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Climate change litigation mounts as companies face increased exposure, legal report finds

Climate change litigation mounts as companies face increased exposure, legal report finds 1024 684 Mantle

Over 1,200 climate change cases have been filed in more than 30 jurisdictions against governments and corporations, including 950 in the United States, according to a newly released report by the global law firm Clyde & Co.

Cases filed in the US, Australia, the UK, the EU, New Zealand, Brazil, Spain, Canada, and India either charge governments with regulatory inaction to mitigate or adapt to the climate threat or charge corporations for their own actions, or lack thereof. As well, investors have brought claims against corporations for failing to account or disclose climate risk in their assets, business models or value chain, according to the report Climate Change: Liability Risks – A Rising Tide of Litigation.

Governments held to account?

Since one of the earliest climate lawsuits filed in 1986 against the US National Highway Traffic Safety Administration for the rollback of a vehicle emissions law, multiple courts have ruled that plaintiffs have failed to demonstrate the direct link between climate impacts and government inaction.

However, as climate litigation has expanded, the chances of successful lawsuits may be growing. Many saw a notable 2007 US Supreme Court ruling that found the Environmental Protection Agency (EPA) in violation of the Clean Air Act for failing to regulate greenhouse gas (GHG) emissions as a potential precursor to future climate litigation. The EPA’s inaction put the plaintiff, the State of Massachusetts, in imminent of risk of harm, found the US Supreme Court.

With more cases making their way through the courts, including high-profile cases of children suing governments for endangering their future, and the successful Urgenda lawsuit in the Netherlands which hopes to force the Dutch government to take greater action to reduce its GHGs, the report concludes “…there will be further jurisprudential developments in favour of climate change regulation.”

Corporations facing increased threat of liability

Similar to cases against governments, cases against companies for failing to address climate change have also faced hurdles in demonstrating direct harm caused by corporate actors.

Numerous US climate lawsuits have been framed as public nuisance claims against oil companies. However, these cases have been largely unsuccessful, and plaintiffs have recently shifted their focus. Plaintiffs, including various municipalities, are now utilizing the evolving “scientific, discursive, and constitutional context” to bring claims against “big oil” that incorporate product liability (failure to warn and design defect), negligence and trespass in addition to nuisance claims (both public and private). Many of these more recent lawsuits argue fossil fuel companies have: caused a significant percentage of global GHG emissions; championed anti-science and anti-regulation campaigns; and, concealed known hazards associated with the use of fossil fuel products.

Another factor in climate litigation is the new developments in event attribution, the improving ability of scientists to link specific extreme weather events to climate change. This improvement, along with a stronger scientific understanding of the impacts, and the increasing sophistication of plaintiffs, may result in successful litigation in the years to come, the report concludes.

Pressure mounting to disclose climate risks and to both mitigate and adapt

Companies and their directors and officers “face mounting obligations to understand, deal with and disclose how they are dealing with, the risks of a changing climate” including low-carbon economy transition risks and physical impacts threats, concludes the report.

As the impacts of climate change continue to disrupt lives and upend livelihoods, governments and corporations will face increasing pressure to respond to climate change or be forced to respond through litigation.