Norton Rose Fulbright - Elisa de Wit
|
Rebecca Hoare
|
Noni Shannon
Introduction
Globally, 2019 saw a strong rise in climate related
litigation. As at January 2020, the total number of climate change cases
filed to date has reached approximately 1,444
1, up from 1,302 since our
update in March last year.
Cases have now been filed in at least 33 countries, in addition to
cases brought in regional or international courts or commissions. The
vast majority of these cases continue to be commenced in the United
States (US), followed by Australia, United Kingdom, European Union, New
Zealand, Canada and Spain.
World map of cases2
Claimants
are increasingly relying on constitutional and human rights laws in
their attempts to hold governments accountable for addressing climate
change. This is likely to continue following the landmark
Urgenda ruling
in December 2019, discussed below, which according to the United
Nations (UN) High Commissioner for Human Rights, Michelle Bachelete,
“provides
a clear path forward for concerned individuals in Europe – and around
the world – to undertake climate litigation in order to protect human
rights.”3
The nature of the claims against corporations has also diversified
beyond the unsuccessful tort and public nuisance actions pursued
predominately in the US in the 2000s and early 2010s.
4 This
comes as corporations, and their shareholders, increasingly acknowledge
the threat of climate change to their bottom line. Meanwhile the
growing demand from consumers for environmentally sustainable goods and
services is prompting ever increasing scrutiny from consumer advocates
and regulators into misleading and fraudulent corporate climate claims
or commitments.
Climate attribution science
Developments in climate litigation are being influenced by
advancements in the scientific understanding of climate change. Climate
attribution science aims to establish the relationship between
anthropogenic emissions and specific extreme weather events. Progress in
this field is allowing claimants to better pinpoint and quantify the
environmental impact of projects, policies and laws.
As the scientific consensus that humans are at least partly
responsible for climate change is now firmly established, disputes are
increasingly revolving around proving causation, allocating
responsibility and jurisdictional arguments as to the role of the courts
in ‘regulating’ climate change. Climate attribution science is
essential in resolving such issues, especially as many of the recent
studies aim to develop methodologies that link harmful environmental
impacts to specific emitters.
5
For example, the
Urgenda case involved the consideration of
multiple scientific reports submitted by the parties to quantify the
Netherlands’ emissions, the impact of emissions and the required
reductions in emissions to meet the State’s commitments. This evidence
was essential in establishing the precise boundaries of the duty of care
owed by the Netherlands to its citizens.
Climate attribution science is also relied upon by plaintiffs to show
that not only is climate change preventable, but that the associated
extreme weather events are reasonably foreseeable. This evidence will
prove crucial in claims arguing that corporations are failing to act in
shareholders’ best interests by failing to address the foreseeable risks
posed by climate change. A number of such claims are discussed below.
This legal update considers key developments and cases since our last update.
The cases are divided into the following categories:
- Constitutional law and human rights claims
- Private law
- Company law and climate risk
- Planning and permitting
Constitutional law and human rights claims
The cases considered below demonstrate that the greatest
hurdle for human rights-based climate litigation is not necessarily
convincing courts of the dire consequences of climate change and the
related impact on an individual’s human rights. Rather, the difficulty
lies with demonstrating that the courts are an appropriate mechanism
through which to address climate change, a challenge which by its very
nature requires coordinated nationwide policy-driven responses. The
dismissal of the
Juliana case in the US Ninth Circuit Court
(discussed in more detail below) is a dramatic illustration of this
tension with Judge Hurwitz, in delivering the majority judgment,
emphasising:
“We
reluctantly conclude… that the plaintiffs’ case must be made to the
political branches or to the electorate at large, the latter of which
can change the composition of the political branches through the ballot
box. That the other branches may have abdicated their responsibility to
remediate the problem does not confer on Article III courts, no matter
how well-intentioned, the ability to step into their shoes.”6
UN Human Rights Committee View Adopted under Article 5(4) of the Optional Protocol
In January 2020 the UN Human Rights Committee considered the case of
Ioane Teitiota who had unsuccessfully sought protection from New Zealand
due to rising sea levels threatening his life in the Republic of
Kiribati. The Committee rejected Mr Teitiota’s claim because the likely
timeframe for sea level rises rendering Kiribati uninhabitable is 10 to
15 years and therefore he did not face immediate danger. This timeframe
allowed the Republic to take affirmative measures to protect and if
required, relocate its population. However, the Committee recognised the
right for refugee claims on the grounds of climate change and
emphasised that it is unlawful for governments to return people when
their life will be at risk due to the climate risks in their home
countries.
7
The Committee stated:
“Without
robust national and international efforts, the effects of climate
change in receiving states may expose individuals to a violation of
their rights … thereby triggering the non-refoulement obligations of
sending states”.
Although the decision is not binding on states, it opens the door for
further refugee claims to be made on the basis of climate change.
Juliana v US
In January 2020, the Ninth Circuit Appeal Court dismissed the claim in the high profile
Juliana
litigation in which the plaintiffs, represented by Our Children’s
Trust, sought relief for governmental action and inaction in regulating
carbon dioxide pollution. The action was founded upon the plaintiff’s
explicit and implicit constitutional rights and the public trust
doctrine.
Despite acknowledging that fossil fuel combustion will wreak havoc on
the earth’s climate if unchecked, the Court found it had insufficient
power to order the US Government to prepare and implement an enforceable
national remedial plan to phase out fossil fuel emissions. Judge
Hurwitz noted in the judgment:
“any effective plan would necessarily
require a host of complex policy decisions entrusted, for better or
worse, to the wisdom and discretion of the executive and legislative
branches”.
8 Julia Olsen, chief legal counsel of Our Children’s Trust has emphasised that the “
Juliana case is far from over” as the plaintiffs will seek to appeal the decision.
9
Urgenda Foundation v Kingdom of the Netherlands (Urgenda)
In December 2019, the Supreme Court of the Netherlands ruled that the
state owes a duty of care to protect its citizens from climate change
in accordance with its obligations under the European Convention for the
Protection of Human Rights and Fundamental Freedoms (
ECHR). This was the culmination of a 7-year judicial process, with the nation’s highest court ultimately finding that
“climate change threatens human rights” and that
“in
order to ensure adequate protection from the threat of those rights
resulting from climate change, it should be possible to invoke those
rights against individual states”.
This latest ruling confirms the previous decisions of the lower Dutch
courts that found the Netherlands must reduce its greenhouse gas
emissions by at least 25% compared with 1990 levels by the end of 2020.
See our previous updates on this litigation
here and
here.
Re Greenpeace Southeast Asia and Others
In December 2019, the Commission on Human Rights of the Philippines
announced that the world’s biggest carbon polluters could be held liable
for their role in contributing to climate change. The announcement was
preceded by a 3-year investigation into whether 47 major fossil fuel
firms, including Shell, BP, ExxonMobil and Chevron, should be
accountable for the human rights harms caused to Filipino citizens as a
result of climate change. The petition prompting the investigation was
submitted by Greenpeace Southeast Asia as well as a number of other
individuals and organisations.
The Commission ruled that whilst legal responsibility for climate
change is not addressed by current international human rights law, major
fossil fuel companies are morally obligated to respect human rights, as
enunciated in the UN Guiding Principles on Business and Human Rights.
These companies are also obligated to invest in clean energy. Further,
under the laws of Philippines, the Commission considered that the
existing civil and criminal laws of the Philippines provided grounds for
action against these companies.
Sacchi et al. v. Argentina et al.
In September 2019, Greta Thunberg and fifteen other children filed a
petition against the five highest emitting nations that have ratified
the UN Convention of the Rights of the Child (
CRC), being Brazil, Argentina, France, Turkey and Germany.
The plaintiffs argue that the five countries have violated their
rights under the CRC by failing to take adequate government action in
reducing greenhouse gas emissions in response to climate change.
The plaintiffs have asked the Committee to make recommendations that the countries take certain actions including:
- to review, and where necessary, amend their laws and policies to ensure that mitigation and adaptation efforts are accelerated;
- initiate cooperative international action to establish binding and enforceable climate measures; and
- ensure children’s right to be heard in all efforts to mitigate or adapt to the climate crisis.
The Committee must first determine if the petition is actionable
before making findings or recommendations, which requires the plaintiffs
to prove they have exhausted all domestic remedies. The petition
addresses this by arguing that there are practical problems preventing
them from complying with this condition.
Any recommendations ultimately made by the Committee, while
technically binding on states that are a party to the CRC, will not be
strictly enforceable and will rely on signatories living up to their
commitments.
Petition of Torres Strait Islanders to the UN Human Rights
Committee Alleging Violations Stemming from Australia’s Inaction on
Climate Change
In May 2019, a group of eight Torres Strait Islanders lodged a
complaint with the UN Human Rights Committee against the Australian
government for breaching human rights obligations owed under the
International Covenant on Civil and Political Rights (
ICCPR).
It is argued that the Australian government’s failure to take
sufficient action to curb emissions and implement adaptation measures
has violated the right to culture, right to a family and right to life
under the ICCPR.
10
The complaint is yet to be reviewed by the Committee, and will be the
first climate change case brought by inhabitants of low-lying islands,
and also the first one brought against the Australian government in
respect of breaches of human rights obligations in the context of
climate change.
Family Farmers and Greenpeace Germany v. Germany
In October 2019, the Administrative Court of Berlin dismissed an
action by three German families and Greenpeace Germany challenging the
government’s failure to adhere to a cabinet decision to reduce
greenhouse gas emissions by 40% below 1990 levels by 2020, recorded in
the Climate Protection Plan, instead finding that the target was not
legally binding. Notwithstanding this, the Court held that government
climate policy is subject to judicial review and must be compatible with
the government’s duties to safeguard fundamental rights under the
German Constitution – the Grundgesetz.
The plaintiffs alleged the government was bound by the Climate
Protection Plan and that their failure to abide by the targets, by only
reducing emissions by 32% instead of the specified 40%, violated human
rights and breached rights to life and health, occupational freedom and
right to property enshrined in the German Constitution. However, the
Court found that the government was entitled to wide discretion in
determining how to fulfil its constitutional obligations, as long as
precautionary measures to protect rights are not wholly unsuitable or
inadequate.
The Court noted that in the context of the European Union’s target of
40% emissions reductions by 2030 and 20% below 1990 levels by 2020, the
German government’s 32% reduction was not completely inadequate.
Ultimately, the Court held that the plaintiffs had not conclusively
demonstrated that the government had violated its obligations by setting
inadequate climate protection targets.
11
Takeaways
The
Urgenda decision has been heralded as a landmark ruling
providing a clear path forward for concerned individuals around the
world to pursue climate litigation to protect human rights. The
principles in the case will add significantly to the current global
legal and political pressure being applied by citizens on their
governments to take urgent action on climate change.
However, the
Juliana decision reminds us that success in
such claims are jurisdictionally specific and will depend on the extent
to which the judiciary is willing to bind the executive and legislative
arms of government to commitments on climate change on the basis of
human rights.
Family Farmers indicates that even where a nation
has committed itself to specific reductions, the courts may be hesitant
to find that failing to meet those targets constitutes a breach of
human or constitutional rights. With litigation continuing across a
range of jurisdictions, these issues are likely to continue to arise as
more states address the relationship between climate change, human
rights and the separation of powers between policymakers and the
judiciary. To date, these types of claims have been commenced in Canada,
US, Pakistan, Norway and Colombia.
12
The
Teitiota, Sacchi et al and
Torres Strait petitions
reflect a growing movement by individuals who have been
disproportionately impacted by climate change to rely upon international
human rights conventions in an attempt to hold states accountable. The
Philippine Commission’s decision similarly demonstrates that where
available, domestic human rights bodies may also provide leverage for
further action on climate change. This decision has the potential to
lead to further litigation against fossil fuel companies, and tougher
domestic laws on legal liability for climate change.
Internationally, the combination of the Philippine Commission and
Urgenda decisions are likely to lead to an explosion of new claims which
place human rights front and centre.
Private law
As we begin 2020, we move further into what is referred
to as the “second wave” of climate change litigation targeting private
entities.
13 The
“first wave” from 2005 to 2015 largely consisted of unsuccessful public
nuisance and tort claims in the US which failed on causation grounds.
The recent “second wave” of litigation more broadly challenges private
entities with claims founded on human rights, corporation law, fraud and
misleading conduct and failures to adhere to planning controls and
environmental laws.
The number of claims seeking to influence corporate behavior relating
to climate change continues to increase, with the most common
defendants being fossil fuel corporations and associated entities.
Milieudefensie et al. v. Royal Dutch Shell plc. (Shell)
In April 2019, the environmental group Milieudefensie/Friends of the
Earth Netherlands commenced proceedings against Shell alleging Shell’s
contributions to climate change violate its duty of care under Dutch law
and human rights obligations.
The case was filed in the Hague Court of Appeal. It argues that given
the Paris Agreement’s goals and the scientific evidence regarding the
dangers of climate change, Shell has a duty of care to take action to
reduce its greenhouse gas emissions. The duty is said to arise from the
Dutch Civil Code as further informed by the ECHR which guarantees rights
to life (Article 2) and rights to a private life, family life, home,
and correspondence (Article 8). The plaintiffs’ argument outlines how
Shell’s long knowledge of climate change, misleading statements on
climate change, and inadequate action to reduce climate change help
support a finding of Shell’s unlawful endangerment of Dutch citizens and
actions constituting hazardous negligence.
The plaintiffs seek a ruling from the court that Shell must reduce
its CO2 emissions by 45% by 2030 compared to 2010 levels and to zero by
2050, in line with the Paris Agreement.
A claim has also recently been lodged by environmental groups and
local governments in the French courts against Total, which, like the
Shell litigation, seeks to force the company to reduce its emissions.
The plaintiffs are seeking orders from the court to require Total to
acknowledge the climate risks associated with its business activities
and align its business with the Paris Agreement.
Takeaways
Private law claims have, to date, largely been unsuccessful in the US.
14 However, the Shell case seeks to extend the principles from the
Urgenda litigation
to private companies. While each case relies on the ECHR, the results
may differ. It remains to be seen whether similar litigation against
corporations based on human rights claims will be commenced.
Company law and climate risk
Companies, shareholders and consumers are increasingly
accepting that corporate action on climate change is not necessarily
mutually exclusive with acting in shareholders’ best interests. In a
recent
update
we discussed the obligations on directors of companies in Australia and
New Zealand to disclose climate risks in their annual reporting.
Regardless of any formal disclosure requirements, corporations around
the world are becoming more aware that the physical and transitional
risks of climate change pose a very real threat to their current
business models.
The cases below demonstrate that shareholders, consumers and
regulatory bodies are often willing to commence proceedings where
corporations are perceived to have failed to take, or to have
misrepresented, meaningful action on climate change.
On 29 March 2019, the Centre for Policy Development in Australia
released an update of a 2016 legal opinion by Noel Hutley SC and
Sebastian Hartford Davis on how Australian law requires company
directors to consider, disclose and respond to climate change. The
Opinion emphasises five material developments since 2016, including
increased litigation risks, that have elevated the need for directors to
consider climate risks and opportunities and reinforced the urgency of
improved board level governance of this issue. The Opinion states that
the
“exposure of individual directors to ‘climate change litigation’ is increasing, probably exponentially, with time”.15 See our update on the Opinion for more detail.
Complaint against British Petroleum (BP) in respect of
violations of the Organization for Economic Cooperation and Development
(OECD) Guidelines
In December 2019, ClientEarth filed a complaint against BP’s
advertising campaign launched under titles "Keep Advancing" and
"Possibilities Everywhere" in January 2019. It argues that the campaign
is misleading in the way it presents BP's low-carbon energy activities.
The complaint alleges that the campaign breaches the OECD Guidelines
for Multinational Enterprises, which require clear, honest, accurate and
informative communications between enterprises and the public.
ClientEarth argues that the advertising campaign gives a false
impression of the relative scale of renewable and low-carbon energy in
BP's business, omits full lifecycle emissions for natural gas, claims an
inaccurate emissions saving against coal combustion, and asserts that
increases in global primary energy demand are both desirable and
inevitable for human progress and development.
ClientEarth requests that BP take steps to correct the allegedly
misleading information, including by withdrawing specific advertisements
and issuing a statement explaining the withdrawal. The complaint
further asks that the UK National Contact Point find BP in violation of
the OECD Guidelines if BP does not take the requested steps.
Complaint against Australia and New Zealand Banking Group
Limited (ANZ) in respect of the Organization for Economic and
Development (OECD) Guidelines
On 30 January 2020, Friends of the Earth Australia along with three
individuals filed a complaint with the Australian National Contact Point
(ANCP) of the OECD against ANZ. The complaint alleges that ANZ has not
adhered to the standards of the OECD Guidelines relating to due
diligence, disclosure, environment, and consumer interests.
Specifically, the complainants argue that the Paris Agreement targets
reflect the standard to which ANZ should be held under the OECD
Guidelines. They point out that ANZ is therefore breaching its
greenhouse gas reporting requirements, is failing to conduct adequate
due diligence regarding climate risks and is failing to prevent or
mitigate environmental impacts as a major financer of fossil fuel
energy.
In addition, ANZ is accused of failing to provide sufficient
information to its customers – for example, its indirect emissions from
business lending are omitted from its sustainability reports. The claim
places reliance on a similar claim brought before the Dutch National
Contact Point of the OECD against ING, thus illustrating the
multi-jurisdictional influence that decisions in a single nation can
exert.
16
The orders sought include ANZ being required to disclose high risk
greenhouse gas emissions resulting from business lending, divest from
investing in coal and phase out investment in other fossil fuel
industries, commit to the targets in the Paris Agreement and conduct
comprehensive climate-related scenario analysis for all sectors it
finances. Interestingly, the claimants also request that the ANCP
recommend to the Australian government that stronger laws be drafted for
emissions and energy reporting.
The three individuals involved in the complaint are Australian
citizens who have all been recently impacted by the Australian bushfire
crisis.
The People of the State of New York v Exxon Mobil Corporation (Exxon)
In December 2019, the Court found Exxon not guilty of perpetrating a
longstanding fraudulent scheme concerning the management of business
risks relating to climate change.
The core allegation by the New York Attorney General was that Exxon’s
publicly disclosed projected climate change costs were inconsistent
with internal projections, which had the effect of misleading investors
and the investment community. The common law fraud claims were withdrawn
during closing remarks, leaving the remaining statutory fraud claims
under New York’s Martin Act and Executive Act.
On 10 December 2019, the Court found Exxon not guilty of the
allegations. The Court ruled that the New York Attorney General failed
to prove that Exxon made material misrepresentations that misled any
reasonable investor. The case largely turned on the fact that the
misrepresentations were not “material” as required by the Martin Act, as
the majority of the evidence indicated that investment decisions were
not based on speculative assumptions of future climate change costs. The
New York Attorney General did not provide testimony from any investor
who was allegedly misled. There was also no evidence that Exxon’s stock
price increased immediately following publication of the alleged
misrepresentations.
The Court noted that the decision was not intended to absolve Exxon
from responsibility for contributing to climate change through the
emission of greenhouse gases, and reinforced that the proceedings were a
securities fraud case rather than a climate change one. See our recent
update on the decision, and our earlier
update on the background to the matter.
Commonwealth of Massachusetts v Exxon:
In October 2019 (before the above decision was handed down), the
Commonwealth of Massachusetts Attorney General filed a complaint in
Suffolk County Superior Court alleging that Exxon had deceived investors
by not disclosing climate change-related risks to its business, and had
deceived consumers through greenwashing campaigns and misleading
advertisements that failed to disclose the impact of its fossil fuel
products on climate change.
17
The matter is currently the subject of jurisdictional arguments as to
whether the case should be heard in the Federal or State court.
Mark McVeigh v Retail Employees Superannuation Pty Ltd (REST)
In July 2018, Mark McVeigh commenced proceedings against REST, one of
Australia’s largest pension funds with total assets over A$50 billion
and around 2 million members. Mr McVeigh’s claim originally centered on
REST’s failure to adequately disclose its strategy to manage climate
change risks, which allegedly prevented Mr McVeigh from making informed
judgments about the fund’s performance and management, and also breached
REST’s statutory disclosure requirements.
The claim has since been extended to alleging that REST breached its
fiduciary duties by failing to adequately consider the risks of climate
change in managing investments. REST denies that it has breached any
equitable or statutory duties, stating that climate change risks, which
are only one of many material factors that funds must consider, are
factored into its investment strategy and decision-making. See our last
update for more background on the matter.
Following a pre-trial hearing on preliminary costs issues, Justice Perram of the Federal Court of Australia noted that
“The
case appears to raise socially significant issues about the role of
superannuation trusts and trustees in the current public controversy
about climate change. It is legitimate to describe the Applicant’s
litigation as being of a public interest nature.”18
Asset and fund managers worldwide are currently grappling with the
issue of mitigating climate change risks when managing client’s assets.
This case, the first of its kind, is therefore being closely watched for
any guidance as to the relevant legal boundaries which may apply to
such considerations. The matter has been listed for hearing on 20 July
2020.
Takeaways
As one of the first cases about disclosure of climate-related
financial risks to go to trial, the outcome of the New York case is
significant. The fact that Exxon succeeded however reflects the
circumstances in which that particular case was brought and should not
necessarily be considered an indicator that other cases will similarly
fail.
In particular, although the Massachusetts case similarly argues that
Exxon misled investors, it is based on more recent events than that on
which the New York case is based, during which some investors have
become more critical of fossil fuel investments. Further, it is a
broader claim in that it also argues that Exxon breached consumer
protection laws. It may therefore produce a different result.
In an Australian context, the progression of the ANZ complaint and
the REST litigation is likely to be closely watched by the financial and
investment communities both within Australia and more broadly.
Planning and permitting
Many jurisdictions have long incorporated obligations
relating to ecological sustainable development in their planning
controls. This provides scope for claimants to push for the widest
possible interpretation of such obligations so as to address the
contributions which individual projects may have on climate change.
Specific instance under the OECD Guidelines for Multinational
Enterprises submitted to the Slovenian and UK National Contact Point for
the OECD Guidelines
In November 2019, 17 civil initiatives and organisations filed a
complaint to the Slovenian and British contact points for the OECD
Guidelines, demanding that British oil and gas company, Ascent
Resources, fully adhere to the Guidelines when applying for a permit to
expand fracking operations in Slovenia. The complaint principally
concerns Ascent Resources’ controversial hydraulic fracturing project in
East Slovenia. It is alleged that Guidelines on corporate social
responsibility have not been complied with, especially in regards to the
contribution to sustainable development, as hydraulic fracturing has
been found to have numerous detrimental impacts upon the local
environment, people’s health and the climate.
Friends of the Earth et al. v. Total
Six non-governmental organisations are suing Total in France,
alleging that it failed to adequately assess the threats to human rights
and the environment of the Tilenga oil project in Uganda and Tanzania.
Under France's Duty of Vigilance Law, French companies must identify and
prevent risks to human rights and the environment that could occur as a
result of their business practices. The allegation made is that the
project’s vigilance plan does not properly account for the project's
potential life cycle greenhouse gas emissions.
This is the first claim to be made under the French Duty of Vigilance
laws which were introduced in 2017 amid resistance from businesses and
will be crucial in determining their future interpretation and
application.
Wildlife of the Central Highlands Inc v VicForests
In the first litigation post the recent Australian bushfires, an
interlocutory decision was handed down by the Supreme Court of Victoria
on 29 January 2020 arising from the Victorian bushfires. On 28 January
2020, an urgent interim injunction was sought by the Wildlife of the
Central Highlands Inc to prevent VicForests (a State government
statutory entity) from logging bushfire impacted forests. The plaintiff
alleged that the particular forests contained threatened species and in
light of the fact that the Commonwealth and State bushfire responses
had not yet concluded, it was premature to harvest these forests. The
case put by the plaintiff relied upon incorporation of the
“precautionary principle” in the relevant Code of Practice for Timber
Production, which it asserted justified a ‘wait and see’ response,
subject to finalisation of the ongoing governmental responses.
The Court accepted that even though the plaintiff’s submission
resulted in an unprecedented expansion of the construction and
application of the Code (in the context of the implementation of the
precautionary principle), due to the severity of the bushfires and their
unprecedented impact, this may be an appropriate construction.
Accordingly, an interim injunction was granted and the matter will
proceed to a full hearing on 18 February 2020.
Takeaways
Increasingly, it can be expected that challenges will be lodged in
relation to developments which are likely to generate significant
greenhouse gas emissions, particularly in a context where these
developments are inconsistent with the goals of the Paris Agreement. As
we have seen in Australia with the likes of the
Rocky Hill decision (see our updates on this
here and
here),
it is possible that the courts will, in appropriate circumstances, use
international or national policies, laws or regulation to refuse new
development that will intensify the climate change problem or
conversely, suffer from the future impacts caused by climate change.
Conclusion
While governments continue to bear the brunt of the
claims, the trend in bringing claims against major carbon emitting
corporations is continuing and is expected to increase in 2020. Cases
against other corporates, including financial institutions and
investors, are also anticipated to increase as communities and
shareholders seek accountability for their role in greenhouse gas
mitigation. Increasingly, we expect that adaptation and climate
resilience issues may underpin future litigation, particularly in the
wake of significant climatic events, such as the recent dreadful
Australian bushfires. The recent VicForests decision is one such
example.
2020 also formally sets the start of the commitments made by nations
under the Paris Agreement, which should provide a setting for future
litigation across a number of fronts.
In our view, litigation will increasingly be used as a tool to
achieve outcomes consistent with a net zero emissions future. Indeed,
during the course of preparing this update over the course of one month,
there were a number of significant cases or complaints lodged, and we
expect the number of cases to increase exponentially, both across
jurisdictions and subject matter.
Please contact a member of our climate change team if you would like
further information about any of the cases covered in this update, or
would like to discuss climate change issues more generally.
The authors would like to acknowledge the contributions of Chloe Saker, Shaun Buckton and Sophie Sanderson to this update.
Footnotes
1See
2Note this map does not include the cases filed in the UN Committees.
3UN Human Rights, Office of the High Commissioner, News, “”, 20 December 2019.
4Geetanjali Ganguly, “If at First you don’t Succeed: Suing Corporations for Climate Change”
Oxford Journal of Legal Studies
Volume 38 Issue 4, Winter 2018, pp 841-868; Joana Setzer and Rebecca
Byrnes, “Global trends in Climate Change Litigation: 2019 Snapshot”,
Grantham Research Institute on Climate Change and the Environment and
Centre for Climate Change Economics and Policy, London School of
Economics and Political Science, July 2019.
5See e.g. Jeremy Moss and Persephone Fraser, “Australia’s Carbon Majors Report”,
Practical Justice Initiative, UNSW (2019).
6US Court of Appeals for the Ninth Circuit, No. 18-36082, D.C. No. 6:15-cv-01517AA, , 17 January 2020.
7UN Human Rights, Office of the High Commissioner, UN Treaty Body Database, .
8US Court of Appeals for the Ninth Circuit, No. 18-36082, D.C. No. 6:15-cv-01517AA, , 17 January 2020.
9Our Children’s Trust, , 17 January 2020.
10Client Earth, Press Release - , 12 May 2019.
11See .
12See
Mathur et. al. v. Her Majesty in Right of Ontario in
Canada; La Rose et. al. v. Her Majesty the Queen filed in Canada;
Juliana v US, Greenpeace Nordic Ass’n and Nature and Youth v Ministry of
Petroleum and Energy, Thomson v Minister for Climate Change Issues
filed in New Zealand; Rabab Ali v Federation of Pakistan in Pakistan.
13Geetanjali Ganguly, “If at First you don’t Succeed: Suing Corporations for Climate Change”
Oxford Journal of Legal Studies Volume
38 Issue 4, Winter 2018, pages 841-868; Joana Setzer and Rebecca
Byrnes, “Global trends in Climate Change Litigation: 2019 Snapshot”,
Grantham Research Institute on Climate Change and the Environment and
Centre for Climate Change Economics and Policy, London School of
Economics and Political Science, July 2019.
14See e.g.
American Electric Power Co. v Connecticut 564 U.S. 410, (2011) (Connecticut);
Comer v. Murphy Oil USA, Inc., 585 F.3d 855 (5th Cir. 2009) (Comer).
15Mr Noel Hutley SC and Mr Sebastian Hartford Davis, Climate
Change and Directors’ Duties, Supplementary Memorandum of Opinion, 26
March 2019, .
16Oxfam Novib, Greenpeace Netherlands, BankTrack and Friends of
the Earth Netherlands (Millieudefensie) versus ING’ (19 April 2019)
17
18McVeigh v Retail Employees Superannuation Pty Ltd [2019] FCA 14 per Perram J.
