1. Causes of Action

1. OVERVIEW

This Section illustrates how corporate climate litigation strategically uses climate change and environmental laws. It looks at established legal pathways and the obstacles and complexities faced in leveraging these laws for corporate climate litigation across 17 case-study countries. The research also explores possible future legal approaches, offering insights into potential cases and corporate accountability in the realm of climate change.

1. Established Legal Avenues from Past Litigation

Climate change and environmental laws have been strategically deployed in climate litigation. Courts have underscored the significance of Environmental Impact Assessments (EIAs), compelling corporations to conduct thorough analyses of their projects' environmental repercussions. Moreover, the precautionary principle has been invoked to proactively guard against potentially harmful activities, even amid scientific uncertainty. Additionally, litigants have championed sustainable development, arguing against policies or initiatives that risk compromising environmental integrity or depleting natural resources. Finally, recent legal developments (e.g., in the UK, India, and Nigeria) highlight the judiciary's strengthened commitment to not only uphold local environmental regulations but also to align them with international environmental standards and commitments.

2. Hurdles and Challenges

Litigants in corporate climate litigation have encountered numerous hurdles and challenges. These include the doctrine of political questions,[1] determining which laws to apply from among concurrent statutes, the need to establish a direct causal link between a defendant's actions and environmental harm, and establishing standing. Moreover, the effectiveness of certain regulatory and statutory frameworks is often undermined by their emphasis on broader policy goals. Furthermore, the enforceability of international treaties and agreements in dualistic legal systems (e.g., Nigeria and Norway) often lacks direct enforceability in domestic courts unless explicitly incorporated into national legislation. Finally, inadequate regulatory frameworks, including the broad discretionary powers given to regulatory bodies for approving environmental impact assessments (e.g., in Japan and Nigeria), may undermine the effectiveness of the regulations governing these assessments, especially in corporate climate litigation.

3. Potential Legal Avenues in Future Litigation

Looking ahead, this Section outlines several strategies for effectively utilising climate and environmental laws in future corporate climate litigation. It highlights the potential of leveraging Environmental Impact Assessment legislation and new rules on due diligence, noting how directives like the proposed Corporate Sustainability Due Diligence Directive (CSDDD) in the EU and the updated OECD Guidelines might influence upcoming legal actions. This Section also emphasises the importance of utilising legislative frameworks in conjunction with national laws and statutory provisions. It points out that legislative frameworks (e.g., European Climate Law and the Canadian Environmental Protection Act) together with enabling laws not only set clear obligations for corporations but also establish robust mechanisms for monitoring, enforcement, and the imposition of penalties and compensations, thus shaping the landscape of corporate climate litigation. Moreover, judicial decisions can serve as an interpretative tool for assessing company transition plans, as shown in the UK's enforcement of the Climate Change Act 2008 (CCA)

[1] The political question doctrine holds that some questions by their nature are political rather than legal ones.