It has been three decades since virtually all countries in the world agreed to combat "dangerous human interference with the climate system" and established a treaty framework to achieve this. It has been 17 years since the Kyoto Protocol entered into force which committed state parties to reduce greenhouse gas emissions. It has been 6 years since the conclusion of the Paris Agreement that reflects the universal political consensus that the average global temperature increase must be limited to 1.5°C. The carbon budget available to stay within this limit is rapidly shrinking and will be depleted before 2030 without immediate, deep and sustained cuts to global emissions. That means what we do or don’t do between now and 2030 will decide our future.
Yet, governments and corporations responsible for substantial emissions continue to delay adequate climate action. In light of this, climate litigation is – unfortunately – necessary to speed up emission reductions and prevent an existential crisis.
Climate litigation includes a broad spectrum of cases. Essentially, it can be any type of legal action intended to achieve further decarbonisation, whether based on administrative, environmental, constitutional, civil, or even criminal law. This memorandum specifically focuses on civil litigation aimed at the imposition of Paris-aligned emission reduction targets. Many topics of this memorandum are of course also useful in all other climate litigation cases.
The cases of Urgenda Foundation v The Netherlands (judgments of 2015, 2018, 2019)1: and Milieudefensie et al. v. Royal Dutch Shell plc (judgment of 2021)2: have broken important ground as the first successful cases recognizing that governments and corporations may have a legal responsibility to implement Paris-aligned emission reduction targets. Urgenda-inspired litigation against governments has, in the meantime, resulted in multiple other successful precedents.3 Litigation targeting inadequate corporate climate policy is now also on the rise.
We thoroughly believe that other victories are within reach and we intend to do our part by sharing our experience with fellow litigators. To this end, we will provide insight into the legal strategy that was ultimately successful in the case against Royal Dutch Shell.4
At the risk of stating the obvious, securing corporate accountability for climate change requires significant investment of time and resources. In light of the many complex factual, scientific, (geo) political and legal aspects and the high stakes, we should expect courts to apply rigorous scrutiny, especially as they are requested to impose bold and forward-looking remedies with global impact. Plaintiffs must bring courts in a position to confidently order these emission reductions. This means leaving no stone unturned in highlighting all relevant aspects of the case.
In our view, experimental cases that are used to explore the boundaries of the law can be counterproductive if the financial and substantive investments in those cases are insufficient to build a case for litigation that can withstand intense judicial scrutiny. Such cases will lead to unfavourable judgments and if these judgments pile up, there will be more focus on rejection of judicial intervention against large climate polluters.
We also believe that one of the keys to success is the conviction that a victory can be achieved. This requires letting go of everything we think we know as lawyers and approaching the litigation with the core belief that it is inconceivable that a court will not intervene against the biggest cocontributors to what will be the largest ongoing human rights violation in the history of mankind, provided that the court is sufficiently informed on all relevant aspects of the case.
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Box 1 The case for optimism
We recognize that starting a climate case requires optimism. The problem of climate change is unique, which is why it will be difficult to compare it to existing precedents. But that also means there is great opportunity to set it apart and substantiate why judicial action is mandated. There simply is no comparable legal problem in terms of scale, the scientific certainty about the cause, the universal political consensus of what must be done to prevent dangerous climate change and the unprecedented existential consequences if that does not happen. There are many obstacles to overcome. This was true in the Netherlands as much as it is true in other jurisdictions. But it can be done and if you don’t already believe that, we hope you feel differently after reading this memorandum.
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Overview of key factual and legal ingredients Below is a non-exhaustive overview of key factual and legal ingredients of a successful climate case, based on the strategy of the Shell case and updated with some recent developments. All these topics will be discussed in this memorandum. We note that all topics are interrelated and to some extent overlapping.
Figure 1 Key factual and legal ingredients of climate litigation
The first topic we address is a basic, but crucial point about the role of the Paris Agreement in conjunction with the UN Framework Convention on Climate Change (“UNFCCC”) in litigation against corporate entities.
There are some misconceptions about the relevance of the Paris Agreement in this respect. Many tend to view this as a legal issue, and conclude that the Paris Agreement cannot create legal obligations for entities that are not a party to that agreement.
However, this misses the point. In Article 2 UNFCCC, the global community agreed to achieve the stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Article 2 of the Paris Agreement specifies that this objective must be achieved by keeping the increase in average global temperatures well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels. Developments after 2015, including the Intergovernmental Panel on Climate Change (“IPCC”) Special Report: Global Warming of 1.5°C, made clear that the differences between the two temperatures are substantial and that the global community must strive to limit global warming to 1.5°C, as has most recently been confirmed by world leaders at COP26 in Glasgow.5
The crucial importance of the Paris Agreement is the fact that it reflects the universal political consensus, based on the best available science, that global society should limit global warming to preferably 1.5°C if we want to avert an existential crisis.