ESG litigation trends: the Milieudefensie claim expands beyond the Netherlands

ESG litigation trends: the Milieudefensie claim expands beyond the Netherlands

Overview

It has been reported that two German NGOs (Greenpeace and Deutsche Umwelthilfe) have written a letter of claim to Volkswagen, BMW, Daimler's Mercedes-Benz and independent oil and gas company Wintershall Dea, alleging that the companies need to put in place measures to reduce their CO2 emissions by 45% (as against 2019 levels) by 2030.

The claim is expressly modelled on that recently brought by campaigners in the Netherlands (Milieudefensie v Royal Dutch Shell) against the head of the multinational Shell Group, which we recently wrote about as part of a series on climate change litigation trends. 

The German claim seeks to prohibit the three car manufacturers from producing combustion engine cars by 2030 (which is five years earlier than a EU-wide directive to effectively ban the manufacture of traditionally powered cars by 2035) and also to prevent Wintershall Dea from exploring for new petroleum reserves from 2026.  The claimants allege that the two deadlines are necessary to meet the goals of the Paris climate accords, as well as existing domestic German law. A failure to do so, it is argued, will be a breach of the companies' duty of care to German citizens. 

In our recent article we considered that, given the headline grabbing nature of Milieudefensie, it would not be surprising if a similar claim were to be brought in other jurisdictions, including in the UK.  It is interesting to see that (i) a claim has brought so quickly in Germany and (ii) it is expressly modelled on Milieudefensie.  We saw a similar trend following the well-known Dutch Urgenda Foundation claim — with activists in other European countries (such as Belgium and Germany) seeking to bring a claim in their own jurisdictions on similar grounds (albeit with mixed success). 

In the context of a perceptible and growing desire in some quarters to use litigation as a means of furthering action on climate change, and irrespective of whether such claims ultimately succeed, there are obvious potential reputational and commercial implications for businesses arising from these types of claims.  If these claims are brought in the UK it would require an English Court to push the boundaries of established legal principles to their limits, if not expand them.  However, the UK Supreme Court and the English Court of Appeal have indicated in recent private law duty decisions (most notably in the context of parent company liability and value chain liability claims) that they are willing to entertain the expansion of common law duties in negligence in the context of other ESG-type claims (albeit those principles are yet to be tested in a relevant case by means of trial - for more on this, see our overview in the Disputes Resolution Yearbook 2021).  A similar willingness to develop the common law in the context of climate change litigation cannot be ruled out.

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