To date 80 framework litigation cases have been filed against national governments (56 cases) and subnational governments (24 cases) since 2005
- Government framework litigation focuses on whole of government approaches.
- The number of cases is accelerating – just under half of the cases on file were in 2021 alone.
- Of nine cases challenging national-level policies that have been heard so far, 7 have had outcomes favourable to climate action – a warning for governments, companies and investors about the impact of climate litigation.
The news comes from a report by the Grantham Research Institute on Climate Change and the Environment at the London School of Economics and Political Science. It is a follow-up report to the Grantham Research Institute’s recent 2022 report on Global trends in climate litigation, and explores a subset of climate litigation in which governments’ policy responses to climate change are challenged, which is termed ‘government framework litigation‘.
Government framework cases differ from other climate cases as they focus on the ambition or implementation of whole-of-government responses to climate change. As such, government framework litigation impacts “how fast low-carbon transition occurs in different jurisdictions, increasing the pace and scale of climate action.”
The report, ‘Challenging government responses to climate change through framework litigation’, by Catherine Higham, Joana Setzer and Emily Bradeen, shows the largest amount of government framework cases have been filed in or against Global North countries (63 cases), while a small but significant minority have been filed in or against Global South countries in Latin America (8 cases) and South Asia (7 cases). Cases have been filed before national courts in 24 countries.
The authors analysed records from 2005 onwards and found that since 2017 numbers have been rising steadily, with a record number of 30 new cases submitted in 2021. The authors identified that just under half of the cases were filed in Germany.
Impact of government litigation
The authors also outline the impact of government litigation, and its ability to “significantly impact on government decision-making, requiring governments to develop and implement more ambitious policy responses to climate change”.
The authors also stress that government litigation is not a panacea and highlight its limitations: “potential climate litigants, including civil society organisations and funders, should think carefully about when and how to bring framework cases, particularly in light of the challenges of enforcing rulings. Framework cases must be accompanied by ongoing and extensive strategies for engagement if they are to play an ongoing role in achieving policy outcomes.”
They also expect “these cases to matter for corporates and investors as they can prompt concrete governmental policy responses. Litigation against governments may act as a spur to accelerate the transition in their respective countries, with all the knock-on impacts that may have. Such litigation may also plant the seeds for cases against corporate actors.”
Researchers make recommendations for action
The report argues that national and sub-national policymakers should take time to understand the positive obligations to make decisions informed by the latest climate science that are emerging because of these cases.
Parliamentarians and legislators should also familiarise themselves with the emerging transnational jurisprudence from framework cases and use it to inform the drafting of clear and ambitious framework legislation.
Companies and investors should ensure that they understand the actual and potential framework climate cases that exist in the jurisdictions in which they operate. These cases and their direct and indirect impacts should be factored into transition risk assessments.
Potential climate litigants should think carefully about when and how to bring framework cases, particularly in light of the challenges of enforcing rulings. Framework cases must be accompanied by ongoing and extensive strategies for engagement if they are to play a continuing role in achieving policy outcomes
