3. Remedies

AUSTRALIA

In Australia, strategic corporate climate litigation has typically not involved claims for pecuniary (monetary) remedies. However, non-strategic cases have seen litigants seek such remedies, notably in instances where direct harm can be quantified. An illustrative case is the negligence class action filed by Indonesian seaweed farmers against PTTEP Australasia following an oil spill that devastated their crops, resulting in a financial settlement. Additionally, 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.

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.

Additionally, Brazil enforces financial penalties for environmental violations through other legislations such as the Anti-Corruption Law (Law No 12,846/2012) and the Environmental Crimes Act (Law No. 9,605/1998), further illustrating the multifaceted legal framework aimed at combating environmental harm and promoting climate justice.

CANADA

In British Columbia v. Canadian Forest Products Ltd. (Canfor), the Crown sought compensation for damages from Canfor resulting from a forest fire caused by the corporate defendant. These damages included: (1) costs for extinguishing the fire and rehabilitating the burned areas; (2) lost revenue from trees intended for harvesting; and (3) losses from trees designated for environmental purposes, such as habitat preservation or ecosystem maintenance, and not intended for logging. However, the Crown was only granted damages under the first category.

Another notable case is ENvironnement JEUnesse v. Procureur General du Canada, pursued under the Quebec Charter, where plaintiffs of the class action aimed not for a broad claim of general and special damages but sought the cessation of the specific environmental violation alongside punitive damages calculated per member of the claimant group (i.e., Québec citizens aged 35 and under). However, the court denied the class action, finding that the 35-year age cut-off was arbitrary. 

CHINA

In China, the legal framework for addressing environmental harm encompasses a broad range of remedies including economic compensation, restoration, vicarious liability, punitive damages, and apologies, supported by the Civil Code and specific interpretations by the Supreme People's Court. Notably, pecuniary remedies are detailed in Article 1235 of the Civil Code, emphasising compensation for ecological damage through various metrics, such as loss of ecosystem services and expenses related to damage assessment and remediation. This is exemplified in the Deqing Minghe case, where compensation was determined based on an ecological damage report. Additionally, the Supreme Court employs a dynamic approach in assessing damages, particularly for ecosystem service losses, considering factors like ecosystem scarcity and restoration difficulty. Despite the provision for punitive damages in Article 1232 of the Civil Code for intentional environmental harm, its application in climate change litigation remains unexplored as of 2023, indicating an area ripe for future legal development and enforcement in environmental protection efforts.

FRANCE

In Greenpeace France and Others v. TotalEnergies SE and TotalEnergies Electricité et Gaz France, environmental protection associations, rather than individual claimants, are seeking compensation for damages. This legal action represents a unique instance within the realm of climate litigation where the focus is on obtaining reparations for harm inflicted on environmental advocacy groups. The plaintiffs are demanding compensatory damages, specifically for moral prejudice, arguing that the defendant's misleading commercial practices not only harm the environment but also hinder the associations' core mission of environmental protection. This obstruction to their social objectives, they assert, results in personal moral prejudice that is distinct from the broader collective interests they champion. The moral damage claimed is quantified at €10,000 for each of the three involved NGOs, highlighting the case's significance in seeking acknowledgement and redress for the indirect impacts of corporate actions on environmental activism.

GERMANY

In Germany, the legal framework for seeking pecuniary remedies in climate litigation primarily revolves around the principles of tort law, as outlined in the German Civil Code (BGB), particularly sections 823 and 826. This framework mandates full compensation for victims, covering both direct damages and lost profits, as well as damages that may not have been foreseeable, with the goal of restoring the financial status quo ante. The law eschews punitive damages, focusing instead on the concept of total reparation. Damage assessments are conducted via the "difference hypothesis", which contrasts the victim's actual post-event condition with their hypothetical pre-event situation, allowing for compensation of both material and immaterial damages, the latter in specific circumstances like personal injury.

Furthermore, the German legal system facilitates the pursuit of compensation from any party responsible for a tortious act through the principle of joint and several liabilities. This is particularly pertinent in climate litigation, where attributing direct causation can be challenging due to the collective nature of greenhouse gas emissions and environmental degradation. Innovative legal arguments, such as advocating for partial liability based on an entity's contribution to climate change, are gaining traction. Additionally, claims for pecuniary damages may also stem from other areas of law, including unjust enrichment and the Act Against Unfair Competition, which now allows consumers to seek damages for unfair commercial practices.

Additionally, pecuniary claims can arise from other legal bases, such as Section 1004 BGB in combination with provisions on negotiorum gestio and unjust enrichment, particularly in cases where protective measures against climate impacts are self-implemented by the claimant.

The Act Against Unfair Competition (UWG) also plays a role, offering compensatory damages for unfair commercial practices affecting competitors and, since a recent legal update, consumers directly, marking a significant expansion of potential claimants in climate litigation.

INDIA

In India, corporate climate litigation encompasses a spectrum of pecuniary and non-pecuniary remedies tailored to the specifics of each case. Pecuniary remedies include compensatory damages for financial losses, restitution for unlawfully gained profits by corporations, fines and penalties for environmental regulation breaches, and injunctive relief to halt damaging corporate activities or mandate corrective actions. Notably, substantial financial fines have been effective, forcing companies to confront significant losses or shut down, as seen in landmark cases like Sterlite Industries, where a compensation of INR 100 Crores was mandated for environmental pollution, and the National Green Tribunal's rulings against PepsiCo and Coca-Cola's Indian bottlers for groundwater pollution, imposing fines totalling US$ 3.3 million.

However, these financial sanctions can present challenges, including the risk of companies viewing fines as a mere cost of business, difficulties in accurately quantifying environmental damage, adverse effects on innocent stakeholders like employees and shareholders, and the potential for company bankruptcy, which could undermine remediation efforts. The infamous Bhopal gas tragedy illustrates the complexities of financial compensation, where a settlement of $470 million was criticised for inadequacy and inefficient distribution, highlighting the need for more effective compensation mechanisms.

Looking ahead, innovative approaches like calculating compensation based on a company's carbon footprint could offer more direct and equitable remedies for climate-related damages, although this concept was rejected in the case of Goel Ganga Developers v. Union of India. This evolving landscape suggests a continuous search for remedies that not only penalise harmful corporate behaviours but also ensure meaningful restitution and deterrence in the face of climate change.

ITALY

In Italy, the concept of "remedy" in the context of corporate climate litigation is diverse and encompasses various forms of legal redress, reflecting the civil law tradition's nuanced approach to compensation and corrective measures. The Italian legal framework does not recognise "punitive damages," a staple in some other jurisdictions, focusing instead on principles such as neminem laedere, which underpin numerous protective measures for pecuniary interests, fundamental rights, and consumer rights within the Italian Civil Code. These provisions are instrumental for addressing climate litigation against companies, offering avenues for compensation for current and future damages caused by climate impacts, including moral damages associated with "eco-anxiety." A notable case illustrating these principles in action is Greenpeace, Re:Common et al. vs ENI, where claimants seek both pecuniary and non-pecuniary damages resulting from human-induced climate change. They also demand operational adjustments from ENI to significantly reduce CO2 emissions by 2030, aligning with the Paris Agreement's goals, and for the Ministry of Economy and Finance along with Cassa Depositi e Prestiti S.p.A. to enforce climate goals compliant with international standards to mitigate temperature rise.

JAPAN

In Japan, the approach to pecuniary remedies in the context of corporate climate litigation is framed by the tort provisions of the Civil Code, specifically Article 709. This legal framework allows for the pursuit of compensation for damages arising from tortious acts, potentially including those related to CO2 emissions that contribute to climate change. However, there have not yet been any reported cases in Japan where individuals or entities have claimed compensation for damages directly linked to climate change or tortious CO2 emissions.

KENYA

In Kenya, general damages, awarded for loss or injury as determined by the court, do not need to be specifically pleaded. However, for such damages to be awarded in the context of climate change, claimants must demonstrate direct loss or damage on an individual level, rather than diffuse loss suffered by the public at large. Special damages, on the other hand, require specific pleading and proof by the claimant. These are awarded for losses or injuries resulting from specific circumstances related to climate change, such as the loss of arable land or tangible assets. The complexity of proving the causal link between climate change and the specific damages claimed makes special damages challenging to claim in Kenyan courts. Potential claims for special damages may include the loss of arable land or tangible assets due to the impacts of climate change.

NETHERLANDS

Under Dutch law, the system of damages is closed and structured, as defined by Article 6:95 of the Civil Code, which specifies that compensable loss under a legal obligation to pay damages includes both property damage and other intangible losses, provided there is a legal right to damages for such losses. However, as of now, there has been no litigation focused on compensation for climate-related harm in the Netherlands.

NIGERIA

In Nigeria, disputes between oil and gas companies with climate-harmful practices and affected individuals or communities often fall under tort or human rights law, with damages being the primary legal remedy. Nigerian courts recognise two main purposes for damages: correction and deterrence, leading to both compensatory and punitive damages. Compensatory damages aim to restore the injured party to their pre-injury state, while punitive damages are intended to punish particularly egregious defendant behaviour. Despite the potential of these damages to limit greenhouse gas emissions and mitigate climate change impacts, many claimants fail to secure them due to challenges in proving their cases. Notable examples include the Chinda case, where plaintiffs were unable to prove negligence, and the Gbemre case, which acknowledged rights violations but awarded no damages. This situation underscores the limitations of pecuniary remedies in addressing the extensive and often irreversible impacts of climate change, highlighting a broader issue where even successfully claimed damages in the Nigerian oil and gas sector are often seen as insufficient to compensate for the harm or deter future violations.

NORWAY

In Norway, the Dispute Act and the Damage Act establish a framework for pecuniary remedies in litigation, including environmental cases, that emphasises the responsibility of the losing party to cover the legal costs of the winning party. This arrangement is intended to ensure that those wronged can seek justice without bearing undue financial burdens. However, it also introduces a financial risk for organisations engaging in corporate climate litigation, as they could potentially face significant expenses if they do not prevail. Compensation for legal costs includes all necessary expenses related to the lawsuit, and the Dispute Act allows for the recovery of costs even in some situations where the case's outcome is not favourable to the claimant, based on specific criteria such as the reasonableness of initiating the action and the behaviour of the opposite party.

Furthermore, the Damage Act supplements this by outlining the principles of compensation for damages to individuals, property, and corporations, with a notable emphasis on joint and several liabilities in cases with multiple causative factors. This means that in environmental cases with contributory causes, each contributing party can be held responsible for the entire damage, fostering an environment of accountability.

PHILIPPINES

In the Philippines, the legal framework for addressing environmental harm and climate change includes a variety of pecuniary remedies under the Civil Code and specific environmental protection statutes. The Civil Code permits claims for actual, moral, exemplary, temperate, and nominal damages for tort or quasi-delict cases, relevant to the diverse effects of climate change. It also highlights the possibility of claiming damages for the past existence of nuisances, allowing for compensation even after the nuisance is abated. Environmental laws, such as the Oil Pollution Act, further detail the scope of damages for pollution incidents, including clean-up costs, preventive measure expenses, consequential losses, economic losses unrelated to property ownership, health impacts, and costs for environmental restoration. This emphasises the emphasis on corporate liability for environmental damage.

POLAND

In Poland, the Civil Code, in conjunction with the Environmental Protection Law Act (EPLA), outlines several pecuniary remedies that are applicable to corporate climate litigation. These include compensatory damages and reparation of harm, with the latter allowing for financial compensation when restoring the pre-damage condition is impractical or too burdensome (Articles 435, 415, and 363 of the Civil Code). Additionally, monetary compensation under the EPLA (Article 323) is specifically designed for situations where environmental restoration is unfeasible or when a third party has already incurred expenses for damage repair, ensuring claimants can recover reasonable costs.

Article 144, read in conjunction with Articles 415 ff of the Civil Code, further clarifies that even if a legal entity has taken all preventative measures against a nuisance, it does not negate its obligation to compensate for any resultant damages. Despite these provisions, there have yet to be claims filed in Polish courts seeking pecuniary compensation from corporations for climate change-related damages. However, in cases against the State Treasury, Polish citizens have sought pecuniary remedies for violations of personal rights, often in the form of symbolic compensation, indicating a growing awareness and legal consideration of climate impacts within the framework of personal rights.

UNITED KINGDOM 

In the UK, while there have not been any successful cases against corporations for climate-related damages to date, the legal framework does allow for potential pecuniary remedies should a claimant prevail in a tort or other civil action. The specifics of calculating various types of damages are complex, but generally, in cases like property damage, compensation might be based on the diminished value of the property or the cost of repairs. Compensatory damages aim to return the claimant to the position they would have been in if the wrongful act had not occurred, including general damages for the wrong suffered and special damages that are quantified losses.

Additionally, claims based on unjust enrichment aim to reverse any gain the defendant has received at the claimant's expense, requiring them to forfeit any benefits unjustly obtained. Contractual breaches typically result in remedies designed to place the claimant in the position they would have occupied had the contract been fulfilled as agreed. The Chancery Lane Project has introduced new contractual clauses intended to offer unique remedies for breaches related to climate commitments. Although these clauses present innovative legal tools for addressing climate change, their enforceability and effectiveness have yet to be tested in court.

UNITED STATES

In the United States, corporate climate litigation has developed through three distinct "waves," showcasing an evolution in legal strategies and the pursuit of pecuniary remedies against companies for climate-related damages. The "First Wave" focused on direct compensation for climate change impacts, exemplified by the Native Village of Kivalina's lawsuit seeking adaptation costs for land erosion. Despite these efforts, claims often clashed with existing federal regulations, such as the Clean Air Act.

Subsequent litigation phases have broadened the scope of claims and remedies sought. The "Second Wave" included lawsuits such as Board of County Commissioners of Boulder County v. Suncor Energy and King County v. BP p.l.c., where plaintiffs sought monetary damages and specific abatement actions, such as funding climate change adaptation programs. The "Third Wave" further diversified the litigation landscape to include civil penalties for adaptation failures (e.g., CLF v. Shell Oil), reflecting a more aggressive stance on environmental compliance. Additionally, this phase saw the emergence of shareholder derivative and securities class actions, with lawsuits like Perri v. Croskey and Rosencrants v. Danimer seeking restitution and damages for breaches of fiduciary duties and violations of federal securities laws, respectively, in relation to financial risks and impacts associated with climate change and environmental non-compliance.