Climate-related litigation – it’s heating up…

Summary

Our article last year (here) provided a 2024 snapshot on climate related litigation in the UK and around the world. Since then, we have seen a flurry of key judgments and new claims being brought. 

In summary, we have seen:

• an important line of English and Scottish cases emerge which demonstrate judicial scrutiny over how climate change considerations are integrated into Environmental Impact Assessments;
• “greenwashing” or “climate washing” remaining a focus for claims and regulatory actions against corporates; and 
• internationally, the development of a number of key cases which:
  • seek to hold parent companies accountable for the alleged actions of their foreign subsidiaries (Mariana Dam and Niger Delta);
  • confirm the legal obligation of corporates to contribute to the mitigation of climate change (Milieudefensie); and 
  • demonstrate a willingness on the part of the judiciary to consider novel uses of the common law to address climate-related issues (Smith v Fonterra).

Litigation in the UK

The trend of judicial reviews brought by climate activist and interest groups in the UK has continued. Judicial review now appears to have become an established way for parties to seek to challenge governments and public bodies in relation to climate change. Some of the key judgments that have emerged are: 

R (Finch on behalf the Weald Action Group) v Surrey County Council [2024] UKSC 20 - This eagerly awaited judgment was handed down by the Supreme Court on 20 June 2024 (read our detailed summary here). The claim involved judicial review of a planning permission granted by Surrey County Council to expand oil production from a well in Surrey. The key issue in the case focussed on the prepared environmental impact assessment (“EIA”) document failing to consider the likely downstream emissions from the expanded well.

In a three-to-two majority, the Supreme Court held that the Council was required to assess, as an indirect effect of the project, the “downstream” environmental impacts of greenhouse gas emissions arising from the combustion of the extracted oil. 

The judgment has the potential to impact the scope of environmental impact assessments where there is a direct link between the project itself and the creation of downstream emissions. This manifests itself most clearly in fossil fuel projects. However, its scope may be limited in circumstances where the downstream effects of a particular project are harder to identify or not directly linked to the development. 

Friends of the Earth v Secretary of State for Levelling Up, Housing, and Communities [2024] EWHC 2349 (Admin) - This was the first planning decision successfully challenged through judicial review on climate change grounds, following Finch (see our coverage here).

The case concerned planning permission granted by the Secretary of State for the development of a coal mine in West Cumbria. The key findings from the Court were that the Secretary of State:

• Failed to factor the downstream greenhouse gas emissions produced from burning coal mined from the site into the EIA; 
• Wrongly concluded that the mine could realise a neutral or beneficial effect upon global greenhouse gas emissions by substituting the output from mining coal in the US;
• Failed to consider how granting planning permission for a new coal mine would harm the UK’s international reputation and status as a climate change leader; and
• Failed to properly consider the viability of using carbon offsets to achieve a ‘net zero’ status for the mine.

The case confirms the greater level of scrutiny that will be applied to address the downstream impacts of proposed developments, following Finch. The judgment also highlights the importance, for developers, of properly considering and evidencing arguments that greenhouse gas emissions from a particular project effectively substitute emissions from elsewhere.

In Petitions by Greenpeace Limited & Uplift [2025] CSOH 10, a case which concerned planning consents for the Jackdaw and Rosebank North Sea Oil Fields, the principles from Finch were applied by the Scottish Court of Session. 

The Court found that these oil and gas projects were unlawfully consented on the basis that the EIAs did not consider the effect on the climate of the combustion of the oil and/or gas extracted at each site. The case (which we covered here) also considered how, in determining the relief to be granted, competing public and private interests should be weighed, coming to the conclusion that: 

“The public interest in authorities acting lawfully and the private interest of members of the public in climate change outweigh the private interest of the developers” (Lord Ericht at [151]).

In Friends of the Earth, ClientEarth, Good Law Project v Secretary of State for Energy Security and Net Zero [2024] EWHC 995 (Admin), the High Court found that the Secretary of State’s decision to approve the government’s Carbon Budget Delivery Plan (“CBDP”) was unlawful, as it was based on a number of irrational assumptions – most notably assuming that all of the listed proposals and policies would be delivered in full. The revised CBDP had been prepared after the government’s previous climate change plan, the Net Zero Strategy, was found to be unlawful following judicial review proceedings brought by the same claimants in 2022. 

Remaining in the theme of the UK’s Carbon Budget Delivery Plan, 2024 also saw the TV presenter and naturalist Chris Packham CBE being granted permission for judicial review of government decisions to abandon green policies outlined in the CBDP. The policies slated to be abandoned included:

• transitioning away from petrol and diesel cars and vans by 2030;
• phasing out new and replacement gas boilers by 2035; 
• banning the installation of fossil fuel heating in homes not connected to the gas grid from 2026; and
• requiring all privately rented homes to be at least EPC band C for new tenancies from 2025 (and for all tenancies from 2028). 

Following the 2024 General Election, an agreement was reached between Mr Packham and the Labour administration which led to Mr Packham withdrawing his judicial review, which was due to be heard in November 2024. 

International Litigation

On the international stage, a number of key judgments have emerged, alongside important cases where judgment is expected this year.

We are following two important international cases heard in the English courts which focus on the principle of parent company liability and the accountability of environmental harm allegedly caused by their subsidiaries abroad, which are often based in other emerging markets. These cases reflect a growing trend where communities are willing to hold corporates accountable for environmental damage.

The first is BHP and others v Municipio de Mariana and others where the trial of the largest class action lawsuit in English legal history commenced in October 2024 over the collapse of the Samarco-owned Fundão dam in Brazil in November 2015. The claimants seek up to £36bn in compensation from a BHP and Vale joint venture which led to the release of millions of cubic metres of toxic waste from an iron ore mine that killed 19, destroyed infrastructure and polluted the local water system. Whilst not directly climate related, the case is highly relevant in testing the principle of parent company liability. It also highlights the prominent role taken by litigation funding, in this case the emerging markets alternative asset manager Gramercy, who has invested in funding the claimants.

The second case is the Bille and Ogale Group Litigation (also known as Alame and others v (1) Shell plc; (2) The Shell Petroleum Development Company of Nigeria Ltd), which centres on claims by residents of the Ogale and Bille communities in the Niger Delta against the parent company of the Shell Group, Shell Plc, and its Nigerian subsidiary, SPDC. The claimants allege that a vast number of oil leaks and spills from the defendants’ pipelines and infrastructure have caused extensive and devastating damage to the communities’ local environment. If successful, the case could set a precedent for holding UK-based parent companies responsible for the environmental pollution allegedly caused by their subsidiaries abroad. The preliminary issues trial was heard in the High Court in London earlier this year, with the full trial set to take place in late 2026. 

In the Dutch courts, we have followed with interest the case of Milieudefensie et al v Shell Plc, a class action which sought to clarify the duties owed by Shell under Dutch and human rights law to mitigate their contribution to climate change. As covered in our recent article (here), in a long anticipated judgment, the Dutch Court of Appeal in the Hague confirmed that Shell had a duty of care to reduce its greenhouse gas emissions. The Court’s key findings included that: 

1. the right of citizens to be protected from climate change can have effect through the Dutch social standard of care, thus extending an obligation to mitigate climate change to private corporations; 
2. no emissions reductions schemes, whether at EU or state level, imposed an “absolute [emissions] reduction” obligation of 45%;
3. Shell has a special responsibility to mitigate climate change as a major oil company; 
4. Shell’s continued investment in new oil and gas ventures may be at odds with its responsibilities under the social standard of care (as mentioned in (i) above); 
5. Scope 3 emissions reductions would not meaningfully contribute to mitigating climate change as another company would fill the ensuing gap in the market. 

The Court allowed Shell’s appeal on the issue of whether it had a specific emissions reduction obligation (i.e. to reduce emissions by 45% by 2030), agreeing with Shell’s submission that emissions targets were not necessarily a matter for the judiciary. However, this is not the end of the road for Milieudefensie, which has announced that it will appeal to the Dutch Supreme Court on the basis that the Court should set a specific emissions reduction target for Shell. This ruling is expected in 2026. 

In a case which largely follows the same legal strategy as pursued against Shell, Milieudefensie also issued, last year, a notice of liability to Dutch bank ING, alleging a failure by the bank to take sufficient climate action under the Dutch Civil Code. The case raises an important issue as to whether financial actors have a duty of care to mitigate their impact on the climate. 

Milieudefensie’s main allegation is that ING are following a climate policy that is contrary to their legal responsibilities under the Dutch Civil Code. Their demands upon ING focus on:

• A commitment to halve its total emissions in 2030 and continuing to reduce emissions thereafter;
• Reducing its emissions in certain sectors that it finances; 
• Stopping financing companies initiating new oil and gas projects; and 
• Requesting that ING asks all clients that it works with to provide a “good climate plan”.  

In Germany, hearings are scheduled this month in the Higher Regional Court in Hamm in the case of Luciano Lliuya v RWE AG. This claim, brought by a Peruvian farmer from the town of Huarez, concerns corporate liability for climate change impacts. Mr Lliuya’s claim alleges that greenhouse gas emissions from RWE have contributed to climate change, leading to the melting of glaciers near his home, increasing flood risks in the area. The claim argues that RWE should reimburse Mr Lliuya for a portion of the costs that he and the Huarez authorities are expected to incur building flood protections.

In New Zealand, the case of Smith v Fonterra will proceed to trial after the Supreme Court overturned the Court of Appeal’s decision to strike out three tortious claims by Mr Smith, an elder of Northland tribes Ngāpuhi and Ngāti Kahu, against seven corporate defendants. Mr Smith alleges that the defendants – each involved in an industry that either emits greenhouse gases or supplies products that emits greenhouse gases when burned – have unlawfully breached a duty owed to him or have caused or contributed to public nuisance. In addition to actions in public nuisance and negligence, Mr Smith proposes a novel “climate system damage” tort, involving a duty to cease materially contributing to damage to the climate system and the adverse effects of climate change. The Supreme Court has permitted Mr Smith to proceed on all three causes of action, so we will be following the trial with interest to see how the court grapples with these novel common law tort claims. 

ICJ Advisory Opinion

On 29th March 2023, the United Nations General Assembly asked the International Court of Justice (“ICJ”) to render an advisory opinion on two questions: 

“(a) What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations?

(b) What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to: (i) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change? (ii) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?”

Hearings took place in December 2024 at the Peace Palace in the Hague at which 96 States and 11 international organizations presented oral arguments. The opinion is expected to be issued later this year.

Commentary 

What themes can we draw from these cases? 

Domestically, judicial review represents potentially fertile ground for climate activist and interest groups to pursue claims. We have seen a line of cases emerge, both north and south of the border, which demonstrate judicial scrutiny over how climate change considerations are integrated into EIAs. The Scottish decisions concerning the Rosebank and Jackdaw projects also demonstrate willingness by the judiciary to weigh up competing public and private considerations that attach to any project.

We will be interested to see if the judicial review trend continues, particularly given the government’s commitment to reforming the judicial review process in order to reduce delays to the progress of nationally significant infrastructure projects.  

While climate change litigation to date has been predominantly comprised of public law claims (largely brought by NGOs against government bodies), there appears to be an increasing appetite to hold businesses to account for their contribution to climate change. Given that corporate actions and decision-making have such a crucial impact upon greenhouse gas emissions and the climate system, we may see an increase in climate-related commercial claims being brought between businesses or against businesses and the state. 

At the same time, “greenwashing” or “climate washing” remains a focus for claims and regulatory actions against corporates.  In March 2024, the Amsterdam District Court found that national airline KLM was guilty of misleading consumers with adverts intending to promote its environmental credentials.  The case follows other similar claims against airlines, including Delta and Qantas. Comparable claims continue to develop in other sectors, allied with developing regulation under the auspices of the Competition and Markets Authority, the Financial Conduct Authority and the Advertising Standards Authority in the UK, and other regulators beyond. 

On the international stage:

• The Mariana Dam and Niger Delta cases demonstrate a continued willingness on the part of the English courts to hear cases, even in circumstances where the events in question (and those affected) are outside of the jurisdiction. The cases could set important legal precedent for future actions which seek to hold parent companies accountable for the alleged actions of their foreign subsidiaries.
• In the Netherlands, the Milieudefensie claim against Shell represents an important decision in confirming that large corporates have a legal obligation to contribute to the mitigation of climate change and are bound by human rights, despite not being party to the ECHR. 
• The decision in the case of Smith v Fonterra is an acknowledgment by the highest court in New Zealand that the courts have a role to play in combatting climate change and climate system damage. The Supreme Court indicated that legal principles ought not to stand still in the face of massive environmental challenges attributable to human economic activity. The decision shows a willingness on the part of the courts, at least in New Zealand, to consider novel uses of the common law to address climate-related issues. 

This article is by Christopher Wenn, Victoria Barnes, Jasmine Sharp and Henry Dalton