1. Causes of Action

7. POTENTIAL FUTURE APPLICATIONS

Recent judicial reviews in the UK and in Australia have challenged the failure of decision makers to assess the scope 3 emissions of fossil fuel projects. For example, in R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council and others , the claimant brought a judicial review challenge on the basis that the Council had failed to consider as part of the Environmental Impact Assessment the scope 3 emissions that would be generated by approving oil wells. The case was heard by the Supreme Court in 2023 and judgment is pending.

Another increasing trend is to challenge public funding for projects that are 'not aligned with climate action'.[12] The target of such litigation is 'to increase the cost of capital for high emitting activities to the point where such activities become economically unviable even if they remain legally permissible'.[13] A recent case in the UK is Friends of the Earth v UK Export Finance, challenging UK Export Finance's decision to invest $1.15 billion in a liquified natural gas project in Mozambique on the basis that the project was inconsistent with the Paris Agreement and that greenhouse gas emissions from the project had not been adequately considered. In a split decision, the High Court dismissed the claim. On appeal, the Court of Appeal unanimously dismissed the claim on the basis that the government was only required to adopt a 'tenable' view of its obligations under the Paris Agreement, and it was not obliged to consider scope 3 emissions in order to assess compliance with the Paris Agreement.

[12] Joana Setzer and Catherine Higham, 'Global Trends in Climate Change Litigation:2022 Snapshot' (Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy, London School of Economics and Political Science 2022), 19. UK examples include R (oao) Jeremy Cox and others v The Oil and Gas Authority and another [2022] EWHC 75 (Admin); R (oao FOE) v SoS for UKEF and Chancellor of the Exchequer [2023] EWCA Civ 14 (Court of Appeal).

[13]  Joana Setzer and Catherine Higham, 'Global Trends in Climate Change Litigation:2022 Snapshot' (Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy, London School of Economics and Political Science 2022) 19.