Climate Litigation Globally and the lessons for Malaysia

Written by:

Shaagita Raj

Date:

11 Jan 2022

Climate litigation can be broadly defined to include lawsuits brought before administrative, judicial and other investigatory bodies, in domestic and international courts and organisations, that raise issues of law or fact regarding the science of climate change and climate change mitigation and adaptation efforts.

Cases that are initiated as an activist strategy aimed at achieving climate action are known as ‘strategic’ cases which are now on the rise. A large number of strategic cases are brought against governments while a small but significant number of these strategic cases are targeted at corporations.

Litigation that may weaken or undermine mitigation or adaptation efforts is also a growing phenomenon. This may include cases that have a direct intention to oppose climate action, or cases that may not have such opposition as their main objective but may nonetheless result in delays of climate action or policies.

As a whole, climate litigation is predicted to increase globally to reflect the increasing urgency with which the climate crisis is viewed by the general public.

 

Notre Affaire à Tous and Others v France [2021]

Paris Administrative Court

Category 1: Against Government




On 18th of December 2018, Notre Affaire à Tous, in partnership with the Fondation pour la Nature et l’Homme, Greenpeace France and Oxfam France, initiated legal proceedings against the French state requiring the State to take necessary actions to reduce greenhouse gas emissions to keep global temperature increase under 1.5°C; reduce emissions to meet France’s own objectives as declared under several laws; adapt to the changing climate, and protect citizens’ lives and health from the risks of climate change. A petition of support was signed by more than 2 million people in just a few weeks.

The organizations also requested that an injunction be issued against the Prime Minister and the competent ministers to adopt all necessary measures to put an end to the damage linked to the excess greenhouse gas emissions and to prevent this damage from worsening.

In assessing the claim based on ecological damage, the Court in referring to the IPCC report, found that anthropogenic greenhouse gas emissions are the main cause of global warming causing ecological damage.

In reviewing the obligation taken by the State under the UNFCCC, the Paris Agreement and the Environment Charter, the Court held that the State has chosen to subscribe to international commitments and, at the national level, to exercise its regulatory power, in particular by conducting a public policy to reduce greenhouse gas emissions emitted from the national territory. However, the Court dismissed claims that the government’s actions to improve energy efficiency or increase renewable energy have been insufficient to meet these general obligations.

The Court referred to annual reports published in 2019 and 2020 by the High Council for the Climate which noted that "France's actions are not yet commensurate with the challenges and objectives it has set for itself" and thus found that the State must be regarded as having disregarded the first carbon budget and failed to carry out the actions that it had itself recognised as likely to reduce greenhouse gas emissions.

Conclusion: The Court further found that the State must be held liable, for part of the ecological damage to the extent of the commitments which it had entered into and which it failed to comply with, in the context of the first carbon budget.

The Court held that the State’s failure to meet its climate change commitments undermined the work of the petitioners and ordered the symbolic payment of one Euro to each petitioner as compensation for moral damages. However, the Court refused the petitioners’ request for compensation for ecological damage because the petitioners did not demonstrate the government could not rectify the ecological damage that is said to have been caused.

 

D. G. Khan Cement Company Ltd. v Government of Punjab [2021]

Supreme Court of Pakistan




On 08.03.2018, the Industries, Commerce and Investment Department, Government of the Punjab issued a Notification amending a previous Notification from 17.09.2002 to the effect that establishment of new cement plants, and enlargement and expansion of existing cement plants shall not be allowed in the “Negative Area” falling within the Districts Chakwal and Khushab.

DG Khan Cement Company, the Petitioner, challenged this Notification citing grounds, inter alia, that the Notification was issued without a detailed scientific study about underground water levels and the Notification infringed the petitioner’s right to freedom of trade, business and profession under Article 18 of the Constitution.

The Court upheld the Notification and held that the Petitioner company is not allowed to enlarge the capacity of its existing cement plant till such time that the Negative Area subsists.

In coming to its decision, the Court referred to various technical reports of the government and its consultants as well as foreign experts. The study which the government relied upon in concluding that permitting the establishment of new and expansion of existing cement plants would be prejudicial to public interest, found that installation of new cement plants/expansion of existing cement plants could cause further depletion of groundwater resulting in greater problems for the local people and especially for agriculture. The Court agreed with the rationality of the government’s decision.

The Court also referred to a site inspection of the petitioner’s cement plant carried out which revealed that there are other issues besides water. It was reported that blasting and quarrying of raw materials caused dust pollution in the locality causing environmental damage; quarrying also threatened the local ecology of biodiversity rich area of Kallar Kahar; deforestation and erosion resulted from quarrying; and air emissions from the cement industry caused air pollution in the area.

The Court applied the principle of in dubio pro natura i.e. “in cases of doubt, all matters before courts, administrative agencies, and other decision-makers shall be resolved in a way most likely to favour the protection and conservation of the environment, with preference to be given to alternatives that are least harmful to the environment.”

The Court held that the government was obliged to act in-line with the principle of in dubio pro natura, till, inter alia, a detailed hydrogeological study assessing the potential of groundwater resources for industrial purposes of the project area is carried out. This approach is constitutionally compliant as the courts are to protect the fundamental rights of the public and in this case right to life, sustainability and dignity of the community surrounding the project remains paramount till such time that the government is of the view that the project has no adverse environmental effects.

Conclusion: The Court made a landmark ruling by acknowledging the environmental rights of the future generation. The Court stated, “Another important dimension of climate change is intergenerational justice and the need for climate democracy. The tragedy is that tomorrow’s generations aren’t here to challenge this pillaging of their inheritance. The great silent majority of future generations is rendered powerless and needs a voice. This Court should be mindful that its decisions also adjudicate upon the rights of the future generations of this country.”


 

Milieudefensie et al. v Royal Dutch Shell plc. [2021]

The Hague District Court

Category 2: Against Corporation (carbon major)




Several NGOs, led by Milieudefensie brought a claim against Royal Dutch Shell (RDS), the top holding company of the Shell group. The basis of the claim is that, as the top holding company with responsibility for setting the Shell group’s corporate strategy, RDS owed the claimants a duty of care under the Dutch Civil Code to take steps to meet the 1.5°C cap on global warming set in the Paris Agreement.

The claim is based on the question of whether or not RDS has the obligation to reduce CO2 emissions, at end 2030 by 45% relative to 2019 levels across all emission Scopes (1 to 3) of the Shell group’s entire energy portfolio through the corporate policy of the Shell group.

The claimants adopted the human rights based arguments used in Urgenda v The Netherlands and sought to extend the principles to a private corporation. The claimants argued that RDS was bound by Dutch law to respect the claimants' human rights. In particular, the claimants relied on Article 2 (right to life) and Article 8 (right to a private and family life) of the ECHR.

While acknowledging that international human rights instruments were not binding on RDS, the Court reasoned that human rights played a role in the relationship between Milieudefensie et al. and RDS and were therefore relevant in the court’s interpretation of the unwritten standard of care. The Court found that there is an “unwritten standard of care” from the Dutch Civil Code and held that human rights offer protection against the impacts of dangerous climate change and that companies must respect human rights. The Court accepted the principle derived from Urgenda v The Netherlands as authority that Art 2 and 8 ECHR offer protection against the consequences of dangerous climate change due to greenhouse gas emissions and held that the serious consequences of dangerous climate change pose a threat to the rights of Dutch residents.

In addressing RDS’ reduction obligation, the Court relied on the UN Guiding Principles (UNGP) ‘soft law’ instrument which set out the responsibilities of states and businesses in relation to human rights. Although the Court acknowledged that the UNGP do not impose legally binding obligations, the Court reasoned that, due to their universally endorsed content, they were a suitable “guideline” for interpreting the unwritten standard of care.

Conclusion: The Court ultimately concluded that RDS is obliged to reduce the CO2 emissions of the Shell group’s activities by net 45% at end 2030, relative to 2019, through the Shell group’s corporate policy. This reduction obligation relates to the Shell group’s entire energy portfolio and to the aggregate volume of all emissions (Scope 1 through to 3).

The Court emphasized that RDS must take responsibility for the Shell group’s Scope 3 (end-user) emissions—especially where, as here, Shell had reported that the majority (85 percent) of its emissions were Scope 3 emissions. The Court stated that RDS is free to decide not to make new investments in explorations and fossil fuels, and to change the energy package offered by the Shell group, such as the reduction pathways require.

In reviewing RDS’ policy intentions and ambitions for the Shell group, the Court criticised it for being rather intangible, undefined and non-binding plans for the long-term (2050). The Court found that RDS’ policy in monitoring developments in society and allowing states and other parties to take a pioneering role amounts to RDS disregarding its individual responsibility, which requires RDS to actively effectuate its reduction obligation through the Shell group’s corporate policy.

 



What can Malaysia learn from these cases?

  1. Climate change litigation continues to grow in importance as a way of either advancing or delaying effective action on climate change.

  2. Litigation can be a strategic tool to hold governments and major emitters accountable for failing to adopt serious long-term strategies underpinned by concrete plans and short-term emissions reduction targets.

  3. The private sector and financial actors are also targets of litigation and there is more diversity in the arguments being used, incorporating, for example, themes of greenwashing and fiduciary duty.

  4. Civil societies play a role in initiating legal proceedings as stakeholders on behalf of society to advance climate action.

  5. Climate litigation is seen as a last resort because there are a number of factors that need to be considered which include time and cost.