Around 100 companies are responsible for more than two-thirds of the greenhouse gas (GHG) emissions that are causing climate change. These companies, known as the “Carbon Majors,” profited enormously from products—oil, gas, coal, and cement—that destabilized the global climate system. Many of these companies also engaged in a coordinated effort to spread misinformation about the dangers of climate change and sow doubt about climate science. Although communities—particularly in the Global South—are already experiencing loss and damage from climate change impacts, most of these companies continue to pollute the atmosphere with GHGs. Despite their outsized contributions, to date, no Carbon Major has been held accountable for the substantial and mounting economic and non-economic losses resulting from climate change. Advocates and governments, however, are hoping to change that through legal action. Around the world, plaintiffs have brought over 50 cases demanding compensation for loss and damage from climate change. Most of these cases have been filed by state and local governments in the United States, with a notable few filed in Europe by plaintiffs from the Global South.
Loss and damage, a term that emerged from international climate negotiations, refers to harms caused by climate change. These harms can be economic, such as loss of livelihood or property, and non-economic, such as loss of cultural heritage and biodiversity. Loss and damage includes future harms that cannot be avoided by adaptation to climate change or the mitigation of GHG emissions. The NYU Climate Law Accelerator’s (CLX) Database of Loss and Damage Cases defines loss and damage cases as those that substantively involve the remedying of harms caused by climate change impacts before judicial (domestic courts, international criminal courts, etc.) or quasi-judicial bodies (UN Human Rights Committee, national human rights commissions, etc.). These cases are differentiated from mitigation cases, where plaintiffs seek remedies for a failure to reduce GHG emissions, and adaptation cases, where plaintiffs seek remedies for a failure or inability to adapt to expected climate change impacts in the future. Loss and damage cases may also seek remedies related to mitigation or adaptation, but the database does not include cases that solely seek such forward-looking remedies.
Drawing on the CLX Database of Loss and Damage Cases and conversations with loss and damage litigators, we distill key strategies and challenges that extend across the field of loss and damage litigation against Carbon Majors. Not all loss and damage cases are against Carbon Majors. Indeed, some cases seek reparations from governments rather than Carbon Majors, but our analysis focuses on cases against these entities for a few reasons. Most loss and damage cases have been brought against Carbon Majors, creating an analytically distinct subset of climate change cases. Additionally, the recently established UN Loss and Damage Fund will partly address government accountability for climate change, though these governments have insisted that their donations to the fund are voluntary rather than based on their responsibility for climate change. This creates an accountability gap between polluter governments and polluter corporations, heightening the importance of litigation against Carbon Majors.
This analysis highlights the various strategic decisions that plaintiffs make in loss and damage litigation: key choices about whom they will sue (defendants), their theory of liability, how they will prove their case (evidence), what they will ask for (remedies), and where they will litigate (jurisdiction). We end this analysis with a discussion of some of the challenges that litigants may face in suing Carbon Majors for climate change-induced loss and damage. While we focus on these categories as critical points of distinction and commonality, plaintiffs certainly consider a variety of other factors when building and litigating their cases. In framing the extant loss and damage jurisprudence as a set of strategic choices, we hope that this review will help researchers, practitioners, impacted communities, and government agencies better understand the litigation efforts aimed at holding Carbon Majors accountable for climate change impacts.
