People around the World are Using Courts to Question whether Climate Policies are Fair – new study

Authors: Annalisa Savaresi, Senior Lecturer, Environmental Law, University of Stirling

Joana Setzer, Associate Professorial Research Fellow, Grantham Research Institute on Climate Change and the Environment, London School of Economics and Political Science

This article was first published in The Conversation (October 22, 2024)

London, October 2024: trade unions call for a just transition for oil and gas workers. Vuk Valcic / Alamy.

Coal workers suing their government over job losses. Indigenous people using the courts to block wind farms or anti-deforestation policies that violate their cultural rights. What these cases have in common is they challenge the fairness of climate policies and projects themselves.

Our new study, carried out with researchers from 16 universities and published in Nature Sustainability, finds that cases like these are increasingly being filed all over the world.

We coined the term “just transition litigation” to describe these cases. This term captures a focus on ensuring that climate action balances the transition to a low-carbon economy with social justice and the protection of vulnerable communities.

This phenomenon must be kept distinct from that of climate litigation, which tends to focus on holding governments and companies accountable for failing to reduce emissions or adapt to climate change.

Our research began in 2020, when we started noticing a growing number of cases that didn’t fit the conventional model of climate litigation. For example, in Chile, union workers sued the government, arguing that they had been excluded from discussions regarding the phase-out of coal plants. The Chilean Supreme Court ruled in favour of the workers, emphasising that a just transition strategy — one that includes consultation with affected communities — is essential for achieving carbon neutrality.

Similarly, in Norway, the Sami Indigenous people successfully challenged wind farm licenses, which the country’s Supreme Court found to have violated their cultural rights to herd reindeer. In Colombia, Indigenous people argued that projects aimed at reducing deforestation on their land violated their rights to self-determination and cultural integrity.

In pursuit of justice

Just transition litigation seeks to ensure that the shift toward a greener economy is fair and inclusive, particularly for those who may be disadvantaged by the rapid changes it brings. The applicants in these cases often include regular workers, Indigenous people, women, children, minorities and other groups who are typically underrepresented in legislative and decision-making processes. (Our concept of just transition litigation excludes lawsuits brought by corporations seeking to protect their own interests at the expense of broader societal fairness.)

At the core of this litigation is the pursuit of justice. As countries shift to low-carbon economies, these policies inevitably produce both winners and losers. Oil and gas workers lose their jobs. Indigenous people are displaced or see the world around them changed by new wind or solar farms. All these people lament being treated unjustly.

To ensure widespread support for climate policies, their grievances should not be dismissed as mere nimbyism. Rather, they should be recognised as carrying precious insights into the fairness, equity, and social impacts of climate policies and projects.

The litigation we looked at calls upon courts to assess climate action against various different legal frameworks, ranging from constitutional and human rights law to corporate accountability standards. Some lawsuits use arguments of distributive justice, which focus on the allocation of resources and burdens. Some look at procedural justice, such as inclusive decision-making. Others want what is termed recognition justice, which focuses on respect for marginalised groups.

Why this matters

All this reflects a growing recognition that climate action may come at a cost to certain groups, especially those already on the margins of society. It also underscores the need to address the social justice of climate action and ensure it does not make the world even less equal.

The core issue is that, while much attention is given to reducing greenhouse gas emissions, less emphasis has been placed on ensuring we do so equitably. This is especially the case at a time when governments in the EU , the UK and the US are announcing plans to cut the red tape and expedite the transition.

As more communities turn to courts to seek justice, our study highlights an urgent need for policymakers to embrace inclusive, transparent and equitable processes. Decisions over who owns land, or what jobs people can do, should involve those most affected. Ensuring that climate policies are fair and just will not only protect vulnerable groups but also foster broader public support.