Wireline Magazine Issue 50 - Spring 2021

“The growing use of class action lawsuits in the UK coupled with the European focus on invoking human rights in climate change-related claims suggests that a significant claim of this nature will be issued in the near future."

Wireline spoke with Mark Clarke, a partner in White & Case's Dispute Resolution team in London who co-heads the firm's Global Oil & Gas Disputes Group. Mark co-authored the report on climate change-related disputes, along with London-based counsel Tallat Hussain and associates Katherine Daley and Gwen Wackwitz. How has the landscape for global climate disputes changed since 2018? There has been a steady expansion of cases which have become increasingly more complex and sophisticated since the original damages-based climate change-related claims. Claimants now seek to rely on a variety of causes of action including nuisance, breach of climate legislation and guidance, and more recently, breaches of human rights. Significant procedural developments designed to foster the pragmatic use of legal remedies for climate change-related harms, coupled with these novel causes of action, continue to pave the way for an uptick in these complex disputes. Although US claims continue to face issues of justiciability, European claimants have had a number of high- profile wins where governments have been held accountable for breaching their commitments with respect to climate change. What is the general outlook for these kind of claims in the UK? Despite the worldwide increase in climate change related disputes, a significant action has yet to prevail in the UK.

Notably in early 2020, the Court of Appeal ruled that the UK Government had failed to take its climate change commitments under the 2016 Paris Agreement into account when assessing Heathrow’s expansion plan and, as a result, found that the Government’s recommended expansion plan to be unlawful. This decision was ultimately overruled by the Supreme Court in December 2020, but it remains a stark reminder that infrastructure projects could face legal claims if they do not properly account of their climate-impact, particularly in light of the UK Government’s target to achieve carbon neutrality by 2050. Furthermore, the growing use of class action lawsuits in the UK coupled with the European focus on invoking human rights in climate change-related claims suggests that a significant claim of this nature will be issued in the near future. If a successful claim of this nature is brought, this will undoubtedly set the precedent for countless further claims. Are the risks for oil, gas and energy companies different to those of other sectors, such as construction or heavy industry? Certainly – the nature of work conducted by these companies is often alleged to be directly responsible for climate change-related harms. In addition to the risk of claims focussed on breaches of climate legislation, regulation and guidance that all companies face, these industries are at real risk of substantive legal action based on human rights grounds.

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