Climate change activism is more than Extinction Rebellion gluing themselves to bridges: activism by litigation is increasingly common. There have been over a thousand cases filed in as many as 33 countries, including the UK.
In a landmark decision in 2019, the Dutch Supreme Court ruled in Urgenda that the government has a legal duty in accordance with its obligations under the ECHR to prevent dangerous climate change, and must reduce its emissions by 25% (compared to 1990 levels). There are similar cases underway across Europe, and we expect many more constitutional/human rights challenges to be brought in the near future.
Last week, the IBA published a Model Statute which seeks to assist citizens when it comes to holding governments to account. The IBA suggests the Statute can be adopted by nations in whole or in part, or simply be used as a resource for participants in cases. The Model Statute primarily focuses on process and providing a pathway to litigation, addressing issues such as disclosure, costs and expert evidence.
The English courts are unlikely to alter their CPR rules which address the same issues. In our view, the Model Statute's greater value lies in identifying potential avenues for challenge in the future – for example, whether climate change has been considered in Environmental Impact Assessments (Article 10).
While the Model Statute only envisages claims against the government, we do think private companies can also expect to face an uptick in claims, with claimants or groups of claimants seeking compensation for loss or damage. Perhaps unsurprisingly, given its more litigious culture, this is already happening in the US, and often litigation trends there foreshadow developments in the UK.
For now, at least in this jurisdiction, it would seem any claim for damages in English courts would face challenges. The most significant of these is establishing a causal link between a source or instance of emission and its effect on the climate. There are also issues relating to any loss suffered by an individual, or class of individuals. Finally, citizens themselves are at least partially responsible for climate change.
This may soon change: scientific advancements could allow claimants to attribute the impact of specific projects on – for example, extreme weather events.
Regulation could also develop, particularly as the Paris Agreement is now in effect, and the UK works towards its 2050 net zero emissions target. Last week, the FRC announced a major review of how companies and auditors assess and report on the impact of climate change. This could plausibly lead to further reporting obligations, prompting regulatory proceedings or claims by activist shareholders.
That's not to say climate change should not be a current consideration for companies. An obvious example where a company could face a claim is where it has secured investment and funding based on an inaccurate assessment or incomplete disclosure of its environmental impact.
The message to take away is that if your company hasn't already started assessing its climate change risk and putting in place a strategy to deal with it, perhaps now is the time to start.
