3. Remedies

6. HURDLES AND CHALLENGES

Navigating through legal hurdles and challenges, claims for pecuniary remedies in corporate climate litigation encounter various challenges in the 17 jurisdictions surveyed.

Several jurisdictions, including Japan, Poland, Germany, Kenya, the Netherlands, Norway, and the Philippines, report a lack of cases or, as in the UK, a lack of success in securing financial compensation for climate-related damages. In addition to claims being denied based on their merits, such as in the Chinda and Gbemre cases in Nigeria, claims for damages are pre-empted by preliminary legal issues. These issues, including jurisdiction, standing, and justiciability, have arisen in cases such as Kivalina v. ExxonMobil Corp., City of New York v. Chevron Corp., Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.), Inc., and ENvironnement JEUnesse v. Procureur General du Canada. Moreover, this situation may also suggest that existing legal frameworks are insufficient, particularly in terms of providing financial redress for climate impacts and precisely quantifying such damages.

Furthermore, relying solely on monetary remedies is criticised as inadequate for addressing the broad spectrum of anthropogenic contributions to climate change. For instance, within the context of the Nigerian oil and gas industry, courts have often faced criticism for awarding minimal damages that fail to adequately compensate the claimants for their suffering and do not effectively deter polluting corporations.[1] Similarly, the infamous Bhopal gas tragedy underscores the complexities of financial compensation. In this case, a settlement of $470 million was criticised both for its inadequacy and its inefficient distribution, highlighting the challenges in providing fair compensation through monetary means alone.

The challenge in determining appropriate compensation or fines lies in accurately quantifying damages while also considering what is "reasonable" to mitigate adverse repercussions on businesses. On one hand, minimal fines risk being viewed by companies as merely a cost of doing business. On the other hand, excessive fines can negatively affect innocent stakeholders, such as employees and shareholders, and potentially lead to company bankruptcy. Looking forward, innovative approaches, such as calculating compensation based on a company's carbon footprint, could provide more direct and equitable remedies for climate-related damages. Although this approach was rejected in the case of Goel Ganga Developers v. Union of India, the ongoing evolution of this legal landscape suggests a continual search for remedies that not only penalise harmful corporate behaviours but also ensure meaningful restitution and act as a deterrent against climate change.

More broadly, the global impact of climate change is arguably beyond compensation, given its far-reaching and irreversible effects on various aspects such as the environment, human health, culture, and livelihoods. As highlighted by the US Supreme Court in Amoco Production Co. v. Village of Gambell, environmental harm is typically not fully remediable through monetary compensation due to its often permanent or long-lasting nature. Therefore, non-pecuniary remedies such as the issuance of injunctions (as discussed in Section 3.B) are crucial.

[1] See IKE Oraegbunam, MVC Ozioko and CJ Azoro, 'Remedies for Breach of Environmental Standards in Nigeria' (2019) 7(2) International Journal of Innovative Legal and Political Studies 13, 17; and BO Mustapha and OM Ayodele, 'Adequate Compensation as a Tool for Conflict Resolution in Oil-Polluted Wetlands of Niger Delta Region of Nigeria' (2016) 4(2) Covenant University Journal of Politics & International Affairs 34-50.