There are reasons to believe the Supreme Court's 6-3 conservative majority will rule against the city of Boulder, Colorado, which is suing major oil companies Suncor Energy and ExxonMobil to recover millions of dollars in climate change-related damages. After all, as Earthjustice's Senior Vice President for Programs Sambhav Sankar recently noted, the court has repeatedly shown a willingness to bypass procedural technicalities and sidestep long-standing legal traditions to rapidly rewrite the law in line with the Trump administration’s priorities. And when it comes to climate cases, “It’s not so much that the current Court has made it harder for environmentalists... It’s that they’ve made it much, much easier for our opponents.”

Suncor v. Boulder is taking center stage this summer, and for good reason: a ruling against the oil companies could clear the path for roughly two dozen similar lawsuits filed by states, counties, and cities nationwide trying to hold energy corporations financially liable for localized climate impacts like floods and wildfires. That would deal a huge blow to Trump and his allies, who have made it their mission to block not just state but also federal courts from bringing litigation against the very companies that for decades have intensified the global climate breakdown (and lied about their responsibility).

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Among the dozens of entities that have taken a side in the story, one in particular has caught my attention: the insurance industry.

The American Property Casualty Insurance Association, the Complex Insurance Claims Litigation Association, and the Reinsurance Association of America have filed a joint amicus brief asking the Supreme Court to rule that federal law overrides state-level claims seeking damages from energy companies. Together, these associations represent most of the country’s commercial and personal lines insurance and reinsurance companies.

The move exposes a bizarre double standard: the very companies refusing to insure home remedies against wildfires and floods are fighting in court to protect fossil fuel giants causing them.

Their argument rests upon the unproven claim that if local governments can sue oil companies for climate costs, it creates profound financial instability for the energy industry and secondary market risks for their insurers. They write:

By imposing liability based on fossil fuel production and use across the globe and across generations, these state law claims for harms from GHG emissions create a chaotic liability landscape and with it, difficulty in underwriting and insuring (and in procuring insurance for) climate change-related risks.

In the energy sector, where insurance is often required by contract or regulation, the erosion of affordable coverage can constrain investment, impede infrastructure development, and distort markets without any corresponding improvement in safety or accountability.

The brief also advances a familiar line of defense – one long favored by fossil fuel companies: the claim that localized climate impacts cannot be linked to, or blamed on, a single entity:

Climate change is driven by countless individual and industrial activities across the world: energy production, transportation, manufacturing agriculture, and land-use practices. No single source or location can be said to “own” the problem. Instead, climate change results from the cumulative effect of emissions over time and across jurisdictions.

This cumulative nature means that even if a particular locality were to eliminate emissions within its borders entirely, it would still experience climate-related impacts caused by emissions originating elsewhere.

There is also the assumption that a strong national economy relies on cheap, reliable energy from a diverse mix of sources. And so, the associations argue that if they cannot accurately price or handle the uncertainty created by state-level climate lawsuits, this ultimately threatens the availability and affordability of energy for the whole country:

The nation is best served when energy is the most affordable and reliable, and energy is made more affordable and reliable by a diverse portfolio of energy sources, consistent with any constraints that may be imposed by federal policies on energy and the environment. This in turn is made possible by a robust insurance market that supports the energy industry, while encouraging environmental risk avoidance by pricing coverage commensurate with risk. But the level of unpredictability and uncertainty created by localized state climate tort litigation impairs the ability to assess risk and therefore is constraining the insurance market for industries contributing to GHG emissions.

A healthy insurance marketplace contributes to both promoting a reliable energy system and enabling society to respond constructively to climate change.

It sounds like a complex legal debate, but the reality is straightforward. Understanding it starts with a simple question: How do insurance companies actually make money?

• Over one-third of weather-related insured losses over the last two decades, totaling $600 billion, can be attributed to climate change. In 2025, these losses reached $107 billion, with the US accounting for more than 80%, driven primarily by the devastating Los Angeles wildfires.

• Insurers are private, for-profit businesses, and as such, their primary goal is to generate profit for their owners or shareholders. They do so in three main ways:

  • Charging customers a so-called premium before any claims happen.

  • Keeping costs low by paying out less in claims than they take in (policyholders today are paid proportionally less than they were forty years ago: $0.62 for every $1 vs. $0.80 for every $1 in the 1980s and 1990s).

  • Investing these premiums and the surplus capital they hold in safe assets like bonds to earn interest.

Here’s how that plays out.

As extreme weather events grow more frequent and intense, US insurers are responding by hiking property rates and dropping policyholders. In places like California and Florida, which are particularly and increasingly exposed to climate disasters, state regulations prevent insurance companies from raising prices in their policy renewals after disaster hits, making certain places unprofitable to them. Insurance companies are responding by pulling out entirely, leaving homeowners to cope with the double whammy of uncertainty.

In California, nearly 400,000 policies have been canceled since 2021, while the average annual property insurance premium had already risen to more than $4,200 in Florida at the end of 2022, some three times the national average.

Countrywide, the share of uninsured homes has more than doubled between 2019 and now, with nearly 1 in 7 homes currently uninsured. That’s 12.2 million of 86.6 million owner-occupied homes, or 14.1%.

Far beyond driving people out of climate-vulnerable areas, these tactics are adding fuel to an already raging housing crisis: without affordable coverage, property values plunge and prospective buyers lose access to mortgages and other forms of credit, which are only available to borrowers who have insurance.

But while policyholders are left to bear the brunt of losses attributable to climate change, insurers are pulling in record profits from two main sources: underwriting income (profits from their core operations after paying out claims and expenses) and investment income (earned by investing collected customer premiums into financial assets like bonds, stocks, and real estate).

Last year, the US property and casualty insurance sector cashed in $68.7 billion from underwriting in what was the most profitable underwriting year in more than two decades. Investments brought in $111.6 billion.

A fundamental contradiction

The insurance industry’s alignment with fossil fuel producers is a self-serving business strategy. Insurers funnel billions into fossil fuel projects, fuel the very climate disasters that threaten communities, and then profit by proving that heightened risk directly back into consumer premiums.

The numbers don’t lie: the US insurance sector alone holds over $500 billion in fossil fuel-related assets. In 2023, only three major insurers wrote more direct premiums for renewable energy than fossil fuels. Overall, the renewable energy insurance market was still under 30% of the size of the fossil fuel insurance market.

According to a 2024 scorecard on 30 major insurers and their involvement in the industry, climate-attributed losses for 28 top property and casualty insurers ($10.6 billion) approached the fossil fuel premiums they collected ($11.3 billion) in 2023 – and for more than half the companies, they exceeded them.

But as fossil fuels face structural decline while climate losses will rise, some industry players have begun divesting from planet-warming fossil fuels. The scorecard recognized some notable first movers. Italy’s Generali, for example, adopted restrictions across the oil and gas value chain; Zurich defined a policy on metallurgical coal, excluding both new mines and their developers; and Japanese MS&AD set an absolute target to reduce a portfolio of insured emissions – a first in Asia.

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The insurance associations themselves acknowledged this shift in their brief: “Major insurance companies that previously offered substantial limits, often exceeding $100 million, have significantly reduced their capacity. Some have even capped their offerings at $20 million or less.”

But a full industry retreat from fossil fuels remains a distant reality, given that many insurers, particularly massive industry giants, are still moving in the wrong direction: for instance, between 2014 and 2023, American giants Berkshire Hathaway and State Farm increased their fossil fuel positions by around $200 billion.

The true insurance crisis we face

It is baffling to watch insurance companies defend fossil fuel corporations under the guise of avoiding “legal uncertainty.”

Uncertainty is the very core of the insurance business model. Individuals, companies, homeowners need insurance because the future is uncertain. Insurance exists precisely because human activity involves unpredictable, probabilistic risks. The entire business model of insurance is taking on other people’s uncertainty, pricing that risk using math and probability, and profiting from managing it.

In a contradicting amicus brief filed in the Supreme Court, former California Insurance Commissioner Dave Jones also argues that the real “uncertainty threat” to insurance and to the policyholders and members of the public who rely on it comes not from efforts to make responsible parties pay for climate harm, but from climate change itself. It is the risks that climate change poses to people, property, the energy sectors and the markets that drive that uncertainty.

As Jones argues, the insurance companies' warnings are a baseless distraction, masking their true role in the climate crisis. Insurers aren’t protecting the energy market – they are directly causing property insurance to skyrocket and disappear.

There’s more to it.

Liability policies sold to energy companies typically contain pollution exclusions, Jones notes. These clauses specifically state that the insurer will not pay for damages caused by environmental pollution or carbon emissions, which are intentional wrongdoings rather than accidents.

Lawsuits challenging fossil fuel companies often rest upon the argument of intentional deception (they knew about the risks but misled the public about them), which insurers wouldn’t cover anyway. The claim that state lawsuits will destabilize energy company insurance or collapse the broader insurance market simply doesn’t hold water.

What's really at stake

We cannot let the industry rewrite the narrative and pretend they are the victims here. The true victims of this crisis are the homeowners, renters, and local communities left holding the bill for an unlivable future. We pay insurance companies to give us peace of mind against an uncertain future, yet they are actively investing in the industry making that future far more dangerous and unpredictable.

The Supreme Court’s decision on the Boulder case will tell us a lot about who the law is designed to protect.

It marked a key victory for a coalition of non-profits that in April 2024 were awarded a total of $20 billion under the Biden administration’s Greenhouse Gas Reduction Fund. The fund, created by Congress through Biden’s flagship 2022 Inflation Reduction Act, provided money to organizations that would then make loans and invest in small energy projects, energy-efficient buildings and transportation across the country. The money had already been disbursed when newly appointed EPA Administrator Lee Zeldin abruptly announced in February of last year that his agency was revoking the grants.

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For Climate United – a public-private investment fund that was awarded $6.97 billion – the freeze brought active projects to an abrupt halt. By the time the freeze hit, the non-profit had already started disbursing funds and committed nearly $400 million to critical initiatives, including:

• Some $31.8 million for the largest commercial and industrial solar deployment in Arkansas history;

• $250 million to provide affordable electric truck leases for small fleets and independent port operators; and

• Up to $30 million in technical assistance grants for community-led clean energy projects, with 60% reserved for low-income and disadvantaged areas.

Brooke Durham, a former Director of Communications for Climate United, said that the freeze triggered not just a funding crisis but also a “reputational crisis.” That’s because when Zeldin unexpectedly announced the funding freeze via a social media video, he also accused the program of being “riddled with conflicts of interest and fraud and waste and abuse” – claims the EPA failed to substantiate with evidence.

By then, Climate United had already kicked off the process of hiring over 100 new employees to deliver on its capital deployment mandate.

The freeze hit mid-expansion, after roughly 40 staff had either joined or were reassigned to the Climate United portfolio from partner organizations. “There’s been major impacts. We’ve laid off the vast majority of our staff at this point,” Durham told the Climate Court Voices podcast in December. Coalition partners faced similar cuts, contracts were cancelled, and the vast majority of planned projects stalled.

As you can imagine, this was a dream job for so many people who have been working in the clean energy and climate space. A historic opportunity, right? Most of us are really heartbroken over the communities who are counting on these funds. They are the ones who are really hurting right now. All these investments were promised to communities who direly need the capital, because traditional finance is not lending them the money to get these projects done and they have crises on their hands, like energy affordability and pollution and a lack of economic mobility. And this program was designed to remedy those issues while building a market and transforming the market for clean energy and electricity transportation, and driving down costs for all of us, right?

Beyond the financial damage, staff members faced online threats and had their names published alongside unproven allegations of fraud, forcing the organization to spend vital bandwidth fighting disinformation.

While dealing with the blowback, in March of last year Climate United and fellow awardees, plus some sub-awardees, filed suit against the EPA and Citibank, challenging the illegal withholding of obligated funds. “We’re going to court for the communities we serve — not because we want to, but because we have to,” Beth Bafford, CEO of Climate United, said at the time.

The legal battle proved to be a rollercoaster. A district court initially ordered the funds released in April 2025, but a three-judge appellate panel reversed that ruling a few months later. However, in December, the full DC Circuit Court of Appeals agreed to rehear the case en banc before all 10 active judges.

This month’s ruling marks a major step toward unfreezing those vital funds, with six of the 10 judges affirming the preliminary injunction on the grounds that the EPA likely violated the Inflation Reduction Act.

But there’s a catch: despite the victory, the non-profits will not receive the money immediately. The federal government has filed a motion to stay the ruling, asking the court to hold off on releasing the funds while it prepares an appeal to the US Supreme Court.

So while awardees welcomed the DC Circuit's decision, the fate of these transformative clean energy projects remains suspended in legal limbo.

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A slow justice system risks stalling the energy transition

Whether justice is eventually served or not, lengthy court battles almost always mean the ground shifts beneath the parties involved. For the GGRF awardees, months of legal gridlock meant that a lot of the clean energy projects planned for local communities had to be scrapped entirely. The Climate United Fund, the prime grant recipient for the Climate United coalition, has been “slowly winding down operations” and has laid off “the vast majority of dedicated staff or reassigned them to other projects,” according to a spokesperson.

But there are dozens of other legal challenges filed against the Trump administration that will likely require years to resolve.

A notable example is the wave of litigation following the EPA’s rollback of the Endangerment Finding earlier this year. Since 2009, the landmark scientific finding – which established that greenhouse gases pose a direct threat to public health and welfare – acted as the legal engine behind US climate action and emission regulations. It wasn't just a policy; it was a binding mandate requiring the government to act.

Without it, Americans will be “less safe, less healthy and less able to fight climate change,” former president Barack Obama warned, “all so the fossil fuel industry can make even more money.”

Dozens of states, counties, and environmental groups sued. Now, like so many of the administration's executive actions, the fate of the 16-year-old scientific finding rests in the hands of the judiciary. But as one lawyer told me recently, expecting a swift resolution is “wishful thinking.” By the time the cases make their way through the appellate pipeline, the regulatory landscape will have changed too drastically to simply revert to the status quo.

At the same time, for something so huge like the Endangerment Finding, advocates hope rescinding it completely will prove far harder in court than the administration anticipated.

It’s important to understand that we’re talking about 20 years of change. Really almost like generational change. And I don’t think a lot of that can be undone overnight. And frankly, I think that what we’ve seen is a snowball effect of climate change essentially being recognized by industry, being incorporated into business. And I think if you’re looking at it at a macro level, a lot of this is going to continue. I think we’re going to be on a trajectory that probably would have existed regardless.

Fuel economy is regulated regardless of climate change. And so, I think there’s co-terminus benefits for regulating fuel economy that also achieve a lowering of emissions, reduced fossil fuel consumption, different alternative energy sources. So, that’s another reason why I think that we’re not necessarily going to see major long-term impacts. We’re seeing trends that are going to persist either way.

The expansion of wind energy in the US has similarly faced direct executive obstruction, sparking a flurry of counter-litigation from developers. One of Trump’s first presidential actions after taking office last year was to halt all federal wind energy leasing and approvals in the US. Subsequent stop-work orders targeting offshore wind farms triggered immediate lawsuits from state governments and commercial developers objecting to the policy. In most instances, the developers won in court.

However, winning in court does not eliminate the friction created by the process itself.

As a June report by Grantham Research Institute on Climate Change and the Environment at the London School of Economics and Political Science noted:

These examples illustrate how litigation has become a feature of the energy transition in the US, with regulatory approvals generating potential grounds for challenge, and executive interventions generating counter-litigation. The cumulative effect, regardless of the intent of any individual claimant, is a thickening web of legal risk, cost and delay around the build-out of renewable infrastructure.

It is precisely this systemic friction that threatens to slow the broader climate transition in the critical years ahead.

The victory for Climate United proves that executive overreach can be checked in court – but with appeals pending and key policies frozen, the question remains how much ground will be lost in the meantime.

They fear that these lawsuits will “bankrupt our energy industry” – the same industry that spent nearly half a billion dollars throughout the last election cycle to lobby Donald Trump and Congress and that has reported extraordinary gains as the war in Iran sent oil prices soaring.

While the bill remains in the early stages, similar efforts by some states have already produced results. Fifteen laws seeking to block lawsuits against the fossil fuel industry from proceeding and prevent new ones from being filed have either been passed or are currently being debated in 11 Republican-led states, according to ProPublica. An investigation by ProPublica’s Abrahm Lustgarten linked these bills to groups with ties to conservative activist Leonard Leo, the man who orchestrated the right-wing takeover of the federal judiciary.

The US is not alone in this. In New Zealand, polluting companies may soon be shielded from civil lawsuits, as legislation proposed in May to retrospectively ban private citizens and organizations from suing businesses for their climate-damaging emissions appears poised to pass.

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The push for such legislation coincides with an exponential growth in climate litigation cases. A recent Climate Litigation Network report describes climate litigation as a “global accountability system” used by private actors, civil society and individuals locally, regionally, nationally and internationally to hold governments and corporate polluters accountable. Over 3,600 climate change litigation cases have been filed in over 60 countries since 1986, with over three-quarters of them brought after the Paris Agreement was adopted in 2015.

“Polluter pays” litigation in particular is gaining serious ground. In polluter pays cases, claimants are required to prove a causal relationship between a defendant’s planet-warming emissions and a specific extreme weather event as they seek compensation for the damage polluters have caused to them and their communities.

So, it comes as no surprise that the growth of such litigation has occurred alongside rapid advancements in attribution science – the climate field responsible for establishing this link.

To cite a recent example, researchers at World Weather Attribution, one of the leading groups carrying out rapid attribution studies, last week found that human-caused climate change made the extreme fire-prone weather fueling ongoing blazes at least twice as likely in France and 20 times more likely in Spain.

In a 2025 Science study, researchers used a well-established extreme event-based attribution framework to link the activities of the world’s largest fossil fuel and cement producers to hundreds of heatwaves worldwide this century. They found that 14 companies – including the usual suspects Saudi Aramco, Gazprom, ExxonMobil, Chevron, BP, and Shell – polluted enough to individually cause over 50 heatwaves.

That same year, another group of researchers created a framework that links the emissions of the world’s largest polluters to rising temperatures and specific heat-related climate disasters. “Causal linkages from emitters to impact have been termed the Holy Grail of climate litigation,” the Nature study states.

Attribution science has advanced rapidly in the past decade, with scientists now able to precisely estimate how much human-caused warming is shaping specific weather events in specific places. Despite some limitations and different methods producing different results, the field is now advanced enough to support lawsuits seeking damages for severe events worsened by global warming, according to a new report by the National Academies of Sciences, Engineering and Medicine (NASEM), the US’s top scientific advisory body.

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The National Academies came under fire for the report, which lobbying group Energy in Depth, a project of the Independent Petroleum Association of America, called “the latest deliverable in a well-funded litigation campaign.”

In the months preceding its release, GOP-linked research group Argus Insight sought internal communications of the chair and other members of the panel tasked with writing the report while openly accusing them of having ties with climate advocacy organizations, documents obtained by Politico showed. It is a strategy Argus deployed before to collect information it deemed useful to discredit officials involved in climate lawsuits against fossil fuel companies. James Hurrell, the panel’s chair, has emphasized that “outside external chatter” did not influence their work “in any way.”

Shortly after the report’s release, the House Committee on Science, Space and Technology accused NASEM of withholding information the Committee had requested as part of its ongoing oversight of the institution’s federally supported activities. “Determining whether the congressionally chartered and federally funded NASEM is producing reports that are unbiased, nonpartisan, and free from conflicts of interest and, thus, whether legislative reforms are warranted with respect to the Academies as a whole, outweighs First Amendment interests of the individual members of a scientific committee,” the letter read.

In a post on Truth Social, Trump – a longtime fossil fuel ally – demanded an investigation into the independent organization, which he says is run by “Radical Left Dumocrats [sic].” Despite coming five days after the report’s release, his post did not address the new findings directly; instead, it targeted a reference manual that NASEM and the Federal Judicial Center created in 1994 to help judges manage complex technical evidence.

When the manual’s fourth edition was released late last year, the newly added chapter on climate science came under fire from 27 Republican state attorneys general, who claimed that its content was biased and threatened to undermine judicial impartiality. The Federal Judicial Center pulled the chapter in February in response, although it remains available on NASEM’s website. 28 co-authors of the manual called the removal a “political attack” and “a direct challenge to the independence of the federal judiciary,” noting that it could “hurt litigants on both sides of climate litigation.”

The AGs also took issue with what was included – and left out. They objected to the manual’s reliance on the Intergovernmental Panel on Climate Change (the world’s most authoritative climate body) and to its omission of a Department of Energy report (the scientific community has widely discredited the DOE report for its numerous “demonstrably incorrect” and “misleading” claims).

And in May, the Justice Department (DOJ) announced it had filed suits against Vermont, New York, Hawaii and Michigan, alleging that these states’ so-called “climate superfund” laws and planned legal actions against fossil fuel giants are in direct conflict with President Trump’s “energy dominance” agenda. “When states seek to regulate energy beyond their constitutional or statutory authority, they harm the country’s ability to produce energy and they aid our adversaries,” said Acting Assistant Attorney General Adam Gustafson of the DOJ’s Environment and Natural Resources Division.

The pattern across every front – from congressional bills and DOJ lawsuits to political attacks on scientific institutions – is clear. Opponents of climate accountability are not just fighting lawsuits in court; they are attempting to strip judges of the evidentiary tools required to hear them.

This coordinated, conservative-led offensive has one goal, according to former federal prosecutor and California state judge Alice Hill: “to keep attribution science out of court.” Big Oil is determined to avoid the fate of the tobacco industry, which was crippled by decades of intense litigation once internal deception and health harms were definitively linked.

While attribution science is far from a silver bullet for holding corporate polluters accountable, its rapid advancements are opening unprecedented legal doors for claimants. Whether state legislation can successfully insulate the industry from that liability remains to be seen.

A year ago today, I hit publish on the first episode of my podcast, Climate Court Voices, to mark the International Court of Justice’s landmark advisory opinion on climate change. It felt only fitting to launch this newsletter on the ruling’s first anniversary. Every fortnight, I’ll be bringing you deep dives on how the global climate crisis is taking over the world’s courts. Thank you for being here from day one!

“The ocean, once a nurturing mother, has become a vengeful giant, swallowing the land it once cradled. It no longer only gives life, it now takes it, inch by inch.” — Isabella Teuea from Kiribati.

For Pacific Islanders, the concept of “home” represents much more than just a physical structure or a fixed geographic location. It is an expansive, relational concept deeply rooted in community, extended family networks, and ancestral connections to the ocean and land.

When I interviewed Fiji-born climate justice advocate Vishal Prasad last year, he began telling his life story by explaining the profound meaning “land” holds for Pacific Islanders.

“We talk about this idea of land in the Pacific as being not just the physical land. What it represents is the sense of identity, the sense of belonging and it’s also this connection to the past and to the future,” he said. We spoke ahead of the International Court of Justice’s historic advisory opinion on climate change – a legal blueprint from the world’s highest court defining what nations legally owe to one another in the face of climate chaos – which was delivered a year ago today.

The Pacific Islands Students Fighting Climate Change, a group directed by Vishal and initially led by 27 students from the University of the South Pacific, was the driving force behind the political push to take the issue of climate change and human rights to the world’s top court.

Vishal told me how saddened he was after meeting a group of fellow Fijian villagers who were forced to relocate elsewhere in 2020. Their homes, which had been passed down from generation to generation, were completely uprooted in the wake of a series of cyclones and landslides, leaving the villagers no choice but to abandon their ancestral burial grounds.

Despite being responsible for less than 1% of total global greenhouse gas emissions, the Pacific Islands are at the forefront of climate change. In its 2018 report, the Intergovernmental Panel on Climate Change said that unless drastic action is taken globally to reduce greenhouse gas emissions, Pacific Island nations will cease to exist, threatened by a triple whammy of accelerating sea level rise, ocean warming and acidification.

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Statelessness is considered “one of the most profound and serious human rights challenges in the world today.” The formal legal foundation for this issue was established by the UNHCR 1954 Convention Relating to the Status of Stateless Persons, which defines a stateless individual as someone “who is not considered as a national by any State under the operation of its law.”

The UN estimates that some 4.4 million people globally are stateless owing to discrimination on the basis of ethnicity, language or religion, conflicts of nationality laws, administrative barriers, migration and forced displacements (though their “unregistered” status implies the number could be much higher – ranging anywhere between 10 and 15 million).

But climate change is adding a whole new dimension to the concept of statelessness. Accelerating sea level rise is threatening the very existence of low-lying island nations. Within this century, the world will have sovereign countries that exist on paper, in cloud servers, and in international law, with no physical land to stand on.

This raises an unprecedented legal dilemma: if an entire nation’s territory becomes submerged or uninhabitable, does the state cease to exist with it?

Statehood without land

In 2023, the Pacific Islands Forum signed a declaration stating that “international law supports a presumption of continuity of statehood and does not contemplate its demise in the context of climate change-related sea-level rise.”

Last year, the world’s top court also weighed in. In its advisory opinion on countries’ legal obligations in respect of climate change, spearheaded by a group of Pacific Island students including Vishal, the court said:

“Once a State is established, the disappearance of one of its constituent elements would not necessarily entail the loss of its statehood.”

The court described sea level rise as a threat of “economic, social, cultural and humanitarian character” that requires cooperation and solidarity among states, not as a “matter of choice” but as “a legal obligation.” In the context of sea level rise, these obligations require states to “work together with a view to achieving equitable solutions, taking into account the rights of affected States and those of their populations.”

Four of the 12 individual opinions from the Court’s judges further expanded on the threat of statelessness, as noted in a blog post by the Sabin Center for Climate Change Law. Some judges said the court should have been more resolute in affirming the presumption of state continuity due to climate change, suggesting it explicitly guarantee uninterrupted membership in international organizations and recognize continued statehood as a form of legal restitution. Judge Tomka went further and criticized the legal ambiguity of the current opinion, pointing out a critical lack of customary legal basis for how the court handles the preservation of statehood when physical territory is lost.

Nevertheless, the implications of the court’s mention of statehood are immense.

International law has often dealt with states losing one or more of the foundational criteria for statehood (a permanent population, a defined territory, a government, and capacity to enter into relations with other states) – be it due to military occupation or government failure. In these cases, the presumption of state continuity was always reaffirmed.

But the question of statehood in last year’s opinion, as Zana Syla and Avidan Kent observe in the aforementioned blog post, is for the first time “framed against the backdrop of climate change” and raised in relation to the threat of sea level rise on physical land. In this case, the constituent elements of statehood don’t just change – they “disappear entirely.”

John Silk, Permanent Representative of the Republic of Marshall Islands to the UN, said his country was “relieved” that the court “decisively settled” the issue of sovereignty: “We are glad that the ICJ has confirmed today what we have long known to be true: there is no basis under international law for countries to lose their maritime zones or their sovereignty as a consequence of climate change related sea level rise.”

Preserving Tuvalu

A whole book wouldn’t be enough to discuss the implications of physically losing a state and the ways in which statehood can and should be preserved – let alone this short reflection. But Tuvalu offers some interesting insights on how to approach the threat of statelessness.

Since 2022, the island nation, which risks losing half of its capital to sea level rise by 2050 and 95% of its landmass during routine high tides by 2100, has been working to build a digital copy of the country – from its land, rich history and culture to all governmental functions.

Building a “permanent digital identity,” the government says, can help it retain its identity and functionality as a state as much as it can facilitate social, economic and cultural connections among the Tuvaluan diaspora. It also aids “in the fight for continued sovereignty under international law.”

In 2023, Tuvalu amended its constitution to include a commitment to “[p]rotecting and conserving its land area, territorial waters and airspace” and “retaining its Statehood” amid climate change threats – the first country in the world to constitutionally guarantee the permanence of statehood and maritime boundaries in perpetuity, regardless of any physical land loss caused by rising sea levels and climate change.

The new text establishes that Tuvalu’s declared baseline coordinates “shall remain unchanged, notwithstanding any regression of the low water mark or changes in geographical features of coasts or islands, due to sea-level rise or other causes, until and unless otherwise prescribed by an Act of Parliament.”

In the same year, Tuvalu also signed the Falepili Union treaty with Australia, which allows for the migration of 280 Tuvaluans to Australia each year. As part of the treaty, Tuvaluans retain their citizenship while being granted permanent residency and a pathway to eventually obtain Australian citizenship.

Australia is also aiding in climate adaptation, pledging cooperation on Tuvalu’s efforts to expand the capital Funafuti’s land mass by around 6% by reclaiming land around it, buying Tuvaluans some time before the sea inexorably swallows their land. And it is investing millions of dollars to expand clean, off-grid renewable energy and improve power access in remote communities across the Pacific.

Yet neither the Falepili Union treaty nor any other partnership commits Australia – the world’s third-largest fossil fuel exporter – to curbing coal and gas development, a reality Tuvalu’s Prime Minister Feleti Teo characterized as a “death sentence” for his country. Just last month, 10 Australians filed a case with the UN Human Rights Committee accusing the Australian government of violating their human rights by failing to limit coal and gas exports.

When the UN General Assembly voted to endorse the ICJ opinion earlier this year, Australia voted in favor but refused to join the extensive list of co-sponsors, standing alongside New Zealand as the only Pacific nations to withhold their formal sponsorship. In fact, Australia's representative at the UN, James Larsen, stressed that the country is still “carefully considering the Court’s opinion” and its "support for this resolution should not be interpreted as our agreement with every element of the advisory opinion."

“It is this picking-and-choosing approach that concerns us, and it needs to change,” Vishal wrote in an op-ed for The Point.

Ultimately, what Pacific Islanders want is not to be welcomed with open arms by other countries. Their “priority,” as Tuvalu stressed in its written statement to the ICJ, is to “continue living on their God-given land.”

“To be clear, displacement is not an acceptable response to the climate crisis as a matter of either law or policy.”

An obligation to co-operate

As Yatong Yang from the Graduate School of Global Environmental Studies at Kyoto University notes in a 2025 paper, international recognition remains, fundamentally, a political decision driven by geopolitical interests rather than objective legal criteria. As demonstrated by cases like Taiwan and Palestine, even compelling claims to sovereignty can fail if other nations refuse to engage with them as peers.

For climate-threatened nations facing physical loss of territory, a corresponding loss of legal recognition carries severe real-world consequences. It strips them of diplomatic standing, treaty rights, and institutional memberships. Citizens may be left stranded in a precarious legal limbo, retaining an identity at home while lacking clear international status abroad.

In their 2023 declaration, the Pacific Islands Forum “called upon the international community to … cooperate in achieving its purposes, consistent with our duty to cooperate and principles of equity and fairness.” The ICJ also stressed in its opinion that, in the context of climate change and sea level rise, states “have a customary obligation to co-operate.”

The question now is not whether the international community has a mandate to act, but whether powerful states will honor their established legal duties or choose to openly defy them.