On 21 March, Nacka District Court announced that the youth group Aurora's lawsuit against the Swedish state will go to court. Based on the European Convention on Human Rights, Aurora demands that Sweden do more to reduce emissions and increase absorption of greenhouse gases to limit global warming to 1.5 degrees centigrade, the figure to which countries are committed under the Paris Agreement. The group consists of 300 people, including climate activist Greta Thunberg. The case has the potential to win in court - similar class actions have been successful in the Netherlands, France and Germany - but risks being complex and lengthy. And very costly.
"Any kind of recourse to law is expensive, especially when you're engaging in complex mass litigation," says sociologist of law Michael Molavi. "It can drag on for years. It'll be interesting to see what happens with the Aurora case. It's well thought-out and inspiring, but it's far too early to make any predictions. Whatever happens, I do think we're only at the beginning of this kind of legal mobilisation in Sweden."
Sweden introduced the Act on Group Litigations in 2003. Changing social conditions and consumption patterns increased situations when several individuals had the same claim against a public authority or company. With the law, legislators intended to increase access to justice for people who could not pursue legal action for social, economic or psychological reasons. However, funding is often a problem. Sometimes private companies pay class action costs, but only if the lawsuit meets their funding criteria. Aurora managed to raise significant sums through crowdfunding. For less high-profile cases, successful crowdfunding is uncommon.
Flaws in the legal system can be corrected
Michael Molavi has studied models for paying for class actions with public funds. One such solution would be for the state to pay class action costs, even when citizens sue the government or other authorities.
"It is sometimes viewed as an alien concept that the state would fund litigation against itself, but the idea behind public funding models is that it is in the common good to promote public interest cases," Molavi says. "Governments are not infallible and it is in the common good for people to be legally empowered to keep them accountable."
Sustainability researcher Salvatore Paolo de Rosa, based at Lund University Centre for Sustainability Studies, recently interviewed over 20 international organisations involved in climate disputes globally. Like sociologist of law Michael Molavi, de Rosa concludes that regardless of whether an organisation wins or loses in court, the lawsuit can bring social and political benefits. Partly because the climate cases help draw attention to the specific issue and because they highlight deficiencies in the legal system linked to the climate.
"The climate suits are the latest in a long line of campaigns where litigation has been used to drive change, establish accountability and force new legislation," de Rosa says, citing historical processes such as the US civil rights movement, the gay rights struggle and the environmental rights movement.
Few class actions in Sweden
When Sweden passed the Act on Group Litigations, legislators expected around 20 class actions per year. So far, the average is one per year. Apart from the legal costs, Molavi says that Sweden does not have the same adversarial tradition as countries like the United States. Additionally, Sweden only allows for an opt-in mechanism: Each person perceiving they have been wronged must contact the court to join the group (class). The approach requires the instigators of the lawsuit to recruit class members and raise funds for legal costs.
The alternative is an opt-out system, where everyone affected is part of the class unless they actively opt out of the litigation. These groups can become massive. Just as most people do not opt in, neither do they opt out, and the larger the group, the stronger the collective force of the action.
"It really makes a difference in terms of the healthy functioning of the regime if you've taken an opt-in or opt-out approach, and it is often clear which interests are on which side," Molavi says. "Chambers of Commerce, resource extraction corporations, insurance and pharmaceutical conglomerates typically advocate for opt-in regimes, and human rights organisations, environmental organisations, and trade unions for opt-out. Empowering vulnerable groups to hold powerful actors accountable will often find pushback from those actors, including these kinds of legal design points."
