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Partner Mark Clarke and Associate Gwen Wackwitz, from
ClimateChangeLegislation.indd
ClimateChangeLegislation.indd
White & Case LLP, discuss the increased litigation and liability
risks associated with climate change legislation
n recent years, the number and scope action to reduce its carbon emissions,
of climate change-related actions has establishing that this violated the
increased dramatically. Governments, government’s duty of care to its
industries and businesses of all types citizens. As a result, the Supreme Court
I have potential exposure to such ruled that the government must reduce
actions and must therefore consider their its greenhouse gas emissions by at least
environmental impact and climate 25 per cent by the end of 2020.
change commitments in order to avoid The ruling, made at first instance
increasingly complex and sophisticated by the District Court of The Hague
legal challenges. in 2015, has been a trigger for other
Historically, climate change disputes claims. For example, in 2019, a group
were predominantly focused on of nongovernmental organisations and
claims for damages against oil and more than 17,000 Dutch citizens filed
gas companies, on the basis that these a similar claim against Royal Dutch
companies produce and distribute Shell, which is seeking to extend this
products which are directly related to established duty of care to private
CO₂ emissions. However, owing to the corporations. If successful, energy
complexity of the energy sector, supply companies would also have a duty
chains and consumer choices, the of care to take action to reduce their
claimants pursuing these actions have greenhouse gas emissions.
struggled to establish a direct causal
link between the damage that is alleged In recent years several
and the companies being sued. states and municipal
Notwithstanding this legal hurdle, in
the USA, federal and state regulators, authorities (including
private plaintiffs (such as shareholders) authorities from California,
and environmental activists continue to Colorado, Delaware, New
bring claims against energy companies
in connection with alleged injuries Jersey, Rhode Island, South
resulting from climate change, and Carolina, Washington
the number of claims being brought is State and Maryland) have
increasing. For instance, in recent years commenced proceedings
several states and municipal authorities
(including authorities from California, against energy companies,
Colorado, Delaware, New Jersey, Rhode seeking compensation for
Island, South Carolina, Washington the alleged injuries caused to
State and Maryland) have commenced local communities owing to
proceedings against energy companies,
seeking compensation for the alleged climate change
injuries caused to local communities
owing to climate change. France has also seen an increase
In other countries, alternative types in climate change-related disputes,
of claims, which do not require the following the introduction of the 2017
claimant to prove a direct causal link Corporate Duty of Vigilance law. This
between the defendant’s CO₂ emissions legislation applies to large national and
and a specific harm are being pursued, multinational corporations and imposes
have significantly widened the scope of an obligation on them to identify and
climate change-related disputes. prevent risks to human rights and
Rights-based claims in particular the environment that could occur as
have grown in prominence, with a result of their business practices. In
claimants now increasingly invoking October 2019, six non-governmental
their human rights as a means of organisations, including Friends of the
holding governments to account for Earth, used the obligations imposed by
their climate change commitments. this legislation to bring claims in the
There have been several victories Nanterre Civil Court of Justice against
against European governments in energy company Total in relation to its
the last year alone. In December activities in Uganda and Tanzania. In
2019, the Urgenda Foundation (a January 2020, the Nanterre Civil Court
Dutch environmental group) won its concluded it did not have jurisdiction
long-standing case against the Dutch to determine the claim on the basis
government for failing to take sufficient that the vigilance plan was directly
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