A rather new trend in climate change litigation are lawsuits by individuals, indigenous peoples or ENGOs, but also by states or municipalities, against private companies, typically the so-called “carbon majors” which are responsible for a large share of greenhouse gas emissions. Such lawsuits are usually based on tort law and seek compensation for damages caused by climate change or costs incurred for necessary adaptation measures to prevent such damage.

One of the earliest such cases in the United States was Native Village of Kivalina v. Exxon Mobile Corporation and others, filed in 2008 by an Inuit community seeking compensation for damages occurring from the erosion of sea ice which traditionally protected their native village. The first instance District Court dismissed the case because liability for damages from climate change constituted a political issue which, under the political question doctrine, was deemed non-justiciable by courts. The 9th Circuit Court upheld the dismissal on the basis of the so-called displacement doctrine, holding that the government had already adopted regulations with regard to climate change in the Federal Clean Air Act, which displaced any possible tort claims under federal common law. The Supreme Court denied the applicants’ petition for a writ of certiorari without comment.

For an overview of challenges faced by plaintiffs when suing carbon majors under United States law, as well as summaries of important US case law, follow this link.

In the groundbreaking Dutch case of Milieudefensie et al. v. Royal Dutch Shell plc., the Hague District Court in May 2021 found that Royal Dutch Shell plc. was in violation of the standard of care under Dutch law and ordered the company to reduce its greenhouse gas emissions by 45% by 2030, relative to 2019’s levels. The claim is based on a provision of the Dutch Civil Code which stipulates that a person who commits a tort towards another must repair the damage which the other person suffers as a consequence thereof. The 45% emissions reduction applies across all activities in relation to the Shell group, including both its own emissions and end-use emissions (in other words, all emissions from the use of the oil it produces).

In the German case of Lliuya v. RWE, which is currently pending in the Court of Appeal, a Peruvian farmer is suing the RWE corporation, Germany’s largest electricity producer and one of the world’s major carbon emitters, for damages in relation to climate change. The plaintiff, Luciano Lliuya, lives in the City of Huaraz, Peru, which is located below a glacial lake. Due to global warming and melting glaciers, this lake is increasing in volume, threatening to flood the plaintiff’s home. The plaintiff sued RWE for a portion of the costs for establishing flood protection, which is equivalent to the percentage of RWE’s contribution to global greenhouse gas emissions.

The first instance court dismissed the claim, acknowledging that RWE was only one of many contributors to emissions responsible for climate change. Even if RWE ceased emitting, climate change and the threat to the plaintiff’s home could not be stopped. However, the court of appeal did not find the claim to be so easily dismissable. Instead, it proceeded to hear scientific evidence on RWE’s contribution to climate change and its causality for the flooding of the lake.

Note should also be taken of a petition filed by Greenpeace Southeast Asia and numerous other organizations and individuals with the Philippine Commission on Human Rights. The petitioners asked the Commission to investigate the human rights implications of climate change, and more specifically whether investor-owned carbon majors have breached their responsibility to respect the rights of Filipino people. The Commission found that major fossil fuel companies could be held liable for climate change impacts under existing civil law in the Philippines.