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Clifford Chance

Clifford Chance

Business & Human Rights Insights

NGO issues claim against the UK Government over its "hot air" Net Zero strategy

The UK Government is facing litigation over its alleged failure to set out sufficient policies to combat climate change and achieve 'Net Zero' by 2050.

The claim, issued in January 2022 by ClientEarth, an environmental NGO, is the first of its kind in the UK and is part of a growing global trend of climate change litigation against governments and large corporations.

The details of the claim are yet to be made public, but it is understood that it alleges breaches of the 2008 Climate Change Act and the European Convention on Human Rights ("ECHR"), including that:

  • The UK Government's Net Zero Strategy (released in October 2021) is insufficient and fails to take action at the pace needed to achieve net zero emissions by 2050, as required under the 2008 Climate Change Act.
  • Current policies are insufficient to limit the total amount of greenhouse gases the UK can emit over 5-year periods in line with "carbon budgets", which are legally binding under the 2008 Climate Change Act.
  • A failure to act now will mean that the Government will be left with no choice but to introduce more drastic solutions in future, placing a disproportionate burden on young people and their rights to life (Article 2) and to a private and family life (Article 8) under the ECHR. 

Human Rights

The human rights angle of the claim resonates with a theme internationally, whereby claimants seek to frame climate change as a human rights issue to challenge perceived inaction by governments to combat the climate crisis effectively.

In this regard, the Dutch Supreme Court found that the Dutch State has a positive obligation stemming from the ECHR to protect its citizens from the impacts of climate change in the landmark Urgenda decision in 2019. Accordingly, the Dutch State was ordered to reduce its emissions of greenhouse gases by at least 25% by the end of 2020.

This decision has been followed by a number of similar claims against governments based on ECHR Articles 2 and 8 (for instance in Belgium and Italy).

ClientEarth's claim in the UK appears to build on the theories developed in European cases by framing the human rights elements of its climate change-focused claims under the ECHR. The English Court may be expected to consider the case law from other ECHR Member States as well as jurisprudence of the European Court of Human Rights in Strasbourg on states' duties under ECHR Articles 2 and 8. Additionally, a handful of climate cases are currently pending before the Strasbourg Court which could offer further relevant jurisprudence before the English case is resolved: Duarte Agostinho et al. v Portugal and Others (39371/20), Verein KlimaSeniorinnen Schweiz et al. v Switzerland (53600/20) and The People v Arctic Oil (Norway) (filed on 22 June 2021).

Corporate Duty of Care?

In the Netherlands, the Urgenda case has been followed by the decision of the Hague District Court in Milieudefensie et al. v Royal Dutch Shell ("Shell"), in which the Court held that there is an obligation on Shell to reduce CO2 emissions by 2030 by reference to an unwritten standard of care provided for within the Dutch Civil Code. The Court stated that it followed the corporate responsibility to respect human rights embodied within the UN Guiding Principles on Business and Human Rights and other "soft-law" instruments to interpret the unwritten standard of care.

Shell is now appealing this decision. Meanwhile, other civil law jurisdictions with a similarly open concept of a tortious duty of care may provide fertile ground to test the possibility of corporate duties in analogous contexts.

In contrast, the Court of Appeal in New Zealand recently adopted a more restrictive approach, striking out a claim against seven large New Zealand companies which sought to establish a novel duty of care and tortious liability in relation to climate change. The Claimant in this case (Smith v Fonterra), a Maori spokesperson, alleged that the defendants, each of whom operate in a range of industries which produce or use fuel products or fertilizers (such as dairy production, oil refinement and retail), are responsible for the release of greenhouse gases which are contributing to dangerous interference with the climate system and which will eventually result in irrevocable damage to his family's land. Ultimately, the case failed on the basis that it was not possible to demonstrate a sufficient causal nexus between the harm to the claimant and the defendants' activities. Significantly, the Court of Appeal was not persuaded that private litigation in the courts is an appropriate means for addressing the climate crisis, instead advocating "a sophisticated regulatory response at a national level, supported by international co-ordination". The Claimant in Smith v Fonterra has applied for leave to appeal to the Supreme Court of New Zealand, meaning these novel legal theories will potentially be subject to further judicial scrutiny.

Potential implications of the ClientEarth claim for businesses

The ClientEarth claim is in its early stages and the UK Government is yet to file its defence. As ClientEarth's claim documents are not yet publicly available, many aspects of it, including the relief sought, remain unclear. Based on cases in other jurisdictions such as those described above, a judgment in ClientEarth's favour could result in the UK Government being required to:

  • Enhance the UK's climate-related goals and impose higher emissions standards on businesses;
  • Pass legislation and regulations that prohibit certain activities; and /or
  • Incorporate climate change and human rights as considerations in permit or planning procedures.

Any of these outcomes is likely to significantly affect businesses operating in the UK.

Whilst we think that current trends in English tort law mean it will be too much of a stretch for the Courts to impose a tortious duty of care on businesses (as we have seen in the Netherlands), we would not bet against concerted efforts to have this tested, with the ClientEarth case potentially to pave the way.

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