Climate change litigation has been making waves, with companies and states facing legal challenges related to their environmental impact. Climate activists try to enforce their right to climate protection and a sustainable future through legal proceedings and are treading a fine line between environmental regulations, corporate responsibility, and inaction of their own states. Most companies are aware of these developments and do their best to balance business goals while enhancing sustainable practices.
Recent decision marks milestone
The latest much publicised decision of the
The case concerned a complaint by four women (all over the age of 80) and "Verein KlimaSeniorinnen Schweiz", a Swiss association acting on behalf of its elderly members, who due to advanced age would be particularly at risk from climate change. They claimed that
While the court held that the four individuals had not sufficiently shown that they are personally and directly affected by governmental action or inaction (the ECHR can only deal cases after exhaustion of domestic remedies), the court found with respect to Verein KlimaSeniorinnen Schweiz that the
Are individuals or companies affected?
While the
In the Lliuya case, a Peruvian farmer filed a lawsuit against the energy company RWE before a German civil court on
In
Potential impact on Austrian companies
Currently, it is rather unlikely that claims against private companies before Austrian civil courts will ultimately be successful. As mentioned above, the Convention is binding for the contracting states but does not impose obligations on private companies.
While the recent ECHR decision could give activists more traction since it addresses the courts' failure to review the case on its merits violating Art 6 of the Convention and thereby requires courts to take responsibility, an individual cannot rely on the Convention to bring a claim against a private company. If an individual decides to bring an injunctive or compensation claim against another individuals or companies, she/he would have to rely on domestic (and EU) laws. With respect to non-contractual damages claims in
In the Lliuya case, the Higher Regional Court argued that even lawful actions can trigger compensation claims. The respective provision of the German Civil Code (Section 1004 BGB) on neighbouring law refers to interference with property. The Higher Regional Court recognised that cross-border effects of climate change have fostered a sense of global interconnectedness akin to neighbourly relations and by applying Section 1004 overturned the district court's initial dismissal of the claim, allowing it to proceed to evidentiary stage. Although the Austrian Civil Code (ABGB) contains a somewhat related provision on neighbouring law for emissions emanating from officially approved plants, that these plants have been approved by the competent authorities even though they generate emissions and their operation, as approved, cannot therefore be unlawful. Apart from the fact that the provision only gives rise to compensation claims to the extent that an emission is impermissible, it also must exceed the customary local level and impair customary local use of the property.
Nevertheless, climate change litigation in civil courts should not be underestimated. The recent success of Verein KlimaSeniorinnen Schweiz might encourage other climate activists. By exercising their rights, individuals potentially drive change and might also try to hold accountable those whom they perceive, rightly or not, as responsible for environmental harm. Even if a claim fails, extensive media coverage could potentially result in reputational damage.
While many companies have already recognised the significance of climate change and are well aware of the potential pitfalls of civil litigation waged in the name of climate change, the outcomes of court decisions are never easy to predict, the direction of activist movements even less so. Proactively addressing climate change certainly mitigates the legal risks and may prove decisive if a company faces with a climate change claim in civil court. What is more, it may contribute to a more sustainable future.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Ms
Schoenherr Attorneys at Law
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E-mail: L.Beukes@schoenherr.eu; J.Schuster@schoenherr.eu
URL: www.schoenherr.eu
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