Big rise in climate litigation against business and governments next year, says Clyde & Co
Clyde & Co predicts a “sharp increase” in strategic climate change litigation against European businesses and governments next year to force the pace of change, after COP26 proved disappointing.
“We predict that more rights-based strategic cases will be brought against companies in 2022. These lawsuits will add to the pressure that traded companies in high-emitting sectors are already facing from institutional investors, ratings agencies and other stakeholders,” said Nigel Brook, partner at Clyde & Co.
He pointed out that legal cases based on climate change-related human rights violations have already been successful in Europe. They have already prompted change in government policy in the Netherlands and Germany.
The first such case was brought by the Urgenda Foundation in the Netherlands and established that the Dutch government owed a rights-based duty of care to its citizens to take more aggressive steps in curbing emissions. In April, the German Constitutional Court made a similar ruling there.
And then in May, a Dutch court ordered Shell to achieve a 45% reduction in its net CO2 emissions by 2030, to avoid breaching a new rights-based duty of care to the country’s citizens. This decision, the first of its kind in the world, is under appeal.
Brook said all of this action has inspired a “wave of new cases” across Europe, with many brought against state and regional governments by young people on behalf of the next generation.
He said the most ambitious to date is the Agostinho case in the European Court of Human Rights. It is seeking an order that Portugal and 32 other countries make more rapid emissions cuts. The court has fast-tracked the case and the hearing could take place in 2022, said Brook.
Meanwhile, Greenpeace and environmental NGO Deutsche Umwelthilfe have gone to court in Germany, seeking to force VW, BMW and Daimler/Mercedes to bring forward their switch to purely electric car production, and curb their sales of internal combustion engine cars in the meantime.
Clyde & Co said much of this legal action is being driven by a lack of action at the global level.
“Although some governments announced more ambitious emissions targets before and during COP26, experts say the these still fall well short of what is needed to avoid catastrophic climate change. As frustration mounts at a perceived lack of ambition, we predict a sharp increase in the use of strategic litigation against governments and businesses to force the pace of change,” said Brook.
