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Global Climate Litigation Report 2023 Status ReviewGlobal Climate Litigation Report 2023 Status Review Global Climate Litigation Report 2023 Status Review © 2023 United Nations Environment Programme Global Climate Litigation Report 2023 Status Review ISBN 978-92-807-4052-3 Job number DEL/2550/NA This publication may be reproduced in whole or in part and in any form for educational or non-profit services without special permission from the copyright holder, provided acknowledgement of the source is made. The United Nations Environment Programme would appreciate receiving a copy of any publication that uses this publication as a source. No use of this publication may be made for resale or any other commercial purpose whatsoever without prior permission in writing from the United Nations Environment Programme. Applications for such permission, with a statement of the purpose and extent of the reproduction, should be addressed to unep-communication-directorun.org. Disclaimers The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory or city or area or its authorities, or concerning the delimitation of its frontiers or boundaries. Mention of a commercial company or product in this document does not imply endorsement by the United Nations Environment Programme or the authors. The use of information from this document for publicity or advertising is not permitted. Trademark names and symbols are used in an editorial fashion with no intention on infringement of trademark or copyright laws. The views expressed in this publication are those of the authors and do not necessarily reflect the views of the United Nations Environment Programme. We regret any errors or omissions that may have been unwittingly made. © Maps, photos and illustrations as specified Suggested citation United Nations Environment Programme 2023. Global Climate Litigation Report 2023 Status Review. Nairobi. Production Law Division United Nations Environment Programme P .O. Box 30552, 00100 Nairobi, Kenya Tel 254 20 7623365 E-mail unep-law-directorun.org www.unep.org www.unep.org/resources/report/global-climate-litigation-report-2023-status-reviewGlobal Climate Litigation Report 2023 Status Review | Acknowledgements Acknowledgements This publication was developed by the United Nations Environment Programme UNEP in cooperation with the Sabin Center for Climate Change Law at Columbia University in New York City, United States of America. It was researched and drafted by Michael Burger, Executive Director of the Sabin Center for Climate Change Law and Senior Research Scholar and Lecturer-in-Law at Columbia Law School, and Maria Antonia Tigre, Senior Fellow, Global Climate Change Litigation at the Sabin Center for Climate Change Law. A final critical review of the report was undertaken by staff from the UNEP Law Division Patricia Kameri- Mbote, Director; Arnold Kreilhuber, Deputy Director; Maria Socorro Manguiat, Head of the National Environmental Law Unit; Andrew Raine, Head of the International Environmental Law Unit; Soo-Young Hwang and Renée Gift, Legal Officers; and Jackline Wanjiru, Programme Management Officer, with support from colleagues Aphrodite Smagadi and Angela Kariuki, Legal Officers; Benjamin Ojoleck, Lais Paiva Siqueira, Catalina Pizarro and Marina Venâncio, Associate Legal Officers; and Tiffany Collard and Erick Khayota, interns with the UNEP Law Division. Global Climate Litigation Report 2023 Status Review | List of abbreviations and acronyms List of abbreviations and acronyms BNDES Brazilian National Development Bank CJEU Court of Justice of the European Union CO2 Carbon dioxide CSPP Corporate Sector Purchase Programme ECHR European Convention on Human Rights ECtHR European Court of Human Rights EIA Environmental impact assessment EPA Environmental Protection Agency GHGs Greenhouse gases HRC United Nations Human Rights Council IACHR Inter-American Commission of Human Rights IACtHR Inter-American Court of Human Rights ICC International Criminal Court ICSID International Centre for Settlement of Investment Disputes IPCC Intergovernmental Panel on Climate Change ISDS Investor-State dispute settlements ITLOS International Tribunal for the Law of the Sea NDC Nationally determined contribution NGO Non-governmental organization OECD Organisation for Economic Co-operation and Development UNEP United Nations Environment Programme UNFCCC United Nations Framework Convention on Climate Change Global Climate Litigation Report 2023 Status Review | Contents Page VII Contents Acknowledgements V Foreword IX Executive summary XI Introduction 1 Part 1 The importance of climate change litigation 5 Part 2 Overview of global climate litigation 9 I. Methodology 10 II. Survey of climate change litigation 13 III. Regional representation of climate change litigation 15 Part 3 The state of climate change litigation 25 I. The use of “climate rights” in climate litigation 26 A. International climate rights cases 28 i. Cases at the United Nations 28 ii. Regional cases 31 a. Cases before the Inter-American System of Human Rights 31 b. Cases before the East African Court of Justice 32 c. Cases before European regional courts 33 B. Domestic climate rights cases 36 i. Human rights 36 ii. The right to a healthy environment 38 II. Domestic enforcement of international climate change commitments 42 III. Keeping fossil fuels and carbon sinks in the ground 44 A. Consistency with the Paris Agreement or net-zero commitments 44 B. Environmental impact assessment requirements 47Page VIII Global Climate Litigation Report 2023 Status Review | List of abbreviations and acronyms IV. Corporate liability and responsibility 50 A. Corporate duty to mitigate emissions 50 B. Corporate liability for adaptation 54 C. Responsibility of financial institutions 54 V. Climate disclosures and greenwashing 55 A. Protection of investors climate disclosures 55 B. Protection of consumers greenwashing complaints 57 C. Protection of consumers misrepresentation of products 59 VI. Failure to adapt and impacts of adaptation 60 Part 4 The state of climate change litigation – future directions 61 I. Update on 2020 predictions climate migration 63 II. Update on 2020 predictions pre- and post-disaster cases 64 IV. Update on 2020 predictions increased attention to climate attribution 65 and fair share assessments of mitigation V. Transnational responsibility extraterritorial responsibility 66 VI. Cases brought by vulnerable groups 68 VII. Backlash cases 70 A. Investor-State dispute settlements 70 B. Just transition cases 72 C. Claims against climate activists 72 Conclusion 73 References 75 Case law referenced in Report 75 Literature 87Global Climate Litigation Report 2023 Status Review | Foreword Page IX Foreword The climate crisis is getting worse, not better. Every year, the impacts of climate change are getting more intense. Every year, hundreds of millions of people endure increasingly regular extreme weather events, taking away livelihoods and lives. Every year, our economies – and in some cases, entire countries – begin to see the reality of an uncertain future. As the United Nations Secretary-General summarized to delegates gathered in Egypt at the twenty-seventh Conference of the Parties to the United Nations Framework Convention on Climate Change in November 2022, “We are in the fight of our lives, and we are losing. ” Climate litigation represents a frontier solution to change the dynamics of this fight. As this report shows, people are increasingly turning to the courts to combat the climate crisis. Governments and private sector entities are being increasingly challenged and held to account. Children and youth, women’s groups, local communities and Indigenous Peoples, among others, are also taking a more prominent role in bringing these cases and driving climate change governance reform in more and more countries around the world. © Flickr / UN WomenThe legal grounds for these cases are also widening. Both the United Nations Human Rights Council and the United Nations General Assembly have now recognized the right to a clean, healthy and sustainable environment. We are seeing new claims centred around the violation of legislation related to net- zero targets, environmental impact assessments, advertising standards, and obligations under the Paris Agreement. Climate litigation has set precedents for climate action all over the globe, going beyond the jurisdictions in which they were brought and empowering and driving similar action in other countries. This report demonstrates the importance of an environmental rule of law in combating the triple planetary crises of climate change, biodiversity loss and pollution. Access to justice enables the protection of environmental law and human rights and promotes accountability in public institutions. It is not enough that we recognize human rights, we must make every effort to protect and uphold them and enable individuals to seek redress where they are violated. I would like to acknowledge the outstanding support of the Sabin Center for Climate Change Law at Columbia University. Our collaboration in producing the Global Climate Litigation Report 2023 Status Review would not have been possible without their dedication and commitment. Patricia Kameri-Mbote Director of the Law Division United Nations Environment Programme Page X Global Climate Litigation Report 2023 Status Review | ForewordExecutive summary Climate ambition around the world remains inadequate to meet the challenge of our climate crisis. Despite improvement in countries’ mitigation and adaptation targets, and despite numerous corporate pledges to achieve net-zero emissions in the future, the international community is still a long way from achieving the goals and objectives of the Paris Agreement. In response, individuals, children and youth, women and human rights groups, communities, Indigenous groups, non-governmental organizations NGOs, business entities, and national and subnational governments have turned to courts, tribunals, quasi-judicial bodies or other adjudicatory bodies, including special procedures of the United Nations and arbitration tribunals, seeking relief through i The enforcement of existing climate laws ii Integration of climate action into existing environmental, energy and natural resources laws iii Orders to legislators, policymakers and business enterprises to be more ambitious and thorough in their approaches to climate change iv Establishment of clear definitions of human rights and obligations affected by climate change v Compensation for climate harms Global Climate Litigation Report 2023 Status Review | Executive summary Page XI © Flickr / UN WomenPage XII Global Climate Litigation Report 2023 Status Review | Executive summary As these cases become more frequent and numerous overall, the body of legal precedent grows, forming an increasingly well-defined field of law. This Global Climate Litigation Report 2023 Status Review, which updates previous United Nations Environment Programme reports published in 2017 and 2020, provides an overview of the current state of climate change litigation and an update of global climate change litigation trends. It provides judges, lawyers, advocates, policymakers, researchers, environmental defenders, climate activists, human rights activists including women’s rights activists, NGOs, businesses and the international community with an essential resource to understand the current state of global climate litigation, including descriptions of the key issues that courts have faced in the course of climate change cases. While the legal arguments and the adjudicative forums in which they are brought vary greatly, climate change cases have typically addressed similar key legal issues. Like the 2017 and 2020 Litigation Reports, this report summarizes those issues, which include challenges to whether the court has the power to resolve the dispute, identifying the source of an enforceable climate-related right or obligation, crafting a remedy that will lessen the plaintiffs’ injuries, and, importantly, marshalling the science of climate attribution. Over the course of reporting on these issues, it is clear that parties are putting forward innovative arguments on connections between a specific greenhouse gas emitter’s actions and global climate change, and how foreseeable climate-driven impacts can be linked to specific harms suffered by plaintiffs. . describes the importance of climate change litigation through an overview of the environmental, diplomatic and political circumstances that make climate change litigation efforts especially important. provides a survey of the state of climate change litigation and a discussion of evident and emerging trends. describes the types of climate cases that suggest where global climate change litigation may be heading in the coming years. provides an overview of global climate litigation through an analysis of the overall number of gathered cases and their geographic distribution. As described in more detail elsewhere in this report, the cases analysed here were collected by the Sabin Center for Climate Change Law in its Climate Change Litigation databases. Part 1 Part 3 Part 4 Part 2 © Unsplash / Mathias RedingPage XIV Global Climate Litigation Report 2023 Status Review | Executive summary As at 31 December 2022, the Sabin Center’s Climate Change Litigation databases included 2,180 cases filed in 65 jurisdictions and international or regional courts, tribunals, quasi-judicial bodies, or other adjudicatory bodies, including special procedures of the United Nations and arbitration tribunals. This number includes 1,522 cases in the United States of America and 658 cases in all other jurisdictions combined. In summary, climate change litigation is increasing and broadening in geographical reach, while the range of legal theories is expanding. It has become clear – and is now recognized by the Intergovernmental Panel on Climate Change – that inclusive approaches to climate litigation that also address the human rights of the most vulnerable groups in society can contribute in meaningful ways to compel governments and corporate actors to pursue more ambitious climate change mitigation and adaptation goals. Global Climate Litigation Report 2023 Status Review | Introduction Page 1 © Unsplash / Mika Baumeister IntroductionPage 2 Global Climate Litigation Report 2023 Status Review | Introduction Introduction The United Nations Environment Programme UNEP published its first survey of global climate change litigation in 2017 UNEP 2017 1 and the second instalment in 2020 UNEP 2020. 2 These reports identified key developments, profiled significant cases