Climate litigation has increased in many jurisdictions over the past 30 years, as a way of both advancing certain climate objectives, and raising greater awareness of environmental concerns. This litigation can impact companies in a variety of ways including:
- pressuring governments to increase their ambition in carbon reduction leading to tighter regulation
- ensuring stricter enforcement of existing legislation
- challenging environmental assessment and permitting decisions
- enforcement of securities laws and consumer protection legislation
There has been a significant escalation of the use of the legal system by activists, advocacy groups and certain public authorities in different countries in an effort to block carbon-intensive activities over the last 10 years in particular. The claims advanced vary depending on the particular circumstances of the litigation involved, however definite trends are emerging as outlined below:
- human rights arguments are being used
- states are being held to account by their own judiciary to take proper steps towards their stated climate action objectives
- nuisance claims and disclosure-related litigation are increasingly being pursued against carbon majors
- claims of deceptive 'greenwashing' marketing campaigns are being brought before courts and non-judicial bodies.
Although only a small sample, three recent decisions of Irish and EU member states' courts worth noting are outlined below:
This case is celebrated as the first to establish a legal duty on a government to prevent dangerous climate change. The Supreme Court of the Netherlands confirmed that the Dutch government is under an obligation to significantly reduce its greenhouse gas emissions in the short-term to prevent dangerous climate change. The Court rejected all of the Netherlands’ arguments, including the claim that emissions from the Netherlands are small – roughly around 0.4% of global emissions – and therefore the impact of tightening its emissions reduction policies would just be a “drop in the ocean”. Further, and most significantly, the Court decided that the risks of climate change fell within the scope of the European Convention on Human Rights, particularly within Article 2 (right to life) and Article 8 (private and family life). In so doing, the Court created the basis for the argument that climate change is a human rights issue.
The Irish Supreme Court held that under the Climate Action and Low Carbon Development Act 2015 (the 2015 Act), the Irish government was under a binding legal obligation to set out serious and credible measures to achieve Ireland’s ‘national transition objective’. Section 4 of the 2015 Act required adoption of a National Mitigation Plan which would "specify the manner in which it is proposed to achieve the national transition objective" i.e. transition to a "low carbon, climate resilient and environmentally sustainable economy" by 2050. Friends of the Irish Environment (FIE), an active national environmental NGO, challenged the legal validity of the 2017 National Mitigation Plan (the Plan) on the grounds that it failed to (a) meet the requirements of the 2015 Act and (b) vindicate constitutional and human rights.
The Supreme Court overturned the Plan, because it did not contain the specificity required by the 2015 Act. According to the Supreme Court, the 2015 Act required that the Plan explain how the Government planned to achieve the National Transition Objective (NTO) over the entire period to 2050, not just the five years until the first scheduled review.
The level of specificity required was enough "to allow a reasonable and interested member of the public to know how the government of the day intends to meet the NTO so as, in turn, to allow such members of the public as may be interested to act in whatever way, political or otherwise, that they consider appropriate in the light of that policy."
However, the Supreme Court was more cautious in relation to the constitutional and human rights claimed by FIE. It denied FIE standing, as a corporate entity, to invoke such personal constitutional or human rights but left this issue open to be decided in a future case.
The District Court in The Hague in June 2021 held that Royal Dutch Shell (Shell) must reduce its emissions by net 45% by 2030. This marks the first time a court has ordered a private company to align itself with the Paris Agreement. In its decision, the court used the ‘soft law’ of the United Nations Guiding Principles to establish that Shell had a duty of care towards Dutch citizens and is therefore obliged to reduce its emissions to help prevent climate change.
One key point from the court’s decision is that Shell must account for emissions from the fuels and other energy products it sells, known as scope 3 emissions, which make up more than 90% of the total amount. The Court reached a different conclusion on this question than the Norwegian Supreme Court in December 2020 in a challenge to the grant of controversial oil exploration licences in the Arctic. This question is a key legal battleground which has seen Courts in different jurisdictions including Ireland and the UK reach different conclusions in challenges to development consents in industry sectors as diverse as oil refinery and food production facilities.
Shell has said it will appeal the decision, which it expects to take between two and three years. But the court’s ruling applies immediately
It is important to acknowledge that use of the courts to address climate change faces many well-known hurdles, including technical legal issues such as standing arguments, barriers to accessing justice, difficulties in dealing with scientific evidence, and the conservatism of many courts when confronted with contentious policy issues. Nevertheless, it is inevitable that the number of climate-related proceedings will continue to increase in the coming years.
However, stepping back from the risk of climate litigation, the reputational risk to companies of being perceived by customers, employees or shareholders of failing to address climate and sustainability issues can be even more significant. All the indications are that companies that are taking a "business as usual" approach to climate and sustainability issues will quickly be perceived by each of these stakeholder groups as not responding to these issues with sufficient focus or urgency. It is almost inevitable that corporates will be judged in 10 years' time with a degree of hindsight that will lead to a harsh judgment of any perceived failure to respond fulsomely to the specific challenges which climate change and carbon reduction presents for those companies.
Barranafaddock Wind Farm
on the defence of s.160 injunction proceedings alleging breach of planning conditions (High Court, Court of Appeal and Supreme Court).
Ballycumber Wind Farm
in injunction proceedings against objectors seeking to obstruct the construction of the wind farm and in the defence of related trespass proceedings. We are also acting for the company which is a notice party in related judicial review proceedings.
The developer of Kilronan Wind Farm
in relation to its planning regularisation strategy following the adverse decision of the High Court relative to the status of its grid connection.
Knockacummer Wind Farm
in its judicial review challenge seeking to overturn a Section 5 determination by An Bord Pleanála relating to its grid connection.
Multinational retailers and pharmaceutical companies
on the taking and defence of nuisance proceedings relative to noise and air pollution.
ESB/Bord na Móna
in successfully obtaining SID planning permission representing their JV company at the oral hearing held by An Bord Pleanála in relation to the 172MW Oweninny windfarm. We subsequently successfully defended two judicial reviews.