The Just Transition Litigation Tracking Tool tracks and analyses legal cases brought by Indigenous Peoples, communities and workers to help ensure the global transition to renewable energy is not only fast but also fair.

The Tracking Tool identifies just transition litigation cases according to criteria listed below to highlight this innovative type of strategic litigation and core legal arguments to promote and define a just transition, and related trends in this type of litigation; as well as the overall risk of abusive operational approaches to the global energy transition and to companies, business and investors given the delays, project halts and derailments that can be the consequence of this litigation.

Definition

The Just Transition Litigation Tracking Tool includes cases that fall into a category defined by scholars Annalisa Savaresi and Joana Setzer: legal actions, usually brought by rightsholders (Indigenous Peoples, affected communities and workers) directly affected by transition minerals or renewal energy projects, or by their representatives, and which are “cases that rely in whole or in part on human rights to question the distribution of the benefits and burdens of the transition away from fossil fuels and towards net zero emissions”. In other words, the cases seek to shape the manner in which the transition to renewable energy occurs, from the perspective of rightsholders. Their objective is not to stop the transition towards net-zero emissions but to ensure that the transition is fair to Indigenous people, workers, and other affected communities, and respectful of their human rights.

Just transition litigation is viewed as a subset of climate litigation.

Sources and timeframe

Cases have been identified through desk-based research by the Business & Human Rights Resource Centre, originally with the support of the Friedrich-Alexander-Universität Erlangen-Nürnberg (FAU) Human Rights and Business Clinic. We looked at publicly available materials on our website, such as news articles from international and local media outlets, civil society reports, our lawsuit profiles database, Transition Minerals Tracker, the Renewable Energy Benchmark, and consulted with partners. The Tracking Tool is predominantly based on materials available in English, Spanish and French, mainly due to organisational resource capacity.

We have focused our research on cases brought from 2015 onwards, using the 2015 Paris Agreement as a milestone. However, we have added cases filed prior to 2015 if they have the potential to set a precedent or when a legal development in the case occurred recently. We will continue to monitor decisions as they are handed down to include them.

We add cases to the Tracking Tool on an ongoing basis.

Our indicators are currently based on the Resource Centre priorities and will be reviewed regularly in consultation with allies to ensure that this Tracking Tool remains suitable with future developments in the field.

What do we include?

• Lawsuit brought by rightsholders (individuals, communities, Indigenous Peoples, workers) directly affected by transition minerals and/or renewable energy projects, or their representatives:
  • against a company or state-owned enterprise,
  • against a state for authorising a specific business activity
  • against a company in arbitration proceedings
    
• Lawsuits against companies operating in the following sectors:
  • renewable energy sector focusing primarily on solar and wind. However, given the manner hydropower projects have been implemented, these are also included in the Tracking Tool. The Resource Centre recognises that many communities do not consider hydropower or biomass as renewable sources. We include hydropower in our analysis because it is part of many government climate action plans and to get an overview of the most salient risks.
  • transition minerals sector (focusing on bauxite, copper, cobalt, lithium, manganese, nickel and zinc in line with the Transition Mineral Tracker)
  • financial sector where the lawsuit was brought by affected communities or their representatives using a rights-based claim, with a clear and direct link to the renewable energy or transition minerals project at issue.

We have focused on civil, constitutional and administrative lawsuits in domestic courts. We have included key lawsuits from regional courts only when there is a clear link with a business’ obligations/impact as these cases are filed against states.

What do we exclude?

For now, we have excluded:

• criminal lawsuits against companies, CEOs and Boards.
• measures taken by regulatory bodies.

Categories

We analyse each lawsuit against the following indicators of environmental and human rights allegedly impacted, which are sorted into three broad categories:

• Environment
  • clean, healthy and sustainable environment
  • access to water
  • water pollution
    
• Local communities and civil society organisations
  • Indigenous Peoples’ rights,
  • free, prior and informed consent
  • insufficient / inadequate consultation
  • land rights
  • displacement
  • forced relocation
  • impact on notable or protected areas resources/sites
  • impacts on livelihoods
  • personal health
    
• Workers
  • freedom of association strikes and other work stoppages
  • occupational health & safety
  • child labour
  • forced labour
  • Protests/Strikes/Blockades

Scope and limitations

The Just Transition Litigation Tracking Tool is based on publicly available information and Business & Human Rights Resource Centre does not independently verify the accuracy of the allegations. The Tracking Tool does not purport to provide comprehensive information on all just transition litigation cases. It only captures cases according to specific criteria listed above and timeframe listed above.

Stakeholder engagement

The Business & Human Rights Resource Centre seeks to engage with stakeholders involved in just transition litigation to build the Tracking Tool. If you have participated in a case that would fit the criteria above, we would love to hear from you to consider your case to be included in the Tracking Tool. We want to ensure that it features a diversity of cases. Please contact [email protected].