The Chancellor of the High Court, Sir Julian Flaux, delivered the 2022 Combar lecture on 16 November 2022, in which he stated that the “commercial landscape is changing, and the law will need to develop with it”.
Climate litigation has been tracked globally by the London School of Economics and Political Science (LSE), who reported that cases have more than doubled since 2015 with a quarter being filed between 2020 and 2022, against both government and corporate entities. The LSE also reported that many of the recent cases share a common theme in highlighting the most important issues as discussed by the international community at COP26, including to increase awareness and motivation to achieve net-zero emissions.
The arguments have included ideas of greenwashing and of failures to act and to adapt. Although there is no official definition of greenwashing, a definition, as given by Sir Julian Flaux, has been provided by the Climate Social Science Networks as “the use of unsubstantiated or misleading claims about, or selective disclosure of, environmental performance or best practice for commercial or political gain”.
Instances of litigation, include claims against companies who label or describe their products as “eco-friendly”, and can therefore be liable for claims of misrepresentation. This labelling is often used to convey a false impression that a product or service is environmentally friendly in order to capitalise on the growing demand for such products. It is conceivable that greenwashing litigation can be used to promote the commitment to achieve net zero emissions made to the general population or to stop companies misleading the public by branding their products ‘green’.
Quite often, companies, in their net-zero pledges, have alluded to the use of evolving technologies which will help them to meet their decades’ long target. The reality is, however, that this might lead companies to admit their initial targets are unachievable and unrealistic and lead the more conscientious consumer to become increasingly more diligent in search for alternative products.
An example of this is the case regarding the building of a third runway at Heathrow Airport and the decision in R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd. It was found, by the Court of Appeal, that the Secretary of State for Transport breached the Planning Act 2008 in their failure to provide sufficient details of how the plans would relate to the governments’ pledge of emissions reduction in accordance with the Paris Agreement. This decision was appealed by Heathrow Airport, which resulted in the decision being overturned by the Supreme Court, stating that the Secretary of State for Transport did consider the implications of the Paris Agreement, but in any case was not bound by the agreement itself. Whilst the appeal was successful, the nature of the case itself will undoubtedly have an impact of how companies’ view their longer-term objectives in their pledge to reduce carbon emissions.
With climate change being a global issue, there are undoubtedly other parts of the world where its impact will have a devastating effect. There has been a willingness for the English courts to engage in cases involving jurisdiction arguments in environmental claims, where, for example, UK companies, or subsidiaries thereof, are involved in projects internationally.
One example of this is the Court of Appeal in the matter of Municipo de Mariana v BHP Group (UK) Ltd and BHP Group Ltd (“Mariana”). This involved an environmental disaster in Brazil where the Fundão Dam collapsed, resulting in the flood killing 19 people and having devastating outcomes for local communities, families and businesses stretching the 400-mile river course to the sea.
As a result of the disaster, around 200,000 individuals and businesses were affected and suffered some degree of loss and damage. The dam was operated, and owned, by a Brazilian firm which in turn was owned by two Brazilian companies, one of which was a subsidiary of BHP Group of which the two defendants in the case were parent companies, one being BHP England. The claimants brought claims against the company in the Technology and Construction Court for indirect pollution and liability.
The case was challenged by the defendants on the grounds of jurisdiction, which resulted in the claims being struck out by Turner J as an abuse of process, giving credence to the nature and size of the claims and the impact on the court to manage them. However, the case was allowed on appeal, with the Court of Appeal stating that the unmanageability of a claim was not a consideration, especially when there was a possibility of a conclusion being reached in a similar case.
This, once again, demonstrates the willingness of English courts to take on claims where jurisdiction is in dispute and where environmental damage has occurred overseas. The issue of loss and damage in relation to environmental disasters has been debated at length because of the decision from the Paris Agreement to recognise the importance of “averting, minimising and addressing loss and damage”.
Notwithstanding all the discussions and the net-zero pledges made to date, causation is a major challenge. Whilst it is undeniable that the emission of greenhouse gases has caused climate change and has played a role in the escalation of natural disasters, it is much more difficult, if not impossible, to yet prove how a single emission causes a particular disaster, and therefore who would be ultimately liable. The road of climate change litigation is long, but we will see an increase in years to come, as long as there remains a willingness by the English courts to move forward with these claims and ultimately to influence the pledge we have made to be net-zero by 2050.
