A global spike in court cases over climate change demonstrates the increasing role of litigation in addressing the climate crisis. Governments, banks and large corporations around the world are confronted with a rapid increase in climate litigation cases and Belgium is not being left behind. Climate litigation is being used as a tool to advance climate action or to challenge the way in which climate policy is being implemented. In recent years, a specific increase can be noticed in climate cases involving corporate defendants in the energy (oil, gas and coal) sector as well as in other sectors.
What is meant by ‘climate litigation’?
According to the United Nations Environment Program (UNEP), climate litigation refers to cases brought before administrative, judicial and other investigatory bodies that raise issues of law or fact regarding the science of climate change and climate change mitigation and adaptation efforts.
For more information, see UN environment programme.
What are the current global trends in climate litigation?
In June 2022, the London School of Economics (LSE) published a report on global trends in climate litigation. This report looks at developments in climate litigation from May 2021 to May 2022 and identifies the areas where climate litigation cases are likely to increase in the future.
The number of climate litigation cases in the world has more than doubled since 2015. The total number of cases was over 2,000 in May 2022, with approximately one fourth of them being filed between 2020 and 2022. Outside the United States, Australia, the UK and the EU remain the jurisdictions with the highest volume of cases.
Climate litigation cases are often being used to enforce or enhance climate commitments made by governments. Recently, there has also been a noticeable increase in climate cases against fossil fuel companies as well as corporate actors active in the plastics, food and agriculture, finance and transport sectors. Another noticeable increase is the number of climate litigation cases with the strategic ambition to increase action from countries and scale back the use of fossil fuels in the energy sector.
According to the LSE report on global trends in climate litigation, there are five areas to watch:
- Cases involving personal responsibility;
- Cases challenging commitments that over-rely on greenhouse gas removals or negative emissions technologies;
- Cases focused on short-lived climate pollutants;
- Cases explicitly concerned with the climate and biodiversity nexus; and
- Strategies exploring legal recourse for the loss and damage resulting from climate change.
For more information, read Global trends in climate change litigation: 2022 snapshot.
What kind of climate cases have been initiated in belgium so far?
According to climatecasechart.com, a U.S. website providing a global database of climate change case law per jurisdiction, and climate-laws.org, a website of the Grantham Research Institute at LSE and the Sabin Center at Columbia Law School also providing a global database of climate litigation cases per jurisdiction, five climate cases can be found in Belgium:
VZW Klimaatzaak v. Kingdom of Belgium & Others
ClientEarth v. Belgian National Bank
Carbon Market Watch v. FIFA
Lauwrys A.O. v. The Province of Antwerp
ClientEarth v. Flemish Region
This list of Belgian climate litigation cases is not exhaustive.
Another known climate litigation case in Belgium is “De Luchtzaak”. In 2017, Greenpeace initiated court proceedings before the Brussels court of first instance against the Flemish government for doing too little against air pollution, and specifically against the exceedance of European standards for nitrogen dioxide (NO2). The Brussels court of first instance, the Brussels attachment judge and the Brussels court of appeal all ruled in favor of Greenpeace.
How will climate litigation in belgium evolve?
The above overview demonstrates that climate litigation is clearly on the rise in Belgium. However, this is nothing yet compared to the spike in climate cases that can be seen in other jurisdictions, such as the United States, Australia, the UK and the Netherlands. Whereas in Belgium most climate litigation cases have been directed against the government so far, other jurisdictions demonstrate that climate litigation is on the rise against corporations in different industries too.
In the Netherlands, for example, climate litigation cases have been brought against large corporations, such as Shell (as large producer of fossil fuels), KLM (as large consumer of fossil fuels) and Pension Fund ABP (as major financier of / investor in the fossil industry).
In the landmark case Milieudefensie et al. v. Royal Dutch Shell plc., the court of The Hague ordered Shell on 26 May 2021 to reduce its emissions with 45% by 2030, relative to 2019, across all activities, including both its own emissions and end-use emissions, on the basis of the unwritten standard of care. The court held that there is broad international consensus (soft law) that every company should independently work towards the Paris target of net zero emissions by 2050. The court held that because of the weighty interests (fundamental rights) served by the reduction obligation, Shell must do its part in respect of the emissions over which it has control and influence over, and that this is an independent responsibility of Shell, from whom - because of Shell's specific circumstances - much can be expected.
It is likely that this trend of climate litigation cases against corporations will also continue in Belgium. Belgian banks, institutional investors and other large corporations should be aware of this risk.
