World Court Opens Door To Climate Change Lawsuits Against The U.S.

At the request of the United Nations General Assembly, the International Court of Justice reviewed the financial liability of countries for their contribution to climate change and what actions countries must take to prevent climate change. After over two years of proceedings, the ICJ released its Advisory Opinion relating to the Obligations of States in respect of Climate Change on July 23. The Court found that large GHG emitting countries, like the United States could be liable to pay reparations to smaller countries for the adverse impacts of climate change. While the opinion is non-binding, it will shape the future debate over climate change policy and lead to a wave of new lawsuits.

The ICJ was established in 1945 through the UN Charter to handle legal disputes between nations. Known as the World Court, it is an outlet for countries to settle civil disputes through a neutral court. The ICJ is composed of 15 judges elected by the UNGA and UN Council to serve a term of nine years. A country may only have one judge serving on the ICJ at a time.

On March 29, 2023, at the request of Vanuatu, the UNGA asked the ICJ to issue an advisory opinion on the legal obligations of countries in preventing climate change. The opinion, while non-binding, will give an indicator of how the Court may interpret future climate related litigation and guide future legislative development. Following two years of proceedings, including both written and oral statements, the Court issued its opinion, and a shorter summary of the opinion, on July 23.

The UNGA posed two questions to the ICJ:

Addressing the first question, large countries, including the United States, Australia, and Germany, argued that the creation of a treaty that specifically addresses climate change overrides any other international law on the subject. This is known as lex specialis. Therefore, no additional legal obligations exist that may create a call for reparations or action not directly negotiated.

Developing countries argued that the UNCCC and the Paris Agreement are a starting point, but that the impacts of climate change violate human rights under international common law and the Universal Declaration of Human Rights. As a result, those countries that contribute to climate change, through the production of fossil fuels and GHG emissions, should pay reparations to low lying and developing nations that are “adversely impacted” by climate change. The Court agreed, finding that the obligations to prevent climate change are found under customary international law.

The Court stated, “The customary duty to prevent transboundary environmental harm, which requires States to ‘use all the means at [their] disposal in order to avoid activities which take place in [their] territory, or in any area under [their] jurisdiction, causing significant damage to the environment of another State’, also applies to the climate system, which is an integral and vitally important part of the environment and which must be protected for present and future generations."

The Court’s rejection of lex specialis effectively renders Trump’s exit from the Paris Agreement as moot when it comes to liability.

The court established that liability in two parts, or elements. "The main elements of the obligation of prevention in the context of protection of the climate system are (a) the environmental harm to be prevented and (b) due diligence as the required standard of conduct.”

The court addressed the two parts of the obligation and provided more context.

Addressing the environmental harm to be prevented, the court stated:

"For the duty to prevent to arise, there must be a risk of significant harm to the environment. Whether an activity constitutes a risk of significant harm depends on both the probability or foreseeability of the occurrence of harm and its severity or magnitude and should therefore be determined by, among other factors, an assessment of the risk and level of harm combined. The Court is of the view that a risk of significant harm may also be present in situations where significant harm to the environment is caused by the cumulative effect of different acts undertaken by various States and by private actors subject to their respective jurisdiction or control.

"The determination of 'significant harm to the climate system and other parts of the environment’ must take into account the best available science. The question whether any specific harm, or risk of harm, to a State constitutes a relevant adverse effect of climate change must be assessed in concreto in each individual situation."

Looking at the due diligence requirement, the Court listed seven factors that should be considered when determining if a country took the necessary steps to prevent environmental harm. Generally, those are (1) laws or regulations to reduce GHG emissions; (2) availability of scientific information; (3) binding and non-binding agreements from COPs; (4) “the principle of common but differentiated responsibilities and respective capabilities; (5) ”scientific information regarding the probability and the seriousness of possible harm; (6) risk assessments relating to GHG emissions; and (7) “States’ notification of and consultation in good faith with other States where planned activities within their jurisdiction or control create a risk of significant harm or significantly affect collective efforts to address harm to the climate system.”

The opinion is a huge win for climate change activists. While it is non-binding, it is important to note that any disputes between countries will be heard before the International Court of Justice, the same court that issues the advisory opinion. It is also likely that some national courts will adopt the same legal interpretations. Expect litigation based on the opinion to begin within the next few weeks.