Author:
Global | Publikation | August 27, 2018
Climate change litigation is becoming increasingly prevalent and has the potential to substantially disrupt business activities or operations, with subsequent cost implications. Accordingly, it is not surprising that businesses have considered stepping up their efforts to understand, assess and minimise their exposure to risks associated with climate change related legal action.
The number of climate change cases filed has increased substantially in recent years. To date, approximately 1,154 climate change cases have been filed worldwide.1 The majority of climate change litigation has occurred in the United States (US), followed by Australia, the United Kingdom (UK), the European Union, New Zealand, Canada and Spain.2
Key risks to business associated with climate change litigation, among others, include exposure to damages claims, financial and reputational cost of defending litigation, disruption to operations and enforcement of financial disclosure requirements.
In this legal update, we draw on relevant case summaries, highlighting key trends, developments and lessons in relation to climate change litigation. In particular, we focus on the following categories of legal cases:
There is a growing trend of legal action targeting businesses, particularly fossil fuel and other energy companies, on the basis that their greenhouse gas emissions have contributed to climate change.
Local and state governments in both coastal and landlocked jurisdictions have been the main instigators of this kind of legal action.3 While these cases have predominantly arisen in the US, they are also beginning to occur in other jurisdictions.4 Large fossil fuel focused corporations have been the main target of such litigation, presumably because they produce a substantial proportion of carbon emissions and are viewed to have the financial resources to meet large claims.
Below, we consider three significant climate change disputes which highlight the nature of claims seeking either a cap on emissions or compensation for harm caused by fossil-fuel induced climate change.
American Electric Power Co. v. Connecticut (Connecticut)This case involved an action by several US state and local governments, as well as land trusts, against five US energy companies. The governments alleged that the energy companies had been contributing to the nuisance of global warming through their greenhouse gas (carbon) emissions and sought an order to cap and reduce their carbon emissions. The energy companies represented the five largest corporate emitters of carbon dioxide in the US, owned and operated fossil fuel-fired power stations in twenty states and generated significant revenue and market share. In an 8-0 decision, the US Supreme Court dismissed the complaint, holding that federal common law in this area was displaced by the Clean Air Act; and since Congress had entrusted the Environmental Protection Authority to decide how greenhouse gases should be regulated, it was not for federal courts to issue their own rules. Decided in 2011, Connecticut is a seminal case that has set a high bar for parties, particularly in the US, seeking to rely on common law grounds such as nuisance to make companies with large emission profiles reduce emissions. Nonetheless, this and other more recent cases demonstrate a growing willingness for parties to attempt to use the courts as a last resort to achieve emissions reduction outcomes. |
Lliuya v. RWE AG (Lliuya)Saúl Luciano Lliuya, a Peruvian farmer, filed claims for declaratory judgment and damages in a German court against RWE AG (RWE), Germany’s largest electricity producer. Lliuya’s suit alleged that RWE knowingly contributed to climate change by emitting substantial volumes of greenhouse gases, which caused the melting of mountain glaciers near his town, thereby giving rise to flooding risk. Lliuya characterised RWE's emissions as a nuisance that he and the local authorities had incurred compensable costs to mitigate. Acknowledging that RWE was only a contributor to climate change, Lliuya asked the court to order RWE to reimburse him for 0.47% of the costs incurred to establish flood protections, in proportion to RWE’s estimated annual contribution to global greenhouse gas emissions. The court at first instance dismissed Lliuya’s requests for declaratory and injunctive relief, as well as his request for damages. The court noted that it could not provide Lliuya with effective redress, in that his situation would not change even if RWE ceased emitting, and that no linear causal chain could be discerned directly linking RWE’s emissions to the harms suffered by Lliuya. On 30 November 2017, an appeal court allowed Lliuya’s appeal against that decision. The court held that his arguments for damages from RWE were admissible and allowed the case to proceed. The next phase of this proceeding is for the court to examine the evidence underpinning Lliuya’s claim. While the facts must be established, the court’s recognition in this case that a private company could be liable for climate change related damages resulting from its greenhouse gas emissions is a notable development.5 |
City of Oakland v. BP p.l.c. (Oakland).On 19 November 2017, San Francisco and Oakland local governments (Oakland Plaintiffs) filed lawsuits in the California Superior Court against five large energy companies, claiming that the carbon emissions from the fossil fuels they had produced and sold had created an unlawful public nuisance. The Oakland Plaintiffs sought to require the companies to abate the alleged nuisance by funding a climate adaptation program to protect public and private property from sea level rise and other climate change impacts. On 25 June 2018, the federal district court for the Northern District of California granted a motion to dismiss the complaints, applying Connecticut and Kivalina. The Oakland Plaintiffs attempted to differentiate their claims from the above cases on the basis that the claims were not in relation to the companies’ greenhouse gas emissions, but rather, the sale of fossil fuels to other parties who would eventually burn them. However, the court rejected this argument, stating that if the companies could not be sued for their own greenhouse gas emissions, they could not be sued for the greenhouse gas emissions of others. Further, the court held that while the Clean Air Act, and thus presumption of displacement by the legislature, did not apply to foreign emissions, it did not have jurisdiction to deal with such claims, which were the domain of the executive and legislature. |
Consistent with the cases outlined above, the most common legal basis for claims in this category has been the common law tort of nuisance,6 with global warming characterised as the relevant nuisance and greenhouse gas emissions as contributions to this nuisance. Alternative grounds include trespass,7 negligence,8 civil conspiracy,9 environmental laws and human rights laws.10
Litigants have sought damages11 for:
Most claims have been unsuccessful so far.14 Key barriers for parties bringing claims have been the court’s lack of authority to consider the matter (ie justiciability), difficulties in establishing a causal link between the greenhouse gas emissions of specific businesses and the harm suffered (ie causation), and demonstrating that the party seeking to bring the action has sufficient connection to the issue (ie standing) to support that party’s participation in the case.
Despite these barriers, the number of claims continues to rise. Over time, there may be increasing pressure on companies to accept responsibility for activities which contribute to climate change from parties who bear the costs of addressing the impacts of climate change, such as the governments and farmer in the cases considered above.
Further, new research, such as Heede’s study mapping and quantifying cumulative emissions of the 90 largest carbon producers, and other developments in climate attribution science, may be used in an attempt to support new claims which hope to overcome the causation barriers of earlier cases.15
Even where the claim is unsuccessful, defending this kind of litigation can involve significant financial and reputational costs. Further, there is a risk that costs associated with climate change litigation may not be covered by general commercial liability insurance where they are not “accidental’, leaving businesses who are sued on climate change grounds particularly exposed.16
Therefore, it is important for companies, particularly those with large greenhouse gas emissions profiles, to assess their exposure to climate related litigation and other risks, and take steps, where possible, to reduce this risk.
There is increasing recognition within industry and government of the financial risks posed to businesses by climate change and the consequent need for disclosure. Risks include both physical risks associated with extreme weather events and sea level rise, and transitional risks associated with policies, laws and other steps required to transition to a low carbon economy.
At present, jurisdictions with legislated legal obligations specifically requiring disclosure of environment or climate-related risks include the US,17 Australia,18 the UK19 and France.20
However, there is uncertainty in many jurisdictions of the extent to which climate-related risks must be considered and disclosed pursuant to existing financial disclosure obligations, either under current legislation or common law bases such as negligence, directors’ duties and fiduciary duties.
The following three case studies highlight some of the key issues being raised by parties seeking to either compel companies to better disclose climate related financial risks, or claim damages for alleged harm caused by a company’s failure to disclose climate related financial risks.
In re Peabody Energy Corp. (Peabody)The Office of the Attorney General of the State of New York (NYAG) investigated disclosures made by Peabody Energy Corporation (Peabody) concerning climate change and the potential effects of climate change policy on Peabody’s future business. The NYAG found that the disclosures were incomplete and omitted less favourable projections of future coal demand. In response to the NYAG’s finding, Peabody issued an Assurance of Discontinuance, resolving the investigation by agreement. Peabody neither admitted nor denied the NYAG’s findings in the Assurance of Discontinuance, but agreed to make more extensive disclosures in future. This case highlights the approach that government regulatory bodies in the US and elsewhere may take to investigate companies and enforce disclosure concerning climate related financial risks. |
Bank Shareholder ActionOn 8 August 2017, shareholders of a major Australian bank brought an action against the bank, alleging that it had failed to properly disclose the risk climate change posed to the business and seeking an injunction compelling it to do so in future annual reports. However, this case was discontinued after the bank’s 2017 annual report included an acknowledgement from its directors that climate change posed a significant risk to the bank’s operations, with a promise to undertake climate change scenario analysis on its business in the upcoming year to assess the risk. This case demonstrates the growing level of awareness and concern within the shareholder and investor community regarding climate related risks. It also highlights the associated need for companies to acknowledge and analyse the potential impact of climate related risks on their operations. |
Class Action against an energy companyOn 23 November 2016, a former employee of an energy company filed a class action complaint on his own behalf and on behalf of other current and former employees who participated in a company retirement savings plan (Plan) and invested in the company stock between 1 November 2015 and 28 October 2016 (employees), against senior officers of the company and fiduciaries of the Plan (Company Defendants). The complaint asserted a claim for financial compensation under the Employee Retirement Income Security Act (ERISA), alleging that the Company Defendants had breached their fiduciary duties as they knew or should have known the company’s share price had become artificially inflated in value due to alleged fraud and misrepresentation, resulting in loss when the share price subsequently fell. Specifically, it alleged that the company’s public statements regarding the strength of its business model and its transparency and reporting integrity, particularly with regard to its oil and gas reserves and the value of those reserves, were materially false and misleading in that:
On 30 March 2018, the Texas Federal Court granted a motion to dismiss the complaint, finding that the complaint provided no factual basis showing that the price of carbon used by the company was a misrepresentation or that risks posed by climate change were not incorporated into the company’s stock price. Further, it found that even if the company’s hydrocarbon reserves were overvalued, the complaint did not allege plausible alternative actions the company could have taken to benefit the retirement funds. This case suggests that it may be more difficult for litigants to claim damages, as opposed to compelling disclosure, particularly due to difficulties in proving causation. |
Senior barrister Noel Hutley stated in his seminal opinion on climate change and directors’ duties in Australia on 7 October 2016 that ‘[i]t is likely to be only a matter of time before we see litigation against a director who has failed to perceive, disclose or take steps in relation to a foreseeable climate-related risk that can be demonstrated to have caused harm to a company (including, perhaps, reputational harm)’.21
Only weeks after this statement, the former employee brought his complaint against the energy company officers and fiduciaries in the matter outlined above, and less than a year later, shareholders brought the claim against a major Australian bank alleging its failure to assess and disclose climate related financial risks. Further, regulatory bodies are carefully considering whether companies are complying with existing disclosure obligations, and in the case of Peabody, investigating potential compliance issues.
These developments show the business community may be well served to elevate climate change considerations to the boardroom to ensure that all companies and directors are aware of, and prepared for, its short and long-term impacts.
In June 2017, the Task Force on Climate-related Financial Disclosures (TCFD) released its final report, recommending that disclosure of climate-related risks be integrated with existing financial reporting frameworks and setting out a voluntary reporting framework.22
Adopting the Task Force’s recommendations may be a practical measure to help companies adequately disclose climate-related financial risks to avoid the risk of litigation and penalties for breach of disclosure obligations.
Parties who have sued governments have sought to challenge both government environmental policies or inaction generally,23 and specific decisions in relation to the approval of particular projects.24 Outside the US context, this category comprises a substantially greater proportion of climate change cases than cases where parties have directly sued businesses.25
A number of relevant case studies are outlined below.
Gray v Minister for Planning (Gray)Peter Gray, an Australian environmentalist, applied for review of a view formed by the New South Wales Director-General of the Department of Planning that the environmental assessment lodged by the developer of the Anvil Hill coal mine was adequate. The Land and Environment Court of New South Wales made an order declaring that the view formed regarding the adequacy of the environmental assessment was void. The court held that the greenhouse gas emissions from the subsequent burning of the coal needed to be taken into account. Further, the court held that merely raising the issue of climate change without analysing the impacts would be unlikely to satisfy the requirement to consider ecologically sustainable development principles. This seminal case, decided in 2006, set an important precedent for Australian courts to consider the rigour of environmental assessment standards on projects with climate change impacts.26 Importantly, it also provided that indirect or downstream impacts need to be considered, and not just direct or immediate impacts. |
Urgenda Foundation v. Kingdom of the Netherlands (Urgenda)On 20 November 2013, the Urgenda Foundation, a Dutch environmental group, filed a summons on behalf of 886 Dutch citizens (Urgenda Plaintiffs), alleging that the Dutch government is exposing its own citizens to danger by failing to take sufficient action to prevent climate change. The Urgenda Plaintiffs sought injunctive relief to compel the Dutch government to reduce greenhouse gas emissions. On 24 June 2015, the district court of the Hague concluded that the state has a duty to take climate change mitigation measures, citing:
In addition, the court found a sufficient causal link existed between Dutch emissions, global climate change, and the effects thereof. The court determined the Dutch government must reduce carbon dioxide emissions by a minimum of 25% compared to 1990 levels. While it did not specify how the Dutch government should do so, it offered several suggestions, including emissions trading schemes or tax measures. On 1 September 2015, the Dutch government announced its intention to appeal the verdict. On 9 April 2016, the Dutch government submitted its grounds for appeal. On 28 May 2018, the appeal hearing took place before the Hague Court of Appeal. Although the appeal is pending, this landmark case is significant in that the litigants have been successful in establishing a positive obligation for governments to adopt environmental policies aimed at reducing greenhouse gas emissions, so as to mitigate the effects of climate change. |
Columbia Pacific Building Trades Council v. City of Portland (Portland)The Columbia Pacific Building Trades Council, the Portland Business Alliance and the Western States Petroleum Association filed a notice of intent to appeal the City of Portland’s enactment directing adoption of zoning amendments that prohibited new bulk fossil fuel terminals and limiting expansion of existing terminals. The Oregon Land Use Board of Appeals reversed the amendments, finding that they violated the commerce clause, being discriminatory in practical effect. Further, the court found that the City of Portland had failed to demonstrate that the amendments served legitimate local interests that could not adequately be served by reasonable non-discriminatory alternatives. On 4 January 2018, the Oregon Court of Appeals reversed the Oregon Land Use Board of Appeals’ decision, upholding the zoning amendments. The court found that the policy did not violate the commerce clause and was not discriminatory between in and out-of-state producers and refiners of fossil fuels in that they were not substantially similar entities. Further, it found that the burden on interstate commerce was not clearly excessive relative to the local benefits arising from the policy. This case provides a relevant example of industry seeking to oppose changes to local planning controls which restrict industry operations in the effort to respond to climate change. Of particular interest is the divergence in views between the original court, which found the amendments were not valid, and the appeal court which found they were. These divergent decisions highlight the complexities courts face in balancing competing interests in planning decisions related to climate change. |
Juliana v. United States (Juliana)On 12 August 2015, 21 individual youth plaintiffs, the non-profit organisation Earth Guardian and a plaintiff identified as ‘Future Generations’ (Juliana Plaintiffs), filed a complaint against the US government. The Juliana Plaintiffs alleged that their constitutional rights were being violated and not being protected equally relative to prior and present generations, and that the government had breached its obligations under the public trust doctrine. Thus, they sought to compel the defendant to take action to reduce carbon dioxide emissions. The case is ongoing, with the trial due to begin on 29 October 2018. Although the US government has attempted to prevent discovery and have the case dismissed summarily, it has been unsuccessful. This case is significant because it is attempting to establish a positive obligation for the US government to act to mitigate climate change, in a similar manner to Urgenda, which could fundamentally affect environmental policymaking, and thus, have an impact on businesses. |
Australian Conservation Foundation Incorporated v Minister for the Environment and Energy (Australian Conservation Foundation)On 11 November 2015, the Australian Conservation Foundation applied for review of the Commonwealth Environment and Energy Minister decision to approve Adani’s Carmichael coal mine, alleging that the Minister failed to properly consider the impacts of climate pollution on the Great Barrier Reef World Heritage Area. On 29 August 2016, the Federal Court of Australia dismissed the Australian Conservation Foundation’s application, finding that the Minister gave consideration to greenhouse gas emissions resulting from combustion emissions in coming to the decision to approve the Carmichael coal mine. This decision was subsequently appealed and, on 25 August 2017, the Full Federal Court of Australia dismissed the Australian Conservation Foundation’s appeal, upholding the Federal Court of Australia’s decision. In a subsequent judgement the Court limited costs to be paid by the Australian Conservation Foundation from 100% to 70% of the Minister’s costs and 40% of Adani’s costs. This case sheds some light on the court’s position regarding what a Commonwealth Minister in Australia must consider in relation to climate change in order make a valid decision. The case also demonstrates the court’s willingness to limit costs awarded against litigants who bring proceedings on public interest grounds, rather than for commercial purposes. |
The cases outlined above provide a snapshot of the diversity of challenges being brought against governments, and also significant differences between jurisdictions and courts. In challenging government environmental policies or inaction, most parties have sought to require governments to take further action with respect to addressing climate change or pay damages for failures to prevent harms arising from climate change, but some have sought to overturn environmental laws.27
Cases seeking further action or damages have often been founded on non-compliance with environmental or human rights laws,28 or breach of the public trust doctrine (such as in the Juliana case),29 particularly in the US.
The decision in Urgenda in favour of the complainants against the government has sparked a wave of similar cases. Increasingly, citizens and non-governmental organisations are suing to hold governments accountable to act to reduce and adapt to climate change. The Paris Agreement may assist such cases by providing a reference point of national commitments to avoid global warming above 1.5 and 2 degrees.
Mounting pressure from such ground-breaking cases as Urgenda may influence governments towards taking stronger action on climate change. This, in turn, presents a transitional risk that companies must consider and, where relevant, disclose to shareholders.
While environmental litigation is not new, the increasing trend in climate change related litigation represents an additional risk of which companies need to be aware.
Most cases to date, with notable exceptions, have not succeeded in holding companies or government accountable for climate change. Over time, strategic litigants will undoubtedly continue to develop new types of arguments and draw on new research and evidence that they claim support links between emissions harm related to climate change.
Accordingly, it is crucial that businesses assess their exposure to climate related litigation.
Adopting the Task Force’s climate disclosure recommendations may be a practical measure to help companies adequately identify and disclose climate-related financial risks, so as to avoid the risk of litigation and penalties for breach of disclosure obligations.
The authors would like to acknowledge the contribution of Kelvin Ng in preparing this article.
Columbia University, Columbia Law School, Sabin Centre for Climate Change Law, in collaboration with Arnold & Porter Kaye Scholer LLP, ‘Climate change litigation databases’ (accessed 13 July 2018) <http://climatecasechart.com/>.
Foundation for Democracy and Sustainable Development, ‘New study identifies key trends in worldwide climate change litigation’ (29 May 2017) <http://www.fdsd.org/unep_cc-litigation/>.
See eg Santa Cruz v. Chevron Corp. (5:18-cv-00450, N.D. Cal.) (Santa Cruz); City of New York v. BP p.l.c. (1:18-cv-00182, S.D.N.Y.) (NY); Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.), Inc. (2018CV030349, Colo. Dist. Ct.) (Boulder County); King County v. BP p.l.c. (2:18-cv-00758, W.D. Wash.) (King County); Conservation Law Foundation v. Exxon Mobil Corp. (1:16-cv-11950,D. Mass.) (Conservation Law Foundation); City of Oakland v. BP p.l.c. (3:17-cv-06012-WHA, N.D. Cal) (Oakland).
See eg Lliuya v. RWE AG, Az. 2 O 285/15 (Lliuya); Republic of the Philippines, Commission on Human Rights, ‘Greenpeace Southeast Asia and Philippine Rural Reconstruction Movement, Petition to the Commission on Human Rights of the Philippines requesting for investigation of the responsibility of the Carbon Majors for human rights violations or threats of violations resulting from the impacts of climate change’ (Philippines Investigation); Ucilia Wang, Climate Liability News, ‘Paris, inspired by New York City, considers climate suit against oil companies’ (9 February 2018) <https://www.climateliabilitynews.org/2018/02/09/paris-climate-liability-suit/>.
Grantham Research Institute on Climate Change and the Environment, London School of Economics and Political Science, ‘Climate Change Laws of the World, Lliuya v RWE’ (accessed 1 August 2018) <http://www.lse.ac.uk/GranthamInstitute/litigation/lliuya-v-rwe/>.
See eg California v. General Motors Corp. (07-16908,9th Cir.) (California); Comer v. Murphy Oil USA, Inc., 585 F.3d 855 (5th Cir. 2009) (Comer);; Native Village of Kivalina v. Exxon Mobil Corp., 696 F.3d 849 (9th Cir. 2012) (Kivalina); American Electric Power Co. v. Connecticut, 564 U.S. 410 (2011) (Connecticut); Lliuya; King County.
Comer; King County.
Comer.
Comer.
Philippines Investigation.
See eg California; Kivalina; Comer Lliuya; County of Santa Cruz; NY; Boulder County; King County; Conservation Law Foundation; Oakland; see also Sao Paulo Public Prosecutor’s Office v. United Airlines and Others (Civil Appeal No 000292010.2014.4.03.9999) (Sao Paulo) in which an offset via reforestation was sought.
See eg Conservation Law Foundation; Oakland; see also Sao Paulo.
See eg Connecticut.
See eg California; Connecticut; Kivalina; Comer; Oakland; cf. Lliuya.
See Machal Nachmany and Joana Setzer, Global trends in climate change legislation and litigation 2018 snapshot, Policy brief, May 2018, Grantham Research Institute on Climate Change and the Environment, 7.
Steadfast Insurance Co. v. AES Corp., 100764(Va. 2012) (Steadfast).
The National Association of Insurance Commissioners (NAIC) Insurer Climate Risk Disclosure Survey requires large insurers to make general disclosures regarding climate-related risk management. Further, the Securities and Exchange Commission (SEC) Guidance Regarding Disclosure Related to Climate Change requires financial and non-financial firms subject to SEC reporting requirements to disclose material climate-related risks and factors that may affect or have affected their financial conditions, such as regulations, treaties and agreements, business trends and physical impacts.
Recommendation 7.4 of the Corporate Governance Principles and Recommendations (3rd Edition) by the Australian Stock Exchange (ASX) Corporate Governance Council requires listed firms to disclose material exposure to economic, environmental and social sustainability risks and risk management strategies.
Section 414A of the Companies Act 2006 requires quoted companies to disclose the main trends and factors likely to affect the future development, performance and position of their businesses, and information about environmental matters and related firm policies.
Article 173 of the Energy Transition Law (2015) requires listed firms to disclose climate-related risks and the impacts of climate change on their activities and use of goods and services they produce.
Noel Hutley SC and Sebastian Hartford-Davis, Climate Change and Director’s Duties: Memorandum of Opinion, published by the Centre for Policy Development and the Future Business Council, 22.
Task Force on Climate-related Financial Disclosures, ‘Final report – Recommendations of the Task Force on Climate-related Financial Disclosures’ (June 2017) <https://www.fsb-tcfd.org/publications/final-recommendations-report/>; see also Asset Owners Disclosure Project Global Climate Risk Survey; Carbon Disclosure Project (CDP) Annual Questionnaire; Climate Disclosure Standards Board (CDSB) Framework for Reporting Environmental Information & Natural Capital; CDSB Climate Change Reporting Framework; International Integrated Reporting Council (IIRC) International Integrated Reporting Framework.
See eg Peter Allard v Government of Barbados, PCA Case No. 2012-06 (Barbados); Massachusetts; Afton Chemical Limited v. Secretary of State for Transport [2010] C-343/09 (Afton); Alec L. v. McCarthy (14-405, U.S.) (Alec); Urgenda Foundation v. Kingdom of the Netherlands [2015] HAZA C/09/00456689 (Urgenda); Juliana v United States (6:15-cv-1517, D. Or.) (Juliana); Leghari v. Federation of Pakistan (2015)W.P. No. 25501/201 (Leghari); VZW Klimaatzaak v. Kingdom of Belgium et al. (Belgium, Court of First Instance, Brussels [2015]) (Klimaatzaak); Foster v. Washington Department of Ecology (75374-6-1, Wash. Ct. App.) (Foster); Ali v. Federation of Pakistan (Constitutional Petition No. ___ / I of 2016, Supreme Court of Pakistan) (Ali); California v U.S. Bureau of Land Management (17-17456, 9th Cir.) (California); Thomson v Minister of Climate Change Issues [2017] NZHC 733 (Thomson); Western Organization of Resource Councils v. Jewell (15-5294, D.C. Cir.) (Jewell); West Virginia v. EPA (15-1363 D.C. Cir.) (West Virginia); Columbia Pacific Building Trades Council v. City of Portland (A165618, Or. Ct. App.) (Portland); Future Generations v. Ministry of the Environment and Others 11001 22 03 000 2018 00319 00 (Future Generations); R (on the application of ClientEarth) No. 3 v Secretary of State for Environment, Food and Rural Affairs, Secretary of State for Transport and Welsh Ministers [2018] EWHC 315 (ClientEarth); Sinnok v. Alaska (3AN-17-09910 CI, Alaska Super. Ct.) (Alaska); Reynolds v. Florida (37 2018 CA 000819, Fla. Cir. Ct.) (Florida).
William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon of Delaware Inc. v. Government of Canada, UNCITRAL, PCA Case No. 2009-04 (Canada); TransCanada Corporation and TransCanada PipeLines Limited v. The United States of America, ICSID Case No. ARB/16/21 (Transcanada); Border Power Plant Working Group v. Dept. of Energy (02-cv-513-IEG, SD. Cal.) (Border Power Plant); Gray v Minister for Planning (2006) 152 LGERA 258 (Gray); Greenpeace Nordic Association and Nature and Youth v. Ministry of Petroleum and Energy 16-166674TVI-OTIR/06 (Greenpeace Nordic); In re Vienna-Schewat Airport Expansion W109 2000179-1/291E (Vienna-Schewat Airport); EarthLife Africa Johannesburg v. Minister of Environmental Affairs and Others 65662/16 (EarthLife); Friends of the Irish Environment CLG v. Fingal County Council 2017 No. 344 JR (Friends of the Irish Environment); Austria v Commission T-356/15 (Austria); Wollar Progress Association Incorporated v Wilpinjong Coal Pty Ltd [2018] NSWLEC 92 (Wollar Progress Association); Fitzpatrick and Daly v An Bord Pleanala [2017] IEHC 585 (Fitzpatrick); Australian Conservation Foundation Incorporated v Minister for the Environment and Energy [2017] FCAFC 134 (Australian Conservation Foundation); see also Reuters, ‘Austria to sue EU over allowing expansion of Hungary nuclear plant’ (22 January 2018) <https://www.reuters.com/article/austria-hungary-eu-nuclearpower/austria-to-sue-eu-over-allowing-expansion-of-hungary-nuclear-plant-idUSL8N1PH1XU>; Environmental Law Australia, ‘Maryfield Station clearing case in the NT Supreme Court’ (2018) <http://envlaw.com.au/maryfield_station/>; Source Watch, ‘Thepha Power Station’ (31 May 2018) <https://www.sourcewatch.org/index.php/Thepha_power_station>; Raidió Teilifís Éireann, ‘Timeline of appeals about Apple in Athenry’ (10 May 2018) <https://www.rte.ie/news/2018/0510/961458-apple/>; Stabroek News, ‘Challenge to licensing of Exxon’s partners sent back to High Court’ (29 June 2018) <https://www.pressreader.com/guyana/stabroek-news/20180629/281754155062211>.
Meredith Wilensky, ‘Climate change in the courts: An assessment of non-US climate change litigation’ (2015) 26 Duke Environmental Law & Policy Forum 131 <https://scholarship.law.duke.edu/delpf/vol26/iss1/4/>.
Anna Rose, ‘Gray v Minister for Planning: Rising Tide of Climate Change Litigation in Australia’ (2007) 29(4) Sydney Law Review 725.
See eg Afton; Portland.
See eg Colombia; Florida.
See eg Alec; Juliana; Foster; Ali.
Publikation
n a long-running dispute, taking in no less than three arbitrations spanning 26 years cumulatively (involving allegations of state interference in the arbitral process), the Court has provided useful guidance on the ss.67 and 68 challenges, particularly in the context of investor-state claims.
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