Associate Stephanie Eaton, and Michael Rawlinson QC and Samuel Cuthbert, barristers at 12 King’s Bench Walk, examine the most noteworthy cases in the ongoing development of private law climate change litigation.
Climate change presents one of the greatest threats to human rights of our generation, posing a serious risk to the fundamental rights to life, health, food and an adequate standard of living of individuals and communities across the world. This was the conclusion from The United Nations report on climate-change and human rights published in December 2015.
Now, a recent study by the London School of Economics reveals that the number of climate change cases filed globally has significantly increased from 834 between 1986 and 2014, to 1006 cases being filed since 2015 (the year of the Paris Agreement). This surge of cases throws the issue of the enforcement of individuals’ rights and corporate obligations by private parties (often in groups) litigating against companies into the limelight.
The United Nations Guiding Principles (the “UNGPs”) on Business and Human Rights provide that states have an obligation to protect human rights from harm by businesses, while businesses also have an individual responsibility to respect human rights. In fact, as part of their duty to protect against business-related human rights abuses, states have a positive obligation to take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within their territory and/or jurisdiction, those affected have access to effective remedy.
In Milieudefensie v Royal Dutch Shell, a number of environmental NGOs successfully argued that Shell owed a duty to Dutch citizens to protect them from the negative impact of climate-change. The claim was brought pursuant to the Dutch Civil Code, which provides that a private law action may succeed where the defendant has demonstrably breached the “unwritten standard of care” which it owed to the claimant. This standard of care was informed by the Paris Agreement, and various human rights instruments including the UNGPs.
In this instance, Shell was held to have failed to implement appropriate corporate policies. To contextualise this decision, it is also important to note that it followed the Netherlandish public law case of The State of the Netherland (Ministry of Economic Affairs and Climate Policy) v Stichting Urgenda 19/00135 (Engels) in which the Dutch Supreme Court established that the Dutch government has a legal duty to prevent climate-change.
The reasoning in Milieudefensie is potentially significant for similar private law claims brought in England and Wales. A direct comparison can be made between the Dutch ‘unwritten standard of care’ and the law of negligence in England and Wales. It is certainly arguable that the law of negligence could similarly be informed by environmental and human rights instruments to create a liability to private parties.
In the UK there has been an increasing number of claims being brought against parent companies who are said to be responsible for harm occurring outside the UK, albeit those parent companies are not alleged to have directly contributed to the harms caused. Both Vedanta Resources Plc v Lungowe  UKSC 20 and HRH Emere Okpabi v Royal Dutch Shell  UKSC 3 have demonstrated a willingness from the UK Supreme Court to consider a broadened understanding of corporate liability. Whilst neither case concerned global warming in strict terms, the court’s willingness to consider expanding common law duties to parent companies provides a potential avenue for future private litigation in relation to climate-change.
The difficulty such a claim would have in the UK courts would likely be in proving a loss which was caused by the breach. This was an issue in the Californian case of the Native Village of Kivalina v ExxonMobil Corporation (2012) No. 4:08-cv-01138 (N.D. Cal.). A group from the Alaskan island Kivalina claimed damages from the defendant energy company for the extreme erosion and weather events they faced, claiming the weather patterns were caused by the defendant’s actions, which they alleged had an impact on climate change. The case was dismissed, in part because the plaintiffs could not make out their case on causation. Demonstrating a causative link between the loss incurred and the defendant’s actions is a nebulous process which demands more from the science of attribution than can currently be provided.
The difficulty of claims such as this was further reflected in the New Zealand case of Smith v Fonterra Co-Operative Group Limited  NZHC 419. The court struck out the climate change claims brought in negligence and nuisance, but refused to strike out the claim for breach of an inchoate climate-change duty of care.
Much weight was placed on a 2018 paper authored by three New Zealand Supreme Court Judges which argued in favour of a new private law cause of action because the problems of climate change do not easily conform to existing forms of action. The paper considered that private law might develop to meet some of the challenges confronting climate change litigation and adjust the traditional concepts of standing where the wrong affects the whole of society and, in particular, where the impacts of climate change are intergenerational and will impact young generations more significantly.
The inquest in the UK case of Ella Kissi-Debrah was the first UK case in which the coroner found that air pollution was a contributory cause of illness and death due to the child’s asthma being worsened by high levels of air pollution in the area in which she lived. A second inquest focussed on the aspects of causation and contribution and what could have been done to limit the impact of the air pollution. The coroner held that the air pollution had made a “material contribution” to Miss Kissi-Debrah’s death. This amounted to a breach of the UK’s air quality legislation. There have been proceedings arising out of the coroner’s report which have resulted in court orders requiring urgent corrective action and has called into question the need for a change in the law to comply with Article 2 of the European Convention on Human Rights, which states that everyone’s right to life shall be protected by law.
The ongoing German case of Lliuya v RWE (Case No. 2 O 285/15) provides a further example of private law being used to challenge climate change by recognising the possibility that a private company could be responsible for the effects of its emissions offshore. The plaintiff is a Peruvian farmer who is suing Germany’s largest electricity producer. He alleges that his home on the flood path of Palcacocha Lake is threatened by the potential of two glaciers collapsing into the lake and in turn causing significant flooding. The allegation is that this is all a consequence of global warming. He alleges that RWE has been a major emitter of greenhouse gases, which are causing glacial retreat increasing the risk of flooding in the area.
In respect of quantum, the plaintiff is seeking £14,250 from RWE for its contribution to global warming. This figure reflects the Institute of Climate Responsibility’s estimation that RWE is responsible of 0.47% of global warming emissions from 1751 to 2010, and so the claim is for 0.47% of the cost of the plaintiff protecting against the impact of the glaciers collapsing. Given the potential of private companies being responsible in domestic courts for offshore emissions, the causation issues in play, and the novel approach to quantum pleaded by the plaintiff, this case is hugely significant.
Developments in climate science, particularly in respect of attribution, will continue to increase the significance of bringing private law claims. This emphasises the need for companies to act now by carrying out due diligence to identify risks within a business that may give rise to a private law action being brought against them. As with those cases considered above, private law climate change litigation attracts a lot of publicity even before any material findings by the relevant courts. Moreover, pressure applied to large companies through litigation comes hand in hand with pressure on politicians to act. To that extent, it is likely that private law climate change litigation will continue to gain traction across the globe.
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28 November 2023
28 November 2023