The Green Brief: Courtrooms – the new climate battleground

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Last month, a Dutch court fired another legal shot across the bow of oil giant Shell, ruling that its “Drive CO2 neutral” advert was greenwashing. While not legally binding, the ruling highlights a growing trend of citizens bringing climate-related cases against companies and governments.

Courtrooms have become a key battleground for tackling climate change. Not only are activists seeing more wins, but even if cases are lost, they garner public attention and media coverage (what journalist can resist a hand-painted banner and squawking megaphone on courthouse steps?)

This is reflected in the statistics. In 2017, 884 cases were brought in 24 countries. By 1 July 2020, the number had almost doubled to more than 1,550 in 38 countries, plus in EU courts, found a UNEP report published in January.

Cases vary, with some looking to drive societal change while others challenge inaction by governments or companies, according to a July report by the London School of Economics. Those bringing the cases have also become more diverse, with NGOs, politicians, children, senior citizens, migrants and Indigenous peoples all standing up for the environment.

And while an overwhelming majority of lawsuits are in developed countries, case numbers are growing in the Global South. And upcoming due diligence legislation from the European Union could see this increase further.

Shell, for instance, has faced litigation both within the EU and beyond. In the last year, it has been ordered to cut emissions more significantly by 2030 as a result of a case brought by Dutch activists and had to pay compensation to people affected by an oil spill in Nigeria.

But the Anglo-Dutch giant is not the only oil and gas major facing this kind of litigation. TotalEnergies is expecting a ruling soon in a French court over allegedly failing to adequately tackle climate change.

Governments too can become targets for litigation. In April, Germany’s top constitutional court ruled that the country’s climate protection law infringed upon the rights of the nation’s youth. The court gave legislators until the end of 2022 to fix it, throwing the climate change cat amongst the political pigeons in the build-up to a general election on 26 September.

Taking a public or private entity to court is not a foregone conclusion, however. The People’s Climate Case, a lawsuit launched by 10 families joined by a Swedish youth organisation, which challenged Europe’s former 2030 target was dismissed on procedural grounds.

The law can also be a double-edged sword when it comes to climate action. For example, the Energy Charter Treaty – an international agreement that allows energy firms to sue governments for decisions impacting their investments – has become a Damocles’ Sword hanging over countries like the Netherlands which have accelerated their coal phase-out. 

There are also challenges accessing certain legal procedures. While the revision to the Aarhus Regulation agreed in July will see a wider range of cases in court, state aid remained untouched, meaning NGOs who have tried and failed to challenge certain investments in coal-fired power plants remain unable to do so.

Despite this, climate change litigation can have a direct regulatory impact. The LSE study for instance has highlighted several key areas to watch, including value chain litigation, government support of fossil fuel and cases on the fairness of the energy transition.

To be sure, the private sector and governments worldwide should brace for more, not less environmental litigation.

– Kira Taylor

 

Top stories

 

This week’s stories

 

News from the capitals

VIENNA. Austrian vice-chancellor tries to reconcile industry-NGOs climate divisions. Green Vice Chancellor Werner Kogler met representatives of a climate protection initiative launched by environmental protection NGOs and 250 companies to discuss the further strategy in climate protection on Tuesday. Read more.

MADRID. Spanish government to present measures to bring down soaring electricity prices. The government will “imminently” present a new package of urgent measures to reduce the fast increase of electricity prices on the wholesale market, it announced on Tuesday. Read the full story.

SARAJEVO. China not giving up on building a coal-fired power plant in BiH. Chinese companies China Gezhouba Group Company (CGGC) and China Energy Engineering Group (GEDI) still want to go ahead with a project of building a new thermal power plant block in the eastern town of Tuzla with a Chinese government-backed loan even though the project was cancelled. Read more.

EU considers debt relief for countries hit by floods, wildfires. The emergency costs related to this summer’s floods and wildfires could be classified as “a one-off” expenditure and therefore excluded from the calculation of EU countries’ public deficits this year, the European Commission has said. Read the full story.

BERLIN. Last pipe of Nord Stream 2 pipeline welded, ready to enter operations in 2021. Nord Stream 2, the project which had caused severe tension between the EU and the past administration of former US President Donald Trump, is now almost complete and ready to start funnelling Russian natural gas straight into Germany. Read more.

BRUSSELS. Doubts remain over Belgium’s plan to close nuclear power plants by 2025. Belgium has committed to closing down its seven nuclear reactors by 2025 and has enshrined that decision in law. But while it is still technically feasible that the closure of the power plants will go ahead as planned, familiar obstacles such as cost and political ideologies may prevent it from happening. EURACTIV’s partner The Bulletin has more.

BRATISLAVA. Activists, investors clash over construction of LNG terminal in Slovakia. Activists from Greenpeace Slovakia and other organisations protested the construction of a new LNG (liquified natural gas) terminal in Bratislava over the weekend, with investors arguing that the terminal would reduce greenhouse gas emissions and help make the shipping industry more environmentally friendly. Read more.

BELGRADE | BERLIN. Serbia to continue cooperation with German development bank on energy. Serbian Energy Minister Zorana Mihajlović met with representatives of the German KfW development bank Monday to discuss the continued cooperation in the energy sector, where the total value of completed, ongoing or planned common projects was almost €1.5 billion. Read more.

PARIS. French minister calls for more ‘brutal changes’ to address climate change. To get on the right track of the aspirations of the Paris Climate Agreement “the efforts will be harder, the changes more brutal,” said French ecological transition minister Barbara Pompili on Wednesday evening as she met Valérie Masson-Delmotte, co-chair of the Intergovernmental Panel on Climate Change (IPCC), to discuss the lessons to be learned from the report published this summer. Read more.

BELGRADE. Green MEP: Serbia behind EU environmental standards by 30, 40 years. Serbia “is behind European standards by 30, 40 years” in terms of environmental protection, the European Greens’ co-chair, Austrian MEP Thomas Waitz said on Thursday. Read more.

ROME. Italian minister: Environmental activists worse than climate crisis. “The world is full of radical chic environmentalists and it is full of extremist, ideological environmentalists: they are worse than the climate catastrophe,” Italian Ecological Transition Minister Roberto Cingolani told the political training school of former Prime Minister Matteo Renzi’s party, Italia Viva, on Wednesday. Read more.

MADRID. Spain, Murcia region trade blame on pile of dead fish, lagoon disaster. A court in the Spanish region of Murcia has opened investigation procedures against the ecological transition ministry over its alleged role in the environmental disaster in the Mar Menor, a lagoon in south-eastern Spain, where tons of dead fish have washed ashore in the past week. Read the full story.

 

News in brief

International climate summit must be delayed, says environmental NGO. The COP 26 climate summit, due to be held in November, should be delayed because vaccine inequality, rocketing accommodation prices, travel restrictions and surges in COVID-19 cases threaten to prevent delegates from developing countries attending in person.

“Our concern is that those countries most deeply affected by the climate crisis and those countries suffering from the lack of support by rich nations in providing vaccines will be left out of the talks and be conspicuous by their absence at COP 26,” said Tasneem Essop, executive director of Climate Action Network, which is made up of over 1,500 NGOs. (Kira Taylor | EURACTIV.com)

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Diving into ocean protection. As part of the IUCN biodiversity conference, campaigners leapt into the Mediterranean Sea to call on political leaders to end destructive fishing practices. They were joined in an early morning swim by surfing champion Maya Gabeira and the European Commissioner for the environment, oceans and fisheries, Virginijus Sinkevičius, who looked a little out of place in a suit (EURACTIV understands he didn’t join in the swim itself).

“The power of the ocean to fight climate change is enormous – as the largest carbon sink on the planet it must be protected from destructive activities like bottom trawling and overfishing,’’ said Rebecca Hubbard, program director at Our Fish, an international NGO working to end overfishing and restore a healthy ocean ecosystem. (Kira Taylor | EURACTIV.com)

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EU lending arm enlists ECB’s Lagarde for new climate council. The European Investment Bank (EIB) has created an advisory council to provide guidance on green projects and enlisted European Central Bank President Christine Lagarde among other high-profile members.

The EIB  is active in around 160 countries and describes itself as the world’s largest multilateral lender for climate action projects. It recently adopted its Climate Bank Roadmap to deliver a planned €1 trillion sustainable investment programme set to run until the end of the decade.

EIB President Werner Hoyer said climate change required “a rapid global response” and thanked Lagarde for joining the group, which held its first meeting on 1 September. The ECB has also said it will take greater account of climate change in its core policy decisions and will adjust its lending rules and corporate bond purchases to incorporate climate change criteria. (EURACTIV.com with Reuters)

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30% of tree species threatened with extinction. Nearly a third of global tree species are at risk of extinction and at least 142 species have been recorded as extinct, according to the Global Tree Assessment, published on this month. The report on the extinction risk of 58,497 tree species is compiled of five years worth of research. It found that the main threats to species are forest clearance, habitat loss and invasive pests and diseases as well as climate change. Read the report here.

 

Opinions

 

Upcoming events

8 SEPTEMBER. Carbon removal strategy – is it needed and will it make a difference? Carbon removals have been put into the spotlight by Europe’s net emissions reduction targets. But how will policies work together to make sure carbon removals are sufficient to tackle the climate crisis? Join Christian Holzleitner, Head of Unit Land Use and Finance for Innovation at the European Commission’s climate department, Niels Fuglsang, an MEP in the energy committee of the European Parliament and more to discuss. Programme and registration here. (Supported by Equinor)

9 SEPTEMBER. Media partnership – the road to COP 26: what is the role of biofuels? Join Plínio Nastari, President/CEO of Datagro and President of the Brazilian Institute of Bioenergy & Bioeconomy (IBIO) and Emily Rees, UNICA (Brazilian Sugarcane Industry Association), plus more to look at the role of biofuels in the path to decarbonisation. Programme and registration here. (Organised by: The Embassy of Brazil in London and Apex-Brasil)

21 SEPTEMBER. Fit for 55 on all fronts? Can Europe lead innovation in green maritime? Join Maria Spyraki, member of the energy committee in the European Parliament, Christophe Tytgat, Secretary General, Sea Europe, and Ukko Metsola, Director-General, Cruise Lines International Association Europe to discuss how the EU can decarbonise the maritime sector, and lead in green maritime innovation. Programme and registration here. (Supported by Cruise Lines International Association)

29 SEPTEMBER. Is green hydrogen really carbon neutral? As the EU moves away from its dependency on fossil fuel, hydrogen is expected to play a key role in our future energy systems. Join the debate to discuss how. Programme and registration here. (Supported by Environmental Defense Fund)

30 SEPTEMBER. COP 26 – can renewed political will result in concrete actions? With a month to go until the big climate summit, join Jytte Guteland from the European Parliament’s environment committee, María Mendiluce CEO of We Mean Business, Simone Tagliapietra, senior fellow Bruegel and more to discuss what solutions are needed to reach global decarbonisation. Programme and registration here. (Supported by Iberdrola)

 

On our radar

21-23 SEPTEMBER: Informal meeting of transport and energy ministers. The ‘Fit for 55’ package will no doubt feature prominently during the meeting.

14 DECEMBER: Fit for 55 – part 2. Following the publication of its huge package of climate proposals in July, the European Commission is expected to table more energy-related files, including regulations on natural gas, and proposals on the circular economy.

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