The Rise in Climate Change Litigation
Climate change has gained significant traction as a key and divisive topic among the general public. According to the August 2021 Ipsos Issues Index, concerns over climate change have doubled to near-record highs.
With this increased public concern and interest has come a wave of lawsuits in various forms. Most climate change litigation has been filed before courts in the United States (1,841 cases as of May 2021), with the remaining filed in 39 other countries and 13 international or regional courts and tribunals (including the EU). As noted in a recent policy report about global trends in climate change litigation, “Globally, the cumulative number of climate change-related cases has more than doubled since 2015.” But what exactly are people suing for?
Different Types of Litigation With Different Objectives
With just about everything in today’s political arena being so divisive, it would only make sense for this combativeness to migrate over to the topic of climate change. Litigation involving new and existing climate change policies has seen an uptick over the past decade; some want to reinforce and bolster environmental movements, while others want to deter those, often citing a negative economic fallout as the reason.
These differing opinions have led to contrasting approaches to this type of litigation. There are two primary camps of climate change litigation: strategic and non-strategic litigation:
Strategic Litigation. These cases are filed for broader public visibility and/or as part of a political or social movement. As noted in the Global trends in climate change litigation: 2021 snapshot report, “the goals of the claimants in such cases will include advancing climate policies, creating public awareness, or changing the behavior of government or industry actors.” A notable number of these cases have targeted corporations.
Non-Strategic Litigation. These cases are typically filed to seek relief for isolated situations; however, non-strategic cases aren’t necessarily less important. In fact, they might spark a wave of strategic litigation.
Trends and Themes With Climate Change Litigation
The acceleration of new climate change legislation is having a cascading effect on legal professionals as a whole. According to a report authored by Kaya Axelsson of Oxford University’s Environmental Change Institute and other colleagues, “over 800 cases were filed between 1986 and 2014, while over 1,000 cases have been brought in the last six years.” These cases are bringing forth new developments and trends in the world of litigation, including:
Compliance with climate commitments. There has been a rise in new bills, accords, and statutes across the globe, and people are suing their government for noncompliance with these commitments. Most arguments are based on constitutional or administrative law, with the objective to encourage governing bodies to take these commitments seriously and dedicate resources towards fulfilling them.
Adaptation and mitigation. These cases often relate to the application of principles and standards relating to climate change adaptation in planning and environmental impact assessments. This would include, for example, litigation to force a real estate development to adhere to more environmentally friendly practices.
Corporate liability. Litigants are now attempting to hold corporations, particularly those dealing with fossil fuels, accountable for climate change-related damage through litigation. Many cases seek to target alleged deliberate disinformation or deception.
On the other hand, there is also rising litigation that aims to deter environmental concessions or to delay climate change-related policies. As noted in the global trends policy report mentioned above:
Litigation that may weaken or undermine mitigation or adaptation efforts is also a growing phenomenon. This may include cases that have an intentional goal of opposing climate action, or cases that may not have such opposition as their main objective but may nonetheless result in delays or rollbacks of climate action or policies.
What Does the Discovery Process Look Like for Plaintiffs in Climate Change Litigation?
In climate change litigation, as in other forms of litigation, both parties must find evidence to support their claims, including evidence that’s been hidden away for many years, likely in filing cabinets. As a result, legal professionals run the risk of being drowned with troves of documents and having to endure long and arduous reviews. Further discovery challenges include ineffective collaboration with outside counsel and handling evidence that goes decades back.
As climate change litigation becomes more pervasive, the discovery challenges associated with litigating environmental damage will become more urgent. With the right technology, key parties can make an impact and not let the discovery phase slow them down. Ediscovery platforms that facilitate a seamless document review process, enable batch redactions, and eliminate manual and tedious tasks can help.
Are you interested in seeing how forward-thinking plaintiffs’ firms are tackling climate change litigation? To learn more, check out our webinar, “Climate Change & Litigation: Where Are We Now and Where Are We Going?”
