2. Procedures and Evidence

1. OVERVIEW

This Section discusses how plaintiffs' legal arguments are successfully navigating and overcoming the traditional obstacles encountered in corporate climate litigation. These arguments are deemed "effective" not necessarily because they have achieved unanimous success in courts, but because they have, in one or several instances, effectively countered traditional corporate defences such as diffuse responsibility, the "drop in the ocean" defence, the "perfect substitution" theory, the political question doctrine, legal and regulatory compliance, and defences regarding "reasonableness" and economic benefits of corporate activities contributing to climate change. In doing so, these arguments have played a crucial role in shaping the evolving landscape of corporate climate litigation, specifically by bolstering the strength of the cases' merits.

The discussion covers three critical arguments, starting with the concept of partial and autonomous responsibility, as demonstrated by the landmark cases of Urgenda and Shell in the Netherlands. The examination of the duty of care in public nuisance and negligence suits illustrates how plaintiffs are challenging the corporate defence of legal and regulatory compliance by highlighting the tangible harm caused by corporate actions, as seen in Germany and India. Furthermore, plaintiffs have navigated defences emphasising the "reasonableness", economic consequences, and societal benefits of corporate activities (such as the use of fossil fuels) by challenging the social acceptability of the environmental and health risks associated with corporate practices, as illustrated by litigation in Japan.

Finally, the Section looks ahead, discussing emerging arguments in current and anticipated litigation. This forward-looking perspective explores the potential of plaintiffs' arguments to overcome the existing barriers and challenges in corporate climate litigation by reinterpreting directors' fiduciary duties and corporate disclosure obligations, partial responsibility, and the duty of care in the context of climate change impacts.

To complement the discussion in this Section, arguments concerning the evidentiary, procedural, and jurisdictional aspects of corporate climate litigation are further elaborated in other Sections, particularly Sections 2.B and 2.D. Moreover, the arguments presented in this Section represent only a subset of plaintiffs' effective legal strategies concerning the merits of the cases, with other substantive law arguments detailed in Section 1.