Climate litigation is a growing phenomena with new and novel cases emerging all the time. What do you need to watch out for?
In the last 2-3 years, we have seen an exponential rise in climate litigation claims. One of the most interesting things to me as a litigator is that there is no single forum, no single cause of action and no single type of claimant. The spectrum of these claims is so broad spanning company law, tort law, environmental law, human rights and constitutional law, competition law - the list goes on. They are brought not only by NGOs and those impacted by climate change but also investors, consumers and even competitors, with creative causes of action which are stretching the boundaries of national, international and soft law. Regulation is in some respects catching up with the market and we are are only now starting to see active intervention by regulators.
Here are a couple of examples of recent developments:
- Greenwashing is hitting the headlines at the moment and we've seen proceedings against a major airline alleging that marketing about its sustainability initiatives is misleading and in breach of the EU Unfair Commercial Practices Directive. The airline's use of carbon offsetting is also being challenged in these proceedings and carbon offsetting may be an area where we see an uptick in litigation given the rapid growth in this market in recent years and the growing number of questions about the reliability of carbon credit verification programs.
- Climate litigation is also being used as a strategic tool to galvanise climate action and NGOs are now starting to target the boardroom. We are seeing the first derivative claims being brought in the English courts against company boards for alleged climate change mismanagement. The recent dismissal of ClientEarth's claim against an oil major has however highlighted the challenges that these actions face from a legal perspective. Read our in-depth analysis on this case here.
Notwithstanding the legal difficulties for many climate related claims, they are continuing to be commenced - as for some claimants the court outcome is not necessarily the marker of success - they're just as much focused on changing corporate behaviour as they are on legal victory.
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