Norton Rose Fulbright - Elisa de Wit | Sonali Seneviratne
Introduction
Content - Introduction
- Constitutional law and human rights
- Private law
- Fraud and consumer protection
- Company law and climate risk
- Planning and permitting
- Administrative law and torts
- Conclusion
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Since our
last update, progress on addressing climate change has slowed as the world grapples with responding to the devastating COVID-19 pandemic.
As recently noted by António Guterres, the UN SecretarZy General “the
world is way off track” in taking action consistent with the targets in
the Paris Agreement.
The effects of the COVID-19 pandemic on climate change litigation are
not yet certain—it remains to be seen whether there will be fewer new
filings, a slower pace of determination of matters, or a shift in the
types of cases or grounds argued, such as tying threats to human health
to the impacts of climate change.
So far, there continues to be a strong appetite for climate change
litigation. The use of litigation as a form of protest by climate
activist groups, a focus on human rights violations in the context of
climate change, and pressuring of fossil fuel companies to develop
climate strategies continue to emerge as important trends in litigation
strategies and in the types of argument being adopted by litigants.
As at November 2020, the total number of climate change cases filed to date has reached over 1,650, up from about 1,444 as at February this year. Cases have now been filed
in all six continents and in at least 36 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, the United Kingdom, the European
Union, Canada, New Zealand, and Spain.
This legal update considers key developments and cases since February 2020.
The cases are divided into the following categories:
- Constitutional law and human rights
- Private law
- Fraud and consumer protection
- Company law and climate risk
- Planning and permitting
- Administrative law and torts
Constitutional law and human rightsSince the landmark
Urgenda case (see our previous updates on this litigation
here,
here and
here),
human rights-related cases are emerging as a dominant climate
litigation strategy, with the Grantham Institute labelling this trend as
the “human rights turn” in climate litigation.
Lho’imggin et al v Her Majesty the Queen
In February 2020, two houses of the Wet’suwet’en, a First Nations
people who live in the Central Interior of British Columbia, filed a
complaint against the Government of Canada for failing to follow through
on the commitments it had made to reduce Canada’s GHG emissions,
including most recently the Paris Agreement.
The plaintiffs have brought
their claim under various provisions of Canada’s Constitution and the
Charter of Rights and Freedoms, alleging that they have faced mounting
issues as a result of climate change, including insect infestations and
wildfires in their forests and declining numbers of forest food animals
and salmon in their fishery.
The plaintiffs are seeking a court order declaring Canada’s
environmental assessment statutes that allow for high GHG emissions to
be unconstitutional, and that, if Canada is not able to meet its
obligations under the Paris Agreement (or finds climate change to be a
national emergency), it may withdraw approval for high emission
projects.
They are also seeking an order that would require Canada to
complete an annual, independent account of its cumulative GHG emissions
to show whether it is meeting its Paris Agreement commitments. The
proceeding is pending.
Do-Hyun Kim et al v South Korea
In March 2020, 30 South Korean youths filed a complaint alleging that South Korea’s
Framework Act on Low Carbon, Green Growth (
Framework)
is unconstitutional as its commitment to reduce annual nationwide GHG
emissions to 536 million tonnes by 2030 is insufficient to keep global
warming below 2°C as decided under the Paris Agreement.
The complainants argue the Framework breaches constitutional human
rights by risking present and future loss of environment, human
conditions, health and life due to the ongoing increase of GHG emissions
temperature. The petitioners are asking the Court to declare the
Framework unconstitutional and order the South Korean Government to
correct the unconstitutional situation. This case is the first of its
kind in East Asia.
Youth Verdict Ltd v Waratah Coal Pty Ltd
In May 2020, various parties led by Youth Verdict Ltd, which
represents Australian Indigenous and non-Indigenous young people,
commenced proceedings against the approvals granted for Waratah Coal’s
Galilee Coal Project in the Queensland Land Court.
The Galilee Coal Project is estimated to be more than four times the
size of Adani’s Carmichael Coal Mine. The objectors rely on the
Human Rights Act 2019
(Qld) to argue that the mine is unlawful because it breaches human
rights by inciting climate change that will risk the future, life, and
culture of Queenslanders.
The human rights alleged to be breached
include the right to life, protection of children, and cultural rights
of Aboriginal and Torre Strait Islander Peoples.
Waratah Coal tried to strike out the objections, arguing that the
Court did not have jurisdiction to deal with the matter and the
objectors did not have standing because they were corporate entities and
only individuals possess human rights. On 7 August 2020, the Queensland
Land Court dismissed Waratah Coal’s strike out application but the
Court is yet to decide on the substantive application.
We will keep a watching brief on whether similar cases will be
brought under other State based human rights legislation such as the
Human Rights Act 2004 (ACT) and the
Charter of Human Rights and Responsibilities Act 2006 (Vic).
La Rose v Her Majesty the Queen
In October 2019, a lawsuit was filed with the Federal Court of Canada
on behalf of 15 youth plaintiffs against the Canadian government. The
plaintiffs’ statement of claim alleged that the Canadian government had
failed to protect the plaintiffs’ human rights by not taking adequate
action to address climate change.
In particular, the plaintiffs alleged
that climate change is impacting their right to life, liberty, security
of the person and their right to equal opportunity under the law. The
lawsuit is based on sections 7 and 15 of the Canadian Charter of Rights
and Freedoms, as well as the Public Trust Doctrine. The plaintiffs have
sought declaratory relief as well as an order that requires the Canadian
government to develop and implement an enforceable climate recovery
plan.
In October 2020, the Federal Court of Canada made a pre-trial motion
to strike out the plaintiffs’ statement of claim without leave to amend,
on the basis that the statement of claim did not include a reasonable
cause of action.
The Court also held that the claims regarding the
Canadian Charter of Rights and Freedoms were not justiciable, and that
whilst the Public Trust Doctrine was justiciable, a reasonable cause of
action was not disclosed.
The plaintiffs have appealed the decision to the Federal Court of
Appeal alleging that the Federal Court of Canada erred in making the
motion.
Youth for Climate Justice v Austria et al
In September 2020, 6 Portuguese youths filed a complaint with the
European Court of Human Rights against 33 countries including the Member
States of the European Union, Norway, Russia, Switzerland, Turkey,
Ukraine and the United Kingdom.
The complaint outlines how the 6 Portuguese youths face risks to
their lives and wellbeing due to climate change, stating that climate
change is causing heatwaves in Portugal to occur more frequently which
has associated consequences.
The applicants allege that by failing to
take sufficient climate action, the States have breached Articles 2 and 8
of the European Convention on Human Rights (
ECHR), which establish the right to life and the right to family and private life.
The applicants also allege that the States have discriminated against
youth, breaching Article 14 of the ECHR, as climate change will impact
youth more than older generations. They state that
“[t]here is no
objective and reasonable justification for shifting the burden of
climate change onto younger generations by adopting inadequate
mitigation measures”. The applicants seek an order requiring the States to take more ambitious climate action.
In November 2020, the Court accepted the application and communicated
it to the States. The States have until the end of February 2021 to
respond.
Takeaways
The
Do-Hyun Kim,
Lho’imggin and
Youth Verdict
cases reflect a growing movement by individuals who have been
disproportionately impacted by climate change to rely upon domestic
constitutional or human rights laws and international conventions in an
attempt to hold states accountable.
However, with respect to domestic claims, the
La Rose
decision reminds us that success in such claims are jurisdictionally
specific and will depend on the extent to which the judiciary is willing
to accept that it is an appropriate forum to address issues associated
with climate change.
Private law
Private law claims have, to date, largely been unsuccessful in the US.
As compared to governments’ duties to protect its citizens (as
discussed above), the obligations of a corporation under private law is
not as well defined.
Smith v Fonterra Co-Operative Group Limited
In March 2020, the High Court of New Zealand permitted the plaintiff,
who brought legal proceedings against 7 defendants that operate
greenhouse gas emitting facilities, to proceed to trial. The plaintiff
originally sought to hold the defendants liable for public nuisance,
negligence and breach of a duty to stop contributing to climate change.
The plaintiff’s claim in public nuisance was rejected, as the Court
found that the damage claimed was not particular to the plaintiff, and
that the damage was not a direct result of the defendants' activities.
The plaintiff’s negligence claim also failed.
The Court found that the
damage claimed was not reasonably foreseeable, and the relationship
between the defendants and the plaintiff was not sufficiently proximate
to give rise to the relevant duty of care.
In relation to the plaintiff’s claim that the defendants breached a
new tortious duty of care to cease contributing to climate change, the
Court noted that there may be
“significant hurdles” in persuading the Court that the duty should be recognised.
However, the Court was reluctant to conclude that
“the recognition of a new tortious duty which makes corporates responsible to the public for their emissions, is untenable”. It was ultimately determined that the issues should be explored at trial.
Takeaways
It remains to be seen whether these types of claim brought under tort
law will ultimately be successful or whether there may be a move
towards the use of human rights-related claims.
As we noted in our
last update, the
Shell case has sought to extend the principles from the
Urgenda
litigation to private companies, including by arguing that a private
company has a duty of care under Dutch law and human rights obligations.
The
Fonterra case shows that there is appetite for arguing
these types of novel claims and courts may be receptive to holding
corporates to account for their contribution to climate change.
Fraud and consumer protection
These disputes typically involve claims against companies
for misleading consumers or investors on the impact of the fossil fuel
products that they have marketed and sold, and the climate change-driven
risks to their businesses.
At least 7 new suits against carbon majors have been commenced in state courts in the US since our
last update,
including Minnesota and District of Columbia in June, followed by
Hoboken, Charleston, Delaware and Connecticut in September.
This brings
the total number of lawsuits filed across the US against carbon majors
since 2017 to over 30. With the defendants being unsuccessful in
transferring previous cases to the Federal Court, the suits are likely
to continue to be filed in state courts. We have summarised a couple of
these new cases below.
State of Minnesota v American Petroleum Institute et al
In June 2020, the Attorney General for the State of Minnesota filed a
lawsuit against American Petroleum Institute, ExxonMobil, Koch
Industries and Flint Hills Resources on the basis of internal documents
dating back to the 1970s and 1980s which allegedly confirm that the
companies
“well understood the devastating effects that their products would cause to the climate”.
The Attorney General alleges, amongst other things, that the defendants have profited from
“avoiding the consequences and costs of dealing with global warming” and that they deliberately undermined
“the
science of climate change, purposefully downplaying the role that the
purchase and consumption of their products played in causing climate
change”.
The lawsuit includes claims for fraud, failure to warn, and multiple
separate violations of Minnesota Statutes that prohibit consumer fraud,
deceptive trade practices and false statements in advertising. The
Attorney General is seeking damages for alleged harms suffered by
Minnesotans and orders that the companies fund a corrective public
education campaign on the issue of climate change.
The case is currently the subject of jurisdictional arguments as to whether it should be heard in the Federal Court.
District of Columbia v Exxon Mobil Corporation et al
In June 2020, the Attorney General for the District of Columbia filed
a complaint against Exxon Mobil, BP, Chevron and Shell alleging that
they have
“systematically and intentionally misled consumers in
Washington DC… about the central role their products play in causing
climate change”.
The Attorney General claims that the defendants have breached the
Consumer Protection Procedures Act.
The complaint states that the defendants have deceived consumers in
Washington DC on the impacts of climate change in order to protect
profits.
The Attorney General alleges further that as consensus grew
within the scientific community around the relationship between fossil
fuels and climate change, the defendants exaggerated their commitments
to reducing reliance on fossil fuels and concealing their products harm.
The Attorney General is seeking an order that the defendants cease
the alleged’ disinformation campaigns’, provide financial relief for
consumers of DC and pay civil penalties.
Exxon Mobil have responded to
the compliant on behalf of all defendants seeking to move the
proceedings to the Federal Court, alleging that the suit aims to limit
fossil fuel use, and not address consumer fraud, and therefore is a
Federal issue. The outcome of the challenge is pending.
State of Delaware v BP America Inc et al
In September 2020, the Delaware Attorney General filed a lawsuit in
the Superior Court of Delaware against 31 fossil fuel companies as well
as the American Petroleum Institute.
The complaint alleges that the
named companies have known the climate change impacts of fossil fuels,
and seeks financial compensation under the
Consumer Fraud Act.
In addition to past deceit, the complaint is also focussed on the
current practices of these companies, including ongoing “Greenwashing
Campaigns.”
A second cause of action is trespass, by causing
“floodwaters, extreme precipitation, saltwater encroachment, and other materials to enter the State’s real property”
as a result of the use of the defendants’ fossil fuel products.
This
focus on flooding is of particular relevance to Delaware, which has the
lowest average elevation of the United States and will, according to the
complaint, cause the State to incur substantial costs to prevent and
rectify the damage of rising sea levels.
The case is currently the subject of jurisdictional arguments as to whether it should be heard in the Federal or State Court.
Takeaways
The new US cases against carbon majors build on previous cases, including the unsuccessful
New York case and ongoing
Massachusetts case summarised in our
last update.
However, the claims appear to have moved away from alleging that
companies misled investors, towards alleging that they misled consumers
and that the companies acted together to violate consumer fraud
legislation.
Suits are also generally being brought against multiple
companies. Further, beginning with
Minnesota,
the cases have also begun to include the American Petroleum Institute
as a defendant. The trend of suits is expected to continue.
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.
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, individuals and
regulatory bodies are often willing to commence proceedings where
corporations are perceived to have failed to take meaningful action on
climate change or have misrepresented their actions.
Complaint against Australia and New Zealand Banking Group Limited (ANZ) in respect of the Organization for Economic and Development (OECD) Guidelines
In January 2020, Friends of the Earth Australia along with three
individuals (who had been affected by the Australian bushfire crisis)
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. See our
previous update for a summary of the complaint.
In November 2020, ANZ published its updated climate change policy
statement supporting the Paris Agreement’s goal of transitioning to net
zero emissions by 2050, and acknowledging that some of its stakeholders
view financing of fossil fuel industries as in conflict with ANZ’s
stated position of the need to reduce emissions.
The statement contains
several commitments including improving transparency to show how ANZ’s
financing decisions support the achievement of Paris Agreement goals and
further reducing the carbon intensity of their electricity generation
lending portfolio by only directly financing low carbon gas and
renewable projects by 2030.
Also in November, the ANCP published its initial assessment,
accepting that the issues raised in the complaint surrounding
disclosure, target-setting and scenario analysis merit further
assessment and offering ‘good offices’ to the parties for discussion on
those matters.
The next phase of the complaint process involves
consultation with the parties and may take up to a year. We expect that
during this period the ANCP and notifiers will closely examine the
measures identified in ANZ’s updated climate change policy statement.
Mark McVeigh v Retail Employees Superannuation Pty Ltd (REST)
In July 2018, Mark McVeigh commenced proceedings against REST, one of
Australia’s largest superannuation funds with total assets over A$50
billion and around 2 million members.
Mr McVeigh’s claim alleged that
REST failed to adequately disclose its strategy to manage climate change
risks, breached its statutory disclosure requirements, and breached its
fiduciary duties by failing to adequately consider the risks of climate
change in managing investments. See our previous updates
here and
here for more background on the case.
In November 2020, on the morning of the trial, the parties settled
the proceedings, subject to REST publicly announcing a number of
commitments regarding its handling of climate change risk. REST’s public
statement significantly acknowledges that climate change is a material,
direct and current financial risk to the superannuation fund.
It also
identifies 9 initiatives which include that REST commits to enhancing
its consideration of climate change risks when setting its investment
strategy and asset allocation positions, conducting due diligence and
monitoring of investment managers and their approach to climate risk,
publicly disclosing the fund’s portfolio holdings, reporting outcomes on
its climate change-related progress and actions, and implementing a
long-term objective to achieve a net zero carbon footprint for the fund
by 2050.
Takeaways
Although the REST case settled, meaning that its undertakings are not
enforceable in court and it does not set legal precedent, companies and
the members of the public are likely to monitor whether REST’s
undertakings are implemented. It has also shown the public that
individuals can take actions which lead to positive outcomes, even if
litigation does not proceed to trial.
Given that REST is one of
Australia’s largest super funds, we expect the position that it has
taken in settling the proceedings may influence other funds, both in Australia and internationally, to review their processes for
handling climate change risk in order to prevent the risk of attracting
similar public interest litigation.
The progression of the ANZ complaint is also likely to be closely
watched by the financial and investment communities within Australia and
more broadly.
Planning and permitting
Many jurisdictions have long incorporated obligations
relating to ecological sustainable development in their planning
controls. Some jurisdictions have laws which require consideration of
GHG emissions, or adaptation to and mitigation of climate change
specifically in the development of policy or approval of projects.
This
provides scope for claimants to push for the widest possible
interpretation of such obligations so as to address the contributions
which individual projects or policies may have on climate change.
R (on the application of Friends of the Earth Ltd) v Heathrow Airport Ltd UKSC; R (on the application of Friends of the Earth Ltd and others) v Arora Holdings Ltd
In February 2020, the Court of Appeal of England and Wales unanimously ruled that the Airports National Policy Statement (
NPS),
which provided for the construction of a third runway at Heathrow
Airport, was invalid and its designation as a NPS was unlawful on
several grounds including notably that it failed to take into account
the UK Government’s commitment to the 2015 Paris Agreement.
Under the
Planning Act 2008 (UK), the Secretary of State was required to explain how the national policy
“takes account of Government policy relating to the mitigation of, and adaptation to, climate change”.
At the time of designation of the NPS in 2018, the UK had legislated a
2050 target of achieving at least an 80% reduction in its GHG emissions
from 1990 levels under the
Climate Change Act 2008 (UK). The
Secretary took this target into account but, on legal advice, chose not
to take the Paris Agreement into account at all.
The Court determined that the UK government’s commitment to the Paris
Agreement was part of “Government policy” and was required to be taken
into account. See our previous legal updates for more detail on that
case
here and
here.
In May 2020, the Supreme Court granted Heathrow Airport Limited and
Arora Holdings Limited permission to appeal the Court of Appeal’s
ruling. Among other things, the appellants argue that treating the Paris
Agreement as "government policy" for the purposes of the Planning Act
and as a mandatory consideration runs contrary to the common law
principles of a “dualist system”.
Accordingly, the appellants argue that
the case raises issues of general public importance warranting
consideration by the Supreme Court. The hearing was held in October and
judgment is awaited.
R (on the application of ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy
In May 2020, the High Court (UK) dismissed ClientEarth’s judicial
review challenge to the Secretary of State’s decision to grant
development consent to build and operate two new gas-fired generating
units at the Drax Power Station.
When granting consent, the Secretary of
State noted “the significant adverse impact” of the development in
terms of the amount of GHG emissions that would be emitted, but
concluded that they did not afford a reason to refuse consent.
This was
because the policy objectives of a national policy statement (
NPS)
for nationally significant energy infrastructure assumed a continued
need for fossil fuel power generation and the development of the Drax
Power Station would be a significant contribution towards this.
ClientEarth challenged the decision on eight grounds, including that
the defendant had misinterpreted the NPS when assessing the project's
GHG emissions and the assessment of the need for the development, and
failed to fully consider the UK Government’s net zero target under the
Climate Change Act 2008
(UK).
ClientEarth argued that because of events since 2011 when the NPS
was developed, including the adoption of the net zero target, there was
no need for any future new large gas-fuelled power stations to be
built.
In dismissing the claim, the Court agreed with the defendant’s
interpretation that the NPS assumed a general need for fossil fuel power
generation, and
held that the award of the development consent
was in accordance with the NPS, notwithstanding the GHG emissions that
would be generated as a result.
In July 2020, the Court of Appeal granted ClientEarth’s application
to appeal the High Court’s decision. The appeal was heard in
mid-November and judgment is awaited.
Vince v Secretary of State for Business, Energy and Industrial Strategy
In May 2020, following on from the above case, separate proceedings
were commenced by Dale Vince, CEO of Ecotricity, journalist George
Monbiot, and the Good Law Project, seeking judicial review of six
national policy statements (
NPS) for energy
infrastructure issued by the UK Government in 2011. The claimants argue
that the NPSs should be reviewed in light of new British and global
climate commitments.
In this case, the claimants allege that the Government is required by the
Planning Act 2008 (UK) to review the NPSs in light of the Paris Agreement, the amendment to the
Climate Change Act 2008
(UK) last year to set the UK’s net zero target by 2050, the
Parliament’s declaration of a climate emergency, the IPCC Special report
on 1.5 degrees of warming and UK’s exit from the European Union.
The
claimants also allege that the NPSs unlawfully frustrate the intention
of Parliament, which approved the amendment of the Climate Change Act to
set the net zero target.
The claimants seek a declaration that the government must review the NPSs or, alternatively, that the NPSs are unlawful.
Takeaways
Increasingly, it can be expected that challenges will be lodged in
relation to developments which are likely to generate significant GHG
emissions and policies that continue to support fossil fuel
developments, particularly in a context where these developments are
inconsistent with the goals of, and commitments made under, the Paris
Agreement.
As we have seen with the
Heathrow Airport decision in the UK and
Rocky Hill decision in Australia (see our update
here),
the courts will, in appropriate circumstances, use international or
national policies, laws or regulation to refuse new development that
will intensify climate change or conversely, suffer from the future
impacts caused by climate change.
Administrative law and torts
Administrative law claims involve those against
governments challenging the application and enforcement of climate
change legislation and policy. Often these cases overlap with planning
and permitting laws challenging decisions on individual projects, as set
out above.
Sharma v Minister for the Environment
In September 2020, 8 young Australians commenced a class action in
the Federal Court of Australia, seeking an injunction to restrain the
Commonwealth Minister for the Environment from approving Whitehaven’s
proposed Vickery coal mine expansion in New South Wales.
The proceedings
were commenced on behalf of the applicants and all children born before
the commencement date of the proceeding.
The application contends that the Minister owes the applicants, as
young Australians, a common law duty of care, and approving the mine
expansion will accelerate climate change and therefore breach that duty.
The intention of the applicants is to
“set a precedent that would prevent all new coal mines from being approved in this country.”
The success of
Urgenda in 2015 prompted debate in academic
and legal circles about the potential for, and hurdles involved in,
running similar litigation based on tort law in Australia. Five years on,
Sharma
will test the duty of care approach in Australia.
For the claim to be
successful, it will require the Court to first find a duty of care is
owed by the Minister to the applicants before addressing the separate
question of whether approving the coal mine expansion is a breach of
that duty.
There would be significant precedent implications for
Australian climate litigation if either of these are proven by the
applicants. If the Court holds that the Minister owes such a duty of
care, it could potentially create a risk of legal action in connection
with the approval of any GHG emitting projects.
O’Donnell v Commonwealth of Australia
A law student filed proceedings in the Federal Court of Australia in
July 2020 against the Australian government and select government
officers, including the Secretary to the Department of Treasury and the
Chief Executive of the Australian Office of Financial Management, for
failing to adequately disclose climate change risks to the value of
government bonds to investors.
The claim suggests that climate change is
a risk to the value of investments in government bonds, which must be
disclosed to potential investors as it is material to an investor’s
decision to trade in such bonds. It appears to be the first case
globally to make this claim but draws on similar cases against private
companies involving misleading disclosure and directors’ duties.
O’Donnell’s claim has two limbs: first, the government breached its duties under s 12DA(1) of the
Australian Securities and Investments Commission Act 2001
(Cth) by engaging in misleading or deceptive conduct by promoting the
bonds without disclosure of Australia’s climate risk; and second, breach
of the duty under s 25(1) of the
Public Governance, Performance and Accountability Act 2013 (Cth) by failing to exercise functions with reasonable care and diligence.
O’Donnell is seeking a declaration that the duties were breached, and
also an injunction preventing the government from promoting bonds until
it updates its disclosure policies.
If the claim is successful, the case may have consequences for duties
to disclose climate risks for government and private sector investment
providers.
Friends of the Earth Limited v Secretary of State for International Trade & President of the Board of Trade and the HM Treasury
On 8 September 2020, Friends of the Earth brought a claim under the
Aarhus Convention challenging the UK Government’s decision to provide
USD 1 billion in financial support for the development of an LNG project
with Total in Mozambique.
Friends of the Earth is challenging the legality of decisions made by
the Secretary of State, HM Treasury and UK Export Finance in respect of
the project under Articles 9(1) and Article 9(3) of the Aarhus
Convention.
The claim for judicial review is based on the following
grounds: (i) unlawful failure by the UK Government to follow its own
policy in relation to international standards, transparency and
accountability; and (ii) unlawful failure to take account of relevant
factors, including compliance with relevant applicable standards and
benchmarking.
Friends of the Earth has stated that the investment also breaches
“a number of other international law standards on the environment and human rights”
and has criticised the decision of UK Export Finance to withhold
disclosure of the assessment undertaken in respect of the environmental
impact of the project. It is also argued that the investment failed to
properly consider the UK’s commitments under the Paris Agreement.
The case is ongoing.
Takeaways
The above cases illustrate the willingness of litigants, particularly
those physically affected by climate-related natural disasters or
disproportionately affected by climate change, and living in
jurisdictions where there is no human rights or constitutional basis, to
explore new causes of action to hold governments to account.
The willingness of courts to embrace new arguments and establish new
precedents against governments in climate change litigation should be
closely monitored, given that such claims could signal a precursor for
action against private sector parties.
Conclusion
Although any impacts of the COVID-19 pandemic on climate
change litigation are yet to be realised, we expect the momentum of
increasing climate litigation to continue into 2021 to achieve outcomes
consistent with a net zero emission future.
This is particularly because
“[r]ecord heat, ice loss, wildfires, floods and droughts continue
to worsen, affecting communities, nations and economies around the
world”. Further, according to an Australian Government report,
“[c]oncentrations of all the major long-lived greenhouse gases in the atmosphere continue to increase” and
“[d]espite a decline in global fossil fuel emissions of CO2 in 2020 associated with the COVID-19 pandemic, this will have negligible impact in terms of climate change”.
While governments continue to be the most likely defendant in climate
change litigation, we expect the trend in bringing claims against
corporations to continue. In addition to new claims against major carbon
emitting entities, we expect that cases against other corporates, such
as financial institutions and investors, will also increase as
communities and shareholders seek accountability for their role in GHG
mitigation.
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.
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