To accompany the third edition of our interactive climate change litigation map, Simon Konsta and Toby Vallance consider the recent decisions delivered in 2024 and the new cases our climate team has picked to replace them.
It has been a busy year already for climate change decisions. Among them are four of the top twenty cases covered in our map, dealing with greenwashing, judicial review of government obligations and the individual right to effective protection by state authorities from the serious adverse effects of climate change on life, health and well-being. As our map only covers active cases, this leaves us with four spaces to fill. Our pick of new cases reaches from Colombia to South Korea and it will be interesting to chart their collective influence, expanding our understanding of this developing area and its implications for governments, businesses and individuals.
Cases decided in 2024 so far
FossielVrij NL v KLM
In March, a Dutch court at first instance ruled in this greenwashing action that KLM's 'Fly Responsibly' campaign had breached the European Union Unfair Commercial Practices Directive by providing misleading impressions in its advertisements and marketing about the impact on the climate of flying with KLM.
While no damages or penalty were awarded by the court, the judgment underlines the serious reputational costs of greenwashing for those seeking to promote their business in the ESG space. The increased level of regulatory scrutiny over greenwashing is one of the biggest risks to business in the UK at the moment. This case highlights the ongoing challenge faced by businesses in showcasing their climate ambitions and progress to their customers, while at the same time ensuring such statements do not fall foul of consumer protection laws and advertising standards.
Further details can be found here.
Verein KlimaSeniorinnen v Switzerland and Duarte Agostinho and others v Portugal and 32 states
The judgments on these two separate human rights actions were handed down at the same time by the European Court of Human Rights in April 2024. The Duarte Agostinho action alleged that 33 signatory states to the Paris Agreement failed to comply with their Convention obligations, resulting in damage to the Portuguese applicants. The action was dismissed as the applicants had not exhausted all domestic remedies against Portugal and there were no grounds for extraterritorial application of the Convention against the other nations.
The Verein KlimaSeniorinnen action involved a complaint by an association of over 2,000 older Swiss women that the Swiss authorities had not acted in time or in an appropriate way to devise, develop and implement relevant legislation and measures to mitigate the effects of climate change. The complaint was successful. The Grand Chamber of the European Court of Human Rights (ECtHR) found that Article 8 of the European Convention on Human Rights (the Convention) encompasses a right for individuals to effective protection by state authorities from serious adverse effects of climate change on their life, health, well-being and quality of life. Grand Chamber rulings are final and cannot be appealed: Switzerland is now required to take suitable measures to comply with the Convention. While not binding on national courts, the decision will be influential.
It is worth noting that the sole dissenting opinion was provided by Judge Tim Eicke KC, the UK's judge to the ECtHR. He highlighted the risk of the judgment being an unwelcome distraction from ongoing legislative and negotiation efforts, as states try to avoid further lengthy litigation around regulations and measures already adopted and how they have been applied in practice.
Further details can be found here.
Friends of the Earth Ltd and others v Secretary of State for Energy Security and Net Zero
This judicial review comprised three actions in respect of the UK's Carbon Budget Delivery Plan. The updated Plan was the result of a partially successful 2022 judicial review of the Net Zero Strategy in relation to government obligations under the Climate Change Act. The High Court ruled in May 2024 that the Carbon Budget Delivery Plan was not fit for purpose. Prior to the calling of the General Election, the Government confirmed it would publish a new report, compliant with the court order, within 12 months.
New cases to watch
Inter-American Court of Human Rights opinion on ‘Climate Emergency and Human Rights’ (opinion requested by Chile and Colombia).
The nation states of Chile and Colombia have submitted a request to the Inter-American Court of Human Rights to "clarify the scope of State obligations, in their individual and collective dimension, in order to respond to the climate emergency within the framework of international human rights law…".The first three days of the public hearing were held in Barbados in April, and concluded in May following hearings in Brasilia and Manaus, Brazil.
This opinion will provide guidance to those states actively subject to the American Convention on Human Rights. It is expected to include clarity on the scope of States’ obligations, individually and collectively, to respond to climate change and guarantee human rights. It will consider the various impacts on diverse regions, population groups and nature.
Byung-In Kim and others v South Korea
These consolidated actions bring constitutional claims against the South Korean government for failing to protect the plaintiffs’ fundamental rights from the threat of climate change, including the rights to life, pursuit of happiness and a healthy environment. The actions challenge South Korea’s Nationally Determined Contribution plan to cut emissions and its proposed implementation. The first public hearing for the claims took place on 23 April 2024.
The action is the first reported human-rights related action in East Asia. Of note, one of the plaintiffs (identified as plaintiff ‘Woodpecker’) was a foetus at the time that the respective claims were commenced.
ClientEarth and others v Flemish Region
This is an action brought by ClientEarth and 14 NGOs against authorities in the Belgian region of Flanders. The Flemish authorities have granted INEOS fresh permission to build Europe's largest plastics project. ClientEarth alleges that the Flemish authorities have failed to obtain a full assessment of environmental impacts, despite the Belgian Council of Permit Disputes voiding INEOS’ previous building permit in 2023. This is the latest in a series of actions against INEOS’ plans in Belgium.
By seeking full disclosure of climate impacts, this action could generate challenges to other future projects identified as climate-negative or those with incomplete environmental impact documentation.
R v Secretary of State for Environment, Food & Rural Affairs
This is an action brought by activists seeking to judicially review the UK’s third 5-year National Adaptation Programme (NAP), which sets out how the country will adapt to climate change. It is alleged that the NAP breaches the Climate Change Act 2008 and the Human Rights Act 1998.
This is a novel action involving a challenge to a state’s legally required climate adaptation programme. The claimants include a care home resident suffering increased vulnerability due to heatwaves and a homeowner affected by coastal erosion.
Climate change litigation in context
The growth and diversity of climate related litigation runs alongside, and is naturally linked to, the global political dimension. 2024 is particularly momentous from a democracy perspective, with elections in the US, the UK, India and beyond. We can expect that the changes in climate related policy that these elections will usher in will have a direct influence on activist driven climate litigation. In that regard, it is notable that there was an uptick in the number of climate change cases in the years following Donald Trump's (first) term in office. Since that time, activist litigators have become increasingly sophisticated in the claims they bring and are having more and more success. We will continue to monitor with interest how things will play out over the next four years.
