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Why 2023 will be a watershed year for climate litigation

Over the past twelve months, courts from Indonesia to Australia have made ground-breaking rulings that blocked polluting power plants and denounced the human rights violations of the climate crisis. But this year could be even more important, with hearings and judgments across the world poised to throw light on the worst perpetrators, give victims a voice and force recalcitrant governments and companies into action.

Although the bulk of climate lawsuits have been filed in the US, most of these have been thrown out of court or bogged down in procedural arguments. This year will, however, finally see a case go to trial when a group of children and young people between the ages of five and 21 square off against Montana.

Over two weeks in June, they will argue that the US state is failing to protect their constitutional rights, including the right to a healthy and clean environment, by supporting an energy system driven by fossil fuels. They will also say climate change is degrading vital resources such as rivers, lakes, fish and wildlife which are held in trust for the public.

It is likely the watershed trail will be watched around the world and is set to influence the trajectory of climate change litigation going forward. Other cases against US states could also be given permission to go to trial.

Climate lawsuits to look out for in 2023

To the north in Canada, a ruling is expected this year in the country’s first climate lawsuit to have had its day in court. Seven young people, fronted by now-15-year-old Sophia Mathur, made history last autumn when they challenged the Ontario government’s rollback of its 2030 greenhouse gas emissions reduction target.

And to the south in Mexico, Greenpeace and groups of young people have led several important court cases challenging the slow pace of the country’s clean energy transition. In one, the Supreme Court is due to decide whether they have standing to bring their case.

In the rest of Latin America, which has pioneered innovative approaches in climate litigation, legal action will increase and improve next year, says Javier Davalos González, senior lawyer at the Interamerican Association for Environmental Defense (AIDA).

South Africa - already a hotspot for climate litigation within the African continent - could see a whole new set of lawsuits filed this year, as well as decisions in several important cases. One, a constitutional challenge to the country’s plan to build new coal-fired power stations during the climate crisis, was heard in November and a ruling is expected soon.

There are also hopes that Uganda’s High Court might finally conclude a case filed more than a decade ago by a group of young people, who argue their government is failing to preserve a healthy atmosphere as a public resource for both present and future generations.

Meanwhile, the Australian crucible of successful climate litigation will hear a class action case in June led by Torres Strait islanders Pabai Pabai and Paul Kabai, who argue the state should cut its emissions by 74% by 2030 to save their islands from rising sea levels and other devastating climate impacts.

A hop away in New Zealand, the Court of Appeal is expected to hear Northland iwi leader Mike Smith’s appeal against the High Court striking down his claim against the New Zealand government, in which he sought a declaration that it had breached its climate obligations.

And a decision is expected soon in a case filed by a youth group claiming the government of South Korea’s inaction on climate change infringes their constitutional rights.

Chinese courts, a surprisingly welcome venue for environmental lawsuits, have shown a growing appetite for climate litigation and action could be taken this year against provincial governments or cities.

On the other side of the world, the European Court of Human Rights has several climate cases on its books, all of which argue that government inaction in limiting dangerous global warming risks basic human rights such as health and life.

At its first public climate hearing in March this year, a group of older Swiss women known as the KlimaSeniorinnen Schweiz will say they are particularly vulnerable to climate change because their health is at risk from heat waves. They will get to make their arguments in front of the court’s Grand Chamber, which is reserved for the most serious cases, and will do so supported by two prominent British lawyers - Jessica Simor and Marc Willers.

At national level, campaigners will be asking judges to make climate orders against the governments of Italy, Belgium and France, following a string of successful similar European cases.

Sarah Mead, co-director of the Climate Litigation Network, says these cases are crucial because a positive outcome can enhance government accountability, particularly in OECD countries with significant historical responsibilities and more capacity to cut their emissions. They also help “narrow the global emissions gap and further foster citizens' mobilisation on the need for stronger climate action”.

There will be movement on an international level too. Early this year, the UN will vote on a key resolution about human rights and climate change. If passed, the International Court of Justice will have to provide an advisory opinion on the obligations of states under international law to protect the rights of present and future generations against the adverse effects of climate change. This work has been led by vulnerable island state Vanuatu, and now has support from governments all around the world.

It’s not just governments in the firing line; climate litigation against the private sector will continue to grow, to read more about the impact on the private sector and government plans read the full article here.

You can expect to see many more lawsuits filed this year, as well as more creative uses of the law. The financial sector, in particular, is likely to be a big target, and there will be continuing waves of related litigation targeting plastics and biodiversity loss. This year is “shaping up to be a really important year for climate litigation,” says Mead.

Original source: The Wave


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