Global Toolbox
on Corporate Climate Litigation
We very much hope that you find these tools useful. It really helps us to know how you apply the knowledge we have provided and if it achieves successful outcomes. Please let us know how the Toolbox has helped you, by contacting us at toolbox@biicl.org.
INTRODUCTION
1. The Object: Corporate Climate Litigation
Climate change litigation is an increasingly 'important component of the governance framework that has emerged to regulate how States respond to climate change at the global, regional and local levels',[1] exerting pressure on the executive and legislative branches of government to act on climate change issues. More than 2500 climate change litigation cases have been filed globally.[2] The IPCC has noted trends in climate change litigation as positive steps to push ambitious climate action where the trajectory of diplomatic endeavours has been rather slow.[3] Although the majority of these cases (around three-quarters) have been filed against States or other public bodies,[4] climate change-related cases have also been filed against private actors, including the 'Carbon Majors', fossil fuel and cement companies, which are major greenhouse gas emitters (see Fig. 1 and Tab. 1).[5] While such cases have been brought against States, on grounds such as 'failure to regulate emissions and for granting licenses for carbon-intensive activities',[6] the last decade has witnessed a rising trend in the cases brought directly against companies, especially concerning their alleged failure to adapt and mitigate adverse effects of climate change. Thus, efforts to hold companies accountable for their impacts on climate change are the essence of Corporate Climate Litigation. Whilst a growing body of work is analysing government-focused climate litigation from a comparative perspective,[7] analysis of the peculiarities of cases involving corporate players has yet to receive the same rigorous attention.
Fig. 1: Global emissions of carbon dioxide for fossil fuel use and cement production from 1820 to 2018 (black) and the emissions attributed to 108 major carbon producers (red) / Table 1: Emissions for the period 1965 to 2018 by the Top 20 investor-owned and state-owned oil, natural gas, and coal producers, and as percent of global fossil fuel emissions.
Climate litigation has a wide-ranging scope. As authors have recently observed, 'the term Climate Litigation has no fixed legal contour';[8] it does not only include legal proceedings related to the causes and consequences of anthropogenic climate change but potentially includes all activities aimed at reducing climate-related damage and stopping climate-damaging projects. In legal literature, two main approaches dominate the debate on the definition of climate change litigation. On the one hand, a 'narrow definition', according to which climate change litigation only covers litigation directly and expressly raising an issue related to climate change or climate change policy.[9] On another hand, broader definitions are increasingly being put forward, which, in addition to the explicit reference to climate change in the proceedings or decisions, also consider the motivations of plaintiffs, as well as cases where climate change is not the central, but rather an 'additional' or 'secondary' concern, even when not expressly mentioned. Such a broader definition is especially required when considering litigation in the Global South, 'where a significant number of the cases reflect a "peripheral" focus on climate change, rather than having the issue at the "core" of the litigation.'[10]
In September 2022, the British Institute of International and Comparative Law (BIICL) started a research project called "Global Perspectives on Corporate Climate Legal Tactics", studying climate litigation that specifically targets all kinds of responsibilities of corporations for their activities and their deleterious consequences on the worsening of anthropogenic climate change. The project's goal was to create a toolbox of legal practice in various jurisdictions, opening up its analysis to a broader definition of climate litigation adapted to every legal system worldwide and aiming to identify and examine the unique aspects of climate litigation involving corporate actors.
2. The Global Toolbox on Corporate Climate Litigation
The Global Toolbox on Corporate Climate Litigation (the "Toolbox"), the main outcome of this project, is an evolutive and collaborative open-access platform providing a selection of tools for anyone interested in this kind of litigation: NGOs, companies, government bodies and local communities, as well as other affected groups and individuals around the world and those representing them. Moreover, its up-to-date content made it of interest to governments and domestic legislators, judges and arbitrators, and legal academics and researchers on a global level. The Toolbox contains an inventory of substantive and procedural provisions relevant to climate change cases involving corporations to be used as legal models by policymakers and legal practitioners and provides an authoritative reference point for judges and other adjudicators.
The Toolbox is the result of a comparative and interdisciplinary analysis of Corporate Climate Litigation across three distinct but inter-connected research axes, namely:
- a. Causes of action;[11] b. Procedures and Evidence;[12] c. Remedies.[13]
The countries included in the project are (in alphabetical order):
- Australia, Brazil, Canada, China, France, Germany, India, Italy, Japan, Kenya, the Netherlands, Nigeria, Norway, the Philippines, Poland, the United Kingdom, and the United States.
The list was created on the basis of countries where existing cases of corporate climate litigation have been identified, according to the databases maintained by the Sabin Centre at Columbia University and the Grantham Research Institute (LSE) and on comparative studies.[14] The countries' analysis covers every continent and provides examples, experiences, and practices from different legal systems.
The research and analysis on those legal systems are provided by the 17 National Reports, where the most relevant causes of action, procedures, legal arguments, remedies, lessons learned, and prospects are identified. These Reports constitute the basis for the comparative analysis made available in the Toolbox and are based on a questionnaire provided by the BIICL Climate Change Law team on the three research axes. The National Reports examined each topic from the point of view of past climate-related caselaw (or related to lessons learned in other fields of litigation), the relevant legislation (domestic, regional and international), the most common hurdles encountered or possibly challenging this kind of litigation, and potential future avenues or application of existing legal provisions and doctrines.
Therefore, the Toolbox is organised into three Parts following the three research axes: a) causes of action, b) procedures and evidence, and c) remedies, which are divided into sections. Each Section of the Toolbox takes stock and builds on the 17 National Reports, dealing comparatively with the topics explored by the National Rapporteurs to distil the most relevant information. Every section follows the same structure (except for particular procedural sections, where an alternative structure is adapted to their content) and offers: (1) an overview of a topic; (2) a graphic summary of its established legal avenues, hurdles and challenges, and potential legal avenues; (3) some of its relevant definitions and essential elements which can be found in all the target countries; (4) its legal sources (where possible) at the international, regional and domestic levels, distinguishing between constitutional and legislative provision in each legal system, to be considered as possible legal models for other countries; (5) its application in case law; (6) its hurdles and challenges encountered in the different legal systems; (7) its potential future applications; and (8) country summaries related to that topic.
The goals of the Toolbox are:
- to provide a mapping and comparative analysis of corporate climate litigation cases globally, taking into consideration perspectives from 17 countries covering every continent, to offer a comprehensive overview of both the existing best practices worldwide and the most suitable corporate climate litigation avenues for differentiated legal systems and economies;
- to catalogue existing cases - also taking stock of the lessons learned in other fields (e.g. tobacco, asbestos, toxic torts);
- to engage in strategic, prospective and interdisciplinary thinking to identify possible frameworks, arguments, and legal instruments to tackle climate change;
- to help litigation planning, contribute to more comprehensive and effective climate action, raise public awareness, and allow and encourage corporate actors to mitigate their litigation risks by changing business behaviour.
3. Global Perspective and Experts Involved
The Toolbox's global feature is embedded in its content and approach, considering perspectives from Global South and Global North countries to offer a comprehensive overview of the existing best practices worldwide. Its research and content analysis have been carried out by experts from every continent, led by BIICL's Climate Change Law research team and supported by a Core Group of internationally renowned experts in the field of corporate climate litigation and related areas. The Core Group members are drawn from science, the judiciary, legal practice, and academia to broaden the discussion among the different scientific and legal disciplines involved in the project (climate attribution science, climate change and environmental law, business and human rights, international and comparative law, corporate law, consumer law, financial law and ethics, tort law and civil justice, etc.).
Each one of the 17 target legal systems (and their regional contexts) has been analysed by a (or group of) National Rapporteur(s), who are the project contact point in their country, selected among academics to seek to maintain the neutrality of the project. The National Rapporteurs researched and coordinated their work with legal practitioners and discussed - during national workshops and their national reports' revision - with members of the judiciary with experience in this area (if considered appropriate in their legal system), other legal academics, and scientists (such as economists, climatologists, meteorologists, geochemists, geophysicists, etc.).
All the participants in the research (including the practitioners, judges, legal academics and scientists) are part of the wider International Expert Group (IEG), including more than 200 experts worldwide, which has been formed to support the research and analysis of the 17 target legal systems and their regions, and is expanding and growing every month. The IEG members are divided by country of practice and are critical in the project dissemination strategy in their country and region through their institutions and networks. This working structure creates a collaborative dynamic to support the Toolbox's evolution by providing further opportunities for discussion with key stakeholders in each legal system involved. These stakeholders, identified from civil society, NGOs, industry, banks and financial institutions, local and national decision-makers, and other legal experts, are critical to inform and test the project in different legal and socio-economic contexts.
4. An Evolutionary Platform: Developments and Next Phases
The Toolbox is an evolutionary interactive knowledge platform created by experts from every continent and different legal systems. Its constant development and update result from a collaborative process among academics, practitioners, judges, scientists, and other stakeholders involved in this field.
The Toolbox is constantly growing and taking stock of discussions in different countries, thanks to country-focused and comparative workshops, as well through a series of National Conferences (one in each of the target countries) and Regional Summits (to be held in Australia - Oceania Summit, Brazil - American Summit, France - European Summit, Kenya - African Summit, and the Philippines - Asian Summit) (see the 2024 Event Programme here [link to the event programme webpage]). These hybrid events, organised in partnership with the National Rapporteurs, their institutions, Core Group members and other members of the IEG, allow remote participation and include as many interested actors and stakeholders as possible. They are critical to adding further legal experiences, comparative suggestions, and useful options in other countries while raising awareness of Toolbox's potential uses. These developments and exchanges provide the ideas, materials and experiences that permit the Toolbox's evolution, expansion and refinement.
The Toolbox is a part of the BIICL Corporate Climate Litigation Platform, presented during a side event at COP28 in Dubai, embedding different items: 1) the Corporate Climate Litigation Resources, a literature repository established and growing with the support of the IEG, including references to books, journal articles, reports, webinars, podcasts and blogs in this field; 2) the Corporate Climate Litigation Toolbox, which includes the National Reports, their translations in the original language, as well as tables and graphs, a series of podcasts, as well as other tools related to the research (forthcoming); and 3) the Corporate Climate Litigation Database (forthcoming), a user-friendly AI-powered database with translation features to explore legal possibilities in this field and lessons learned from different legal systems. The Database will be developed using the Toolbox comparative research, structure and terminology analysis, which will continue in the next phase by creating a comparative Laboratory to study and assess the most problematic issues related to Corporate Climate Litigation worldwide, which will keep fuelling the Toolbox.
[1] J Lin, 'Climate Change and the Courts' (2012) 32 Legal Stud 35, 36.
[2] 'Climate Change Litigation Databases' (Sabin Center for Climate Change Law, Columbia University). See also other climate change law, litigation and advocacy databases and toolkits: 'Australian and Pacific Climate Change Litigation' (Melbourne Climate Future, Melbourne University): 'Climate Change Laws of the World' (Grantham Research Institute on Climate Change and the Environment, LSE); 'Milieudefensie climate case tool' (Milieudefensie); 'The Chancery Lane Project Toolkit' (Chancery Lane Project); 'Scientist Advocacy Toolkit' (Union of Concerned Scientists); 'Climate Rights Database' (Climate Rights and Remedies, University of Zurich); and 'Right to a Healthy Environment (R2HE) Toolkit' (New York University).
[3] IPCC, 'Working Group VI full report' (2022) 127.
[4] J Setzer and C Higham, 'Global trends in climate change litigation: 2021 snapshot' (Grantham Research Institute on Climate Change and the Environment, LSE, July 2021)
[6] Business and Human Rights Resource Centre, 'Turning up the heat: Corporate legal accountability for climate change' (Corporate Legal Accountability Annual Briefing 2018) 5.
[7] Ex multis, K Bouwer et al. (eds), Climate Litigation and Justice in Africa (Bristol University Press 2024); I Alogna et al. (eds), Climate Change Litigation in Europe: Regional, Comparative and Sectoral Perspectives (Intersentia 2024); C RodrÃguez-Garavito (ed.), Litigating the Climate Emergency: How Human Rights, Courts, and Legal Mobilization Can Bolster Climate Action (Cambridge University Press 2022); I Alogna et al. (eds), Climate Change Litigation: Global Perspectives (Brill 2021); F Sindico and M Mbengue (eds), Comparative Climate Change Litigation: Beyond the Usual Suspects (Springer 2021); W Kahl and M-Ph Weller (eds), Climate Change Litigation: A Handbook (Beck-Hart-Nomos 2021); and J Lin and D Kysar (eds), Climate Change Litigation in the Asia Pacific (Cambridge University Press 2020).
[8] M-Ph Weller and M-L Tran, 'Climate Litigation against companies' (2022) 1 Climate Action 2
[10] '[T]here is a need for concepts of climate litigation that are able to capture lower-profile cases where climate change is more peripheral to arguments in, or the motivation for, the lawsuit.' J Peel and J Lin 'Transnational Climate Litigation: The Contribution of The Global South' 113 AJIL (2019) 679, 691.
[11] Such as climate change law and environmental law statutory provisions, human rights law, tort law, company and financial laws, consumer protection law, fraud laws, contractual obligations, planning and permitting laws and others. See broadly: Action4Justice, 'A4J Climate Litigation Guide' (2020)
[13] Including both pecuniary (e.g. damages for adaptation cost) and non-pecuniary (e.g. injunctions against future emissions) remedies.
[14] See, for example, the 2014 ELAW's report 'Holding Corporations Accountable for Damaging the Climate'
