Climate Change Litigation
Climate change is increasingly becoming a legal battleground. Climate change and global warming are a fact and there is only limited time left to mitigate their dangerous consequences, such as rising global water levels and deteriorating air quality. The remaining CO2 budget (i.e. the amount of CO2 that can be produced before the threshold of excessive global warming is reached) is limited and the question is who can use it and how. And whether there are polluters who will be liable for excessive consumption of that budget, for example because they have acted carelessly towards parties who feel the consequences in their health, family life or wallet.
The regulations governing the reporting of CO2 and other pollutant emissions are complex and multi-faceted. For example, there are references in the rules on annual reporting, and also specific rules tailored to this, which prescribe what and to what extent companies and organisations must publish details of their climate objectives and how they are achieved. Investors and banks are increasingly calling on companies to do so. Human rights also play an important role in this area of law, alongside environmental law.
Regulators, such as central banks, are also taking an increasingly critical look at how the effects of climate change could impact the stability of the financial system and the role of banks therein.
Cases we have dealt with in this area include the way banks report on the extent to which they use their capital to promote ‘green’ initiatives; the support of EUR 3.4 billion granted by the State to KLM at the time of the Covid-19 crisis, when we argued on behalf of Greenpeace that insufficient climate conditions were posed; the way institutional investors give substance to ESG objectives in order to serve the financial and other interests of their constituents; the growth of Schiphol, the national airport with a central role in the considerable CO2 and nitrogen emissions from aviation, particularly outside the Netherlands; and other polluters who, in line with the Urgenda ruling and the Milieudefensie-Shell ruling, are insufficiently fulfilling their duty of care, which is partly coloured by the Paris Climate Agreement and other, internationally broad-based climate standards.
is multi-faceted. It can involve the relationship between interest groups and governments, but equally it can involve the obligations of a company or other civil party to do what it can to prevent the dangerous consequences of climate change. Shareholders are also increasingly demanding that the companies they invest in adapt, to prevent the company from losing control if governments intervene, cleaner technologies come to market, or the steering wheel is pulled dramatically by litigation.
Our experience with complex dispute resolution makes us extremely well positioned to act in this area, sometimes together with other specialists, such as sectoral or environmental law specialists.
Specialists: Frank Peters and Anita van Wees