Tessa Khan: Climate change is the greatest threat to the enjoyment of our human rights

By Charlotte Owen-Burge | October 18, 2021

Thanks, in part, to a growing youth climate movement that has injected fresh energy into activism, the number of climate lawsuits has skyrocketed in recent years.

Since 2015, plaintiffs, that included children, have filed more than 1,000 climate cases. Some 37 of these involve lawsuits that allege governments have not lived up to their promises to lower the risks of climate change or set goals that are ambitious enough. These cases, which target systemic problems, could have far-reaching consequences if they are successful.

At the helm of some of the most groundbreaking of these has been Tessa Khan, an international climate change and human rights lawyer who was behind successful cases in the Netherlands and Ireland that challenged the adequacy of the governments’ emissions reductions plans. Climate Case Ireland was the first case in which the Irish courts held the government to account for their inaction on climate change.

Before founding Uplift, an organization helping the UK move towards a fossil-fuel free future, Khan cofounded the Climate Litigation Network with the Urgenda Foundation to support climate cases around the world. In 2019, Tessa was named by TIME magazine as one of fifteen women leading the fight against climate change.

Here, Khan speaks about the law’s role in holding governments and companies to account, the limitations of the legal process, and the eroding social license of the fossil fuel industry.

Why is climate litigation such an invaluable strategy right now?

Litigation and legal action is useful, because it’s fundamentally a tool of accountability. Right now, the actions governments have taken to address climate change are way out of step with what they have committed to do. Since 1992, when the first Treaty on climate change was adopted, there was a commitment by every government in the world to keep the global temperature increase to below dangerous levels.

The actions of governments in the meantime, with the concentration of CO2 steadily increasing in our atmosphere, rather than decreasing, have failed to live up to that commitment. For example, while the UK government is widely lauded for its climate leadership, the UK is also the second-largest oil producer in OECD Europe.

Litigation is a powerful tool for creating accountability that can be enforced at the national level, through national courts. Unfortunately, we don’t have those kinds of accountability mechanisms built into the international climate regime. This means there’s a real opportunity to bridge that gap by using litigation.

I’m sure that’s easier said than done. What’s stopping this tool being used more frequently?

It is increasingly being used. And that’s because people are getting increasingly frustrated and alarmed by the inaction of many governments and companies.

In 2015, the Dutch government was ordered to reduce national greenhouse gas emissions by the court. The case was the first of its kind in the world; there weren’t very many examples of people taking their governments to court to take more action on climate change.

However, since then there have been cases brought against dozens of countries around the world. Just this year alone, we’ve had successful cases against the French, Belgian and German governments. The momentum has exploded. We’re also seeing a similar uptake in cases against fossil fuel companies.

There’s a huge amount of interest and enthusiasm for using litigation as a tool. But of course, litigation is, and is designed to be, an action of last resort. It’s resource and time intensive, and requires real expertise that doesn’t always come for free. It’s fundamentally pretty unpleasant; it’s an adversarial process. That’s why even if you’re a lawyer, you try to put off litigating until you absolutely have to.

I think that’s why people are still hoping that politicians and companies will just do the right thing; that our political processes will function. Unfortunately, that just doesn’t seem to be happening sufficiently.

How big a part will the law play in making governments stick to commitments that were made under the Paris Agreement?

I think the law has a very important role to play. But it also has limitations. And that’s because courts ultimately are pretty conservative creatures. Especially in the UK and EU, where we have a separation of powers, courts are careful not to encroach on the work of Parliaments. This means their place in terms of governance is quite narrowly defined. There’s only so much that a court on its own can do.

The other challenge that we face is that even when we get good decisions from court, we still have to rely on governments to implement those decisions. And ultimately, what we need for that to happen is the same thing that we need for any action on climate change to happen: sustained pressure from the public, that governments really feel accountable to.

Litigation on its own, when it’s seeking to create the kind of ambitious change that we’re seeing in climate lawsuits, without that additional pressure can face real hurdles in creating that change. Fortunately, litigation is good at galvanising additional pressure. It’s a powerful mobilising tool because it tells a story about the responsibility for climate change. It empowers people; allows them to feel like there is another way for them to hold their governments to account.

When done strategically, litigation can help to create all kinds of momentum. But I don’t think courts on their own, unfortunately, are going to be enough. Ultimately, it’s got to be about governments taking responsibility and feeling sufficient pressure from people to do that. We’ll soon see an escalation of every tactic that people are already using, everything from marching in the streets, to litigating in courts.

Do you think there will be more cases brought forward by individuals – for instance on the grounds of human rights?

Human rights have been the basis of many of these recent cases for exactly that reason. Ultimately, climate change is the greatest threat to our enjoyment of a whole range of human rights, everything from the right to health, to the right to a livelihood, to the right to life itself.

As we see impacts escalating, from the lethal floods in Germany to the wildfires that we saw in Greece and Turkey this year, I think people are starting to appreciate just how real the stakes are, and how immediate and personalised those impacts are.

That’s definitely being reflected in the kind of litigation that we’re seeing. The other thing that we’re seeing is increasing numbers of young people using courts. The recent case brought by nine young German activists against the German government in the country’s highest court is a good example. The Constitutional Court ruled that the government’s 2019 climate law was incompatible with fundamental rights – that it was robbing young people of the choices and the sort of dignity that’s protected under the German constitution. The outcome was that in the aftermath of that case, the government has increased the ambition of Germany’s emissions reductions in 2030 and beyond.

Another interesting example is a case put forward by a Peruvian farmer in 2015 against RWE, Germany’s biggest energy company. He’s arguing that, on the basis of this company’s contribution to historical greenhouse gas emissions (which has been quantified) they should pay the same proportion in terms of the costs for him to relocate his village in the Peruvian Andes, which is at imminent risk of flooding from glacial melt, which is happening because of climate change. The courts in Germany have accepted that argument in principle. This a huge breakthrough to accept, in principle, that liability could exist on the part of RWE. RWE maintains that a single company cannot be held responsible for the consequences of climate change but we’re expecting a decision in that case in the next year or so. And obviously, if the decision is against RWE, it would set a precedent for actual accountability for fossil fuel companies that would apply to every carbon major. That would be pretty huge.

Given the attribution, this year, of responsibility of Shell’s climate policy to its CEO, are we creating a new avenue for liability for company directors?

Yes, definitely. As you say, that was one of the implications of the Shell decision. It was a huge breakthrough in terms of illustrating that those companies do have responsibility for the contribution that they’re making to the crisis. We’re getting to the point where it is getting easy to pin a degree of contribution to individual companies, especially the carbon majors, and then to tie climate policies, or lack of climate policies, to individual company directors.

This is a whole new area of law and litigation that will inevitably be further developed in coming years.

How vulnerable to litigation are companies that aren’t committed to credible and near-term emissions reductions?

There’s no question that fossil fuel companies, in particular, are walking a very dangerous line in terms of misleading the public when they are projecting themselves as transitioning to green energy all the while still ploughing the vast majority of their money and their resources into continuing to expand fossil fuel extraction.

That’s something that they need to be careful about. If they don’t feel the heat legally, they’re definitely going to start to feel it escalating from climate change campaigners. Only this month, a coalition of campaign groups announced a campaign to ban fossil fuel advertising in the EU for exactly that reason.

I think we’ll get to a point where these companies’ social licences are eroded to the point where it becomes no longer publicly acceptable to associate yourself with them. And I think that will happen, again, through public pressure, which is ahead of where the courts are at this at the moment.

There’s an interesting parallel here with tobacco litigation. Litigation against tobacco companies in the US was really powerful but not because it was successful. Actually, there were cases brought over decades that weren’t successful. What they did do was erode the social licence of the tobacco industry which eventually led to a huge settlement between the tobacco industry and the US – and a whole suite of fresh legislation that was passed, from banning domestic TV, radio, film and outdoor advertising to “promotion by any means that are false, misleading or deceptive.”

What’s worth remembering is that we don’t actually have to win these cases for them to still have a powerful social and political effect. I think we can already see that happening with the increased perception of risk that litigation creates for investors and for companies themselves. It’s important to keep in mind that all this litigation is ground breaking — it’s putting this on the public record. We won’t always win, but that doesn’t mean that we won’t win the war in the long term.