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15 Dez 2022

Elena Macomber & Elodie Aba, Business & Human Rights Resource Centre

After mixed results at COP 27, litigation and legislation can advance the fight for climate justice and a just transition

In November 2022, the outcome of international negotiations at COP 27 was mixed. A breakthrough agreement on creating a “loss and damage” fund for poorer and vulnerable countries affected by the climate crisis was reached, but many delegates were dissatisfied by the lack of progress to cut CO2 emissions and fossil fuels. While multilateral diplomacy is essential for arresting climate change, more is likely required to bolster variable approaches by individual governments and voluntary efforts by companies to limit emissions. Climate and just transition litigation, combined with legislative advances, may provide important support to this effort.

Litigation as a tool for affected communities to advocate for climate justice

Since 2015, climate lawsuits have more than doubled to 2,000+ total cases globally. Climate litigation is a tool, although imperfect, for affected people to ensure governments and companies take action to combat climate change. It can act as a link between international pledges and domestic action to advance climate action and ensure that powerful companies are held accountable for environmental degradation, in the jurisdictions where they are headquartered. The rise of this type of lawsuit around the world is a promising sign that companies can be held liable for the effects of climate change if treaty targets and voluntary guidelines fall short. For example, in a landmark 2021 case, a Dutch court ordered Shell to cut carbon emissions by 45% by 2030 on the basis of its duty of care towards Dutch citizens, under the Dutch Civil Code.

Multiple cases have been filed by individuals from the Global South, in particular, against companies for their alleged contributions to climate change. In July 2022, Indonesian fishermen launched a case against Swiss company Holcim over its CO2 emissions and subsequent rising sea levels. In 2015, a Peruvian farmer filed a case against German company RWE arguing that the company’s activities contributed to rising temperatures that threatened his land. A regional court confirmed that it would hear the case and visited the site in May 2022.

“Just transition” litigation – centring human rights in the new energy transition

Given the required transition to a net-zero carbon economy, investments in renewable energy technologies and the demand for minerals essential for this sector have grown dramatically. However, the renewable energy and transition minerals sectors risk replicating patterns of human rights abuses endemic to traditional extractive sectors, including fossil fuel. An emerging trend of cases, typically brought by Indigenous peoples and affected communities, relying on human rights arguments to question the distribution of the benefits and burdens of the transition away from fossil fuels and towards net-zero emissions – so-called “just transition litigation” – seeks to challenge that.

Examples include the Sámi people shutting down a wind farm project in Norway by arguing that it would encroach on their pastures and violate their right to enjoy their own culture, guaranteed by Article 27 of the International Covenant on Civil and Political Rights. In 2021, the Norwegian Supreme Court voided the licences issued by the government there on this basis. In Mexico, a court decision cancelled an EDF contract following a lawsuit filed by the Unión Hidalgo community against the company’s wind energy project due to inadequate consultation. And local communities negatively impacted by the largest wind power project in sub-Saharan Africa on Lake Turkana filed a lawsuit challenging the lease of 150,000 acres of land and the lack of community participation in the land allocation process. The court ruled that “statutory and constitutional procedures were not followed in reserving the land for the project” and ordered the re-start of a full consultation process.

The growing body of “just transition” cases to date therefore avoid opposing climate action, but seek to centre human rights in the process of the energy transition.

Developing legislative framework

Momentum behind various pieces of legislation that can be used to prioritise and protect the human rights of affected communities and workers along the renewable energy value chain – from mining to renewable energy installations – is also growing. Significant legislative strides notable in the Global South include Sierra Leone’s recent law mandating community consent prior to the initiation of mining operations and granting equal land rights to women. In Kenya, a 2016 law requiring community consent prior to the sale of land to prevent corruption has been used by the Lake Turkana activists.

Mandatory human rights due diligence legislation is another avenue for combatting climate change. NGOs and local authorities used the French duty of vigilance law in their climate change lawsuit against Total in France. As the EU’s due diligence directive is currently being debated, activists have highlighted the need for climate due diligence to be included in that framework.

In combination, litigation and domestic or regional legislation can provide tools for local and national actors to assert and protect human rights as the world works to combat climate change and justly transition to renewable energy.