November 9, 2018

Ahead of Oil & Gas UK’s business breakfast “Energy Transition: Upholding our Licence to Operate” on Tuesday 13th November, Mark Clarke and Tallat Hussain from event sponsor White & Case LLP provide an overview of current considerations in climate change litigation.

The transition to a lower global carbon economy has been entrenched in international commitments. Since the Paris Agreement came into force in 2016, climate change is now firmly on the global agenda, prompting action by political and business leaders around the world. The impacts of extreme weather conditions, climate-related damage and the need for climate-resilient infrastructure are shifting attention away from policy commitments and focusing on causation and accountability. Pressure is mounting as the courts are becoming the forum of choice to encourage action, whether by governments, companies or individuals. It is estimated that over 1,000 climate change-related cases have been filed to date around the world, covering 25 countries and a variety of issues, claimants and defendants.

Experience gained in environmental  and consumer protection cases from the past, coupled with social media that facilitates the broad dissemination of information and improvements in climate science have all made litigation more accessible as a means to achieve remedy for potential adverse effects of climate change and to target accountability. Even where global temperature increases or greenhouse gas emissions are not the central theme of the case, but arise peripherally in it, judges are being asked to deal with arguments and facts related to climate change and climate science that were previously not presented before courts. Climate-related cases are arising in the context of constitutional and administrative law, human rights, shareholder activism and consumer protection. As the scope of this new class of action continues to develop, the pressure created by litigation, independent of its success or failure, may also affect the regulatory and operating environment for companies.

Key drivers for climate change litigation are:

  • Compensation for the costs of adaptation to climate change
  • Challenging climate change-related legislation and policies, or their application
  • Preventing future emissions and contributions to climate change
  • Requiring governments or regulators to take action to meet national or international commitments
  • Raising awareness and exerting pressure on corporate actors, regulators or investors

The global impact of climate justice is pushing boundaries, prompting policy and behavioural change, and creating a growing body of jurisprudence around the world. Claimants are bringing novel and creative legal arguments, and, in some cases, courts are demonstrating a willingness to take novel and creative approaches to these issues.

Ends