Cases of people seeking climate justice on the rise, says report

Kenyan cases are part of the growing number of climate change cases which have since doubled since the first report on the issue, from 884 in 2017 to 2,180 in 2022. [iStockphoto]

Kenya is among countries where cases of people seeking to secure climate action and justice is on the rise.

The country now has two cases listed in the global climate litigation database in the just-released report by the UN. The two cases are part of the 2,180 key litigation cases documented in the new report titled, Global Climate Litigation Report: 2023 Status Review.

One of the cases documented in the Global Litigation Databases features members of Ilchamus and Tugen communities living on the shores of Lake Baringo who together with Kituo cha Sheria (a Kenyan Human Rights Non-Governmental Organization) have filed a climate change petition.

The two communities through lawyer Robert Owino sued the government for the impacts of climate change flooding in Lake Baringo.

They argued that despite Kenya being a signatory to treaties including the UN Framework Convention on Climate Change 1992, the Kyoto Protocol 1997, the Paris Agreement 2015, and the African Charter on Human and People’s Rights 1981 among others, it has failed to mainstream climate change responses. They also blamed the government for failing to build their resilience and adaptive capacity to the impacts of climate change.

Another case featured in the database is trying to find out whether the National Environmental Management Authority (NEMA) violated public participation requirements in issuing a license to construct a coal-fired power plant in Lamu and whether a coal company’s environmental impact assessment adequately considered climate change and other factors.

The two climate litigations are part of the cases focused on climate change law, policy or science collected up to 31 December 2022 by the Sabin Center’s US and Global Climate Change Litigation Databases. The Kenyan cases are part of the growing number of climate change cases which have since doubled since the first report on the issue, from 884 in 2017 to 2,180 in 2022.

The findings of the report were published by the UN Environment Programme (UNEP) and the Sabin Center for Climate Change Law at Columbia University.

“Climate policies are far behind what is needed to keep global temperatures below the 1.5°C threshold, with extreme weather events and searing heat already baking our planet,” said Inger Andersen, Executive Director of UNEP.

Andersen added that people are increasingly turning to courts to combat the climate crisis, holding governments and the private sector accountable and making litigation a key mechanism for securing climate action and promoting climate justice.  

According to the report, climate litigation is becoming an integral part of securing climate action and justice.

The report reviewed legal actions that were brought in 65 bodies worldwide: in international, regional, and national courts, tribunals, quasi-judicial bodies, and other adjudicatory bodies, including special procedures of the UN and arbitration tribunals.  

It demonstrated how courts are finding strong human rights linkages to climate change in a move to protect the most vulnerable groups, as well as increase accountability, transparency, and justice. It also demonstrates how courts are compelling governments and corporations to pursue more ambitious climate change mitigation and adaptation goals.

The report also provides an overview of key climate litigation cases from the past two years, including historic breakthroughs.

It notes that while most cases have been brought in the US, climate litigation is taking root worldwide, with about 17 per cent of cases now being reported in developing countries, including Small Island Developing States.

Michael Gerrard, Sabin Center’s Faculty Director said the report will be an invaluable resource for everyone who wants to achieve the best possible outcome in judicial forums and to understand what is and is not possible there.

The report demonstrates how the voices of vulnerable groups are being heard globally. Of these cases, 34 cases have been brought by and on behalf of children and youth under 25 years old, while in some, plaintiffs are making their case based on the disproportionate impact of climate change on senior women.  

Other cases have challenged government decisions based on a project’s inconsistency with the goals of the Paris Agreement or a country’s net-zero commitments.

As per the report, growing awareness of climate change in recent years has also spurred action against corporations including cases seeking to hold fossil fuel companies and other greenhouse gas emitters responsible for climate harm.

The report now predicts a rise in the number of cases dealing with climate migration, cases brought by Indigenous peoples, local communities, and other groups disproportionately affected by climate change, and cases addressing liability following extreme weather events.

Kenya has been among the African countries pushing for the creation of loss and damage financing.