The dominoes are starting to fall in international climate litigation, as England and Wales establishes itself as the lead jurisdiction. Maria Shahid reports
The low down
London’s courts are the focus of strategic litigation that aims to use the law to force action on the climate emergency. There is a perception that our courts are increasingly open to roles as a forum for litigating responsibility for the planet’s future. The new government reached a settlement ahead of a case brought by broadcaster and environmentalist Chris Packham reaching court. It accepted the main points of Packham’s case in their entirety. Earlier this year, the Supreme Court quashed planning permission for oil production in Surrey. And all eyes are on the High Court this week, where a case against mining giant BHP could establish principles of liability for corporate actions in emerging markets. But there is pushback – fossil fuel companies are also going to court, bringing cases against environmental campaigners.
The far-reaching impact of a warmer, wetter climate is being felt in extreme weather events, providing a backdrop to political and legal efforts to force action on climate change. It is not just the severity of the weather that has intensified. Climate litigation has become increasingly sophisticated and strategic, with environmental campaigners using a variety of legal tools to challenge government and corporate policies and decisions on fossil fuel projects.
LSE’s Global trends in climate change litigation report, published in June, found that at least 230 climate cases were filed in 2023. Many of these seek to hold governments and companies to account for climate action.
While the number of cases has ‘expanded less rapidly… than previously’, the report notes, this ‘may suggest a consolidation and concentration of strategic litigation efforts in areas anticipated to have high impact’.
The backdrop to these cases is an increasing willingness by the courts and government to take account of environmental factors in decision-making. There have been significant developments in three key cases in the past week alone.
The progress of such cases has led to pushback by some of the interests affected by the prospect of their success. Here fossil fuel companies are, like their adversaries, using the law. LSE’s report found that nearly 50 cases were filed which were ‘not aligned with climate goals’.
While some challenge the implementation of government policies, other litigation is against NGOs and activists, and seeks to limit protests.
The targets of that litigation argue that it meets the definition of strategic litigation against public participation (SLAPPs).
One of the most high-profile cases to reach the UK courts involved Shell’s case against Greenpeace UK, demanding the organisation stop all protests at its infrastructure worldwide.
'Oil majors and large corporations are using the courts to try and silence NGOs, in the UK and internationally'
Jack Robirosa, Greenpeace
Shell started formal proceedings in the UK courts where it has claimed damages of around £1m and is seeking a continuation of the interim injunction covering the White Marlin and Penguins FPSO, offshore support vessels used by the company which were targeted by Greenpeace activists in protests.
Jack Robirosa, Greenpeace UK’s legal counsel, tells the Gazette: ‘Greenpeace is defending the claim on the basis that the unlawful means [conspiracy] relied upon [by Shell]… are not a proper basis for the tort.’
In a statement Shell emphasised that it was not trying to silence Greenpeace: ‘The right to protest is fundamental and Shell respects it absolutely, but it must be done safely and legally.’
Robirosa argues: ‘Oil majors and large corporations are using the courts to try and silence NGOs, in the UK and internationally. Corporates are very aware of the strict boundaries of what “abuse of process” is, and carefully try to fly just underneath it, while still seriously bullying organisations into silence. Even when NGOs and the media do challenge corporate bullies, it comes at a significant cost.’
An increasing number of cases contend that oil and gas companies are responsible for the by-products that arise from the combustion of fossil fuels. And so, according to the Supreme Court, are local authorities.
A landmark decision by the Supreme Court earlier this year found that downstream greenhouse gas emissions (Scope 3 emissions) that resulted from the combustion of refined oil products should have been taken into account in an Environmental Impact Assessment (EIA) carried out by Surrey County Council at a site near Gatwick airport.
The court ruled that the council’s decision to grant planning permission for oil production at Horse Hill near Gatwick Airport was unlawful. The outcome means that EIA processes for similar projects will require far greater scrutiny in future.
The claim in this case was brought by an individual campaigner, Sarah Finch, represented by Leigh Day, supported by several environmental charities, including Friends of the Earth and Greenpeace UK.
‘Sarah’s case is quite extraordinary really,’ says Carol Day, a solicitor at Leigh Day. ‘She came to us five years ago, and she was unsuccessful at every stage really. It wasn’t until we got to the Supreme Court that we had this amazing victory.’
Despite the ruling, it was reported that UK Oil & Gas (UKOG) continued to produce oil from its Horse Hill site. On 25 October Surrey County Council responded to the reports, stressing: ‘Following the Supreme Court decision, there is no planning permission for oil production at the site. The council’s position is that such oil production is therefore unlawful. Any development carried out in the absence of planning permission is vulnerable to formal enforcement action.’
On 29 October, UKOG said it had ‘instructed its subsidiary Horse Hill Developments Ltd to voluntarily suspend oil production at the Horse Hill site, effective from 25 October’. (UKOG was approached by the Gazette for comment, but did not respond. Its full statement sent to some press can be read here: tinyurl.com/3p7wktyd.)
‘They should be going through the process of applying for permission again, with the EIA taking into account all of the emissions,’ notes Day. ‘So, it’s not been satisfactory in terms of what’s going on on the ground, but the wider implications of the case have been very helpful.’
‘The case has set down firm guidance as to what needs to be included in these environmental impact assessments,’ agrees Lizzie Shimmin, partner at Jenner & Block. ‘The courts are saying that there needs to be a detailed paper trail, including the downstream, even if it is not technically part of the project for which you are seeking planning [permission].’
Ruth Knox, partner and global co-chair of ESG and sustainable financing at Paul Hastings, notes that the decision generates uncertainty for similar projects; although she adds that some of the statements made in the judgment could ‘credibly be challenged in the future around causation’. She adds: ‘The science of attribution, which has been bubbling away at academic institutions around the world for the past 10 years or so, is going to be utilised in these types of climate cases in a much more forensic way than we saw in this decision.’
Engaging human rights
‘Government framework’ cases, which challenge the scope and scale of government climate policy, have had significant success in England and Wales over the last year.
In May, the High Court found that the government’s net zero strategy did not meet its obligations under the Climate Change Act 2008, which commits the government to reduce greenhouse gases by 2050, following a challenge by ClientEarth, Friends of the Earth and Good Law Project.
This was despite revisions to the strategy, following an earlier ruling in 2022, which had also found that the government’s net zero strategy was in breach of the act.
The further evolution of government framework cases in 2024 has seen claimants bringing human rights challenges against states, rather than relying on domestic environmental legislation.
One such case was decided earlier this year, when the European Court of Human Rights found that Article 8 of the European Convention on Human Rights had been breached.
The judgment came in Verein KlimaSeniorinnen Schweiz and others v Switzerland [2024]. It involved a Swiss association, which brought a claim on behalf of 2,000 older women that state inaction on climate change was negatively impacting their health and living conditions.
The ECtHR found that Switzerland had breached the convention by failing to take sufficient action against climate change. Specifically, the state was found to be in breach of Article 8, as a result of its failure to mitigate the impact of climate change on the lives, health, wellbeing and quality of life of its citizens.
Additionally, it was in breach of Article 6 in failing to examine the merits of the applicants’ complaints.
Judicial review
Campaigners are increasingly using judicial review as a tool to challenge both governments’ and public bodies’ climate policies. It is a constitutional tool which has a chequered record for environmental campaigners, but it can deliver important strategic victories for them.
In May, ClientEarth, Friends of the Earth and Good Law Project brought a successful judicial review against the then Conservative government, in relation to the Carbon Budget Delivery Plan (CBDP). The High Court agreed that the government’s CBDP was both unlawful and breached the Climate Change Act 2008.
More recently, Greenpeace has been granted permission by the Scottish courts for judicial review of a former energy secretary’s decision to approve Shell’s development of the Rosebank oil field and of Equinor’s Jackdaw gas field. A hearing is set for 12 November.
The charity’s campaign has been helped by energy secretary Ed Miliband’s announcement in September that the government would be withdrawing support for both companies’ plans as well as ruling out further North Sea licensing rounds.
Greenpeace argues that the consents granted for both Rosebank and Jackdaw were based on an EIA which excluded consideration of downstream emissions, as required by the decision in Finch.
‘In relation to Rosebank and Jackdaw fields, Finch was crucial,’ says Greenpeace’s Robirosa. ‘It has led the government and the North Sea Transition Authority conceding there is illegality at the sites.’
Separately, climate campaigner Chris Packham was granted permission for judicial review of the government’s decision to abandon its statutory green policies last year on the ground that they breached their duty to inform the public of the reasons for their decision to change the policies.
The hearing was scheduled for 12-14 November. Then, on 29 October, quite the day for environmental law news, the government reached a legal settlement with Packham.
The government confirmed it would reconsider decisions to delay transitions away from petrol and diesel vehicles, gas boilers, off-grid fossil fuel domestic heating, and minimum energy ratings for rented homes in its revision of the CBDP by May 2025.
‘It was,’ Packham said, ‘only due to my legal challenge that a staggering lack of transparency around modification of carbon reduction policies was revealed. In a time of terrifying crisis, the public and the scientists were not informed of dangerous decisions being made by a department that wasn’t even reading essential consultation summaries.’
Climate-washing cases
The LSE report identified 47 ‘climate-washing’ cases filed in 2023. These are cases which ‘challenge inaccurate government or corporate narratives regarding contributions to the transition to a low-carbon future’. 70% of climate-washing cases are decided in favour of the claimants, it noted.
Most recently ClientEarth has urged the French financial regulator to investigate asset and investment management firm, BlackRock, over allegations of misleading investors. A complaint filed earlier in October with Autorité des marchés financiers challenges the naming of investment funds as ‘sustainable’.
ClientEarth lawyer Alex Bennett says: ‘Ultimately, exaggerated sustainability claims create a competitive advantage for these BlackRock funds, distorting competition in the market, diverting capital flows from genuinely sustainable products.’
A spokesperson for BlackRock told the Gazette: ‘BlackRock’s funds are managed in accordance with their investment objectives, that are clearly disclosed in each fund’s prospectus and on BlackRock’s website. BlackRock’s sustainable funds are managed in line with applicable regulations governing sustainable investing.’
‘I would say that France is the most advanced among EU member states at the moment in terms of tackling greenwashing,’ Paul Hastings’ Knox continues. ‘The vast majority of our clients are private equity sponsors, so this case is of real interest. The anti-greenwashing agenda both in Europe and the UK is fast advancing.’
‘We are also seeing a proliferation of climate-washing cases in the US, under a variety of regulatory schemes where plaintiffs are certain that companies are misleading in their advertising,’ says Knox’s colleague, partner Brian Israel. ‘I think what will be interesting over the coming year is whether a company can say something that’s entirely accurate and verifiable and nonetheless be subject to a lawsuit.’
The direction of travel is one in which both government and judiciary appear to be increasingly open to environmental considerations. Following the decision in Finch, Miliband announced earlier in August that new environmental guidance would be published for fossil fuel projects.
Meanwhile, all eyes are on a case which started in the High Court on 21 October. While the defendant, BHP, is a mining company, the case is not climate-related. But it has the potential to establish liability here for events in emerging markets, and is therefore highly relevant.
Pogust Goodhead is bringing a claim against BHP over the Mariana dam disaster in Brazil in 2015, brought on behalf of 600,000 Brazilian claimants. The disaster killed 19 people, and in addition to destroying a raft of villages, releasing around 50 million cubic metres of waste.
The case has already survived a jurisdictional challenge brought by BHP after the Court of Appeal granted the claimants permission to appeal in 2022.
Speaking at a press conference on the second day of the trial, Pogust Goodhead partner Ana Carolina Salomão noted that: ‘The importance of this case… is unparalleled, especially because it will, I strongly believe, mark England’s position as the court of the world for transnational litigation. One [interesting] thing about this case is that we are litigating in an English court using Brazilian law.’
Responding to the Gazette, BHP says: ‘The collapse of Samarco’s Fundão dam was a tragedy and our deepest sympathies remain with the families and communities affected.’
On 25 October, a R$170bn (£22.7bn) agreement was signed between the Brazilian government and public authorities and BHP Brasil, Vale and Samarco, which BHP says ‘delivers comprehensive compensation for Brazilians in Brazil. This is the outcome of several years of work with all levels of Brazilian government and with public authorities and prosecutors who defend the rights and interests of the environment, social interests and individual interests’.
Despite the settlement, the High Court case is unaffected and continues. The company states: ‘BHP continues to defend the case in the UK court – as we believe Brazil is the right place to resolve this for the benefit of Brazilian people. The agreement in Brazil is the fastest, most efficient and certain avenue to provide compensation to affected individuals.’
Knox at Paul Hastings notes his firm has been tracking case law on parent company liability for over a decade in relation to subsidiaries in emerging market jurisdictions, where those subsidiaries need support in risk-management policies. ‘This [case] is essentially what we have been anticipating in this space. The case law does create great anxiety. The larger multinationals with experts in litigation risk will be tracking these developments, particularly where they are headquartered in the UK.’
‘What’s interesting about this claim is that if it gets to the end of the trial and there’s a judgment, that will be one of the first judgments on actual liability,’ notes Shimmin. ‘I think it’s another example of… an interesting pattern of the English courts continuing to stretch and flex their muscle in relation to this kind of case.’
This leads Greenpeace’s Robirosa to conclude: ‘The dominoes are starting to fall in international climate litigation.’
Maria Shahid is a freelance journalist
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