WASHINGTON, DC - OCTOBER 29: Protesters attend a rally outside the U.S. Supreme Court held by the ... More group Our Children’s Trust October 29, 2018 in Washington, DC. The group rallied in support of the Juliana v. U.S. lawsuit brought on behalf of 21 youth plaintiffs that argues the U.S. government has violated constitutional rights for more than 50 years by contributing to climate change. (Photo by Win McNamee/Getty Images) Getty Images A legal battle is heating up over climate change and human rights. Youth and senior plaintiffs in the US, Europe, Africa, and beyond are beginning to score wins. So are their fossil fuel and government opponents. Juliana v United States – Pioneering Climate Lawsuit In March of this year, the Supreme Court upheld a lower court ruling that dismissed the pioneering climate case, Juliana v. United States. For ten years, youth plaintiffs had argued that government actions causing climate change violated their generation’s constitutional rights to life, liberty, and property. Despite the loss in court, Juliana received extensive media coverage and has had an outsized impact on climate litigation. According to Our Children’s Trust, which litigated on behalf of the youth plaintiffs, “the legal framework established by Juliana has inspired over 60 youth-led climate lawsuits worldwide, against more than 50 countries and states, including cases like Held v. State of Montana and Navahine v. Hawai‘i Department of Transportation, which have secured significant victories for climate rights.” Legal Victories in Montana, the EU, and Nigeria In contrast to Juliana, the youth plaintiffs in Held v. Montana achieved a victory. The Montana Supreme Court ruled that the state constitution protects the right to a stable climate and that restricting climate impacts in environmental reviews violated that right. And in KlimaSeniorinnen, seniors in Switzerland triumphed in the European Court – arguing that the Swiss government’s inadequate climate policies violated their right to life and health under the European Convention on Human Rights. The residents of the Niger Delta also prevailed in a case against Shell Oil’s Nigerian subsidiary. Mrs Justice May ruled that the fossil fuel giant could be sued for damages from pipeline spills even when those spills were caused by vandals. Justice May also ruled that the five-year statute of limitation did not apply because a “new cause of action will arise each day that oil remains on land affected by the spills.” MORE FOR YOU Youth Challenge Trump’s Executive Orders Another case inspired by Juliana is Lighthiser v. Trump, in which 22 youth are challenging the Trump administration’s “unleashing” fossil fuels, anti-clean energy, and anti-climate science executive orders. The youth argue the Trump administration’s actions threaten their constitutional rights to life, health, and safety. The parties await a September hearing on the plaintiffs’ preliminary injunction and the defendants’ anticipated motion to dismiss. According to Our Children’s Trust, “This case has the power to shift our national energy paradigm from one rooted in profit to one that protects children’s lives and futures. If the youth plaintiffs win, the unlawful fossil fuel expansion orders will be halted, and the Constitution will be reaffirmed as a vital tool for climate protection.” Government Counter Attack Given the onslaught of 2,967 climate-related legal cases filed to date across nearly 60 countries, it’s not surprising that governments are waging a counter attack. Nineteen states and the territory of Guam have filed a motion in Lighthiser v. Trump to defend Trump’s executive orders. Why is the Lighthiser case the only one in over 450 legal cases challenging Trump’s executive orders where a coalition of states has intervened? Some claim this case presents a unique threat to the fossil fuel industry and its government backers. The Fossil Fuel Industry SLAPPs Back The fossil fuel industry is waging its own legal battles against climate activists. SLAPP (Strategic Legal Action Against Public Participation) suits enable oil companies to use their considerable wealth to target activists and non-profit organizations. The goal is to exhaust the activist organization’s resources and force them to shut down. According to Betsy Apple, executive director of Global Climate Legal Defense Fund: “The process is the purpose… The whole point of a SLAPP is a war of attrition.” In one such SLAPP, the oil company Energy Transfer prevailed in a North Dakota court against Greenpeace, arguing that the nonprofit played a major role in the Dakota Access Pipeline protests. This is despite the fact that the Native American protest leaders testified that Greenpeace played only a minor, supportive role. The jury agreed to over $660 million in damages against Greenpeace. Not only does Energy Transfer’s SLAPP seemingly discount the Indigenous leadership of the Standing Rock Sioux Tribe anti-pipeline movement, it threatens to bankrupt many of Greenpeace’s operations. Drilled reporter Alleen Brown covered this case, and found that half the jurors had ties to the fossil fuel industry and members of the local press doubted the scientific consensus on climate change. Greenpeace is appealing the decision, hoping to prevail in a more neutral court in one of the 38 states, which unlike North Dakota, have anti-SLAPP laws. Greenpeace Slaps Back The European Commission has a Directive against SLAPP suits, which has enabled Greenpeace to launch a counter offensive against Energy Transfer. In a court in the Netherlands, Greenpeace has demanded compensation for costs incurred fighting Energy Transfer’s litigation in the US. The EU’s anti-SLAPP Directive was spurred by the car bomb assassination of Maltese investigative journalist Daphne Caruana Galizia, who faced more than 40 civil and criminal libel lawsuits. Greenpeace’s suit is the first test of the EU’s anti-SLAPP law to curb harassment or silencing of activists, including by tying them up in expensive litigation. According to Mads Christensen, executive director of Greenpeace International, after losing the free speech argument in the “court of public opinion,” fossil fuel corporations are “weaponising courtrooms” to silence their critics. In the meantime, civil society groups are fighting back, often using novel legal strategies. Climate and Human Rights In one such novel strategy, the Inter-American Court of Human Rights argued in its “Climate Emergency and Human Rights” Advisory Opinion that displacement of people due to climate-induced disasters is not merely a humanitarian concern, but rather a matter of a country’s binding human rights obligations. The Advisory calls for new legal categories for climate-displaced people. According to Columbia University’s Sabin Center for Climate Change Law, by advancing the rights of millions displaced by the climate crisis, the ruling heralds a fundamental reorientation of the human rights law approach to climate litigation. In a second ruling by the Inter-American Court of Human Rights, the court confirmed the right to a healthy environment including the right to a healthy climate. This means a right to a “climate system free from dangerous anthropogenic influence that is dangerous to humans and to nature as a whole.” The document outlines governments’ legal responsibilities to uphold human rights at risk from climate change, which include the right to life, health, clean water, education and work. The inquiry leading to this ruling was brought by the governments of Chile and Colombia, and is one of a rapidly expanding number of legal actions in the Global South. As far as the future is concerned, we can expect the global battle for the human right to a healthy climate will continue to rage. Editorial StandardsReprints & Permissions