By Catherine Ramnarine
Climate change is currently a hot topic – both figuratively and literally – with the World Meteorological Organization predicting that global temperatures will surge to record levels within the next few years. Stakeholders, including non-governmental organisations (“NGOs”), investors and communities are increasingly turning to litigation as one method of demanding action on climate change. In this Article, we will take a look at a few recent and ongoing climate litigation cases.
KlimaSeniorinnen v Switzerland (Application No. 53600/20)
This case deals with climate change from a human rights perspective.
A group of elderly Swiss women, called the “KlimaSeniorinnen” or “Senior Women for Climate Protection Switzerland” have taken the Swiss government before the European Court of Human Rights (“ECHR”). They argue that heatwaves brought on by climate change cause illness and death, particularly in older women, and that the Swiss Government is not doing enough to protect them. They claim that this amounts to a human rights violation, specifically a violation of their rights to life and respect for their private and family life under the European Convention on Human Rights. A hearing was held on 29th March 2023. However, the ECHR’s is not expected to deliver its decision until 2024.
One of the fundamental questions at stake before the ECHR is whether human rights litigation is an appropriate vehicle for demanding government action on climate change. The Applicants initially brought a claim before the domestic courts in Switzerland. However, this claim was rejected, with the Swiss Federal Tribunal urging the Applicants to seek change through political, and not legal, means. The ECHR’s decision will likely set the course for how future human rights climate litigation will be approached.
ClientEarth v Shell Plc and Others [2023] EWCH 1897
In this UK case, a climate NGO attempted to bring relatively complex company litigation against the directors of a multinational oil and gas company.
The NGO, ClientEarth, owned a small number of shares in Shell Plc (“Shell”). ClientEarth was only able to claim against Shell’s directors because it was a shareholder in the company.
A company is its own separate legal entity, distinct from its shareholders. As a general rule, it is for the company, not its shareholders, to determine what actions it should take. However, one of the exceptions to this general rule is that a shareholder can bring a specific type of claim (known as a derivative claim) against a director on the company’s behalf. ClientEarth attempted to bring such a claim, arguing that Shell’s directors had breached their duty to the company by not doing enough to manage its climate risks.
Shell’s directors had previously acknowledged that climate risk was a serious risk to its business and had adopted an energy transition strategy. ClientEarth argued that the steps taken by the directors did not go far enough. It alleged, among other things, that the emissions targets set by the directors were inadequate, that their investments in renewable energy projects were vague and insufficient and that they were continuing to invest in fossil fuel projects.
The Court rejected ClientEarth’s arguments and adhered to the strict legal principles governing derivative claims. It held that it was for the directors to determine how best to promote the success of the company. They had a duty to manage the company’s business while taking into account a range of competing commercial considerations, not just climate change. The directors had in fact adopted an energy transition strategy and, while ClientEarth disagreed with that strategy, it had not proven that a reasonable board would have acted any differently from the directors in the case. It had not proven that the directors had breached their duty to the company.
The Court also noted that ClientEarth was attempting to advance its own agenda, rather than acting for the benefit of the company or its members as a whole. As such, in the context of company litigation, its claim had not been made in good faith.
In these circumstances, ClientEarth’s application was dismissed. It has, however, signalled its intention to appeal the decision.
Greenpeace France and Others v TotalEnergies SE and TotalEnergies Electricité et Gaz France
This case deals with climate change from a consumer protection perspective and concerns an allegation of “greenwashing”. Greenwashing occurs when a business presents itself as environmentally conscious for marketing purposes, but does not engage in environmentally sound practices in reality.
In 2021, French oil and gas company Total, rebranded itself to TotalEnergies as part of a clean energy transition. It launched an advertising campaign indicating that it was committed to a carbon neutral trajectory by 2050 and describing itself as a major player in the energy transition. Greenpeace France and other NGOs allege that this advertising campaign is misleading to French consumers, and in breach of the French Consumer Code. They argue that the company’s actions in practice are not consistent with its advertising campaign and have sought an injunction prohibiting the company from continuing the campaign. This case is still pending before the French courts.
Experts predict that climate litigation will continue to increase as one avenue of holding governments and corporations to account. While there are few laws specifically relating to climate change, the above cases illustrate the ways that stakeholders have attempted to craft climate claims within the framework of existing laws and regulations, including human rights, company and consumer protection laws. The Court in Shell adhered to the strict legal principles governing derivative claims, which were not designed with climate change in mind. The approach that future Courts, including those in KlimaSeniorinnen and TotalEnergies, will take remains to be seen.
