Global Climate Change Litigation: A New Class of Litigation on the Rise

Diya Kraybill

As climate change has come to the forefront of the public consciousness in recent years, we have seen increased global urgency and public awareness regarding this issue. This awareness has led to the advent of a new and ever-evolving body of environmental law related to mitigating climate change risks. 

According to the London School of Economics, “climate litigation is generally recognized to have started in the United States in the late 1980s but has since emerged as a growing global phenomenon.” Climate change litigation made headlines following the 2021 ruling by the Hague District Court in the case Milieudefensie v. Shell. This landmark ruling in environmental law held that Shell was required to both set and uphold emissions standards and reduction targets by 2030. Notably, the number of climate litigation cases filed has increased significantly following the signing of the 2016 Paris Agreement, with just over 800 cases filed between 1986 and 2014 and over 1,200 cases filed between 2014 and 2022. The Paris Agreement, while not legally binding, was a pivotal step forward because it was an attempt to “promote accountability and ambition” for all nations. 

With the growing number of climate change cases in recent years, precedents are set regularly, and cases are being brought against both corporations and governments. However, as we see a rise in cases, there are noticeable discrepancies in why these cases are brought forward and the bases upon which they are decided. While cases are brought with different forms of strategic intent, there are trends in the arguments being brought forward in the cases we have seen, making it possible to sort heterogeneous cases in the field of environmental law into various categories. 

Constitutional and human rights cases concern themselves with the constitutional and moral obligations that have failed to be upheld by a nation due to climate-change-related risks to citizens. According to the United Nations, “States have an affirmative obligation to take effective measures to prevent and redress these climate impacts, and therefore, to mitigate climate change, and to ensure that all human beings have the necessary capacity to adapt to the climate crisis.” If inadequate environmental conditions due to climate change compromise these rights, governments are liable to be sued. Under the rule of law, governments and citizens alike are accountable to laws that are “publicly promulgated, equally enforced and independently adjudicated” and are consistent with international human rights standards.

The challenge that arises is enforcing such liability under international law. In 2008, the UN Human Rights Council (UNHRC) issued a resolution that outlined the concern that climate change “poses an immediate and far-reaching threat to people and communities around the world and has implications for the full enjoyment of human rights.” However, after conducting a later study of the relationship between human rights and climate change, they concluded that “it is less obvious whether, and to what extent, such effects can be qualified as human rights violations in a strict legal sense.” As such, these cases can be particularly challenging to bring forward, as many states will concede that climate change can interfere with the realization of human rights but reject the idea that failure to prevent climate change or take substantial action is a violation of international human rights law. The Paris Agreement is a legally binding international treaty; yet there is no formal accountability or consequence for nations failing to meet their individual goals. Instead, the Agreement focuses on transparency and ensuring that they are taking active measures to work towards their Nationally Determined Contributions (NDC). 

Administrative cases involve the review of “administrative decision-making by federal, state or local government, often concerning permitting and licensing approvals granted to high-emissions projects under environmental or planning laws.” An example of a case was ClientEarth v. Secretary of State, where ClientEarth, an environmental NGO, brought forward a case to the High Court challenging the UK government’s decision to approve what would become the largest gas plant in Europe. The court ruled in favor of the defendants, as the judge determined that the case “involved policy questions requiring a balancing of interests and that other public interests weigh against the UK’s climate goals.”  This case is illustrative of a key challenge that litigants bringing environmental claims face, as governments attempting to weigh different interests often conclude that climate change is not the most pressing issue, and can be compromised in favor of other more relevant or pressing issues. 

Private law cases involve disputes about negligence, nuisance, and public trust. For example, in Smith v. Fonterra Co-Operative Group Limited, the climate change spokesperson for the Iwi Chairs’ Forum, a Māori development platform, filed a case against seven New Zealand companies in the agriculture and energy sectors on the grounds of “public nuisance, negligence and breach of a duty to cease contributing to climate change.” However, this case, as with many other private law cases, was dismissed, as the court held that “tort law was not the appropriate vehicle for dealing with climate change” and that “every person in New Zealand — indeed, in the world — is (to varying degrees) both responsible for causing the relevant harm, and the victim of that harm.” Private cases have often been dismissed on the grounds that it is the responsibility of the government, rather than the court, to address climate change impacts and that it is difficult to prove that the harm the plaintiff incurred was directly attributable to the defendant’s actions.

Fraud and consumer protection cases are typically concerned with misrepresentation claims against corporations for failing to disclose the risk associated with their products or for “greenwashing” their products or practices. For example, Ramirez v. Exxon Mobil Corp. was a 2016 securities fraud class action suit alleging that Exxon failed to disclose climate risks, and this was also the first climate-change-related securities class action against a major oil and gas company. 

It is important to recognize that climate change litigation has had mixed success, particularly as this is such a new class of action with little precedent or comparable cases. Firstly, there is the question of justiciability and whether a court has the mandate to hear a claim about decisions on climate change. A notable example of this is in the case Lho’imggin et al. vs Her Majesty the Queen (2020) where two houses of the Canadian indigenous group filed a case against the Canadian government’s failure to meet their climate goals resulting in significant warming of their territories. The Federal Court of Canada responded by stating that “when the issue spans across various governments, involves issues of economics and foreign policy, trade, and a host of other issues, the courts must leave these decisions in the hands of others” and found that the case was not justiciable because the issue was inherently political rather than legal. Additionally, there is the challenge of establishing a causal link between the failure of a government to act in relation to climate change and the occurrence of subsequent negative climate developments. Litigants are, however, increasingly framing the case in terms of human rights and the state’s obligation to protect against the infringement of human rights due to climate change. 

As the scope of this new class of litigation continues to grow, it is imperative that companies are ready to respond to this changing regulatory landscape. While climate litigation is frequently met with challenges and is not always successful, the very existence of climate litigation is a powerful impetus for governments and corporate actors to uphold their social responsibility and pursue more sustainable environmental practices.

How Long Will China’s Animal Cruelty Laws Have to Wait?

by Leyuan Ma

Background

In April 2020, a university student in China’s Shandong Province was expelled from school after videos of him mercilessly torturing and murdering over 80 stray cats surfaced on the Chinese internet; in October of the same year, a man from Shanxi Province poured boiling water over a pregnant cat, killing her and four unborn kittens; in November 2021, a pet dog was brutally killed by health workers while its owner was in quarantine for COVID-19. Numerous incidents of animal cruelty like these have surfaced in China in recent years. In response, more and more Chinese citizens are calling for stricter protection of animals and the promulgation of robust animal cruelty laws. Though animal welfare legislation is still a somewhat controversial subject in the country, a 2020 vote launched by CCTV News (a Chinese state-owned broadcaster) on Weibo (a Chinese social media platform) shows that the demand for a national anti-cruelty law is overwhelmingly strong: on the question of whether China should pass legislation against animal cruelty as soon as possible, among the 299,000 participants, more than 280,000 voted yes.

However, despite popular support for animal cruelty laws, certain procedural obstacles in China’s legislative system make it implausible that China will introduce comprehensive legislation on animal protection in the near future.

Currently, there exists only one nationwide law on animal protection in China: the Wild Animal Protection Law. Adopted in 1988, it only provides protective measures for certain precious or endangered species of wildlife such as pandas, pangolins, and snub-nosed monkeys. Though some efforts have been made toward guaranteeing animal welfare (e.g., the 2005 Livestock Law, which regulates the treatment of livestock during breeding, trade, and transportation), there still exists a large gap in animal protection legislation.

In late 2009, a team of legal scholars published an expert draft of an Animal Cruelty Law of China. The first of its kind in China, the draft law mainly included specific anti-abuse protections for wild, economic, companion, lab, and other types of work animals. It defines “abuse” as “intentionally inflicting unnecessary pain and injury on animals, or killing animals, by cruel means or methods,” and those who violate the law could be sentenced to a fixed term of imprisonment for up to three years. If the law were enacted, it would mark a great advancement for the animal welfare cause in China. But twelve years after the publishing of the draft proposal, there is still no word of it being made law. Why is this so?

Legislative Process and Procedural Obstacles

To understand the obstacles facing animal cruelty legislation, a rudimentary grasp of the legislative process in China is necessary. National laws are promulgated by the National People’s Congress (NPC, the national legislature of China) or its Standing Committee. In general, most legislation goes through a basic agenda-setting process: a proposal for legislation is first drafted, usually by ministry staff or NPC delegates, and then formally submitted to the State Council or NPC. After reviewing the hundreds of proposals submitted, the Legislative Affairs Office (LAO, now a part of the Ministry of Justice) and the Legislative Affairs Commission (LAC, a bureau under the Standing Committee), together lay out government policy priorities with respect to the proposed laws. Once these priorities are approved by the State Council, the LAO and LAC publish an annual legislative plan. A regulation or law on the plan is then finalized and promulgated, and finally forwarded to the President of China for signing into law. The amount of time it takes a law or regulation to pass through China’s legislative process can vary enormously, ranging from six months for the Food Safety Law to 15 years for the Antimonopoly Law to pass. Essentially, delays can occur in any part of the process, as a legislative item can stall if it is not yet a priority, if it is controversial, if the political mood changes, or if the involvement of various interest groups increases or decreases.

In the case of animal cruelty legislation, the problem currently lies at the second stage–– the laying out of government priorities by the bureaus under the NPC and the State Council. The expert draft of the Animal Cruelty Law was sent to the Chinese Central Committee and the Standing Committee of the NPC well back in 2010, but it has still yet to be included in the legislation plan of the NPC. 

In March of this year, during The Fifth Session of the Thirteenth National People’s Congress, Deputy Zhu Lieyu once again submitted a proposal for an animal cruelty law, the fifth time he has done so during his tenure as a delegate. He believes that “the lack of relevant laws and regulations on animal cruelty and punishment in [his] country” makes it extremely difficult for “actions of animal cruelty to receive due punishment.” Zhu Lieyu’s most recent proposal has prompted renewed attention to the problem of animal cruelty in China, and his priorities reflect the wishes of many Chinese citizens. Even so, due to the reluctance of officials in the State Council and LAC to prioritize animal anti-abuse laws, we are left still waiting for the legislative process to start.

Reasons and Possible Procedures

Many people might wonder why legislators have failed to make animal protection a legislative priority. I believe the answer is a combination of considerations regarding the necessity of animal protection laws and cultural differences between China and Western countries. 

In a reply to NPC deputies’ request for anti-cruelty laws in 2020, the Ministry of Agriculture and Rural Affairs explicitly stated that “at present, most acts of cruelty to animals can be adjusted through existing laws and regulations, and many departments such as public security are cracking down on related illegal and criminal acts. Cruelty to animals in social life is only a rare phenomenon […] It is not necessary to formulate a special law for this rare violation of morality.” They cited that, for instance, the Livestock Law of 2005 guarantees the welfare of livestock, and the revision of Article 26 of the Wild Animal Protection Law in 2016 regulates practices in the artificial breeding of wild animals.

However, some experts still argue for a more systematic and comprehensive set of regulations. Though modifying existing laws such as the Criminal Law might be faster and more efficient than procuring a new animal cruelty law, the current regulations on the treatment of companion animals and stray animals are still relatively vague. Yet, there are still others who believe other legislations are of higher importance and that the protection of animals should wait. While the answer to this debate on priority is not yet clear, the only thing we know for sure is that the debate itself will delay the legislative process and stall hopes for a new animal cruelty law anytime soon. 

Of course, one must also take into account China’s unique social and cultural environment. China has a long history of animal utilization, and there are many industries engaged in animal production, processing, and utilization. Due to huge demands and limited land resources, improving the welfare of farmed animals would incur considerable costs for running animal farms and would raise meat prices significantly. Cultural differences within China regarding the treatment of animals could also be difficult to eliminate. For instance, many parts of China still have the tradition of eating dog meat, and dogs only became common household pets beginning in the late 20th century. Every year the notorious Yulin Dog Meat Festival takes place in Guangxi province, where people kill and eat tens of thousands of dogs to celebrate the summer solstice. Though this might seem appalling to most people, a considerable number of Chinese people still adhere fiercely to this tradition. Comprehensively improving the level of animal protection will surely be an arduous systematic task that requires the joint efforts of the whole Chinese society. This task is complicated by Chinese society’s lack of uniformity regarding the proper treatment of animals. 

Conclusion

In short, though the animal protection cause has garnered increased attention and support over the past decade, it is unlikely that China will enact animal cruelty legislation in the near future. However, there is hope that anti-cruelty stipulations will be added to existing legislation, and thus gradually increase the welfare of animals in China. As China’s level of social and economic development improves and anti-cruelty becomes a social consensus, we should remain optimistic that the prospects for a robust animal protection law will also improve in the coming years.

The Forgotten Voices: Power Imbalances in Guatemalan Investor-State Dispute Settlements

by Ava Peters

On June 13, 2012, Yolanda Oquelii, leader of the La Puya Peaceful Resitance movement in Southern Guatemala, became the subject of an assassination attempt. She was targeted for starting a non-violent protest, together with many other brave women and men from her community, against a gold mining operation near their homes. They led a sit-in at the “El Tambor ” mine to protect their land from the extreme social and environmental degradation caused by exploitative practices carried out by US-based company Kappes, Cassiday & Associates (KCA). Their practices have affected air quality, as well as flora, fauna, top soil and the available quantity of water for local residents. Ever since, community members have continued their sit-in to keep vigil around the clock in the face of violent police harassment, anti-riot intervention and various legal challenges. Eventually, in 2016, their persistent protest triggered a formal lawsuit, setting off a chain reaction of cases which escalated through the Guatemalan court system. 

In 2014, the Guatemalan NGO Centre de Acción Legal, Ambiental y Social de Guatemala (CALAS) filed a case against the Ministry of Energy and Mines (MEM) contending that “Exmingua”, the Guatemalan subsidiary of KCA, did not hold a valid operating permit based on its failure to carry out community consultations required under Guatemalan law and ILO Convention 169. KCA contended that this claim was ‘meritless’ and questioned whether there was any Guatemalan law requiring the implementation of ILO 169 at the time when the mine was constructed.  However, in November 2015, the Guatemalan Supreme Court held in favour of CALAS and issued a final decision in 2016 requiring the suspension of mining activities at El Tambor. But just as the valiant efforts of La Puya seemed successful, KCA launched a counterattack, filing an ISDS case against the state of Guatemala claiming damages of $300 million.

What are ISDS Cases? 

ISDS––or investor-state dispute settlement––cases are legal challenges that allow foreign investors to resolve disputes with the government of the country in which their investment was made. They are based on legislation found in International Investment Treaties between states which typically include substantive protections and obligations that protect the economic rights of the investors. 

The international treaty relied upon in the case of Guatemala was the DR-CAFTA (Dominican Republic-Central American Free Trade Agreement). KCA argued that Guatemala was in breach of the international investor agreement terms that ensured ‘fair and equitable treatment, a minimum standard of treatment, indirect expropriation, and full protection and security.’ They claimed that the ongoing protests illegally blocked the entrance to the mine sites, preventing Exmingua from “using and enjoying” its exploration license. In addition, they argued that they were “arbitrarily and unlawfully” harmed by the MEM’s suspension of the export certificate. They calculated that they were deprived of the value[h] of the El Tambor project, amounting to $150 million, and the Santa Margarita project (of at least the same, if not greater value). Additionally, they allege that they have suffered a loss of $500,000 when they prohibited the exporting concentrate shipments. 

KCA martialled a convincing argument in the eyes of arbitrators: it is their gold mine, but the case fails to incorporate the struggles of those involved: it is also a gold mine responsible for numerous abuses against local communities, posing health and environmental risks to Guatemalan citizens. Local communities have faced violence, repression, and criminalization, whilst background forces continue to deplete the region’s natural resources. It’s an interesting consideration to make given that these claims aren’t rooted in empirical evidence. Considering this, should these facts be considered in the ISDS case? Past cases involving the DR-CAFTA suggest otherwise. Guatemala faced another claim arising out of an investment in a Guatemalan electricity distribution company by the U.S. investor Teco Guatemala Holdings LLC––a case that was decided in favor of the investor. Similar to the KCA case, Teco claimed Guatemala breached the ‘fair and equitable treatment / minimum standard of treatment including denial of justice claims’ under the IIA. The ruling emphasized the distinct power asymmetry in ISDS cases: the tribunal reasoned purely on the basis of the treaty, making no effort to acknowledge the stake held by third parties. 

Problems with ISDS

While particularly problematic, the Guatemalan case is not unique. Hundreds of ISDS cases are still pending, forcing us to question the effectiveness of the system and the millions of communities left waiting for their fate to be determined by a system pitted against them. 

Arguably, the most pressing flaw of the ISDS system is that it tends to cause a “chilling effect” on the regulatory system: a situation in which the threat of an investor’s potential claims leads to governmental reluctance to adopt policies out of fear of being sued by huge conglomerates. In other words: simply knowing that a company might sue stops smaller host states from protecting the rights of their citizens. With reference to the KCA case, the minimum claim of $300 million, if granted, would place an extortionate burden on Guatemala’s coffers. While Guatemala is in a better position than other developing countries to satisfy this debt, many other countries would face bankruptcy when confronted with such a large claim. 

Of greater concern is the lack of transparency during ISDS disputes. Compared to the US legal system, ISDS proceedings are relatively opaque and exclusive. Tribunals can decide whether to accept or reject third-party amicus briefs and, unlike other legal recourse[s], third parties have no ability to intervene, leaving local communities without a say in which their interests are significantly impacted.

ISDS cases do not enjoy a consistent thread of jurisprudence. While precedents in this form of international arbitration do exist, there is no doctrine of stare decisis, so that a previous ruling on one issue from an analogous case does not ensure that a ruling in a pending case will be the same. Cases decided regarding similar matters, even involving the same country and with the same kind of investor have produced different results. This lack of consistency is exacerbated by the absence of an appellate system to correct substantive errors and ensure predictable outcomes. Arbitrators and decision-makers can be subject to bias or constrained by a lack of independence, resulting in decisions favoring investors, with no checks and balances. The rights of local communities and the state at large are left unacknowledged, whilst the rights of investors have the potential to be overemphasized. Creating a trend, the power imbalance inherent to ISDS is only set to increase. 

Finally, the cost and duration of ISDS cases is particularly problematic. Arbitration is usually a long, drawn-out process that negatively impacts host states far more than investors. A King’s College London study revealed that ISDS tribunals took on average 181 days, and 103 days for annulment committees to reach a decision. The written phase for submitting briefs – without annulment – took on average 407 days. The KCA case was brought to the court in 2016, and for 5 years has been consuming money, time, and resources whilst wreaking havoc on powerless local communities. As environmental journalist Louis Magriel observed …”This type of arbitration rejects community self-determination and the role of the government to make decisions that protect the best interests of their population.” (Gold Mining and Violence by Louis Magriel).

Potential Solutions 

ISDS dispute resolutions must produce fair, efficient, coherent and consistent solutions. At present, this is not the situation – we need to consider improvements which recognize and uphold the rights of all parties involved. Various short and long term solutions have been proposed. 

The ‘quick fix’ solution to the shortcomings of ISDS would be dispute prevention. This involved creating institutions that act as a precautionary structure aiming to reduce the legal temperature between investors and states. It would focus on developing specific working mechanisms which mediate between all parties involved. As appealing as the immediacy of this solution sounds, it is not viable long term; more permanent solutions need to be considered to properly uphold the rights of those other than the investors. 

Longer-term reform of the ISDS system could be a hopeful, albeit lofty, aspiration to redress the power balance.  Adapting ISDS policy through the institution itself, for example through making it easier to submit amicus briefs or allow the state to establish bi-legal challenges that mirror the ISDS suit, could help create a more equal system. However, the efficacy of these outcomes are limited. Any reform of the ISDS system will be long and tiresome, and at present, there is no clear solution. 

Another potential solution, as advocated by the Columbia Center for Sustainable Investment, is to terminate or withdraw from IIA’s altogether. The Center produced a report posing some potential reforms: “Chief among [ways for states to exit or mitigate the recognized adverse effects of the more than 3,300 treaties], we’ve advocated for termination (or withdrawal of consent to ISDS arbitration) of these treaties, as a near-term solution, alongside any longer-term project.” However, this impacts the economic interests of both state and investor, so is likely to be opposed by both the governments and corporate actors involved. 

Arguably, the most extreme yet effective solution would be to create an entirely new system alternative to ISDS. Countries in Latin America have led in this pursuit, establishing the ‘Centro de Solución de controversias en Materia de Inversiones’ which aims to establish a new mechanism to resolve investment disputes. However, progress has been slow and the states involved have faced various disagreements. The EU has also attempted to create a ‘multilateral investment court,’ but the changes made from the current ISDS system are minor and have failed to consider the key shortcomings of inefficiency, lack of transparency and failure to uphold the rights of all parties. Ultimately, whilst the idea of creating an entirely new system seems optimal, the actual act of establishing one that fits the needs of all stakeholders is complex and the potential for completion is low. 
Through briefly outlining some major potential solutions, it’s obvious there is no clear answer. Yet, there is a clear goal: to make the ISDS structure more equitable and to protect the rights of marginalized, developing nations that have been exploited by huge companies. We need to continue the fight to reform the system and ensure that stakeholders don’t get left out of the conversation.

The Role of Environmental Personhood in Corporate Practices

by Anna Shin

Climate change has been at the forefront of environmental issues in both local communities and the global stage. The United Nations now labels climate change as a crisis that affects every country on every continent, and the problem only seems to be worsening by the year. While ordinary individuals can make small, everyday contributions in an effort to lower carbon emissions, much of the attention has been spotlighted on businesses and corporations, calling for them to adopt a “net zero emission” policy by either 2030 or 2050. While many large corporations such as Google and Microsoft have proclaimed their commitment to slashing carbon emissions, both environmental activist groups and the companies themselves have found that the actions to these large claims tend to fall short. Much of this inadequacy has been due to the lack of implementing rigorous, comprehensive standards for companies to reveal their true net emissions data. 

There is a question as to whether corporations are lawfully bound to adopt sustainable practices at the expense of their own resources. Currently, the corporations, excluding their stockholders, are entitled to “corporate personhood” under the law, which defines corporations as able to enjoy and exercise some of the rights and privileges granted to individual people. Corporate personhood also suggests that corporations are defined as “persons” in the Fourteenth Amendment. This is what allows corporations to enter contracts, and also sue others or get sued themselves. The Supreme Court case Citizens United v. Federal Election Committee (2010), which established that corporations were entitled to their First Amendment right of free speech in donating to political campaigns, has not been challenged to this day and therefore the statement that corporations are considered persons continues to stand. 

Considering that corporations are considered as persons, the question of whether the environment, or Earth, is held to the same standard, persists. The concept of “earth jurisprudence,” or the belief that the Earth itself and all of its inhabitants have legal rights, has been used to argue that corporations that follow unsustainable or polluting practices are taking advantage of the Earth’s legal status. While earth jurisprudence has not officially been adopted into U.S. law, there has been much legal discourse on the issue of large corporations exploiting natural resources for profitability. Because the only witness to the Earth’s deterioration is the Earth itself, companies utilize this to silently engage in mass pollution and avoid many of the economic and societal ramifications. 

The fact that U.S. courts view corporations as individuals comes at a cost. Unlike most individuals, large corporations enjoy the influence of money, power, and privilege. Corporations and businesses are built to work solely in favor of themselves and their profitability — establishing constitutionality to protect their interest-driven actions bears significant consequences for the protection of individual rights, and opens doors to corruption and special interests. The environment is one of the greatest victims of these influences, yet its very essence disallows it from seeking rightful protection. In addition to this, every business relies on the use of natural resources to advance its economic and industrial profits, either directly or indirectly. If the government and its laws fail to protect the Earth from misuse and destruction, it renders serious and irreversible damage for all its inhabitants. If the government recognizes nature as an individual and regulates eco-friendly business practices, it will not only benefit the environment, but also the corporation itself. Furthermore, the corporation will be setting itself up for long-term sustainability and profitability. 

The country of Ecuador has already made progress in this issue. In 2008, Ecuador rewrote a portion of its Constitution by including a section called “Rights of Nature.” This acknowledges Earth as an individual and allows other people to bring lawsuits on behalf of it. If the United States were to adopt a similar legal doctrine, it would provide greater authority for the government to pursue environmental issues in higher rigor and reach. 

Earth jurisprudence, although currently far from attaining the status it needs, must be carefully considered within the conversation of climate change as a whole. Without both the physical presence and well-being of the ecosystems we live in, other societal issues are essentially meaningless. It is by the efforts within the legal sphere to acknowledge Earth as an individual that humans will be able to protect the places we live in for the sake of future endeavors.