Strategic Litigation is defined by legal action seeking to bring about social change with an impact beyond the individual case. It is important in the fight against climate change because it enables civil society to hold governments and corporations accountable for their climate (in)action.
A variety of legal claims can be pursued through Strategic Litigation, arising from violation of individual rights, a breach of a government’s constitutional duty, or insufficient consumer protection (White & Case LLP 2018).
It is not just the specific legal claims that make Strategic Litigation interesting to funders, but also the strategic outcomes including the following.
- Shaping law: initiating changes in existing climate law.
- Enforcing law: legally binding climate agreements need to be enforced to make any practical difference.
- Increasing accesses to law: Helping people understand what their rights are and training legal professionals in effectively protecting the climate.
- Strategic Litigation is particularly attractive for funders who want to facilitate systemic change but avoid bottom-up funding strategies. It provides an opportunity to support a tangible local case with the potential of changing an entire sector. A seminal case against Royal Dutch Shell, for example, was not only successful in court (ruling that Royal Dutch Shell must reduce its carbon emissions by 45 percent). It also contributed to a wider change of perception of Strategic Litigation as a growing risk for businesses that do not act on climate change (Clifford Chance 2021).
- The success of Strategic Litigation is not solely defined by winning (or losing) a court case. Equally important is its role of that case in shaping narratives and creating publicity for underreported issues. This is illustrated by a case against Norway’s oil drilling practices that was lost at the national supreme court but sparked a public debate, leading both to criticism from UN representatives and societal support for the demanded ban on drilling (Teulings and Pradhan 2021).
- Over the last years, Strategic Litigation has received major attention with cases nearly doubling between 2017 and 2020 (UNEP and Sabin Center for Climate Change Law 2020). More cases are great news for Strategic Litigation, which can take time to unfold its systemic potential. Funders will have the greatest impact when taking a long-term perspective and look beyond the outcome of individual cases.
Clifford Chance (2021): ESG Trends. The Rise of Climate Litigation and the Challenges for Businesses. Available online at https://www.cliffordchance.com/content/dam/cliffordchance/briefings/2021/07/esg-trends-the-rise-of-climate-litigation-and-the-challenges-for-business.pdf, checked on 8/16/2022.
Teulings, Jasper; Pradhan, Shishusri (2021): Assessing the impact of climate litigation. Edited by Alliance Magazine. CIFF. Available online at https://www.alliancemagazine.org/blog/assessing-the-impact-of-climate-litigation/, updated on 3/3/2021, checked on 8/16/2022.
UNEP; Sabin Center for Climate Change Law (2020): Global Climate Litigation Report. 2020 Status Review. Nairobi, Kenya. Available online at https://wedocs.unep.org/bitstream/handle/20.500.11822/34818/GCLR.pdf?sequence=1&isAllowed=y, checked on 8/16/2022.
White & Case LLP (2018): Climate change litigation. A new class of action. London. Available online at https://www.actu-environnement.com/media/pdf/news-33084-leadership.pdf, checked on 8/16/2022.