United Kingdom

CAT refuses to certify collective proceedings brought against UK water and sewerage companies

The UK Competition Appeal Tribunal (the “CAT”) has refused to certify the proposed collective proceedings brought by Professor Carolyn Roberts (“PCR”) against Anglian Water Services Limited, Anglian Water Group Limited (both represented by Linklaters), and five other major English water and sewerage companies (together, the “WASCs”). The case is regarded as the UK’s first environmental competition class action. PCR applied for collective proceedings orders (“CPOs”) on behalf of the WASCs’ respective household customers. She alleged that the WASCs (as statutory monopolists in their respective regions) had abused their dominant position by under-reporting pollution incidents to the regulator, Ofwat, which allowed them to charge their customers higher prices than they would have been permitted to charge had the pollution incidents been reported accurately.

In considering the CPOs, the CAT applied the Supreme Court’s authoritative interpretation of section 18(8) of the Water Industry Act 1991 (the “WIA”) from the recent Manchester Ship Canal case. The CAT concluded that “the failure to supply accurate information for the statutory regime of price control under the WIA [was] an essential ingredient” of PCR’s claims and found that they were therefore excluded by the operation of section 18(8). This is the second time the CAT has refused outright to certify an application for collective proceedings. PCR has publicly indicated that she intends to seek permission to appeal the CAT’s interpretation of section 18(8) of the WIA.

The CAT’s judgment sends an important warning to funders and claimant lawyers: where proceedings are brought in sectors that already provide a bespoke and complex regulatory framework, including customer redress, there is a prospect for claims to be excluded from the competition regime and unable to proceed. See our blog post for further analysis.

Supreme Court refuses Dyson permission to appeal ruling that allegations of forced labour in Malaysian factories can be heard in English courts

In May 2022, 24 claimants issued a claim in the UK High Court seeking damages from two UK-domiciled companies in the Dyson group (the “UK Dyson Defendants”), and one Malaysian company in the Dyson Group (the “Malaysian Dyson Defendant”, together, the “Dyson Defendants”) in relation to poor living and working conditions allegedly endured by migrant workers in factories in Malaysia, which are owned and operated by third parties who had supply contracts with the Malaysian Dyson Defendant.

The High Court ruled in October 2023 that the proper forum in which the claim should be heard was Malaysia (see our blog post for analysis of this finding), but this was overturned by the Court of Appeal’s decision in December 2024 that England is “clearly and distinctly” the proper forum (on which we also produced analysis here). They were particularly persuaded by the "serious risk" that the Claimants would not be able to bring their claim in Malaysia due to their lack of funding, which it considered to be a factor “overwhelmingly in favour of England". The attempt by the Dyson Defendants to overturn this ruling by petition to the Supreme Court for permission to appeal has now been dismissed, on the basis that the case does not raise a point of law of general public importance. The claim will now proceed to trial in the High Court.

Jurisdiction challenges always turn on the specific facts of the particular case in which the challenge is being raised. However, the Court of Appeal decision in Dyson is likely to be cited in future challenges where similar factors are at play, for example where it is not possible for claimants to obtain litigation funding in the “foreign” alternative jurisdiction – this factor was given significant weight by the Court of Appeal, on the basis that it is particularly important to ensure “equality of arms” between claimants and defendants in cases involving allegations of serious human rights abuses.

ASA rules on several cases relating to advertisement of low carbon investments by companies in high-carbon omitting sectors

On 9 April 2025, the UK’s Advertising Standards Authority (“ASA”) handed down several new rulings on advertisements for low carbon investments by companies operating in high-carbon emitting sectors. The ASA’s rulings provide useful guidance on what is needed to give an accurate impression of a business’s “overall environmental credentials” and on misleading by omission.

Two advertisements by companies in the energy sector described, to varying degrees, the companies’ investments in low-carbon energy and/or technology. The first – a television advertisement – showed both higher carbon-producing and “green” activities, with text superimposed explaining the proportion of the business’ higher vs lower carbon investments. The ASA allowed this advertisement, noting that viewers would be cognisant that the company operated in a high-carbon sector and that the superimposed text meant that the company’s high and low carbon activities were sufficiently clear. The second, social media-based, advertisement also intended to demonstrate the road to becoming net zero by 2050, but did not include material about what proportion of the business model comprised of lower-carbon energy products. The ASA objected to the second advertisement on this basis.

The third advertisement, by a large bank, ran in The Economist and highlighted its investment bank offerings, including the claim: “we're helping power the transition to a low-carbon future”. A third-party challenged whether the advertisement was misleading given the bank’s contribution to CO₂ and greenhouse gas emissions. However, the ASA allowed the advertisement on grounds that it focussed specifically on services of the bank’s expert investment team and was being promoted to readers in a business-focussed publication, in contrast to the first advertisement.

These latest decisions come just as the UK’s Competition and Markets Authority (“CMA”) has been given expanded enforcement powers under new UK consumer protection laws (see our previous blog post), indicating that regulatory scrutiny on green claims and greenwashing allegations in the UK is likely to continue at pace during 2025. See our blog post for further analysis.

ASA upholds complaints against company labelling products as plastic-free

The ASA upheld all complaints against cleaning product company OceanSaver’s advertising claims across both their website and TV advertisements. The ads made environmental claims that were found to lack sufficient evidence, breaching the Advertising Codes. OceanSaver had designated their advertised products as “plastic-free”, despite the fact that they included polyvinyl alcohol (“PVOH”). The ASA did not consider that journal articles provided by OceanSaver regarding PVOH substantiated the advertising claims that the products were not microplastics and would not harm aquatic life.

Appeal against exploration of hydrocarbons in an area of outstanding natural beauty dismissed by Court of Appeal

Following the decision by an inspector acting for the Secretary of State for Housing, Communities and Local Government to allow a developer permission to explore Lower Stumble Exploration site (near the village of Balcombe) to establish the extent and nature of hydrocarbon presence, the Frack Free Balcombe Residents’ Association appealed to the Court of Appeal. The site is within the High Weald Area of Outstanding Natural Beauty.

The appeal was made on the basis of four grounds, each of which was dismissed by the Court of Appeal. Notably, the appellants contended that the decision by the inspector had failed to properly take into account the “disbenefits” of the production which would result from the exploration. Lieven J held that the exploration should be considered on its own merits and that there was a clear distinction between exploration and production phases. He noted that “there were benefits to establishing whether hydrocarbon extraction was commercially viable in the area” regardless of planned production, such as “whether there existed here a commercially viable resource of hydrocarbons capable of contributing to energy security”.

Government policy for net zero aviation by 2050 ruled lawful by High Court

The High Court has concluded that the UK Government’s policy for reaching net zero aviation by 2050 is lawful, dismissing a judicial review. Three claims were brought against the “Jet Zero Strategy” by two claimants – Group for Action on Leeds Bradford Airport (“GALBA”) and Possible, a charity focussed on public participation in climate action.

Each of the claims was founded on the basis that the Government’s consultation was insufficient, as it had not considered means of limiting demand for flights. The High Court held that the consultation was lawful, as the Government had legitimate reasons for discarding the option of restricting flights, meaning that the consultation was on how to achieve net zero aviation with the objective of not directly restricting aviation demand. As a result, it held that there was no general obligation for a public body to consult on options that it has rejected.

France

Public prosecutor dismisses a criminal complaint against major French energy company’s directors and main shareholders

On 7 February 2025, the Parisian public prosecutor dismissed a criminal complaint filed on 21 May 2024 against the directors of a major French energy company, including its the company’s CEO and main shareholders. The complaint, lodged by three non-governmental organisations and eight individuals, alleged that the company’s strategic direction contributed to climate change by expanding fossil fuel extraction. The criminal offences alleged by the complainants were endangerment of life, harm to biodiversity, involuntary manslaughter and failure to combat a disaster.

The Prosecutor dismissed the case, citing insufficient evidence to establish causal links between the company’s strategic decisions and the alleged offences. In particular, she considered that :

i. The claim of endangerment of life lacked evidence of a deliberate violation of legal obligations. The claimants had relied upon the objectives set in the Paris Agreement (and incorporated into French law) to reduce greenhouse gas emissions. However, the Prosecutor determined that these provisions constituted objectives rather than enforceable obligations under criminal law;

ii. There were no clear and direct causal links between the company’s strategy on the one hand and the alleged harm to biodiversity and the alleged involuntary manslaughter on the other; and

iii. The offence of failure to combat a disaster required evidence of clear knowledge of an ongoing disaster and an intentional decision not to intervene, which was absent in this case.

This decision underscores the difficulty to establish personal liability in criminal law with respect to alleged contribution to climate change.

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

French court dismisses trade union claim on the basis of the corporate Duty of Vigilance Act

On 13 February 2025, the Paris Judicial Court dismissed a claim brought by trade unions which claimed that a French state-owned rail company had breached the Duty of Vigilance Act 2017 (the “Act”). The Act requires that corporates draw up a plan which includes social and environmental risk mapping, and mitigation actions to ensure employees’ protection from human rights infringements.

The claimants requested that the Court order the rail company to update its vigilance plan, and notably its social and environmental risk mapping, which it argued disadvantaged employees in breach of the Act. The Court dismissed the claim, finding that:

i. The requests to amend the plan were insufficiently precise as they only generally referred to an environmental risk linked to road transport, and failed to identify concrete risks or serious harms to be prevented regarding the environment and health and safety of employees;

ii. The Climate and Resilience Act 2021, which provides that France has set the goal of doubling the proportion of goods transported by rail, sets out an engagement by the state, and cannot be held against a commercial company; and

iii. There was no evidence that social and environmental considerations were disregarded in the company’s reorganisation decisions.

Settlement of a Duty of Vigilance case challenging use of plastics by a major food producer

On 21 February 2025, a French food-products company announced that it had reached an agreement with three non-governmental organisations, following a mediation ordered by the Paris Judicial Court. The organisations had previously argued that the vigilance plan published by the company in accordance with the Duty of Vigilance Act 2017 had not sufficiently identified the use of plastics used in its production activity and a concrete plan to reduce it.

As part of the agreement, the company has undertaken to update the various risks related to the use of plastic in its vigilance plan, strengthen a policy for mitigating and preventing the risks associated with the use of plastic, publish its plastic footprint and hold an annual meeting from 2025 to 2027 with the three non-governmental organisations.

See our previous update on this matter in our ESG Disputes Bulletin of March 2023.

Fine imposed on a waste management company for environmental offences

On 10 February 2025, the Bordeaux Judicial Court fined a waste management company €200,000 for multiple environmental offences. These included discharges of lead and copper into the environment, irregularities in the management of received waste, and failure to submit an updated health risk assessment report.

The company did not appeal the judgment, making the decision final.

French State held liable for eco-anxiety claims linked to chlordecone

On 11 March 2025, the Administrative Court of Paris ruled that the State must compensate victims who demonstrate anxiety-related harm due to exposure to chlordecone. This pesticide, used in Guadeloupe and Martinique until 1993, has caused widespread soil and water pollution on the islands.

On the basis of a duty to protect the health of residents, the Court found that the State was at fault for (i) having repeatedly authorised, from 1974 to 1993, the sale of these pesticides; and (ii) failing to organise for the remaining stock of this substance to be collected. On these grounds, the Court ordered the State to compensate individuals for anxiety arising from the fear of developing serious illness in the future. The Court also imposed limits on eligibility for compensation, requiring that victims establish that the likelihood of this risk materialising is sufficiently high and that its potential effects are sufficiently serious. As a result, of the nearly 1300 victims, around ten will be compensated.

Germany

Climate change lawsuit by Peruvian farmer against German energy company is dismissed

The Higher Regional Court of Hamm dismissed a lawsuit brought by a Peruvian farmer seeking damages from energy giant RWE for the risk of flooding connected to melting glaciers. The case has brought liability of CO₂-emitting companies for the global consequences of climate change into the spotlight in Germany and internationally. It raises critical questions about whether greenhouse gas emitters can be held accountable for climate-related risks occurring thousands of kilometres away. After many years of litigation, this first ruling by a court of appeal had been eagerly awaited.

Like the Regional Court in the first instance, the Higher Regional Court rejected the claim. The reasons for the ruling are not yet available and are awaited for a more detailed analysis. However, according to the court's official press release, it seems that the Higher Regional Court's decision was based on different grounds than the Regional Court's judgment. Read our blog post here for our initial analysis.

Greenwashing remains in the spotlight

Greenwashing has remained a key concern in Germany in recent months, with several significant developments in both public and private enforcement.

Deutsche Bank's investment arm, DWS, agreed to pay a €25 million fine to conclude a German investigation into misleading ESG claims. Prosecutors found that DWS marketed itself as a leader in sustainable finance without monitoring whether that was indeed the case, following whistleblower allegations in 2021. The case echoed a $19 million penalty agreed with US regulators in 2023 for similar concerns. DWS, which has since overhauled its internal processes, stated that it accepts the fine.

Additionally, following a landmark judgment from the German Federal Court of Justice in 2024 (read more in our September 2024 ESG Disputes Bulletin), the Regional Court in Nuremberg and the Higher Regional Court in Cologne have ruled against climate neutrality claims by Adidas and Lufthansa that they considered to be misleading. Both judgments are yet to be published, but, according to press reports, the sports equipment manufacturer must stop promising that the company will be “climate-neutral by 2025” without adequately explaining that it plans to achieve this goal with the help of carbon offsets. Meanwhile, Lufthansa is prohibited from continuing to use certain advertising claims regarding carbon offsetting for flights. In an earlier decision, the Higher Regional Court of Cologne had held that consumers choosing the airline’s "offset flight" option were left in the dark as to the extent of the airline's climate compensation and what that meant in terms of their specific flight. Meanwhile, Deutsche Umwelthilfe (the environmental NGO that launched these two (and numerous other) greenwashing actions) filed new lawsuits against several companies for unclear environmental claims.

Netherlands

Milieudefensie issued a letter to Shell on 13 May 2025 addressing Shell’s climate strategy and compliance with its statutory obligations. Milieudefensie has demanded that Shell immediately cease investing in new oil and gas fields and establishes concrete emission reduction targets for Scope 1, 2, and 3 emissions, applicable from 2035 to 2050, which are aligned with the efforts to meet the target of only 1.5°C warming by 2100.

Milieudefensie asserts in the letter that further demands (and possibly legal proceedings) against Shell are required as the existing legal proceedings against Shell only pertain to Shell’s reduction obligation up to 2030. Shell has been invited to respond to the letter within four weeks. Should Shell fail to meet its demands, Milieudefensie will instruct legal counsel to begin the preparatory steps for issuing new legal proceedings in the Netherlands.

Portugal

New climate litigation against the Portuguese State

A group of young Portuguese citizens, who previously brought a landmark case against 33 countries before the European Court of Human Rights (“ECHR”), are now collaborating with a Portuguese environmental non-governmental organisation, supported by Global Legal Action Network, to prepare a new climate lawsuit against the Portuguese State.

According to publicly available information, the claimants in this case argue that Portugal’s current greenhouse gas reduction targets fall short of the obligations assumed under the Paris Agreement. They plan to seek a judicial order compelling the Portuguese State to strengthen its target, increasing the current pledge of a 55% reduction in greenhouse gas emissions by 2030 to 61% within the same period. Additionally, they aim to secure enforceable long-term strategies to ensure carbon neutrality.

This lawsuit, expected to be formally filed this summer, builds on the landmark case Duarte Agostinho and Others v. Portugal and 32 Others. The new lawsuit, however, focuses solely on the Portuguese State and aims to obtain a court order mandating enhanced climate policies.

Environmentalists challenge hotel construction in Porto (Portugal)

The construction of a hotel near Porto (Tivoli Estela Golf & Lodges) is being challenged by a members of the European Climate Pact on the grounds that it is being built in an area at maximum risk of erosion and sea flooding, with projections indicating a significant retreat of the coastline by 2050. It is also considered a protected area and classified as having a significant flood risk. Several irregularities have been identified in the construction licencing procedure that have been flagged with the competent authorities by the petitioners. Given the project’s advanced stage, it may well be that injunctions are sought from the courts to prevent further construction.

Spain

A Spanish court dismisses electric energy company’s claim against a petrochemicals producer for alleged "greenwashing"

On 21 February 2025, a Spanish court issued the first ruling on a greenwashing case in Spain, dismissing the claims of Iberdrola (an electric utilities company) against Repsol, an oil and gas multinational. This ruling marks the first significant ruling by Spanish courts in a greenwashing case. It also defined, for the first time, the concept of an “average consumer” in relation to environmental claims.

Iberdrola alleged that the content of Repsol’s website and three advertising campaigns misled consumers by exaggerating sustainability efforts, thus breaching EU Directives and Spanish competition law. Iberdrola requested that the Court order: (i) the cessation of these practices; (ii) the destruction of the illicit advertising materials; and (iii) the publication of the judgment on Repsol’s corporate website and other media outlets. On the other hand, Repsol argued, in summary, that the relevant communications and advertising campaigns were truthful and did not mislead consumers.

The Court dismissed Iberdrola’s claim on various grounds, including that: (i) Iberdrola lacked standing to bring certain of its claims as it wasn’t a competitor in the markets to which they related; (ii) one of the targeted advertising campaigns did not contain an environmental claim, so was not in scope for a greenwashing complaint; (iii) Repsol’s website was for instructive, rather than commercial purposes; and (iv) Repsol’s statements neither misled consumers nor influenced the “average consumer” in the relevant and, thus, did not breach EU or Spanish Law.

Regarding this final ground, it is interesting to note the court considered the average consumer to be someone who: (a) is an involved consumer, concerned about the impact of their consumption decisions on the environment; (b) understands that absolute climate neutrality does not exist and that a company currently dominated by fossil fuels in its business is neither neutral nor positive for the environment; and (c) would, therefore, understand that the object of the relevant communications was not to portray Repsol as environmentally neutral or positive, but rather as a company which intends to improve its sustainability.

United States of America

Climate change litigation involving oil and gas companies

In May 2025, the U.S. Commonwealth of Puerto Rico filed to voluntarily dismiss its climate change lawsuit against several major oil and gas companies in the U.S. District Court for the District of Puerto Rico. The notice did not provide the reasons for dismissing the suit. You can read more information on the initial complaint in our September 2024 ESG disputes bulletin here. Separately, in the same month the State of Hawaii sued a group of major oil and gas corporations in state court for climate-change related injuries as a result of the defendants’ alleged deceptive and tortious conduct. The state alleges that the defendants engaged in a decades-long misinformation campaign “concealing the dangers of fossil fuel products and promoting false and misleading information about fossil fuel products [that] have contributed substantially to consumer demand for fossil fuels,” contributing significantly to greenhouse gas (“GHG”) and carbon dioxide pollution that exacerbates climate change and its physical, environmental, and socioeconomic ramifications. The plaintiff seeks compensatory, punitive and natural resources damages, treble damages, disgorgement of profits, civil penalties, injunctive relief and equitable relief, including abatement of nuisance. This lawsuit follows the federal government’s April 2025 complaint filed in the U.S. District Court for the District of Hawaii against the state seeking to permanently prevent Hawaii from pursuing state claims against oil and gas producers for climate change harms, discussed below (see ‘Challenges to the States’s ESG actions’).

In April 2025, a Superior Court judge in the District of Columbia (D.C.) refused to throw out a lawsuit accusing four oil companies of misleading consumers about climate change and the role that their fossil fuels have played in exacerbating it. The judge ruled that aspirational statements and omissions, and those not linked to goods or services for sale in the District, are actionable under the D.C.’s Consumer Protection Procedures Act. The judge further stated that two of the companies could be held liable for allegedly misleading statements made by third-party groups. These decisions were issued over four separate orders, which we discussed in our May 2025 ESG Newsletter.

In March 2025, the Supreme Court of the United States (SCOTUS) rejected 19 states’ attempt to invoke the Court’s original jurisdiction to block four other states from pursuing their climate change-based cases against fossil fuel companies. Justices Thomas and Alito dissented from the denial, stating that because Congress had given the Court “exclusive” original jurisdiction over “all controversies between two or more States,” “our jurisdiction in this context would seem to be compulsory.”

In February 2025, a state court in Minnesota issued an order denying several large oil companies’ and industry stakeholders’ motion to dismiss the state’s lawsuit against them. The state claims that the defendants engaged in fraudulent misrepresentation and deceptive trade practices, failed to warn consumers, and violated the state’s False Statement in Advertising Act by misleading customers about the climate risks of fossil fuels. The only claim the judge dismissed was that of the defendants’ alleged violation of the Minnesota Consumer Fraud Act, which the judge found had no evidence of the defendant’s intent to deceive. Separately, in the same month, a New Jersey state court dismissed New Jersey’s claims that the defendant fossil fuel companies were liable for the effects of global climate change due to their alleged disinformation campaign concerning the harms of fossil fuel use. The Court noted that claims of this nature are preempted by federal common law, and cited several recent cases in Maryland, New York, and other jurisdictions, which have decided similarly.

Challenges to the State’s ESG actions

In May 2025, the U.S. federal government separately sued the States of New York and Vermont in the U.S. District Courts for the Southern District of New York and the District of Vermont, respectively, alleging that both states’ “Climate Superfund” Acts—which require fossil fuel companies to pay into climate superfunds that support climate-resilience projects—“stand in the way” of national efforts to secure reliable domestic energy sources. The complaints argue inter alia that the states’ superfund laws extend beyond their authority, are preempted by the Clean Air Act, and violate the Interstate Commerce Clause of the U.S. Constitution.

At the very end of April, the federal government preemptively filed suit against the State of Michigan and Hawaii, in the U.S. District Courts for the Western District of Michigan and the District of Hawaii, respectively, to prevent the states from bringing lawsuits against fossil fuel companies for climate change-related harms. The complaint asserts that the anticipated lawsuits “interfere with the federal government’s authority to regulate interstate and foreign commerce and greenhouse gas emissions, undermining national energy policy,” in violation of the U.S. Constitution and are preempted by the Clean Air Act.

Climate change litigation against government entities

In March 2025, SCOTUS denied a group of youth climate activists’ petition for certiorari, seeking to compel the federal government to take steps to address climate change. This case, which resulted in ten years of litigation, was also rejected by the Ninth Circuit for failure to assert a concrete injury, in which the plaintiffs argued the government’s actions violated the youngest generation’s constitutional rights to life, liberty, and property. This case has inspired other youth-led climate lawsuits around the world, with victories in Colombia, Germany, South Korea, and the U.S. State of Montana.

The same month, several environmental groups filed a first-of-its-kind lawsuit against the New York State Department of Environmental Protection in state court, urging the state to draft and release overdue climate law regulations aimed at reducing GHG emissions. The complaint alleges that absent these regulations, New York does not have a pathway to achieve the reductions required by the state’s Climate Leadership and Community Protection Act.

Greenwashing litigation

In March 2025, the U.S. District Court for the Northern District of Illinois dismissed a class action lawsuit against an American food conglomerate alleging that their oats contained toxic chemicals. The plaintiffs accused the brand of misleading the public by claiming their product was “healthy” despite the presence of pesticides, specifically chlormequat. However, the Court held that the level of chemicals detected were far below the limits imposed by the U.S. Environmental Protection Agency (EPA).

In February 2025, the U.S. District Court for the Southern District of Florida dismissed a case against an athleisure company alleging that they misled consumers by overemphasizing the significance of their environmental initiatives. Plaintiffs claimed that this campaign caused them to pay higher premiums for products they thought were more environmentally friendly. However, the Court ruled that the plaintiffs’ allegations fail to tie any aspect of the company’s statements to the price premium they claim to have paid, and that their assertions on their own are insufficient to constitute an economic injury.

PFAS lawsuits

In May 2025, the New Jersey Attorney General and a multinational conglomerate settled a six-year lawsuit to address alleged damage to the State’s water and other natural resources from per- and polyfluoroalkyl substances (PFAS). The $450 million settlement is the largest statewide PFAS settlement in New Jersey history and is subject to public comment and court approval. The company is expected to pay the settlement amount over a period of 25 years.

Litigation relating to climate-related disclosures

In March 2025, the U.S. Securities and Exchange Commission (SEC) voted to end its defense of rules requiring disclosure of climate-related risks and GHG emissions, following previous concerns that the law was “deeply flawed.” On 24 April 2025, the U.S. Court of Appeals for the Eighth Circuit ordered that the litigation over the rule be stayed until the SEC informs the court within 90 days of whether it “intends to review or reconsider the rules at issue in this case.” We covered this story in depth in our March 2025, April 2025, and May 2025 newsletters.

In February 2025, a federal judge in the U.S. District for the Central District of California dismissed two challenges to California’s climate disclosure laws. Plaintiffs claim that these laws, which require certain companies to report their greenhouse gas emissions and disclose climate-related financial risks, violate the constitution and extraterritoriality rules. However, the Court ruled that the laws do not require companies to reduce their emissions—merely disclose them—and that one of the constitutional issues in the case were not yet ripe due to the regulations enacting the law not yet being approved. Briefing continues on the first amendment claims raised by the plaintiff.

Challenges to executive and federal agency actions

In May 2025, fifteen states filed suit against the U.S. federal government in the Western District of Washington, challenging President Trump’s 20 January 2025 Executive Order 14156, Declaring a National Energy Emergency. The state plaintiffs allege the Executive Order is unlawful and bypasses “critical ecological, historical, and cultural resource review,” under federal law and other agency regulations to fast-track fossil fuel activities that harm the environment, wildlife, and historic and cultural resources. Further, the states argue the Order is beyond the statutory authority of the Executive and violates the Administrative Procedure Act. The plaintiffs seek declaratory and injunctive relief.

That same month, seventeen states and Washington, D.C. sued the federal government in the U.S. District Court for the District of Massachusetts, to challenge President Donald Trump’s memorandum, Temporary Withdrawal of All Areas on the Outer Continental Shelf from Offshore Wind Leasing and Review of the Federal Government’s Leasing and Permitting Practices for Wind Projects, which halts federal approval of wind energy projects. The plaintiffs argue inter alia that the indefinite halt to wind-energy project approvals impacts the states’ efforts to secure reliable, diversified, and affordable sources of energy, invest billions in workforce development and wind-related infrastructure, and protect the public’s health and welfare from air pollutants such as GHG emissions. The plaintiffs seek declaratory and injunctive relief.

In April 2025, the U.S. Department of Labor (DOL) filed a motion for abeyance in the U.S. Court of Appeals for the Fifth Circuit, requesting to pause an ongoing appeal from several states challenging the Biden administration’s rule, Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights. The DOL informed the Fifth Circuit that under new leadership, the agency intends to reconsider the challenged rule, including whether to rescind it. The Fifth Circuit granted the motion for 30 days only, noting that the Court “will not permit an open ended abeyance.” You can read more details about the rule and the initial lawsuit in our October 2023 ESG Newsletter.

Australia

Greenwashing penalties issued

Two regulators have recently had success in having penalties imposed for conduct amounting to greenwashing.

In our September 2024 ESG bulletin, we provided an update on the commencement of a proceeding by the Australian Competition and Consumer Commission (the “ACCC”) against Clorox Australia Pty Limited (“Clorox”) in the Federal Court of Australia, for alleged greenwashing. On 7 February 2025, Clorox accepted an A$8.25 million penalty, having admitted that it misled consumers into believing that kitchen and garbage bags marketed as containing “50% Ocean Plastic Recycled” were made using plastic retrieved from the ocean, when in fact those products were made using recycled plastic collected in Indonesia, situated up to 50 kilometres inland.

On 18 March 2025, the Federal Court imposed a penalty of A$10.5 million on the trustee of a superannuation fund (the “Trustee”) for greenwashing misconduct, in proceedings brought by the Australian Securities and Investments Commission. The penalty hearing followed findings at trial that the Trustee had made false or misleading representations and engaged in misleading conduct, by claiming in its marketing that the fund had eliminated certain investments through a process of ESG investment screening. In fact, it continued to hold such investments, directly and indirectly.

Greenwashing trial to commence

Another greenwashing claim has settled, in this case on the eve of trial. The claim was brought by a climate advocacy group, Australian Parents for Climate Action, against EnergyAustralia, an energy generator and retailer. The applicant alleged that EnergyAustralia engaged in misleading or deceptive conduct, by representing that its “Go Neutral” branded products were “carbon neutral” and would have a positive impact on the environment, and that associated emissions would be cancelled out. Key to the applicant's claim was EnergyAustralia's reliance on offsets (and specifically avoidance and removal credits).

As part of the settlement, EnergyAustralia has released a statement in which it acknowledged that “carbon offsetting is not the most effective way to assist customers to reduce their emissions” and apologised “to any customer who felt that the way it marketed its Go Neutral products was unclear”. EnergyAustralia also acknowledged “while offsets can help people to invest in worthwhile projects that may reduce greenhouse gas emissions elsewhere, offsets do not prevent or undo the harms caused by burning fossil fuels for a customer’s energy use”.

Territory water plan challenged

In April 2025, Environment Centre NT (“ECNT”) commenced judicial review proceedings in the Supreme Court of the Northern Territory. The proceedings concern a 10-year water plan approved by the Government of the Northern Territory, which allows for up to 62,000 megalitres per year to be extracted from the Tindal Limestone Aquifer. The ECNT will argue that the Northern Territory’s Minister for Water Resources declared the plan in legal error, contending that the decision was not made following consideration of all relevant information and should be quashed. Traditional owners have been critical of the plan and the level of consultation that occurred in its development, raising concerns about the protection of significant river flows and springs, which are vital for some cultural activities.

Threatened species litigation commenced

On 3 March 2025, the Wilderness Society commenced proceedings in the Federal Court of Australia against the Environment Minister, alleging a failure on part of the Minister (and her predecessors) to comply with a duty under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the “EPBC Act”) to create recovery plans for certain threatened wildlife species. Ordinarily, such plans are required to be made within three years of the Minister's decision that a recovery plan is required. Orders are sought to compel the Minister to make recovery plans for 11 species named in the case.

Environmental protection legislation narrowed

On 26 March 2025, the Environment Minister's “reconsideration” power was limited by amendments to the EPBC Act. The effect of this was to restrict the Minister's power to reconsider decisions that a particular action is not a “controlled action” (which would be subject to a regime of environmental assessment and approval), where the action is being carried out in accordance with a state or territory management arrangement and has been ongoing or recurring for at least five years.

The amendments were prompted by requests by a number of environmental groups that the Minister reconsider her decision that certain salmon-farming actions, which have been said to imperil an endangered species (Maugean skate), were not controlled actions. The amendments now render those requests inutile.

Previously, environment groups have also used these requests to seek reconsideration of controlled action decisions for a large number of coal and gas projects in the Living Wonders litigation.

Article published in Nature on the “scientific case” for climate liability

In April 2025, climate scientists Dr Christopher Callahan and Dr Justin Mankin published an article in Nature, positing what they describe as the scientific case for climate liability. The article presents a methodology for attributing particularised harms to individual emitters, based on developments in attribution science and empirical climate economics. Callahan and Mankin illustrate their methodology by applying it to economic losses attributable to extreme heat. They argue that billions, if not trillions, of dollars of loss can be attributed to the emissions of particular emitters.

Attribution has been the subject of several climate change-related claims. In Australia, for example, that question is before the Federal Court in the case of Pabai v Commonwealth (see our May 2024 ESG bulletin). The Court has reserved its judgment in those proceedings, following a trial in May 2024.

South Africa

Urgent application brings illegal mining to the surface

Illegal mining in South Africa remains a complex issue with ongoing repercussions for all stakeholders.

Alleged illegal miners at the Buffelsfontein Gold Mine in Stilfontein (abandoned by legal mining companies) were trapped underground for up to three months, after the South African Police Service launched Operation Vala Umgodi. The Operation saw a coordinated initiative, aimed at combatting illegal mining and associated crimes, limit the flow of food and other goods to miners operating in the abandoned shafts.

Multiple urgent applications seeking to compel the government to provide humanitarian aid and initiate rescue operations were heard in the Pretoria High Court. In December 2024, the High Court granted an interim order to the non-governmental organisation Lawyers for Human Rights, allowing community members and charitable organisations to provide food and water to the trapped miners. On 10 January 2025, the High Court granted a further urgent order, instructing the government to use mining rescue services to help the illegal miners resurface. Despite the rescue of 246 individuals, at least 78 people lost their lives, many due to starvation.

The intervention of the High Court ultimately confirmed (i) the right to life of these miners, in line with Section 11 of South Africa’s Constitution; and (ii) the duty of the government to protect this right by implementing the rescue despite the fact that these miners were operating illegally.

The events at Stilfontein have exposed the need for increased regulation of artisanal mining, as well as greater accountability for mining companies and the Government to fulfil their rehabilitation obligations and close disused mine shafts.

The Draft Mineral Resources Development Bill 2025 (the “Bill”), gazetted on 20 May 2025, seeks to formally introduce the concept of artisanal mining to legislation and to increase the regulation of small-scale mining operations. While the Bill has not yet been introduced to Parliament, it does appear that stakeholder concerns around illegal mining are beginning to be addressed in the legislative framework.

Supreme Court of Appeal Upholds Constitutional Duty to Regulate Air Pollution in Landmark Deadly Air Appeal

On 11 April 2025, the Supreme Court of Appeal (the “SCA”) dismissed an appeal of the 2022 landmark High Court judgment, known as “the Deadly Air case”. The case was launched in 2019 by two organisations – groundWork and the Vukani Environmental Justice Movement (VEM) – against the then Minister of Environmental Affairs. The applicants sought legal relief for the Minister's failure to promulgate necessary regulations to implement the Highveld Air Quality Management Plan, which aims to improve the extremely poor air quality in the Highveld Priority Area.

In May 2021, the Pretoria High Court ruled in favour of the applicants, confirming that the government's failure to publish regulations violated section 24 of the Constitution. The Minister of Forestry, Fisheries and the Environment (the “Minister”) subsequently appealed to the SCA on a technical point related to the wording of Section 20 of the Air Quality Act 39 of 2004 (“Section 20”). The appeal focused on whether Section 20 imposes a mandatory obligation on the Minister to make regulations necessary for the implementation and enforcement of approved priority area air quality management plans.

Two days before the SCA appeal hearing, the current Minister, Dion George, published the necessary regulations. Despite this, the SCA determined that the matter was not moot as the legal point was of public importance with future implications. They held that Section 20 grants ministerial discretion and creates a legal duty to publish regulations; therefore, the necessity to publish regulations was established both in law and objectively.