Are court cases a way to tackle climate change?

In this episode host Jo Fahy talks to swissinfo.ch journalist Luigi Jorio about how ordinary people have been using the legal system to hold companies to account over their alleged contributions to climate change. We find out how islanders from an Indonesian archipelago have challenged Swiss cement company Holcim in a court in Switzerland. Christina Voigt, one of the world’s leading experts in environmental law and climate litigation, joins us to explain why the courts are being used in this way and how effective it’s proving.

Journalist: Luigi Jorio
Host: Jo Fahy
Audio editor: Michele Andina
Distribution and Marketing: Xin Zhang

SWI swissinfo.ch is a public service media company based in Bern, Switzerland. 

Transcript

Climate Lawsuits And The Big Question

Jo Fahy 0:00

Swiss Info Podcasts.

SPEAKER_02 0:04

Are climate lawsuits truly accelerating climate action or are they mostly symbolic?

SPEAKER_03 0:10

With the Pairs Agreement, we suddenly had a direction of travel. Where is the world gonna go?

Jo Fahy 0:15

In January 2023, residents of Pulau Party accused Swiss cement giant Holsim of contributing to the climate crisis that threatens their existence.

SPEAKER_03 0:25

So courts have already taken that road, and I think in the future we will see more of those cases coming forward.

SPEAKER_02 0:33

How can a court decision push governments to do more against climate change?

SPEAKER_03 0:38

In the Netherlands, we had the Supreme Court saying you, Dutch government, does not have an ambitious enough climate target. You have to increase your level of ambition to 20 or 25% or whatever they said. And the government complied.

Jo Fahy 1:11

We've got lots coming your way in the next few episodes from AI to climate change. We're starting today with how more and more people are turning to the courts to push states and companies to do more for the climate. Can legal battles solve the global heating crisis? Is that the way forward? Well, that's what we're getting into today on the Swiss Connection Science Podcast.

Pulau Pari And The Holcim Claim

Jo Fahy 1:48

Hulau Pari is a small island in the Thousand Islands Archipelago, north of Jakarta in Indonesia. It's a popular tourist destination known for its natural beauty, white sandy beaches, clear turquoise water, and vibrant coral reefs. But the island has a problem: rising sea levels. The island's highest point is only 1.5 metres above sea level. According to NGOs, it's already lost 11% of its land to the sea. And if things keep going the way they are, most of the island could be submerged by 2050. In January 2023, residents of Pulau Pari accused Swiss cement giant Holsim of contributing to the climate crisis that threatens their existence. It was the first time a company was being held to account in a Swiss court for its alleged responsibility in climate-related damages. But already before that, in a much anticipated ruling back in April 2024, the European Court of Human Rights decided that Swiss authorities were responsible for not putting efficient climate change policies into practice. It was said that this violated the right to life of a group of elderly women in Switzerland. These are two very interesting examples where people are using the courts to push governments and companies to do more for the climate. So what's been the result of this so far?

Why Climate Cases Are Surging

Jo Fahy 3:20

My colleague who's been following these stories, SwissInfo journalist Luigi Yurio, joins me in the studio. Welcome Luigi.

SPEAKER_02 3:27

Hi Joe.

Jo Fahy 3:28

Luigi, tell us, have any of these cases, like the one against Holsim by the Pulau Pari residents, have they led to anything concretely?

SPEAKER_02 3:37

Well, that particular case is still going on. It could take some years before we have a final ruling. However, these cases are part of a new trend that could play an important role in reaching climate goals in the future. Hello, hi Christina. Hello, can you hear me? I called up Christina Voigt. She's one of the world's leading experts in environmental law and climate litigation, and asked her what's causing this trend.

SPEAKER_03 4:07

I don't think there is one single factor. I think there are many. One factor is that we had a very successful lawsuit in the Netherlands in 2019, the agenda against the Dutch government. And that was a lawsuit that in a way showed it was possible to bring a case against the government to increase ambition. And I think that really spread worldwide and enabled others to try to do the same in different jurisdictions in different countries.

SPEAKER_02 4:38

In the Netherlands case in 2019, the Supreme Court ruled that the government was legally obliged to reduce greenhouse gases emission by at least 25% by the end of 2020 compared to 1990. The case was brought by an NGO, the Urcheeda Foundation, representing hundreds of citizens unhappy with their country's climate action.

SPEAKER_03 5:06

At the same time, around 2016, of course, we got the Pairs Agreement, right? And with the Pairs Agreement, we suddenly had a direction of travel. Where is the world gonna go? And you could, in a way, measure whether governments are aligned with it or not aligned with what the agreement says. This was also like a motor behind climate lawsuits. And then you have a lot of uh very active institutions and organizations like Client Earth or WWF or Greenpeace who suddenly discover that also litigation can be part of their strategy, right? Not just activist statements and whatever, but also litigation. And there's finance available from philanthropy primarily to try these lawsuits. Uh so that was another element, a uh catalyst. And then the fourth one is perhaps science, right? Science getting more concrete with every time we have a report from the IPCC. Uh it's more and more clear what needs to be done. It can be quantified, it can be

Urgenda Paris Agreement And IPCC Proof

SPEAKER_03 6:10

measured.

Jo Fahy 6:10

The IPCC, that's short for intergovernmental panel on climate change, the United Nations body for assessing the science related to climate change.

SPEAKER_02 6:20

How can a co decision push governments to do more to act against climate change?

SPEAKER_03 6:27

In different ways. Well, you can have a court saying directly to the government, what you're doing is not lawful, is not aligned with the law, you have to do something better, and exactly that or that or that. This is what we've seen in in the Netherlands, right? Where we had the Supreme Court saying, you, Dutch government, does not have an ambitious enough climate target, you have to increase your level of ambition to 20 or 25% or whatever they said. So it was a very concrete judgment that told the government exactly what to do, and the government complied, right? They had immediately instituted a face out for coal and in the energy system and did a number of regulatory changes in order to comply with the judgment.

SPEAKER_02 7:17

But the rulings are not always so specific.

SPEAKER_03 7:20

We also have a number of different judgments that, in a way, play the ball back to the government and say what you do is not aligned with the law, but we cannot do tell you what exactly to do. But please go back and revise your laws, revise your policy. This is has happened in Germany, this has happened uh in other countries. This is, for example, what the European Court on Human Rights told Switzerland, right? It said, Switzerland, what you do is not aligned with your obligations under the European Convention. Switzerland had to go back and revise its laws, and it's still doing that.

SPEAKER_01 7:54

You already mentioned the Netherlands. Are there other uh examples of legal decision on climate that lead to concrete action by government or also by company?

SPEAKER_03 8:05

We had a um uh a decision by the German Federal Constitutional Court in 2021, where the court said um your Climate Protection Act, Germany, is not aligned with the German constitution. Uh, you have to have concrete measures in place that give us an indication of how you're gonna reach net zero emissions by 2050. And you don't have that, and therefore that climate act is not constitutional. And because it was right before the German election in 2022, the then government, still under Angela Merkel, immediately went back and changed that Climate Act and put in place very concrete steps of how to reduce with what steps all the way down to 2050 and to net zero. And that was an immediate reaction to the finding by the German constitutional court.

SPEAKER_02 9:02

So, can courts fill the gaps where global commitments to reducing emissions fall short to meet the Paris Agreement goals?

SPEAKER_03 9:11

It's somewhat limited, right? Courts cannot make the law, courts can only apply the law. And it depends really what you have in the law that can push governments to more action. We have also countries that don't have climate acts or that don't have a constitutional provision, and then the possibilities of courts would be rather limited.

SPEAKER_02 9:39

Despite the European Court of Human Rights ruling that Switzerland wasn't doing enough to protect its most vulnerable citizens from climate change, as we mentioned before, my impression was that the country's climate policy has not changed much. So I'm wondering: are climate lawsuits truly accelerating climate action or are they mostly symbolic?

SPEAKER_03 10:04

It depends, right? I wouldn't say symbolic, but strategic, which is different because they are meant to give an answer to one particular question, but they're also intended to have an effect outside

What Courts Can Order Governments

SPEAKER_03 10:20

that one lawsuit. In this way, I think we've seen quite a significant effect of climate lawsuits. But we also have some that have very direct effects on the actors, on the uh parties in in question of a particular uh lawsuit. Yeah.

SPEAKER_02 10:38

Because I was thinking uh the Swiss case at the European Court of Human Rights, we had this this this verdict last year. So um the feeling is that even though they say they condemned Switzerland, right, the impression is that Switzerland didn't really change or or reform its climate policy. They just say, okay, no, we are we believe we are doing enough, so that's it.

SPEAKER_03 11:01

I mean, Switzerland had to report back to the Council of Ministers um earlier this year on on what exactly it did since the judgment came out. And um Switzerland has indeed started to review some of its laws, it's in the process of doing so, and even though Switzerland may say we didn't really like that judgment, and maybe we should withdraw from the European Convention.

SPEAKER_01 11:26

What are the main challenges in implementing uh climate rulings?

SPEAKER_03 11:31

I think it's it's a matter of the right enforcement possibilities, which do not always exist. It's a matter of political will, it's a matter of finance. For example, if we take the agenda judgment where the the government of the Netherlands decided to phase out coal from the energy mix. And what happened then is that there were a couple of international companies, one from Sweden, one from Germany, and when the faceout was decided, those companies said, Well, but this is our investment. If we now face out coal, you need to compensate us, right? You need to pay us out. And they demanded 3.5 billion euro as compensation payment from the government of the Netherlands. And when that's the downside of the coin, where in the end it was decided that the Netherlands would pay about 500 million euros, like half a billion. So there are political limits and economic limits that that arise when it comes to implementing judgments. Uh, but that shouldn't be an excuse, right? If if governments have received a concrete judgment to do something, then they they need to apply no matter what the politics or the economics um say.

Jo Fahy 12:52

I was also thinking about this. We mentioned the case of the Pulau Party Island residents earlier, and I assume it's difficult to prove to what extent a company is responsible for damage caused through global heating. Did Voigt talk about that?

SPEAKER_02 13:08

Yes. She said she wasn't an expert for this particular case, but she told me about the legal challenges in general.

SPEAKER_03 13:17

Sorry, we had a recent case where a farmer in Peru sued a German energy utility company for damages to his house and his um property

Germany Ruling And Limits Of Courts

SPEAKER_03 13:30

in Peru due to melting glaciers. And the court that decided that in Germany says there is a general responsibility of companies that have contributed to climate change under tort law to compensate for damages. Although in that particular case, the farmer didn't um provide any evidence that his property was actually damaged. So that was the reason why that case was not successful. Now, if the claimant, like the Indonesians, can prove harm to their um livelihood or their property or their house or whatever it is, then it is possible now to establish responsibility based on the respective contribution to climate change. So if their Holcomb over the years has emitted a certain amount of greenhouse gas emissions, then their contribution would be 0.005% or something, which can still amount to a lot of compensatory payment if the damage is like the loss of um land or the loss of life in in Indonesia. So courts have already taken that uh road, and I think in the future we will see more of those cases coming forward.

SPEAKER_02 14:49

And responsibilities do not stop at the borders. Is there a like a legal case that you think it's important or that we need to keep an eye on because it could set a precedent?

SPEAKER_03 15:01

Uh many. Uh, but um being based in Norway, there is a case that deals with the responsibility for for Norway, for example, for its exported emissions. And that's a very important case to follow because many states do not just cause emissions on their own territory, but they buy a lot of products from other parts in the world and causing emissions, you know, in China and other parts of the world, or for Norway, it is selling its oil and gas uh products to other parts in the world where other countries burn it and thereby create uh emissions. And that question about how far does the responsibility stretch uh for emissions? Is it also indirect emissions that are being caused by products uh border sold across borders? That's a very important one because we live in a world of global trade, right? Where things are moving all the way around the globe. And the question of how far does your responsibility stretch for emissions that you may have caused

Enforcement Politics And The Cost Of Change

SPEAKER_03 16:10

indirectly through trade is a very significant one, and it could change the global perspective on climate uh responsibility quite significantly.

SPEAKER_02 16:22

Things might get even easier with more and more attribution studies which analyze the link between global climate change and specific weather events such as heat waves or heavy rainfall. I asked which new legal methods were emerging to tackle the climate crisis.

SPEAKER_03 16:41

I think legal tools like a duty of care of CEOs, of those in positions of power, is very important. We also see legal tools coming forward in terms of criminal lawsuits. That's something I think we will also see more in the future, and legal tools in terms of individual and responsibilities of private actors, be they individual companies. I think these are things we probably see see more of. But will rulings become a central tool to accelerate the ecological transition? I think they will remain an important tool, but I don't think that we can only rely on courts and on judges to get the ecological transition moving forward. I think we need much more than that across so many different fields. Everything has to be aligned with where we need to go and not to point in different directions. We do see a general shift happening because we see um emissions going down, not to the extent necessary, but we see a change in the trajectory. And I think that that change in politics, in economics, making um renewable energies a business case, making reducing emissions worthwhile, I think that's the most important thing, and that will carry the ecological transition forward.

Jo Fahy 18:34

We spoke about the case of the Indonesian island of Pulau Pari in the beginning. Has that yet come to a conclusion?

SPEAKER_02 18:41

Not yet. The court in Dzouk admitted the case last December, and I'm curious to see what will happen next.

Jo Fahy 18:49

Okay, well, keep us updated, and thank you so much for joining us today, Luigi. You're welcome. Is it possible to live without big tech? Two of our journalists decided they wanted to try and find out. And you can find out how that went for them, what they did to try and get big tech out of their lives, and the alternatives that they discovered

Corporate Liability New Legal Tools And Wrap

Jo Fahy 19:10

along the way. That's all coming up in the next episode of the Swiss Connection Science Podcast. For more science stories, visit our website swisinfo.ch. You can help others to find our podcast by leaving us a five-star review, or you can share our podcast with a friend. For more content, visit our website swisinfo.ch. I'm Joe Fay. Thanks for listening.