ESG Disputes Bulletin – May 2024

Welcome to the latest edition of the quarterly Linklaters ESG Disputes Bulletin. In this edition, we cover some of the key developments in contentious ESG matters since our January 2024 edition.

In this edition:

  • Europe

  • Belgium
  • France

  • Italy
  • Netherlands
  • Portugal
  • Spain

  •  United Kingdom      

  • United States

  • Australia

  • New Zealand

  • South Africa


Explore the key developments below



The European Court of Human Rights rules that Switzerland’s failure to implement sufficient measures to combat climate change violates human rights

On 9 April 2024, the Grand Chamber of the European Court of Human Rights (“ECtHR”) issued its long-awaited rulings in three landmark climate change cases against Portugal (as well as 32 other States), France and Switzerland. The Court was asked to decide whether the Contracting States’ allegedly insufficient measures to combat climate change amounted to a violation of the individual human rights of European citizens as guaranteed by the European Convention on Human Rights. The three cases were not joined but were heard by the same composition of the ECtHR’s Grand Chamber. While dismissing two of the three cases on procedural grounds, the ECtHR relied on the right to private life and family life (Article 8 of the Convention) to decide, in the third case, that Switzerland had failed to fulfil its obligations to provide protection against the adverse effects on human health caused by climate change.

For further information, read our blog post on the topic.



First Belgium climate litigation case against a corporate entity has been launched

In what has been described as the first climate litigation case against a corporate (rather than public authorities) in Belgium, coined as the "Farmer Case". In this case a local farmer supported by NGOs announced on 13 March 2024 that he has sued a major oil and gas company for its alleged role in global warming, which he claims has in turn harmed his farming business. The lawsuit seeks to hold the company accountable for its contribution to climate change, compel it to transition away from fossil fuels, and challenge the impunity of the fossil fuel industry. In a similar fashion to the Dutch Shell case, the legal action is based on the corporate’s general duty of care, which requires the local farmer to demonstrate the company's fault, the damage incurred, and a causal link between the two.

For further information, read our blog post on the topic.



Paris Court of Appeal dismisses the claim launched by French oil and gas major against Greenpeace France for alleged dissemination of false and misleading information

On 28 March 2024, the Judicial Court of Paris annulled the writ of summons served by a major French energy company on Greenpeace France and a consulting firm, based on the alleged dissemination of misleading information in relation to a publicly traded company. The civil complaint sought a judicial order to withdraw the publication of a report published in November 2022 claiming that the company underestimated its 2019 greenhouse gas emissions. The Court found the summons to be too vague, therefore preventing the defendants from effectively defending themselves on the merits and declared the same null and void for failure to meet the procedural requirements under French law. Furthermore, the Court rejected the defendants’ counterclaim for abuse of process, since they were unable to demonstrate any fault of the company in the exercise of its right to file legal proceedings.

For further information, read our blog post on the topic.

Paris Court of Appeal admits greenwashing claim against major coffee company for alleged misleading advertisements

On 20 March 2024, the Paris Court of Appeal held that an association’s greenwashing claim against a major coffee company for alleged misleading advertisements was admissible. The complaint targeted climate-related advertisements, such as “100 % carbon-neutral coffee” or “100 % recyclable” capsules. In the first instance, the judge had dismissed the case due to the five-year statutory limitation period under French law, in circumstances where the advertisements were live since April 2016 and the summons was issued in May 2021. The Paris Court of Appeal ruled otherwise, deciding that the NGOs were only aware of the company’s potential greenwashing allegations from May 2020, when the company launched its new advertising campaign. The merits of the case are expected to be heard in the coming months.

First hearing held at the new Paris Court of Appeal’s chamber dedicated to “emerging litigation

The newly-established chamber of the Paris Court of Appeal, dedicated to “emerging litigation” (i.e. cases related to duty of vigilance and environmental liability), conducted its first hearing on 5 March 2024. Three cases were discussed, revolving around the same procedural issue. In the first instance, the three cases were ruled to be inadmissible on the ground that the requests made in the formal notice significantly diverged from those in the writ of summons. The decision of the Court of Appeal is expected on 18 June 2024.

Defendant appeals the first judgment on the merits rendered under the French Duty of Vigilance Law

On 11 March 2024, the French state-owned postal company announced its appeal against the judgment of 5 December 2023, whereby the Paris Judicial Court upheld a trade union’s claim to order the company to amend and supplement its vigilance plan. This was the first decision to be rendered on the merits under the 2017 French Duty of Vigilance Law.

For further information, read our blog post on the topic.



First climate change case filed against the Italian State

On 26 February 2024, the Civil Court of Rome dismissed Italy’s first climate litigation, filed by a group of 24 NGOs and more than 200 private citizens (the “Claimants”) against the Italian State.

In the case, dubbed “Giudizio Universale” (in English: the “Last Judgement”), the Claimants emphasised the urgency of the climate crisis and called upon the Italian State for action. The Claimants sued the Italian State to require Italian authorities to do more to address climate change. More specifically, the Claimants sought the Court of Rome to force the Italian State to adopt any necessary measures to reduce greenhouse gas emissions (“GHG”), targeting a 90 percent reduction of national GHG compared to 1990 levels by 2030. Secondly, the Claimants sought an amendment of the National Integrated Energy and Climate Plan (“PNIEC”), a strategic document defining the national energy and climate policy regulated by EU Regulation 2018/1999.

The Court of Rome dismissed both claims as inadmissible, due to:

  • a lack of absolute jurisdiction with reference to the possibility for the civil judge to interfere with the Italian State’s climate action, since it would have breached the principle of separation of powers; and
  • a lack of relative jurisdiction with reference to the possibility for the civil judge to review the “adequacy, consistency and reasonableness” of the PNIEC within the law. The Court held that the Claimants should have filed a lawsuit before the administrative court rather than the civil court.

For further information, read our blog post on the topic.

Extraordinary administration of companies due to labour exploitation

Following investigations carried out by the Labour Inspector Unit, Paolo Storari (the Milan prosecutor) has recently requested, in two sets of separate proceedings, that the Court of Milan place Alviero Martini S.p.A. and Giorgio Armani Operations S.p.A. under extraordinary administration. The Milan court granted the precautionary measure because the companies were deemed incapable of preventing and curbing labour exploitation within their supply chain. In particular, the companies would have failed to carry out inspections and audits to ascertain the real working conditions of its contracting companies.



District Court of Amsterdam rules against Dutch flag carrier in greenwashing case

On 20 March 2024, the Amsterdam District Court ruled against a Dutch flag carrier in what marks the first decision on greenwashing claims in the aviation industry. The proceedings were initiated by the Dutch Foundation in furtherance of the Fossil-Free Movement. This organisation argued that nineteen advertising statements made by the airline contained misleading environmental claims. The District Court decided that fifteen of the nineteen challenged statements were too vague and/or too absolute and therefore misleading and unlawful. For example, in relation to sustainable aviation fuels, the District Court held that despite their contribution in reducing the harmful effects of flying, these fuels cannot be presented as a “sustainable airplane fuel”.

For further information, read our blog post on the topic.

Advertising complaint proceedings against Dutch travel organisation

On 2 April 2024, the organisation Advertising Fossil Free (“Reclame Fossielvrij”) submitted a complaint against a Dutch travel organisation before the Dutch Advertising Code Committee. The complaint specifically targets the travel organisation’s advertising for holiday flights to Turkey. According to the complainant, this advertisement induces harmful behaviour, as flights cause climate and health-related issues, and is therefore in violation of the Dutch Advertising Code.

Greenpeace and citizens of Bonaire initiate climate proceedings against the Dutch State

On 11 January 2024, Greenpeace and eight individual claimants from the Dutch Caribbean Island of Bonaire filed a lawsuit against the Dutch State in the District Court of The Hague. This case closely resembles the landmark Urgenda proceedings, as detailed in our blog post. Similar to the Urgenda case, the claimants contend that human rights underpin the claims, citing the rights enshrined in the European Convention on Human Rights, among other sources.

The claimants assert that the District Court should order the Dutch State to implement: (i) adequate adaptation measures to safeguard Bonaire's inhabitants; and (ii) mitigation measures that would reduce its emissions to net zero by 2030, culminating in an absolute 100% reduction by 2040. These demands exceed the current targets set by the EU and Dutch legislators, which, according to Greenpeace, are insufficient, particularly given the “common but differentiated responsibilities” incumbent upon states under the UN Climate Convention and the Paris Agreement.

Greenpeace initiated summary proceedings to prevent nitrogen emissions

On 16 March 2024, Greenpeace initiated preliminary relief proceedings against the Dutch State regarding its nitrogen policy. These preliminary relief proceedings are in addition to the main proceedings filed by Greenpeace against the Dutch State in July 2023, alleging that the Dutch State’s nitrogen emissions policy is unlawful.

Greenpeace asserts that immediate action is required to protect the most vulnerable nature in the Netherlands and that it is not viable to wait for the outcome of the full trial on the merits. Therefore, Greenpeace seeks an order from the District Court requiring the Dutch State to develop and implement a set of measures that will significantly reduce nitrogen emissions in the Netherlands by 2025.

Friends of the Earth Netherlands (Milieudefensie) threatens proceedings against Dutch bank in relation to its financing activities

On 19 January 2024, Friends of the Earth Netherlands (Milieudefensie) issued a notice of liability to a Dutch bank. The notice alleges that the bank’s climate policy is unlawful, particularly due to the emissions of the business clients it finances. Specifically, Milieudefensie requests that the bank: (i) aligns its climate policy with the 1.5-degree Celsius target of the Paris Agreement; and (ii) mandates robust climate policies from its business clients and ceases financing and support for those failing to comply.

Subsequently, on 13 February 2024, the bank responded to the letter, stating it has made significant progress in reducing its emissions and will continue these efforts. The bank also clarified that it adopts a science-based, sectoral approach in full alignment with the goals of the Paris Agreement. Moreover, the bank noted that transitioning to a low-carbon economy necessitates considerable investments, for which its financing will play a constructive role over time.

As at the time of writing, Milieudefensie has not yet initiated legal proceedings.

Oral hearings take place in the Shell v. Milieudefensie case

The oral hearings in the Shell v. Milieudefensie appeal proceedings were held in April 2024. This court hearing marked the start of the final phase of the appeal proceedings. Judgment is expected by 12 November 2024.

Claimants file a claim against Brazilian companies as a result of the Mariana dam collapse

In March 2024, seven Brazilian municipalities along with the Dutch foundation Stichting Ações do Rio Doce (representing c.1,000 businesses and over 77,000 individuals) brought a lawsuit against the mining company Vale SA and its Dutch subsidiary Samarco Iron Ore Europe B.V.

The Claimants are seeking GBP 3 billion in damages stemming from the Mariana dam collapse in 2015. These legal proceedings have been initiated in conjunction with another related case that is presently active in England.



Portuguese state sued over climate inaction

Several NGOs have initiated a class action against the Portuguese state alleging that it is taking insufficient action to achieve the greenhouse gas emission reduction objectives that it has committed to.

The claims are founded in the right to a healthy environment, as enshrined in Portuguese Climate Law (and international law). The plaintiffs seek: (i) a declaration that the Portuguese State has failed to implement the political and legislative measures necessary to cut greenhouse gas emissions by 55% by 2030; and (ii) a court order requiring the Portuguese State to implement all measures necessary to reach that target. The proceedings were rejected in a preliminary examination by the Court on procedural grounds and the Claimants will appeal to the Supreme Court

Importantly, this is the first climate litigation case brought against the Portuguese state, with the leading NGO claimant also indicating that it intends to file claims against major private players in the oil and gas sectors too.

Litigation to stop the construction of the largest photovoltaic plant in Europe

Several proceedings have recently been initiated to prevent the construction in Portugal of what would be the largest photovoltaic plant in Europe (and the fifth largest in the world). The cases (seeking both injunctive and declarative relief) have been brought by NGOs and, more recently, by the Portuguese Public Prosecutor. The photovoltaic plant faces challenges centred around the alleged invalidity of the environmental licence granted for the construction. Specifically, the claims focus on the partial location of the photovoltaic plant in a natural reserve area, which the claimants allege would involve massive deforestation and significantly affect animal life in that area.



Iberdrola sues Repsol for alleged “greenwashing”

On 21 February 2024, Iberdrola filed a claim against Repsol, accusing the oil company of “unfair competition and deceptive advertising through greenwashing”.

Iberdrola argues that Repsol has misrepresented the sustainability of its operations and products, particularly regarding its campaigns on advanced biofuels, renewable hydrogen, and energy connections. We understand that the claim is supported by two expert reports that examine Repsol's operations and advertising, alleging that Repsol has omitted essential information about its main activities and the environmental impact of its products. Iberdrola requests: (i) the removal of Repsol's advertising campaigns and the prohibition of similar future publications; and (ii) publication of the judgment in the event of a favourable ruling for Iberdrola.

In response, Repsol’s CEO asserts that the claim lacks any legal basis and is instead an attempt to limit competition and the growth of Repsol in the electricity and gas market.

United Kingdom

United Kingdom

Claim against Shell’s Nigerian subsidiary continues in the High Court

On 12 February 2024, the High Court handed down a judgment, refusing an application to strike out a claim brought by the Bodo Community against Shell’s Nigerian subsidiary (Shell Petroleum Development Company of Nigeria, “SPDCN”). The proceedings relate to the clean-up of two oil spills from 2008: the ‘Bodo Remediation and Revegetation Project’ has been described as the largest remediation and planting project ever undertaken in an oil contaminated mangrove habitat. Whilst SPDCN noted that (as at March 2023) the project was 87% complete and only required a further 3-4 months to be fully completed, the Bodo Community have questioned the adequacy of the clean-up that has been undertaken to date.

Inter alia, SPDCN’s position was, to the extent it has not already been cleaned up, any residual oil from the 2008 Bodo spills would by now be highly-weathered and innocuous. The real problem is oil from multiple other sources of oil pollution (including illegal refining) that fall outside the scope of the clean-up claim. The Bodo Community’s criticisms are therefore unfounded, amount to an abuse of process and are fundamentally flawed as a matter of Nigerian and English law. SPDCN therefore requested that the claim be struck out.

In its judgment, the Court noted the clean-up process was at an advanced stage and both parties remained committed to continuing the remediation through to completion. However, the precise extent of the clean-up achieved and/or its adequacy was not agreed between the parties and the Bodo Community have an arguable cause of action. Therefore, the court found it was not in a position to dispose of the issues on a summary basis. The case is set to proceed to a full trial on 17 February 2025.

UK government in High Court over alleged breach of the Climate Change Act 2008

Friends of the Earth, ClientEarth and the Good Law Project (the “Claimants”) have again taken the UK Government to court, challenging its new decarbonisation plans. This follows the Claimants’ successful 2022 challenge of the Government’s previous decarbonisation plans (the “Net Zero Strategy”). In that case, the Government was ordered to revise its Net Zero Strategy due to legal errors (please see our blog post here with details of this ruling).

At the end of February 2024, the Claimants challenged the Government’s new Carbon Budget Delivery Plan (the “CBDP”) unveiled in March 2023 as a result of the successful 2022 challenge. The Claimants allege that the CBDP is in breach of the Climate Change Act 2008, due to: (i) the Secretary of State having insufficient information to enable him to adopt it; and (ii) the CBDP not containing sufficient information to enable scrutiny by Parliament.

On 3 May 2024, the High Court handed down its decision, deciding yet again that the government’s climate plan is unlawful, upholding four out of the five grounds of challenge. The Court agreed that the government’s central assumption that the CBDP would achieve 100 per cent of the intended emissions cuts was incorrect, the plan did not contain enough information demonstrating whether the proposed policies would achieve the cuts and did not reflect the potential shortfalls due to delivery risks. It was also held that the government breached its duty to be satisfied that the policies contribute to sustainable development.

Judicial review filed challenging decision to install carbon capture technology in biomass power plant

At the end of March 2024, Biofuelwatch UK issued a High Court legal challenge in respect of the Energy Secretary’s decision to give Drax Power Limited consent to install carbon capture technology at its Yorkshire biomass power plant.

The application for judicial review alleges that the Energy Secretary’s decision fails to comply with the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017, as the likely harmful environmental effects were not properly assessed or considered. Specifically, this allegedly includes: (i) attaching a zero-rating for carbon emissions from biomass burning; (ii) excluding the CO2 emissions from the units to be fitted with the carbon capture technology; and (iii) treating the works to construct and operate transport and storage facilities for captured carbon as a separate project.

Biofuelwatch UK allege that this led the Energy Secretary to treat the project as resulting in a net reduction in emissions, whereas they estimate that the plant would be a large net positive emitter.

United States

United States of America

Climate Lawsuits

Climate litigation continues to gain traction in the U.S. On 22 March 2024, a county in Pennsylvania sued several major oil companies in state court, alleging that the companies misled consumers and the public about climate change for decades. The complaint alleges that the oil companies have long known that fossil fuels are the primary cause of climate change and unless reduced, could “result in catastrophic impacts, including droughts flooding, and severe weather events that would impose enormous harms on states, cities”. The county seeks compensatory and punitive damages, equitable relief including abatement of nuisance, and disgorgement.

In January 2024, the U.S. Supreme Court denied a petition for writ of certiorari requesting a review of the U.S. Court of Appeals for the Eighth Circuit’s decision affirming that the State of Minnesota's climate fraud suit belongs in state court. Following the Supreme Court’s denial of the petition, a federal district court in Minnesota lifted the stay on the case and remanded it to state court.

Challenges to Agency Rules

Several states and NGOs have challenged federal agency rules. The U.S. Securities and Exchange Commission (“SEC”) faced lawsuits almost immediately after announcing its long-awaited final rules on climate-related disclosures on 6 March 2024. The same day, a group of 11 states filed a petition for review in the Eleventh Circuit, arguing that “the final rule exceeds the agency’s statutory authority and otherwise is arbitrary, capricious, an abuse of discretion, and not in accordance with law.” Other state coalitions filed lawsuits in the Fifth Circuit and in the Eighth Circuit. NGOs and corporations also filed suits against the SEC. Two environmental NGOs separately sued the SEC in the Second Circuit and in the District of Columbia Circuit, arguing that the final requirements require “much less information about companies’ exposure to climate-based risks” than the initial proposed rules would have, leaving investors without critical information to handle their investments. On 21 March 2024, the United States Judicial Panel on Multidistrict Litigation ordered the pending actions in the D.C., Second, Fifth, Eighth, and Eleventh Circuits to consolidate, randomly selecting the cases to proceed in the Eighth Circuit and lifting the rule stay in the Fifth Circuit. On 4 April 2024, the SEC voluntarily stayed the rules pending the Eighth Circuit’s review.

An energy and fracking company that sued the SEC in the Fifth Circuit filed a separate lawsuit in the U.S. District Court for the Northern District of Texas “out of an abundance of caution” if a district court is found to have jurisdiction over their challenge, alleging that the new rules unlawfully compel corporations to make burdensome disclosures about GHG emissions. The complaint alleges, inter alia, that the rules violate the First Amendment of the U.S. Constitution and the Administrative Procedures Act.

A new final rule from the U.S. Environmental Protection Agency (“EPA”) was also the subject of increased litigation this quarter. On 6 March 2024, eight major industry groups filed a petition in the District of Columbia Circuit Court of Appeals seeking review of the EPA’s recent final rule entitled Reconsideration of the National Ambient Air Quality Standards for Particulate Matter. The final rule strengthens the annual particulate matter pollution standard (including particles from construction sites, power plants, and automobiles) in an effort to improve air quality nationally. In a press release, one of the industry group plaintiffs contends that the rule undermines the Biden administration’s manufacturing agenda by “stifling manufacturing investment, infrastructure development and job creation in communities across the country.” On the same day, a group of 24 states filed a separate petition challenging the rule in the U.S. Court of Appeals for the District of Columbia. The complaint alleges that the rule exceeds the EPA’s statutory authority and is arbitrary, capricious and an abuse of discretion. On 28 March 2024, a coalition of six environmental organisations moved to intervene in support of the EPA rule, asserting that the state petitioners are attempting to weaken public health and environmental safeguards that benefit the organisations’ members.

PFAS and Pollutants

Litigation involving industry pollutants and harms to natural resources is on the rise. On 8 January 2024, five companies settled with the U.S. Department of Justice (“DOJ”) totalling over $7.2 million to resolve claims related to the discharge of toxic industrial pollutants at a water site near Toledo, Ohio. The complaint alleged that the companies are liable for discharges of oil or hazardous substances, including polycyclic aromatic hydrocarbons (“PAHs”), metals, and polychlorinated biphenyls (“PCBs”) from the Ohio facilities that injured local wildlife and ecosystems. Also in January 2024, the State of Connecticut filed two lawsuits in state court against multiple chemical manufacturers, alleging that the companies knowingly contaminated state waters and natural resources with per- and polyfluoroalkyl substances (“PFAS”) contained within their various products—including aqueous film forming foam (“AFFF”) products. The state plaintiff claims that the chemical manufacturers concealed material information about the harms of products containing PFAS from regulators and the public to preserve their product lines, and is seeking injunctive, monetary, and other equitable relief. On 29 March 2024, the U.S. District Court for the District of South Carolina approved a settlement agreement proposed by an AFFF developer to resolve claims of PFAS contamination of over 12,000 public water systems across the U.S. The settlement, totalling up to $12.5 billion, will provide funding to help detection, treatment and testing of PFAS in drinking water.

NGOs, businesses, and residents are also filing suits to combat local pollution. On 26 March 2024, a group of environmental organisations, businesses and New York residents filed a complaint in state court against the New York State Department of Environmental Conservation (“NYSDEC”) and a waste management facility. The plaintiffs allege that the facility failed to adequately operate a landfill in Seneca Falls, New York, thereby “causing noxious, offensive odours to emanate to property owned or occupied by plaintiffs” in violation of a state environmental conservation law. The plaintiffs seek declarative relief, injunctive relief, and abatement of the odours.


Allegations of “greenwashing” continue to be litigated in the U.S. On 10 January 2024, the National Consumers League, a consumer advocacy organisation, sued a café chain and coffee retailer in the Superior Court of D.C., alleging that the company made false and misleading statements advertising its coffee and tea products. The complaint posits that the company misrepresented to consumers that it was committed to “100% ethical coffee sourcing” and to “100% ethically sourced tea” while purchasing its coffee beans and tea from farms that have documented human rights and labour violations. The plaintiffs argue that the alleged misrepresentations and material omissions surrounding the defendant’s ethical sourcing practice have resulted in harm to consumers in violation of the District of Columbia Consumer Protection Procedures Act. The plaintiffs seek wide ranging relief, including declarative relief, injunctive relief, monetary damages, and punitive damages. Later that month, a class action was filed in the Northern District of California, alleging that a large food company was using deceptive labelling in a ploy to conceal its child labour, child slavery, and negative governmental practices in violation of California state law. The complaint alleges that the products were falsely labelled as “100% sustainable” despite relying on child labour practices in its production chains, while also failing to follow any sustainable environmental protocols. The plaintiffs request restitution, disgorgement, injunctive relief, and monetary damages. In March 2024, a federal court in South Carolina approved a class action settlement to resolve 2021 claims from the City of Charleston’s public water system that several retailers sold “flushable” wipes that do not perform as advertised, leading to clogs and damage to county sewers and consumer property. The complaint alleged that the clogged sewer lines can cause “spills to flow onto public and private property as well as into lakes, rivers, and oceans, where they can harm public health and the environment.” Under the terms of the settlement agreement, the defendants are mandated to, inter alia, “(1) meet certain flushability standards, (2) submit to periodic independent testing, and (3) [make] modifications to the packaging of non-flushable wipes.

Government entities are bringing greenwashing cases as well. On 20 February 2024, the City of Chicago sued six major oil companies in Illinois state court, alleging that the companies funded and organised efforts to deceive consumers about “the role of fossil fuel products in causing the global climate crisis,” causing a significant increase in greenhouse gas emissions and accelerating climate change to the detriment of the city and its residents. The plaintiffs seek compensatory damages, disgorgement, and equitable relief, including abatement of public nuisance. On 28 February 2024, the State of New York sued a Brazilian food company in New York state court, arguing that the company failed to implement agricultural practices to reduce its greenhouse gas emissions while still making public representations of its commitment to reach “net zero by 2040.” The complaint states that the defendant company “repeatedly and persistently made unsubstantiated and misleading environmental marketing claims to New York consumers, even after the [National Advertising Division] and the Review Board found such claims to be unsubstantiated and recommended that the [company] stop making them” and seeks injunctive relief, disgorgement, and civil penalties.

Diversity, Equity, and Inclusion Lawsuits

On 5 April 2024, a group of Texas farmers filed suit in the Northern District of Texas against the U.S. Department of Agriculture (“USDA”) challenging eight disaster relief programs managed by the USDA, through which the agency distributed nearly USD 25 billion since 2020 in emergency disaster and pandemic relief to farmers. The plaintiffs argue that the USDA discriminated based on race and sex, by first “defining farmers who are black/African-American, American Indian, Alaskan native, Hispanic, Asian-American, Native Hawaiian, Pacific Islander, or a woman as ‘socially disadvantaged’” and then providing “farmers who qualify as socially disadvantaged more money for the same loss than those it deems non-underserved, along with other preferential treatment.” Plaintiffs seek an immediate injunction or stay halting the consideration of social disadvantage in the distribution of aid.

On 4 March 2024, the Eleventh Circuit Court of Appeals affirmed a decision from the District Court for the Northern District of Florida that blocked the portion of Florida’s Individual Freedom Act (the “Act”) that restricted employer ability to mandate DEI trainings for their staff. The Act says employers cannot condition employment on attending “training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels” any concept pertaining to a list of rejected ideas, all of which focus on race, colour, sex, or national origin. The Eleventh Circuit rejected Florida's argument that this law did not violate the First Amendment of the U.S. Constitution, stating that it rejects the state’s attempted recharacterisation of speech as conduct and that the “the merits of these views will be decided in the clanging marketplace of ideas rather than a codebook or a courtroom."

Fiduciary Duty Lawsuits

On 21 February 2024, the U.S. District Court for the Northern District of Texas denied a major airline’s motion to dismiss a case filed by one of its pilots, who alleged that the airline breached its duty of loyalty and prudence and its duty to monitor by including in its retirement plan investments ESG funds and funds managed by investment managers that pursue pervasive non-financial and non-pecuniary ESG policy goals. The Court found that the plaintiff pled sufficient facts under the Employee Retirement Income Security Act to state plausible claims for both counts.



ASIC wins first greenwashing civil penalty action against Vanguard

In a judgment published on 28 March 2024, Justice O'Bryan of the Federal Court found that Vanguard Investments Australia ("Vanguard") had contravened the Australian Securities and Investments Commission Act 2001 (Cth) on multiple occasions by making false or misleading representations about exclusionary screens purportedly applied to one of its ESG focused investment funds, the 'Vanguard Ethically Conscious Global Aggregate Bond Index Fund'. The case marks the first successful greenwashing civil penalty proceeding brought by the Australian Securities & Investments Commission ("ASIC").

At a hearing before Justice O'Bryan of the Federal Court on 8 March 2024, Vanguard admitted to engaging in conduct that was liable to mislead the public and to having made representations that were false or misleading. The recent judgment reflects a broader uptick in enforcement action by ASIC focused on alleged greenwashing issues, in particular relating to ESG-related investment exclusions and screens, as discussed in our January 2024 update and in this article by Allens. For example, late last year, ASIC issued an infringement notice to Melbourne Securities for alleged greenwashing in relation to its Bloom Climate Impact Fund. ASIC has alleged that Melbourne Securities held investments in companies that derived up to 33% revenue from excluded activities, such as fossil fuels.

With ASIC emboldened by a successful judgment in the Vanguard case, this enforcement trend does not show signs of slowing any time soon. In its 2024 enforcement priorities announced in November 2023, ASIC has reaffirmed its commitment to tackling greenwashing – see this article by Allens.

Intersection of Indigenous rights and climate change

An increasing number of cases before Australian courts are considering the intersection of Indigenous people's rights and climate change, particularly in the context of environmental approvals for fossil fuel projects. In its judgment on 6 March 2024, the Federal Court ruled in favour of the Gomeroi People in an appeal against a 2022 decision by the National Native Title Tribunal ("NNTT") to approve a gas extraction project. The NNTT had concluded that the benefits of the project outweighed concerns it would damage the Traditional Owners' culture, land and waters and worsen climate change.

On appeal, however, the Federal Court found the NNTT's decision to be invalid, finding that climate change is a legitimate factor when considering 'public interest' in native title cases and the Tribunal should have allowed evidence about the mitigation of climate change and its impact on native title.

The decision of the Federal Court follows high-profile challenges in recent years by Traditional Owners regarding environmental approvals for offshore oil and gas projects on the grounds of inadequate consultation with First Nations communities. Moreover, in the Pabai Pabai v Commonwealth of Australia proceeding before the Federal Court, First Nations leaders from the Torres Strait Islands allege that the Commonwealth government owes a duty of care to Torres Strait Islanders to take reasonable steps to protect them, their culture and traditional way of life, and their environment from harms caused by climate change, and that the government has breached this duty as emissions reduction targets are not consistent with the best available science.

Fossil fuel project approvals and broader climate litigation trends in Australia

In February 2024, the Full Federal Court heard an appeal brought by the Environment Council of Central Queensland ("ECCQ") challenging the federal Environment Minister's decision to approve two coal mine extensions. It was found at first instance by the Federal Court that the Federal Environment Minister did not act unlawfully under current Australian environmental laws because the Minister is not required to explicitly consider climate change when making an approval decision. On appeal, the ECCQ is contesting two elements of the Minister's reasoning in considering the climate risk posed by the extensions:

  • the so-called 'drug dealer's defence': that is, if the proposed action does not proceed, prospective buyers will purchase equivalent amounts of coal from other suppliers; and
  • the so-called 'drop in the ocean' defence: that emissions from the mines will not make a significant contribution to global climate change.

Judgment is expected in the coming months, which may impact other new fossil fuel project approval applications that are still in the pipeline, or which are subject to similar legal challenges. A successful outcome for ECCQ may put a larger spotlight on proposed greenfield and brownfield fossil fuel projects in Australia, with companies in the energy sector already faced with a mature climate litigation environment. Australia is the second most-litigated jurisdiction for climate change cases behind the United States based on the 2023 UNEP climate litigation report.

New Zealand

New Zealand

Claim against corporate emitters for climate-related harm to proceed to trial

The New Zealand Supreme Court has unanimously refused to strike out the first New Zealand case seeking to hold corporates liable in tort for damage caused by climate change, finding that the Claimant’s claim on public nuisance grounds is not bound to fail. The Claimant has pleaded claims in public nuisance and negligence, as well as a novel cause of action: the proposed tort of climate system damage. The Court has not substantively commented on the negligence and proposed new climate system damage tort, and it will be for the trial court to determine whether any of the claims could give rise to liability.

Whilst the common law of New Zealand has some distinctive features and may be influenced by indigenous tikanga (Māori customary law), in refusing to strike out the claim in public nuisance, the Supreme Court drew on authorities from other jurisdictions, including English cases from the 19th century on causation. This case will therefore be relevant not just to corporates in New Zealand, but to corporates considering climate litigation risk in other common law jurisdictions.

For more information read our blog post.


South Africa

Landmark litigation launched to protect the African penguin from extinction

On 19 March 2024, the Biodiversity Law Centre representing Birdlife South Africa and the Southern African Foundation for the Conservation of Coastal Birds (SANCCOB) launched potentially groundbreaking litigation, which alleges that the Minister of Forestry, Fisheries and the Environment failed to implement biologically meaningful closures around African Penguin Breeding areas and that the Minister failed to discharge her constitutional obligation to prevent extinction of an endangered species. This case is also important as it seeks to have the Minister take science-based decisions that are grounded on the internationally-recognised and constitutionally-enshrined precautionary principle.

Legal challenge launched in relation to exploratory offshore drilling

Two organisations, Green Connection and Natural Justice, jointly lodged a review application against a decision to grant an environmental authorisation for exploratory drilling in an area located off the coast between Cape Town and Cape Agulhas. The basis of the review application included a ground alleging that the government failed to assess the socio-economic impacts of a potential oil spill on local fisheries. The applicants allege that the decision was not taken in accordance with the principles of sustainable development, to respond to climate change and to protect the rights of present and future generations.

Challenge to the environmental authorisation granted in respect of Richard’s Bay gas-to-power plant

In February 2024, GroundWork and South Durban Community Environmental Alliance represented by the Centre of Environmental Rights, launched a review application challenging the decision by the Minister of Forestry, Fisheries and the Environment to uphold an environmental authorisation that was granted for a proposed gas power plant in Richards Bay. This is one of the many power plants proposed for Richards Bay Industrial Development Zone (the others are also being challenged in the High Court by civil society groups on the basis that there are better alternatives with minimal impact on the environment than gas). The review questions the rationale of the decision-makers in relation to the project’s alleged climate change harm versus its climate change benefits.

Water use licence dispute relating to environmental impacts

The Department of Water and Sanitation (DWS) refused to grant an integrated water use licence to Mafube Coal (a thermal coal mine jointly owned by Exxaro and Thungela) relating to the extension of the discard facility on the basis (inter alia) that geohydrological issues and the civil engineering design of the liner system, "promotes the concept of pollution and remediation rather than pollution prevention or containment". However, the Water Tribunal reversed the DWS' decision. The tribunal found that "on the balance of probabilities, the appellant (Mafube) provided us with sufficient information, reports and expert testimony confirming such reports which demonstrate that the proposed new discard facility will not have significance on the environment and water resources that cannot be mitigated." However, on 21 February 2024, DWS appealed the Water Tribunal's decision to the High Court.