Recently the media have been full of stories about climate litigation. In the last few weeks alone, we have seen reports of a claim brought in Guyana by an indigenous tourist guide and a university lecturer claiming that (to quote the Guardian report):

Guyana’s approval of oil exploration licences violates the government’s legal duty to protect their right and the right of future generations to a healthy environment. It is the first constitutional climate case in the Caribbean to challenge fossil fuel production on climate and human rights grounds.”

Also a class action in Australia, brought by eight High School students, where the Court found that the Australian federal environment minister has a duty to take reasonable care not to cause young people injury from the harms of climate change (at least, that’s how the Guardian reported it).

And of course a Dutch court recently ordered Shell to cut carbon emissions from its oil and gas by 45% by 2030.

More recently still, we have learned that climate activists have sued the Italian government over “inaction”. The 203 claimants apparently include environmental associations, Italian citizens (well, one would hope so), foreign residents, and young activists with the Italy wing of the Fridays for Future group.

These are just some of the more recent cases to come to trial and/or to be given prominence by that large section of the mainstream media which approves of this sort of thing. This is just the tip of the iceberg. So I thought I’d look into the issue a little further. But – where to start?

Thank goodness for the Sabin Center for Climate Change Law, Columbia University, the Grantham Research Institute on Climate Change and the Environment, London School of Economics and Political Science (and you won’t hear me say that very often). The reason for my gratitude is that they have been monitoring the situation closely, and thanks to them, much of the information regarding climate litigation trends is readily available.

Fresh Fields

Strictly speaking, I’m referring to the major law firm of Freshfields Bruckhaus Derringer, whose website contains an excellent interactive section, which can be scrolled through to see the trends. It is based on the information provided by the monitoring groups mentioned above (accurate to December 2019). From this we learn:

There had, to that date, been almost 1,400 climate-related litigation cases around the world;

The number rose dramatically over the 15 years to 2019;

Most are brought in the west, with a handful in emerging markets;

Almost 1,100 (or 79%) of those cases were brought in the USA…

…where the four years to 2019 saw the largest number of cases opened since records began;

Globally, 135 cases (10%) were directed at businesses, mostly in the USA and Australia;

Such litigation (against businesses) had increased since 2016;

Most (79) of the 135 cases against businesses involved defendants from the energy and natural resources industry, and most of those were in the USA;

More cases were, by 2019, starting to emerge in Africa, Latin America and Asia.

The interactive nature of the website makes it a fascinating tool. Click on a dot (representing a case) and it offers a brief summary of that particular piece of litigation. The first one I clicked on at random was a piece of Polish litigation alleging that Polska Grupa Energetyczna, the operator of Europe’s largest power plant, Belchatow, has not presented any official plan to reduce its climate impacts. The lawsuit seeks to block the plant operators from burning lignite – or require measures to reduce carbon dioxide emissions – by 2035.

Right next to it, the adjacent dot happened to be the Dutch case against Shell. Next again, a case in Luxembourg against the Luxembourgish Minister of Social Security, who, Greenpeace claims, failed to respond to a letter asking for information regarding how Luxembourg’s sovereign pension fund planned to align its investments with the objectives of the Paris Agreement, and information on the climate-related financial risks associated with the fund’s investments.

And so on – endlessly fascinating if you’re into that sort of thing.

Shareholder action

A new development has been that of activists buying shares in fossil fuel companies, mostly it seems with the idea of becoming active at shareholder meetings, and persuading management to change direction, and/or to impose activist directors on the board. There is another possibility, though, arising from this activity – the possibility of shareholder litigation against the company itself.

And as the Freshfields website points out, this is where the Law of Unintended Consequences might have a role to play. Fossil fuel companies that prioritise investments in emissions-reducing technologies over immediate profits run the risk of shareholder suits from short-term investors. They are in the potentially impossible position of facing the twin risk of being sued, including via class action litigation, whatever they do. They are, potentially, damned if they do and damned if they don’t.

Freshfields again:

Plaintiffs bringing common law tort and public nuisance claims are now seeking to rely on academic studies that attempt to quantify individual actors’ contribution to man-made emissions since the start of the industrial era. Researchers are developing models in a bid to tie climate change to extreme weather at a local level – and to predict where those events might strike next. The Federal Judge hearing a case in San Francisco was so intrigued by developments in causation and attribution science that he staged a day-long ‘teach-in’ to prepare for legal arguments. While he ultimately ruled his Court was not the right forum for such a case (and stated in his judgment that the current slew of nuisance suits could harm attempts to reach international consensus on climate change), it brought these developing theses into the spotlight.”

In the USA, for now at least, however, the Supreme Court decision of AEP v Connecticut, the first global warming case based on a public nuisance claim, which was brought to court in the Southern District of New York in 2004, offers some protection to fossil fuel companies from litigation. The unanimous ruling of the Court states that the management of emissions is the responsibility of the Environmental Protection Agency, not corporations. As we are seeing increasingly, however, this same principle does not necessarily seem to apply in other jurisdictions.

Europe

There are many excellent websites which can be used to find out more about the world of climate litigation. One organisation (Germanwatch) which I believe is funding the case in question, has a timeline for a potentially very interesting (and, for fossil fuel companies, worrying) case: Lliuya -v- RWE.

In November 2015, Mr Lliuya, a Peruvian farmer and mountain guide brought a case in the German Courts against the German company, RWE. His claim is that the energy company’s greenhouse gas emissions threaten his family, his property, and a large part of the city of Huaraz. RWE’s defence disputed its liability for alleged climate-change damage in the Andes, and further denied that Huaraz is at risk from flooding. The Essen District Court dismissed the case, but the Appeal Court has allowed it to go forward. Experts have been appointed, but further developments appear to have been delayed by the covid crisis.

Should liability in this case ultimately be found against RWE, the precedent could be very damaging indeed for fossil fuel companies. This is an area where Europe seems to be much more hostile to fossil fuel companies than has been the case in the USA to date (despite the significantly greater number of cases so far brought in the USA). Whether the US situation changes should the balance on the Supreme Court change during the Biden presidency remains to be seen.

There are just too many cases to mention in detail here, but for anyone interested, in addition to the Freshfields website, much useful information can be found here:

https://www.climateinthecourts.com/cases-against-corporations.html

2020 Update

As mentioned above, Freshfields’ excellent interactive website takes matters only up to the end of 2019. Fortunately, the LSE and Grantham Institute have produced a snapshot of global trends in climate litigation, by way of an update, to July 2020 (unfortunately there has been almost a year of considerable activity since then):

https://www.lse.ac.uk/granthaminstitute/publication/global-trends-in-climate-change-litigation-2020-snapshot/

This is a 30 page report, and it’s well worth reading. The trends identified above continue. The countries (or jurisdictions) where litigation has taken place between 1986 and 2020 are worth noting, by case number (the main ones only):

USA – 1,213;

Australia – 98;

UK – 62;

EU – 57;

Canada – 22;

New Zealand – 18;

Spain – 13;

France – 11;

UN Framework Convention on Climate Change – 10;

Brazil, Germany, OECD – 6 each.

Some interesting general observations emerge.

More than 80% of cases outside the USA have been brought against governments.

Climate change is at the centre of legal arguments in about 41% of cases, and peripheral in about 59%.

Outside of the USA, 58% of cases had outcomes “favourable to climate change action”.

Developing trends include using human rights arguments as support in increasing numbers of cases; and fossil fuel companies are being subjected to increasing numbers of different types of litigation, especially in the USA, ranging from nuisance, to fraud, to disclosure-related claims.

2019 saw an escalation in claims; there were doubts as to what effect the covid crisis might have on case numbers, but it does seem that case numbers are recovering nicely.

Going against the flow

But it’s not all one-way traffic (even if the vehicles going the other way are very much going against the flow):

Two German companies – RWE (fighting back, it seems – their lawyers must be busy!) and Uniper (although I believe the latter is majority Finnish-owned) – are suing the Dutch government for compensation over the country’s planned coal phase-out under a 1990s the Energy Charter Treaty (ECT). RWE is seeking 1.4 billion euros in compensation, and Uniper is claiming between 850 million and one billion euros, in each case because the Dutch Government is phasing out coal use by 2030, thus (so the claim goes) causing the demise of their coal-fired plants in the Netherlands.

As I understand it, the ECT contains provisions against appropriation of foreign-owned assets by Governments. The argument against the Dutch government is that the change in Dutch policy with regard to coal use greatly damages the value of the plants, and amounts to expropriation.

I suppose what is good for the goose is good for the gander, but this sort of claim is very much the exception to the rule. Search for it online, and the level of hostile commentary is significant.

The great unanswered question

Try as I might, I have been able to find no answer (other than in the Lliuya case) to the obvious question – who is funding all this climate change litigation? Articles on the websites of the BBC, Guardian and others, reporting on the litigation, never seem to go near that question. I doubt that the Australian High School kids are paying for their action against the federal government, so who is? Whoever it is, substantial amounts of money must be being spent in this rapidly-developing and rapidly-intensifying area.

31 Comments

  1. It is probably not unusual for religious zealots to have disdain for democratic processes when imposing the focus of their religious zealotry.

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  2. Hmm, dead trees for binders full of documents, climate-controlled courtrooms, gas-guzzling limos to and from, and computers running 24/7.
    Sounds climate-conscious to me.

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  3. At times like these I usually fall back on my idea that in the West we have such comfortable lives that we have no concept of any alternative situation. We have taken cheap, reliable electricity for granted for a long time. Our freedom has only risen year on year, at least until the pandemic threw what may be a temporary spanner in the works.

    As we saw with the recently-resurfaced North Face story, folk have little conception of how embedded in our lives fossil fuels are. Perhaps they are persuaded by lies such as “100% renewable” electricity tariffs: after all, if one person can choose such a tariff, can’t we all? The protesters are unaware that most of their clothes are made of petrochemicals. As soon as international travel was allowed, folk flocked to Portugal: seems like a holiday, and not Net Zero, is actually the “People’s Priority.”

    Who benefits? Not the turkeys suing for Christmas. Private oil companies will benefit from immunity to boardroom shenanigans: turning a greater share of mining and extraction away from the more responsible companies. Muscular, totalitarian governments will benefit as insipid democracies wither. The climate children bringing their cases will find themselves worse off if they succeed. And all around them in the climate, nothing will have changed.

    When the histories of these times are written, I hope that it will be recorded that a few small voices spoke up against the madness.

    Liked by 4 people

  4. Hard on the heels of one of the most prominent pieces of climate litigation recently:

    “Shell promises to accelerate shift to low carbon”

    https://www.bbc.co.uk/news/business-57415965

    “The oil giant Shell will reduce its greenhouse gas emissions more quickly than planned following a legal ruling in the Netherlands, its chief executive has promised in a blog post.

    Shell would take “bold but measured steps”, Ben van Beurden wrote, but would still appeal against the ruling.

    Environmentalists won a court case in May, arguing Shell was failing to reduce emissions quickly enough.

    Friends of the Earth said if Shell were serious, it would drop the appeal.

    Mr van Beurden’s post on networking site LinkedIn acknowledged that the firm would have to respond to the court’s ruling without waiting for the outcome of the appeal, and that it applied to the energy giant’s worldwide business.

    However, he sought to reassure investors that it would not disrupt Shell’s plans.

    “For Shell, this ruling does not mean a change, but rather an acceleration of our strategy,” he wrote.

    The campaign group Milieudefensie, the Dutch branch of Friends of the Earth, which brought the case, successfully argued that Shell had a human rights obligation to bring its business into line with international agreements on avoiding faster heating of the planet.

    As a result, Shell must cut its CO2 emissions by 45% compared with 2019 levels, by 2030….”

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  5. Here’s the next one – they seem to be coming thick and fast:

    “Polish government faces court action over failure to tackle climate crisis
    Five citizens accuse government of failing to protect them from impacts of global heating”

    https://www.theguardian.com/world/2021/jun/10/polish-government-faces-court-action-over-failure-to-tackle-climate-crisis

    “Five Polish citizens are taking their government to court over its failure to protect them from the impacts of the climate crisis.

    They say the state has breached their rights to life, health and family life by delaying action to cut national carbon emissions and propping up the coal industry.

    The first three cases were filed on Thursday in regional courts across Poland by Monika Stasiak, Małgorzata Górska and Piotr Nowakowski.

    Nowakowski, who lives in a forest in Wielkopolska, is worried that stronger storms and forest fires are increasingly threatening his home and safety.

    Stasiak and Górska both run tourism businesses in different parts of Poland that have been affected by changing rainfall patterns in very different ways: one has suffered from intensive drought and the other flash flooding.

    Stasiak told the Guardian the birth of her son had also motivated her to fight for climate action. “When my child was about 18 months old the [2018] IPCC report came out. It moved me and I decided I didn’t want that future for my child.”

    Two further cases will be filed later in the month by Piotr Romanowski, a farmer who has lost half his revenue after the land became too dry for his plants to survive, and 18-year-old climate activist Maya Ozbayoglu.

    The claimants are being represented by the international environmental law charity ClientEarth and the Polish law firm Gessel. It will be the first time national climate policy has been directly challenged in a Polish court.”

    This rather links in with “Big Green Charity”, given the involvement of “environmental law charity ClientEarth”.

    There is a real danger that we will reach the point (if we haven’t already) where Governments provide funding to climate charities, which then go and sue the Governments that help to fund them. I’m not sure that the average taxpayer would think that’s a good idea.

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  6. “Southampton Airport: Legal challenge over runway extension”

    https://www.bbc.co.uk/news/uk-england-hampshire-57502371

    “Opponents of a scheme to extend an airport runway are mounting a legal challenge.

    Eastleigh Borough Council issued formal planning permission on 3 June for Southampton Airport to lengthen its runway by 164m (538ft).

    But campaigners Airport Expansion Opposition (AXO) have called the decision “wrong both in the way it was taken and the arguments to justify it”.”

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  7. If it’s cold, Texas hasn’t enough electricity for its needs, and now it seems the same is true when it’s hot.:

    “Sweltering Texans urged to reduce cooking and cleaning to ease grid strain
    Officials advise to avoid using large appliances such as ovens and washing machines, amid soaring summer temperatures”

    https://www.theguardian.com/us-news/2021/jun/16/texas-power-grid-conservation-heat-wave

    “As temperatures rise to unseasonably warm levels across Texas this week, its citizens are being asked to use less energy on basics like cooking and washing clothes to ease strain on the state’s power grid that is struggling to generate enough electricity to cope with the high temperatures.

    The move triggers memories for many Texans of the cold snap in the winter that incapacitated much of the state’s power infrastructure and raises fears that Texas – and other US states – are not prepared to deal with the extreme weather events that come with the global climate crisis.

    The authority running the Texas power grid has asked Texans to set thermostats to 78F (25.5C) or higher, turn off lights and pool pumps and avoid using large appliances such as ovens, washing machines and dryers.

    This is the second time that the Electric Reliability Council of Texas (Ercot) has issued such a call for conservation since the winter storms in February left more than 4.8m homes and businesses without electricity for days. The crisis was blamed for more than 100 deaths and $130bn in costs.

    In addition to plant outages, demand is high this week as cities across Texas expect temperatures in the 90s. The state broke its June electricity demand record on Monday.

    Summer hasn’t even officially begun, and the early calls for conservation raise questions over what will happen in the coming months and years as the global temperature continues to rise.

    “We’re heading into a future climate that is likely to have more extreme droughts and more powerful hurricanes, which put their own strain on the system,” said Dan Cohan, a civil engineering professor at Rice University. “This week we saw that the Texas power grid barely even prepared for weather that is hot for June, but nowhere near how hot it can get in July and August.”

    Cohan says that Ercot has not been transparent about which coal and gas plants are down and helping cause the strain on the grid, and why – it could be for maintenance, or repairs from February’s knockout blows, or preparing for potential summer demand.

    “Ercot has really been leaving us in the dark as to which coal and gas power plants are down, and why,” he said. “They offered a belated acknowledgment that there are more than twice as many power plants down as they expected but no real clarity on why it’s happening. A lot of us are left guessing.”

    The grid is only prepared to handle one crisis at a time, but often issues overlap – for example, when it’s very hot, often winds don’t blow as they typically would, or a spike in demand while power plants are offline.”

    Just had to be the fault of fossil fuels, not renewables, didn’t it?

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  8. “Belgium’s climate failures violate human rights, court rules
    Judges say state’s failure to meet climate targets breaches civil law and human rights convention”

    https://www.theguardian.com/world/2021/jun/18/belgium-climate-policy-violates-human-rights-court-rules

    “Belgium’s failure to meet climate targets is a violation of human rights, a Brussels court has ruled, in the latest legal victory against public authorities that have broken promises to tackle the climate emergency.

    The Brussels court of first instance declared the Belgian state had committed an offence under Belgian’s civil law and breached the European convention on human rights.

    By not taking all “necessary measures” to prevent the “detrimental” effects of climate change, the court said, Belgian authorities had breached the right to life (article 2) and the right to respect for private and family life (article 8).

    The NGO that brought the case, Klimaatzaak, hailed the judgment as historic, both in the nature of the decision and the court’s recognition of 58,000 citizens as co-plaintiffs.

    “For the first time it is recognised that we are in direct, personal and real danger,” said Serge de Gheldere, the chairman of Klimaatzaak, which means climate case in Dutch.”

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  9. “Climate change: Courts set for rise in compensation cases”

    https://www.bbc.co.uk/news/science-environment-57641167

    “There’s likely to be a significant increase in the number of lawsuits brought against fossil fuel companies in the coming years, say researchers.

    Their new study finds that to date, lawyers have failed to use the most up-to-date scientific evidence on the cause of rising temperatures.

    As a result, there have been few successful claims for compensation.

    That could change, say the authors, as evidence linking specific weather events to carbon emissions increases….

    …However, there have been few successes in cases where the plaintiffs have sought compensation for damages caused by climate change linked to human activity.

    This new study has assessed some 73 lawsuits across 14 jurisdictions and says that the evidence presented to the courts lagged significantly behind the most recent climate research.

    Over the past two decades, scientists have attempted to demonstrate the links between extreme weather events and climate change, which are in turn connected to human activities such as energy production and transport.

    These studies, called attribution science, have become more robust over the years.

    For example, researchers have been able to show that climate change linked to human activities made the European summer heatwave in 2019 both more likely and more intense….”

    The study, should anybody be interested, can be found here:

    https://www.nature.com/articles/s41558-021-01086-7

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  10. “UK road-building scheme breaches climate commitments, high court told
    Transport Action Network says £27bn programme does not take account of Paris climate agreement”

    https://www.theguardian.com/uk-news/2021/jun/29/uk-roadbuilding-scheme-breaches-climate-commitments-high-court-told

    “The government’s plans for a multibillion pound road-building scheme would breach the UK’s legal commitments to tackle the climate crisis and critically undermine the country’s standing ahead of a key summit later this year, the high court has heard.

    Lawyers acting for the Transport Action Network (TAN) argued that plans for the UK’s huge £27bn road building programme – set out in its Road Investment Strategy 2 (RIS2) last year – did not take into account the government’s obligations to reach net zero emissions by 2050 or its commitments under the Paris climate agreement.

    Campaigners accuse the transport secretary, Grant Shapps, and the Department for Transport of unlawfully failing to take account of the “obviously material” impact of the roads programme on the UK’s climate commitments.

    Before the hearing on Tuesday Chris Todd, director of TAN, described the proceedings as the “biggest legal challenge to transport policy in British history.”….

    …Experts say the UK’s road network and its wider transport infrastructure are crucial in the country’s efforts to avoid the worst effects of the climate crisis. The transport sector is one of the biggest emitters of greenhouse gases and the only one to have increased its emissions in recent years.

    Earlier this month the Welsh government announced a freeze on its future road building as part of its plans to tackle the climate emergency

    The case at the high court is due to conclude on Wednesday with judgment expected to be given at a later date.”

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  11. “Big oil and gas kept a dirty secret for decades. Now they may pay the price”

    https://www.theguardian.com/environment/2021/jun/30/climate-crimes-oil-and-gas-environment

    “Via an unprecedented wave of lawsuits, America’s petroleum giants face a reckoning for the devastation caused by fossil fuels

    After a century of wielding extraordinary economic and political power, America’s petroleum giants face a reckoning for driving the greatest existential threat of our lifetimes.

    An unprecedented wave of lawsuits, filed by cities and states across the US, aim to hold the oil and gas industry to account for the environmental devastation caused by fossil fuels – and covering up what they knew along the way.

    Coastal cities struggling to keep rising sea levels at bay, midwestern states watching “mega-rains” destroy crops and homes, and fishing communities losing catches to warming waters, are now demanding the oil conglomerates pay damages and take urgent action to reduce further harm from burning fossil fuels.”

    Worth a read for a summary of the avalanche of claims being brought.

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  12. And if the author of this article has his way, criminal litigation will follow on from the plethora of civil law suits:

    “The climate crisis is a crime that should be prosecuted
    Mark Hertsgaard
    Fossil fuel companies lied for decades about climate change, and humanity is paying the price. Shouldn’t those lies be central to the public narrative?”

    https://www.theguardian.com/environment/2021/jun/30/climate-crisis-crime-fossil-fuels-environment

    “Every person on Earth today is living in a crime scene.

    This crime has been going on for decades. We see its effects in the horrific heat and wildfires unfolding this summer in the American west; in the mega-storms that were so numerous in 2020 that scientists ran out of names for them; in the global projections that sea levels are set to rise by at least 20ft. Our only hope is to slow this inexorable ascent so our children may figure out some way to cope.

    This crime has displaced or killed untold numbers of people around the world, caused countless billions of dollars in economic damage and ravaged vital ecosystems and wildlife. It has disproportionately affected already marginalized communities around the world, from farmers in coastal Bangladesh, where the fast-rising seas are salting the soil and slashing rice yields, to low-income residents of Houston, Chicago and other cities, whose neighborhoods suffer higher temperatures than prosperous areas across town.”

    I wonder if he would prosecute wind farm companies for “ravaged vital ecosystems and wildlife”?

    Liked by 2 people

  13. “French court orders government to act on climate in next nine months
    Council of State says it will assess state’s actions after 31 March 2022, and could issue substantial fines”

    https://www.theguardian.com/world/2021/jul/01/french-court-orders-government-to-act-on-climate-in-next-nine-months

    “France’s top administrative court has ordered the government to take “all necessary additional steps” within the next nine months to enable it to reach its climate crisis targets or face possible sanctions, including substantial fines.

    The Council of State said in a final ruling published on Thursday, with no possibility for appeal by the government, that France was not on track to meet its goal of achieving a 40% cut in emissions from 1990 levels by 2030.

    “The Council of State therefore instructs the government to take additional measures between now and 31 March 2022 to hit the target,” it said.

    A spokesperson said it would assess the state’s actions after the deadline, which falls days before the first round of presidential polls in which Emmanuel Macron is expected to seek re-election, and could issue a fine if it considered it necessary.

    “This ruling by the Council of State is historic: for the first time in France, the state has been ordered to act for the climate,” said Damien Carême, an MEP and former mayor of the northern coastal town of Grande-Synthe, which brought the case.”

    Liked by 2 people

  14. Occasionally the litigation goes the other way!

    “French wind farm causes storm in Belgium”

    https://www.thetimes.co.uk/article/french-wind-farm-causes-storm-in-belgium-w63w955vr

    “Belgium is to take legal action against France over plans for an offshore wind farm that it says will damage its hopes of reopening a post-Brexit ferry line across to Britain.

    The scheme, which involves placing 46 turbines as high as the Eiffel Tower off Dunkirk, has infuriated the Belgian authorities, who accuse France of a high-handed dismissal of their concerns.

    The row has done nothing to enhance France’s reputation in Belgium, where football fans celebrated the French team’s elimination from the Euro 2020 tournament this week by burning tricolour flags. “

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  15. “Australian government must protect young people from climate crisis harm, court declares
    Environment minister has 28 days to appeal historic ruling that carbon emissions from coalmine should not cause young people ‘personal injury or death’”

    https://www.theguardian.com/environment/2021/jul/08/australian-government-must-protect-young-people-from-climate-crisis-harm-court-declares

    “Australia’s federal court has formally declared the nation’s environment minister has a “duty to take reasonable care” that young people won’t be harmed or killed by carbon dioxide emissions if she approves a coalmine expansion, in a judgment that could have wider implications for fossil fuel projects.

    In the federal court case, brought by eight schoolchildren and an octogenarian nun, Justice Mordecai Bromberg on Thursday also ordered the minister pay all costs….

    …Sharma said the “historic ruling” would make it harder for politicians “to continue to approve large-scale fossil fuel projects that will only fast-track the climate crisis.”

    In his May judgment, Bromberg said the potential harm to children from climate change “may fairly be described as catastrophic, particularly should global average surface temperatures rise to and exceed 3C beyond the pre-industrial level”.

    Lawyer David Barnden, who represented the children, said: “For young people this decision brings hope and anticipation of a better, and responsible decision making by government. The ramifications for the minister are clear.”

    The judge’s declaration was made in relation to the Vickery Extension project, which gained approval from the NSW Independent Planning Commission in August last year. Ley has still to approve the project.

    Whitehaven has said about 60% of the coal from the extension will be used for making steel, with the rest for burning in power stations.

    Barnden said it was conceivable the duty of care would extend to other fossil fuel projects that came before the minister for approval. He said the minister would have 28 days to appeal against the case.

    A spokesperson for the minister said: “The Morrison government will review the judgment closely and assess all available options.””

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  16. And occasionally the litigation goes the other way:

    “North Dakota sues over Biden’s halt in oil and gas leases on public lands
    State protests lost revenue and insists on right to control “its own natural resources””

    https://www.theguardian.com/us-news/2021/jul/08/north-dakota-sues-biden-administration-oil-gas-leases-public-lands

    “North Dakota has sued the Biden administration over its suspension of new oil and gas leases on federal land and water, saying the move will cost the state hundreds of millions of dollars in lost revenue.”

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  17. “Southampton Airport: Runway legal review request submitted”

    https://www.bbc.co.uk/news/uk-england-hampshire-57834948

    “Opponents of the planned extension to Southampton Airport runway have formally submitted their request for a judicial review to the High Court.

    Eastleigh Borough Council has approved plans to lengthen the runway by 164m (538ft).

    Campaigners Airport Expansion Opposition (AXO) said the decision needed the “full scrutiny” of a judicial review.

    The council previously said it was confident its procedures were sound.

    The airport plans to extend the runway in order to accommodate larger planes needed for longer haul flights.”

    Like

  18. “Oil giant Shell set to appeal against ruling on carbon emissions
    Company hopes to get Dutch court ruling overturned which called for it to cut emissions faster”

    https://www.theguardian.com/environment/2021/jul/20/oil-giant-shell-set-to-appeal-ruling-on-carbon-emissions

    “Royal Dutch Shell has confirmed that it will appeal against the landmark Dutch court ruling calling for the oil giant to cut its carbon emissions faster.

    A court in The Hague reached the milestone verdict in May this year after Friends of the Earth and over 17,000 co-plaintiffs successfully argued that Shell had been aware of the dangerous consequences of CO2 emissions for decades, and that its climate targets did not go far enough.

    Ben van Beurden, Shell’s chief executive, said the company agrees that “urgent action is needed” to reduce carbon emissions, and vowed to accelerate its progress towards becoming a net zero carbon company, but said that Shell would still appeal against the ruling “because a court judgment, against a single company, is not effective”.

    “What is needed is clear, ambitious policies that will drive fundamental change across the whole energy system,” he said. “Climate change is a challenge that requires both urgent action and an approach that is global, collaborative and encourages coordination between all parties.”

    Friends of the Earth Netherlands, also known as Milieudefensie, said the appeal would send “the wrong signal” and confirm Shell’s “lack of commitment” to tackling the global climate crisis.

    Donald Pols, a director at Milieudefensie, said the appeal aimed to postpone any action from Shell and warned that “the longer the delay the more serious the climate consequences will be for us all”.

    The court ruled that Shell has an obligation to cut its carbon emissions by 45% by 2030, compared with 2019 levels, under both Dutch law and the European convention on human rights – the right to life and the right to family life – and that the company had known for “a long time” about the damage caused by carbon emissions.”

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  19. Here’s an interesting fightback:

    “Outrage as Italy faces multimillion pound damages to UK oil firm
    Secretive tribunals allow fossil fuel companies to sue governments for passing laws to protect environment”

    https://www.theguardian.com/business/2021/jul/25/outrage-as-italy-faces-multimillion-pound-damages-to-uk-oil-firm

    “Italy could be forced to pay millions of pounds in damages to a UK oil company after banning new drilling near its coast.

    The case has sparked outrage at the secretive international tribunals at which fossil fuel companies can sue governments for passing laws to protect the environment – amid fears that such cases are slowing down action on the climate crisis. It is also fuelling concern that the UK is particularly exposed to the risk of oil firms suing to prevent green policies, potentially hampering climate action.

    Rockhopper Exploration, based in Salisbury, Wiltshire, bought a licence to drill for oil off Italy’s Adriatic coast in 2014. There had already been a wave of opposition to the project, with protests that drew tens of thousands of people. Within two years, the campaign won over the Italian parliament, which imposed a ban on oil and gas projects within 12 nautical miles of the Italian coast.

    Rockhopper fought back using a relatively obscure legal mechanism known as investor-state dispute settlement (ISDS), which allows companies to sue governments for introducing policies that could affect their future earnings. Reports suggest Rockhopper has spent $29m (£21m) on the offshore project to date and is claiming damages of $275m based on expected future profits from the oilfield.

    The company said it has been advised that it has “strong prospects of recovering very significant monetary damages” as a result of Italy’s actions.”

    Like

  20. “Activists lose legal bid to stop £27bn roads plan for England
    Climate campaigners appeal against judgment saying ministers are being ‘let off the hook’”

    https://www.theguardian.com/politics/2021/jul/26/activists-lose-legal-bid-to-stop-27bn-roads-plan-for-england

    “Campaigners have lost a legal challenge to the government’s £27bn roadbuilding programme after the high court dismissed their application for a judicial review.

    Lawyers for Transport Action Network (TAN) argued that the transport secretary, Grant Shapps, had drawn up the roads investment strategy for England, known as RIS2, without taking into account the UK’s environmental commitments or assessing the additional carbon emissions and climate impact of another 4,000 miles of road.

    However, the judge, Mr Justice Holgate, said Shapps had received a “briefing, albeit laconic” from officials saying the policy was consistent with net zero targets, based on a comprehensive programme of analysis, and that Shapps did not need to know the actual numbers.

    He said claimants had “a heavy evidential onus to establish that a decision was irrational, absent bad faith or manifest absurdity” and noted that the government was “taking a range of steps to tackle the need for urgency in addressing carbon production in the transport sector”, adding: “Whether they are enough is not a matter for the court.”

    TAN argued Shapps was legally required to consider the effect on the environment and there was a clear inconsistency in increasing traffic during the worsening climate emergency.

    The campaigners’ lawyers have appealed against the judgment and are crowdfunding for further legal costs.”

    Like

  21. “Campaigners win right to challenge state aid for North Sea oil and gas
    High court allows Greenpeace UK and others to seek judicial review of support for fossil fuel industry”

    https://www.theguardian.com/business/2021/jul/28/campaigners-win-right-to-challenge-state-aid-for-north-sea-oil-and-gas

    “The government will face a legal challenge over its continuing support for North Sea oil and gas production despite its legally binding target to end the UK’s contribution to the climate crisis.

    The high court agreed on Wednesday to allow a judicial review against the Oil and Gas Authority (OGA), which set out a strategy earlier this year to continue to encourage the production of North Sea oil and gas while moving to a net zero carbon future.

    The strategy also fails to take into account the billions of pounds of public money required to support the industry, according to the coalition of green campaigners behind the legal challenge.

    The groups, which including Greenpeace UK, Friends of the Earth Scotland and 350.org, hope the judicial review could spell the end for production that relies on generous public subsidies.

    The OGA and the business secretary, Kwasi Kwarteng, will need to submit the grounds of their defence by the end of August, a little over two months before the UK hosts the Cop26 UN climate talks in Glasgow. The case is expected to be heard before the end of the year, with a decision in early 2022.”

    The article baldly says this (but provides no links or other authority to back up the claim):

    “The government has paid £3.2bn of public money to North Sea oil and gas companies since it signed up to the Paris climate agreement in 2015.”

    I have no idea whether or not that is accurate, but it seems so surprising, that I would have expected some additional information to back up the claim.

    Also, more litigation may be in the pipeline (pardon the pun):

    “Ministers may face a second legal challenge from Greenpeace over plans to allow exploration at the Cambo oilfield near Shetland after promising to put an end to new oil exploration licences that do not align with the UK’s climate goals.”

    It’s a pity Greenpeace isn’t so concerned about the environmental harm being caused to the Central Shetland Mainland by the enormous Viking Energy wind farm development.

    Like

  22. “Climate crisis has cost Colorado billions – now it wants oil firms to pick up the bill”

    https://www.theguardian.com/environment/2021/aug/02/climate-crisis-boulder-colorado-lawsuit-exxonmobil-suncor

    “ExxonMobil and Suncor face lawsuits in the western state but big oil’s apologists say the US consumer is to blame for emissions…

    …Boulder county estimates it will cost taxpayers $100m over the next three decades just to adapt transport and drainage systems to the climate crisis, and reduce the risk from wildfires.

    The county government says the bill should be paid by those who drove the crisis – the oil companies that spent decades covering up and misrepresenting the warnings from climate scientists. It is suing the US’s largest oil firm, ExxonMobil, and Suncor, a Canadian company with its US headquarters in Colorado, to require that they “use their vast profits to pay their fair share of what it will cost a community to deal with the problem the companies created”.

    Boulder county, alongside similar lawsuits by the city of Boulder and San Miguel county in the south-west of the state, accuse the companies of deceptive trade practices and consumer fraud because their own scientists warned them of the dangers of burning of fossil fuels but the firms suppressed evidence of a growing climate crisis. The lawsuits also claim that as the climate emergency escalated, companies funded front groups to question the science in order to keep selling oil.

    “It is far more difficult to change it now than it would have been if the companies had been honest about what they knew 30 or 50 years ago,” said Marco Simons, general counsel for Earth Rights International, which is handling the lawsuit for the county. “That is probably the biggest tragedy here. Communities in this country and around the world were essentially robbed of their options.”

    Boulder county’s lawsuit contends that annual temperatures in Colorado will rise between 3.5F and 6.5F by 2050 and imperil the state’s economy, including farming and the ski industry….”.

    Like

  23. From this week’s Law Society Gazette:

    “According to a study by the London School of Economics, the number of disputes relating to climate change worldwide has more than doubled over the past five years. Most cases have been brought against governments – typically by corporations, non-governmental organisations and individuals – and have focused on compliance with climate commitments, human rights and the financial risk of climate change.”

    Like

  24. It seems that the only permissible litigation in this area is against fossil fuel companies, not by them:

    “Why is life on Earth still taking second place to fossil fuel companies?
    George Monbiot
    Effective action against climate breakdown is near impossible while governments are vulnerable to lawsuits”

    https://www.theguardian.com/commentisfree/2021/aug/19/life-earth-second-place-fossil-fuel-climate-breakdown

    “A UK oil company is currently suing the Italian government for the loss of its “future anticipated profits”after Italy banned new oil drilling in coastal waters. Italy used to be a signatory to the Energy Charter Treaty, which allows companies to demand compensation if it stops future projects. The treaty’s sunset clause permits such lawsuits after nations are no longer party to it, so Italy can be sued even though it left the agreement in 2016. This is one of many examples of “investor-state dispute settlement”, that makes effective action against climate breakdown almost impossible. It represents an outrageous curtailment of political choice, with which governments like ours are entirely comfortable. I’m not sure how we can escape such agreements, but government lawyers should be all over this issue, looking for a way out. Otherwise, future corporate profits remain officially more important than life on Earth.”

    Like

  25. There definitely seems to be a push on the issue of fossil fuel companies daring to use litigation against governments constraining their activities:

    “UK ‘sitting on fence’ over reform of global fossil fuels deal
    Opposition Labour Party wants tougher UK stance on ability of fossil fuel companies to sue governments.”

    https://www.politico.eu/article/uk-reform-fossil-fuels-deal-energy-charter-treaty/

    “The U.K. government is “sitting on the fence” over calls to reform a decades-old agreement governing the global energy market ahead of the COP26 climate conference, according to the Labour Party.

    Shadow Trade Secretary Emily Thornberry has written to Trade Secretary Liz Truss, in a letter seen by POLITICO, urging the government to push for green reform in talks to refresh the Energy Charter Treaty.

    The international agreement, signed by 54 nations, was put together in the wake of the Cold War to open up the worldwide energy market. It allows private companies to sue governments for damages if the value or future profits of private investments are hurt by new legislation.

    Climate campaigners are fed up with companies using it to take legal action against nations that attempt to restrict fossil fuel operations in a bid to go green. More than 400 environmental groups, charities, NGOs and trade campaigners last month signed a statement calling for the U.K. and EU to withdraw from the ECT.

    German energy firm Uniper is using the investor-state dispute-settlement mechanism in the agreement to challenge the Dutch government over its plans to phase out coal power. British oil and gas exploration firm Rockhopper is awaiting the verdict of its challenge to Italian restrictions on offshore oil and gas operations in the Adriatic Sea.

    Talks to modernize the ECT have been in progress since 2017, but the process has been slow-going, and the U.K.’s Department for International Trade (DIT) is not pushing for fossil fuel investments to be outside its arbitration system. “

    Liked by 1 person

  26. Awesome to be alerted to the ECT debate Mark. Liz Truss has slammed the door in the face of extreme activists in what I’ll call (for want of a better title) the transgender wars. She’ll do this more quietly but it sounds like she’s on the right side again. (Though that fact is clearly needing to be confirmed.)

    Like

  27. Thanks, Richard. The Energy Charter Treaty is potentially a big deal. I’m far from convinced that I support it in principle, though it does seem right to me that Governments shouldn’t with impunity be able to encourage private business to do something then pull the rug from beneath their feet.

    Anyway, watch this space. I suspect it could be a big talking-point at COP26, in the absence of any substantive progress on any of the very big issues.

    Like

  28. “Judges urged to halt Vorlich North Sea oilfield”

    https://www.bbc.co.uk/news/uk-scotland-north-east-orkney-shetland-58411614

    “Greenpeace has urged judges to stop an oil field in the North Sea due to “myriad failures”.

    The environmental group believes permission should not have been granted for the Vorlich field, 150 miles east of Aberdeen.

    Ruth Crawford QC said Business Secretary Kwasi Kwarteng had been “deprived” of information about the environmental impact it could have.

    The Inner House of the Court of Session is hearing the case.

    Greenpeace has gone to Scotland’s highest civil court with the aim of overturning Mr Kwarteng’s decision giving permission for Vorlich.

    Ms Crawford told Scotland’s most senior judge, the Lord President, Lord Carloway, that the government had a legal obligation to conduct a proper public consultation on the development.

    The advocate for Greenpeace said the consultation that had been held was inadequate. She said it did not meet best practice and the government did not properly publicise the scheme….

    …Permission to drill the Vorlich site was given to BP in 2018.

    Greenpeace wants the court to revoke a permit to drill for 30 million barrels of oil. The court heard that BP failed to publish a statutory notice on its website regarding the development.

    The Department for Business, Energy and Industrial Strategy has instructed Roddy Dunlop QC to contest the action.

    Mr Dunlop said the failure to publish the notice was an error, but that it would be wrong to overturn permission for Vorlich on this basis.

    He said: “A blank template went on rather than the notice itself. It is a minor technical issue which didn’t give rise to any material prejudice to any party.”

    The Oil and Gas Authority (OGA), also contesting the action, has instructed advocate Ross McClelland to act on its behalf.

    Greenpeace believes that if it were to win its case at the Court of Session, it would have ramifications for how the UK government makes future oil permit decisions, such as the Cambo field off Shetland.

    The hearing continues on Thursday.”

    Like

  29. “Greenpeace Vorlich oilfield challenge ‘largely opportunistic'”

    https://www.bbc.co.uk/news/uk-scotland-north-east-orkney-shetland-58420025

    So far as I can see this is largely a re-hash of the earlier BBC article giving free publicity to Greenpeace’s legal challenge, though the headline (which seems to carry implicit criticism) is intriguing. The article contains this:

    “Ms Crawford said Greenpeace wanted proper public participation in important developments such as the Vorlich oilfield.”

    I wonder if Greenpeace also wants to see proper public participation in important developments such as massive wind farms?

    Like

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