Is The Law The Next Climate Change Battleground?

The last couple of weeks have seen unprecedented heatwaves in North America, even while New York flooded. It seems obvious that the impacts of climate change are starting to hit close to home, as scientists from the World Weather Attribution group said the latest heatwave would be “virtually impossible” without climate change. Given the slow pace of international negotiations, could the law be the best bet for action?

A two-day summit was just hosted by the British institute of International and Comparative Law (BIICL) in partnership with global litigation law firm Hausfeld.  The goal of the event was to develop a Declaration on the law’s increasingly visible and important role in responding to the climate crisis. It will be part of a briefing package to be presented to the hosts of the COP26 in Glasgow, where governments are still to negotiate parts of the 2015 Paris Agreement.

While the debate continues on how and when to realign capital flows and corporate activity to a climate-friendly future, there is a growing necessity for rapid more ambitious action on climate change and the legal framework is another vital lever. Legal expert James Cameron says, “Law is our best perception of ourselves. That allows us to think about how law might affect the markets, how to make connection between moral and philosophical understandings and the ways in which we can address our world. It is something really quite exciting for this body of law to start having an influence on finance, personal responsibility and professional liability.”

There is a resurgence in activity based in the law on climate change and, as Chair of Hausfield Michael Hausfield says, “What’s been missing from the crisis is the law. Thirty years ago there was no such thing as climate law and today there are specialist research institutions and we want people to understand that there is a diverse body of law – constitutional, regulatory, human rights, rights of the child, and a swathe of actions around causation, liability and loss.”

Despite failure to finalise elements of the 2015 climate agreement, the world is a different place than it was in 2015. There is a wider recognition that climate risk could upend the economic order, a recognition that every system on Earth is dependent on the biosphere, from clean air and water, to food, fibre and materials for goods. The OECD valued ecosystem services at $125-140 trillion a year in 2019. Transparency about the relationship between financial activity and the ecosystem is required, in order to understand the system and system interactions better, in order to achieve change.  But this has proved a slow and tortuous process.

The challenge is that regulators, activist campaigns, even government net zero targets – while they all contribute they seem to either be piecemeal in approach, or focused on a distant goal decades away. What might change the playing field is the transformation taking place in the law. The number of cases in process today are around 1800, with cases targeting governments on climate inaction, the financial and private sector on fiduciary duty. It’s this year’s Dutch Shell case which saw the extension of litigation from countries to companies, where we are seeing the most significant shift.

The  Dutch Supreme court ruled, based on international human rights law,  that Shell must cut its emissions more rapidly than planned because contributing to global emissions increase is a violation of human rights. This is of particular interest to companies that are planning to meet emissions reduction targets through offsets and nature-based solutions. While campaigners have argued that companies should cut emissions first and offset later, this is the first time a court has agreed. While the company will appeal, and its performance will be hard to track, its another sign of how thinking is shifting on climate change.

Action is accelerating around the world. Legal scholars have drafted a legal definition for ‘ecocide’ meaning harm against nature, and are calling for it be recognised by the International Criminal Court. If adopted,  it would be the fifth international ‘crime’ alongside war crimes, crimes against humanity, genocide and the crime of aggression.  A UN petition has been filed by Ugandan climate activist Vanessa Nakate under the Convention of the Rights of the Child – the most ascribed to convention in the world. It is expected to be resolved by September and the question is whether or not it will recognise that young people have a right to life, based on what countries are and are not doing to protect the environment in which they are living. 

According to the Global Trends in Climate Litigation Report 2021 there are three areas where we can expect to see increased action: value chain litigation, government support for the fossil fuel industry and those around ‘just’ transition – ‘just’ in terms of who has to carry the burden for the needed change. Most important, say the report’s authors, “The number of ‘strategic’ cases is dramatically on the rise. These are cases that aim to bring about some broader societal shift.”

While there are questions about how the law is interpreted, and appeals can drag out for years, there is growing evidence that a shift is beginning to take place in terms of how society views action on climate change. And the law could be the heat required to drive truly decisive changes in behaviour by both companies and countries.