In the fight for climate justice, litigation is taking the lead

In the small islands of the Torres Strait in northeastern Australia, sea levels are rising at a rate of up to 8 mm per year. Along with extreme weather events wrecking houses, sacred sites, and food sources, its Indigenous Peoples are facing an existential threat.

A complaint was filed by eight islanders and six of their children, and last September the United Nations Human Rights Committee delivered a landmark decision: the Australian government was violating its human rights obligations through climate change inaction.

One year after all U.N. member states recognized a clean, healthy and sustainable environment as a universal human right, a growing number of bodies worldwide — international, regional, and national courts, tribunals, quasi-judicial bodies, and other adjudicatory bodies — are linking human rights to climate change protections for the most vulnerable groups in society.

Today, we are at the nexus of a worsening climate crisis, with violent floods, choking wildfires, and life-draining drought and heat waves taking place worldwide. Current policies are on course to bring the world to a 2.8-degree temperature rise by the end of the century.

Governments and businesses are far off track in meeting their climate promises and commitments, often burdened by short-term considerations. Yet the heating of our planet remains a constant crisis that is here to stay and most likely to get worse, even if all pledges made so far are fulfilled.

More and more people, from diverse geographical and social backgrounds, are holding governments and the private sector accountable through litigation.

Courts are responding to this public cry. They are deciding on novel legal theories advanced by litigants under international and domestic climate law.

The cases notably address the risks to children — whether to plaintiffs aged 5 to 22 in Montana or to girls as young as 7 and 9 years old in Pakistan and in India — or even to those not born yet. After all, they will suffer the worst consequences of climate change and cannot even vote while their future is being put at risk.

The Torres Strait islanders petition is one of 2,180 cases filed as of Dec. 31, 2022. That number, based on a review of the Global Climate Change Litigation Database, is more than double what it was in 2017. It marks a historic shift in the role of courts as an essential force pushing toward climate action and justice.

Climate litigation is most often challenging governments, drawing links between human suffering and the incompatibility of their policies with the Paris Agreement goals or with commitments to reach net-zero harmful emissions later in the decade, as well as with the risk of greenwashing by private companies.

Yet, what may seem like an antagonistic process does not tell the full story, in which governments themselves are enabling such litigation and making use of it.

Most recently, a county in the state of Oregon sued oil and gas companies including ExxonMobil and Chevron for more than $50 billion, after 69 people reportedly died from a heat wave thaty also entailed significant economic costs. Dozens of similar lawsuits have been filed in recent years by states and municipalities across the U.S.

Across the Atlantic, thanks to a recent law supported by the French government, NGOs can now sue oil companies for a legacy of pollution created while drilling and flaring.

It is not clear what the future holds for the islanders of the Torres Strait, but it is certain that climate change — along with the loss of nature and pollution — will continue to disproportionately affect Indigenous communities and other vulnerable communities.

At the same time, litigation might very well become a tool also used by those wishing to stall climate action or derail it altogether. Recent cases have seen challenges and actions targeting climate activists.

The overall trend, however, is clear: litigation is becoming an increasingly central tool to demand and deliver climate justice.

Inger Andersen is undersecretary-general of the United Nations and executive director of United Nations Environment Programme (UNEP).