I detailed the case of Urgenda vs the Netherlands, but other cases – such as ‘Senior Women for Climate Protection vs the Swiss Confederation, and currently being read by the European Court of Human Rights in Strasbourg – are not exactly few and far between.
In football terms, and at half time of the full spectacle, I am tempted to say: citizens: governments, one : nill.
Governments are undoubtedly important players in this whole societal shift towards climate mitigation and adaption. Equally important though, and by the argument of some possibly even more important: companies, the corporate world.
The question hence for this blog post is: How is this climate litigation business shaping up to affect corporate players?
For a short reminder: the Columbia University data base organises its information along two fundamentally different types of litigations:
- Against governments, and
- against natural and legal persons, i.e. individuals or companies.
As at August 2023, the database records a global total of 2485 cases. Of these, 691 are brought globally against governments, 163 are brought globally against corporations, and another 20 or so against individuals; additionally 1621 cases are brought forward in the US.
Side note: Sadly the US cases contained in the database od not offer the primary differentiation attribute (suing target: government, or natural or legal person?) – likely a case of ‘not seeing the wood for the trees’ as the database is evidently maintained by a US law school.
In other words: while the largest number of cases on a global level are brought forward against governments, the number of cases against corporations is not negligible either. But let’s drill a little bit into the type of cases brought forward against companies. As at September 2023, the above Columbia University database lists the following numbers and categories:
- Misleading Advertisement: 42
- Environmental assessment and permitting: 33
- Climate damage: 28
- GHG Emission Reduction: 28
- Disclosures: 14
- Carbon Credits: 3
- Financing and investment: 2
- Just Transition: 2
- Pollution: 1
What we can learn from this list is: With a combined total of
- 76, the largest number of cases are brought forward against corporate non-compliance with environmental and permitting law, or with fair competition law.
- 56 Climate Impact related litigation follows as a second.
- Note: technically, the 3 cases in regards to Carbon Credits could be added to this category, bringing the total to 59.
It is probably save to assume that these numbers are on the rise. In fact between August 2023 when I first checked the database, and found a total of 163 cases against corporates or individuals, in September 2023 there are already 191 such cases listed in the database.
The fact that compliance related cases are found at the top of this list, tells us that governments apparently not always doing a good job in terms of enforcement, therefore opening the door to such law suits. And indeed, looking across the law suits listed in these two categories, it is invariable either the individual citizen – or a group thereof – at the helm of filing the case.
Strangely the same does not hold true for the Climate Impact category, where governments are surprisingly often the ones filing the case, albeit probably at level with campaign groups and citizen’s groups.
The internationally most renowned such case
is ‘Milieudefensie et al. v. Royal Dutch Shell plc.’ which is currently under appeal. It is possibly the first time in legal history that a company is very explicitly taken to court for (in accordance to the claimants) ‘having violated a duty of care and human rights obligations by failing to take adequate action to curb contributions to climate change.’
Official plaintiffs were: Friends of the Earth Netherlands (Milieudefensie) jointly with Action Aid Netherlands, Both ENDS, Fossil Free Netherlands, Greenpeace Netherlands, Young Friends of The Earth Netherlands, and the Wadden Sea Association (Waddenvereniging), along with 17,000 individuals as co-plaintiffs.
In the first instance, the District Court, Royal Dutch Shell lost the case back in 2021/2022, and has since appealed to the next higher court. It can be expected that, similar to the ‘Urgenda vs Netherlands’ the case will reach, in the end, the Dutch High Court before any judgement will be bound to be accepted. The full timeline of this case can be consulted here.
In this decision, the judge affirmed that Shell’s emissions represent a threat to the human rights to life and undisturbed family life. Arguing that its current climate policy was not concrete enough, the judge ordered Shell to reduce its CO2 emissions by 45% net by the end of 2030 (compared to 2019 levels).
But why did the court rule against Shell and in favour of the those bringing the Shell case?
This analysis is most insightful. In essence:
- The court based its findings on Dutch tort law under the Dutch civil code and used this to conclude that, when applying Shell Group’s corporate policies, Royal Dutch Shell must observe due care in relation to those affected by its acts or omissions.
- That Shell was liable to follow the UN Guiding Principles on Business and Human Rights.
- That Shell did have significant influence over its supply chain, and hence its Scope 3.
- That is was proven that Scope 3 of a company was the most influential and therefore the UN Principles would also need to be implemented there.
- And that therefore Shell was required to implement climate mitigation measures aligned with the UN principles, and therefore in line with the Paris Agreement.
An excellent documentary on the ‘behind the curtain’ of this court case, portraying the work and efforts of Dutch lawyer Robert Cox who was, and is, at the helm of these two cases.
A second case, equally interesting and relevant, but internationally a lot less covered one,
is the Swiss Climate Alliance’s (plus 4 other NGOs) case against FIFA’s ‘Carbon Neutral’ Claims of the 2022 Work Cup in Qatar, and where FIFA was convicted of unfair competition and greenwashing by the Swiss Fairness Commission. [Original decision in French]. At the time of writing it is unclear whether or not FIFA will appeal against the decision.
This is one more case where indeed the occurred may contribute to debates surrounding the recent European Union proposal for a Directive on substantiation and communication of explicit environmental claims (Green Claims Directive), which aims to eradicate misleading environmental messaging across the European Union market by establishing detailed rules for how companies should communicate their environmental impact.
