1. Causes of Action
F. Fraud Laws
1. OVERVIEW
Although '[c]riminal law is far from the primary legal mechanism for addressing climate change, (...) there are still some relevant intersections'.[1] One example is the emerging connection between climate change and fraud, relating to emissions trading schemes, or the sale of products using false information in the context of decarbonisation projects.[2] In the 17 case-study countries, only a few corporate climate cases have been filed based on fraud laws. The following comparative legal research establishes legal avenues and the hurdles and challenges encountered in utilising fraud laws to drive corporate climate litigation in the 17 case-study countries. It also highlights potential legal avenues in future litigation.
Established Legal Avenues from Past Litigation
So far, few corporate climate cases based on fraud laws have been filed in the 17 focus countries. Such cases have dealt with carbon emission data fraud in China, or with the deliberate violation of various steps in the Environmental Impact Assessment (EIA) process, including engagement in acts of suppression of facts or fraud, in India. In the US, corporate climate cases based on fraud laws were brought together with other causes of actions such as consumer law.
Hurdles and Challenges
Rather than hurdles and challenges, the reason that only a few corporate climate cases based on fraud laws have so far been filed can be led back to the fact that fraud laws might not be a separate cause of action but are encompassed by causes of action based on tort law. For example, in countries such as Germany, Japan, and Poland, liability for fraud can fall under provisions of tort law.
Potential Legal Avenues in Future Litigation
Future litigation could utilise existing legislative provisions to file corporate climate cases based on fraud law. For example, legislative provisions such as those enshrined in the Brazil Anti-Corruption Law can be applied to companies that practice acts against public patrimony related to environmental and climate issues. In addition, more cases dealing with carbon emission data fraud or VAT carousel fraud in emissions trading might be filed in the future.
[1] Centre for Climate Engagement, 'Criminal Law and Climate Change Law' (climatehughes.org), accessed 14 November 2023.
[2] ibid.
