The New Zealand government has proposed legislation to limit the ability of individuals to sue companies for the impacts of climate change. Similar proposals in the U.S. may be the battle of 2027.
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As the global support for climate change regulations cools in the current political climate, climate activists are increasingly using the courts as a tool. In response, New Zealand has proposed a bill to limit the ability of individuals to sue high greenhouse gas emitters over the impacts of climate change, relying instead on the enforcement measures taken by the government. The bill appears poised to pass. A recent proposal to limit climate change litigation has yet to gain traction in the U.S. Congress, but could find a home in state legislatures next year.
Climate change has all but disappeared from the political landscape of the U.S. In Florida, where Governor Ron DeSantis is term limited, the race to replace him is in full swing. Presumptive Democrat nominee David Jolly’s campaign platform barely mentions climate change, only including it in a throwaway bullet point about preserving natural resources that is devoid of specifics. Presumptive Republican nominee Byron Donalds makes similar mention of protecting Florida’s natural resources, but without mentioning climate change.
In California, the race to replace Gavin Newsom as Governor faces a similar lack of mention of climate change. Democrat Xavier Becerra’s campaign platform only briefly mentions climate change under the bullet point relating to energy and utilities. Republican Steve Hilton’s policies include a rollback of California’s climate policies, while advocating for “properly managing California’s forests, watersheds, and natural lands.” However, it is not a top campaign priority.
This shift is not surprising. Climate change has dropped out of the top issues for voters, with the majority of the focus on economic issues and immigration. The trend also applies to young voters. Typically a demographic with a high focus on climate change, a recent poll by Harvard’s Institute of Politics found it fell behind inflation, housing, health care, and Iran. Even Greta Thunberg has diversified her focus to other issues.
This change in priorities has resulted in a stalling or reversal of the development of climate change policy. International institutions have rolled back sustainability reporting requirements. The Securities and Exchange Commission is reversing a climate reporting rule adopted under the Biden Administration. The phrase “climate change” is being scrubbed from government policies and documents. For activists that found legislative success only a few years ago, they are seeing their gains be erased. As a result, they shifted focus to the courts in order to keep their movement alive.
As with any developing area of law, attorneys for climate activists are testing different approaches to find a pathway that works. For now, the focus is divided between two legal targets: governments and private business.
Suing governments to address climate change
The legal argument against governments is based on the premise that the failure of a government to take action to prevent climate change adversely impacts individuals. The difficulty to find success in these areas often relates to standing, or the ability to bring a lawsuit. To prevail, a party must show that they have been damaged. That harm typically must be unique to them and show clear damages. When arguing that an individual has been harmed by climate change, it is difficult to establish how they were uniquely harmed.
There is also the question of what obligation the government is violating. The obligations can be established through national constitutions, state constitutions, laws, and treaties. However, governments do not like to be sued and often create protections for themselves, often under the concept of sovereign immunity. Finding a legal obligation of a government to act and to be able to force the government to change their actions is a legal struggle.
Early attempts to force governments to address climate change fell short. Juliana v. U.S., a lawsuit claiming the government’s subsidization and permitting of fossil fuels violated constitutional rights, was dismissed for lack of standing in 2020 and again in 2024. Similar cases brought within the U.S. and internationally faced similar results. However, 2023 began a shift in strategy and success. Held v. Montana, brought by the same group from Juliana, found that protection against climate change is a right under the state’s constitution. That victory was limited to Montana, based on language that is unique to that state, and the rationale cannot be applied to other states.
The legal argument against countries received a significant boost when international courts created a pathway to seek damages. In April 2024, the European Court of Human Rights found in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland that the signors of the European Convention on Human Rights had an obligation to prevent climate change. In July 2025, the International Court of Justice, known as the World Court, issued an Advisory Opinion on the Obligations of States in Respect of Climate Change. The opinion, while not legally binding, stated that countries were legally required to reduce GHG emissions and may have to pay reparations for damages from climate change. The opinion was based on international treaties, like the Paris Agreement and the Universal Declaration of Human Rights.
The ICJ is a court of limited authority. It was created through the United Nations to manage disputes between countries. It also has no direct enforcement powers, relying on voluntary compliance, the UN General Assembly, or the utilization of their opinions in national courts.
The ICJ opinion has yet to be tested in those national courts. Citations to the opinion are showing up in high profile cases, but those have yet to be resolved. Notably, ICJ opinions do not hold influence with Supreme Court of the United States. In 1985, the U.S. withdrew from “general jurisdictional competence” of the ICJ, effectively removing influence by requiring the U.S. to agree to participate in litigation before the Court. In the 1998 case of Beard v. Greene, SCOTUS ignored an order by the ICJ requesting a stay of execution.
Within the next year, I anticipate that one of the pacific island countries that sought the advisory opinion will initiate a formal complaint in the ICJ against the U.S., China, or a European country seeking damages.
Climate change lawsuits against industry
While the legal pathway against governments develops, climate activists are also taking aim at fossil fuel companies and other high GHG emitters. The same issue of standing continues to plague climate attorneys. However, private businesses do not enjoy the privilege of sovereign immunity and national laws create obligations on companies and attached liability. For climate attorneys, the struggle is to determine which duty was breached as national laws do not typically create a direct liability for GHG emissions. The breach must be established through other means. Climate activists are starting to find some success.
In 2019, Friends of the Earth Netherlands filed a suit against the Royal Dutch Shell company over the high level of greenhouse gas emissions, arguing they violated the duty of care under Dutch law and citing other global human rights obligations. In May 2021, a lower court ruled with the climate groups. By November, Shell relocated from the Netherlands to the United Kingdom and dropped “Royal Dutch” from its name. In 2024, a Dutch appeals court overturned the 2021 decision.
A similar case was brought in New Zealand against the country’s seven highest GHG emitters. In Smith v. Fonterra, climate activists argue that GHG emissions were a public nuisance under New Zealand law. The case has slowly progressed, with limited appeals to higher courts, and has not reached a final judgement. Interestingly, Fonterra is not a fossil fuel company, rather it is a co-op of dairy farmers.
While the primary focus is on the energy sector and agriculture, the fashion, shipping, airlines, and cruise lines industries that may soon face similar litigation under the new legal framework. The sustainability reports and environmental, social, and governance reports that companies voluntarily released from 2020 – 2024 will be used in those filings.
Legislative action to prevent climate change litigation
In response to Smith v. Fonterra, New Zealand has proposed an amendment to the Climate Change Response Act of 2002. The amendment removes the ability of private parties to bring civil litigation relating to GHG emissions and will apply to active cases. The bill’s policy statement says that the “role of developing, setting, and implementing regulatory policy in respect of greenhouse gas emissions sits with the Executive and the Legislature. The Bill creates a statutory bar on tort liability for emissions-related climate change effects. That bar will apply so that no person (including the Crown) can be found liable in tort for emissions-related climate change effects.”
It further states, “the Government is concerned that that litigation could lead to a finding that causing or contributing to the emission of greenhouse gases could result in tort liability. That would create a parallel and contradictory regime to the one provided in the Act. The Government considers that tort law is not an appropriate mechanism for responding to greenhouse gas emissions, as there needs to be careful consideration of social, economic, and distributional implications of different climate policy choices.”
The bill, which is likely to pass, not only prevents private litigation against companies for GHG emissions, but also against the government. Effectively rendering moot the application of the ICJ opinion in their national courts.
In the United States, similar legislation has been proposed in Congress. The Stop Climate Shakedowns Act of 2026 was introduced by Senator Ted Cruz and Representative Harriet Hageman in April. The bill is aimed to protect energy producers from litigation relating to climate change. However, the Congressional term is coming to an end and the bill has yet to be heard by a committee.
Passing legislation through Congress is difficult. The phrase that something “takes an act of Congress” to describe a difficult and slow moving process is not without merit. The most likely path is through state legislatures. In 2026, Oklahoma, Utah, Iowa, Louisiana, and Tennessee passed legislation to protect fossil fuel companies and the agriculture industry from litigation relating to GHG emissions and climate change.
State legislatures are out of their respective sessions for 2026, as their members campaign for reelection. After the mid-term elections in November, state legislatures will reorganize and begin committee hearings in the spring. Expect Republican controlled states to follow suit in 2027 by introducing similar bills tailored for their economies.
Democrat controlled states may take a different approach, introducing legislation that enables their state attorney general to initiate lawsuits against energy companies for the effects of climate change. This could become one of the red state versus blue state battles of 2027.
If Republican controlled states do enact legislation to prevent climate change litigation, the impact is limited to lawsuits brought under state law. Climate activists will still be able to initiate action in the federal courts, using federal law. The only full stop will come from Congress.
Emboldened by recent successes, and empowered by the ICJ opinion, climate activists are going to continue to bring new legal challenges. The battle over climate change has shifted from policy to the courts.