Guy Trafford summarises the many legal efforts climate activists are using to try and achieve outcomes that aren't being achieved fast enough by democratic means

Just lately, there appears to be a rise in litigation activity regarding climate change and who is responsible. This is occurring both at the international level and locally, and also at the corporate level and for governments.

Internationally there have been a couple of recent high-profile cases. The most recent and perhaps game changing case is the United Nations General Assembly’s consensus adoption on March 29, 2023, of a resolution seeking an International Court of Justice (ICJ) advisory opinion on climate change.

It has come as a result of a resolution put forward by Vanuatu requesting an advisory opinion from the International Court of Justice (ICJ) on states’ legal obligation for climate action and the consequences of causing harm. Vanuatu experienced two severe category 4 cyclones this month (March 1st and 3rd and cyclones Kevin and Judy).

The resolution also asks the court for guidance on questions of accountability for “states that have caused significant harm to the climate,” including with respect to small island states, and to peoples and individuals adversely affected by climate change. New Zealand is among a group of 18 states who have supported the application. The group includes mostly smaller states but also Germany. Going forward to the next stage the resolution had considerable support from 132 UN member states.

 Although the ICJ’s advisory opinions are nonbinding, they can carry moral and legal authority and can ultimately become part of customary international law, which is legally binding on states.

Supporters of the initiative hope that the ICJ’s advisory opinion will direct countries to strengthen their domestic climate policies by reducing greenhouse gas emissions and catalyse more ambitious cooperation on climate change among states to protect the rights of at-risk populations in the countries most affected by the climate crisis. The issue around legality is likely the central part of the resolution as while the Paris Agreement is legally binding the treaty itself has been described as having “few legal teeth”. It does not impose penalties, such as fees or embargos, for parties that violate its terms, and there is no international court or governing body ready to enforce compliance.

Whether the ICJ can ratchet up this area remains to be seen, but the UN organisations largely rely on goodwill from member nations to comply. At the moment the IMF (a non-UN organisation) seems to be instrumental in creating the most change through funding development loans in less developed countries.

In the last couple of years one data site shows over 2,000 different litigations regarding climate issues, the majority against oil companies. A fairly typical example is a claim by ClientEarth against Shell Oil.

The lawsuit alleges Shell’s 11 directors have breached their legal duties under the Companies Act by failing to adopt and implement an energy transition strategy that aligns with the Paris Agreement. This one is going through the UK law courts.

A quick scan of cases that involve agriculture appear to largely be against companies and government policies which either result in increased tree clearing for agriculture or agricultural runoff ending up in wetlands and the like.

Closer to home there have been at least 26 cases brought before the courts in the last 20 years. The most notable has been the case by Mike Smith ("climate activist"). Smith claimed that the “Polluting 7” are breaching well-established common law principles by contributing to climate change. Ultimately, Smith wanted the court to grant an injunction forcing the companies to reduce their polluting activities. The “Polluting 7” made up of; coalminer BT Mining, oil importer Channel Infrastructure, farming company Dairy Holdings, dairy giant Fonterra (which burns coal to dry milk), energy company Genesis (which burns coal and gas to create electricity), NZ Steel (which also burns coal) and petrol and diesel retailer Z Energy.

Said to represent about a third of New Zealand emissions, Smith’s legal team argued the seven companies have an obligation to Smith under common law protections against public nuisance and negligence. The companies’ actions are causing harm to Smith, his property and his community, he claims. It appears that a ruling upon whether the case can go to a full hearing is awaiting a decision.

Given the damage to both life and property caused by the latest series of climate events perhaps the scales have tilted somewhat in favour of Smith although the law is decided on legal matters.

The other case that had been in the news (2022) is that of the “Lawyers for Climate Action NZ” (LCANZI). The lawyers who were questioning the information provided by the Climate Change Commission failed to convince Justice Mallon that they had given erroneous information in its recommendations to Parliament.

Whether the UN’s decision to seek clarity around responsibilities on climate change will make any difference to litigation outcomes, both here and abroad, time will tell. However, given the increasing damage and regularity of storms and climate extremes no doubt we will be hearing of more cases coming before the various law courts.