We Did, Actually, Start the Fire – Now We Have to Try to Put it Out: Litigation as a Strategy to Fight Climate Change

We Did, Actually, Start the Fire – Now We Have to Try to Put it Out: Litigation as a Strategy to Fight Climate Change

By Maria Saracino-Lowe

The world as we know it is, basically, ending. And it’s our fault. Anthropogenic climate change is triggering weather extremes throughout the world, with increasingly frequent “hot extremes, marine heatwaves, heavy precipitation, and, in some regions, agricultural and ecological droughts.”[1] Many of these changes cannot be reversed in our lifetime.[2] While there have been a variety of domestic policies and international agreements focused on mitigating the effects of climate change,[3] the last seven years have been the hottest ever recorded[4] and the world is not on track to meet the goals set out by the Paris Agreement, which include “keep[ing] global temperature from exceeding 1.5°C above pre-industrial levels.”[5]

Probably as a result, cases focused specifically on mitigating the impact of climate change have risen incredibly sharply.[6] Since 2015, over 1,000 climate change cases have been filed worldwide.[7] These cases have become increasingly successful, with 58% of decisions “favorable to climate change action.”[8] These cases are largely brought by nongovernmental organizations (NGOs) against States under the premise that a government’s failure to adequately mitigate the effects of climate change constitutes a violation of “rights to life or environmental rights.”[9] More recently, cases have been increasingly filed against multinational corporations accused of perpetuating environmental and climate harm.[10]

These cases are largely adjudicated in civil courts.[11] However, there have been increasing calls to hold parties criminally responsible in an international venue.[12] One proposal, which tracks more closely to issues related to environmental law, is to amend the Rome Statute, which established the International Criminal Court (ICC), to include a new crime: “ecocide.”[13] This is not a new idea in international law: in 1984 the International Law Commission (ILC) discussed “the inclusion of environmental damage and [e]cocide into the list of Crimes against Peace,”[14] but ultimately decided against pursuing the addition after several members objected.[15]

Most recently, an international expert panel has drafted a proposed amendment to the Rome Statute, defining “ecocide” as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.”[16] It is also important to note that, while the Rome Statute does currently include environmental harms, it is only in reference to war crimes.[17] By adding “ecocide” as a separate crime, the hope is to also cover environmental crimes that are committed during peacetime.[18] A common criticism centers on the efficacy of adding “ecocide” to the Rome Statute—if countries like the United States (one of the world’s largest emitters of greenhouse gases) are not even parties to the Rome Statute, would there actually be meaningful enforcement?[19] Or is this another case of international climate policy that sounds good, but is ultimately toothless?[20]

Ultimately, there needs to be rapid, targeted action to address climate change.[21] Our current methods are not working—and, increasingly, litigation has been demonstrated to be an effective way of pushing government entities and corporations to act to mitigate their adverse climate impacts.[22] Let’s hope it’s not too late.

[1] Climate Change 2021: The Physical Science Basis – Summary for Policymakers, IPCC 8 https://www.ipcc.ch/report/ar6/wg1/downloads/report/IPCC_AR6_WGI_SPM_final.pdf (last visited on Feb. 17, 2022).

[2] Id.

[3] See U.N. Doc. FCCC/CP/2015/L.9/Rev/1 (Dec. 12, 2015) [hereinafter Paris Agreement]; 37 I.L.M. 22 (1998); 2303 U.N.T.S. 148; U.N. Doc FCCC/CP/1997/7/Add.1 [hereinafter Kyoto Protocol].

[4] Raymond Zhong, 2021 Was Earth’s Fifth Hottest Year, Scientists Say, N.Y. Times (Jan. 10, 2022), https://www.nytimes.com/2022/01/10/climate/2021-hottest-year.html.

[5] Climate Action Fast Facts, U.N., https://www.un.org/en/climatechange/science/key-findings#temperature-rise (last visited Feb. 17, 2022).

[6] Global Trends in Climate Change Litigation: 2021 Snapshot, London Sch. of Econ. and Pol. Sci. (Jul. 2, 2021), https://www.lse.ac.uk/granthaminstitute/publication/global-trends-in-climate-litigation-2021-snapshot/.

[7] Id.

[8] Climate Change Cases Spreading Throughout the World, London Sch. of Econ. and Pol. Sci. (Jul. 2, 2021), https://www.lse.ac.uk/granthaminstitute/news/climate-change-litigation-cases-spreading-around-the-world/.

[9] Ivano Alogna, Christine Bakker & Jean-Pierre Gauci, Climate Change Litigation: Perspectives—An Introduction, in Climate Change Litigation: Global perspectives 1, 19 (Ivano Alogna, Christine Bakker & Jean-Pierre Gauci eds., 2021).

[10] Catherine Higham & Joana Setzer, What Can Corporate Actors Learn from Climate Change Litigation?, London Sch. of Econ. and Pol. Sci. (Oct. 4, 2021), https://www.lse.ac.uk/granthaminstitute/news/what-can-corporate-actors-learn-from-climate-change-litigation/; see also, Non-U.S. Climate Litigation: Suits Against Corporations, Individuals, Climate Case Chart, http://climatecasechart.com/climate-change-litigation/non-us-case-category/corporations/ (last visited Feb. 17, 2022).

[11] See generally, Global Climate Change Litigation, Climate Case Chart, http://climatecasechart.com/climate-change-litigation/non-us-climate-change-litigation/ (last visited Feb. 17, 2022).

[12] Rob White, Environmental Crime and Problem-Solving Courts, 59 Crime, L. and Soc. Change 267, 269 (2013).

[13] Polly Higgins, Damien Short & Nigel South, Protecting the Planet: A Proposal for the Law of Ecocide, 59 Crime, L. and Soc. Change 251, 257 (2013).

[14] Id.

[15] Id.

[16] The Crime of Ecocide, UCLA Law, https://law.ucla.edu/academics/centers/promise-institute-human-rights/ecocide (last visited Feb. 17, 2022).

[17] Unpacking Ecocide: A Note of Caution for International Criminalization, SEI (Jul. 9, 2021), https://www.sei.org/perspectives/unpacking-ecocide-international-law/; 2187 U.N.T.S. 90; 37 I.L.M. 1002 (1998) [hereinafter Rome Statute].

[18] Unpacking Ecocide: A Note of Caution for International Criminalization, SEI (Jul. 9, 2021), https://www.sei.org/perspectives/unpacking-ecocide-international-law/.

[19] Id.

[20] Id.

[21] Climate Change 2021: The Physical Science Basis – Summary for Policymakers, supra note 1.

[22] Global Trends in Climate Change Litigation: 2021 Snapshot, supra note 6.