2024 in review: strategic litigation

In 2024, strategic litigation continued to have an impact on decision making, policy setting and changes in the law. Decisions in a number of high-profile cases are likely to have far reaching implications for governments and organisations over the course of 2025 and beyond. In this blog we discuss several significant judgments and what they might mean going forward.

Challenging the state on climate action

In April 2024, KlimaSeniorinnen Schweiz v Switzerland saw a group of women with an average age of 73 complain to the European Court of Human Rights (ECHR) that Switzerland had failed to fulfil its obligations to protect their health and living conditions because of the state’s failure to take action to limit climate change and global warming. The EHRC agreed that their rights had been violated; it cited critical gaps in domestic regulatory frameworks and past failures by Switzerland to comply with its greenhouse gas reduction targets. The judgment stated that Switzerland had not acted in a timely and adequate manner to draft, develop and implement appropriate legislative changes to allow them to meet their obligations to combat climate change.

While there have increasingly been successful challenges to governments’ failures to address climate action, this is the first time an international court has ruled that state inaction related to climate change violates human rights. While the case does not set a binding precedent on all countries, it does highlight the increased appetite to bring strategic litigation to challenge governmental climate policies through the courts, leading to public scrutiny and sometimes – as in this case – damning assessment. That the victory also demonstrates that climate action is not the exclusive province of the young, is to be welcomed and celebrated. 

Picking up the baton, in the UK, the High Court allowed a judicial review of the adequacy of the government’s national climate adaptation plan following legal challenge from Friends of the Earth, who said the plan falls short of protecting people, property and infrastructure from the impacts of climate change. While the challenge was rejected later in the year, an appeal has been filed, with the decision expected early in 2025.

Targeting polluters and policy decisions directly

Campaigners are increasingly turning the spotlight directly onto polluters themselves, including water companies and organisations in the agricultural sector. Legal challenges are seeking to test and strengthen the protections set out in existing law, alongside campaigns pushing for legislative change. The Supreme Court’s decision in the Manchester Ship Canal litigation – a private claim brought by the canal owner against United Utilities, in which the Environmental Law Foundation intervened – confirmed that parties can bring claims in nuisance and trespass against polluting water companies, even absent negligence or deliberate misconduct. The ruling has potentially opened the floodgates for a new class of claims against the water companies.

River Action’s 2024 challenge to the Environment Agency’s stewardship of the River Wye failed in court, but its awareness-raising campaign has achieved significant success; it is now supporting a group claim against Avara Foods, whose industrial scale chicken farming is said to be the largest cause of phosphorous pollution in the river.

In December 2024, judgment was handed down in The Humane League UK v Secretary of State for Environment, Food and Rural Affairs (Defra) on whether Defra’s failure to develop a policy on using fast-growing breeds of chicken (broilers) is unlawful and breaches welfare regulations. While the appeal was rejected because the Court was not in a position to rule on the science, the judgment corrected the High Court’s erroneous interpretation of the law, creating a strong foundation for any future challenges to the keeping of broiler chickens (as well as a strong impetus for legislative change). You can read more in our press release found here.

In a further example, the Supreme Court ruled in Finch v Surrey County Council that the true environmental impact of fossil fuel projects in the UK must be taken into account in planning decisions. The landmark ruling held that the decision of the Council to grant planning permission for an oil production project was unlawful, because its environmental impact assessment (EIA) only considered the emissions that would be produced by the process of extracting the oil; it should also have considered the “downstream” or “scope 3” emissions that would be generated by the subsequent burning of the oil.

This case is a prime example of how targeted strategic litigation, focusing on issues which will reverberate broadly, can be a powerful tool for campaigners. Finch’s impact on energy planning decisions is already being felt, and its potential application to other industries / contexts may soon be tested.

Continuing to test aspects of the Equality Act

The Equality Act is broad in scope and subject to frequent re-interpretation as it arises in new contexts. We continue to work with clients who are at the coalface of challenges under the provisions of the Act. In particular, there is a rapidly evolving legal clash between gender-critical beliefs and the rights of trans people. We acted for the Green Party earlier in 2024 in the case of Ali v representatives of the Green Party of England and Wales, which saw the claimant challenge the Party for removing him as a spokesperson because of his gender critical beliefs.

While the judge found that the removal of the claimant from the Party had been procedurally unfair, he was careful to specify that it is explicitly not discriminatory for a political party merely to remove a spokesperson on the grounds of (in this case, gender critical) belief, provided it follows a fair procedure in doing so. He stated “The Green Party could not, in any event, have been compelled to maintain Dr Ali as a spokesperson if (outside of a party election period) he expressed beliefs that were inconsistent with Party policy, or if they reasonably concluded that he would do so, as this would infringe their article 9(1) rights by obliging them to manifest a belief which they did not hold” (243). The boundaries of the protections offered by the Equality Act (and its relationship with the free speech provisions of the Human Rights Act) will doubtless continue to be tested in 2025.

Looking forward to 2025

As the KlimaSeniorinnen judgment shows, a precedent has now been set holding governments to account for the impact of climate change on the human rights of their citizens. This case may pave the way for similar claims across Europe, linking governmental inaction on climate change to human rights violations. Governments are likely to face continued challenges for failing to meet their climate obligations, particularly as the impact of climate change becomes more severe and measurable.

We can also expect to see more action to hold corporate entities accountable on climate and social justice, both in terms of legal challenges (again, potentially raising human rights grounds), regulatory action, and shareholder activism. We anticipate continued growth in the number of claims focusing on greenwashing, board mismanagement of climate risks, and the fiduciary duties of financial institutions.

The impact of the Finch ruling on “downstream” emissions looks set to generate further challenges. The increasing demand for comprehensive scope 3 assessments has raised questions about what constitutes an “adequate” evaluation, and future litigation is expected as stakeholders seek clarity. Ambitious campaigners may also seek to apply the Finch principle to other industries whose output has “downstream” effects (for example, the automotive industry).

Finally, we can expect more challenges that test rights under the Equality Act over the coming year, particularly in cases where they are considered to be in tension with the right to free speech.

This is an exciting time for those seeking to use the law for good.