1. Causes of Action

A. Climate Change and Environmental Law Statutory Provisions

7. POTENTIAL FUTURE APPLICATIONS

Corporation climate litigation can leverage untested climate and environmental laws to hold corporations accountable for their environmental impact by: (a) enforcing new laws related to Environmental Impact Assessments and due diligence, (b) interpreting recent judicial decisions to evaluate company transition plans, and (c) utilising evolving legislative frameworks in combination with national laws and statutory provisions.

Stakeholders, including local communities, environmental groups, or government agencies, can use non-compliance with environmental impact assessment and due diligence laws as a basis for litigation, particularly if a project proceeds without proper assessment or disregards the assessment's findings.

The proposed Corporate Sustainability Due Diligence Directive (CSDDD) in the EU might also have implications for UK companies, especially regarding liabilities in the supply chain and requiring large companies to adopt plans for limiting global warming. It might be used as a basis for such litigation, even for UK companies operating within the EU or those with significant connections with EU markets. The directive aims to foster sustainable and responsible corporate behaviour and introduces due diligence obligations for companies regarding their impact on human rights and the environment.
The adoption of the updated OECD Guidelines in 2023, which include specific recommendations on climate change and biodiversity, also has a potential impact on future 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). A recent case, where NGOs and an individual prevailed against the Secretary of State for Business, Energy, and Industrial Strategy, illustrated this. The court ruled that the government's briefing and report lacked sufficient detail, failing to meet the CCA's reporting requirements (R (on the application of Friends of the Earth Ltd and others) v Secretary of State for the Business, Energy and Industrial Strategy [2022]). As a result, the government had to refine its net-zero strategy. While this case did not directly impact corporations, it may set a precedent for how courts could evaluate corporate transition plans in the future.

Finally, in cases where a single legislative framework does not independently establish a cause of action, it can be leveraged in conjunction with national laws and statutory provisions to hold corporations accountable. These laws typically outline explicit obligations for corporations, set up systems for monitoring and enforcement, and prescribe penalties and compensations. Additionally, they facilitate civic engagement by empowering communities and environmental organisations to initiate legal actions against corporations that breach environmental standards.

Netherlands

The European Climate Law, adopted in 2021, enshrines the objectives of a climate-neutral European Union by 2050. The European Climate Law is further concretised through a set of climate legislation: 'Fit for 55'. This package of legislation initiatives consists of several legislative proposals that aim to ensure a fair, competitive, and green transition by 2030. What the implications of these legislative proposals may be on corporate climate accountability is still unknown; however, it is conceivable that these new legislative proposals might create new legal grounds to hold corporations accountable for their contribution to climate change and failing to adequately mitigate climate damage. As such, they may have a significant impact on corporations and could create new legal grounds to hold them accountable for their contribution to climate change.

Canada

The Canadian Environmental Protection Act 1999 (CEPA) delineates the federal government's jurisdiction over environmental regulation. Bill S-5 introduces proposed amendments to CEPA, notably incorporating the right to a healthy environment. Additionally, the Canadian Net-Zero Emissions Accountability Act mandates the federal government to establish benchmarks aimed at curtailing GHG emissions by 2050. Concurrently, the Greenhouse Gas Pollution Pricing Act outlines the framework for holding corporations accountable for their emissions.

Philippines

The Climate Change Act, together with environmental protection statutes like the Disaster Risk Reduction and Management Act, potentially forms the basis for justiciable causes of action. Moreover, the Clean Air Act and Clean Water Act recognize the right to a clean and healthy environment, with specific prohibitions and rights that can be used to hold corporations accountable for contributing to climate change.

The Clean Air Act of 1999, quite significantly, specifically recognizes the concept of a "gross violation" which includes one which causes irreparable or grave damage to the environment. A finding of gross violation is sufficient basis for a recommendation to file the appropriate criminal charges against erring corporations. With the current findings regarding the potential irreversibility of global warming, one may characterize a suit based on climate change as a gross violation of the Clean Air Act.

Kenya

The Climate Change Act provides a regulatory framework for climate change response and imposes duties on both the public and private sectors. The National Climate Change Council may impose climate change obligations on private sector companies, and the National Environment Management Authority (NEMA) is responsible for ensuring compliance. Moreover, the Environmental Management and Coordination Act No. 8 of 1999 (EMCA) establishes the legal and institutional framework for environmental management in Kenya, and can be effectively used to:

a. challenge the actions of corporations that are detrimental to the environment.

b. enforce environmental standards and obligations that corporations are required to adhere to.

c. seek remediation for environmental damage caused by corporate activities.

d. advocate for preventive measures to ensure that corporate operations are environmentally sustainable.

Nigeria

The Climate Change Act, alongside the National Environmental Standards and Regulation Enforcement Agency (Establishment) Act and other specific regulations, provide a comprehensive legal framework for corporate climate litigation. The Climate Change Act, with its focus on low GHG emissions, climate action integration, and a net-zero target aligned with international commitments, offers a potential for litigation against corporations engaged in climate-damaging practices. Additionally, environmental regulations empower individuals and organizations to enforce compliance in court, holding corporations accountable for meeting environmental standards.

These strategies collectively provide a multifaceted legal approach for future corporate climate litigation.

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