Whilst there is no universally agreed scope or definition of climate change litigation, it is clear that over the last few decades, there has been an upsurge in litigation relating to climate change either directly or indirectly. The ‘first wave’ of domestic cases began in the early 2000s, and were increasing prior to the ratification of the Paris Agreement. However, these were largely unsuccessful. Post-Paris Agreement, strategies have diversified, both in relation to the claims being asserted and the forums in which they are being brought.

Cases against both governments and private emitters have been increasingly based on varied and creative legal arguments including breach of statutory duty, tort, human rights and the public trust doctrine. It is in that context that a new wave of climate change litigation has demonstrated the willingness of not just claimants, but also national and international courts, to countenance that damage to the climate system may cause serious harm to humanity, paving the way for more diverse and fertile opportunities for successful claims.

This article will explore examples of some of these novel arguments and forums:

1. “Climate system damage” tort

On 7 February 2024, the Supreme Court of New Zealand (the “Supreme Court”) handed down judgment in Michael John Smith v Fonterra Co-Operative Group Limited and Others [2024] NZSC 5, where the claimants are seeking to establish liability under a new novel “climate system damage” tort.

In August 2019, Mr Smith, an elder of Ngāpuhi and Ngāti Kahu, and a climate change spokesperson for a national forum of tribal leaders, brought a claim against seven New Zealand companies said to be involved in an industry that either emits greenhouse gases (“GHGs”) or supplies products which release GHGs when burned. Mr Smith alleges that the respondents were together responsible for more than one-third of New Zealand’s total reported GHG emissions in 2020-2021. Mr Smith is pursuing three causes of action in tort: (i) public nuisance; (ii) negligence; and (iii) a proposed climate system damage tort. The respondents applied to strike out the claim. The Supreme Court held that the public nuisance claim should be allowed to proceed to trial. Given that the primary cause of action was not struck out, the Supreme Court also declined to strike out the remaining claims.

The viability and scope of this novel climate system damage tort remains unclear. However, it may involve a duty to cease materially contributing to: (i) damage to the climate system; (ii) dangerous anthropogenic interference with the climate system; and (iii) the adverse effects of climate change.

2. Expanding legal fora: domestic and international

As noted, it is not just new legal arguments that are giving greater scope for climate change litigation, but also the diversity of claimants and an expanding number of forums in which they are being heard.

Domestically, in the UK, the Competition Appeal Tribunal has recently been tasked with assessing whether a number of water companies have exploited their market power to underreport sewage dumps to regulators (Professor Carolyn Roberts v (1) Severn Trent Water Limited and (2) Severn Trent PLC (1603/7/7/23)). Such underreporting has allegedly caused regulators to allow the water companies to charge customers higher prices for sewage services than it would otherwise have been permitted to charge. The claimant argues that stringent legal controls are needed to prevent such companies from abusing their power and causing significant damage to the environment. Following a case management conference in March 2024, the Competition Appeal Tribunal has provisionally scheduled two hearings for September 2024 and January 2025.

On an international level and to great media attention, in April 2024, the European Court of Human Rights handed down its decision in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (application no. 53600/20), the first example of a climate change related ruling by this court. Members of Verein KilmerSeniorinnen Schweiz, an association comprising 2,000 older women, argued that the Swiss authorities’ lack of action on climate change violated their human rights. In particular, they complained of health problems that are exacerbated during heatwaves, significantly affecting their lives, living conditions and well-being.

The European Court of Human Rights held that the Swiss authorities had breached a number of European Convention on Human Rights provisions. Specifically, it had breached Article 8 of the Convention as it had failed to comply with its duties to implement a relevant domestic regulatory framework to quantify national greenhouse gas emissions. The Court found that Article 8 of the Convention encompasses a right to effective protection by the State authorities from the serious adverse effects of climate change on lives, health, well-being and quality of life.

The case against the Swiss authorities may prove to be a powerful precedent ahead of three other international courts – the International Court of Justice, the International Tribunal for the Law of the Sea and the Inter-American Court of Human Rights – hearing similar cases later this year. Furthermore, in explicitly referencing unborn babies and young people, it may influence the outcome of a case brought on behalf of 62 babies and small children against the South Korean government. The claimants in four cases being brought in front of South Korea’s Constitutional Court allege that the South Korean government has violated the country’s constitution by failing to protect citizens from the negative effects of climate change. The case commenced in April 2024 and demonstrates the pressure on states to protect future generations.

However, not all of these cases represent steps forward for climate change activists. For example, in the Swiss case, the European Court of Human Rights simultaneously rejected two other climate-related cases on procedural grounds, including a case brought by a group of six Portuguese young people against 32 European governments.  But whatever the fate of individual cases, it is clear that the number and significance of claims relating to climate change is on the rise.