Climate litigation comes to Switzerland
For the first time, a climate litigation case has opened in Switzerland. It could pave the way for more loss-and-damage cases to be tried in the Alpine country.
A cantonal court at scenic Lake Zug in Switzerland may soon become the site of a showdown over who must pay for climate change. In July, four residents of Pari Island in Indonesia launched civil proceedings against the world’s biggest cement producer, Holcim, for historical CO2 emissions and their contribution to rising sea levels.
At the heart of the claim is a calculation by the Climate Accountability InstituteExternal link. The organisation estimates that Holcim, headquartered in Switzerland and specialised in cement-production activities ranging from quarrying to transportation, has emitted more than 7 billion tonnes of CO2 since 1950. This accounts for 0.42% of global industrial CO2 emissions since 1750, a report published by the institute shows. As a comparison, Switzerland emits 43.4 million tons of CO2 per year.
This is the first time a suit has been filed against a company in Switzerland for its impact on climate change. As climate litigation cases rise globally against major polluters, the Holcim case could open the doors to similar claims filed in Switzerland. Besides Holcim, commodity trader Glencore also appearsExternal link on Climate Accountability Institute’s list of major carbon emitters.
The NGO that commissioned the report, Swiss Church Aid HEKS, is using the 0.42% figure to support the four Pari Island residents in their proceedings. They claim that Holcim must pay pro rata for its historical contribution to climate change, which means covering 0.42% of the flooding damage on Pari Island incurred by the four residents — or about CHF3,500 ($3,767) per person. With this amount, residents aim to co-finance adaptation measures like planting mangrove trees and building dams to control future floods, according to HEKSExternal link.
The four Pari Island residents are also demanding that Holcim “immediately and significantly” reduce its global CO2 emissions in order to limit global warming to 1.5°C, as was inked in the Paris Agreement in 2015. Running under the heading, “A call for climate justiceExternal link,” the case is part of a campaign by HEKS in collaboration with the European Centre for Constitutional and Human Rights and an environmental NGO based in Indonesia. They aim to use legal pathways to step up political pressure to address climate change.
Holcim stressed the importance of a global multilateral response to climate change when asked to comment on the court case.
Steep Rise in Cases Worldwide
More is at stake than just payments from Holcim to the Pari residents. A ruling in favour of the residents would set a consequential precedent for similar claims, both in Switzerland and globally.
“The claim can be seen as novel and unprecedented, as it combines two approaches: reduction of greenhouse gases and compensation,” writes the Sabin Centre for Climate Change Law at Columbia University in a paper on the caseExternal link by. A review by the London School of EconomicsExternal link shows that litigation is increasingly becoming an instrument to enforce climate commitments made by governments.
Columbia University’s databaseExternal link lists more than 2,000 proceedings before judicial bodies that focus on climate change law, policy or science. While most of these cases have been filed in the United States, climate litigation cases are ongoing in over 40 countries, predominantly industrialised ones. However, claims are also growing in developing countries, as the latest report by the Intergovernmental Panel on Climate Change (IPCC) notesExternal link.
A reportExternal link by the UN Environment Programme (UNEP) found that climate cases had nearly doubled between 2017 and 2020; most are based on alleged violations of the right to life, health or other fundamental human rights. A quantitative review of the proceedings shows that over half have obtained outcomes favourable to climate action. Most cases are brought against governments. Two cases that stand out in this category are a 2019 decisionExternal link by the Dutch Supreme Court that ordered The Netherlands to reduce greenhouse gas emissions more ambitiously, and a 2021 rulingExternal link by the German Federal Constitutional Court that forced the country to advanceExternal link its net zero targets by five years. These proceedings inspired casesExternal link around the world that challenge governments’ frameworks to address climate change.
They have now spilled over to the private sector. The focus is on so-called “carbon majors”External link — the hundred or so companies that account for more than 70% of global greenhouse gas emissions since the dawn of the industrial age, according to a disclosure databaseExternal link.
In The Netherlands, the court that originally deemed the state’s climate protection measures insufficient also ordered oil giant Royal Dutch Shell to reduce its emissions. Seen as a landmark rulingExternal link, the court explicitly cited the Paris climate agreementExternal link and anticipatedExternal link “far-reaching consequences” for the company. In Germany, an NGO filed cases against car makers BMWExternal link, Mercedes-BenzExternal link and VolkswagenExternal link in 2021, building on the successful precedent against the German government.
The blueprint for the case against Holcim in Switzerland dates back even further: to 2015, when a Peruvian farmer demandedExternal link that Germany’s largest electricity producer, RWE, compensate him for having to protect his town against a melting glacier. He did not ask to be reimbursed for the full cost, but for a very specific share of it — 0.47%, the portion RWE is estimated to have contributed to global industrial greenhouse gas emissions since industrialisation began.
On appeal, a German court acknowledged the concept of historical responsibility. In May 2022, in what has been described as an unprecedented move, German judges travelled to PeruExternal link to examine the threat of flooding from the glacier and assess how RWE’s emissions contributed to that specific risk.
The jury is still out
Loss and damage and the creation of a new fund to compensate countries that have suffered the most severe effects of climate change was the defining topic at COP27, this year’s international climate conference held in November in Egypt. Campaigners like HEKS see compensations as a requirement of “climate justice” and demand that those who caused global warming bear responsibility for its consequences. They present the legal avenue for achieving this.
Anne Saab, an associate professor of international law at the Geneva Graduate Institute, sees a possibility that litigation against “carbon majors” such as Holcim will play a role in securing compensations and financing measures like flood protection.
“I think there is a real chance to settle questions of loss and damage through legal action, even if most settlements will be reached out of court in conciliation,” she writes in an email to SWI swissinfo.ch. Litigation could thus complement more comprehensive state action on loss and damage, Saab adds.
Counter-intuitive as it may sound, the law scholar does not rule out that companies could be held liable for emissions that occurred in the context of a legal business activity in the past. “Climate science plays an important role in climate litigation,” explains Saab. “For liability, it matters if an actor can be reasonably expected to have known about the harm caused by its greenhouse gas emissions, and since when.”
Other law experts are more sceptical. “If emissions were legal under local and Swiss law at the time they occurred, liability is hardly possible,” says Walter Stoffel, Emeritus Professor of Economic and Private International Law at the University of Fribourg, Switzerland. “However, international norms also matter for the question of legality, and they are evolving,” he adds. “A company may not have to pay for damages, but still be forced to change its behaviour, if this has not happened already.”
Courts will examine if claimants like the Pari Island residents can prove that the damage they suffered was caused by the company they aim to hold to account. In the Swiss case, claimants aim to establish this in three steps, as their lawyer, Laura Duerte, explained at a COP27 side event: linking the company’s activity to damage of the atmosphere by calculating its contribution to global industrial emissions, showing that atmospheric changes cause sea levels to rise, and proving that rising sea levels cause floods and specific damage.
More than a legal affair
But bringing companies to the courtroom is not a silver bullet for settling the question of loss and damage from climate change. The legal route is not only used to further climate protection, but also to hamper itExternal link. In an example of such “backlash litigation”, RWE sued The NetherlandsExternal link for its plan to phase out coal production, demanding compensation.
Saab acknowledges that only a very small number of individuals may receive compensation by court order — those who are supported by international NGOs, that master foreign legal systems and can finance long-term proceedings. There is a strong political dimension to the legal trend, Saab explains: “Naming and shaming corporations can be more powerful than winning a case in a court. Climate change litigation is much more than a purely legal affair.”
In the Swiss case supported by HEKS against Holcim, mandatory conciliation failed in October. “The positions of the parties were too far apart,” writes lawyer Laura Duarte in a text message to SWI. The residents of Pari Island in Indonesia now have until the end of January 2023 to submit their claim to the cantonal court of Zug, the next stage of civil proceedings.
Ariane Lüthi is a former diplomat and human rights specialist with Holcim. She has been working as a journalist since 2020.
Edited by Virginie Mangin/gw
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