Be proactive: reduce litigation risk and help save the planet

Lui Asquith, Associate in the Russell-Cooke Solicitors, regulation and compliance team.
Lui Asquith
4 min Read

Earth is heating up at a speed that points to escalating extreme weather, severe impact on the world’s most vulnerable and poor communities, environmental damage, economic damage and natural disasters.

How can we use the law to, at the very least, help slow it down for the generations to come?

To answer the question we should consider the increasing range of action being taken by governments and corporates contributing to enhancing energy efficiency, reducing rates of deforestation and accelerating the deployment of renewable energy. And in among these efforts, it is important to note the contribution public and regulatory law is playing in ensuring that these initiatives are fit for purpose.

The law's role: it's not all bad

Litigation is a tool of last resort. Why then are we seeing cases being brought, to influence government action and corporate/investment decisions relating to climate change (as well as to seek compensation for losses already sustained and future adaptation costs)? In short, it is a combination of policy and regulation tightening, together with an increasing consumer and public demand that they are fit for purpose and, once so, that they are lawfully complied with.

This litigation trend should be pulling those with legal, policy and/or regulatory obligations to consider whether they are doing enough. The law also has a pre-emptive power and relevant bodies (private and public) should see it as much as a proactive tool, as reactive.  

Every business has an impact on the environment and legal obligations that it must fulfil. The requirements are relatively simple for businesses such as offices and shops, but obviously rightly become more complicated in sectors such as chemicals and agriculture. Meeting obligations isn't just a legal requirement. It's worthwhile in itself, as it helps minimise the likelihood of any environmental problems, costs and damage to business.

Businesses that invest in looking ahead are more likely to be relieved of down-the-road expenses and be able to accurately market themselves as ‘Climate Savers’, something consumers are increasingly expecting from businesses. And there’s no point trying to wing it: take the Complaint against BP in respect of violations of the OECD Guidelines (filed 2019) case for instance; this matter resulted in BP withdrawing its advertisements after it was alleged that the advertising gave a false impression of the relative scale of BP's renewable energy business.

Indeed, public bodies and businesses have a difficult balance to strike; make changes too quickly and they risk crippling the economic infrastructure, whilst not evolving quickly enough will expose them to the risk of legal action through a failure to satisfy regulatory/statutory duty.

But, not working to find that balance and find it quickly is undoubtedly going to come back to haunt those that don’t face the issue head on.

When enough hasn’t been done

What then? As noted above, we can see this scenario is coming through the courts. Widespread failure to strike a balance results in climate-related litigation and the numbers of claims will keep growing until prospective defendants get ahead of the curve, or at least do enough. 

Take the recent High Court case brought by Friends of the EarthClientEarthGood Law Project and Joanna Wheatley. You can find the judgment here. The case was based on the Climate Change Act 2008 requiring the Government to hit Net Zero by 2050. The Government has to make proposals as to how it will meet that target, and to place an explanatory report before Parliament. In its judgment the Court decided the proposals for achieving Net Zero were too vague and did not satisfy the Secretary of State’s duty to inform Parliament and the public of his plans.

While novel and innovative causes of action receive much of the attention, many climate change litigation cases are statutory claims that consider the interaction between planning law and climate change.

Looking ahead

This discussion reminds us:

  • (i) how public bodies and businesses can save the need to litigate by investing in future planning;
  • (ii) the role litigation has to play in climate action, but that it can be curtailed through proactive strategy and action.

Both can use the law and both have a role to play.

What can businesses do?

It makes legal, business and economic sense for businesses to take advice now and make compliance with climate change-related regulation part of their strategy. Companies and directors that fail to incorporate material climate-related risks into risk management and disclosure face litigation exposures and future economic trouble. 

What can individuals and agents for change do?

If you are aware of a decision or policy by a public body that you think actively harms the material environment or habitat then you might just have a challenge to pursue.

If you are a company seeking policy and/or regulatory advice, or someone who thinks they have a challenge against a public body, contact our public law and regulatory team

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