Climate change litigation and central banks
Given the urgent need to dramatically reduce greenhouse gas emissions, and concern regarding insufficient climate action and ambition across the globe, NGOs and individuals are increasingly turning to the courts to force States, public authorities, and private entities to increase their climate action and ambition and hold them accountable through climate-related litigation. The three contributions in this legal working paper discuss various aspects of such climate change litigation around the world. The papers examine the evolution of climate-related cases, the scope of such cases and the varying grounds on which they have been based. They also focus in some detail on certain key judgments addressing novel issues, as well as a recent climate-related case brought against a national central bank. The papers were originally presented at the Legal Colloquium on “Climate change litigation and central banks – Action for the environment”, organised by the European Central Bank on 27 May 2021.
The first paper gives an overview of climate change litigation, notably cases filed or concluded between May 2020 and May 2021. It examines the scope and trends of such litigation, their geographical and chronological distribution, case characteristics and outcomes. The paper identifies three waves of climate litigation. The first wave, from the late 1980s to the early 1990s, was dominated by cases filed in the United States and a few in Australia. The second wave, which started in 2007, saw litigation expand into Europe. The signing of the Paris Agreement in 2015 launched the third wave of cases, with climate change litigation becoming a truly global phenomenon.
The authors broadly categorise cases as either strategic, namely where the claimants’ motives for bringing the case go beyond individual concerns and aim at a broader societal shift, or non-strategic. However, the paper recognises that not all cases fall into these two categories. It also examines a number of systemic mitigation cases as well as other cases challenging government action on climate change. The paper notes that a climate case has recently been brought against a central bank and concludes that litigation against financial market regulators and supervisors may soon arise.
Joana Setzer, Catherine Higham, Andrew Jackson, Javier Solana
European Central Bank, Legal Working Paper Series, December 2021