Last week, the UN climate chief hit headlines with the warning that we have two years left to save the world from catastrophic climate change. Climate activists, frustrated by what they see as the slow pace of progress, are increasingly asking courts around the world to intervene.

In this article we look at some of the significant international climate lawsuits in the first quarter of 2024.

Human rights violations

In a landmark, 250-page decision the European Court of Human Rights last month ruled that the Swiss government had failed to comply with its obligations under the European Convention on Human Rights to mitigate the effects of climate change.

The lawsuit was brought by a Swiss association of older women concerned about the consequences of global warming on their living conditions and health. Noting that older women are more likely to die in heatwaves, they claimed that the Swiss Government’s inaction on climate change violated articles 8 and 6 of the Convention. Article 8 protects the right to respect for family and private life and article 6 provides for a right to access to justice.

The Court ruled that article 8 encompasses a right to effective protection by the State authorities from the serious adverse effects of climate change on lives, health, well-being and quality of life. Switzerland had violated this right in various ways, including by failing to quantify national greenhouse gas (GHG) emissions limitations and by failing to meet past GHG reduction targets.

In a stinging rebuke to the Swiss courts which had dismissed the claims, the Court found they had violated article 6, by failing to take into account the claimant’s compelling scientific evidence, and generally failing to take the complaints seriously.

The Court’s decision has potentially significant implications for the 46 countries which are signatories to the Convention. In the short term, it allows a claim by Greenpeace challenging Norway’s expansion of fossil fuel extraction in the Arctic to proceed, as well as an action against Austria by an individual with a temperature-dependent form of multiple sclerosis.

The impact of the judgment is likely to extend to beyond the members of the Council of Europe. While New Zealand is not a signatory to the European Convention, we are increasingly seeing claims against local and central government in our own courts (see for example our report here) and Parliament is currently considering a Bill that would introduce a new right to "a clean, healthy, and sustainable environment” into the New Zealand Bill of Rights Act 1990 (see our report here).  

Greenwashing

Greenwashing occurs when organisations make misleading or unsubstantiated representations about the environmental impact of their goods and services. It has been an expanding area in climate litigation for some years.

The topic hit international headlines in February, when the New York attorney general announced that the state of New York was suing the US arm of JBS, the largest producer of beef products in the world. The lawsuit claims that knowing that sustainability claims provide environmentally conscious customers with a “license” to eat beef, JBS has cynically mispresented that it will be “Net Zero by 2040”. 

The case marks a new direction for greenwashing claims, not only because it has been brought on behalf of a state (as opposed to a climate NGOs or activists) but also because it targets a beef producer.

The JBS case is brought under New York law but similar restrictions against misleading environmental claims apply in New Zealand, primarily under the Fair Trading Act 1986. The Commerce Commission has issued Environmental Claims Guidelines to assist New Zealand businesses to ensure that their claims about green credentials comply with the law. As we reported here, New Zealand’s first High Court greenwashing claim is currently pending between Consumer NZ and the country’s largest fuel retailer, Z Energy.  

Defamation

In a case where climate change and the laws of defamation intersected, a US climate scientist, Michael Mann, has recently won $1 million in damages against two writers who made false and defamatory statements about him in blog posts.

Dr Mann is a distinguished professor at the University of Pennsylvania who has written widely on global warming and the climate crisis.  Amongst other things, the posts compared Mann to well-known convicted US sex offender, Jerry Sandusky, stating that “instead of molesting children, [Mann] has molested and tortured data”. The jury found that the statements relied on false facts and had defamatory meanings. To mark the particularly offensive nature of the defamatory statements, the jury awarded Dr Mann US$1million in punitive damages.

The case has been hailed as a landmark in the battle against misinformation about climate change which may have a deterrent effect on personal attacks on scientists and science communicators, including on social media. While US and NZ defamation laws differ in some respects, similar claims are possible in this country.

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