1. Causes of Action

3. RELEVANT DEFINITIONS AND ESSENTIAL ELEMENTS

Defining 'climate change and environmental laws' with precision is challenging. It is difficult to determine whether "climate" belongs within an existing legal category or if it warrants recognition as a unique, standalone branch of law.[1] Additionally, the operational components of climate change law may be incorporated into various types of instruments, including policies and regulations or "soft" law.[2]

In this Section, the term "climate change and environmental laws" encompasses both specific climate-related legislation and a wider array of environmental statutes and policies. These originate from a variety of national, European and international sources. Such laws might directly address climate change and environmental concerns. Alternatively, they might be considered 'indirect' climate or environmental laws. Although not explicitly designed to tackle these issues, these 'indirect' laws nonetheless influence climate change and environmental outcomes through their broader implications.

In corporate climate litigation, when considering "climate change and environmental law" as a basis for legal action, it is essential to take into account the following critical components and elements:

1) Existence of Relevant Legal Provisions

Ascertain whether the legal framework in the jurisdiction in question incorporates climate change and environmental laws. These include international climate agreements, legislative enactments, and policies specifically designed to acknowledge obligations pertinent to the impacts of climate change.

2) Clear Obligations and Legal Consequences

Present clear obligations of corporations under climate and environmental laws. This might involve emission reduction targets, pollution prevention and control standards - including Best Available Techniques - or specific Environmental Impact Assessment procedures that corporations are legally bound to follow. The case should clearly articulate the legal standards, guidelines, or principles that corporations are expected to follow.

It should also be made clear what legal consequences corporations face if they fail to meet their environmental and climate-related obligations. These consequences may include penalties, fines, and the potential for lawsuits due to causing environmental harm or significantly contributing to climate change.

3) Wrongful Omission or Action by the Defendant

Substantiate the claim of the corporation's failure to fulfil its environmental and climate-related obligations. This can include data on emissions, waste management records, internal communications, corporate policies, and reports on Environmental Impact Assessments. To highlight deficiencies, the evidence should contrast the corporation's practices with legal requirements or industry best practices.

4) Clear Right of Claimants to Bring the Action

Establish the claimant's standing or legal right to initiate the case (see further the Section on Standing). This often involves showing that the claimant is genuinely impacted by the corporation's actions or failures, thereby justifying their pursuit of judicial intervention. In some cases, claimants may file lawsuits to protect a wider public interest or on behalf of a community or group that has suffered. In these situations, the claimant needs to prove their connection to the community or group and demonstrate that their interests are consistent with those they aim to represent.

The foregoing components form the basis of a case against corporations based on environmental and climate change laws. They serve as the foundational elements upon which claimants can construct arguments asserting the liability of corporations under climate and environmental laws.

[1] Scotford, E. and Minas, S. (2019) 'Probing the hidden depths of climate law: Analysing national climate change legislation', Review of European, Comparative & International Environmental Law, 28, pp. 67-81.

[2] 'Climate Governance Functions: Towards Context-Specific Climate Laws'. Grantham Research Institute on Climate Change and the Environment. Available at: https://www.lse.ac.uk/granthaminstitute/publication/climate-governance-functions-towards-context-specific-climate-laws/ accessed 18 January 2024.