This year we will also see a case go to trial where a group of children and young people between the ages of five and 21 go up against the state of Montana in the US. The trial will begin on 12 June at the First Judicial District Court in Helena Montana and will conclude on 23 June, 2023. This will be the first children’s climate trial in U.S. history. They will argue that the US state is failing to protect their constitutional rights, including the right to a healthy and clean environment, by supporting an energy system driven by fossil fuels. They will also say climate breakdown is degrading vital resources such as rivers, lakes, fish, and wildlife that are held in trust for the public.
“Never before has a climate change trial of this magnitude happened,” says Andrea Rodgers, senior litigation attorney with Our Children’s Trust, which is behind the case. “The court will be deciding the constitutionality of an energy policy that promotes fossil fuels, as well as a state law that allows agencies to ignore the impacts of climate change in their decision-making.”
No doubt the trial will be watched around the world as the outcome is likely to have a significant influence the trajectory of climate change litigation going forward.
In Australia, a class action trial is also scheduled for June. It is led by Torres Strait islanders Pabai Pabai and Guy Paul Kabai, who argue that the state should slash its emissions to save their islands from rising sea levels and other devastating climate impacts.
The case has been brought on behalf of residents of the remote islands of Boigu and Saibai, who allege the government has failed to protect them from climate change. The UN’s Human Rights Committee have agreed that the Australian Government has breached its human rights obligations to a group of eight Torres Strait Islander people through inaction on climate change. This win has made international legal history.
In South Africa, three civil society organisations are deep into a constitutional lawsuit in the North Gauteng high court against the South African government, arguing that its energy policy is incompatible with the national constitution. The case focused around South Africa’s plan to build new coal-fired power stations during the climate crisis was heard in November. On 13 December the Pretoria High Court ordered the Minister of Mineral Resources and Energy to release records relating to the decision to include new coal power in the 2019 Integrated Resource Plan for Electricity (IRP), and to the 2020 Ministerial determination for new coal issued under the IRP. The court has ordered the Minister to release the documents in question and ordered government to pay costs, clearing the way for the main case to proceed. There should also be further decisions on a number of other climate related cases in the country.
In New Zealand, the court of appeal is expected to hear Northland iwi leader Mike Smith’s appeal against the high court striking down his claim against the New Zealand government, in which he sought a declaration that the government had breached its climate obligations.
In Canada a ruling is expected soon or the country’s first climate lawsuit. Last September seven Ontario youths made history when they held Canadian Premier Doug Ford’s government to account for its reckless climate policy in a court of law. The case of Mathur v. Ontario alleges that the government’s rollback of its greenhouse gas emissions target is unscientific, unsustainable and unconstitutional.
In the Swiss court’s grand chamber in March an association of Swiss women, known as the KlimaSeniorinnen Schweiz, will cite that they are particularly vulnerable to the climate crisis because their health is at risk from heatwaves. There are now more than 2,000 Swiss women in the association, older women with an average age of 73 years. In August 2016, they founded their association with around 270 registered members with the aim of filing a climate lawsuit against the Federal Council. Only older women over the age of 64 can become members of the association. They cite it has been scientifically proven that senior women are particularly vulnerable to the consequences of climate change. Heat-related deaths are not randomly distributed across the population, but tend to affect older people, especially women, due to their age-related impaired thermoregulation. Studies show that thousands of older people died during the first major heat wave in Europe in 2003, mostly older women.
Representative lawyer, Cordelia Bähr, in a recent interview shared that she felt the chances of success have never been as good as they are now. The referral to the Grand Chamber, the urgent declaration of the lawsuit and The European Court of Human Rights (ECtHR) interest in dealing with climate issues is hugely positive. She said she thinks there will be significantly more climate lawsuits in the future. Organizations and activists from different countries have invited her to speak about our lawsuit and to learn how they proceeded. Although this is a European case, it will no doubt cause international ripples.
Also, in cantonal court at scenic Lake Zug in Switzerland may soon become the site of a showdown over who must pay for climate change. In July, four residents of Pari Island in Indonesia launched civil proceedings against the world’s biggest cement producer, Holcim, for historical CO2 emissions and their contribution to rising sea levels. At the heart of the claim is a calculation by the Climate Accountability. The organisation estimates that Holcim, headquartered in Switzerland and specialised in cement-production activities ranging from quarrying to transportation, has emitted more than 7 billion tonnes of CO2 since 1950.
There will be major developments on an international level too. the about human rights and climate change. If passed, the international court of justice will have to advise on what obligations states have under international law to protect the rights of present and future generations against the negative impacts of climate change.
Climate Litigation Will Grow
Whatever happens in these cases, we can expect to see many more climate lawsuits filed this year, as well as more creative uses of the law. These will be filed against governments of all levels as well as against companies. Columbia University’s database lists more than 2,000 proceedings before judicial bodies that focus on climate change law, policy, or science. While most of these cases have been filed in the United States, climate litigation cases are ongoing in over 40 countries, predominantly industrialised ones. However, claims are also growing in developing countries, as the latest report by the Intergovernmental Panel on Climate Change (IPCC) notes.
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