If you pollute they take you to court – Stella Levantesi

A year ago, in May 2021, a Dutch court ordered the fossil fuel company Shell to reduce its emissions by 45 percent by 2030. Although, predictably, Shell appealed, the ruling is historical. In fact, it is the first time that a multinational has been held legally responsible for contributing to the climate crisis. It is also the first time that a court has asked a polluting company for a change of policy, rather than a monetary compensation. In the case (Milieudefensie et al. V Royal Dutch Shell), the prosecution argued that the company, with its role in the climate crisis, has not only violated Dutch law but also human rights. An approach increasingly used in climatic causes.

In Australia, also in 2021, the federal court imposed on the environment minister, Susan Ley, to protect the younger generations from climate change with a sentence that, like the one against Shell, sets a precedent: eight teenagers and a nun had filed an injunction to prevent the ministry from approving a proposal to expand a coal mine in northern New South Wales.

In October, the non-governmental organization All Rise also submitted a request to the prosecutor’s office of the International Criminal Court (ICC) to open an investigation into Brazilian President Jair Bolsonaro for crimes against humanity committed due to massive deforestation in the Amazon.

Justice at the center
Climate lawsuits represent a new activist strategy that brings justice to the heart of the climate crisis. A recent report by the Grantham Research Institute (GRI) of the London School of Economics (LSE) concluded that “strategic causes”, ie those that have the ultimate goal of bringing about a “transformation of society”, are on the rise.

“People have taken to the courts because governments and large emitters have simply been too slow to reduce their carbon emissions,” explains Joana Setzer, a climate litigation expert and researcher at LSE.

It is not only organizations around the world that are waging climate lawsuits against large emitting companies and some governments, but also civil society, groups, movements and young people. The climate crisis and its consequences are thus reformulated as issues of justice, rather than as issues of political or economic power, explained Carroll Muffett, president and CEO of the Center for international environmental law in the United States. And this kind of approach is becoming more and more popular.

According to a report examining the growing number of climate lawsuits, published in January 2022 by the Climate social science network (Cssn) of Brown university’s Institute for environment and society in the United States, since 2015 the number of lawsuits related global climate change has more than doubled. Between 1986, the year in which the first climate lawsuit dates back, and 2014, about 800 were filed; In the last six years alone, more than a thousand have come to court.

These lawsuits have potentially significant implications in the fight for the climate and are also spreading in Italy. In 2019, more than 200 applicants between individuals and associations launched the Universal Judgment campaign which filed the first climatic lawsuit against the Italian state in June 2021.

“This legal initiative comes within the path traced by other cases in Europe and the United States, a precursor country for climate litigation”, Explains Marica Di Pierri, spokesperson for A sud, the association that filed the lawsuit. “It is a formidable tool for putting pressure on the state and asking to strengthen its commitments in the fight for the climate.”

In April 2021 the non-profit organization ClientEarth launched The greenwashing files campaign. According to the organization, deceptive “green” advertising – part of the strategy of greenwashing deployed by companies to appear more environmentally conscious than they really are – it can underpin legal claims for fraud, misrepresentation and consumer protection. The report points out that it’s not just companies that are involved in the greenwashing. Governments, politicians and other institutional figures can use the greenwashing to disguise their actions “with the aim of influencing public opinion in their favor”.

The CSSN researchers explain that the first legal actions against the greenwashing they concerned companies that marketed polluting products and presented them as sustainable. Even today, many lawsuits are brought on the basis that a company’s marketing campaigns, for example, are misleading and deceiving consumers, or inflating and overstating their real commitment to the climate and the environment. According to the researchers of the CSSN, this action can go beyond the greenwashing. The report, in fact, defines the gap between what a company promotes and its actual climate commitments like climate washing.

Scientists have found that many fossil fuel companies and major polluters adopt communication strategies to create the perception that their businesses are part of the solution to climate change, rather than being the root cause. And, in this context, the concept of climate washing it is a useful perspective for examining and enforcing climate commitments, including the recent net zero emissions commitments that we hear a lot about.

The sectors involved and fossil disinformation
According to the GRI analysis, of the 193 cases identified in 2021, 38 were brought against private sector entities, often in collaboration with government entities. This number represents an increase from 2020, when 22 cases against companies were filed. All but one cases have been filed in the United States, Australia and Europe.

Not surprisingly, fossil fuel companies are the most frequently involved. According to the GRI report, the plaintiffs challenged the companies with misleading claims about the production of clean energy, withholding investment plans in carbon-intensive projects, failure to comply with environmental and climate regulations and failure to reduce carbon dioxide emissions. Among the complaints there is also the accusation that companies have intentionally hidden information and data on their contribution to emissions and their role in the climate crisis.

For decades, fossil fuel companies have engaged in disinformation campaigns in order to delay the energy transition. A recent investigation by the Human Rights Commission in the Philippines argues that these actions can now be used to hold companies accountable for climate damage and, according to legal experts, could contribute to the trend of climate change. climate litigation globally. Oil, coal, mining and cement companies are involved in an “intentional obfuscation” of climate science to sow doubts and misinformation about climate change and prevent the transition to clean energy.

A tactic that shows the first cracks. On May 24, 2022, the Massachusetts Supreme Court unanimously rejected ExxonMobil’s request to dismiss the lawsuit – filed by the state Attorney General – in which it is accused of misleading consumers and investors about climate change and the dangers of climate change. use of fossil fuels.

After the fossil companies, according to the Gri report, most of the cases were brought against companies in the agri-food and plastic sectors. Other sectors involved, continues the analysis, are that of transport and finance. In Australia, for example, a complaint against the financial institution HSBC was filed with the advertising standards authority: its misleading claims on the protection of the great barrier reef were challenged. The causes involving the finance sector therefore reflect the growing centrality of its role in the energy transition.

On several fronts, climate causes are proving to be a fundamental tool for advancing the fight for the climate, and should be supported and encouraged not only by civil society and organizations but also by politics and business.

GRI predicts that, despite all the uncertainties, other high-emission sectors could be the next target of climate causes.