissed in the vast majority of cases”. For a long time, proceedings like this were largely confined to the United States. They then spread across the whole English-speaking world, and began focussing on further consequences of global warming. Successful suits were few and far between.

Damage claims and human rights

However, the number of cases being filed has grown significantly in recent years. They are increasingly occupying the courts of continental Europe – in countries such as Germany, Portugal and Switzerland. Nor are these solely claims for damages or resettlement. They are now focussing more and more on human rights issues. What’s more, says Hösli, these lawsuits are no longer being filed just against nation states, but also against private entities. He is currently researching into the legal responsibility of companies towards global climate change. This topic is even finding its way into disputes on the financial markets. For example, shareholders have been accusing companies of providing insufficient information about climate risks and their financial consequences.

At present, several climate lawsuits are chalking up remarkable successes, especially in the lower courts. A lawsuit filed by the NGO ‘Urgenda’ against the State of the Netherlands was upheld in 2019 and was the first-ever time that a country had been legally compelled to adjust its own climate targets to comply with international commitments. In spring 2021, the Federal Constitutional Court in Germany concluded that it was inadmissible for climate protection measures to be postponed to a future date, and it obliged the legislature to bring improvements to the law. And in the case of Royal Dutch Shell – again in the Netherlands – a company was for the first-ever time ordered by the courts to make drastic reductions to its greenhouse gas emissions. We here take a look at several of the most important climate lawsuits of recent years.

1 — A Peruvian farmer versus a German energy goliath

It’s a story you’d think Hollywood would have snapped up already. In 2015 the Peruvian farmer Saul Lliuya demanded money from the listed company RWE as part-payment for protective structures for his house at the foot of the Andes. It was in grave danger of damage from a glacial flood, he claimed. If the necessary measures weren’t taken, it would be severely damaged or destroyed. Lliuya’s argument was this: since the glaciers would almost certainly melt faster as a result of man-made warming, and since the German energy company RWE had contributed to global warming through its greenhouse gas emissions, it should now also pay its share of the resultant damages. He demanded a sum of roughly EUR 17,000.

This case is unique in Europe. It’s the first time that a private individual has claimed damages in connection with the climate crisis. The Regional Court in Essen dismissed the claim in December 2016, however, saying that responsibility for specific cases of damage could not be attributed individually because the chain of causality was too diffuse and too complex. But the Higher Regional Court in Hamm took a different view, stating that liability could not be ruled out just because a large number of polluters have contributed to global warming. Instead, they all bear a proportionate degree of responsibility. The Court has now requested an on-site hearing of the evidence in Peru, though this has apparently been delayed on account of the coronavirus pandemic. Even though the verdict is still pending, the Court’s finding in itself is remarkable, says Hösli. While the legal basis for the claim has remained the same for decades, this case has a much better chance of success today, he says. And just because Lliuya is demanding a small sum in damages, it cannot hide the fact that a victory for him would have enormous consequences for both RWE and other energy companies.

2 — Shell has to reduce greenhouse gas emissions

A lawsuit is currently running against Royal Dutch Shell that is a significant step further than the RWE case. In May 2021, the District Court of The Hague ordered Shell to make a drastic reduction in its carbon-dioxide emissions – both direct and indirect. This is the first time that such a claim has been upheld against a company. Several NGOs and more than 17,000 people represented by the Dutch environmental organisation ‘Milieudefensie’ had accused Shell of investing heavily in oil and gas production despite it having publicly committed itself to the Paris Climate Agreement. Shell was also accused of having lobbied for decades against climate protection measures. They demanded that Shell do its part to achieve those goals that have already been agreed upon, including those in the Paris Agreement, and thereby ensure that the world has a chance for better climate protection.

This case is extraordinary, says Hösli, because it is not a claim for damages. Instead, it aims to achieve a reduction in greenhouse gas emissions. This in turn would require a realignment of the company’s corporate strategy. Companies are not bound by fundamental rights or by the Paris Climate Agreement in the same way as nation states. This is why the court did not refer directly to international benchmarks. It reached its judgement in a different way, by relying on the duty of care laid down in the Dutch Civil Code, and only then consulting international guidelines for its interpretation. This means a national law can have a wider impact, explains Hösli. Whether or not the demands made in the lawsuit will actually be implemented one day remains to be seen – not least because the judgement was only made by a court of first instance. And as Hösli points out, “most of the emissions that have to be reduced are not directly caused by the extraction of oil and natural gas, but by the cars and aeroplanes used by end customers”. He adds: “Over the further course of these proceedings, deciding who bears the legal responsibility for these indirect emissions will probably become a prime point of contention”.

3 — Young people are demanding a greater commitment to human rights from 33 European countries

Climate suits have also been occupying the European Court of Human Rights (ECHR) for some time now. At the heart of them is the claim that when a State does too little to combat the climate crisis, it is failing in its duty to protect its population and is thereby violating fundamental rights. The first case of this kind was filed by the ‘Climate Justice’ group against Portugal and 32 other Member States of the Council of Europe. The group’s young members claim that the effects of global warming – e.g., forest fires – threaten the right to life as codified in the European Convention on Human Rights, and that their right to a private life and family life is similarly threatened: Heatwaves are forcing them to spend more time indoors, they say, and this is having a negative impact on their well-being. “Ninety-eight percent of cases like this that are referred to Strasbourg are not even presented to the Court”, says Helen Keller, a professor of law at the University of Zurich and a former judge at the ECHR. “The fact that this case has now cleared this threshold is impressive in itself”. But their claim could soon fail at its second hurdle, because it has to make its way through all national instances before the ECHR will hear it. This means that the district courts, the regional courts, the high courts and the federal courts of 33 states would first have to pass their verdicts. And even then, the decisive issue of specific applicability remains: can the plaintiffs really claim that climate change threatens them more than others, simply because of their youth? “I think the complainants are somewhat in over their heads”, says Keller.

The second climate lawsuit currently in Strasbourg is similar, and comes from Switzerland. The self-styled ‘Climate Seniors’, an action group comprising 1,900 women pensioners, had already tried to force a change in national policy through the Swiss courts in 2016, but without success. The Swiss Federal Court’s judgement included a statement that the complainants were not specifically affected. “They took the easy way out”, says Keller. After all, there is no doubt that heatwaves pose an increased health risk for older women. Nevertheless, it will be difficult to prove that Switzerland is doing too little about it. The group’s best chance will probably be to plead that it has had insufficient access to the courts, and then to demand a review from the Federal Court. This would have little to do with the actual content of their complaint, and the members of the group would probably prefer to do things differently. “But an appeal to look at such climate lawsuits more carefully, and not simply dismiss them out of hand, would be an important signal with an impact beyond Switzerland itself”, she says.

4 — An unauthorised tennis match in a bank, with criminal consequences

In November 2018, a group of Swiss climate activists initiated a tennis match in a branch of the bank Credit Suisse – some of them dressed up as Roger Federer. Their aim was to draw attention to this major bank’s investments in fossil fuels, and they knew full well that their actions could have criminal consequences. So, were the group’s actions unlawful? No, said the Lausanne District Court, which invoked the so-called ‘justifiable state of emergency’ to acquit them of trespassing and of resisting police orders. This means it is lawful for anyone to commit a crime if their intention is to save either themselves or others from an immediate danger that could not be averted in any other way. Both the Cantonal Court of Vaud and the Swiss Federal Court came to a different conclusion, however: ‘immediate’ in this context means a danger that is due to occur within minutes or hours. It was not the task of the case at hand, they said, to determine the urgency of global warming as such, but only whether or not this danger was immediate in the sense of a justifiable state of emergency.

Astrid Epiney is a professor of law and the Rector of the University of Fribourg. She believes that this textbook interpretation is important here. “Otherwise, it would just be a matter of time before someone uses the same argument to claim that immigration or something else justifies a state of emergency, and similarly demands immunity from prosecution”. This is in no way intended to diminish the importance of the climate crisis, insists Epiney, who has been engaging with environmental law for decades now. But Andreas Hösli regrets that criminal proceedings were filed against the demonstrators, for he feels that a lot of energy has thereby been invested in a discussion that merely distracts us from the real problems. This case, too, is apparently destined for Strasbourg, as Helen Keller confirms. “But the defendants will probably only be heard there if they base their plea on their freedoms of expression and assembly”. The Strasbourg Court applies strict standards when it comes to restrictions of these rights, and has insisted that even unauthorised assemblies are protected by fundamental rights as long as they do no harm. But for them to be successful, however, the group will first have to assert these same rights before their national courts.

5 — Beneficiary reaches a settlement with Australian pension fund

In this case, the plaintiff was not an NGO, nor was it a matter of a climate activist taking an Australian pension fund to task. This time, the plaintiff was a man who had been paying into the fund for several years. In 2018 Mark McVeigh, who was 23 years old at the time, accused the Retail Employees Superannuation Trust (REST) of having provided him, a beneficiary, with insufficient information about the risks of the climate crisis, and of having failed to present any appropriate strategies for coping with those risks. McVeigh’s claim was that REST had breached its disclosure requirements and its fiduciary duties, because it had left him unable to make an informed decision about the fund’s financial position and the pension he would receive.

The two parties agreed a settlement in 2020 that brought the case to a close. REST pledged to consider the financial risks related to global warming in its future investments and to communicate them appropriately. It also set itself the goal of net-zero carbon transformation by the year 2050. According to Hösli, this case is exciting because it was not brought by someone on the outside, but instead came from a beneficiary. “It’s also about climate change, but its arguments are based on a completely different approach”. However, he adds that causality is also difficult to prove in law disputes pertaining to the financial markets. It is almost impossible to determine in general terms how much a lack of information can truly be held responsible for financial losses – especially if the institution involved actually continues to be profitable. Hösli also finds this case exciting, because Australia is already suffering especially badly from climate change, though at the same time it is fighting tooth and nail against the measures that are necessary to mitigate it. In financial terms, extractive mining, e.g., for coal and iron ore, remains one of the country’s most important industries.