Private Climate Litigation: A Viable Tool for Climate Justice?

Abstract: This essay concerns private climate litigation as a tool through which victims of loss and damage can access climate justice. Anthropogenic climate change is already today causing substantial harm to people and communities all over the world. The people living in the Global South are particularly vulnerable to this harm due to their geographical location and limited access to funds and technologies needed to adapt to the changing climate. The societies of the Global North, however, are less exposed but have contributed to historic global greenhouse gas emissions to a far larger extent. This constitutes climate injustice. To remove this injustice, people in the Global South need ways to access compensation for permanent losses and temporary damage, loss and damage, caused by climate change. In 2022, the parties to the UNFCCC decided to establish a fund for loss and damage, but whether the fund will work to provide compensation is still unknown. This thesis therefore explores private climate litigation as a potential tool for climate justice and studies whether the increased number of climate litigation cases offer prospects of increased numbers of loss and damage victims accessing climate justice. Private climate litigation is the practice of filing lawsuits aimed at exerting pressure on private entities. The litigation explored in this thesis is aimed at establishing liability for major emitters and thus making them liable to pay compensation to victims of loss and damage. The major emitters in this thesis are Carbon Majors, which are companies that Richard Heede has managed to link to specific shares of global historic emissions. This thesis examines private climate litigation primarily based on three cases, Kivalina v. ExxonMobil, New York v. BP, and Lliuya v. RWE. The two first cases are American, and the last case is German. The study of the three cases shows that successful private climate litigation in the USA seems distant since the American courts uphold the Political Question Doctrine which identifies climate change as a political issue for which the courts cannot attribute liability. The situation for climate litigation is better in Germany where one court has accepted a lawsuit that claims compensation for loss and damage risks. The final judgement in the case is still pending. The thesis concludes that the potential of private climate litigation to succeeds depends to a large extent on the national jurisdiction in which the litigation takes place. The practical difficulties for individuals to file cases in foreign countries might also affect its potential as a tool for climate justice. However, the progress in climate research illustrated by the Carbon Majors report and other work has increased chances of successful litigation. If climate litigation succeeds to establish liability to pay compensation for GHG emissions to loss and damage victims, this could have a major effect for individuals and for the development of international climate law.