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The battle to save net zero is being played out in the courts

Litigation, along with electoral politics and popular protest, is becoming a key tool in the fight against climate change.

By Nick Ferris

On 10 April, a group of around 2,000 elderly Swiss women – the so-called Swiss Grannies – won the first ever climate case victory in the European Court of Human Rights (ECHR).

Having launched their case nine years ago, the judgement states that Switzerland is violating the human rights of the older women by not taking the necessary steps to combat climate change. The case will not only force a reaction from the Swiss government, but will also establishes a binding legal precedent for courts in all 46 countries that are signatories to the European Convention on Human Rights, including the UK.

Meanwhile, politicians in the UK are determinedly moving the country in the opposite direction. Last September, the Prime Minister revealed a major U-turn on the government’s climate commitments, pushing back deadlines for both the selling of new petrol and diesel cars and the phasing out of gas boilers. The Green Alliance think tank has determined that there is no policy to account for 16 per cent of emission reductions required for the UK to meet the carbon budget for 2028-32 (a legally binding ambition under the 2008 Climate Change Act), with a further 32 per cent of planned emission reductions subject to as-yet-unconfirmed sets of policies.

Enterprising charities and individuals are now increasingly focusing on litigation carried out in UK courts as a means of forcing through meaningful climate action, even as the government digs in its heals.

“Climate litigation is a vital tool,” said Sam Hunter Jones, a senior lawyer at the London-based environmental legal charity ClientEarth. “If there are obligations under key climate laws that are not being met, then this is how you can get them enforced… Litigation also allows us to take a sober look at what’s happening, and crystalise the facts in a landscape where there can be a gap between what governments and companies are saying, and their actions.”

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ClientEarth, alongside Friends of the Earth and the Good Law Project, recently found out that the High Court had ruled in favour of their legal challenge by ruling that the government’s net zero plan would breach our emissions obligations and was unlawful.

A previous successful challenge in 2022 saw the court rule that the government’s climate action plan had breached the 2008 Climate Change Act, which led to the government releasing a revised strategy in spring 2023. This revised strategy has now also been proved inadequate by the judiciary.

“Our arguments in both cases have focused on crucial information being held back, from the minister who signed off on the plan, and also parliament, public experts, and journalists,” said Friends of the Earth’s senior lawyer Niall Toru. “Our view is that the government’s overall approach seems high-risk because it says trust in the market and emerging technology, without trying to change consumer behaviour.”

Hunter Jones added: “We’re getting closer to the heart of the issue: in the first case we didn’t have all the information. And now that we have the information, we are ascertaining whether it is a reasonable approach to managing risk and delivering the carbon budgets.”

Tiffanie Chan, policy analyst at the Grantham Institute’s Climate Change Laws of the World project at the London School of Economics, agreed that litigation is a “powerful tool” to hold governments to account. She pointed to the fact that the Intergovernmental Panel on Climate Change (the leading climate-science authority globally) recognised that litigation is affecting “the outcome and ambition of climate governance” in a 2022 document approved by representatives of every UN member state.

Beyond the recent Swiss Grannies case, major global successes include Milieudefensie vs Royal Dutch Shell, which in 2021 saw the district court of The Hague order the oil major Shell to reduce its global carbon emissions from its 2019 levels by 45 per cent by 2030, as well as Neubauer vs Germany, which saw Germany’s supreme constitutional court rule the government’s climate protection measures are insufficient to protect future generations, and led to Germany moving its net zero target from 2050 to 2045.

There have now been more than 2,300 climate litigations filed globally, with the total number of climate change court cases more than doubling compared with the total recorded in 2017, according to a United Nations Environment Programme report. That same report indicates there are a growing number of cases in developing countries, which make up 17 per cent of the global total.

Back in the UK, ClientEarth’s latest case actually predates the net zero rollbacks announced by Rishi Sunak in September. A separate case, led by the TV environmentalist Chris Packham, was filed in December to directly respond to those changes, specifying that the government has breached its obligation to meet the latest national carbon budget by not outlining how it intends to meet its carbon reduction requirements after loosening the vehicle and boiler deadlines.

“As our case shows, the situation was already unlawful in our opinion before those rollbacks,” said Hunter Jones. “The rollbacks make an already-dire situation only worse.”

Litigation is also being targeted to address other knotty climate issues that government policy is failing to address. For example, a decision is currently being awaited by the UK Supreme Court in Sarah Finch vs Surrey County Council, which is a challenge against the decision to grant planning permission for new oil wells in Surrey without considering the climate impact of burning the oil that would be extracted. The decision could have major ramifications over future approvals for other fossil fuel projects, such as new fields in the North Sea.

“We have a global fossil-fuel market that operates regardless of the territorial emissions that policymakers focus on in national decarbonisation strategies,” said one barrister specialising in environmental law, who is involved in current climate litigation worldwide. “And we now have a network of national courts who are trying to get to grips with this reality, and actually hold relevant authorities responsible.”

The barrister pointed to a recent Norwegian legal decision holding the country accountable for emissions produced from Norwegian oil and gas, which has led to some licences being suspended.

Legal experts interviewed by New Statesman Spotlight all stressed that litigation is no panacea. It is expensive, time-consuming and there is no guarantee that the decision will go the right way. But for Niall Toru at Friends of the Earth, litigation is one of three key strands – alongside changes to government and popular pressure – that can be used to drive more ambitious climate policy.

He added that when a country has a government like the UK's, which is seeking to maximise short-term political gains with a quite narrow base of voters by deliberately resisting pressure on climate change and targeting the right to protest, then litigation becomes an even more vital force.

“Litigation is very important to hold the government to their word and highlight its hypocrisy right now,” said Toru. “There is a lack of openness from the government right now, and a failure to appreciate the fact we are in a climate emergency. Litigation is able to slowly squeeze the government to act in a way it should have done from the start.”

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