This article was written by and for the C40 Knowledge Hub, delivering cutting-edge insights and practical resources from leading climate cities directed at those working in city government. It was originally published here in August 2021. We’re featuring the article with kind permission by the C40 Knowledge Hub.
Legal intervention is a powerful means of removing barriers to cities’ climate ambitions, protecting residents and assets, and bringing about transformational system and policy change. They can strengthen and uphold national action, enforce the implementation of national policy, alter laws to enable city-level actions, clarify city powers, influence corporate activity and more. Not only can legal intervention help your city to undertake more ambitious climate action, but it can also help other cities in the same jurisdiction that face similar hurdles. Moreover, it can send a strong political message, drawing public attention to the issue at hand and leading to impact beyond the city’s borders.
This article provides examples of how city governments can use three types of legal intervention – litigation, legal reform initiatives and pioneering city policies or legislation – and outlines key elements that cities should consider. Legal Interventions: How Cities Can Drive Climate Action is the foundation for this article (a selection of the legal actions that feature in the report can be found at the end of this page) and we highlight resources from leading actors in the field that can support cities in their legal proceedings.
Seek Legal Advice to Develop Pioneering City Policies
When cities pursue new and ambitious climate policies, their pioneering work can demonstrate what is possible, pave the way for others to follow suit and influence markets and other levels of government. However, these policies can face significant legal hurdles, particularly when they go further than existing regional or national policy, test the scope of the city’s authority or explore a new area of policymaking.
To navigate these issues, city policymakers can enlist the help of colleagues in city legal teams and engage external specialist legal counsel where required. Detailed legal analysis and advice is crucial to understanding what is feasible, as well as how to craft robust policies or legislation that can withstand any legal challenges that may arise. Consider partnering with neighbouring municipalities to share the cost of legal advice, expertise and other resources. If the city is required to defend the policy in court, this process can have benefits too. A legal challenge provides an opportunity to clarify the city’s powers within the scope of the law and a platform to publicly explain the climate, health, economic and other benefits of the policy in question.
Legal advice can also help to make the city’s climate action plan (CAP) as binding as possible, holding the city accountable for the commitments and targets in its CAP and making it difficult for future administrations to reverse or ignore them. This will be especially important where the level of ambition of a city’s CAP exceeds that of the Nationally Determined Contribution (NDC).
Read Legal Interventions to discover how cities are using pioneering policies and legislation to restrict the expansion of fossil fuel infrastructure, reduce emissions from new and existing buildings, implement zero-emission areas and to ban single-use plastic items. The boxes give two examples.
Berkeley’s Natural Gas Ban Held Up in Court, Encouraging Adoption of Similar Policies Elsewhere
In July 2019, Berkeley, California passed an ordinance banning natural gas infrastructure in new buildings – the first of its kind in the United States. Burning natural gas accounts for 27% of the city’s emissions, and the ban curbs reliance on gas by requiring the installation of all-electric appliances in new developments. It survived a high-profile legal challenge brought by the California Restaurant Association (subject to possible appeals and state court claims), with the District Court determining that Berkeley’s ordinance is not pre-empted by the national Energy Policy & Conservation Act. As of June 2021, 46 cities in the state had new building codes to reduce their reliance on natural gas and other cities across the country are now exploring similar measures.
Four South African Cities Jointly Assess Ways to Meet Commitments for Net-zero New Buildings by 2030
The cities of Tshwane, Johannesburg, Cape Town and Durban have been working together to assess the legal feasibility of municipal by-laws to implement building energy efficiency requirements that are more stringent than national regulations. It can be argued that the cities have constitutional authority to enact such bylaws, provided they complement, add to and enhance national building regulation requirements rather than contradict or oppose them. However, the legal feasibility assessment will strengthen both their design and impact.
Collaborate to Build a Powerful Coalition to Advocate for Legal Reform
Strategic engagement with government bodies at national and regional level is a route to removing barriers to cities’ climate policymaking and to amending laws that hinder national progress. This can mean seeking to clarify where the city’s legal powers on certain climate actions are unclear, offering expertise and evidence for the development of new legislation or entering into dialogue with relevant government bodies to find a mutually agreeable solution. Again, this should be informed by legal advice that identifies how specific policies, laws and regulations need to change. Efforts to drive change can go to the courts if engagement doesn’t deliver the desired outcome.
Cities can consider collaborating with other cities and organisations to make proposals and advocate for legal reform; a coalition may have greater impact. For example, Krakow, together with a coalition of non-governmental organisations and citizens, successfully campaigned for a change to the national environment law that has made it possible for the city to bring into force a ban on the burning of solid fuels for heating, as well as stoves and fireplaces. Motivated primarily by the need to improve air quality, the campaign came after the first ‘Krakow coal ban’ was defeated in court. Legal Interventions explains the full story.
Use the Power of Collective Action and Group Advocacy for All Forms of Legal Action
Bringing legal action together with other cities, civil society organisations or other actors often helps to increase impact and strengthen cases. City-city collaboration can be especially valuable for small and mid-sized municipalities which may have more limited capacity and political clout. Better together: How cities can collaborate for faster, more effective climate action looks more closely at this approach. Participation in relevant networks and initiatives can open doors for legal action. Read more about how to deepen and expand your city’s engagement in international and collaborative policy processes in How to advance your city’s climate action through city diplomacy.
Become Familiar with Climate Laws, Policies and Litigation Cases
ClientEarth, AIDA, the Sabin Center for Climate Change Law and the Center for Climate Integrity are examples of expert environmental law organisations active globally. Browse their websites for inspiration on the types of legal action your city may be able to take or become involved in, or to access their expertise.
There are also several databases to explore, two of which are global and one specific to the United States:
- Climate change laws of the world is managed by the Grantham Research Institute on Climate Change and the Environment at the London School of Economics and Political Science (LSE). It details more than 2,000 climate laws and policies and over 1,800 climate litigation cases.
- The Climate Case Chart climate change litigation databases and the Climate Attribution Database, run by the Sabin Center for Climate Change Law provides databases of United States climate change litigation and climate change litigation outside of the United States, both organised by type of claim. The Sabin Center has also developed resources on issues including municipal building decarbonisation, natural gas bans, legal tools for achieving low traffic zones and the role of attribution science in climate-related takings cases in the United States.
Consider Affirmative Litigation Against Governments or Corporations and Join the Growing Global Movement
Where engagement and advocacy do not or cannot deliver the change needed, litigation offers cities another means of changing the system.
Litigation can be used to raise the ambition of national and regional government climate plans, address failure to implement or enforce government policy (also by challenging planned high-carbon projects that undermine climate commitments) and prevent the weakening of existing regulation. It can also be a way to challenge corporate practices that contribute to climate change and its associated negative impacts or to seek climate damages. Hear from the Center for Climate Integrity about what this means and how cases have progressed in the United States, or from Honolulu for a city viewpoint. Cities can bring their own action and/or play a supporting role, either by joining lawsuits as co-plaintiffs, lending support to a case as an interested party or voicing their support for a case.
The scope and scale of climate litigation is increasing, with more than 1,800 cases filed by local governments, non-governmental organisations, corporations, individuals and other actors in over 40 countries as July 2021.1 The majority of climate litigation cases to date have been brought in the Global North, with most in the United States, but Global South cases are also on the rise. As of May 2021, 58 had been identified in 18 Global South jurisdictions, of which 11 had been filed in 2020 alone.2 These cases are setting precedents, testing arguments and building momentum and insights that can benefit cities considering new litigation. The London School of Economics’ Global trends in climate change litigation: 2021 snapshot explains how this movement has developed and new and emerging trends.
Number of climate litigation cases as of the end of May 20213
The following advice can be drawn for cities from climate litigation trends and experience:
- Seek legal advice. Learning from other city-led or -supported litigation efforts can help to understand what is possible and how it can be achieved, but legal analysis is needed to determine local options. Begin by assessing, with the help of legal experts, the feasibility and potential local benefits of litigation. This is likely to involve considering issues such as admissibility, causation, sources of climate obligation and separation of powers – read page 14 of Legal Interventions for an explanation of these issues, all of which will be familiar to lawyers.
- Consider joining lawsuits initiated by others. As well as taking their own legal action, cities can play a supporting role by joining lawsuits as co-plaintiffs, supporting a case as an interested party or voicing support for a case. The growing number of climate-related cases, most of which are not led by cities, show the many opportunities cities have to participate in or support lawsuits initiated by others.
- Consider working with other cities and organisations that share the same goals to build strong case support. This can take the form of collaboration as a local, regional or global coalition, or cumulative action where multiple cities bring similar cases on the same issue or against the same defendants.
- Use new and existing legislation creatively. Existing legislation on human and constitutional rights, air quality and other issues relating to climate change and its negative effects can provide avenues to pursue climate litigation. New climate-related laws and policies at national or regional level also create scope for more legal interventions where those laws and policies are not fully implemented or enforced, or where there is a conflict between a government’s climate commitments and other laws, policies or projects.
- Connect claims with the city’s adaptation planning. Where the city is seeking damages for the impacts of climate change and adaptation costs, a robust climate change risk assessment and adaptation plan will be important inputs, proving evidence of specific climate impacts and adaptation costs.
- Persevere. It is not uncommon for cases to go through several stages of court proceedings before the plaintiff achieves the desired outcome. Even when a lawsuit is unsuccessful, it can still be valuable for clarifying the scope of possible city actions, as well as raising awareness of the issue and building momentum for change. Lawsuits can also delay the implementation of high-carbon projects or policies, even if they aren’t halted, which can provide time for government or investor decisions to shift. By exploring what is possible within the scope of the law in a particular jurisdiction, such lawsuits provide useful information that may enable a different case to be brought that could have a more successful outcome.
- Consider focusing on alleged misconduct for corporate litigation cases. Experience suggests that cases alleging misconduct can be more successful than those that focus on greenhouse gas (GHG) emissions and damages suffered, especially where negative impacts are difficult to attribute to a specific defendant’s GHG emissions. In this context, misconduct might mean misinformation (including corporate greenwashing), failure to warn (negligence), a breach of fiduciary duty, a deliberate breach of regulations or favouring high-polluting products for investment and advertising. ClientEarth’s Greenwashing Files can support claims by providing evidence and analysis on greenwashing by the biggest fossil-fuel companies.
- Use your pension funds. As well as divesting from fossil fuel-intensive industries, city pension funds can be proactive institutional investors in major polluting corporations and insurance companies, using their legal standing as shareholders to change their practices. Follow the links for more on how cities can seek impact through divestment and insurance.
Find out more in Legal Interventions: How Cities Can Drive Legal Action
Legal Interventions: How Cities Can Drive Climate Action, the foundation of this Knowledge Hub article, details examples of legal action by cities, non-governmental organisations and other actors across all three forms of legal action that can inform and inspire similar action elsewhere. The highlighted legal actions by cities in the report include:
- A 2005 case bought by 12 states, three cities and a coalition of civil-society organisations against the United States Environmental Protection Agency, which successfully argued for GHG regulation under the Clean Air Act, thus using existing legislation to improve climate protections.
- A series of cases brought by environmental lawyers ClientEarth since 2015 to challenge the United Kingdom’s air quality plans, to which the Mayor of London was an interested party. London submitted statements and evidence that strengthened the resulting judgement. Ultimately, the challenges resulted in Clean Air Zones, or proposals for zones, in English cities including Birmingham, Greater Manchester, Leeds, Sheffield and Bath.
- Cape Town’s efforts to be allowed to procure renewable energy, which began with a clarification request to the Minister for Energy in 2015 and has since gone to court. The case is keeping this critical issue in the spotlight while the national government deliberates on allowing municipalities – which together account for 40% of the country’s electricity use – to procure renewable energy from independent power producers.4
- Legal action against fossil fuel companies taken by 26 cities, counties and states in the United States, alleging liability for climate change damages, to pay for adaptation measures. One of those plaintiffs is the City and County of Honolulu. Hear from Josh Stanbro, who has worked as both Honolulu’s Chief Resilience Officer and Policy Director for the City Council, in Who should foot the climate bill in your city? The fossil fuel industry.