ENVIRONMENT: CLAIMANT: An Introduction to UK-wide

The following In-Depth Overview featured in Chambers UK 2024 and is awaiting update from the firm.

Claimant-side environmental law is a growing and innovative field of litigation. Environmental claims are being progressed on a number of different fronts, even as government action in the environmental sphere remains slow.

Judicial Review 

Much claimant-side environmental litigation takes place through judicial review of government decisions. For example, a centrepiece of the government’s environmental ambitions has been a pledge to achieve net zero carbon emissions by 2050. In July 2022, the government’s net zero strategy was subject to a successful judicial review action in the High Court brought by Friends of the Earth, ClientEarth, and the Good Law Project. The High Court found that the net zero strategy failed to comply with the requirements of the Climate Change Act 2008 because, in part, the strategy did not explain or quantify how it would result in the requisite carbon emissions reduction. The government accepted the High Court’s decision and issued a new net zero strategy in March 2023. The same three litigants have already announced plans to challenge this new net zero strategy, which they have claimed in pre-action correspondence is similarly non-compliant with the terms of the Climate Change Act.

Judicial review proceedings are also being utilised to challenge licensing decisions of the UK government and local authorities that allow for fossil fuel extraction or other environmentally harmful activities. In 2023, ongoing litigation includes Greenpeace attempting to undo the grant of licences for oil and gas drilling in the North Sea, Friends of the Earth challenging the government’s decision to grant permission for a new coal mine in Cumbria, and the Coal Action network challenging the UK and Welsh government’s role in granting a licence for a new coal mine in Wales. It can be expected that, going forward, most major licensing decisions surrounding fossil fuels will carry a significant likelihood of resulting in litigation.

International Environmental Litigation 

The use of UK courts to advocate for environmental harms caused by overseas subsidiaries of UK-based companies continues to develop. In 2022, the Court of Appeal rejected a strike out application in Municipio de Mariana v BHP Group (UK) Ltd. That litigation, brought by Pogust Goodhead, is on behalf of more than 700,000 victims of Brazil’s largest-ever dam disaster, making it the largest-ever group claim in England. In June 2023, the Supreme Court denied BHP’s appeal of the strike out ruling. A trial on liability is currently scheduled for October 2024.

The Mariana ruling follows from the Supreme Court’s 2019 judgment in Vedanta Resources PLC v Lungowe, a case brought by Leigh Day, in which the Supreme Court held that English courts had jurisdiction to hear a case brought on behalf of Zambian citizens who were injured by toxic waste from a Zambian copper mine that was owned by a subsidiary of an English company. The Supreme Court followed this up with its 2021 judgment in Okpabi v Royal Dutch Shell Plc, which similarly found that English courts could hear claims against a UK-based company for harms resulting from oil spills caused by one of its subsidiaries in Nigeria.

Together, these cases illustrate that the courts in England and Wales are increasingly open to addressing claims from victims of environmental disasters from around the world.

Environmental Litigation Using Consumer Law

Law firms and environmental groups continue to innovate with other legal mechanisms to achieve environmental goals. One notable trend is the use of traditional consumer protection laws for environmental ends.

A series of cases have been brought against car manufacturers for using unlawful “defeat devices” to trick regulators into approving their vehicles for sale on the basis that they complied with regulatory emissions standards during emissions tests even though the vehicles greatly exceeded those standards in real driving conditions. Instead of using more traditional environmental claims or statutes, these cases rely on claims of deceit, breach of contract, and breaches of various consumer laws such as the Consumer Credit Act 1974, Consumer Rights Act 2015, and Consumer Protection from Unfair Trading Regulations 2008.

One of those cases, against Volkswagen relating to one particular engine, settled in May 2022 on behalf of approximately 91,000 clients for GBP193 million, together with a separate contribution towards the claimants’ costs and other fees. The Volkswagen group litigation was led by a steering committee consisting of Slater and Gordon, Leigh Day, and Pogust Goodhead. The cases against other manufacturers (and against Volkswagen with respect to other engines) continue to proceed. A group litigation order was entered in May 2023 for a similar lawsuit against Mercedes and an initial trial date has been set for October 2024. More such orders (and trial dates) can be expected as these cases progress.

The use of traditional consumer law causes of action as a form of environmental litigation is also beginning to emerge as a means to combat “greenwashing”, meaning the use of false or misleading environmental claims for financial or reputational gain. The Competition & Markets Authority (CMA) has issued a “Green Claims Code” that sets forth standards for what sort of environmental claims companies can make. This is being backed up by action, with the CMA announcing in July 2022 that it is investigating environmental claims made by various fashion companies such as ASOS, Boohoo and Asda. Although the Green Claims Code has not yet translated into litigation, it provides a framework for bringing consumer claims against companies that are not living up to their environmental claims.

Conclusion  

Environmental litigation is an evolving area of law and is only going to take on greater prominence as environmental issues become more salient. We can expect an ever-increasing amount of environmental litigation, but also innovation in the types of claims that are advanced to achieve environmental goals.