3. Remedies

5. EVOLVING TRENDS BASED ON PENDING CASES

The ongoing cases presented below illustrate a growing momentum towards advocating for various forms of compensation and accountability concerning climate-related issues. This trend encompasses seeking financial redress for "climate damages" as an independent category of damages, funding climate change adaptation initiatives, and expanding the scope of damages to encompass both tangible and moral harm. Additionally, these cases highlight efforts to impose monetary penalties on directors and officers for breaches of fiduciary duties in relation to climate change issues.

Brazil

• In a preliminary decision granting an injunction in a tort case, a judge of the Federal Environmental and Agrarian Court acknowledged the possibility of charging climate damages in compensation actions for damages resulting from deforestation, recognised as an autonomous category of damage under (Ministério Público Federal (Federal Public Prosecutor's Office) v. de Rezende). The Federal Public Prosecutor's Office filed a tort case against Brazilian farmer de Rezende for the role of his cattle herd in deforesting 2,488.56 hectares (equivalent to 4,650 football fields) of the Amazon between 2011 and 2018. The prosecutor's office alleged that de Rezende's role in deforestation was a violation of the right to a healthy environment as guaranteed by the Brazilian Constitution.

• In the case of IBAMA v. Dirceu Kruger, the plaintiff sought R$292 million from a rancher for climate damages caused by the destruction of the Amazon. IBAMA contends that this environmental damage led to the emission of 901 thousand tons of greenhouse gases. It seeks compensation or penalties to be contributed to the National Fund on Climate Change (FNMC). The FNMC serves as a financial intermediary for climate-related initiatives, studies, and projects in Brazil, focusing on both mitigating and adapting to climate change and its consequences.

France

• One notable case is Greenpeace France and Others v. TotalEnergies SE, in which the plaintiffs seek damages for harm suffered and moral prejudice. They argue that the defendant's deceptive commercial practices undermine environmental protection, a central aspect of the plaintiff associations' activities. Specifically, they contend that these practices impede the fulfilment of their social missions, resulting in personal moral suffering distinct from the harm to the collective interests they represent. The moral damages sought total €10,000 for each of the three NGOs involved.

USA

• In King County v. BP p.l.c., King County in Washington State is seeking an order of abatement requiring the fossil fuel defendants to fund a climate change adaptation program for the County as well as compensatory damages for the costs the County had already incurred.
• In Perri v. Croskey, the plaintiffs seek restitution from directors and officers and request an order for disgorgement of profits earned through performance-based payments and any other compensation obtained due to their breach of fiduciary duties. This breach involved failing to rectify false and misleading statements and omissions of material facts, which included exaggerating the biodegradability of the products. Similarly, plaintiffs in securities class actions, such as Rosencrants v. Danimer, aim to recover damages stemming from allegedly false and misleading statements made by the company. This includes overstating the company product's biodegradability in both oceans and landfills, constituting violations of federal securities laws.

Australia

• The Australian Securities and Investments Commission (ASIC) has issued infringement notices to companies for misleading environmental claims, or "greenwashing," leading to financial penalties against entities such as Diversa Trustees Limited, Tlou Energy Limited, Vanguard Investments Australia, and Black Mountain Energy Limited. This regulatory scrutiny suggests a potential for future litigation to include pecuniary remedies, especially in cases involving negligence or investor-shareholder class actions.