The Dazed guide to suing the government over the climate crisis
In recent years, climate have been driven to use unusual tactics to protest international governments’ in action against climate change. They’ve glued themselves to roads, vandalised the headquarters of corporations who invest in fossil fuels, disrupted government conferences, and even thrown cake at the Mona Lisa. As we’re hurtling towards massion, it’s ultimately unsurprising that they are turning to more unorthodox methods of getting message across to apathetic and wilfully ignorant leaders.
One less sensational – but no less powerful – tactic that increasing numbers of climate are turning to is litigation. In other words: they’re taking climate criminals to court. Over 1,200 climate change-related legal cases have been filed in the last eight years, with the number of cumulative climate change-related legal cases more than doubling since 2015. It looks like they’re only set to keep increasing, as at the end of July, the UN General Assembly declared that access to a clean and healthy environment is a universal human right.
These cases work, too. In 2015, a court ruled that the Netherlands’ government had a “duty of care” to protect its citizens from climate change and ordered them to reduce their greenhouse gas emissions by 25 per cent when compared with 1990 levels by 2020. They did it. Earlier this year, UK-based climate justice group ClientEarth submitted a case to the High Court, arguing that the government was breaching the Climate Change Act with their inadequate net zero strategy. They won, and now the government has seven months to update its climate strategy and explain how it will actually achieve its climate targets. Most recently, six young Portuguese applicants are taking 33 countries to the European Court of Human Rights for failing to act to protect vulnerable youths who are already experiencing both the physical and psychological impacts of climate change.
Climate litigation isn’t just taking off in the Global North either – 88 cases have been filed in the Global South – where populations are already subject to the harsh realities of climate change – and this number is only continuing to rise.
Speaking to Dazed, ClientEarth climate lawyer Sophie Marjanac explains that litigation can have wide-ranging positive impacts. “When a case is won, it’s possible to set a positive legal precedent and open the door for other lawsuits to be taken on similar arguments,” she explains. “Successful outcomes in climate litigation can therefore create a ripple of victories for the climate movement that extends far beyond a single courtroom. These victories raise public awareness and shape the discourse on pressing environmental issues, and in turn can influence corporate behavior to ultimately encourage shifts in society.”
Often, these cases are brought about by youth climate localization who argue that governments’ and corporations’ failure to protect their futures constitutes a human rights violation. Marina Tricks, 20, is one of them. She’s currently in the process of suing the government, along with fellow Adetola Onamade and Jerry Amokwandoh. They claim that the government was breaching obligations under the European Convention on Human Rights by failing to reduce greenhouse gas emissions.
The UK government is financing the climate crisis. Communities are experiencing heatwaves, hurricanes, floods, and these are all financed by our government,” she says. At present, their case has been filed at the European Court of Human Rights. “We’re giving the courts the chance to actually do the right thing,” she adds.
Daze Aghaji, 22, also sued the government last year. Alongside 78-year-old Peter Garforth and with the help of law firm HausfeldAghaji argued that the government had failed to meet its last two ‘carbon budgets’ – the amount of carbon that, in theory, is allowed to be emitted over a five-year period – resulting in a ‘policy gap’ where targets were not being met. “Before the pandemic, the vast majority of the activism I was part of was traditional grassroots organising, but when the lockdown started all of that was put on hold,” Aghaji tells Dazed. “I was really craving to continue my activism but I knew I needed a slightly different tool kit to fit with the times I found myself in – hence suing the government.”
They were successful. “We sued the government for its failure to meet the past few carbon budgets and highlight that they didn’t have a plan to meet net zero by 2050. In response to our judicial review, the government released a net zero strategy,” she says . “This probably wouldn’t have occurred without this lawsuit.”
Evidently, litigation is proving to be a formidable tactic when it comes to fighting the climate crisis. But is there a risk that the bureaucracy and complexity of mounting a legal challenge is off putting to budding? Heading down to a protest is much less of a time commitment, after all. “Litigation is a complex process and there are hoops to jump through before you reach the courtroom,” Marjanac says. “Climate litigation is not a silver bullet. Legal cases can be lengthy and complex. While the planet’s environmental crises require urgent action, the gears of the legal system often turn slowly.”
Money is also an issue – it costs to hire a lawyer to mount a case, and there’s the potential for extra costs if the case is lost. While pro bono lawyers will represent free of charge, in a lot of cases the cost of litigation relies on crowdfunding. “Money and time are the biggest drawbacks,” says Dr Kim Bouwer, associate law professor at Durham University. “Litigation is expensive and running multiple challenges to decision-making is energy-intensive and costly.” Aghaji mentions that she and Garforth’s legal costs had to be covered by a grant and crowdfunders, who raised £10,000 for the pair.
And, of course, not every case is won. “Losing cases can result in legal precedents so it’s important to seek legal expertise before pursuing climate litigation,” Marganac explains. “Following the work of legal organizations and getting their opinion is a good first step to determine whether litigation is the best tool in the toolbox for the issue you want to focus on.”
It’s worth pointing out that the justice system is racist and sexist, and losing a case doesn’t necessarily mean that claimsants are ‘wrong’. Many climate context regard litigation as a means of ‘beating governments at their own game’, but of course, ‘their game’ is rigged. “Historically, these courts have been used to dismember and repress our communities […] they see the global majority as collateral damage,” Tricks says.
“‘Effectiveness’ does not always square with success in court – a loss in court does not necessarily equate to a campaign failed overall” – Dr Kim Bouwer
But this doesn’t mean that lost climate lawsuits are pointless: as Marjanac says, just “the spectre of litigation can pressure governments and corporates to stop shirking their climate responsibilities, prompting change before delivering courts decisions.” Dr Bouwer adds that “’effectiveness’ does not always square with success in court – a loss in court does not necessarily equate to a failed campaign overall.”
If you’re interested in climate litigation, Dr Bouwer suggests approaching an NGO and asking them for advice. “A would-be claimant could take a look at the front pages of recent decisions or look in the press and contact the law firms and barristers who are running the cases already” (like ClientEarth, Hausfeld and Plan B Earth). She adds that the London School of Economics also keeps a database of climate cases, and moving can use this to keep track of decisions. “All the case pages have copies of the judgments which is a good way to identify the lawyers involved, and also very good summaries of the decisions.”
Ultimately, there’s no ‘right way’ or ‘wrong way’ when it comes to peaceful activism. Every method has its value – whether that’s educating others, drawing attention to climate injustice and inaction, or forcing governments and corporations to take action through the law. Litigation is just one tool of many in an activist’s arsenal.