COP28 could spur wave of climate lawsuits

By Sara Schonhardt, Lesley Clark | 01/09/2024 06:28 AM EST

The Dubai agreement’s reference to reducing fossil fuels will likely be used in cases against governments.

COP28 President Sultan al-Jaber and John Kerry.

COP28 President Sultan Ahmed al-Jaber and John Kerry, U.S. special presidential envoy for climate, pose for photos at the end of the COP28 U.N. climate summit in the United Arab Emirates last year. Kamran Jebreili/AP

The global climate agreement reached last month could add momentum to a growing tide of lawsuits against oil companies and fossil-fuel-reliant countries worldwide.

The deal’s language about shifting away from oil, natural gas and coal strengthens evidence that burning fossil fuels is driving climate change — and that failing to address it is increasingly being seen as a liability, according to legal scholars.

“The outcome is a good hook, at least, for litigation,” said Joana Setzer, assistant professor at the Grantham Research Institute at the London School of Economics and Political Science.


The agreement reached among nearly 200 countries at COP28 in Dubai calls for transitioning away from fossil fuels starting this decade — a goal that scientists say is necessary to slash the planet-warming emissions driving global warming.

It is among the most consequential outcomes since the 2015 landmark pact reached in Paris, when countries agreed to limit global temperature rise to well below 2 degrees Celsius and shoot for 1.5 C. The Dubai agreement was the first time the talks produced language that explicitly identified the need to reduce fossil fuel use.

Climate advocates will likely use it in courtrooms to push governments to cut their reliance on fossil fuels or halt approvals for new oil, gas and coal projects, experts say.

“The renewed commitment to the Paris Agreement, and then the language on recognizing the need for a transition away from fossil fuels and a phase-down of unabated coal, provides additional support in the types of climate litigation cases that are against specific projects,” said Nicholas Bryner, an assistant professor at Louisiana State University’s Paul M. Hebert Law Center.

It could also add weight to arguments aimed at highlighting the financial risks of investing in hydrocarbons.

One example is the case of ClientEarth v Shell’s Board of Directors, which accused the oil giant’s directors of failing to properly manage climate risks. The lawsuit faltered in the British courts, but Setzer says future cases could harness the Dubai outcome to make a stronger argument in different jurisdictions.

“They may also lean into it to try to force governments to regulate methane and other greenhouse gases beyond carbon dioxide,” said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University.

“But,” he added, “the decision lacks the overall force of the Paris Agreement.”

But it’s squishy

The Dubai consensus, as it’s known, does not bind countries to mandates or procedural requirements in the way the Paris Agreement did, noted Burger, who spoke as an academic and not on behalf of Sher Edling, a law firm where he serves as counsel and that represents challengers in U.S. climate liability litigation.

The Paris Agreement, for example, requires countries to set national targets to cut their emissions and then report on progress toward those goals.

The Dubai outcome builds on those goals by referring to scientific consensus about exactly how much emissions need to fall to reach them. And it “calls on” countries to take action, such as boosting renewable energy.

But its goals are collective and don’t require specific action from any one country — meaning courts might have to make a leap to impose those requirements on a particular jurisdiction, said Cara Horowitz, executive director of the Emmett Institute on Climate Change at UCLA. The language around transitioning away from fossil fuels is also “fairly soft” from an enforcement perspective, she added.

That could be particularly evident in the U.S., where courts tend to give less weight to international agreements.

“U.S. domestic courts generally don’t pay much mind to climate treaties or to the United Nations when they are assessing defendants’ climate change obligations. And there’s nothing in the Dubai outcome that’s likely to change that, especially given its lack of specificity on many important issues,” Horowitz said in an email.

It may be more influential in other countries, such as the Netherlands, that are inclined to translate U.N. consensus statements into national obligations.

The Dubai agreement also has caveats, including an acknowledgment that “transitional fuels” — which largely refer to natural gas — can play a role in the energy transition.

That language, as well as the call to transition away from fossil fuels rather than phase them out altogether, was seen as the only way to achieve consensus among countries that include both climate-vulnerable small islands and major fossil fuel producers.

The language in the final text by itself is unlikely to provide an independent legal hook to hold governments accountable, said Nikki Reisch, director of the climate and energy program at the Center for International Environmental Law. “But it does add to the weight of evidence that there is an overwhelming consensus and recognition that we cannot fight climate change or avoid even further catastrophic warming if we do not get off oil, gas and coal.”

Reisch anticipates an increase in litigation challenging countries’ reliance on carbon capture technology and carbon dioxide removal — two avenues mentioned in the Dubai outcome for achieving emissions reductions.

Wide-ranging implications

It’s been almost 30 years since nations began negotiating global efforts to address climate change, and the slow pace of international action has led advocates, cities and states to seek legal outcomes in the courts. The Global Stocktake, a part of the Dubai negotiations, revealed how far off track countries are from meeting their climate goals, and the agreement was an attempt to respond to those shortfalls.

That might be the most important development in climate litigation in the past year, said Douglas Kysar, an environmental law expert at Yale Law School.

Kysar predicted the decision “to acknowledge the untenable long-term role of fossil fuels in our lives will give added momentum to actions against governments and major emitters.”

Although the fossil fuel language cannot be enforced as a binding obligation against governments, “it can filter into courts’ interpretation of other obligations such as constitutional and human rights provisions,” he added.

The European Court of Human Rights is expected to decide a trio of climate cases in 2024, including a challenge brought by six Portuguese youths who accuse 33 nations of not doing enough to tackle climate change.

The conservative supermajority on the U.S. Supreme Court won’t see it that way, Kysar said.

Unlike in Europe, where activists have scored several climate victories, few cases have made it to trial in the U.S., with courts often finding that climate change is a challenge best handled by lawmakers.

The Supreme Court on Monday continued to help climate liability lawsuits advance in state courts by quashing several fossil fuel industry attempts to have the cases transferred to federal court, where the companies believe they are more likely to prevail.

Yet “many top national courts across the globe see their role as helping to instill international law principles and commitments into binding domestic law,” said Kysar.

Domestic action is key

Much of the litigation that has emerged since the 2015 Paris Agreement is based on its temperature goals and on the wave of scientific reports that have been released in the past eight years.

But even that historic agreement has legal limits. It provides background and direction, but the success of a court case depends on domestic legislation, said Setzer of the London School of Economics and Political Science.

Dozens of countries and the European Union have enshrined the Paris climate targets into law, providing a basis for legal cases that hinge on whether or not governments are living up to their commitments.

Last month, a court in Turkey dismissed a youth-led lawsuit against the government that claimed the nation’s climate target is inadequate.

“Domestic [law] says what needs to be done, and the litigation will then enforce that domestic legislation or it will say this is not enough,” said Setzer. “It’s the domestic legislation that is really crucial for the litigation.”

The Dubai outcome could be used to support arguments at the International Court of Justice that countries have binding obligations to protect their citizens from the impacts of rising temperatures.

It could also strengthen arguments around the need to take action that limits global warming to 1.5 C, and form the basis for litigation aimed at securing funding for climate resilience or to pay for the unstoppable damages caused by more extreme storms, heat and rising seas.

While the global climate summit provides a space to hold countries accountable for their actions — or lack thereof — it also shows the gaps in their efforts, said Delta Merner, lead scientist for climate litigation at the Union of Concerned Scientists. “And litigation has a role to play in addressing where those gaps are in these international processes.”

She recently co-published a paper along with Setzer and several other academics that looks at how climate law can help or hinder emissions reductions.

The problem with relying on the courts in the absence of global climate action is that litigation can take decades to result in new policies. The Dubai outcome is vague on time frames, notes Horowitz of UCLA, with a net-zero goal pegged to 2050. That’s not very helpful for litigants who are pushing for mandatory emissions cuts this decade, she said.

Here’s one example.

When Indonesian islanders sued a Swiss cement manufacturing giant for contributing to global warming in February 2023, a court in Switzerland agreed to hear the lawsuit — but not until September 2025.