Shaping the Future of Law and Policy with the Global Toolbox on Corporate Climate Litigation

There remains an enormous gap between the action needed to achieve the goals of the Paris Agreement and the mitigation and adaptation measures that are actually being implemented by States. The Intergovernmental Panel on Climate Change (IPCC) findings are unequivocal: anthropogenic greenhouse gas emissions cause climate change and continue to increase, intensifying extreme weather events such as floods, droughts and heat waves, and harmful consequences including the melting of certain glaciers and increase in sea levels and forest fires. In the words of the UN Secretary-General,'We are in the fight of our lives. And we are losing. Greenhouse gas emissions keep growing. Global temperatures keep rising. And our planet is fast approaching tipping points that will make climate chaos irreversible. We are on a highway to climate hell with our foot still on the accelerator.'

In response, a wide range of actors, from children and youth to pensioners, NGOs, indigenous groups, and civil society organisations have turned to litigation to compel climate action and seek compensation for climate-related harms. While governments are the most common defendants, litigants are increasingly targeting corporations. This trend is motivated by the fact that corporate actors are responsible for the majority of greenhouse gas emissions; thus, they are both appropriate parties to hold accountable and changing their behaviour would be extremely effective. The British Institute of International and Comparative Law (BIICL) has set out to make a monumental contribution to environment and climate-related litigation through the development of a Global Toolbox on Corporate Climate Litigation.

The purpose of the Toolbox is multifaceted: it provides a comprehensive mapping of corporate climate litigation across 17 countries (Australia, Brazil, Canada, China, France, Germany, India, Italy, Japan, Kenya, the Netherlands, Nigeria, Norway, the Philippines, Poland, the United Kingdom and the United States) - and counting. It dives deep into the comparative and interdisciplinary analysis of corporate climate and environmental cases and legislative provisions in order to provide a broad spectrum of stakeholders - from NGOs and corporations to legal professionals and policymakers - with the tools they need to facilitate speedier, more efficient, more effective and more predictable corporate climate litigation. Far more than a simple collection of cases, the Toolbox has the potential to stand as a beacon of strategic planning, elevating public awareness and guiding corporate behaviours towards greater environmental stewardship and effective climate action.

On 27th March 2024, BIICL launched the Global Toolbox on Corporate Climate Litigation in a high-profile event in London, marking a transformative phase in the realm of environmental and corporate accountability.

The launch was introduced by The Rt. Hon. the Lord Neuberger of Abbotsbury (President of BIICL and former President of the UK Supreme Court), who emphasised the vital importance of the Toolbox to help close the 'big gap between what people know or feel should be done and [what they are] prepared to actually do.'  Prof. David Boyd (UN Special Rapporteur on human rights and the environment) then provided his opening remarks, underscoring the Toolbox's significance as a pioneering resource in shaping governmental and corporate responses to climate change. Prof. Boyd congratulated the BIICL team on the launch of the toolbox and 'attest[ed] to the fact that it contains a wealth of information and insights that will be useful to the litigators, judges, and others going forward.'

The launch was chaired by Dr. Ivano Alogna (Leader of the Toolbox project) and Mr. Nigel Pleming KC (Chair of the project's Core Group of internationally renowned experts), who also set out key features and objectives of the project. The Toolbox is based on three main research axes: (i) Causes of Action, (ii) Procedures and Evidence, and (iii) Remedies. It reflects a rich tapestry of legal claims across different legal systems, shedding light on complexities and potential strategies in corporate climate litigation. The Toolbox is a part of a larger BIICL Corporate Climate Litigation (CCL) Platform that consists of (i) the CCL Resources, a literature repository established and growing with the support of the project's International Expert Group; (ii) the CCL Toolbox, including national reports on each of the 17 focus countries, and litigation tools resulting from the comparative analysis of the reports; and (iii) the CCL Database (forthcoming), a user-friendly AI-powered database with translation features to explore legal possibilities in this field and lessons learned from different legal systems.

13 world-leading experts - all of whom have contributed to the Toolbox research as members of the Core Group or as national rapporteurs - spoke at the launch event, providing insights into a wide range of causes of action, procedural and evidentiary issues, and remedies analysed in the research (videos of the speakers' contributions can be accessed here): Prof. Jacqueline Peel (University of Melbourne, Australia) spoke on lessons learned from the analysis of relevant environmental statutory provisions; Prof. Annalisa Savaresi (University of Stirling, UK) on the possibilities related to human rights; Prof. Elbert de Jong  (Utrecht University, Netherlands) on negligent failure to mitigate or adapt to climate change; Dr. Sophia Schwemmer (University of Heidelberg, Germany) on company and financial laws; Prof. Pauline Abadie (Paris-Saclay University, France) on consumer protection law; Prof. Michael Gerrard (Columbia University, USA) on planning and permitting laws; Prof. Mathilde Hautereau-Boutonnet (Aix-Marseille University, France) on contractual obligations; Dr. Omondi Owino (Acorn Law Advocates and Jomo Kenyatta University of Agriculture and Technology, Kenya) on arguments, defences, and court responses; Prof. Madhuri Parikh (Nirma University, India) on standing; Dr. Masako Ichihara (Kyoto Climate Change Adaptation Center, Research Institute for Humanity and Nature, Japan) on justiciability; Prof. Qin Tianbao (Wuhan University, China) on sources of evidence; Prof. Attilio Pisanò (University of Salento, Italy) on pecuniary remedies; and Prof. Michael Tiu (University of the Philippines) on non-pecuniary remedies.

Looking towards the future, in the following months, each focus country will host national conferences to test, improve, and disseminate the Toolbox through discussion within the countries' legal community regarding the current and potential developments of domestic corporate climate litigation. Five regional summits will also be organised that will bring together interested stakeholders from each region to discuss not only the findings of the Toolbox but also regional and comparative perspectives on law and policy that are most effective in corporate climate litigation. This collaborative and evolutionary approach ensures that the Toolbox informs and inspires innovative legal strategies, thereby transforming the landscape of corporate climate litigation. Thus, the Toolbox will persist in actively crafting a legacy in our collective quest for equitable climate action, accountability, and environmental and climate justice.

Authors:

Aditi Shetye: Aditi is a Researcher in Public International Law and Environmental Law at the British Institute of International and Comparative Law. She specialises in human rights and climate change law. She also leads the legal advocacy and academic taskforce for World's Youth for Climate Justice.

Anthony Wenton: Anthony is Research Fellow in Public International Law at the British Institute of International and Comparative Law. He is a public international law generalist with particular research interests in jus ad bellum, immunities, international human rights law, and international criminal law.

Crisela Bernardino: Crisela's research at the British Institute of International and Comparative Law currently focuses on Corporate Climate Litigation. Her other research interests include environmental law, climate policy, human rights, and migration. She is also a legal consultant for renewable energy projects, among others.