Climate change and litigation risk

Climate change and litigation risk


Although the issue of climate change has been on the international agenda for decades, the urgency of the debate is growing. The effects of climate change are also becoming increasingly visible; the last five years have been the hottest years on record, and in turn have borne witness to a large increase in natural disasters connected to climate change; Hurricane Katrina, Cyclones Idai and Kenneth, severe droughts across Africa in 2017 and 2019, record temperatures across Europe and most recently the 2019 Australian bushfires, have helped to draw global attention to the impact of climate change.

However, notwithstanding the increasing body of scientific research and public studies and reports indicating that we are reaching a tipping point in the global fight on climate change, global carbon output continues to climb.  It is against this backdrop that we have seen a significant increase in climate change litigation, as institutions, individuals and in some cases countries and states, look to the courts as an alternative means of enforcing action against climate change.

According to the 2020 report "Global trends in climate change litigation" published by the London School of Economics, to date there have been 1,587 cases of climate litigation  brought globally as of July 2020.  A significant number of these cases (1,213 cases) have been brought in the US.  However, there is also an increasing trend in climate change litigation in Europe, and elsewhere.  As of July 2020, the London School of Economics calculates that there have been 62 climate litigations brought in the UK and 57 climate litigations brought in EU bodies and courts.  We are also seeing a broadening spectrum of claimants bringing climate change related litigation, and increasingly we are seeing claimants adopt novel approaches in order to allege legal liability in relation to issues of climate change. 


"Climate change litigation" spans a broad spectrum of cases; including claims brought against states to increase climate change mitigation measures, strategic cases brought against private corporations to curb carbon-emitting behaviour (often as tort or nuisance claims), planning and permitting cases relating to fossil fuel projects and claims relating to the need for institutions or businesses to take account of climate change risk in making investments, or to disclose the climate risk arising in respect of existing investments (amongst others). 

Key cases

Recent key cases in this area include: Conservation Law Foundation, Inc. v. Shell Oil Products US, Sarah Von Colditz v ExxonMobil, New York Attorney General v. Exxon Mobil Corp, McVeigh v. Australian Retail Employees Superannuation Trust and, in the UK, the case of Deutsche Bank AG v. Total Global Steel Ltd, a complaint filed in December 2019 against BP in respect of violations of the OECD Guidelines, and recent cases brought by Plan B against the UK Government, which are detailed below.  Notably, a 2019 study found that more cases of climate litigation affecting the financial sector were filed in 2018 than in any previous year.


A 2019 study found that more cases of climate litigation affecting the financial sector were filed in 2018 than in any previous year.

Whilst this area of litigation remains in its infancy in the English courts, businesses should be alive to this ever-increasing risk.  Recent climate change cases in the English courts which have hit the headlines include the High Court cases brought by Plan B, a British non-profit with the mission to realise the goals of the Paris Climate Change Agreement, in relation to fracking and in opposition to the proposed third runway at Heathrow.  The decision in the second of these cases was handed down by the Court of Appeal in April 2020.  The case, brought jointly by Plan B, Friends of the Earth and other co-claimants, was brought against the Secretary of State for Transport, alleging that the decision to permit a third runway at Heathrow amounted to a violation of the Planning Act 2008 and the Human Rights Act 1998.  The Court of Appeal found that, having signed up to the Paris Climate Change Agreement, the goals of that Agreement were now part of Government policy.  By failing expressly to consider and address the climate change targets set out in that Agreement before taking the decision to approve the third runway, the Secretary of State had been in violation of the Planning Act 1980.  The decision was therefore invalid and was required to be retaken, taking consideration of the non-carbon dioxide climate impacts of aviation and the effects of emissions beyond 2050.

Most recently, the UK Government's COVID-19 recovery plans were challenged when a pre-action letter was sent to the Prime Minister, Chancellor of the Exchequer and the Governor of the Bank of England, amongst others, alleging unlawful allocation of Government and Bank of England Funds, contrary to the Climate Change Act 2008, the Paris Agreement and other legal commitments.  If this case makes it to court, it will represent the first wholesale challenge to the Government's approach to climate change. However, as mentioned briefly above, climate change litigation is much broader than those cases brought in relation to planning, permitting and government action.  Globally, litigation trends in this area show that we can expect to see climate change litigation brought against businesses in relation to the need to diversify their investment portfolio to ensure exposure to climate change risk is minimal, to incorporate climate change risk in their investments and to disclose the climate change risk built into their investments. 

These cases reflect the importance of companies and corporations, even those who do not traditionally operate in the fossil fuel sector, or other sectors directly related to climate change, remaining alert to the potential impact of climate change risk on investments, supply chains and mergers and acquisitions.

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