Climate Litigation: Reflection and Anticipation for 2024

January 25, 2024 | 7:51 pm
Wade Austin Ellis/Unsplash
L. Delta Merner
Lead Scientist, Science Hub for Climate Litigation

In 2022, I made three predictions for what would happen in climate litigation in 2023. Two of my predictions hit the mark, while the other one revealed the complexity of the legal battles waged against climate injustice.

Climate litigation is a dynamic space. In the last moments of 2023, we continued to see new developments that underscored this evolving legal landscape. The year concluded with filing of the first climate deception lawsuits against fossil fuel companies brought by Native American tribes. The Makah Indian Tribe and the Shoalwater Bay Indian Tribe, in a historic move, sued Exxon Mobil, Shell, and others in Washington state’s King County Superior Court.

Adding to this momentum, in the final days of 2023, a federal court ruled in favor of the “Juliana 21,” a group of youth plaintiffs, in the Youth v. United States case. This decision put an end to the U.S. Department of Justice’s efforts to dismiss the case, paving the way for these young activists to advance towards trial.

Youth in California also are demanding their rights be protected. Last month, 18 young Californians filed a case against the U.S. EPA. They allege that the EPA has been allowing dangerous levels of climate pollution, thereby harming and discriminating against them.

In the first weeks of 2024 we’ve seen continued case advancements. In both Minnesota and Delaware, courts have made significant rulings in climate deception lawsuits, allowing these cases to proceed in state courts (although the court in Delaware did grant some concessions to the oil and gas industry defendants). Also, on January 15th, the Ontario Court of Appeal heard oral arguments in a Canadian youth climate case.

These events underscore a transformative phase in the legal confrontations around climate change. More than ever, these developments highlight the judiciary’s escalating involvement in tackling environmental challenges and protecting human rights and Indigenous rights.

Below I reflect on my predictions for 2023 before venturing into the uncharted territory of 2024.

2023 in Review

US cases heard on merits: A mixed bag.

My prediction that cases would finally be heard on their merits in the United States encountered a mixed reality. While major oil companies did run out of legal stalling tactics when state courts denied their appeals to switch jurisdiction to federal courts, the pace of progress remained sluggish. There was a glimmer of hope in Hawai‛i, however, when a state Supreme Court ruling opened the door for a potentially historic trial against oil companies set for 2024.

In an unforeseen turn of events, a pivotal climate litigation case unfolded in Montana, where 16 young advocates challenged the state’s fossil fuel policies. With this case, we saw litigation move through the courts to a ruling (which I did not predict)! Focusing on their right to a safe environment as guaranteed by the state constitution, the plaintiffs argued that state laws permitting fossil fuel development without considering its effect on the climate exacerbates the crisis. A Montana judge declared those state laws unconstitutional.

Science and lived experience led this case. The judge’s dismissal of Montana’s feeble defense underscored the irrefutable nature of climate science, offering hope for future cases and representing a crucial step toward aligning legal systems with the urgency of climate action.

New legal approaches worldwide: A resounding yes.

My anticipation of new, innovative legal approaches worldwide proved to be spot-on. Around the globe, climate litigation advanced unprecedented new arguments.

The movement to hold corporations accountable for climate harm gained momentum, extending beyond the “carbon majors” to include airlines and fast fashion manufacturers. Climate litigation emphasized addressing current and past harms, with a spotlight on Loss and Damage. Additionally, investment-related litigation gained prominence, shaping governance in the face of climate change. Finally, while the majority of cases first originated in the Global North, there was a notable shift in 2023 with emerging cases in the Global South that focused on human and constitutional rights.

Advances in science strengthening cases: Affirmative.

My prediction that scientific advances would bolster litigation held true. Attribution science and climate obstruction research have emerged as transformative forces, providing robust evidence for legal cases and enhancing our understanding of the connections between human activities, climate change, and resulting impacts.

The Union of Concerned Scientists (UCS) continued to lead with a new study providing regional source attribution for US forest fires, which showcased the pivotal role of scientific advancements in climate litigation. Our study shows that heat-trapping emissions traced to the world’s 88 largest fossil fuel producers and cement manufacturers have dramatically increased forest fire activity in the western United States and southwestern Canada. Nearly 40% of the total area burned by forest fires in this region since 1986 can be attributed to the emissions of these major carbon producers. That amounts to nearly 20 million acres of forest land burned—an area roughly the size of Maine.

Nearly half of the climate litigation cases filed by local and state governments in the United States against the fossil fuel industry mention wildfire. Around the world, wildfires are extracting an increasingly heavy toll, threatening lives, homes, communities, and ecosystems, while degrading air quality for millions more. Building on a growing body of attribution research, UCS’s study spotlights the fossil fuel industry’s role in driving these changes and builds on a growing body of attribution research.

Predictions for 2024

Now for the fun part. Let’s look at a few predictions for this upcoming year.

A new focus: Fossil fuel phaseout cases.

In 2024, anticipate new cases on fossil fuel phaseout. With climate change already causing irreparable harm worldwide, the focus of climate litigation is shifting. As the global community finally begins to act on the scientific consensus that fossil fuels are by far the largest contributor to human-caused climate change, there is a growing drive to hold those responsible accountable. Climate litigation is evolving to address not only the environmental damage, but also the overarching crises affecting human health, ecosystems, and political stability caused by extracting, processing, and burning fossil fuels.

Moreover, as the worst impacts of climate change disproportionately affect historically marginalized communities, climate litigation is increasingly championing climate justice. The emphasis is on a fast and equitable phaseout of fossil fuels, commencing with wealthier nations that bear significant historical responsibility for emissions.

Discovery will take center stage.

This year, 2024, will mark a significant milestone as legal discovery not only begins (fingers crossed!) but also starts to reveal its importance in the context of climate litigation. Discovery is a vital pretrial process where parties exchange relevant information and evidence, aiding each side in understanding the case and building arguments.

Much like its historic role in the Tobacco Master Settlement Agreement of 1998, discovery in climate-related litigation can disclose internal documentation—scientific studies, corporate communications, and strategy memoranda—of immense value in establishing causation and assigning responsibility for climate-related damages. Robust discovery processes not only shape public discourse but also act as a catalyst for transformative legal actions. I may be overly optimistic that the public will be able to see documents from discovery in 2024, but I’m full of hope.

Courts will strengthen human rights connections.

The global stage will witness pivotal moments in 2024 as key international courts make rulings and take the next steps. Anticipate a decision from the Inter-American Court of Human Rights that will dive deeper into questions of human rights around climate. Additionally, the International Court of Justice (ICJ) will start to hear testimony that could influence the trajectory of global climate litigation. I expect these cases will expand our thinking about climate change and human rights for the better.

We’ll also see more climate cases that include the concept of cultural heritage loss. As my colleague Adam Markham has clearly pointed out, cultural heritage is a human right. Next year, courts will do more to grapple with climate impacts on cultural heritage building upon rulings in the Hawai‛i, Montana, and the Torres Strait Islands. This coming year will do more to lay the groundwork for courts to address the evolving landscape of international human rights law and the growing body of climate litigation, which will contribute to testimony before the ICJ and additional cases for holding governments and companies accountable for the impact of climate change on cultural rights.

Jumping into 2024

The successes and challenges of the past year serve as guideposts for the year ahead, reinforcing the notion that, in the pursuit of climate justice, each step is important and every tool is needed.

In the coming months, all eyes will be on Shell as it seeks to overturn a landmark 2021 ruling by The Hague District Court. This ruling requires Shell to cut its emissions by 45% by 2030 from 2019 levels, equivalent to 740 million tons of carbon dioxide annually. The court face-off between Shell and the Dutch branch of Friends of the Earth is set for April 2 to April 12.

In early 2024 we expect important rulings from two cases that were brought before the European Court of Human Rights by Swiss senior women and Portuguese youth. We also expect a ruling by this summer from The International Tribunal for the Law of the Sea (ITLOS) on its climate Advisory Opinion, setting the stage for forthcoming hearings on Advisory Opinions before the InterAmerican Court of Human Rights and the International Court of Justice.

Moving forward, it’s important to remember that the science of climate change is clear, progress has been made, and real solutions exist. As we continue to fight for climate justice, courts can be a useful tool to help understand how we got here, and provide ways to move forward. And together we can embrace a more holistic view for understanding climate impacts, looking at past climate Loss and Damage to protect future generations.

This blog post was originally published on December 4, 2023, and updated on January 25, 2024.