I. Selecting Plaintiffs with a Compelling Story

In Sharma, Neubauer, and Shell, there is evidence of the plaintiffs being chosen, or coming together in coalitions, with a view to furthering the broader strategic narrative pursued in the litigation. In particular, the selection or combination of plaintiffs aided telling a compelling story about the interests of people from across current and future generations in accelerating climate action.

In Neubauer, the German Constitutional Court brought together claims filed in four proceedings. The first complaint involved high-profile individuals, including former politician Josef Göppel, actor Hannes Jaenicke, and energy expert Professor Volker Quaschning, as well as environmental associations—German Solar Energy Promotion Association and Friends of the Earth Germany.^{Footnote 33} While the German court held that only natural persons were entitled to bring claims under the Basic Law,^{Footnote 34} in other jurisdictions, standing may not represent as significant a barrier for non-natural persons, as in Shell. Shell was filed as a public interest class action by multiple non-governmental organizations (NGOs), including Milieudefensie—also representing 17,379 individual claimants.^{Footnote 35} Specific provisions in the Dutch Civil Code allow an NGO to institute legal proceedings for the protection of the “similar interests” of a class of plaintiffs where the interest aligns with the organizations’ objectives.^{Footnote 36} Almost all the NGOs involved^{Footnote 37} had objectives aligned with the “similar interests”—the interests of current and future generations of Dutch residents and inhabitants of the Wadden Sea area.^{Footnote 38} The breadth of plaintiffs involved in both cases showcased the wide-ranging concern, across different sectors of German and Dutch society, for more ambitious climate action.

Given the truly global nature of the climate problem, a growing feature of strategic climate cases is to include plaintiffs from beyond the particular jurisdiction where the case is filed, including from Global South jurisdictions—countries often most vulnerable to climate impacts.Footnote ³⁹ Indeed, some of the plaintiffs in Neubauer were from Bangladesh and Nepal.^{Footnote 40} Interestingly, the court did not preclude their claims from the outset,^{Footnote 41} agreeing it was conceivable that fundamental rights in the Basic Law also obliged Germany to protect people in other countries. However, the court ultimately put this issue to one side^{Footnote 42} and focused on duties of protection owed to German peoples.

Youth plaintiffs are also emerging as a key group leading strategic climate cases, with Neubauer and Sharma being notable examples of this trend. The growth of youth-led litigation acknowledges that current children and future generations will bear the disproportionate burden of climate change.Footnote ⁴³ Media surrounding these cases attests to the compelling stories of climate harms and inter-generational injustice that young people bring to the courtroom.Footnote ⁴⁴ In particular, Luisa Neubauer and Linus Steinmetz, prominent activists in Fridays for Future, were amongst the youth participating in Neubauer.Footnote ⁴⁵ The Sharma case focused on a group of eight Australian children, representing their own interests and the interests of children ordinarily living in Australia.Footnote ⁴⁶

While many past climate claims have involved “David versus Goliath” struggles between poorly resourced environmental groups and powerful defendants,Footnote ⁴⁷ what differentiates strategic climate lawsuits like these is the evident effort to curate a plaintiff group or coalition speaking to the widespread societal interest in accelerating climate action, as well as ensuring justice for the most vulnerable—such as peoples in developing countries, youth or future generations.Footnote ⁴⁸ Creation of a narrative to drive public support is a well-appreciated component of environmental campaigns,Footnote ⁴⁹ and its cultivation as part of recent climate litigation points to growing understanding among those bringing these cases of how creating compelling stories may also increase the likelihood of achieving broader impacts beyond the courtroom.Footnote ⁵⁰

II. Engaging an Experienced Legal Team

The Sharma, Neubauer, and Shell lawsuits were backed by experts in climate law with a track record of bringing multiple legal interventions designed to have systemic impact. Such expertise and experience provide a strong foundation for realizing broader outcomes from the litigation, extending beyond the individual circumstances of particular cases.

In Neubauer, for example, legal advocate Roda Verheyen has been part of other strategic climate cases, such as the high-profile case of a Peruvian homeowner, Lluiya, suing RWE for compensation for climate harms.^{Footnote 51} Lawyers also included Remo Klinger, who has filed further complaints against the States of Bavaria, North Rhine-Westphalia, and Brandenburg,^{Footnote 52} and Felix Ekardt, founder of the Research Unit Sustainability and Climate Policy and Professor at Rostock University.^{Footnote 53}

Similarly, the Sharma children were represented by a team of experienced climate lawyers at the forefront of innovative “next generation” cases in Australia.Footnote ⁵⁴ The law firm supporting the case, Equity Generation Lawyers, and its principal solicitor, David Barnden, were the brains behind Mr. Mark McVeigh’s groundbreaking claim against his superannuation—pension—fund, arguing that the fund breached its obligations under the Corporations Act 2001 (Cth) and Superannuation Industry (Supervision) Act 1993 (Cth) by failing to manage climate change risks.^{Footnote 55} The firm is likewise representing Ms. Katta O’Donnell in her novel claim against the Australian Government for its (mis)management of climate change risks to sovereign bonds.^{Footnote 56} The children’s barrister, Noel Hutley SC, is an eminent Australian advocate well-known for his leading legal opinions on directors’ duties and climate change.^{Footnote 57}

The Shell case also follows this trend, involving experienced and strategically focused legal advocate Roger Cox, representing the plaintiffs. Roger Cox authored the influential book, Revolution Justified, calling for the judiciary to oblige national governments to act on climate change.^{Footnote 58} In an effort to actuate this theory, Cox instituted proceedings on behalf of the NGO Urgenda and Dutch citizens against the Dutch Government. Through successful decisions in 2015, 2018, and 2019, Dutch courts agreed that the Dutch Government was obliged to reduce the country’s greenhouse gas (“GHG”) emissions, decisions seen as watershed moments in strategic climate litigation.Footnote ⁵⁹

III. Targeting Laggards

As any good storyteller knows, the other half of a compelling narrative, besides a sympathetic protagonist, is a convincing villain. In the context of climate change though, with many contributors to a complex problem, responsibility is generally seen as shared.Footnote ⁶⁰ Nonetheless, in line with the principle of common but differentiated responsibility, the international climate regime recognizes that “developed country Parties should take the lead in combating climate change and the adverse effects thereof.”Footnote ⁶¹ This general directive is increasingly supplemented by NGOs and international organizations’ reports detailing the progress of different developed countries in taking action.Footnote ⁶² There is also emerging literature on parties’ “fair share” of global GHG emissions, providing guidance on the adequacy of “Nationally Determined Contributions” (“NDCs”) submitted under the Paris Agreement.Footnote ⁶³ In the corporate sphere, there is likewise a growing number of studies tracking the climate change contribution of emissions from the largest corporate polluters, dubbed “carbon majors.”Footnote ⁶⁴ These principles and studies provide a basis for identifying governments and corporate actors with greatest responsibility for climate harms, prime targets for litigation.

This targeting of “laggards” in climate litigation is evident in Sharma, Neubauer, and Shell, and contributes to strategic framing of their claims as ones seeking “climate justice.”Footnote ⁶⁵ The child plaintiffs in Sharma, for instance, brought their claims against the Australian Federal Government, and also targeted a coal mining company.Footnote ⁶⁶ In the case, Vickery Coal Pty Ltd had sought to expand and extend its existing development consent for a proposed coal mine, requiring approval by Australia’s Federal Environment Minister under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“EPBC Act”).^{Footnote 67} The proposed extension would result in an increase of one-hundred million tons (Mt) of CO₂ in scope three emissions over the course of the mine’s approximately thirty-year lifespan. While this emissions profile is comparatively small,^{Footnote 68} it should be situated against the broader Australian policy context and the national government’s lackluster record of climate action.Footnote ⁶⁹ Australia has an inadequate NDC to reduce GHG emissions by twenty-six to twenty-eight percent below 2005 levels by 2030,^{Footnote 70} continued to push the country’s reliance on coal,^{Footnote 71} and is a large per capita emitter.^{Footnote 72} To compel better climate action in Australia, the children sought to challenge the Minister’s decision-making authority, arguing she has a duty of care to avoid causing harm to Australian children when approving (or approving with conditions) the coal mine.Footnote ⁷³

Likewise, the Neubauer plaintiffs brought their claims against the German Federal Government, specifically challenging provisions of the Climate Change Act.Footnote ⁷⁴ Germany remains the largest carbon emitter in the European Union and the fourth largest CO₂ emitter in history.^{Footnote 75} Per capita emissions are almost twice as high as the global average.^{Footnote 76} Moreover, at the time the complaints were filed, Germany’s NDC to reduce GHG emissions by fifty-five percent by 2030 had been assessed as “highly insufficient” to limit global temperature rise.^{Footnote 77} Against this backdrop, the plaintiffs argued that the government’s emissions trajectory set out in the Climate Change Act was inadequate to stay within the remaining carbon budget consistent with a 1.5 degrees Celsius temperature limit.^{Footnote 78}

While Neubauer and Sharma mainly sought greater climate action at the national government level, the plaintiffs in Shell concentrated on holding a multinational corporation, RDS, responsible for its contribution to dangerous climate change. As the Dutch court recognized, the Shell group is a “major player on the worldwide market of fossil fuels.”^{Footnote 79} Considering scope one, two, and three emissions collectively, the group’s total CO₂ emissions exceed many countries, including the Netherlands.^{Footnote 80} Indeed, RDS is one of only twenty companies responsible for twenty-five percent of all fossil fuel and cement emissions worldwide since 1965.^{Footnote 81} Historically, claimants seeking to hold private actors to account for their contribution have found it extremely difficult to overcome procedural and substantive thresholds to their claims.^{Footnote 82} The plaintiffs in Shell nevertheless argued RDS’ “hazardous and disastrous” corporate policy for the Shell group was “in no way is consistent with the global climate target to prevent dangerous climate change.”Footnote ⁸³

As well as contributing to the framing of claims as part of a broader climate justice narrative, targeting defendants whose actions are most lagging compared with their contribution to the climate problem adds to the cases’ potential for broader, systemic impact.Footnote ⁸⁴

IV. Tying Legal Arguments Closely to Climate Science

A notable feature of recent, high-profile climate litigation is the extent to which legal arguments are developed by plaintiffs in conjunction with the latest climate science, particularly the reports of the Intergovernmental Panel on Climate Change (“IPCC”).Footnote ⁸⁵ This strategy has helped elevate climate science—especially IPCC science—to the level of unchallenged “fact,” while at the same time paving the way for transnational spread of accepted factual understandings of the climate problem through climate jurisprudence.Footnote ⁸⁶ Sharma, Neubauer, and Shell exemplify this trend of relying strongly on the latest scientific evidence to substantiate successful arguments.

In Neubauer, the court accepted it as incontrovertible that the rapid rise in global temperatures is due to “anthropogenic emissions.”^{Footnote 87} Relying on the IPCC’s authoritative evidence, the court recognized that without additional measures, average global temperatures will likely rise by more than three degrees Celsius by 2100.^{Footnote 88} While a three degree Celsius world would have “drastic” consequences, the court accepted even lower temperature increases will have “serious negative consequences for individuals and societies.”^{Footnote 89} Noting that human health is particularly vulnerable to climate change—a point emphasized in the IPCC’s Working Group II reportsFootnote ⁹⁰—the court cited evidence that “the number of heat waves could potentially rise by as much as five events per year in northern Germany and thirty events per year in southern Germany.”^{Footnote 91} Other cited impacts, based on scientific evidence, included from droughts, heavy rainfall, floods, hurricanes, forest fires, and human displacement.^{Footnote 92}

A similarly dark climate future was laid out by the Australian court in Sharma. Like the German Constitutional Court, Bromberg J relied heavily on expert evidence from the IPCC and leading Australian climate scientist, Professor Will Steffen, which was presented by the plaintiffs and went unchallenged by the Australian government. This evidence focused on the likelihood and risks of two, three, or four degree Celsius future world scenarios for Australian children.^{Footnote 93} Forecasts of the future in these scenarios are dire,^{Footnote 94} with the likelihood of physical harm or death for the children being particularly important in finding a duty of care.Footnote ⁹⁵ Bromberg J was especially affected by the statistic that “one million Australian Children are expected to suffer at least one heat-stress episode serious enough to require acute care in a hospital.”^{Footnote 96}

Like Neubauer and Sharma, the Dutch court in Shell also referred to the authoritative scientific findings of the IPCC and others—including the Royal Netherlands Meteorological Institute—presented by the applicants, to articulate the impacts of climate change especially on Dutch residents and inhabitants of the Wadden region. Using this evidence, the court recognized that heat waves, drought, floods, ecosystem damage, threats to food production, and damage to health—via heat stress, increasing diseases, deteriorating air quality, and increasing UV exposure—are all expected to intensify in the future as temperatures increase.^{Footnote 97} Alarmingly, temperatures in the Netherlands had already risen “about twice as fast as the global average, with serious and irreversible consequences and risks for … human rights.”^{Footnote 98}

The scientific assessments of the IPCC and other leading climate science bodies point to the inevitable conclusion that urgent action is needed to limit the impact of these climate futures.^{Footnote 99} Guided by the presentation of such science, the courts in Neubauer, Sharma, and Shell all recognized the responsibility of various respondents to take action to prevent the materialization of harmful climate futures by reducing CO₂ emissions. In Neubauer, Germany’s Climate Change Act had committed the German government to reducing emissions by fifty-five percent by 2030—compared to 1990 levels—GHG neutrality by 2050, and outlined steps to achieve these goals until 2030.Footnote ¹⁰⁰ A “carbon budget” approach^{Footnote 101}—the level of GHG emissions that can be emitted while keeping to the goals of the Paris Agreement—was used by the court to assess whether provisions of the Climate Change Act violated the duties of protection owed under the Basic Law.

In Australia, previous attempts to compel the Federal Government to consider the climate change implications of coal projects under the EPBC Act have proved notoriously difficult.^{Footnote 102} However, the novel claims of the plaintiffs in negligence allowed the court to make important findings of fact on the science of climate change. On the basis of this scientific evidence, Bromberg J in Sharma accepted that the one-hundred Mt of CO₂ from the proposed coal mine extension could contribute to global average surface temperature rise and increase the risk of Australian children being exposed to harm, particularly if the “tipping point” four degree Celsius future world trajectory is engaged.^{Footnote 103} Despite the fact that the contribution of this one mine to average warming would be de minimis when considered in isolation, Bromberg J focused on the accumulation of CO₂ in the atmosphere, in light of the overall carbon budget, and the potential for even fractional increases to trigger “tipping cascades.”^{Footnote 104} In the court’s opinion, a reasonable person in the Minister’s position would foresee the risk of harm from these emissions to Australian children inherent in approving the proposed coal mine.^{Footnote 105}

The urgency of responding to climate harms as substantiated by consensus scientific evidence was also recognized by the court in Shell. The Dutch court established that the need to tackle climate change requires “immediate attention” and that the remaining carbon budget to keep global temperature rise to 1.5 to two degrees Celsius is limited.^{Footnote 106} The sooner GHG emissions reductions started, the more time there would be available before the carbon budget ran out.^{Footnote 107} Echoing the court’s finding in Sharma that even one “small” coal mine could contribute to temperature increase and cause harm, the Dutch court found that “every emission of CO₂ and other greenhouse gasses, anywhere in the world and caused in whatever manner,” including those of RDS, contributes to the environmental damage and imminent environment damage in the Netherlands and Wadden region.^{Footnote 108}

V. Innovative Legal Arguments

Another important “ingredient” of climate litigation has been litigants’ willingness to pursue novel legal arguments, testing the bounds of the law. This is particularly apparent in strategic climate litigation aimed to achieve broader ends, with many such cases framed as “test” cases. The Massachusetts v. EPA decision of the U.S. Supreme Court was an early example, successfully putting the novel argument that the Clean Air Act extended to regulation of greenhouse air pollutants.Footnote ¹⁰⁹ More recent strategic climate claims in the “next generation” climate litigation mold have often sought systemic impact with legal arguments directed to the accountability of government or corporate actors for the climate harms their actions create.Footnote ¹¹⁰

This strategy of pursuing “next generation” climate litigation claims focused on “duties of protection” is evident in the three case studies here, although using different jurisdiction-specific laws. The court in Neubauer, for instance, held that the Climate Change Act was unconstitutional insofar as it deferred major emissions reductions to 2030, therefore impacting the freedoms of future generations.^{Footnote 111} Germany’s legislature must ensure a proportional spread of the emissions reduction burden over time as “one generation must not be allowed to consume large portions of the CO₂ budget while bearing a relatively minor share of the reduction effort, if this would involve leaving subsequent generations with a drastic reduction burden and expose their lives to serious losses of freedom.”^{Footnote 112}

A similarly novel duty of protection was advanced and upheld in the Sharma case. This duty—existing in common law negligence rather than pursuant to constitutional human rights lawFootnote ¹¹³—was owed to future generations, with Bromberg J asserting that climate change “might fairly be described as the greatest inter-generational injustice ever inflicted by one generation of humans upon the next.”^{Footnote 114} Bromberg J weighed various “salient features”^{Footnote 115} to conclude that a new duty of care exists under Australian law for the Minister to avoid causing personal injury or death to Australian children—under eighteen years old and ordinarily living in Australia at the time the proceeding commenced—arising from emissions of carbon dioxide into the Earth’s atmosphere in approving the proposed coal mine extension under the EPBC Act.^{Footnote 116} While there have been many previous challenges to coal projects under the EPBC Act,^{Footnote 117} Sharma represents a wholly novel trajectory—imputing a common law duty of care in the exercise of statutory decision-making power.^{Footnote 118} The novelty of this finding, as well as its potential to be extended to other decision-making, has contributed to the case’s perceived impact.Footnote ¹¹⁹

Litigants in Shell were similarly innovative in the arguments made to hold RDS accountable. Building on the Urgenda reasoning,Footnote ¹²⁰ the court found that RDS has an obligation pursuant to the unwritten standard of care under the Dutch Civil Code to contribute to preventing dangerous climate change through the corporate policy it sets for the Shell group.^{Footnote 121} In interpreting this standard, the court referred to, inter-alia, human rights—specifically the right to life and the right to respect for private and family life—and soft law, including the UN Guiding Principles on Business and Human Rights.^{Footnote 122} Notwithstanding the global nature of the climate problem, the court found that RDS has an individual responsibility to reduce its emissions across the Shell group.^{Footnote 123}

The ramifications of these novel legal arguments accepted in the Sharma, Neubauer, and Shell decisions are likely to extend beyond the bounds of the individual cases given their ties to broader calls for greater accountability for climate harms from governments and corporate majors.Footnote ¹²⁴

VI. Seeking Remedies that Contribute to Intended Impacts

One of the signature features of strategic litigation outside the sphere of climate change has been the pursuit of remedies that extend beyond the circumstances of an individual case to pursue more broadly framed social and policy change. The Sharma, Neubauer, and Shell cases all provide examples of claims seeking remedies of this kind.

In Neubauer, the litigants sought remedies that would shape legislative action to reduce emissions within defined timeframes. In its orders, the court required the legislature to set out clear provisions for reducing emissions from 2031 onward by the end of 2022. While there was some discretion in setting emissions reduction targets which accord with the remaining carbon budget consistent with a 1.5 to two degree Celsius trajectory, this was not unlimited.^{Footnote 125} Indeed, the targets as set out meant that future generations—post-2030—would shoulder a greater emissions reduction burden, potentially violating their constitutional freedoms. These targets could “only be reconciled with the potentially affected fundamental freedoms if precautionary measures are taken in order to manage the reduction burdens anticipated after 2030 in ways that respect fundamental rights.”^{Footnote 126}

Although enhanced climate action at the Federal Government level was also an end shared by the plaintiffs in Sharma, the remedies sought to achieve this were more indirectly targeted—seeking to prevent the Australian government approving a proposed coal mine extension project. Australia, unlike Germany, does not have federal climate legislation setting out emission reduction targets.^{Footnote 127} Moreover, the Federal EPBC Act under which some coal projects require approval—including the proposed mine at issue—does not explicitly allow litigants to challenge any decision of the Minister on climate grounds.^{Footnote 128} Therefore, the children in Sharma sought two remedies: A declaration that the Minister owed a new duty of care; and an injunction to prevent the Minister from apprehended breach of this duty.^{Footnote 129} While the court accepted the existence of a new duty, Bromberg J declined to issue an injunction, finding that any allegations of breach were more appropriately dealt with after the Minister exercises her approval power.

More akin to Neubauer, Shell involved a direct challenge to the emissions reduction targets of a corporate entity. In order to stay within reach of the goal of the Paris Agreement to limit global warming to 1.5 degrees Celsius, the court held that RDS was obliged to reduce the CO₂ emissions of the Shell group’s activities by forty-five percent at the end of 2030 relative to 2019 through its corporate policy.^{Footnote 130} Significantly, the court included emissions across the Shell group’s entire energy portfolio and the aggregate volume of all emissions—Scope one through to three.^{Footnote 131} Scope three emissions are indirect emissions resulting from the activities of the organization such as when the coal is combusted by third parties.^{Footnote 132} These emissions form the majority of emissions from fossil fuel companies^{Footnote 133} but few have set targets to reduce these. The court importantly concentrated on the need for companies to “genuinely take responsibility for Scope three emissions,”^{Footnote 134} a ruling which has been interpreted as putting fossil fuel majors more generally on notice to attend to these emissions in their corporate climate strategies.Footnote ¹³⁵