This blog is one of a series that illustrate how climate change relates to policy areas covered by each subject committee.
With a remit covering equalities, human rights and civil justice the work of the committee covers many areas related to cutting emissions and adapting to a changing climate. This blog highlights how civil law has been applied in relation to climate by providing examples of climate change litigation and also explores links between the operation of the civil justice system and climate. A parallel blog considers some of the connections between issues affecting human rights, equalities, access to justice and participation in decision making and climate.
This blog draws on responses to a call made through the Scottish Parliament Academic Network (SPAN) on these issues.
Civil law – examples of climate change litigation
There are many examples of affected countries, individuals and groups turning to the courts in an effort to secure action on climate change. Research by Associate Professor de Vilchez and Professor Savaresi has identified that the right to a healthy environment has been used as a basis for legal action seeking improvements in the implementation and enforcement of existing laws and the uptake of climate policies. While noting the limited number of challenges to date they concluded that:
‘…evidence suggests that the right to a healthy environment has been invoked in an increasingly large number of climate cases and not only by applicants but also by the courts themselves…the recognition of the human right to a healthy environment seems to have contributed to the success of human rights-based climate litigation.’
Chatham House also report the growing trend in human-rights based climate change litigation, noting particularly the growth in cases brought by young people on behalf of future generations. Examples include legal challenges based on a lack of action on climate change, governments’ failure to honour existing commitments and climate strategies that contribute to breaches of human rights (e.g. encroaching on traditional land uses or livelihoods).
In a 2024 ruling (Verein KlimaSeniorinnen Schweiz & Ors v. Switzerland) the European Court of Human Rights found that Switzerland had breached the European Convention of Human Rights by taking insufficient action on climate change. The Court ruled Switzerland’s regulatory framework for tackling climate change was inadequate and the failure to mitigate the impact of climate change on the lives, health, well-being and quality of life of its citizens constituted a breach of the right to respect for private and family life set out in the Convention. While concluding that the individual applicants failed to demonstrate a strong enough link between the harm they suffered/would suffer as a result of climate change to be considered victims, the Court found that the applicant partner association of which they were members of (KlimaSeniorinnen – Senior Women for Climate Protection) did meet the criteria, noting that:
‘the special feature of climate change as a common concern of humankind and the necessity of promoting intergenerational burden-sharing in this context (…) speak in favour of recognising the standing of associations before the Court in climate-change cases’.
While many human rights-based climate litigation cases have been brought against states, where responsibilities for bearing human rights obligations traditionally rest, some rights-based cases have been taken against corporations e.g. Milieudefensie et al.vs Royal Dutch Shell plc. In this case the claimants (NGOs and individuals) argued that the annual climate emissions of the Shell group was an unlawful act against them. The court ordered Shell to reduce its carbon dioxide emissions by 45% (across their operation and including emissions from the use of the oil they produce) by the end of 2030. On appeal this has been quashed although the ruling agreed that Shell had an obligation to cut emissions.
Other examples of legal challenges relate to the permitting and licensing of oil and gas extraction and associated compatibility with national climate targets. In 2024 Norway’s District Court in Oslo ruled that several petroleum production licenses were invalid as they had failed to take into account ‘downstream emissions’ i.e. emissions associated with burning the petroleum that they would have extracted (sometimes called indirect emissions). In June 2024 the UK Supreme Court (Finch vs Surrey County Council) ruled that the indirect greenhouse gas emissions of the project should have been considered as part of its Environmental Impact Assessment (EIA), and therefore that the Council’s decision to approve the project was unlawful. In January 2025 the Scottish Court of Session ruled that the approval of the Rosebank oil field was unlawful as it did not consider the emissions associated with the use of the oil extracted. The developers are now required to submit an Environmental Impact Assessment that incorporates these emissions as part of a new application.
Notwithstanding these examples Dr Daria Shapovalova, a senior lecturer in energy law at the University of Aberdeen has concluded that:
‘Challenging new oil and gas production in court based on climate change remains a challenging endeavour under the current legal framework.’
National climate strategy and policy has also been the subject of legal challenges in the UK. Client Earth, Friends of the Earth and the Good Law Project led two successful legal challenges (2022 and 2024) arguing that the UK Government climate strategy, and subsequently revised climate strategy, were in breach of the Climate Change Act 2008. In Scotlandsolicitors acting on behalf of the Good Law Project and Environmental Rights Centre for Scotland (ERCS) wrote to Scottish Ministers proposing that they had not fulfilled their duty under Section 94 of the Climate Change (Scotland) Act 2009 to produce an assessment of how investment in Scotland’s Infrastructure Investment Plan would contribute to meeting Scotland’s emission reduction targets. The letter proposed that, subject to the response from the Scottish Ministers, the applicants could seek a judicial review. In response the Scottish Government accepted this failure and stated that ‘Urgent work is underway on a remedy to ensure this duty is discharged in full and as soon as possible’. In January 2024 the Scottish Government published a carbon assessment of the Infrastructure Investment Plan.
The operation of the civil justice system and climate change
In Scotland all public bodies are required to contribute towards achieving Scotland’s emissions targets. As part of this they have to produce annual climate change reports and set a target date for achieving net zero emissions from their own operations. Relevant to the remit of the Equalities, Human Rights and Civil Justice Committee the most recent climate change report produced by the Scottish Courts and Tribunals Service (SCTS) highlights that emissions from the SCTS were 6848 tonnes of carbon dioxide (CO2) equivalent in FY 2022/23. In April 2024 the SCTS published their most recent sustainability strategy. The strategy states that:
‘SCTS recognises and welcomes the critical leadership role that public sector bodies must take in reducing emissions and meeting the challenge of climate change…This makes net zero a key element of our sustainability journey at the Scottish Courts and Tribunals Service (SCTS).’
Commitments in the strategy include reducing energy consumption, generating their own energy and reducing emissions from business travel and employee commuting. On adaptation the SCTS sustainability strategy commits to improving the resilience of the SCTS estate and undertaking work to:
‘understand the financial risks associated with weather and climate related hazards including impacts on supply chains, product costs, energy costs and emissions, insurance and disruption.’
In a blog published in 2021 John Sturrock KC proposed the need for the civil justice system to consider how it can become a Net Zero Carbon civil justice system:
‘The objective for the Scottish civil justice system must surely be to move from traditional resource-heavy processes to those which achieve the twin benefits of efficient dispute resolution and a lower carbon footprint.’
The blog author posed several specific challenges including those associated with what approach the Law Society of Scotland take to supporting clients resolve disputes in a sustainable manner, how the SCTS can advance online services and what Scotland can learn from approaches taken by civil justice systems elsewhere on climate.
Dr Dan Barlow, Knowledge Exchange Manager – Climate Change Scrutiny, SPICe
Blog Image: Pixabay