In recent weeks, the urgency of the climate crisis has been highlighted by scientists, politicians and royalty and all eyes will be on the COP26 Glasgow conference this month to see whether the politicians will be able to negotiate a deal which is fit for purpose.

As environmental issues are increasingly emphasised, more disputes about climate change and environmental issues are being litigated in the courts across the world.  A number of professional bodies in the UK are taking steps to encourage their members to operate in a more environmentally friendly way.

In this blog, I briefly touch upon the types of litigation which the courts have dealt with, what further types of court cases we might see as the courts are increasingly used as a forum to challenge environment standards, and what actions some of the UK professional bodies have announced to support their members to tackle the climate crisis.

How the courts are being used to fight climate change

Challenges against public bodies

The type of case most often seen in the courts are claims brought by NGOs or environmental organisations against governments and public bodies. The claimants are not seeking compensation but are seeking to challenge the lawfulness of a public body's decision or to prevent or object to a development which they consider would otherwise damage the environment.

Examples of these types of cases may be found across the globe.  Here in the UK, in May of this year, the climate charity, Plan B, commenced judicial review proceedings against the Secretary of State for Business, claiming that the government had failed to meet its commitment under the Paris Agreement and arguing that the government was in breach of Articles 2 (right to life), 8 (right to a family life) and 14 (right not to be discriminated against) of the Human Rights Act 1998. The case was unsuccessful as permission for judicial review was refused on 30 September 2021.   However, the proceedings had been issued following the success of a similar case in Holland, known as the Urgenda Climate Case, where an NGO (Urgenda) claimed that the Dutch government’s failure to reduce greenhouse gas emissions infringed Articles 2 and 8 of the Human Rights Act.   

Another example of recent proceedings in the UK court includes the judicial review proceedings brought against the Secretary of State for Business by Client Earth. The judgment in these proceedings was handed down on 21 January 2021.   The Court of Appeal dismissed Client Earth’s challenge of the government’s decision to approval the largest gas fired generation plant in Europe. Even though the Court of Appeal found in favour of the government, the developer of the proposed plant, Drax Power Limited, opted not to proceed with the development and announced that it would be expanding its focus on renewable energy instead. Presumably, the negative publicity arising from the court proceedings contributed to that decision.

Claims for compensation

In April of this year, I reviewed the case of  Begum v Maran (UK) Limited and I explained how the law of negligence might develop to allow claimants to challenge businesses’ environmental impact. In Begum, the claimant was seeking damages for negligence and unjust enrichment. In addition to claims in tort (such as negligence, unjust enrichment and nuisance claims) the following types of claims could be advanced:

• Claims against businesses for making misleading statements about environmental credentials on advertising and publicity materials. For example, the complaint brought by Client Earth against BP

• Claims against directors of companies by shareholders alleging that directors have failed to adequately report on climate risks. This was the subject of an American case brought against the Exxon Mobile Corporation.

Climate change and professionals

I mostly work with professionals in the finance, legal and property sectors and several professional bodies within these sectors in the UK have announced how they will be encouraging their members to focus on tackling climate change:

• Perhaps unsurprisingly, given the type of work its members do, the RICS, has had a suite of information available for its members to encourage them to “operate in a greener way” for some time. RICS has developed professional standards, research and training to help its members to tackle environmental issues

• In March 2021, the Bar Council launched a new initiative to support barristers in tackling climate change  though its Bar Sustainability Network.

• On 28 October 2021, the FCA, which is responsible for regulating the financial sector, published its Climate Change Adaptation Report.

• On 20 October 2021, the Law Society, which represents solicitors in England and Wales,  published its Climate Change Resolution to support solicitors and their clients.

Comment

Businesses and professionals will recognise that failing to tackle climate change increases risk to their businesses and reputation.

Litigation is being used as a tool by organisations and individuals wishing to challenge the environmental impact of the actions of governments and businesses. Court action about climate change is set to increase and all businesses should carefully plan how they deal with environmental issues to help reduce the scope for responding to court proceeding and the potential for negative publicity. 

Many businesses do genuinely wish to limit their impact on the environment and the fact that professional bodies are encouraging their members to help their clients to tackle climate change is, in my view, a positive development.

© Melissa Worth November 2021