Deepen understanding of climate litigation against private sector actors, Catherine Highham and Honor Kerry analyze climate cases filed in 2021 against companies from different sectors and consider what the future holds. They find that while fossil fuel companies remain the primary target of activist litigation, climate litigants are now casting their nets more broadly.
|This article is part of a series from LSE’s Grantham Research Institute on climate change and the environment (visit website).|
Last month, the Intergovernmental Panel on Climate Change (IPCC) recognized for the first time the important role played by the climate [change] litigation plays by influencing “the outcome and ambition of climate governance”. When it comes to climate litigation and the private sector, many (but not all) of the comment to date tended to focus on business against a handful of companies known collectively as “Carbon Majors‘ – these being doubled ‘the Holy Grail‘ climate disputes. Given the historical, current and future contributions of these companies to emissions, these cases deserve attention. But analysis by the Grantham Research Institute suggests that climate change litigation against private actors is beginning to become increasingly diverse in terms of targeted sectors – although the diversity is still far from well understood.
High profile cases against companies involved in food, transportation and finance have all made mainstream headlines in recent months. Specialized publications – for example for the automobile industry – are starting to publish articles about how litigation could shape the future of their industries. However, there is still little understanding of how the big picture of corporate climate litigation fits together.
This commentary takes a closer look at climate cases filed against companies in 2021 to fill in some of the gaps, building on the Database of Global Climate Change Laws and the United States Climate Case Chart.
Business case in 2021: Fossil fuel companies still top the list
Of the 193 cases identified as being filed in calendar year 2021, 38 were filed against private sector actors (often in association with government actors). This represents a sharp increase from 2020, when only 22 complaints were filed against companies. Everything but a of these cases have been filed in the United States, Australia and Europe.
Not surprisingly, fossil fuel companies were the most frequent defendants (Figure 1). The litigants challenged the companies on the basis of: misleading claims that they produce clean energy; proposed investment in carbon-intensive projects; no respect climate change and relevant environmental regulations; and inability to reduce carbon dioxide emission. Cases included allegations that companies had withheld information about their contribution to climate change, and attempts hold businesses accountable for the effects of climate change. Of the 16 cases filed against companies in this sector, more than nine were brought against one or more of the carbon majors, continuing the well-documented trend of previous years.
Figure 1. Cases filed against companies in 2021 by sector
To note: This chart details the different sectors involved in the 38 climate change lawsuits we identified as having been filed against companies in 2021.
Interestingly, although the majority of cases against the carbon majors have historically been filed in the United States, there was an approximate equal split of cases filed in 2021 between the United States and other countries (Figure 2).
Figure 2. Case of Carbon Majors over time
More and more cases against the food and agriculture sector and against plastics companies
Following cases filed against fossil fuel companies, companies in the food and agriculture and plastics sectors were the most common, with five cases relating to each of these sectors filed in 2021.
Cases in food and agriculture include Envol Vert et al c. Casino, alleging that the involvement of the French supermarket chain Casino in the beef industry in Brazil and Colombia violates French duty of vigilance law. Also in this category is a challenge to the claims of the Danish Crown pork producer on the “ecological” character of its pork, and three case filed against oatmeal beverage company Oatly, alleging the company engaged in “greenwashing”.
The importance of the agricultural sector is perhaps not surprising: climate disputes have often been used as a “filler‘ where climate action is lacking. Despite the major contribution to global greenhouse gas emissions from agriculture and land use, action in this important sector has been limited to date. the IPCC Climate change 2022 report (Summary for Policymakers) identified that in 2019, around 22% of total net anthropogenic emissions came from agriculture, forestry and other land uses, but that this sector had the largest mitigation investment gap. Given this persistent investment shortfall, we expect litigation in this area to continue to grow.
In the plastics industry, Last Beach Cleanup vs. TerraCycle, Inc.. challenged how single-use plastics and other hard-to-recycle materials were marketed as “recyclable”. Claims about biodegradable plastic have also been challenged in Rosencrants vs. Danimer Scientific, Inc.. and in a shareholder derivative action against the same company. Coca-Cola has twice been named as a defendant in plastics cases, first regarding its statements that it is a “sustainable and environmentally friendly company” despite its plastic footprint, and second regarding its claims about the recyclability of its plastic bottles.
Two other sectors to note: transport and finance
Four applications were filed in 2021 in the transport sector. Deutsche Umwelthilfe (DUH), a German environmental and consumer protection association, has sued BMW and Mercedes-Benzrelying in both cases on the earlier decision of the German Federal Constitutional Court in Neubauer v. Germanyin which he determined that the country has a limited total CO2 budget remaining at its disposal. DUH says that by not making a clear and irreversible commitment to phase out the sale of internal combustion engine cars by 2030, which it says is necessary for companies to meet their allocated carbon budgets, BMW and Mercedes-Benz are violating the fundamental right to climate protection and infringing on the rights and freedoms of future generations. A Case was also brought against Volkswagen by three young activists associated with Greenpeace and Fridays for Freedom Germany on similar grounds.
In the financial sector, three complaints were filed against private actors last year. These were a complaint filed with the Australian Advertising Standards Authority against HSBC challenging misleading claims about Great Barrier Reef protections, a Case requesting the disclosure of climate-related information from the Commonwealth Bank of Australia, and a Case against the trustees of the UK’s largest private pension fund, arguing that the fund had been mismanaged, in part due to overexposure to fossil fuels. These cases should also be read in the context of cases against public financial institutions, which have become an important area of focus for climate litigants seeking broad systemic change by raising the cost of capital for high-emitting activities ( to see Solana, 2021). These cases reflect the wider global attention to the central role of finance and the financial industry in the transition to a low-carbon economy, particularly in the wake of key industry announcements at COP26 last November.
What’s next for climate litigation against the private sector?
Last year saw the highest number of climate cases registered against companies. Litigants increasingly seem to be making the connection between ongoing public debates about the contribution that individuals’ consumption and lifestyle choices can make to reducing emissions and widespread concern that industry misinformation and inaction can prevent such choices from making a real difference. Although it is difficult to predict future trends with certainty, the increase in litigation against agricultural companies may suggest that other high-emitting sectors, such as textiles and shipping, could be the next targets for litigants. .