This article is part of The Climate Frontline, Apolitical's monthly climate newsletter.

The courtroom is becoming an increasingly important arena for climate action. The number of climate litigation cases is increasing, and litigators are developing new strategies with more precise aims and bigger impacts.

Climate litigation presents new risks that governments, the private sector and civil society must navigate — but it also offers opportunities to change the dynamics of the fight against climate change.

Playing by the rules

Just last month, the licences for three new oil fields in the North Sea were rendered invalid after Greenpeace and the Norwegian organisation, Nature and Youth, secured a historic win against the State of Norway.

The court agreed with the plaintiffs’ claim that the licences were invalid under EU law because the licence approval process didn’t assess future emissions. The court also highlighted the lack of adequate public participation in the process.

This is not the first time a court ruling in a climate litigation case has forced governments to change their practices or policies.

  • In 2015, the Urgenda Foundation, a Dutch environmental group, sued the Dutch government for lack of climate action. Citing the country’s constitution, the EU’s emission reduction targets, the European Convention on Human Rights and several principles of European and international law, the court ordered the Dutch government to increase its emissions reduction target from 17% to 25%.
  • In 2022, the UK’s High Court ordered the government to strengthen its net zero strategy after finding that it did not meet the requirements of the country’s own Climate Change Act.

These examples show how civil society and climate activists are using the legal system to push for bolder climate action from government.

But governments aren’t always on the receiving end of climate lawsuits. As climate change and activism become increasingly contentious issues in many countries, governments are adapting existing legislation, including terrorism and sedition laws, to respond to direct action from climate protests.

In a move to accelerate the energy transition, several European countries — including the UK, France and Slovenia — are now withdrawing from the energy charter treaty that lets fossil fuel companies and investors sue states for lost profits caused by stronger climate policies.

In the US, several cities and states are suing fossil fuel companies for the damages of climate change and for deliberately misleading the public.

Governments’ lawsuits against energy companies tie in nicely with civil society action. When Friends of the Earth won a court case against Shell in 2021, it was the first time a judge had held a private corporation liable for causing dangerous climate change.

Rewriting the rules

All these examples show that national, regional and international law provide frameworks within which citizens and NGOs can hold their governments accountable in the fight against climate change — as well as allowing governments to apply pressure on corporations and citizens.

That’s why a big part of the legal dimension of climate action involves rewriting the rules of the game – and there are many different approaches:

  • The Better Business Act work to rewrite the legal responsibilities of UK businesses to help them align the long-term interests of people, planet and profit.

  • Other countries are granting legal rights to nature in an effort to protect it. In 2008, Ecuador became the first country in the world to recognise the right of nature in its constitution. Bolivia followed suit two years later. Since then, the Whanganui River in New Zealand, the Ganges in India and the Atrato River in Colombia have all been granted legal rights.

  • Several countries — including France, Ecuador and Ukraine — have already incorporated serious environmental crimes, also known as ecocide, into national legislation. That means anyone who’s found guilty of causing serious environmental harm is liable to criminal prosecution. Legal experts have drawn up a definition intended to be adopted by the international criminal court.

The legal framework for global climate action is under constant negotiation in UN climate negotiations. The potential implications make the exact wording in these agreements highly contentious — remember the lengthy discussions at COP28 over whether to “phase out” or “phase down” fossil fuels?

Looking forward

The court is becoming an increasingly important arena for climate action. New cases are accumulating, so a lot of important precedents are being set that will shape climate litigation in the future. And governments find themselves on both sides of the courtroom, as both defendants and plaintiffs.

But we need to remember that a vital part of the legal battle for climate action takes place outside of the courtroom. It involves adjusting and rewriting legal frameworks to promote accountability, locate responsibility and change behaviour.

Three things are clear. Climate litigation has tangible impacts, it’s becoming an increasingly important tool in the fight against climate change and there’s no sign that the court cases will stop anytime soon.

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(Image credit: Unsplash)