How climate litigation is driving action in South Africa and worldwide

As climate impacts escalate around the world, litigation against governments and corporates failing to take action have also continued to grow. In the 12 months to May 2023, 190 new claims were filed including in seven new jurisdictions, according to the London School of Economics Grantham Institute’s latest report. Cases are also diversifying, and strategic litigation is also on the rise, it found.

The report draws on the Sabin Centre’s global climate litigation database, where overall more than 2,341 cases have been captured, and around two-thirds of these filed since the Paris Agreement in 2015. In terms of impact, more than 50 per cent of these have direct judicial outcomes favourable to climate action, with some leading to “well documented changes in policy”. Others have driven significant indirect impacts on climate change decision-making beyond the courtroom.

Litigation trends against governments and corporates

The devastating failures governments and corporations to tackle climate change means more and more communities are becoming affected and are turning to the law to spur action. According to the Grantham report, the human right to a healthy environment along with domestic climate legislation play a critical role in cases against governments. Indeed, in September 2022, lawyers worldwide issued a letter with a stark warning to governments worldwide to ramp up climate action or face accountability in courts.

There is also a growing movement to hold corporations to account for the climate harm caused by products, with around 60 cases have been filed globally against the super-polluting ‘Carbon Majors’.

The report’s authors, Dr Joana Setzer and Kate Highambeen, also note an “explosion” of ‘climate-washing’ cases filed in recent years. “One of the most significant groups of climate-washing cases to emerge in recent years have been cases challenging the truthfulness of corporate climate commitments, particularly where these are not backed up by adequate plans and policies”, they explained.

South Africa’s flagship cases

The report highlights a number of cases in South Africa that illustrate key trends in climate-related litigation. One case includes applicants who sought to prevent an oil and gas exploration seismic survey along the South Coast of South Africa. This was filed on the basis it would negatively impact coastal ecosystems, the spiritual and economic relationship communities had with those ecosystems, and climate change. In September 2022, the High Court of South Africa confirmed that the exploration grant was unlawful, referring to ‘unburnable’ fossil fuel reserves and the inconsistency of further oil and gas exploitation with South Africa’s international climate change commitments.

A further example is the ‘Deadly Air’ case. Here, applicants challenged the failure of the South African government to protect people’s constitutional rights to health and wellbeing from toxic levels of air pollution in Mpumalanga province; home to 12 coal-fired power stations, a massive coal-to-liquids plant, a refinery, and many polluting industries and mines. In March 2022, the Pretoria High Court issued a landmark decision that the South African government was the first time declared in breach of a constitutional right due to the health impacts of air pollution.

Future trends in climate litigation

The authors also draw attention to potential future trends, such as increasing litigation focused on the biodiversity–climate nexus, as well as cases addressing the duties of governments and corporations to protect the ocean and its vital carbon sink function.

They also predict a rise in litigation from extreme weather events. With these, climate change may not be the central focus, but cases can still have significant implications for climate action.

Cases concerning short-lived climate pollutants – such as methane, black carbon soot and nitrous oxide – are further identified by scientists as crucial targets. According to the researchers, increased international litigation between states, particularly regarding disputes over fossil fuel production and use, could also gain traction in the near future.