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In February 2020, which feels like a lifetime ago, our Environment and Climate Change Research analyst Rory Clisby warned that climate change litigation was “going mainstream”.
He was entirely correct, with several high-profile states and international companies in the dock in 2021, including Germany, France and Shell, which became the first company ever held legally liable for contributing to climate change.
There were some 1,800 climate litigation cases completed or in process as of end-2021, up from 1,500 in 2020, with action spreading from sovereigns and fossil fuel companies to the automotive industry and notably also the banking and financial sector.
The UK government, led by embattled PM Boris Johnson, is the latest sovereign to be put on the stand, with NGOs Friends of the Earth and ClientEarth filing separate suits in London on 12 January over its Net Zero Strategy, arguing that its failure to set out credible policies to tackle climate change is unlawful.
The two plaintiffs are seeking a High Court judicial review on the grounds that:
The Net Zero Strategy (NZS), published in October 2021, does not comply with requirements under the 2008 Climate Change Act
The Heat and Buildings Strategy (also October 2021), does not consider impact on groups legally protected under the 2010 Equality Act
Friends of the Earth claims that the pathways to reach net zero in the NZS are merely “theoretical”, in the absence of concrete policies for implementation. It thus argues that the NZS is not lawful (and furthermore, does not allow parliament, or the public, to hold the government accountable for any failures).
“With characteristic sleight of hand, the government has set out an imaginary pathway for reducing carbon emissions, but no credible plan to deliver it,” observed a lawyer for the NGO.
ClientEarth’s legal representative echoed this: “It’s not enough for the UK government simply to have a net zero strategy, it needs to include real-world policies that ensure it succeeds. Anything less is a breach of its legal duties and amounts to greenwashing and climate delay…. Its pie-in-the-sky approach to net zero pushes the risk onto young people and future generations who stand to be hit hardest by the climate crisis.”
On releasing the NZS, Boris Johnson pledged to “leave the environment in a better state for the next generation” and protect them from the financial burden of climate change.
However, according to ClientEarth, not only does the net zero strategy lack sufficient policies and rely on unproven technologies, it also overlooks near-term solutions that would have immediate impact, including those recommended by the government’s own advisors, the Climate Change Committee (CCC).
“The UK is kicking the can down the road by failing to set out real budget-compliant policies, and betting the public’s future health and prosperity on long-shot technologies unlikely to deliver necessary emissions cuts”, the NGO complained.
With Johnson battling to survive in office amid a raft of scandals, Downing Street has yet to respond to the filings. However, the Department for Business, Energy and Industrial Strategy insisted to Bloomberg that the NZS did set out “specific, detailed measures” for the low carbon transition.
This is not the first and will not be the last climate lawsuit against a sovereign state. One of the most high-profile current cases involves six Portuguese teenagers, who in September 2020 sued 33 European countries for moving too slowly to reduce greenhouse gas emissions, invoking human rights arguments including threats to their right to life.
The European Court of Human Rights has fast-tracked the lawsuit, with a potential judgment this year. The decision will be legally binding; meaning that if the plaintiffs win, the judgment could be enforced in national courts throughout the EU (although the ‘how’ is a whole other debate).
As we have reiterated previously, this is a critical decade for climate action.
Sovereigns and corporates should expect more climate lawsuits to come, whether in the form of human rights-based cases; the non-fulfilment of green recovery promises; or the failure to protect communities from more frequent extreme weather events.
For instance, ClientEarth is also taking legal action against the National Bank of Belgium for failing to meet environmental, climate and human rights requirements when purchasing bonds from fossil fuel and other greenhouse-gas intensive companies.
In our view, further such cases against banks and other financial institutions are highly likely.
And activists are expanding the legal basis for lawsuits, focusing on fraud and consumer protection, company regulations, and planning and permitting laws to bring companies to court.
Other aspects of environmental performance may also be targeted: with natural capital risks coming to the fore, some in the legal community are calling for a crime of 'ecocide' to be established – a distant possibility now, but one that could encompass a huge range of corporate liabilities.
Our Climate Litigation Index, which assesses the likelihood of climate lawsuits being filed and pursued against companies in 198 countries, finds that those operating in developed economies – especially the US, UK, EU and Australia – currently face the highest risk of legal action.
But as the jurisdictional reach of climate lawsuits continues to expand outside of the US and EU, companies and investors in all sectors and countries will need to consider how to mitigate their risk.