Litigating The Climate Emergency: Strategic Climate Litigation in the United Kingdom and Its Implications for Environmental Accountability

INTRODUCTION

The intersection of law and climate change has produced one of the most dynamic and consequential developments in contemporary legal practice. Across the globe, courts are increasingly called upon to adjudicate the boundaries of governmental and corporate responsibility for climate-related harm, transforming environmental litigation from a peripheral advocacy tool into a central mechanism of ecological accountability. The United Kingdom, with one of the world’s most advanced statutory climate frameworks, established the Climate Change Act 2008[1] (CCA), might be expected to face fewer litigious challenges to its environmental governance. Yet, paradoxically, the very precision of that legislative architecture has rendered it susceptible to judicial scrutiny, enabling claimants to hold the state to its own statutory commitments.

This article critically examines the rise of strategic climate change litigation in the United Kingdom, analysing how domestic courts, international human rights bodies, and private law mechanism are collectively reshaping the contours of environmental accountability, It argues that while UK climate litigation has achieved significant normative advances, structural limitations – including justiciability constraints, post-Brexit governance gaps, and inadequate corporate accountability frameworks, continue to constrain its transformative potential.

THE ARCHITECTURE OF UK CLIMATE LAW: A STATUTORY FOUNDATION FOR LITIGATION

The CCA 2008[2] constitutes the principal legislative instrument governing the United Kingdom’s climate obligations. It established a legally binding emissions reduction target – subsequently amended to net zero greenhouse gas emissions by 2050 – alongside a system of five-year carbon budgets designed to chart incremental progress toward that goal.[3] The Committee on Climate Change (CCC), an independent statutory advisory body, monitors compliance and provides expert recommendations to Parliament and the executive. This statutory architecture is profoundly significant for litigation: it furnishes claimants with quantifiable benchmarks against which governmental action can be judicially assessed, effectively converting aspirational political commitments into enforceable legal obligations.

The Environment Act 2021[4] further expanded this framework by establishing the Office for Environmental Protection (OEP) as an independent watchdog responsible for scrutinising public authorities’ compliance with environmental law.[5] The OEP possesses the power to initiate legal proceedings against public authorities that have seriously failed in their environmental duties, thereby institutionalising environmental oversight in the post-Brexit landscape. However, as shall be examined later, the circumscribed nature of the OEP’s powers undermines the robustness of this institutional architecture in practice.

The United Kingdom’s ratification of the Paris Agreement further reinforces these domestic obligations.[6] Article 4 of the Agreement requires parties to pursue nationally determined contribution (NDCs) consistent with the long-term goal of limiting global temperature increases to 1.5°C above pre-industrial levels.[7] While not directly enforceable as a matter of domestic law, the Agreement has functioned as a critical normative standard against which UK climate actions are judicially evaluated, informing judicial reasoning in landmark domestic cases.

STRATEGIC CLIMATE LITIGATION: JUDICIAL SCRUTINY OF GOVERNMENTAL ACTION

The most consequential strand of UK climate litigation involves public law challenges to governmental decision-making. These cases deploy judicial review to examine whether executive action – or inaction – is compatible with statutory climate obligations, generating a growing body of jurisprudence that is reshaping the relationship between law and climate governance.

In R (Friends of the Earth Ltd) v Heathrow Airport Ltd[8], the Supreme Court considered whether the Airports National Policy Statement, which designated a third runway at Heathrow, was lawful, having regard to the government’s climate commitments. The Court of Appeal had previously found the statement unlawful on the basis that it failed to take adequate account of the Paris Agreement and domestic climate targets.[9] The Supreme Court reversed this finding, holding that the Secretary of State had adequately addressed these matters within the applicable policy framework.[10] Although the substantive outcome disappointed environmental advocates, it crucially confirmed that government policy instruments must engage meaningfully with international climate commitments – a principle of enduring normative significance.

Of greater practical impact was the R (Friends of the Earth Ltd) v Secretary of State for Business, Energy and Industrial Strategy[11], in which the High Court found the government’s Net Zero Strategy – its principal mechanism for delivering against statutory carbon budgets – to be unlawful. The court held that the Secretary of State had failed to comply with section 13 of the CCA 2008[12], which requires policies to demonstrate, with sufficient specificity, how carbon budgets will in fact be met.[13] This decision is legally significant: it represents a direct judicial finding that the government’s flagship climate strategy was inadequate, compelling the executive to produce a more substantively rigorous revised plan. It demonstrates that where statutory obligations are sufficiently precise, domestic courts are willing to impose meaningful accountability upon the executive, even in respect of complex matters of environmental policy.

The willingness of courts to intervene in such cases reflects a broader global trend. As Setzer and Higham observe[14], climate cases challenging the adequacy of national climate plans – so-called ‘framework’ cases – represent an increasingly prominent and strategically sophisticated form of environmental advocacy, with significant implications for the relationship between courts and democratic institutions.

THE HUMAN RIGHTS DIMENSION: ECHR, CLIMATE CHANGE, AND JUDICIAL REACH

The relationship between climate change and human rights has acquired increasingly legal salience, with the European Court of Human Rights (ECtHR) emerging as a significant forum for climate accountability. The landmark judgement in KlimaSeniorinnen Schweiz and Others v Switzerland[15] represents the first occasion on which the ECtHR found a state to have violated the Convention through inadequate climate action. The Grand Chamber held that Switzerland had failed to meet its positive obligations under Article 8 of the European Convention on Human Rights – the right to respect for private life and family life[16] – by failing to implement a sufficient legal and administrative framework to combat climate change, thereby exposing elderly women applicants to disproportionate heat-related health risks.[17] The court articulated that states must adopt, and effectively apply in practice, regulations and measures capable of mitigating the existing an potentially irreversible future effects of climate change upon individuals’ Convention Rights.

Although the Court decided against Switzerland, the KlimaSeniorinnen judgement carries profound implications for the United Kingdom. As a state bound by the ECHR and subject to the Human Rights Act 1998[18] through which Convention rights are incorporated domestically[19], the UK remains susceptible to analogous rights-based challenges. Should claimants demonstrate that domestic climate policies are insufficient to protect Convention rights from climate-related harm, Article 8[20] – and potentially Article 2, which protects the right to life[21]– could provide a basis for challenge both in domestic Courts and at Strasbourg.

The Dutch Urgenda case illuminates this human rights pathway with particular clarity. The Supreme Court of the Netherlands upheld an order requiring the Dutch state to reduce greenhouse gas emissions by at least 25% by 2020 relative to 1990 levels, grounding its reasoning in Articles 2 and 8 of the ECHR.[22] The court’s reasoning – that states bear the positive obligations to protect individuals from the foreseeable risks of climate change[23] – has proven highly influential across jurisdictions, generating strategic adaptation by litigants in the United Kingdom and beyond.

CORPORATE CLIMATE ACCOUNTABILITY: PRIVATE LAW AND INSTITUTIONAL RESPONSIBILITY

Beyond, public law, an emergent strand of UK climate litigation targets the private sector, seeking to impose accountability upon corporations whose activities contribute to climate change or whose governance structures inadequately address transition risk. This dimension of climate law is developing rapidly, though its trajectory in English courts remains nascent.

The case of ClientEarth v Shell Plc[24], decided by the High Court in 2023, represents the most significant attempt to date to deploy company law in service of climate accountability. ClientEarth, acting as a minority shareholder in Shell, sought to hold the company’s directors personally liable for mismanaging climate-related risks, arguing that the board’s energy transition strategy was inadequate and inconsistent with directors’ duties under the Companies Act 2006.[25] The High Court dismissed the claim, finding that the directors has exercised their business judgement within the lawful bounds of their discretion and that courts should not substitute their assessment for that of the board on complex questions of corporate strategy.[26]  While the outcome was unfavourable for the claimant, the case materially advances legal discourse surrounding the intersection of directors’ duties and climate risk, and may inform the framing of more refined future claims.

The question of pension fund trustees’ obligations in relation to climate risk has similarly garnered legal attention. The Law Commission’s guidance confirmed that trustees may – and in some circumstance must – consider financial, material, environmental, social and governance (ESG) factors in investment decisions.[27] As climate-related financial risks become increasingly acute, the prospect of trustee liability for failing to adequately address them represents an evolving frontier of climate accountability in private law.

POST-BREXIT ENVIRONMENTAL GOVERNANCE: INSTITUTIONAL GAPS AND STRUCTURAL CHALLENGES

Brexit has introduced significant structural uncertainties into the United Kingdom’s environmental governance landscape. The loss of access to EU enforcement mechanisms – in particular the European Commission’s power to bring infringement proceedings against member states, and the supervisory jurisdiction of the Court of Justice of the European Union – has created a material accountability deficit in domestic environmental law. The OEP was designed to fill this void.[28] However, its mandate is considerably narrower than that of the EU institutions it is intended to replace.

Critics have highlighted that the OEP’s enforcement architecture is compromised by a duty to act proportionately and to have regard to the government’s own environmental improvement plans,[29] a provision that risks undermining institutional independence. Moreover, the OEP cannot directly impose financial penalties; it may only seek declaratory relief through legal proceedings, a remedy whose deterrent effect against well-resourced public authorities is limited. Academic commentators have argued that this architecture replicates a familiar failure mode of environmental governance: normative ambition underpinned by inadequate enforcement capacity.[30]

This institutional weakness is particularly acute in the context of climate litigation. Without equivalent enforcement mechanisms to those provided by EU law, domestic claimants bear disproportionate responsibility for maintaining governmental compliance with environmental obligations through litigation – a burden that entails considerable financial and procedural costs, and that is not equitably distributed across civil society.

CONCLUSION

In conclusion, strategic climate litigation in the United Kingdom has evolved from peripheral advocacy into a legally sophisticated and politically consequential field of practice. The statutory precision of the Climate Change Act 2008 has enabled courts to hold the executive accountable for the inadequacy of its climate strategies. Furthermore, the developing human rights jurisprudence of the ECtHR augments the normative foundation upon which future challenges may be mounted. While, corporate accountability litigation, though yet unsuccessful in its direct objectives, is progressively shaping legal discourse surrounding directors’ duties and institutional governance.

Nevertheless, the transformative potential of climate litigation in the United Kingdom remains constrained by persistent structural limitations: the justiciability boundaries of judicial review, the circumscribed enforcement powers if the OEP, and the reluctance of courts to engage with positive climate obligations beyond the parameters of statutory compliance means that the law, ultimately, must be able and has the duty to respond to the demands of a changing climate. The courtroom alone cannot and should not bear the weight of the climate emergency; but as an instrument of accountability, it is becoming increasingly dispensable.

BIBLIOGRAPHY

Primary Sources – Legislation

Climate Change Act 2008.

Climate Change Act 2008 (2050 Target Amendment) Order 2019, SI 2019/1056.

Companies Act 2006.

Environment Act 2021.

Human Rights Act 1998.

Primary Sources – International Instruments

Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended).

Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) UNTS 3156.

Primary Sources – Cases

ClientEarth v Shell Plc [2023] EWHC 1137 (Ch).

KlimaSeniorinnen Schweiz and Others v Switzerland App no 53600/20 (ECtHR Grand Chamber, 9 April 2024).

R (Friends of the Earth Ltd) v Heathrow Airport Ltd [2020] UKSC 52.

R (Friends of the Earth Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841 (Admin).

R (Friends of the Earth Ltd) v Secretary of State for Transport [2020] EWCA Civ 214.

Urgenda Foundation v State of the Netherlands (Supreme Court of the Netherlands, 20 December 2019) ECLI:NL:HR:2019:2007.

Secondary Sources – Books

Peel J and Osofsky HM, Climate Change Litigation: Regulatory Pathways to Cleaner Energy (CUP 2015).

Secondary Sources – Journal Articles

Sands P, ‘Climate Change and the Rule of Law: Adjudicating the Future of International Law’ (2016) 28 Journal of Environmental Law 19.

Secondary Sources – Reports and Other Sources

Law Commission, ‘Fiduciary Duties of Investment Intermediaries’ (Law Com No 350, 2014).

Setzer J and Higham C, ‘Global Trends in Climate Change Litigation: 2023 Snapshot’ (Grantham Research Institute on Climate Change and the Environment, LSE 2023).

[1] Climate Change Act 2008, s 1 (as amended by the Climate Change Act 2008 (2050 Target Amendment) Order 2019, SI 2019/1056).

[2] Ibid Climate Change Act 2008.

[3] Climate Change Act 2008, ss 4–10.

[4] Environment Act 2021.

[5] Environment Act 2021, s 22.

[6] Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) UNTS 3156.

[7] Paris Agreement, art 4(1).

[8] R (Friends of the Earth Ltd) v Heathrow Airport Ltd [2020] UKSC 52.

[9] R (Friends of the Earth Ltd) v Secretary of State for Transport [2020] EWCA Civ 214.

[10] Heathrow (n 5) [119]–[121] (Lord Reed P).

[11] R (Friends of the Earth Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841 (Admin).

[12] Climate Change Act 2008, s 13.

[13] Friends of the Earth (n 8) [229]–[231] (Holgate J).

[14] Joana Setzer and Catherine Higham, ‘Global Trends in Climate Change Litigation: 2023 Snapshot’ (Grantham Research Institute on Climate Change and the Environment, LSE 2023) 14–16.

[15] KlimaSeniorinnen Schweiz and Others v Switzerland App no 53600/20 (ECtHR Grand Chamber, 9 April 2024).

[16] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) 1953, art 8.

[17] KlimaSeniorinnen (n 12) [519]–[545].

[18] Human Rights Act 1998.

[19] Human Rights Act 1998, s 6.

[20] Ibid (ECHR) 1953, art 8.

[21] ECHR 1953, art 2,

[22] Urgenda Foundation v State of the Netherlands (Supreme Court of the Netherlands, 20 December 2019) ECLI:NL:HR:2019:2007.

[23] Ibid [5.2.1]–[5.7.10].

[24] ClientEarth v Shell Plc [2023] EWHC 1137.

[25] Companies Act 2006, ss 172–174.

[26] ClientEarth (n 18) [95]–[99] (Trower J).

[27] Law Commission, ‘Fiduciary Duties of Investment Intermediaries’ (Law Com No 350, 2014) paras 6.25–6.30.

[28] Environment Act 2021, ss 22–49.

[29] Environment Act 2021, s 24(2).

[30] Jacqueline Peel and Hari M Osofsky, Climate Change Litigation: Regulatory Pathways to Cleaner Energy (CUP 2015) 8–12.