Climate change litigation has become relatively common in many regions of the world. As the need to enforce climate goals from governments and businesses rises, many people consider this approach as an instrument to achieve climate action. More recently, just transition litigation has emerged as a specific form of climate change litigation, related to society’s energy transition away from fossil fuels and to the fair distribution of the benefits and burdens resulting from it.
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Climate change is already here. That is a tangible fact not only exemplified by the effects that are already taking place in many regions, such as longer heatwaves, ice loss, wildfires, droughts, changes in precipitation patterns and extreme weather events, but also by the myriad of scientific evidence available. Since the 1990s, several commitments have been made regarding the climate crisis, with governments pledging to implement measures to combat climate change and to adopt more ambitious decarbonisation plans. International instruments like the Paris Agreement in 2015, for instance, accomplished widespread consensus, agreeing that humanity needs to urgently address the matter to prevent the global average temperature from rising past 2C and ideally staying below 1.5C compared to pre-industrial levels.
With these climate goals and commitments in place, and with governments and firms aware of what must be done, discontent amongst people has grown as these objectives have not been carried out as promised. In the face of inaction from these key players, a tendency towards climate litigation has risen in the last few years, aimed at holding governments and the private sector accountable for not implementing the plans, policies, and legislation pledged.
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What Is Climate Change Litigation?
According to the Sabin Center for Climate Change Law and the Grantham Research Institute on Climate Change and the Environment, climate change litigation refers to cases that raise material questions about laws, policies, or facts related to climate change mitigation, adaptation, and science initiated before judicial or quasi-judicial entities – such as arbitral tribunals, administrative bodies, and national human rights institutions. This means that people can challenge governments and entities from the private sector to move forward with the climate goals if they are not complying with them.
Some landmark examples that made world headlines include the 2015 decision in Urgenda Foundation v. State of the Netherlands – the first known case where a government was found to be responsible for the mitigation of greenhouse gas (GHG) emissions, and 2023 Held vs. Montana, filed by 16 young people arguing that the government violated their right to a clean and healthful environment and to a stable climate system. This case has been categorised as the first constitutional climate lawsuit in the US to reach trial.
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As newer and more complex claims make their way through courts and tribunals, the more evolved and developed climate litigation becomes. This is where just transition litigation comes up as a novel field within the spectrum of climate litigation, encompassing cases that contest climate policies and plans, but focusing primarily on the way the energy transition towards a society away from fossil fuels should be achieved.
The Concept of ‘Just Transition’
The idea of a ‘just transition’ began to take relevance in the 1980s and 1990s in North America, as more rigorous environmental policies against water and air pollution upsurged. Within this context, workers’ unions started to shape the concept, initially understanding it as a programme to support workers who lost their jobs due to these environmental protectionist policies. The notion later evolved, and it was integrated as a deliberate effort to constitute and invest in a transition towards socially and environmentally sustainable jobs, sectors, and economies. Today, the thought of a just transition is associated with international climate action processes, particularly with the energy transition needed to attain a decarbonised society.
On the basis of this perspective, just transition litigation is defined as a kind of litigation that questions the distribution of the benefits and burdens of transition policies and activities that seek net-zero and climate-resilient societies among local communities and affected stakeholders. It comprises cases related to labour rights for workers in the fossil fuel industry, to the protection of communities affected by decarbonisation policies and projects, and to the opposition to new subsidies for fossil fuels extraction projects, among others matters.
As an interesting particularity, these cases are often perceived as “anti-climate” – cases that contest the energy transition away from fossil fuels. However, it is not the aim of just transition litigation to stop or hinder the energy transition, but to make it a just one. It seeks to pursue equality in the development of this new decarbonised society, looking for an equitable distribution of the positive and negative externalities of the energy transition that can radically separate it from the historical inequality that has characterised the development of the energy sector. Just transition litigation focuses on ensuring that this social and environmental change succeeds in bringing a fair and equal development for all members of society, considering the fulfilment of human rights and environmental rights.
How Can Just Transition Litigation Help Achieve a More Just Society?
The world reached a consensus in the Paris Agreement, concurring on the need for an energy transition away from fossil fuels and the transformation towards decarbonised economies; it is reasonable to conclude that many people’s livelihoods will be affected by such a crucial change. These circumstances compel society to carefully consider the way this transformation will be carried out, so that it causes the least impact on the environment and on people’s lives.
The Paris Agreement itself acknowledges this in its preamble, by stressing that it is imperative to retrain the workforce and create decent and quality work in accordance with the development goals set by the member countries. Moreover, entities such as the Centre for Just Transition of the International Trade Union Confederation assert that a just transition ensures environmental sustainability, decent work, social inclusion and poverty eradication.
Within this context, it is feasible to grasp the relevance of implementing policies and plans for decarbonisation through a just transition, and it becomes clearer why disagreements and litigation could arise by not incorporating its principles in this socioeconomic transformation. Thus, climate change litigation can contribute to accomplish the goals set forth by the ideal of a just transition, it can help shape the way governments and companies make their decisions, and it can put pressure on them to quicken the processes needed for the transition.
Just Transition Litigation Cases
1. Chile, 2021
In 2021, Chilean union workers filed a process to defend their labour rights, considering themselves affected by the Chilean government’s decarbonisation policies, that involved the closure of two coal-fired power plants. In 2021, three union workers affected by the closure initiated an action against the Ministry of Energy, questioning the agreement signed in 2019 between the Government of Chile and companies in the energy sector to organise the closure of the power plants and start the energy transition process. This agreement also launched the process to elaborate a Just Energy Transition Strategy.
The workers argued that they had not been involved in this agreement, so no action had been taken to protect their rights given the closure, and that this was against their constitutional rights to equality before the law, freedom of labour, freedom of association, and property rights.
Chile’s Supreme Court ruled in favour of the plaintiffs and ordered government authorities to implement a plan to reintegrate affected workers into the labour market and ensure a just energy transition. The court agreed that these were important policies to achieve the Chilean Decarbonisation Plan, but recognised how essential a just transition strategy is for the workers affected and for the communities that lost services linked to the closing of the plants.
This case is especially relevant because the court specifically acknowledged just transition as a parameter for the legality of climate action and classified the lack of consultation as a violation of the Chilean government’s obligation to ensure a just transition. It is important to highlight that the plaintiffs did not challenge the project itself but the lack of compliance in the procedural requirement of participation and the scarcity of options to withstand the indirect effects of the coal plants’ decommissioning.
2. Colombia, 2019
The matter of the Wayúu Indigenous community vs. the Colombian Ministry of Environment is particularly noteworthy, as it contains key elements of what should be understood as a just transition and glimpses into the future on how these cases will develop. In 2019, the community filed a claim aimed at the annulment of the environmental licence of the Cerrejón Mining Project in La Guajira, a project that has been active since 1983. Among other aspects, claimants argued that the environmental licensing process was contrary to several rights and environmental provisions, including the right to a healthy environment, the right to health and that it was carried out without free, prior, and informed consent (FPIC).
Plaintiffs raised the issue of environmental and climate justice, stating that Colombia’s obligations and pledges on climate change should be taken into consideration before permitting projects of this sort. They also emphasised the lack of coherence from the Colombian government by addressing climate change, while allowing economic growth based on extractivism. Moreover, the Wayúu community argued that an energy transition should be done pursuing climate justice, environmental protection, and meaningful participation to achieve it. The matter is still waiting for resolution.
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3. Mexico, 2018
In 2018, the Zapoteca indigenous community of Unión Hidalgo in Mexico filed a complaint against Electricité de France (EDF) for the planning of the Gunaá Sicarú wind park on their lands, arguing that the community was not informed nor consulted about the project, thus violating their right to consultation and to FPIC. This circumstance created conflicts amongst the members of the community, fostered by the lack of a widespread process of information and consultation with its members. Furthermore, they reasoned that there is not an equal distribution of the benefits produced by the wind farm, as the community does not profit from the project and the firm does not share the electricity produced with the local communities; most of which suffer from energy poverty.
In June 2022, Oaxaca’s First Court of District ruled in favour of the Zapoteca community and ordered the Mexican Federal Electricity Commission to cancel the contracts for the Gunaá Sicarú wind park. According to ProDESC, the NGO helping the Zapoteca community, this decision marked “a milestone in the defense of land, territory and natural resources for agrarian and indigenous communities.”
Towards a Future Away From Fossil Fuels
As presented by the examples above, climate change litigation is evolving. More matters related to human and environmental rights, and specifically on the way these can be affected by the energy transition, will be brought to courts. It is hoped that the idea of a just transition consolidates as a fundamental element of the energy transition and that the lessons learned from these cases can be aptly applied.
Historically, there has been a fragmentation between decision-makers and people – especially vulnerable groups – generally caused by the lack of inclusion and participation in the creation of environmental policies and in the administration of natural resources. This, in turn, has caused ill management and socio-environmental conflicts, fostering inequality, resentment towards decision makers and often, environmental damage.
A just transition towards a society without fossil fuels can produce a fairer distribution of the burdens and benefits brought forth by the energy transition. It requires more measures that ensure equality in the implementation of the policies and projects designed for the transition to take place, and it demands increased public participation in the decision-making processes. It is in the best interest of governments, civil society, and the private sector to take these concerns into consideration so the energy transition does not leave anyone behind and can move forward effortlessly.
Featured image: Markus Spiske/Unsplash
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