How courts are becoming battlegrounds for action on climate change

Judges are increasingly being drawn into the fight against climate change as activists and civic groups bring lawsuits aimed at enforcing climate commitments and protecting the environment.

Courts from Estonia to Norway to the US are all weighing cases that pit governments against small groups of dedicated activists.

Cases focus on disputes about concrete measures to protect the environment as citizens and organizations seek to force lawmakers to do more to protect the climate.

A group of elderly Swiss women made headlines earlier this year when they succeeded in their demand for stricter measures against climate change in a case decided by the European Court of Human Rights (ECtHR).

The judges ruled in their favour, deciding Switzerland's lack of climate protection violated their human rights.

Switzerland was in breach of its obligations to protect the health, well-being and quality of life of Swiss citizens from the impacts of climate change, they said, pointing to the government’s failure to implement the robust regulatory framework necessary for fulfilling its commitment to reduce emissions as set out in the Paris Agreement.

The 2015 Paris Climate Agreement aims to limit global warming to "well below" 2 degrees Celsius by the end of the century compared to the pre-industrial age, setting a 1.5-degree target.

While only binding in Switzerland at present, the judgement could set a precedent for further climate lawsuits.

It is also an important signal, as the ECtHR is part of the Council of Europe and is responsible for ensuring compliance with the Convention on Human Rights.

The Council of Europe includes the EU member states, alongside other countries such as Britain and Turkey, so national courts could follow the judgement.

Climate group Environmental Action Germany (DUH) is pursuing climate litigation in several areas and has called on a state court to demand the German government to draw up a climate protection programme with specific measures in order to meet climate targets.

Any decision by the the Berlin-Brandenburg Higher Administrative Court (OVG) could have far-reaching consequences.

Climate lawsuits now play an important role in Germany, as climate targets are repeatedly missed, says lawyer Roda Verheyen.

"In 2021, the German Federal Constitutional Court fundamentally stated that there is a human right to climate protection, and this must now be implemented in reality," she tells dpa.

DUH aims to ensure that the German government adopts a climate protection programme that actually achieves the climate targets.

Together with BUND, an environmental organization, Deutsche Umwelthilfe has already won once before the Berlin-Brandenburg Higher Administrative Court, Verheyen says.

The government was ordered to draw up an immediate action programme in the transport and buildings sectors.

An appeal was then lodged with the Federal Administrative Court.

"The DUH is now concerned with the 2030 long-term climate protection programme as amended in 2023," says Verheyen, of the current case. She notes that the German government is contesting the admissibility of this lawsuit.

Courts elsewhere are facing a proliferation of similar cases, according to a report by the United Nations Environment Programme (UNEP).

They heard almost 2,200 climate lawsuits worldwide in 2022, up from fewer than 900 in the first edition of the report in 2017. That means the number of court cases has more than doubled in the past five years.

The cases vary widely in scope, depending on each country's situation.

A court in Colombia weighed whether climate-induced migration can be recognized as a cause of internal forced displacement.

It found in favour of two farmers forced to leave their land because of flooding but identified a legal vacuum and demanded special protection for environment and climate-induced forced displacement.

In the US, last year's lower court decision, which followed an unprecedented trial in a lawsuit brought by young environmentalists in the state of Montana, was hailed as a breakthrough in leveraging courts to influence climate change policies.

The judge’s 103-page ruling said: "Plaintiffs have proven that as children and youth, they are disproportionately harmed by fossil fuel pollution and climate impacts."

But whether such cases succeed varies from one country to the next.

In Germany, it's complicated because different types of climate lawsuits are heard in different courts on the basis of different laws.

For example, if the German government violates existing laws, it can be sued before the administrative court - as is the case with the current DUH lawsuit being heard by the Berlin-Brandenburg court.

However, if newly passed or amended laws violate fundamental rights, people can lodge a constitutional complaint against them before the German Federal Constitutional Court.

Lawsuits against companies, on the other hand, are brought before civil courts based on the basis of the German Civil Code.

There are two types. One are claims for damages for emissions already released and the damage caused by the resulting global warming.

Secondly, there are injunctions if products or corporate strategies are not compatible with the Paris agreement.

Overall, these examples show that climate lawsuits can be an effective instrument for exerting pressure on politicians and forcing them to do more to protect the climate.

But lawyers and environmental groups want more.

Verheyen hopes that at some point, "climate lawsuits will no longer be necessary because laws and climate targets will simply be complied with."

Until then, governments will continue to expose itself to climate lawsuits as long as climate targets are not sufficiently ambitious or climate targets are not met.

"We only have 20 years left to transform the entire society and economy, so everyone has to get involved, including the courts," she says.