INSIGHT by L. Delta Merner, PhD, Lead Scientist, Science Hub for Climate Litigation, Union of Concerned Scientists
Last year, I made three predictions for what would happen in climate litigation in 2023. Two of my predictions hit the mark, while the other one revealed the complexity of the legal battles waged against climate injustice. Below I reflect on my predictions before venturing into the uncharted territory of 2024.
2023 in Review
| US cases heard on merits: A mixed bag
My prediction that cases would finally be heard on their merits in the United States encountered a mixed reality. While major oil companies did run out of legal stalling tactics when state courts denied their appeals to switch jurisdiction to federal courts, the pace of progress remained sluggish. There was a glimmer of hope in Hawaii, however, when a state Supreme Court ruling opened the door for a potentially historic trial against oil companies set for 2024.
In an unforeseen turn of events, a pivotal climate litigation case unfolded in Montana, where 16 young environmental advocates challenged the state’s fossil fuel policies. With this case, we saw litigation move through the courts to a ruling (which I did not predict)! Focusing on their right to a safe environment as guaranteed by the state constitution, the plaintiffs argued that state laws permitting fossil fuel development without considering its effect on the climate exacerbates the crisis. A Montana judge declared those state laws unconstitutional.
Science and lived experience led this case. The judge’s dismissal of Montana’s feeble defense underscored the irrefutable nature of climate science, offering hope for future cases and represents a crucial step toward aligning legal systems with the urgency of climate action.
| New legal approaches worldwide: A resounding yes
My anticipation of new, innovative legal approaches worldwide proved to be spot-on. Around the globe, climate litigation advanced unprecedented new arguments.
The movement to hold corporations accountable for climate harm gained momentum, extending beyond the “carbon majors” to include airlines and fast fashion manufacturers. Climate litigation emphasized addressing current and past harms, with a spotlight on Loss and Damage. Additionally, investment-related litigation gained prominence, shaping governance in the face of climate change. Finally, while the majority of cases first originated in the Global North, there was a notable shift last year with emerging cases in the Global South that focused on human and constitutional rights.
| Advances in science strengthening cases: Affirmative
My prediction that scientific advances would bolster litigation held true. Attribution science and climate obstruction research have emerged as transformative forces, providing robust evidence for legal cases and enhancing our understanding of the connections between human activities, climate change, and resulting impacts.
The Union of Concerned Scientists (UCS) continued to lead with a new study providing regional source attribution for US forest fires, which showcased the pivotal role of scientific advancements in climate litigation. Our study shows that heat-trapping emissions traced to the world’s 88 largest fossil fuel producers and cement manufacturers have dramatically increased forest fire activity in the western United States and southwestern Canada. Nearly 40 percent of the total area burned by forest fires in this region since 1986 can be attributed to the emissions of these major carbon producers. That amounts to nearly 20 million acres of forest land burned—an area roughly the size of Maine.
Nearly half of the climate litigation cases filed by local and state governments in the United States against the fossil fuel industry mention wildfire. Around the world, wildfires are extracting an increasingly heavy toll, threatening lives, homes, communities, and ecosystems, while degrading air quality for millions more. Building on a growing body of attribution research, UCS’s study spotlights the fossil fuel industry’s role in driving these changes and builds on a growing body of attribution research.
Predictions for 2024
Now for the fun part. Let’s look at a few predictions for this upcoming year.
| A new focus: Fossil fuel phaseout cases
In 2024, anticipate new cases on fossil fuel phaseout. With climate change already causing irreparable harm worldwide, the focus of climate litigation is shifting. As the scientific consensus solidifies the link between fossil fuel emissions and climate change, there is a growing drive to hold those responsible accountable and climate litigation is evolving to address not only the environmental damage, but also the overarching crises affecting human health, ecosystems, and political stability caused by extracting, processing, and burning fossil fuels.
Moreover, as the worst impacts of climate change disproportionately affect historically marginalized communities, climate litigation is increasingly championing climate justice. The emphasis is on a fast and equitable phaseout of fossil fuels, commencing with wealthier nations that bear significant historical responsibility for emissions.
| Discovery will take center stage
Next year will mark a significant milestone as legal discovery not only begins (fingers crossed!) but also starts to reveal its importance in the context of climate litigation. Discovery is a vital pretrial process where parties exchange relevant information and evidence, aiding each side in understanding the case and building arguments.
Much like its historic role in the Tobacco Master Settlement Agreement of 1998, discovery in climate-related litigation can disclose internal documentation—scientific studies, corporate communications, and strategy memoranda—of immense value in establishing causation and assigning responsibility for climate-related damages. Robust discovery processes not only shape public discourse but also act as a catalyst for transformative legal actions. I may be overly optimistic that the public will be able to see documents from discovery next year, but I’m full of hope for 2024.
| Courts will strengthen human rights connections
The global stage will witness pivotal moments in 2024 as key international courts make rulings and take the next steps. Anticipate a decision from the Inter-American Court of Human Rights that will dive deeper into questions of human rights around climate. Additionally, the International Court of Justice (ICJ) will start to hear testimony that could influence the trajectory of global climate litigation. I expect these cases will expand our thinking about climate change and human rights for the better.
We’ll also see more climate cases that include the concept of cultural heritage loss. As my colleague Adam Markham has clearly pointed out, cultural heritage is a human right. Next year, courts will do more to grapple with climate impacts on cultural heritage building upon rulings in the Hawaii, Montana, and the Torres Strait Islands. 2024 will do more to lay the groundwork for courts to address the evolving landscape of international human rights law and the growing body of climate litigation, which will contribute to testimony before the ICJ and additional cases for holding governments and companies accountable for the impact of climate change on cultural rights.
Jumping into 2024
The successes and challenges of the past year serve as guideposts for the year ahead, reinforcing the notion that, in the pursuit of climate justice, each step is important and every tool is needed.
Moving forward, it’s important to remember that the science of climate change is clear, progress has been made, and real solutions exist. The transition from fossil fuels is not an abstract concept; it is already underway. Cleaner, safer energy technologies are cost-competitive and widely available. The urgency lies in our ability to accelerate this transition and curtail fossil fuel use to protect communities around the world and manage mounting impacts. As we continue to fight for climate justice, courts can be a useful tool to help understand how we got here, and provide ways to move forward. And together we can embrace a more holistic view for understanding climate impacts, looking at past climate Loss and Damage to protect future generations.
| brief bio
In her role as Lead Scientist for the Science Hub for Climate Litigation, Dr. Merner provides timely, scientific evidence to support legal cases that hold fossil fuel companies accountable for climate-related damages.
| All opinions expressed are those of the author and/or quoted sources. investESG.eu is an independent and neutral platform dedicated to generating debate around ESG investing topics.
