1. Causes of Action

7. POTENTIAL FUTURE APPLICATIONS

Along with constitutional provisions that protect human rights, the use of human rights enshrined in international and regional legal frameworks is a further possibility for case-study countries that fall under the application of such frameworks.

Thus, potential legal avenues for future corporate climate litigation include human rights-based claims, especially in case-study countries with human rights provisions that have not yet been used in cases against corporations.

For example, in Canada, climate-related human rights claims could in theory be filed against corporations in three provinces (Quebec, Ontario, British Columbia) and three territories (Nunavut, Northwest Territories, Yukon). Particularly notable in this regard is the Quebec Charter of Human Rights and Freedoms, which is the only human rights code in Canada that provides for the 'right to live in a healthful environment' (Section 46.1). This Charter also has an enforcement mechanism in the form of the Human Rights Tribunal of Quebec, which can order injunctions and compensatory damages against a respondent corporation and even punitive damages when there is 'unlawful and intentional interference' with any right or freedom recognised by the Charter (Section 49), which includes the right to live in a healthy environment.

In Germany, the recent interpretation of human rights in the climate crisis in the Neubauer et al v Germany case could be used for corporate climate cases via the 'indirect third-party effect' between private actors, which means that human rights could influence the interpretation of open terms and notions of civil law.

In Kenya, the proposed Draft Environmental Management and Coordination Bill 2021 proposes, climate change, inter alia, by requiring the Cabinet Secretary responsible for the environment to establish criteria and procedures for measuring of air quality and green-house gas (GHG) emissions standard. 'A litigant can, therefore, successfully anchor a climate change suit alleging despoilment of the environment that threatens or infringes the right to a clean and healthy environment'.

The CSDDD proposal at the EU level adds an additional potential future application in EU Member States. As the planned Directive aims to create normative obligations for corporations in relation to human rights and climate and environmental impact, among others, the CSDDD could be used as a cause of action in corporate climate litigation, relying 'even more heavily on liability provisions'.[7] For example, Article 15(1) of the planned CSDDD states that

'Member States shall ensure that companies referred to in Article 2 develop and implement a transition plan in line with the reporting requirements in Article 19a of Regulation (EU) 2021/0104 (CSRD), to ensure that the business model and strategy of the company are aligned with the objectives of the transition to a sustainable economy and with the limiting of global warming to 1.5°C in line with the Paris Agreement and the objective of achieving climate neutrality as established in Regulation (EU) 2021/1119 (European Climate Law) as regards its operations in the Union, including its 2050 climate neutrality target and the 2030 climate target.'

Moreover, Article 22(1) states that

'Member States shall ensure that companies are liable for damages if: (a) they failed to comply with the obligations laid down in this Directive and; (b) as a result of this failure the company caused or contributed to an actual adverse impact that should have been identified, prioritised, prevented, mitigated, brought to an end, remediated or its extent minimised through the appropriate measures laid down in this Directive and led to damage.'

According to Hartmann and Savaresi, corporate climate litigation 'has the potential to contribute to the evolution of climate obligations in (...) due diligence instruments, (...) [such as] the EU's corporate sustainability due diligence directive.8

In addition to the CSDDD proposal, domestic legislative proposals for corporate due diligence law, such as the Wetsvoorstel verantwoord en duurzaam international ondernemen (the Responsible and Sustainable International Business Conduct Act) in the Netherlands, would further contribute to potential rights-based causes of action in corporate climate litigation. For example, Section 1.2. paragraph 1 which regulates the duty of care for every enterprise states that

'[a]ny enterprise that knows or can reasonably suspect that its activities may have negative impacts on human rights, labour rights or the environment in countries outside the Netherlands, must: a. take all measures that may be reasonably required of it to prevent such impacts; b. to the extent that such impacts cannot be prevented: mitigate or reverse them to the extent possible and, where necessary, to enable remediation; c. to the extent that such impacts cannot be limited sufficiently: refrain from the relevant activity in so far as that may reasonably be expected from the enterprise.'

Further, Section 2.4. states that

'[e]nterprises cease their own activities if they cause or contribute to negative impacts on human rights, labour rights or the environment'.

Similarly, in Canada, Bill C-262, the Corporate Responsibility to Protect Human Rights Act , is currently before Parliament. If passed, the Act would create a private right of action in any Canadian provincial superior court against corporations that fail to meet mandatory human rights and environmental due diligence requirements in relation to business activities conducted outside Canada. As stated in Section 10:

'(1) A person who alleges that they have suffered loss or damage as a result of a failure by an entity to comply with its obligations to prevent adverse impacts under this Act may, in a superior court of a province, bring an action against the entity and, in the action, claim relief by way of one or more of the following:
(a) damages for any loss or damage suffered;
(b) aggravated or punitive damages;
(c) an injunction;
(d) an order for specific performance;
(e) the cost of any land remediation; and
(f) any other appropriate relief, including the costs of the action.(

2) An action may be brought against an entity in respect of the entity's failure to develop and implement due diligence procedures provided that the matter arises in the context of the protection of human rights.

(3) The action under subsection (2) may be brought by any person who raises a serious issue and is either directly affected by the matter or
(a) has a genuine interest in the matter;
(b) presents a reasonable means of advancing the proceeding; and
(c) has no conflict of interest with regard to the outcome.'

In general, future corporate climate claims could include human rights obligations as an interpretative tool of other legal terms and notions, such as tort law.

[7] Rajavuori, Savaresi, and van Asselt (n 5), p. 10.
[8] Jacques Hartmann and Annalisa Savaresi, 'Corporate actors, environmental harms and the Draft UN Treaty on Business and Human Rights: History in the making?' (2021) 83 QIL, Zoom-in 27; Rajavuori, Savaresi, and van Asselt (n 5).