Editing IPCC:AR6/WGII/Chapter-17 (section)

==== 17.4.5.3 Climate Litigation on Adaptation ====

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Litigation for Loss and Damage from climate change was first noted as a potential motivator for emissions reduction in AR4, and AR5 noted that litigation was pending but not tested and that, while legal systems were beginning to define the boundaries of responsibility for climate change, it was ‘unclear liability exists’. The SR1.5 ( [[#IPCC--2018a|IPCC, 2018a]] ) reported, with ''high confidence'' , that litigation risks of government and business had increased, and the SRCCL ( [[#IPCC--2019b|IPCC, 2019b]] ) noted that recent developments in climate attribution improve the ability to detect human influence on climate and broaden liability.

Since AR5 there has been growing recognition of the potential of litigation for failure to take measures to adapt to climate change to drive climate risk management ( [[#Banda--2017|Banda and Fulton, 2017]] ; [[#Peel--2017|Peel et al., 2017]] ; [[#Bouwer--2018|Bouwer, 2018]] ). Litigation cases on adaptation and loss and damage account for about one-third of those covered in the literature ( [[#Setzer--2019|Setzer and Vanhala, 2019]] ). Reasons for this growth are: (i) the growing gap between projected climate change impacts and current adaptation efforts ( [[#Stezer--2019|Stezer and Byrnes, 2019]] ) and (ii) expanded legal duty of government, business and others to manage foreseeable harms ( [[#Marjanac--2018|Marjanac and Patton, 2018]] ). Climate change litigation is expanding geographically into the Americas, Asia (and the Pacific region) and Europe, with several cases brought in low- and middle-income countries ( [[#Stezer--2019|Stezer and Byrnes, 2019]] ) (Table 17.6).

Lawsuits against private entities contribute to articulating climate change as a legal and financial risk ( ''medium confidence'' ) ( [[#Peel--2015|Peel and Osofsky, 2015]] ; [[#Ganguly--2018|Ganguly et al., 2018]] ; [[#McCormick--2018|McCormick et al., 2018]] ; [[#Peel--2018|Peel and Osofsky, 2018]] ). Even if unsuccessful, [[#Estrin--2016|Estrin (2016)]] concludes they are important in underlining the high level of public concern.

Climate-related, legal, financial disclosure requirements are improving investment decision-making of corporations as well as augmenting ''ex post'' liability for failure to consider climate change risk in decision-making. Organisations are required to disclose governance around climate-related risks (impact of climate change on businesses, products, services, supply or value chain, adaptation and mitigation activities, investment in research and development and operations). This functions as a vehicle for identifying climate-related risk and the organisation’s resilience strategy taking into consideration different climate- related scenarios including a 2°C or lower scenario ( [[#Sarra--2018|Sarra, 2018]] ). Institutions such as the G20 ( [[#Carney--2019|Carney, 2019]] ), the American Bar Association ( [[#Brammer--2019|Brammer and Chakrabarti, 2019]] ) and the European Commission ( [[#Zadek--2018|Zadek, 2018]] ) have adopted or endorsed these standards.

'''Table 17.6 |''' Examples of types of climate-related litigation.

{| class="wikitable"
|-
! Litigation type

! Detail and examples

! Supporting literature

|-
| Challenge government decisions for not considering climate change risks

| Challenging government or administrative planning decisions for failure to consider, or adequately address, climate change in relation to developing and protecting coastal zones, water-stressed regions, flood-prone areas or decisions affecting endangered species whose habitat is at risk. For example, the Victorian Civil and Administrative Tribunal in Australia rejected a planned housing project in a coastal area, citing the risks from climate change (Gippsland Coastal Bd. v. South Gippsland Sc &amp; Ors (No2), 2008).

| [[#Banda--2017|Banda and Fulton (2017)]] ; Peel et al. (2017); [[#Bouwer--2018|Bouwer (2018)]] ; [[#Clarke--2018|Clarke and Hussain (2018)]]

|-
| Petitions to act

| Constitutional petitions to force governments to take adaptation measures. As an example, in Leghari v. Pakistan a farmer initiated public interest litigation against federal and provincial governments for failure to develop climate change resilience through adaptation to floods, droughts and other impacts because it violated his rights to life and dignity. The High Court of Lahore found for Mr. Leghari and created a commission to develop and implement a wide range of adaptation actions.

| [[#Banda--2017|Banda and Fulton (2017)]] ; Ashgar Leghari v. Federation of Pakistan (April 2015); Ashgar Leghari v. Federation of Pakistan (September 2015)

|-
| Regulatory proceedings

| Environmental groups and city and state officials intervened in the application of the electric utility serving New York City, Consolidated Edison Company, to the New York State Public Service Commission for a rate increase. The intervenors argued that the company was not adequately preparing for flooding, heatwaves and other climate-related impacts. As a result, the Commission directed the company to undertake a study of its vulnerability to climate change, and write and implement a plan to address these risks.

| [[#Consolidated%20Edison%20Co.--2019|Consolidated Edison Co. (2019)]]

|-
| Failure to act by public authorities

| Liability of public authorities for failure to undertake necessary adaptation actions to avoid damage to life or property, especially where statutory framework is proven ineffective or out of step with international commitments; in some areas these are class action suits. An example is private lawsuits for failure of a built environment to consider adaptation needs in a built environment (energy efficiency works, overheating because of increased temperatures).

| [[#Banda--2017|Banda and Fulton (2017)]] ; Peel et al. (2017); [[#Bouwer--2018|Bouwer (2018)]]

|-
| Failure by private sector to consider climate change adaptation in their business practice

| Examples include: (i) a citizen suit against ExxonMobil for failure to adapt Everett Terminal to the impacts of climate change including increased precipitation, sea level rise and storm surges occurring with increasing frequency; (ii) a citizen suit against Shell Oil Products US alleging Shell failed to incorporate climate risks in its investment in a bulk storage and fuel terminal in Rhode Island, USA; (iii) shareholder action against ExxonMobil for failure to report climate risks or complying with recommendations to do so and for issuing misleading corporate disclosure relied on by investors; (iv) a suit brought an NGO, the Conservation Law Foundation, against Exxon Mobil alleging that the company had taken insufficient precautions to protect a major oil tank farm near Boston, USA, from coastal storms that are worsened by climate change, creating a danger of an oil spill into Boston Harbour. The U.S. Court of Appeals for the First Circuit ruled in 2021 that the lawsuit could proceed, and that the NGO could attempt to make out its case that Exxon Mobil should take greater precautions.; (v) government and citizen claims for public nuisance against fossil fuel companies for the costs of adaptation such as infrastructure to protect against sea level rise.

| [[#Benjamin--2017|Benjamin (2017)]] ; [[#Stezer--2019|Stezer and Byrnes (2019)]] ; [[#Street--2019|Street and Jude (2019)]] ; [[#Wasim--2019|Wasim (2019)]] ; [[#Conservation%20Law%20Foundation%20v.%20Exxon%20Mobil%20Corporation--2021|Conservation Law Foundation v. Exxon Mobil Corporation (2021)]]

|-
| Youth public trust claims

| Government inter-generational liability for inadequate climate change mitigation and adaptation efforts. Our Children’s Trust (a non-profit organisation) and others brought an action against the USA and several executive branch individuals in 2015 claiming damages for their loss of the environment and the defendant’s failure to preserve a habitable climate system by the governments’ affirmative actions that actively cause and worsen the climate crisis. Similarly, a public trust claim could be brought in a coastal town for failure to adapt to climate change.

| Schneider et al. (2017); [[#Bouwer--2018|Bouwer (2018)]]

|-
| Human rights claims

| Human rights may be a powerful tool for organising and unifying adaptation decision-making, especially for the most vulnerable, through enforcement mechanisms of progressive realisation as well as ''ex post'' liability (Chapter 8). For example, a persons’ right to food implores state parties to take necessary actions to alleviate hunger caused by climate change; during natural and other disasters, rights to water and life are impacted; sea level rise and storm surges impact many coastal settlements and the right to adequate housing and an adequate standard of living. This is in part due to increasing acceptance of the impact of climate change on health, livelihoods, shelter and fundamental rights.

| [[#Hall--2012|Hall and Weiss (2012)]] ; [[#Peel--2018|Peel and Osofsky (2018)]] ; [[#Setzer--2019|Setzer and Vanhala (2019)]] ; [[#Stezer--2019|Stezer and Byrnes (2019)]]

|}

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