Australia: Climate change litigation: is your business prepared?

Last Updated: 30 August 2018
Article by Elisa de Wit

Introduction

Climate change litigation is becoming increasingly prevalent and has the potential to substantially disrupt business activities or operations, with subsequent cost implications. Accordingly, it is not surprising that businesses have considered stepping up their efforts to understand, assess and minimise their exposure to risks associated with climate change related legal action.

The number of climate change cases filed has increased substantially in recent years. To date, approximately 1,154 climate change cases have been filed worldwide.1 The majority of climate change litigation has occurred in the United States (US), followed by Australia, the United Kingdom (UK), the European Union, New Zealand, Canada and Spain.2

Key risks to business associated with climate change litigation, among others, include exposure to damages claims, financial and reputational cost of defending litigation, disruption to operations and enforcement of financial disclosure requirements.

In this legal update, we draw on relevant case summaries, highlighting key trends, developments and lessons in relation to climate change litigation. In particular, we focus on the following categories of legal cases:

  • Legal action against energy companies for emissions contributing to climate change
  • Legal action against businesses for failure to disclose climate related financial risks
  • Legal action against government, indirectly affecting business operations

Legal action against companies for contributions to climate change

There is a growing trend of legal action targeting businesses, particularly fossil fuel and other energy companies, on the basis that their greenhouse gas emissions have contributed to climate change.

Local and state governments in both coastal and landlocked jurisdictions have been the main instigators of this kind of legal action.3 While these cases have predominantly arisen in the US, they are also beginning to occur in other jurisdictions.4 Large fossil fuel focused corporations have been the main target of such litigation, presumably because they produce a substantial proportion of carbon emissions and are viewed to have the financial resources to meet large claims.

Case summaries

Below, we consider three significant climate change disputes which highlight the nature of claims seeking either a cap on emissions or compensation for harm caused by fossil-fuel induced climate change.

American Electric Power Co. v. Connecticut (Connecticut)

This case involved an action by several US state and local governments, as well as land trusts, against five US energy companies.

The governments alleged that the energy companies had been contributing to the nuisance of global warming through their greenhouse gas (carbon) emissions and sought an order to cap and reduce their carbon emissions.

The energy companies represented the five largest corporate emitters of carbon dioxide in the US, owned and operated fossil fuel-fired power stations in twenty states and generated significant revenue and market share.

In an 8-0 decision, the US Supreme Court dismissed the complaint, holding that federal common law in this area was displaced by the Clean Air Act; and since Congress had entrusted the Environmental Protection Authority to decide how greenhouse gases should be regulated, it was not for federal courts to issue their own rules.

Decided in 2011, Connecticut is a seminal case that has set a high bar for parties, particularly in the US, seeking to rely on common law grounds such as nuisance to make companies with large emission profiles reduce emissions.

Nonetheless, this and other more recent cases demonstrate a growing willingness for parties to attempt to use the courts as a last resort to achieve emissions reduction outcomes.


Lliuya v. RWE AG (Lliuya)

Saúl Luciano Lliuya, a Peruvian farmer, filed claims for declaratory judgment and damages in a German court against RWE AG (RWE), Germany's largest electricity producer. Lliuya's suit alleged that RWE knowingly contributed to climate change by emitting substantial volumes of greenhouse gases, which caused the melting of mountain glaciers near his town, thereby giving rise to flooding risk. Lliuya characterised RWE's emissions as a nuisance that he and the local authorities had incurred compensable costs to mitigate.

Acknowledging that RWE was only a contributor to climate change, Lliuya asked the court to order RWE to reimburse him for 0.47% of the costs incurred to establish flood protections, in proportion to RWE's estimated annual contribution to global greenhouse gas emissions.

The court at first instance dismissed Lliuya's requests for declaratory and injunctive relief, as well as his request for damages. The court noted that it could not provide Lliuya with effective redress, in that his situation would not change even if RWE ceased emitting, and that no linear causal chain could be discerned directly linking RWE's emissions to the harms suffered by Lliuya.

On 30 November 2017, an appeal court allowed Lliuya's appeal against that decision. The court held that his arguments for damages from RWE were admissible and allowed the case to proceed.

The next phase of this proceeding is for the court to examine the evidence underpinning Lliuya's claim. While the facts must be established, the court's recognition in this case that a private company could be liable for climate change related damages resulting from its greenhouse gas emissions is a notable development.5


City of Oakland v. BP p.l.c. (Oakland).

On 19 November 2017, San Francisco and Oakland local governments (Oakland Plaintiffs) filed lawsuits in the California Superior Court against five large energy companies, claiming that the carbon emissions from the fossil fuels they had produced and sold had created an unlawful public nuisance. The Oakland Plaintiffs sought to require the companies to abate the alleged nuisance by funding a climate adaptation program to protect public and private property from sea level rise and other climate change impacts.

On 25 June 2018, the federal district court for the Northern District of California granted a motion to dismiss the complaints, applying Connecticut and Kivalina.

The Oakland Plaintiffs attempted to differentiate their claims from the above cases on the basis that the claims were not in relation to the companies' greenhouse gas emissions, but rather, the sale of fossil fuels to other parties who would eventually burn them.

However, the court rejected this argument, stating that if the companies could not be sued for their own greenhouse gas emissions, they could not be sued for the greenhouse gas emissions of others. Further, the court held that while the Clean Air Act, and thus presumption of displacement by the legislature, did not apply to foreign emissions, it did not have jurisdiction to deal with such claims, which were the domain of the executive and legislature.
This case is a recent reinforcement of the position in Connecticut and similar cases.


Takeaways

Consistent with the cases outlined above, the most common legal basis for claims in this category has been the common law tort of nuisance,6 with global warming characterised as the relevant nuisance and greenhouse gas emissions as contributions to this nuisance. Alternative grounds include trespass,7 negligence,8 civil conspiracy,9 environmental laws and human rights laws.10

Litigants have sought damages11 for:

  1. alleged loss arising from harm already caused,
  2. the prospective adaptation costs of dealing with climate change in future,12 and
  3. injunctive relief to limit greenhouse gas emissions.13

Most claims have been unsuccessful so far.14 Key barriers for parties bringing claims have been the court's lack of authority to consider the matter (ie justiciability), difficulties in establishing a causal link between the greenhouse gas emissions of specific businesses and the harm suffered (ie causation), and demonstrating that the party seeking to bring the action has sufficient connection to the issue (ie standing) to support that party's participation in the case.

Despite these barriers, the number of claims continues to rise. Over time, there may be increasing pressure on companies to accept responsibility for activities which contribute to climate change from parties who bear the costs of addressing the impacts of climate change, such as the governments and farmer in the cases considered above.

Further, new research, such as Heede's study mapping and quantifying cumulative emissions of the 90 largest carbon producers, and other developments in climate attribution science, may be used in an attempt to support new claims which hope to overcome the causation barriers of earlier cases.15

Even where the claim is unsuccessful, defending this kind of litigation can involve significant financial and reputational costs. Further, there is a risk that costs associated with climate change litigation may not be covered by general commercial liability insurance where they are not "accidental', leaving businesses who are sued on climate change grounds particularly exposed.16

Therefore, it is important for companies, particularly those with large greenhouse gas emissions profiles, to assess their exposure to climate related litigation and other risks, and take steps, where possible, to reduce this risk.

Failure to disclose climate-related financial risks

There is increasing recognition within industry and government of the financial risks posed to businesses by climate change and the consequent need for disclosure. Risks include both physical risks associated with extreme weather events and sea level rise, and transitional risks associated with policies, laws and other steps required to transition to a low carbon economy.

At present, jurisdictions with legislated legal obligations specifically requiring disclosure of environment or climate-related risks include the US,17 Australia,18 the UK19 and France.20

However, there is uncertainty in many jurisdictions of the extent to which climate-related risks must be considered and disclosed pursuant to existing financial disclosure obligations, either under current legislation or common law bases such as negligence, directors' duties and fiduciary duties.

Case summaries

The following three case studies highlight some of the key issues being raised by parties seeking to either compel companies to better disclose climate related financial risks, or claim damages for alleged harm caused by a company's failure to disclose climate related financial risks.

In re Peabody Energy Corp. (Peabody)

The Office of the Attorney General of the State of New York (NYAG) investigated disclosures made by Peabody Energy Corporation (Peabody) concerning climate change and the potential effects of climate change policy on Peabody's future business.

The NYAG found that the disclosures were incomplete and omitted less favourable projections of future coal demand. In response to the NYAG's finding, Peabody issued an Assurance of Discontinuance, resolving the investigation by agreement.

Peabody neither admitted nor denied the NYAG's findings in the Assurance of Discontinuance, but agreed to make more extensive disclosures in future.

This case highlights the approach that government regulatory bodies in the US and elsewhere may take to investigate companies and enforce disclosure concerning climate related financial risks.


In re Peabody Energy Corp. (Peabody)

The Office of the Attorney General of the State of New York (NYAG) investigated disclosures made by Peabody Energy Corporation (Peabody) concerning climate change and the potential effects of climate change policy on Peabody's future business.

The NYAG found that the disclosures were incomplete and omitted less favourable projections of future coal demand. In response to the NYAG's finding, Peabody issued an Assurance of Discontinuance, resolving the investigation by agreement.

Peabody neither admitted nor denied the NYAG's findings in the Assurance of Discontinuance, but agreed to make more extensive disclosures in future.

This case highlights the approach that government regulatory bodies in the US and elsewhere may take to investigate companies and enforce disclosure concerning climate related financial risks.


Bank Shareholder Action

On 8 August 2017, shareholders of a major Australian bank brought an action against the bank, alleging that it had failed to properly disclose the risk climate change posed to the business and seeking an injunction compelling it to do so in future annual reports.

However, this case was discontinued after the bank's 2017 annual report included an acknowledgement from its directors that climate change posed a significant risk to the bank's operations, with a promise to undertake climate change scenario analysis on its business in the upcoming year to assess the risk.

This case demonstrates the growing level of awareness and concern within the shareholder and investor community regarding climate related risks. It also highlights the associated need for companies to acknowledge and analyse the potential impact of climate related risks on their operations.


Class Action against an energy company

On 23 November 2016, a former employee of an energy company filed a class action complaint on his own behalf and on behalf of other current and former employees who participated in a company retirement savings plan (Plan) and invested in the company stock between 1 November 2015 and 28 October 2016 (employees), against senior officers of the company and fiduciaries of the Plan (Company Defendants).

The complaint asserted a claim for financial compensation under the Employee Retirement Income Security Act (ERISA), alleging that the Company Defendants had breached their fiduciary duties as they knew or should have known the company's share price had become artificially inflated in value due to alleged fraud and misrepresentation, resulting in loss when the share price subsequently fell.

Specifically, it alleged that the company's public statements regarding the strength of its business model and its transparency and reporting integrity, particularly with regard to its oil and gas reserves and the value of those reserves, were materially false and misleading in that:

  • according to the allegations, the company's own internally generated reports concerning climate change recognised the environmental risks caused by global warming and climate change;
  • given the risks associated with global warming and climate change, the company would not be able to extract the existing hydrocarbon reserves that it claimed to have and, therefore, a material portion of the company's reserves was stranded and should have been written down; and
  • the company had allegedly employed an inaccurate 'price of carbon' – the cost of regulations such as a carbon tax or a cap-and-trade system to push down emissions – in evaluating the value of certain of its future oil and gas prospects in order to keep the value of its reserves materially overstated.

On 30 March 2018, the Texas Federal Court granted a motion to dismiss the complaint, finding that the complaint provided no factual basis showing that the price of carbon used by the company was a misrepresentation or that risks posed by climate change were not incorporated into the company's stock price. Further, it found that even if the company's hydrocarbon reserves were overvalued, the complaint did not allege plausible alternative actions the company could have taken to benefit the retirement funds.

This case suggests that it may be more difficult for litigants to claim damages, as opposed to compelling disclosure, particularly due to difficulties in proving causation.

Takeaways

Senior barrister Noel Hutley stated in his seminal opinion on climate change and directors' duties in Australia on 7 October 2016 that '[i]t is likely to be only a matter of time before we see litigation against a director who has failed to perceive, disclose or take steps in relation to a foreseeable climate-related risk that can be demonstrated to have caused harm to a company (including, perhaps, reputational harm)'.21

Only weeks after this statement, the former employee brought his complaint against the energy company officers and fiduciaries in the matter outlined above, and less than a year later, shareholders brought the claim against a major Australian bank alleging its failure to assess and disclose climate related financial risks. Further, regulatory bodies are carefully considering whether companies are complying with existing disclosure obligations, and in the case of Peabody, investigating potential compliance issues.

These developments show the business community may be well served to elevate climate change considerations to the boardroom to ensure that all companies and directors are aware of, and prepared for, its short and long-term impacts.

In June 2017, the Task Force on Climate-related Financial Disclosures (TCFD) released its final report, recommending that disclosure of climate-related risks be integrated with existing financial reporting frameworks and setting out a voluntary reporting framework.22

Adopting the Task Force's recommendations may be a practical measure to help companies adequately disclose climate-related financial risks to avoid the risk of litigation and penalties for breach of disclosure obligations.

Legal action against governments

Parties who have sued governments have sought to challenge both government environmental policies or inaction generally,23 and specific decisions in relation to the approval of particular projects.24 Outside the US context, this category comprises a substantially greater proportion of climate change cases than cases where parties have directly sued businesses.25

Case summaries

A number of relevant case studies are outlined below.

Gray v Minister for Planning (Gray)

Peter Gray, an Australian environmentalist, applied for review of a view formed by the New South Wales Director-General of the Department of Planning that the environmental assessment lodged by the developer of the Anvil Hill coal mine was adequate.
Gray claimed that the assessment failed to take into account the greenhouse gas emissions from the subsequent burning of the coal.

The Land and Environment Court of New South Wales made an order declaring that the view formed regarding the adequacy of the environmental assessment was void. The court held that the greenhouse gas emissions from the subsequent burning of the coal needed to be taken into account. Further, the court held that merely raising the issue of climate change without analysing the impacts would be unlikely to satisfy the requirement to consider ecologically sustainable development principles.

This seminal case, decided in 2006, set an important precedent for Australian courts to consider the rigour of environmental assessment standards on projects with climate change impacts.26 Importantly, it also provided that indirect or downstream impacts need to be considered, and not just direct or immediate impacts.


Urgenda Foundation v. Kingdom of the Netherlands (Urgenda)

On 20 November 2013, the Urgenda Foundation, a Dutch environmental group, filed a summons on behalf of 886 Dutch citizens (Urgenda Plaintiffs), alleging that the Dutch government is exposing its own citizens to danger by failing to take sufficient action to prevent climate change. The Urgenda Plaintiffs sought injunctive relief to compel the Dutch government to reduce greenhouse gas emissions.

On 24 June 2015, the district court of the Hague concluded that the state has a duty to take climate change mitigation measures, citing:

  • the Dutch constitution;
  • European Union (EU) emissions reduction targets;
  • the European Convention on Human Rights;
  • the doctrine of hazardous negligence;
  • the precautionary principle and principles of fairness and sustainability embodied in the UN Framework Convention on Climate Change; and
  • the principles of a high protection level and the precautionary and prevention principles embodied in European climate policy.

In addition, the court found a sufficient causal link existed between Dutch emissions, global climate change, and the effects thereof.

The court determined the Dutch government must reduce carbon dioxide emissions by a minimum of 25% compared to 1990 levels. While it did not specify how the Dutch government should do so, it offered several suggestions, including emissions trading schemes or tax measures.

On 1 September 2015, the Dutch government announced its intention to appeal the verdict. On 9 April 2016, the Dutch government submitted its grounds for appeal. On 28 May 2018, the appeal hearing took place before the Hague Court of Appeal.
The Hague Court of Appeal has stated that it will deliver its decision on 9 October 2018.

Although the appeal is pending, this landmark case is significant in that the litigants have been successful in establishing a positive obligation for governments to adopt environmental policies aimed at reducing greenhouse gas emissions, so as to mitigate the effects of climate change.


Columbia Pacific Building Trades Council v. City of Portland (Portland)

The Columbia Pacific Building Trades Council, the Portland Business Alliance and the Western States Petroleum Association filed a notice of intent to appeal the City of Portland's enactment directing adoption of zoning amendments that prohibited new bulk fossil fuel terminals and limiting expansion of existing terminals.

The Oregon Land Use Board of Appeals reversed the amendments, finding that they violated the commerce clause, being discriminatory in practical effect. Further, the court found that the City of Portland had failed to demonstrate that the amendments served legitimate local interests that could not adequately be served by reasonable non-discriminatory alternatives.

On 4 January 2018, the Oregon Court of Appeals reversed the Oregon Land Use Board of Appeals' decision, upholding the zoning amendments. The court found that the policy did not violate the commerce clause and was not discriminatory between in and out-of-state producers and refiners of fossil fuels in that they were not substantially similar entities. Further, it found that the burden on interstate commerce was not clearly excessive relative to the local benefits arising from the policy.

This case provides a relevant example of industry seeking to oppose changes to local planning controls which restrict industry operations in the effort to respond to climate change.

Of particular interest is the divergence in views between the original court, which found the amendments were not valid, and the appeal court which found they were. These divergent decisions highlight the complexities courts face in balancing competing interests in planning decisions related to climate change.


Juliana v. United States (Juliana)

On 12 August 2015, 21 individual youth plaintiffs, the non-profit organisation Earth Guardian and a plaintiff identified as 'Future Generations' (Juliana Plaintiffs), filed a complaint against the US government. The Juliana Plaintiffs alleged that their constitutional rights were being violated and not being protected equally relative to prior and present generations, and that the government had breached its obligations under the public trust doctrine. Thus, they sought to compel the defendant to take action to reduce carbon dioxide emissions.

The case is ongoing, with the trial due to begin on 29 October 2018. Although the US government has attempted to prevent discovery and have the case dismissed summarily, it has been unsuccessful.

This case is significant because it is attempting to establish a positive obligation for the US government to act to mitigate climate change, in a similar manner to Urgenda, which could fundamentally affect environmental policymaking, and thus, have an impact on businesses.


Australian Conservation Foundation Incorporated v Minister for the Environment and Energy (Australian Conservation Foundation)

On 11 November 2015, the Australian Conservation Foundation applied for review of the Commonwealth Environment and Energy Minister decision to approve Adani's Carmichael coal mine, alleging that the Minister failed to properly consider the impacts of climate pollution on the Great Barrier Reef World Heritage Area.

On 29 August 2016, the Federal Court of Australia dismissed the Australian Conservation Foundation's application, finding that the Minister gave consideration to greenhouse gas emissions resulting from combustion emissions in coming to the decision to approve the Carmichael coal mine.

This decision was subsequently appealed and, on 25 August 2017, the Full Federal Court of Australia dismissed the Australian Conservation Foundation's appeal, upholding the Federal Court of Australia's decision.

In a subsequent judgement the Court limited costs to be paid by the Australian Conservation Foundation from 100% to 70% of the Minister's costs and 40% of Adani's costs.

This case sheds some light on the court's position regarding what a Commonwealth Minister in Australia must consider in relation to climate change in order make a valid decision. The case also demonstrates the court's willingness to limit costs awarded against litigants who bring proceedings on public interest grounds, rather than for commercial purposes.

Takeaways

The cases outlined above provide a snapshot of the diversity of challenges being brought against governments, and also significant differences between jurisdictions and courts. In challenging government environmental policies or inaction, most parties have sought to require governments to take further action with respect to addressing climate change or pay damages for failures to prevent harms arising from climate change, but some have sought to overturn environmental laws.27

Cases seeking further action or damages have often been founded on non-compliance with environmental or human rights laws,28 or breach of the public trust doctrine (such as in the Juliana case),29 particularly in the US.

The decision in Urgenda in favour of the complainants against the government has sparked a wave of similar cases. Increasingly, citizens and non-governmental organisations are suing to hold governments accountable to act to reduce and adapt to climate change. The Paris Agreement may assist such cases by providing a reference point of national commitments to avoid global warming above 1.5 and 2 degrees.

Mounting pressure from such ground-breaking cases as Urgenda may influence governments towards taking stronger action on climate change. This, in turn, presents a transitional risk that companies must consider and, where relevant, disclose to shareholders.

Conclusion

While environmental litigation is not new, the increasing trend in climate change related litigation represents an additional risk of which companies need to be aware.

Most cases to date, with notable exceptions, have not succeeded in holding companies or government accountable for climate change. Over time, strategic litigants will undoubtedly continue to develop new types of arguments and draw on new research and evidence that they claim support links between emissions harm related to climate change.

Accordingly, it is crucial that businesses assess their exposure to climate related litigation.

Adopting the Task Force's climate disclosure recommendations may be a practical measure to help companies adequately identify and disclose climate-related financial risks, so as to avoid the risk of litigation and penalties for breach of disclosure obligations.

Footnotes

1 Columbia University, Columbia Law School, Sabin Centre for Climate Change Law, in collaboration with Arnold & Porter Kaye Scholer LLP, 'Climate change litigation databases' (accessed 13 July 2018) < HTTP://CLIMATECASECHART.COM/ >.
2 Foundation for Democracy and Sustainable Development, 'New study identifies key trends in worldwide climate change litigation' (29 May 2017) < HTTP://WWW.FDSD.ORG/UNEP_CC-LITIGATION/ >..
3 See eg Santa Cruz v. Chevron Corp. (5:18-cv-00450, N.D. Cal.) (Santa Cruz); City of New York v. BP p.l.c. (1:18-cv-00182, S.D.N.Y.) (NY); Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.), Inc. (2018CV030349, Colo. Dist. Ct.) (Boulder County); King County v. BP p.l.c. (2:18-cv-00758, W.D. Wash.) (King County); Conservation Law Foundation v. Exxon Mobil Corp. (1:16-cv-11950,D. Mass.) (Conservation Law Foundation); City of Oakland v. BP p.l.c. (3:17-cv-06012-WHA, N.D. Cal) (Oakland)..
4 See eg Lliuya v. RWE AG, Az. 2 O 285/15 (Lliuya); Republic of the Philippines, Commission on Human Rights, 'Greenpeace Southeast Asia and Philippine Rural Reconstruction Movement, Petition to the Commission on Human Rights of the Philippines requesting for investigation of the responsibility of the Carbon Majors for human rights violations or threats of violations resulting from the impacts of climate change' (Philippines Investigation); Ucilia Wang, Climate Liability News, 'Paris, inspired by New York City, considers climate suit against oil companies' (9 February 2018) < HTTPS://WWW.CLIMATELIABILITYNEWS.ORG/2018/02/09/PARIS-CLIMATE-LIABILITY-SUIT/ >..
5 Grantham Research Institute on Climate Change and the Environment, London School of Economics and Political Science, 'Climate Change Laws of the World, Lliuya v RWE' (accessed 1 August 2018) < HTTP://WWW.LSE.AC.UK/GRANTHAMINSTITUTE/LITIGATION/LLIUYA-V-RWE/ >..
6 See eg California v. General Motors Corp. (07-16908,9th Cir.) (California); Comer v. Murphy Oil USA, Inc., 585 F.3d 855 (5th Cir. 2009) (Comer);; Native Village of Kivalina v. Exxon Mobil Corp., 696 F.3d 849 (9th Cir. 2012) (Kivalina); American Electric Power Co. v. Connecticut, 564 U.S. 410 (2011) (Connecticut); Lliuya; King County..
7 Comer; King County..
8 Comer..
9 Comer..
10 Philippines Investigation..
11 See eg California; Kivalina; Comer Lliuya; County of Santa Cruz; NY; Boulder County; King County; Conservation Law Foundation; Oakland; see also Sao Paulo Public Prosecutor's Office v. United Airlines and Others (Civil Appeal No 000292010.2014.4.03.9999) (Sao Paulo) in which an offset via reforestation was sought..
12 See eg Conservation Law Foundation; Oakland; see also Sao Paulo..
13 See eg Connecticut..
14 See eg California; Connecticut; Kivalina; Comer; Oakland; cf. Lliuya..
15 See Machal Nachmany and Joana Setzer, Global trends in climate change legislation and litigation 2018 snapshot, Policy brief, May 2018, Grantham Research Institute on Climate Change and the Environment, 7..
16 Steadfast Insurance Co. v. AES Corp., 100764(Va. 2012) (Steadfast)..
17 The National Association of Insurance Commissioners (NAIC) Insurer Climate Risk Disclosure Survey requires large insurers to make general disclosures regarding climate-related risk management. Further, the Securities and Exchange Commission (SEC) Guidance Regarding Disclosure Related to Climate Change requires financial and non-financial firms subject to SEC reporting requirements to disclose material climate-related risks and factors that may affect or have affected their financial conditions, such as regulations, treaties and agreements, business trends and physical impacts..
18 Recommendation 7.4 of the Corporate Governance Principles and Recommendations (3rd Edition) by the Australian Stock Exchange (ASX) Corporate Governance Council requires listed firms to disclose material exposure to economic, environmental and social sustainability risks and risk management strategies..
19 Section 414A of the Companies Act 2006 requires quoted companies to disclose the main trends and factors likely to affect the future development, performance and position of their businesses, and information about environmental matters and related firm policies..
20 Article 173 of the Energy Transition Law (2015) requires listed firms to disclose climate-related risks and the impacts of climate change on their activities and use of goods and services they produce..
21 Noel Hutley SC and Sebastian Hartford-Davis, Climate Change and Director's Duties: Memorandum of Opinion, published by the Centre for Policy Development and the Future Business Council, 22..
22 Task Force on Climate-related Financial Disclosures, 'Final report – Recommendations of the Task Force on Climate-related Financial Disclosures' (June 2017) < HTTPS://WWW.FSB-TCFD.ORG/PUBLICATIONS/FINAL-RECOMMENDATIONS-REPORT/ >; see also Asset Owners Disclosure Project Global Climate Risk Survey; Carbon Disclosure Project (CDP) Annual Questionnaire; Climate Disclosure Standards Board (CDSB) Framework for Reporting Environmental Information & Natural Capital; CDSB Climate Change Reporting Framework; International Integrated Reporting Council (IIRC) International Integrated Reporting Framework..
23 See eg Peter Allard v Government of Barbados, PCA Case No. 2012-06 (Barbados); Massachusetts; Afton Chemical Limited v. Secretary of State for Transport [2010] C-343/09 (Afton); Alec L. v. McCarthy (14-405, U.S.) (Alec); Urgenda Foundation v. Kingdom of the Netherlands [2015] HAZA C/09/00456689 (Urgenda); Juliana v United States (6:15-cv-1517, D. Or.) (Juliana); Leghari v. Federation of Pakistan (2015)W.P. No. 25501/201 (Leghari); VZW Klimaatzaak v. Kingdom of Belgium et al. (Belgium, Court of First Instance, Brussels [2015]) (Klimaatzaak); Foster v. Washington Department of Ecology (75374-6-1, Wash. Ct. App.) (Foster); Ali v. Federation of Pakistan (Constitutional Petition No. ___ / I of 2016, Supreme Court of Pakistan) (Ali); California v U.S. Bureau of Land Management (17-17456, 9th Cir.) (California); Thomson v Minister of Climate Change Issues [2017] NZHC 733 (Thomson); Western Organization of Resource Councils v. Jewell (15-5294, D.C. Cir.) (Jewell); West Virginia v. EPA (15-1363 D.C. Cir.) (West Virginia); Columbia Pacific Building Trades Council v. City of Portland (A165618, Or. Ct. App.) (Portland); Future Generations v. Ministry of the Environment and Others 11001 22 03 000 2018 00319 00 (Future Generations); R (on the application of ClientEarth) No. 3 v Secretary of State for Environment, Food and Rural Affairs, Secretary of State for Transport and Welsh Ministers [2018] EWHC 315 (ClientEarth); Sinnok v. Alaska (3AN-17-09910 CI, Alaska Super. Ct.) (Alaska); Reynolds v. Florida (37 2018 CA 000819, Fla. Cir. Ct.) (Florida)..
24 William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon of Delaware Inc. v. Government of Canada, UNCITRAL, PCA Case No. 2009-04 (Canada); TransCanada Corporation and TransCanada PipeLines Limited v. The United States of America, ICSID Case No. ARB/16/21 (Transcanada); Border Power Plant Working Group v. Dept. of Energy (02-cv-513-IEG, SD. Cal.) (Border Power Plant); Gray v Minister for Planning (2006) 152 LGERA 258 (Gray); Greenpeace Nordic Association and Nature and Youth v. Ministry of Petroleum and Energy 16-166674TVI-OTIR/06 (Greenpeace Nordic); In re Vienna-Schewat Airport Expansion W109 2000179-1/291E (Vienna-Schewat Airport); EarthLife Africa Johannesburg v. Minister of Environmental Affairs and Others 65662/16 (EarthLife); Friends of the Irish Environment CLG v. Fingal County Council 2017 No. 344 JR (Friends of the Irish Environment); Austria v Commission T-356/15 (Austria); Wollar Progress Association Incorporated v Wilpinjong Coal Pty Ltd [2018] NSWLEC 92 (Wollar Progress Association); Fitzpatrick and Daly v An Bord Pleanala [2017] IEHC 585 (Fitzpatrick); Australian Conservation Foundation Incorporated v Minister for the Environment and Energy [2017] FCAFC 134 (Australian Conservation Foundation); see also Reuters, 'Austria to sue EU over allowing expansion of Hungary nuclear plant' (22 January 2018) < HTTPS://WWW.REUTERS.COM/ARTICLE/AUSTRIA-HUNGARY-EU-NUCLEARPOWER/AUSTRIA-TO-SUE-EU-OVER-ALLOWING-EXPANSION-OF-HUNGARY-NUCLEAR-PLANT-IDUSL8N1PH1XU >; Environmental Law Australia, 'Maryfield Station clearing case in the NT Supreme Court' (2018) < HTTP://ENVLAW.COM.AU/MARYFIELD_STATION/ >; Source Watch, 'Thepha Power Station' (31 May 2018) < HTTPS://WWW.SOURCEWATCH.ORG/INDEX.PHP/THEPHA_POWER_STATION >; Raidió Teilifís Éireann, 'Timeline of appeals about Apple in Athenry' (10 May 2018) < HTTPS://WWW.RTE.IE/NEWS/2018/0510/961458-APPLE/ >; Stabroek News, 'Challenge to licensing of Exxon's partners sent back to High Court' (29 June 2018) < HTTPS://WWW.PRESSREADER.COM/GUYANA/STABROEK-NEWS/20180629/281754155062211 >..
25 Meredith Wilensky, 'Climate change in the courts: An assessment of non-US climate change litigation' (2015) 26 Duke Environmental Law & Policy Forum 131 < HTTPS://SCHOLARSHIP.LAW.DUKE.EDU/DELPF/VOL26/ISS1/4/ >..
26 Anna Rose, 'Gray v Minister for Planning: Rising Tide of Climate Change Litigation in Australia' (2007) 29(4) Sydney Law Review 725..
27 See eg Afton; Portland..
28 See eg Colombia; Florida..
29 See eg Alec; Juliana; Foster; Ali.

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Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions