The question of guilt in the climate crisis is currently the subject of over 2000 climate lawsuits worldwide. They are stories of David versus Goliath: young people against oil and gas companies, activists against conservative governments, island states against industrialized countries. Climate crime is a fairly recent offence in the history of justice: Since climate change is man-made, it is also people who are responsible for the steep CO₂ curve in recent decades. But whether there are also climate criminals in this sense and whether governments are complicit in the face of the climate crisis if they do not change their policies is controversial.
This week, there was a victory for the lawsuit front: In Montana, a judge ruled that the U.S. state violated the constitutional right of the 16 young plaintiffs to a "clean and healthy environment." In its ruling, it declared a state law unconstitutional because authorities do not have to consider the effects of greenhouse gases when examining permit applications for oil and gas projects.
The young plaintiffs argued with the well-being of their families: their lives were increasingly affected by forest fires, extreme temperatures and drought. It was about power outages and dead cattle that are said to have died of thirst and starvation. The climate crisis lowers their standard of living and endangers their business. "Montana's emissions and climate change have been shown to be a significant factor in the effects of climate on Montana's environment, as well as damage and vulnerability (of the plaintiffs)," the ruling letter reads.
Montana's anti-climate law
However, the plaintiffs are not seeking compensation for damage already suffered, but recognition. The court acknowledged that the consequences of the climate crisis, such as drought, are massively harming citizens and endangering their future – and that the trigger for this is the extraction and burning of fossil raw materials such as coal, oil and gas. But that's exactly where the problem lies. Beneath Montana's soil lie the largest recoverable coal deposits in the United States, and the state is also known as the "Treasure State" thanks to its oil, gold and copper deposits.
Accordingly, the government there is conservative and not exactly climate-friendly: As recently as May, Republican Governor Greg Gianforte passed an "anti-climate law", according to which it is prohibited to calculate the carbon footprint of major projects. In turn, he was reacting to a success of the environmental movement, which is also quite active in the state. The latter had previously filed a lawsuit against the approval of a new gas-fired power plant and won in April.
The climate lawsuits in Montana are therefore a kind of showdown between the fossil fuel industry and the environmental movement. The US newspaper »Washington Post« therefore headlined that Montana would become a »climate battleground«. But even the last victory of the young climate plaintiffs is only temporary. A spokeswoman for the Montana Attorney General called the verdict "absurd" in a statement and announced that she would appeal. The governor, on the other hand, sees such climate regulations undermining the authority of state authorities.
How successful are climate lawsuits?
One thing is certain: the climate movement has only just begun to use such lawsuits as tools in the fight against fossil fuel companies and unwelcome legislators. The protest has increasingly shifted from the streets to the courtrooms in recent years: In 2022 alone, almost 2200 climate lawsuits have been heard worldwide, according to a report published at the end of July by the United Nations Environment Programme (UNEP) and Columbia University in New York City. In the first edition of the 2017 report, there were less than 900.
Even the Intergovernmental Panel on Climate Change (IPCC) mentioned the lawsuits in its latest assessment report, saying that some of the processes had played a role in influencing "the outcome and ambitions of climate policy."
Nevertheless, the successes of the climate plaintiffs are rather small in view of the high number of lawsuits. According to the report, the vast majority of trials took place in the USA, only a fifth of them in developing countries. In Germany, around 2022 court cases were pending as of December 38.
The only really successful lawsuit in this country was the climate decision of the Federal Constitutional Court (BVerfG) in spring 2021. As a result, the grand coalition had to amend the climate protection law.
At the time, the judges declared that the state must ensure ambitious climate protection in the next few years in order not to jeopardize the civil liberties of future generations. The less happens by 2030, the harsher the restrictions will be after that – this is not constitutional. To this day, the interpretation of fundamental rights and climate protection is considered groundbreaking.
Nevertheless, this decision remained quite nebulous: the court does not prescribe how the government must ensure that such an imbalance is prevented. Only that she has to do it. Because they still see the climate targets in jeopardy, environmental organizations such as the German Environmental Aid or the Federation for the Environment and Nature Conservation continue to sue – at various levels: from the Higher Administrative Court of Berlin-Brandenburg to the European Court of Human Rights. Output: open.
In another high-profile case, seven environmental groups sued Shell in a court in The Hague in 2021. The ruling required the company to reduce its greenhouse gas emissions by 2030 percent net by 45, compared to 2019 levels. But here, too, the success is doubtful: Shell has now moved its headquarters to the United Kingdom and appealed against the ruling.
Climate guilt becomes predictable – and thus justiciable
The high number of climate lawsuits in the United States – 1522 of the 2180 – is likely due to the country's long history of litigation, study author Maria Antonia Tigre told Inside Climate News. But in the U.S., these litigations have not necessarily led to systemic changes in climate policy. The exception is the most spectacular case to date from 2007, in which the US Environmental Protection Agency (EPA) was asked to set limits on greenhouse gas emissions for new cars. This marked the beginning of the regulation of greenhouse gas emissions in the United States.
Even if only a few of the hundreds of lawsuits are major successes, experts are convinced that the number of climate lawsuits will continue to increase. For example, the question of who will pay for the damage caused by the climate crisis is becoming increasingly urgent. In the future, it will therefore not only be a matter of governments doing more for climate protection or corporations becoming greener.
Rather, the authors of the UNEP study assume that lawsuits for compensation for climate damage are increasing, such as liability after extreme weather such as droughts or floods. The demand for climate adaptation to protect the population could also be given legal weight, as well as the recognition of climate change as a reason for migration or the denunciation of greenwashing as consumer deception.
In addition, attribution research – which calculates the share of climate change in individual weather events – is now helping to ensure that climate guilt is no longer an abstract accusation. Guilt can even be calculated fairly accurately – if the courts follow this approach.
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