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Questioning the emitters

Annual volume of cases doubled since the Paris agreement globally; India should catch up the trend. But is our legal system prepared for it?

Questioning the emitters
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The United States continues to have the lion's share of climate litigations filed globally, but the number of such cases are also rising in the rest of the world, showed a new report.

The analysis by Grantham Research Institute on Climate Change and the Environment at the London School of Economics and Political Science was made based on the database of the Climate Change Laws of the World (CCLW).

As many as 475 cases have been filed globally from January 1, 2020-May 31, 2022, according to Global trends in climate change litigation: 2022 snapshot. Out of this, more than two-thirds (321) were filed in the US.

Since 1986, 2,002 such litigations — current or past — were filed in 44 countries and 15 international or regional courts and tribunals, including the courts of the European Union, the study found.

Nearly a quarter of these litigations were filed since the start of 2020, pointed out the report. India had altogether 6-10 cases in this period, it added.

Favourable outcomes in climate action were obtained for 54 per cent cases analysed — all from outside the US.

Ian Fry, United Nations special rapporteur on human right and climate change, recently submitted a 6-point plan to the UN for addressing the human rights aspects of climate change. He emphasised on "legal protection of people displaced across international borders (and) supporting climate change litigation".

Number rising in outside US

Around 1,426 cases have been filed in the US as of May 31, 2022, the report mentioned. Australia (124 cases), the United Kingdom (83) and the EU (60) remained the jurisdictions with the highest case volumes, said the report.

The overall number of climate litigations has risen sharply since 2015, according to the report. This is the year when the landmark Paris climate agreement was signed, where all countries agreed to cut carbon emissions, including in non-US countries.

The annual number of such cases globally crossed 100 for the first time in 2015. It was above 150 in 2017 and has been around 210 in 2020 and 2021 — more than doubling within five years, the findings showed.

For non-US countries, there were about 20 cases in 2014, which increased to around 80 in 2021.

During the same period, the number of US cases decreased marginally in 2020 and significantly in 2021. It fell to 120 in 2021 from 145 in 2020 and about 150 in 2019 and 120 in 2021 — a trend researchers linked with Donald Trump being ousted from the US presidency.

The cases have also started to rise in the Global South, which is known more for being the recipient of climatic impacts rather than the cause behind the global rise in greenhouse gas emissions.

Overall, there are now 88 cases from the global south in the databases, the authors noted in the report. "These include 47 cases in Latin America and the Caribbean, 28 cases in Asia Pacific and 13 cases in Africa."

More cases continue to be filed there at a relatively steady rate, they said.

In the Global South, 33 new climate litigations have been documented during Jan 1, 2020-May 31, 2022 — over one-fifth of total cases registered outside the United States.

Harjeet Singh, senior advisor of civil society umbrella platform Climate Action Network (CAN) International, said:

Just before the start of the 26th Conference of Parties to the UN Framework Convention on Climate Change, the Prime Minister of Antigua and Barbuda and Prime Minister of Tuvalu signed a historical agreement opening the door for litigation before international courts; the report shows that clearly the trend is increasing, putting more pressure on emitters.

There should definitely be more climate litigation in India, particularly for highly vulnerable areas like the Sundarbans, said Sanjay Vashsist, director of Climate Action Network South Asia to this reporter. "But I feel that our legal system is not prepared yet to handle such cases."

Singh also pointed out that the Sundarbans, located at the lap of Bay of Bengal at the southernmost point of West Bengal, is a fit case for lodging a litigation. As the area is being severely impacted from climate change, from repeated cyclones to warming of sea water to high erosion, impacting millions despite the area generating negligible greenhouse gases itself.

Most complaints against governments, fossil fuel companies

Governments across the world remained the most frequent targets for climate litigation, the report pointed out.

"Our analysis showed that outside the US, governments remain the most common defendants in climate cases: just over 70 per cent (421 out of 576) of all global cases have been filed against governments," the report read. "US data broadly reflects the global pattern."

Subnational governments too are becoming targets in climate litigation, particularly in Germany, the report added.

Half of all cases (307 of 576) till May 2022 were filed by non-governmental organisations (NGO), individuals or both acting together, the report pointed out. Fewer cases have been brought by NGOs and individuals in the US than elsewhere, it added.

NGOs and individuals have been responsible for bringing 90 per cent of the cases outside the US, but in the US just 70 per cent cases have been brought by these groups, according to the data. Instead, governments, companies and trade associations make up a higher proportion of claimants than they do elsewhere in the world," said the report.

The report also pointed out that "there are a growing number of cases targeting the fossil fuel industry and other companies". It added:

Cases against the carbon majors and other companies involved in the extraction of fossil fuels or the provision of fossil energy have continued to proliferate, now more significantly outside of the US.

From 2015 to May 2022, 63 cases were filed against carbon majors globally, with 43 in the US, according to the report.

The authors analysed all of the 454 cases outside US for which outcomes are known and concluded that 54 per cent (245) verdicts were "favourable for climate action", while 35 per cent (159) were considered unfavourable. About 9 per cent cases (43) got neutral judgement.

"Climate litigation cases have played an important role in the movement towards the phase-out of fossil fuels," the scientists wrote. Cases integrate arguments about governmental support for fossil fuel use — whether through policies, permits or subsidies — with arguments about human and constitutional rights, they added. DTE

Views expressed are personal

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