Recipe for Success?: Lessons for Strategic Climate Litigation from the Sharma, Neubauer, and Shell Cases

Abstract

The urgency of the global climate problem has prompted an increasing turn to the courts to accelerate action. While still a relatively new phenomenon, “strategic” climate cases have been on the rise since 2015. Litigants in these cases aim to produce ambitious and systemic outcomes. However, with both time and resources limited, how might we best discern which cases have the greatest prospects of achieving cut through in the policy and public debate, and accelerating climate action? This Article contributes to developing literature evaluating the “recipe for success” in strategic climate claims. It provides a comparative analysis of three recent, high-profile wins in climate cases from Australia—Sharma—, Germany—Neubauer—, and the Netherlands—Shell—, examining their commonalities to give insight into the ingredients for successful strategic climate litigation. Our analysis shows how the three cases combine careful, strategic planning, with legal imagination and innovation to generate outcomes that heighten their capacity for broader impact. Evaluating the success of these types of prominent climate cases provides important guidance for future case design.

A. Introduction

With the urgency of the climate problem growing and the prospect of limiting global temperature rise to 1.5 degrees Celsius slipping away,¹ there is an increasing turn to the courts to accelerate action. “Strategic” climate cases aiming to bring about such change have been on the rise, especially since 2015, and now span multiple jurisdictions and lawsuits against both governments and corporations.² Litigants in these cases aim to produce ambitious and systemic outcomes, such as advancing climate policy, raising public awareness, and transforming government or corporate behavior.³ While, as put by District Judge Staton in Juliana v. United States, “[n]o case can singlehandedly prevent the catastrophic effects of climate change predicted by the government and scientists,”⁴ there is nonetheless growing interest among those bringing, funding, and analyzing strategic climate litigation in which cases have the greatest prospects of achieving cut through in the policy and public debate, and accelerating climate action.⁵

Strategic climate litigation is itself a relatively recent phenomenon, and scholarship on its potential regulatory contribution is still in its infancy.⁶ Early empirical analysis of climate litigation, focusing on the jurisprudence in the United States—which remains the most prolific jurisdiction for climate change lawsuits⁷—saw little evidence of systemic change. For instance, as Dave Markell and J.B. Ruhl—in their seminal 2012 study—concluded, “[t]he story of climate change in the courts has not been one of forging a new jurisprudence, but rather one of operating under business as usual.”⁸ Subsequent analysis of climate litigation in the United States and Australia—the country with the second highest number of climate cases⁹—has elucidated different pathways to impact, with climate litigation often producing its most significant impacts through indirect effects on government, corporate and public behaviors.¹⁰ More recent literature has begun to consider the types of cases or legal arguments that achieve high salience in the media and public debate, and generate the most potential for impact beyond the specific circumstances of an individual case.¹¹ This Article seeks to contribute to this developing literature on the “recipe for success” in strategic climate claims.

To this end, we provide a comparative analysis of three recent, high-profile “wins” in strategic climate cases, examining their commonalities to give insight into the ingredients of a potential “recipe” for successful strategic climate litigation. In the high-profile Sharma by her litigation representative Sister Marie Brigid Arthur v. Minister for the Environment (“Sharma”) case,¹² a group of Australian children successfully argued, at first instance, that the Federal Environment Minister owes a novel duty of care in the tort of negligence when exercising her approvals power for a coal mine project. We compare Sharma with two prominent decisions in Europe: Neubauer v. Germany (“Neubauer”),¹³ concerning four constitutional human rights complaints filed against the German Federal government, and Milieudefensie et. al v. Royal Dutch Shell PLC (“Shell”),¹⁴ arguing that Royal Dutch Shell (RDS) has a responsibility pursuant to the Dutch Civil Code, informed by human rights and soft law, to prevent dangerous climate change.

To facilitate comparison, we identify six common dimensions that characterize Sharma, Neubauer, and Shell and which, we argue, contribute to their propensity to generate systemic impact. These dimensions are: (1) Carefully selecting plaintiffs to communicate a strategic message; (2) engaging an experienced legal team with a track record of bringing other strategic climate legal interventions; (3) targeting defendants which are widely seen to be lagging in their climate action; (4) tying legal arguments closely to the latest climate science; (5) adopting innovative legal arguments, including those emphasizing duties of protection;¹⁵ and (6) seeking remedies that extend beyond the situation of individual litigants and contribute to intended policy and regulatory impacts. Our analysis shows how these cases combine careful strategic planning, with legal imagination and innovation, to generate outcomes that meaningfully contribute to addressing the global climate problem. Whether these positive impacts will be sustained over the longer-term is harder to predict at this stage, and raises questions about what is meant by success in this context. However, these shared ingredients arguably heighten the capacity for strategic impact and provide guidance on the “recipe for success” for future climate litigation claims.

The remainder of the Article proceeds as follows: Section B elaborates the concept of strategic climate litigation, distinguishing this subset of climate cases from the broader body of climate jurisprudence; Section C turns to Sharma, Neubauer and Shell, analyzing six common elements of these cases; Section D discusses how these elements might provide indicators of “success” in the selection and pursuit of climate cases seeking strategic impact; Section E concludes.

B. Strategic Climate Litigation

Numerous studies have sought to map the growth in climate litigation, especially over the past ten years.¹⁶ As of May 2021, there were over 1,800 ongoing or concluded cases around the world.¹⁷ These cases represent a diverse range of claims, reflecting the lack of a singular body of “climate law.”¹⁸ Instead, climate cases have been brought under a collection of laws regulating public and private actors, as well as different aspects of the causes and consequences of climate change.¹⁹ These include claims brought in tort, public trust, consumer law, corporations law, administrative law, constitutional law, and human rights law.²⁰

However, not all climate change cases are “strategic.” Strategic litigation—sometimes referred to as impact litigation—is consciously designed to produce ambitious and systemic impacts extending beyond an individual case.²¹ Strategic climate cases are a small but growing subset of climate cases, as litigation becomes a tool more widely used to achieve regulatory ends.²² These regulatory ends may be sought via direct and/or indirect pathways.²³ Direct impacts arise as a result of substantive legal or policy changes following an intervention, for instance, where the judgment clarifies or extends the operation of relevant laws to cover climate aspects.²⁴ Indirect impacts occur when the litigation raises public awareness of an issue or climate injustice, puts pressure on governments to change policy, or influences business culture in ways shaping subsequent behavioral change, which in turn contributes to climate change goals.²⁵

While there is growing acceptance in the climate litigation literature and practice of the value of a strategic approach to bringing claims, as well as of efforts to learn from other areas with a history of impact litigation, such as human rights litigation,²⁶ guidance on how climate cases might best be selected and constructed to contribute to positive regulatory outcomes through direct and indirect impact pathways remains limited. This Article responds to this knowledge gap. It focuses on three recent climate cases, Sharma, Neubauer, and Shell, selected due to their strategic characteristics. These cases are “strategic” in two senses. First, all show evidence of careful planning of the litigation to seek ends beyond the outcome in the individual case. This reflects a recognition that obtaining a judgment is not an end of itself. Rather, strategic litigation is understood to be part of a larger process for change, where the particular case is just one element of a broader plan oriented towards the ultimate aim of attaining lasting change.²⁷ Second, these climate cases demonstrate significant innovation and creativity. This legal imagination is “needed to see, and to see beyond, the traditional taxonomies of law and litigation” and achieve positive outcomes.²⁸

We consider these cases in greater depth in the following Section, highlighting their planning and creative dimensions, to explore the elements that have contributed to their success and potential for broader impact.

C. Ingredients for Strategic Success in Climate Cases

Just as many other areas of climate action have progressed markedly in 2021,²⁹ the year has also seen several notable “successes” in strategic climate cases, including decisions in Sharma, Neubauer, and Shell handed down respectively by courts in Australia, Germany, and the Netherlands. These cases have achieved considerable salience in the global media,³⁰ a visibility that often portends the capacity for achieving broader social and policy change.³¹ They have also been subject to extensive discussion in the literature and academic commentary despite their recency.³² In this Section we do not rehearse the description and analysis of these cases that has been admirably covered in other articles. Instead, we identify six common dimensions characterizing Sharma, Neubauer, and Shell—despite their very different legal contexts—which point to the ingredients that make up a successful recipe for climate litigation with strategic impact. These are:

1. 1. Carefully selecting plaintiffs to communicate a strategic message with the case.

2. 2. Engaging an experienced legal team with a track record of bringing other strategic climate legal interventions.

3. 3. Targeting defendants who are widely seen to be lagging in their climate action.

4. 4. Tying legal arguments closely to the latest climate science.

5. 5. Making innovative legal arguments, including those emphasizing duties of protection.

6. 6. Seeking remedies that extend beyond the situation of individual litigants and contribute to intended policy and regulatory impacts.

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.³³ While the German court held that only natural persons were entitled to bring claims under the Basic Law,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.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.³⁶ Almost all the NGOs involved³⁷ had objectives aligned with the “similar interests”—the interests of current and future generations of Dutch residents and inhabitants of the Wadden Sea area.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.³⁹ Indeed, some of the plaintiffs in Neubauer were from Bangladesh and Nepal.⁴⁰ Interestingly, the court did not preclude their claims from the outset,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 side⁴² 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.⁴³ Media surrounding these cases attests to the compelling stories of climate harms and inter-generational injustice that young people bring to the courtroom.⁴⁴ In particular, Luisa Neubauer and Linus Steinmetz, prominent activists in Fridays for Future, were amongst the youth participating in Neubauer.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.⁴⁶

While many past climate claims have involved “David versus Goliath” struggles between poorly resourced environmental groups and powerful defendants,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.⁴⁸ Creation of a narrative to drive public support is a well-appreciated component of environmental campaigns,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.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.⁵¹ Lawyers also included Remo Klinger, who has filed further complaints against the States of Bavaria, North Rhine-Westphalia, and Brandenburg,⁵² and Felix Ekardt, founder of the Research Unit Sustainability and Climate Policy and Professor at Rostock University.⁵³

Similarly, the Sharma children were represented by a team of experienced climate lawyers at the forefront of innovative “next generation” cases in Australia.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.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.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.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.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.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.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.”⁶¹ This general directive is increasingly supplemented by NGOs and international organizations’ reports detailing the progress of different developed countries in taking action.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.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.”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.”⁶⁵ The child plaintiffs in Sharma, for instance, brought their claims against the Australian Federal Government, and also targeted a coal mining company.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”).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,⁶⁸ it should be situated against the broader Australian policy context and the national government’s lackluster record of climate action.⁶⁹ Australia has an inadequate NDC to reduce GHG emissions by twenty-six to twenty-eight percent below 2005 levels by 2030,⁷⁰ continued to push the country’s reliance on coal,⁷¹ and is a large per capita emitter.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.⁷³

Likewise, the Neubauer plaintiffs brought their claims against the German Federal Government, specifically challenging provisions of the Climate Change Act.⁷⁴ Germany remains the largest carbon emitter in the European Union and the fourth largest CO₂ emitter in history.⁷⁵ Per capita emissions are almost twice as high as the global average.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.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.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.”⁷⁹ Considering scope one, two, and three emissions collectively, the group’s total CO₂ emissions exceed many countries, including the Netherlands.⁸⁰ Indeed, RDS is one of only twenty companies responsible for twenty-five percent of all fossil fuel and cement emissions worldwide since 1965.⁸¹ 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.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.”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.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”).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.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.”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 2100.⁸⁸ 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.”⁸⁹ Noting that human health is particularly vulnerable to climate change—a point emphasized in the IPCC’s Working Group II reports⁹⁰—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.”⁹¹ Other cited impacts, based on scientific evidence, included from droughts, heavy rainfall, floods, hurricanes, forest fires, and human displacement.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.⁹³ Forecasts of the future in these scenarios are dire,⁹⁴ with the likelihood of physical harm or death for the children being particularly important in finding a duty of care.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.”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.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.”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.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 2030.¹⁰⁰ A “carbon budget” approach¹⁰¹—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.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.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.”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.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.¹⁰⁶ The sooner GHG emissions reductions started, the more time there would be available before the carbon budget ran out.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.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.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.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.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.”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 law¹¹³—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.”¹¹⁴ Bromberg J weighed various “salient features”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.¹¹⁶ While there have been many previous challenges to coal projects under the EPBC Act,¹¹⁷ Sharma represents a wholly novel trajectory—imputing a common law duty of care in the exercise of statutory decision-making power.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.¹¹⁹

Litigants in Shell were similarly innovative in the arguments made to hold RDS accountable. Building on the Urgenda reasoning,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.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.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.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.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.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.”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.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.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.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.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.¹³¹ Scope three emissions are indirect emissions resulting from the activities of the organization such as when the coal is combusted by third parties.¹³² These emissions form the majority of emissions from fossil fuel companies¹³³ 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,”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.¹³⁵

D. A “Recipe for Success”?

For those engaging in climate litigation an increasingly important question is not just “will this case be successful in court” but also “will this case have a broader systemic effect, beyond this case and beyond the courtroom in contributing to the acceleration of action on climate change?” In this Section, we summarize how the strategic elements or “ingredients” outlined above inform a “recipe for success” by tracing impacts emerging from the Sharma, Neubauer, and Shell cases. We acknowledge that these cases are recent and, in some instances, subject to appeal so their full impact might not be known for some time or sustained over the longer-term. Moreover, while the six ingredients identified above can be influenced by those bringing the cases, there are other structural or contextual factors that will contribute to their ultimate success, for example, receptivity of courts to legal arguments led by plaintiffs, public support for enhanced climate action, and the appetite of governments and others to change behavior.

This leads to the more general question: What does “success” mean in this context? Clearly it is more than achieving a favorable court ruling, as litigants are seeking systemic changes beyond the individual circumstances of the case. Rather, strategic litigation is just one tool used by litigants and organizations as part of a larger process of stimulating change towards an ultimate goal, such as a healthy and safe climate future. This approach invites litigants to articulate carefully what they seek to achieve through a particular case and identify how the litigation will contribute to their ultimate goal.¹³⁶ Monitoring and evaluation of case outcomes is an important, iterative process that can help inform strategic climate litigants and their funders in case selection decisions.¹³⁷ As other authors have identified, it is also an area that warrants future exploration and research in terms of how to measure and evaluate the success and impact of strategic climate litigation.¹³⁸

Noting that we are still at an early point in assessing the impact of Sharma, Neubauer, and Shell, one indicator of a successful climate case is the extent to which a case has ‘direct impacts’ in terms of binding the respondent(s) to court orders in individual cases and creating new legal precedents to explore in subsequent cases. As a result of Sharma for example—and subject to the decision standing on appeal—the Australian Environment Minister will have to exercise her approvals power for the Vickery coal project, and other similar projects requiring federal approval, considering the new common law duty of care to future generations and the scientific evidence and arguments in this case. While the duty was somewhat limited—to “take reasonable care … to avoid causing personal injury or death” to Australian children¹³⁹—it is difficult to see how the Minister could exercise her approval power and not expose the children to some harm. If the Minister approved the project, a claim in negligence for breach of the duty would seemingly be likely.¹⁴⁰ As legal precedent, the innovative arguments of the plaintiffs in Sharma open up a whole new line of accountability reasoning for litigants to argue in cases involving climate impacts, and create greater potential to hold the Australian government to account.¹⁴¹

The potential direct implications from Shell for RDS and other companies are also profound. If the decision is upheld in any appeal, commentary has suggested that RDS will have to slash its emissions by 740 million tons of CO₂ a year—greater than the emissions of Germany—by the end of the decade.¹⁴² This would have significant implications for the future operation and management of the business requiring, for example, keeping liquefied natural gas production flat and cutting oil product sales by thirty percent from 2020 levels.¹⁴³ Although the Dutch court did not set specific steps for RDS to follow in reducing its emissions, litigants may nevertheless seek to enforce the decision through the courts if the company does not keep on track.¹⁴⁴ Moreover, the decision represents the first time a company has been held directly responsible for its contribution to climate change.¹⁴⁵ This could spark a series of similar lawsuits, which aim to force other companies to speed up their decarbonization plans.¹⁴⁶

Strategic climate cases are also calculated to improve climate policy, especially those of governments who should be doing more to respond to climate change. This is perhaps most apparent in the case of Neubauer with the German Government required to amend provisions of the Climate Change Act by the end of 2022. Shortly after the ruling, Germany proposed amendments that included increasing the 2030 target from fifty-five percent to sixty-five percent, reducing emissions by at least eighty-eight percent by 2040 and reaching net GHG neutrality by 2045.¹⁴⁷ Germany’s climate policies will also be influenced by recent changes to the EU’s targets and forthcoming updates to all relevant climate and energy legislation.¹⁴⁸ Whether this ratcheting of ambition will be sufficient remains to be seen, but does indicate a willingness of the courts to step in at the request of plaintiffs like those in Neubauer and fill an “accountability gap.”¹⁴⁹

Apart from important “direct” contributions, well planned and imaginative strategic climate cases like Neubauer, Sharma, and Shell play an essential indirect role in raising public awareness and driving behavioral change. Immediately following the decision in Neubauer, politicians from across party lines came out in support of the ruling.¹⁵⁰ Public support for strong climate action has also been bolstered by recent devastating flooding in the country.¹⁵¹ However, such positive behavioral changes are not a given. By way of contrast, following the Australian ruling, Vickery Coal was quick to hail the judge’s decision to reject an injunction as a “win.”¹⁵² The Australian Federal Government similarly dismissed the decision and has appealed the decision.¹⁵³ While public support for climate action is growing in Australia and sub-national actors have been taking decisive action,¹⁵⁴ the Sharma case at present seems unlikely to compel the Federal Government to end its reliance on fossil fuels and commit to ambitious emissions’ reduction targets.

Company directors and investors are also likely to be paying close attention to the decision of the court in Shell as it provides an opportunity for them to reflect on their obligations to maintain a forward-looking approach on managing climate-related risks in their companies and portfolios.¹⁵⁵

E. Conclusion

As examples of successful strategic climate litigation, the Sharma, Neubauer, and Shell cases invite an examination of their common features which provide indicators of the “recipe” for achieving similarly broad impacts in future cases. We have highlighted six common features of Sharma, Neubauer, and Shell which we argue point to some of the key ingredients that go into the mix when developing strategic climate claims.

While even enthusiastic proponents of climate litigation, such as the present authors, recognize that climate change cases alone will not solve the climate crisis, they do have the potential to generate impacts that reverberate far beyond an individual case. Youth activist, Greta Thunberg has perceptively noted that the Sharma, Neubauer, and Shell cases all share the potential for “snowball” effects¹⁵⁶ by exposing “layer upon layer of incomplete targets and insufficient action.”¹⁵⁷

By examining the shared features of these cases, we can begin to discern a recipe for success so that scarce resources for climate litigation can be targeted to maximize cases’ impact and contribution to addressing the urgent global challenge of climate change.