Feature: What is the future of the UK as a venue for climate change litigation?

Mark Clarke, Partner, and Alexandre Hublet, Associate at White & Case LLP explore what the future of climate change litigation will look like. 

At the very beginning of 2022, two NGOs, ClientEarth and Friends of the Earth, filed separate cases against the UK Government, in relation to its net-zero strategy.

The NGOs’ main argument is that the policies in the Government’s net-zero strategy are insufficient and too theoretical to achieve the targets.

Legally, both claims are based on infringements of the 2008 Climate Change Act, which requires the Secretary of State to set out a plan for the UK to meet its carbon reduction targets. Since the Government has released a plan, it is the quality of this plan, rather than the absence of a plan, which is being questioned.

ClientEarth is also developing an argument based on a violation of the right to private and family life, enshrined in Article 8 of the European Convention on Human Rights.

The increased sense of global urgency to tackle climate change has resulted in a dramatic rise in the number of climate change-related legal claims in recent years.

Historically, climate change litigation generally involved claims for damages against large oil and gas companies, principally on the basis that these companies produce and distribute products that are directly related to GHG emissions. However, claimants have sought to increase the scope of climate change litigation and, rather than bringing claims for damages, claimants are increasingly using litigation – often by invoking their human rights – to hold defendants to account for their climate change commitments.

Initially, claims of this nature targeted States or governments but, given the increasing success of these claims, claimants are now invoking the rights that have been established with respect to governments and seeking to apply them to corporates to hold them accountable for their global activities too.

There has been a run for landmark decisions in recent years:

In the Netherlands, the well-known Urgenda saga ultimately ended with the 2019 decision of the Dutch Supreme Court, confirming a court decision ordering the Dutch government to reduce GHG emissions by at least 25% by the end of 2020 compared to 1990 levels.

More recently, in 2021, the administrative tribunal of Paris issued an order requesting the French State to compensate for the excess in GHG emissions for the period 2015-2018 by 31 December 2022.

The German Constitutional Court annulled part of the German Federal Climate Change Act for violation of constitutional rights by insufficiently cutting GHG emissions beyond 2030.

The French-speaking Tribunal of First Instance of Brussels found the Belgian federal and regional governments in breach of their duty of care and human rights obligations by failing to implement sufficiently robust climate change policies (although it did not impose any penalties or concrete obligations and the decision is currently under appeal), and the Supreme Court of Ireland decided that the plan adopted under the Climate Action and Low Carbon Development Act was ultra vires because the measures were not sufficiently specific to allow a reasonable person to judge whether it was realistic and whether to agree with the policy options.

In the Netherlands, based on the principles it had established in the Urgenda case, the same claimant, Milieudefensie, initiated a case against the oil giant Royal Dutch Shell, whose headquarters are in The Hague. The local District Court ordered Shell to reduce its worldwide GHG emissions by 45% by 2030 (compared to 2019 levels). This decision is currently under appeal.

In January this year, Milieudefensie also sent letters to 30 of the largest Dutch companies requesting them to adopt an emissions reduction plan by 15 April 2022. Recipients included financial institutions, oil and energy majors, a major retailer, and an airline, opening the door to further cases against corporations.

In Ireland, the decision of the Supreme Court also opened the door for individuals to file human rights claims in climate change litigation based on the Irish Constitution or the European Convention on Human Rights.

However, despite an important number of climate change cases in the UK courts, no similar landmark decision has been obtained.

On the contrary, UK courts have repeatedly found against climate change-related claims, including those filed by ClientEarth and Friends of the Earth.

Indeed, in 2020, in another case filed by Friends of the Earth and others, the UK Supreme Court overturned the Court of Appeal’s decision in respect of the judicial review of the Airports National Policy Statement.

In 2021, the Court of Appeal dismissed a separate challenge brought by ClientEarth in relation to the UK Government’s decision to allow the construction of two gas-fired generating units in North Yorkshire.

In the last days of 2021, the High Court refused permission on all grounds to apply for a judicial review based on the UK Government’s alleged failures to take appropriate action in meeting their climate change commitments. Legal grounds raised by the claimants (including the NGO, Plan B Earth) included breaches of the Paris Agreement, the Climate Change Act 2008, and Section 6 of the Human Rights Act 1998 (by way of breaches of Articles 2, 8, and 14 of the European Convention on Human Rights).

These grounds are similar to those raised by ClientEarth and Friends of the Earth to challenge the UK Government’s net-zero strategy.

The outcome of the new claims brought by ClientEarth and Friends of the Earth will therefore be very informative, as it will provide an indication of whether UK courts are becoming more sympathetic to climate change-related claims and, therefore, whether the UK could be a venue for future climate change litigation.

Indeed, since these cases are direct challenges to the UK Government’s GHG emission reduction efforts, they are comparable to the cases in neighbouring countries in which claimants have succeeded in holding their governments to account.

It follows that these cases could, in principle, yield the landmark decision in the UK that, to date, has eluded climate change activists. If they do, this would be extremely significant for UK-registered companies, as rulings against the UK Government would likely pave the way for future climate change-related claims against corporates.