In May 2021, the Dutch court of first instance in Milieudefensie v Royal Dutch Shell established a new private law obligation for a key carbon emitter: it must, through corporate policy, remove or prevent the serious risks of climate change.[1] In accordance with this obligation, Royal Dutch Shell – now renamed ‘Shell’ – was issued a watershed court order to reduce its emissions by 45% by 2030. Shell has launched a pending appeal of Milieudefensie,[2] and its directors recently faced an unsuccessful lawsuit for failing to ensure compliance with the Dutch order.[3]
Three years on, it is ripe to consider what effect Milieudefensie has had on the global climate litigation scene. Around the world, the legal pursuit for climate accountability has gained momentum,[4] even as the world veers off course from the ambitious Paris Agreement targets.[5] This case note will analyse the relevance of Milieudefensie to the English climate litigation scene, and illuminate some realities and challenges of pursuing climate justice under the English tort of negligence.
While the English doctrine of negligence may theoretically accommodate a Milieudefensie-like negligence liability, it is submitted that the scope of such an obligation is constrained by three structural limits on the development of English common law: the need to preserve the self-limiting nature of tort doctrine, precedent, and the constitutional role of the courts. As such, although Milieudefensie is politically significant as the first major ruling against a carbon-emitting company, it does not open the gates for similar rulings to be passed elsewhere, especially in common law systems where judges’ latitude to legislate is limited.
I. Relevance of analysing companies’ liability for causing climate change under the tort of negligence
In the absence of statutory obligations, the most direct way for private companies to be held accountable for contributing to climate change will likely be via tort law.[6] Alternative areas of law like public, international and contract law may not as readily provide the grounds for a suit against a private company. The UK’s human rights framework and international agreements, like the Paris Agreement, do not impose legal obligations on non-state actors.[7] Public law grounds used to challenge environmental assessments behind government approvals of projects with significant environmental impacts are not applicable in private law,[8] and contracts are rarely present between victims and contributors of climate change. Moreover, tort law has intuitive appeal as an avenue to correct wrongs done against aggrieved individuals, [9] such as climate change victims.
This essay aims to analyse the feasibility of establishing corporate liability in negligence for causing climate change, for the purpose of achieving ‘prospective’ remedies. These remedies typically take the form of declarations or injunctions which indicate what actions climate change-contributors should take now or into the future. Such cases, therefore, often scrutinise ongoing or proposed corporate plans.[10] Milieudefensie addressed a claim seeking to impose this sort of liability, but English courts have yet to do so.[11] In comparison to its Dutch counterpart, English tort poses additional doctrinal hurdles – such as the requirement of proximity – to finding Milieudefensie-like negligence liability. However, these doctrinal requirements need not preclude a similar finding under English law: firstly, a climate change-contributor’s duty of care to prevent climate change could still arise (Section II); secondly, climate change could constitute actionable damage (Section III). Beyond doctrine, structural and substantive institutional and policy constraints likely constitute more immediate hurdles to establishing a Milieudefensie-like negligence liability (Section IV). Therefore, climate justice in the UK is likely best catalysed through synergies with non-judicial stakeholders.
II. First area where doctrines diverge: Legal framework for establishing a duty of care to prevent climate change
To establish a novel tort of negligence against companies that produce climate change-causing emissions, the English courts’ starting point would be to identify the companies’ duty of care to prevent climate change.[12] The corresponding Dutch duty will be referred to as an ‘obligation’, as described in Milieudefensie, given its separate nature from English duties of care.
Dutch and English tort law take different approaches to identifying a novel duty of care.The Dutch court in Milieudefensie did so by interpreting a Dutch Civil Code provision which allows courts to establish a private law cause of action that already exists as an ‘unwritten standard of care’ – that is, what is generally accepted to be unlawful in unwritten law.[13] The court listed fourteen elements to support its interpretation. Meanwhile, English judges would establish a novel duty of care with reference to the three-limbed Caparo test.[14] The test provides that the novel duty of care must stand in relation to a ‘reasonably foreseeable harm’, must be owed between parties with a ‘sufficiently proximate relationship’ and must be ‘fair, just and reasonable’ to establish.[15]
By comparing the fourteen substantive elements considered by the Dutch court with the Caparo test’s requirements, we can identify several areas where Milieudefensie’s reasoning seems to fall short of English doctrinal requirements for establishing a duty of care. The Dutch court ostensibly considered that Shell’s emissions would produce ‘reasonably foreseeable harm’ since they recognised that Shell’s climate change contributions create risks of serious climate change which would threaten Dutch residents (under elements 2-3).[16] English courts would likely concur that the ‘reasonable foreseeability’ condition[17] is fulfilled: given the prevailing scientific consensus,[18] a reasonable person in Shell’s position would not perceive climate change to be a far-fetched result of its corporate policy.
However, the Dutch court’s reasoning may fall short of fulfilling the second and third limbs of the Caparo test. The court characterised companies’ ‘individual responsibility’ to reduce emissions as an ‘imperative’ social responsibility, without explicitly discussing the proximity of relationship between climate change contributors and victims.[19] Moreover, even though the Dutch court weighed the pros and cons of imposing the duty of care in order to determine if it was ‘fair, just and reasonable’ — a superficially similar approach to that taken by English courts–[20] its reasoning interpreted this requirement less restrictively and accorded greater legal significance to scientific evidence than English courts.
II(A): The ‘proximity’ condition: When can a tort-worthy relationship arise between climate change contributor and victim?
In analysing whether a carbon-emitting company could be negligently liable under English tort towards a claimant who has suffered adverse climate change impacts, this essay will draw on observations made in Smith v Fonterra, a 2021 New Zealand case involving seven small-scale carbon emitters.[21] Smith, a developing case,[22] is a leading common law litigation case against companies contributing to climate change;[23] English courts have not yet judged a case seeking to establish corporate rather than director-specific duties to mitigate climate change.[24]
Judges in Smith observed that a Milieudefensie-like tort obligation may struggle to be justified by a ‘sufficiently proximate relationship’, the second requirement of the Caparo test. The idea of proximity, characterised by the notion of a limit to the scope of an interpersonal relationship, is at odds with a scenario where ‘every person… is (to varying degrees) both responsible for causing the relevant harm, and the victim of that harm’.[25] If one’s participation in a carbon-intensive economy indirectly causes carbon emissions and this were an actionable tort, everyone who fails to achieve net-zero emissions would be negligently liable.[26] This strains the doctrinal coherence of the tort of negligence, whose conceptual roots spring from the idea that one owes his ‘neighbour’ a duty of care, and only because that type of proximate relationship implies a duty of care should exist.[27] Expanding the idea of a ‘neighbour’ to encompass everyone in the world would reduce the idea to mere rhetoric. Moreover, common law judges have considered it unjust for a single contributor to potentially owe indeterminate liability to indeterminate classes of people, no matter how normatively responsible they may be for the harm.[28]
However, on a deeper understanding of the role of the proximity condition in the Caparo test, the above concerns may be best understood as representing a factual difficulty unique to Smith. ‘Proximity’ serves as a label for the normatively significant ‘directness’ of the link between the defendant’s fault or breach of duty – a question of fact – and the claimant’s damage.[29] In other words, the ‘proximity’ condition is needed to establish a pre-existing relationship within which the fault of one party can lead to liability for damage suffered by the other party. A liability-warranting relationship may arise from physical, temporal, causal or relational proximity.[30] The judges simply found this nexus to be absent in Smith: there was a lack of ‘principled basis for singling out the seven defendants’ given their unremarkable level of emissions.[31] There lacked a sufficiently normatively significant link between the companies’ emitting activities and the claimant’s damage to justify negligence liability.
Thus, a first necessary question for establishing proximity is whether the facts support a nexus of causal proximity. For example, does the producer release such a large extent of emissions that it poses an obvious risk of harm to the claimant?[32] The German case of Lliuya[33] illustrated how attribution science, which models the impact of emissions on climate change,[34] allows us to determine if a company has produced emissions beyond a significant threshold of risk, warranting causal proximity. Having shown a German energy company was responsible for a sufficiently consequential 0.47% of historical greenhouse gas emissions, a Peruvian farmer whose house was threatened by glacial melt successfully sued it for proportional damages. Conversely, in KlimaSeniorinnen, the individual applicants suing the Swiss government did not meet the threshold to be climate change victims. This is because the elderly women affected by heatwaves had not been subjected to such a high intensity of adverse climate change effects that it was sufficiently pressing to give them legal protection as individual ‘victims’.[35] Calibrating proximity based on the extent of harm caused – that is, proportional to emissions produced – can serve as factor that limits the imposition of a duty of care on producers, in line with the self-limiting nature of the ‘proximity’ concept. Moreover, this also has instrumental value by incentivising emitters to lower emissions. This would spur ‘normative progress’, especially since lower-cost mitigation pathways insufficiently incentivise the necessary emission reductions.[36]
Even if courts can calibrate climate change contributors’ extent of fault using attribution science to identify a threshold emissions level that brings contributors into a sufficiently proximate relationship with victims, there is a second, more fundamental question of law to be answered to satisfy the ‘proximity’ requirement: why should the relationship between climate change impacts and harm suffered by victims be normatively ‘direct’ enough to warrant negligence liability? Phrased differently, what extent of protection should be extended to protect climate change victims’ interests, given that companies’ discretion to balance business against environmental interests is statutorily protected?[37] As will be discussed in section II(B) and summarised in Section IV, the interplay of statute and principle makes proximity much trickier to justify than in cases like Donoghue where the interest of consumer protection advanced by the judgment did not have to compete against contrary public policy.
II(B): The ‘fair, just and reasonable’ condition: How can a balance be struck between future goals and present policy?
Before moving on to analyse how the Dutch and English courts determine whether it is ‘fair, just and reasonable’ to establish a duty of care, we can note that there is no established category of duties of care that is satisfactorily applicable to the context of corporate responsibility for causing climate change. Negligence claims in Vedanta and Okpabi addressed duties of care not to cause localised environmental harm to a specific community,[38] rather than harm to global victims of climate change. Moreover, there is no established argument that climate change-causing companies assume responsibility for victims owing to the business-consumer relationship.[39]
The Milieudefensie court justified their emissions-reduction obligation via reference to human rights and ‘soft’ law guidance: element 4 noted that climate change threatened Dutch people’s rights under the European Convention on Human Rights (ECHR), and elements 5-8 considered how sources of ‘soft law’ like the Paris Agreement demonstrated international consensus that companies should bear responsibility for emissions.[40] In this way, the Dutch court adopted the desired course of climate action as the principal yardstick for the ‘fairness’ or ‘reasonableness’ of a proposed climate action: it even argued that if a climate actor simply went along with society’s current pace of insufficient climate mitigation and let others pioneer the needed change, the actor would be unlawfully disregarding an individual responsibility.[41]
English courts may also raise these factors in support of an interpretation of what is a ‘fair, just and reasonable’ duty to impose, but they will likely be inconclusive. As noted in Okpabi, international standards are an ‘unobjectionable’ but ‘doubtful foundation’ for a duty of care.[42] Separately, business activities’ human rights impacts are unlikely to justify a duty of care since the activities of private actors cannot be scrutinised for compliance with ECHR rights.[43]
Lord Sales observes that Caparo’s third limb, unlike the former two limbs, most directly requires courts to assess if public policy supports the imposition of an obligation.[44] Public policy must be considered in identifying a new duty of care because it affects the legitimacy of the quasi-legislative imposition of an obligation.[45] Public policy is also an essential descriptor of the ‘changing circumstances of life’ which the development of duties of care should reflect.[46] Where duties of care arise in relation to positive acts carried out in the course of statute-governed activities, the fairness of establishing such a duty depends on whether the statute excludes liability for such acts.[47] Thus, in the climate litigation context, the feasibility of establishing duties of care depends on whether current statutory schemes grant public and private authorities a decision-making flexibility that precludes tort liability for those decisions.
A brief overview of the UK’s current statutory regime suggests public policy would answer that question affirmatively. Firstly, there is no explicit duty on companies to mitigate climate change: The Climate Change Act only requires the government to set policies to meet legally binding ‘carbon budgets’.[48] Secondly, as clarified in ClientEarth v Shell, directors’ duties to properly exercise their powers of discretion under the Company Act 2006 cannot extend to create a duty of care to advance climate change-mitigating corporate policies. The act was meant to protect directors’ discretion to balance decision-making factors like environmental and commercial objectives.[49] On the contrary, the Dutch court affirmed that the interests served by recognising the emission-reduction obligation outweighed conflicting commercial interests.[50] Thirdly, the complex, multi-stakeholder nature of climate change policy and Parliament’s unwillingness to legislate on it could be taken to discourage courts, limited in their law-making capacity by Parliament’s legislative supremacy, from developing the law according to their judgement of public policy.[51] However, as in Okpabi, this does not prevent common law principles from applying to the case.[52] Without alternate legal remedies for climate change damages, like a loss and damage fund, pressure for the common law to ‘develop to reflect current social standards’ remains.[53] Yet, the fairness, justness and reasonableness of quasi-legislative climate-progressive tort liability expansion is hindered by a lack of statutory support.
Some cross-jurisdictional jurisprudential differences may constitute hurdles to the English courts’ acceptance of a Milieudefensie-like obligation, but these differences are not necessarily determinative. Firstly, the Dutch openness to applying international law in domestic courts allowed the court in Milieudefensie to recognise that ‘soft law’ can apply universally ‘over and above’ national law which might protect commercial interests.[54][55] Meanwhile, non-domestic law has mere persuasive value within the UK’s dualist legal system.[56] However, the international law applied in Milieudefensie was merely one among many factors which justified the court’s decision. Secondly, common law legal systems are traditionally perceived to provide judges with more room to adapt to novel situations than civil law counterparts, whose role is limited to applying a pre-determined body of civil code requirements and regulations.[57] Yet this assumption does not help explain the greater receptivity of the civil law courts to a Milieudefensie-like obligation. Moreover, with the rise of statutes constraining the legislative status quo within which the common law operates,[58] this traditional assumption may warrant re-examination. Thirdly, despite duty of care analysis not being a doctrinal requirement in Dutch law, academics have argued that the substance of a duty of care may equally be found in other elements of negligence like causation, remoteness, damages and defences, which civil law courts could well consider.[59]
Thus, the UK’s climate change public policy – constrained by company law and public law which statutorily protects the decision-making discretion of non-state climate change contributors-[60] is likely a more significant constraint on the UK courts’ receptivity to a Milieudefensie-like claim than the perceived restrictiveness of English tort doctrine. Friends of the Earth v UK Trade Export, which affirmed that the Paris Agreement was more than a ‘package of aims and aspirations’ incapable of giving rise to legal obligations,[61] nevertheless held that the imposition of a duty of care ultimately turned on whether it was for the court to allocate weight between competing decision-making factors considered by policymakers.[62] In other words, an assessment of ‘fairness’ in Caparo’s third limb from a top-down emissions target-achievement perspective would not only be too ‘utopian’ and unrealistic for the court’s liking,[63] but would also be inconclusive.
II(C): Legal weight of scientific evidence: Recognising the common law court’s role
Given the technical subject matter of a Milieudefensie-like duty of care – emissions – the courts’ perceptions of their ability to make rulings based on scientific evidence also influences their evaluation of reasonableness under Caparo’s third limb.
The Dutch court modelled Shell’s reduction obligation based on emission-reduction pathways which demonstrate ways to reach scientifically-determined emission targets.[64] On the other hand, English courts have shown reluctance to apply scientific advice in interpreting what would be ‘fair, just and reasonable’ to impose as the standard for satisfactorily discharging an established legal duty, let alone for identifying an entirely new duty of care. In R (Richards), the Court of Appeal held that the lower court’s order for the UK Environment Agency to lower hydrogen sulphide emissions to a certain scientifically advised level constituted judicial overreach.[65] Prescribing the acceptable level of emissions elevated scientific evidence to a legally binding standard, whereas it was appropriate to leave the specialist agency to exercise discretion over its target output, based on changeable scientific advice.
The English courts’ demarcation of factual evidence as mere persuasive authority reflects their aversion to policy-like goal-setting. As recognised in Smith, a regulatory regime is best suited to address the complex, multi-stakeholder nature of climate change issues. The design and operation of a regulatory regime, with its significant ‘social, economic and distributional implications’,[66] requires ‘institutional expertise, democratic participation and democratic accountability that cannot be achieved through a court process’.[67] This suggests the government should be left to set emissions targets for companies. Yet, the court in Milieudefensie affirmed that even if the government may be better than the courts at regulating climate change contributors, courts must still enforce companies’ independently existing legal obligation.[68] Indeed, if corporations owe a duty of care to mitigate climate change, the inability of courts to set regulation does not lessen the need to enforce that legal duty. Therefore, even if English courts may not engage in regulatory design by establishing obligations incorporating scientific targets like in Milieudefensie, common law principles may provide for a less prescriptive obligation, as will be discussed in Section IV.
III. Second area where doctrines diverge: The damage that warrants legal sanction
The traditional position of English law is that remedies under negligence respond to suffered harms.As Lady Hale famously articulated, ‘damage is the gist of negligence… it can never be enough to show that the defendant has been negligent… The question is still whether his negligence has caused actionable damage’.[69] The idea of damage itself connotes actionability as it provides the ‘interference with a person’s protected interests’ [70] which lies at the core of negligence liability.[71] The unrealised nature of harms caused by emissions – like the future harm to Dutch citizens identified in Milieudefensie – might appear to be unactionable. Yet where the environmental harm has already started, such a harm may be characterised as direct environmental harm instead of the company’s failure to prospectively mitigate climate change. Unlike in R (Richards), where a declaration of the Environmental Agency’s prospective duty pre-empted a breach,[72] fault may arise from the direct environmental harm described in Section II.
IV. Scoping Direct Corporate Liability for Climate Change
Hitherto, we have seen how the doctrinal requirements of English tort serve to limit the application of the doctrine, thereby mitigating dangers of unlimited liability and uncertainty in the law. Additionally, mandatory compliance with precedent and existing public policy ensures that the courts develop law in accordance with their constitutional role. By summarising the key tensions between the establishment of a Milieudefensie-like obligation and the fulfilment of these aims, we can illuminate some challenges and opportunities for overcoming them.
IV(A): Need to preserve self-limiting doctrine of negligence
In II(A) and III, we explored how relevant evidence like the extent of the contributor’s emissions – quantifiable by new technologies like attribution science – and the existence of suffered harm can help determine if, on the facts, contributors’ actions bring them into sufficient proximity with climate change sufferers for a duty of care to arise. The concern, discussed in II(C), that judges lack technical capability to define a sufficiently proximate contributor-victim relationship is not as significant a hurdle to identifying a duty of care as it may seem, since judges typically do not determine the existence of a liability-warranting interference with protected interests by prescribing a factual threshold. The justificatory framework for ‘proximity’ is instead impressionistic,[73] as it serves to reconcile, in a principled way, the conflicting threats to individual rights and community interests arising in both directions from adverse climate change effects and the limiting of companies’ discretion. Yet, fundamentally, the question as to whether there should be a duty of care for climate change contributors to mitigate serious risks of climate change remains a legal question for the courts, beyond a factual determination. If application of the doctrinal neighbour principle underdetermines whether a duty of care should be recognised, judges cannot proceed merely by justifying that it is ‘fair, just and reasonable’ to do so.[74]
IV(B): Need to respect current precedent
English judgments, unlike civil law Dutch judgments, set binding precedent. The fact that Milieudefensie was decided in a court of first instance may suggest the court faced less pressure to make a strictly orthodox ruling, knowing it could be overruled with no necessary effect on the binding Dutch legal corpus.[75] On the other hand, English court judgments always set precedent until overruled. Current precedent in English common law, like R (Richards),[76] speaks for giving climate actors discretion to determine their optimal course of action, rather than have the law specify desired outcomes. As such, barring legislation to the contrary, judges may find it challenging to formulate prescriptive prospective remedies. This leaves climate actors substantial agency in designing their sustainability transitions. Therefore, the responsibilities that companies assume to mitigate climate change, perhaps incentivised by developing sustainability disclosure standards,[77] will be significant given the limited amount of responsibility which a court can impose.
IV(C): Need to avoid overstepping judicial role
In deciding tort of negligence cases, English judges will have to stick to their constitutional warrant of righting wrongs instead of legislating for the wider interest. Therefore, climate justice through the tort of negligence will more likely succeed where the remedy can clearly address a localised wrong. Apart from compensatory damages, the court may award equitable remedies like injunctions and ‘conventional sums’.[78] However, more powerful prescriptive remedies, like the Milieudefensie court order, may suggest an inappropriate intrusion of the courts into the regulatory sphere.[79] Nonetheless, one may hope the threat of costly legal action and sanction may incentivise companies to pursue climate change mitigation.
VI. Conclusion
This analysis shows that English tort’s doctrinal framework poses greater hurdles to the imposition of a Milieudefensie-type negligence liability than Dutch tort, but also that these hurdles are not insurmountable. Precedent and climate change-related public policy operate as more significant constraints on the reasoning which the English courts may use to formulate obligations and remedies in response to corporate actions contributing to climate change. It is thus unlikely for an English court to support emission-reduction obligations which apply to contributors big and small, or describe specific emissions targets with prescriptive effect. Yet, if a case targets a large enough climate change-contributor, or if it can draw on policies providing a justificatory framework for determining the status of climate change victim, courts may be assisted in translating advocacy for preventative action into enforceable prospective obligations, albeit in an incremental and local manner.
Given today’s globalised legal context with judges obtaining ‘inspiration’ from other jurisdictions’ rulings, one might be tempted to compare if different jurisdictions’ courts provide equally normatively acceptable answers to the same legal question.[80] Yet, as Lord Goff opined in White v Jones, where the difficulty in accommodating a novel obligation arises from the lack of guidance from the ordinary law, the effect of a legal system’s special characteristics is not so much to preclude the availability of a remedy as to suggest that each system may choose different means for granting a remedy.[81] English courts, constrained in their reasoning by doctrinal principles, precedent, and their constitutional role, need not be seen as generating a normatively inferior response to the issue of upholding climate accountability on the part of companies. Recognising the courts’ limited latitude in developing the common law suggests that we turn our attention to alternative avenues of remedy. Whether or not the first ‘prospective’ climate litigation case reaches the English courts, they will be be only a small part of the English legal ecosystem which needs to act in concert to bring about climate justice — lawyers will help by raising creative legal arguments, regulators will need to provide the essential frameworks for climate accountability and companies must erect standards to ensure that their statutorily protected discretion to steward a sustainability transition is not abused.
[1] Stichting Milieudefensie a.o. v. Royal Dutch Shell, District Court of the Hague, 26 May 2021, ECLI:NL:RBDHA:2021:5337 (Milieudefensie v. Shell), English translation ECLI:NL:RBDHA:2021:5339 para 4.1.4.
[2] Sabin Center for Climate Change Law, ‘Milieudefensie et al. v. Royal Dutch Shell Plc.’ (Climate Change Litigation Databases, n.d.) <https://climatecasechart.com/non-us-case/milieudefensie-et-al-v-royal-dutch-shell-plc/> accessed 13 August 2023.
[3] ClientEarth v Shell Plc & Ors [2023] EWHC 1137 (Ch).
[4] Climate-related litigation is seeing more cases and increasingly diverse grounds of action than ever — from targeting project financing to those which target company directors’ exercise of personal responsibility. See for example Joana Setzer and Catherine Higham, ‘Global trends in climate change litigation: 2023 snapshot’ (Centre for Climate Change Economics and Policy, 2023) <https://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2023/06/Global_trends_in_climate_change_litigation_2023_snapshot.pdf> accessed 13 August 2023.
[5] United Nations Climate Change, ‘New Analysis of National Climate Plans: Insufficient Progress Made, COP28 Must Set Stage for Immediate Action’ (UN Climate Change News, 14 November 2023) <https://unfccc.int/news/new-analysis-of-national-climate-plans-insufficient-progress-made-cop28-must-set-stage-for-immediate> accessed 5 April 2024.
[6] Christopher Boyne and others, ‘Debevoise London Climate Change and ESG Litigation Series’ (Debevoise In Depth, 9 August 2023) <https://www.debevoise.com/-/media/files/insights/publications/2023/08/09_debevoise-london-climate-change-and-esg.pdf?rev=593ee540fc844c4889c0f9f5594fa3f5> accessed 13 August 2023.
[7] Romain Weikmans, Harro van Asselt and J Timmons Roberts, ‘Transparency requirements under the Paris Agreement and their (un)likely impact on strengthening the ambition of nationally determined contributions (NDCs)’ (2019) <https://unfccc.int/sites/default/files/resource/Weikmans%20van%20Asselt%20%20Roberts%20%282019%29%20Transparency.pdf> accessed 6 March 2024.
[8] Some examples include Bristol Airport Action Network Co-ordinating Committee v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 171 (Admin) and R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council and Ors [2022] EWCA Civ 187.
[9] Emmanuel Voyiakis, Private Law and the Value of Choice (Hart Publishing 2019) 9-10.
[10] On the other hand, ‘retrospective’ cases seek redress for the harm created by companies’ past actions, like ‘greenwashing’, environmental damage or failures to mitigate exposure to climate risks. See Setzer and Higham (n 4) 36.
[11] Boyne and others (n 6).
[12] Marc Rich & Co AG v Bishop Rock Marine Co Ltd (‘The Nicholas H’) [1996] AC 211.
[13] Milieudefensie (n 1) para 3.2.
[14] Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4.
[15] Caparo v Dickman [1990] 2 AC 605, 617-618.
[16] Milieudefensie (n 1) para 4.4.4 – 4.4.8.
[17] The Wagon Mound (No. 2) [1967] 1 AC 617. 643.
[18] Milieudefensie (n 1) para 2.3.5.
[19] Milieudefensie (n 1) para 4.4.52.
[20] The Nicholas H (n 12).
[21] Smith v Fonterra Co-Operative Group Ltd [2021] NZCA 552.
[22] In February 2024, on appeal, the New Zealand Supreme Court reversed the 2021 decision to pre-emptively strike out the claim. The case will now proceed to a full trial. See Smith v Fonterra Co-Operative Group Ltd [2024] NZSC 5.
[23] Sam Bookman, ‘Smith v Fonterra: A Common Law Climate Litigation Breakthrough’ (Climate Law, 12 February 2024) <https://blogs.law.columbia.edu/climatechange/2024/02/12/smith-v-fonterra-a-common-law-climate-litigation-breakthrough/> accessed 6 March 2024.
[24] See Boyne and others (n 6). The claim in ClientEarth v Shell (n 3), challenging Shell’s apparent non-compliance with the Dutch order, was based on UK statutory director duties under the Companies Act 2006 rather than a legal obligation against a company, as was the case in Milieudefensie. The statutory framework constrains the formulation of a directors’ duties in ways that are not necessarily determinative in the formulation of companies’ legal obligations. See Section II(B).
[25] Smith v Fonterra (n 21) [18].
[26] Smith v Fonterra (n 21) [18]- [19].
[27] Donoghue v Stevenson [1932] AC 562.
[28] Ultramares Corporation v Touche 174 N.E. 441 (1932).
[29] Donal Nolan, ‘Deconstructing the duty of care’ (2013) 129 Law Quarterly Review 559, 580; Adam Kramer, ‘Proximity as principles: Directness, community norms and the tort of negligence’ (2003) 11 Tort Law Review 70, 73.
[30] Smith v Fonterra (n 21) [101]- [103].
[31] Smith v Fonterra (n 21) [19].
[32] Stephanie Collins, ‘Climate obligations and social norms’ (2023) 22(2) Politics, Philosophy & Economics 103, 116.
[33] Luciano Lliuya v. RWE AG (2015) O 285/15. The claim relied on Section 1004 of the German Civil Code, which is a nuisance provision for protection against interference with property. The appeals court – the Higher Regional Court of Hamm – applied this section, which is typically applied in neighbourhood disputes, to climate change. It recognised that the cross-border nature of climate change has engendered a sort of transboundary neighbourly relationship, such that Section 1004 can apply.
[34] Isabella Kaminski, ‘How Scientists Are Helping Sue over Climate Change’ (2022) 6(5) The Lancet Planetary Health 386.
[35] Verein KlimaSeniorrinen Schweiz and others v Switzerland App no 53600/20 (ECtHR, 9 April 2024) [488], [533]. A claim raised by a separate applicant, the Verein KlimaSeniorrinen Schweiz association, succeeded on grounds that are unique to the application of Article 8 ECHR against a state. Article 8 creates a right of individuals to effective protection by the state ([544]) not analogous to an obligation owed by companies. The right against the state was qualified by factors uniquely arising from the position of states, who are involved in international agreements ([546]) and need to maintain procedural safeguards for citizens to assert their rights ([539], [553]). Moreover, the right limits states’ margin of appreciation in setting climate change aims and objectives ([549]) in a way that companies’ discretion cannot be limited in English law (see n 49).
[36] Laura Burgers, ‘An Apology Leading to Dystopia: Or, Why Fuelling Climate Change is Tortious’ (2022) 11(2) Transnational Environmental Law <https://www.cambridge.org/core/journals/transnational-environmental-law/article/an-apology-leading-to-dystopia-or-why-fuelling-climate-change-is-tortious/8D61BA7E5F6065FF3436EDA98252B0A7> accessed 19 September 2023.
[37] ClientEarth v Shell (n 3).
[38] Okpabi v Royal Dutch Shell Plc [2018] EWCA Civ 191; Lungowe v Vedanta Resources Plc [2017] EWCA Civ 1528. The cases concerned causers of an oil leak and toxic emissions producers respectively.
[39] See the approach to establishing assumption of responsibility in Michael v Chief Constable of South Wales Police [2015] UKSC 2; especially [100], [135]- [138].
[40] Elements 9-14 comprised counter-arguments rather than new arguments. See Milieudefensie (n 1) para 4.4.
[41] Milieudefensie (n 1) para 4.4.13.
[42] Okpabi (n 38) [131].
[43] Human Rights Act 1998, s 6.
[44] Philip Sales, ‘Exploring the Interface Between the Common Law of Tort and Statute Law’ (Annual Richard Davies Lecture For the Personal Injuries Bar Association, 29 November 2023) 3, <speech-231129.pdf (supremecourt.uk)> accessed 27 December 2023.
[45] ibid.
[46] Donoghue (n 27) 619.
[47] Robinson (n 14) [41].
[48] Climate Change Act 2008, s 4.
[49] ClientEarth v Shell (n 3). The judge in ClientEarth pointed out a critical constraint on the interpretation of directors’ duties in the Company Act at [28]. He found that ‘the well- established principle that it is for directors themselves to determine (acting in good faith) how best to promote the success of a company for the benefit of its members as a whole’ is ‘inconsistent’ with the claim that directors’ duties to manage the company’s climate risk (expressed as six specific duties at [22]) are the ‘logical consequence of the Board’s acceptance that climate risk is a serious risk to Shell’s business’.
[50] Milieudefensie (n 1) para 4.4.53.
[51] Michael (n 40) [130].
[52] Okpabi (n 38) [146] – [147].
[53] Sales (n 44) 9.
[54] Janneke Gerards and Joseph Fleuren, ‘The Netherlands’ in Janneke Gerards and Joseph Fleuren (eds), ‘Implementation of the European Convention on Human Rights and of the Judgments of the ECtHR in National Case-Law: A Comparative Analysis’ (Intersentia 2014).
[55] Milieudefensie (n 1) para 4.4.13 – 4.4.14.
[56] Patrick Butchard, ‘Principles of international law: a brief guide’, House of Commons Library Briefing Paper no. 9010 <https://researchbriefings.files.parliament.uk/documents/CBP-9010/CBP-9010.pdf> accessed 6 March 2024, 3-4.
[57] Jacob van de Velden and Justine Stefanelli, ‘The Effect in the European Community of Judgments in Civil and Commercial Matters: Recognition, Res Judicata and Abuse of Process’ (British Institute of International and Comparative Law, 2021) 5.
[58] See generally Guido Calabresi, ‘A Common Law for the Age of Statutes’ (Harvard University Press 1982).
[59] Nolan (n 29) 588.
[60] ClientEarth v Shell (n 3); HRA (n 43).
[61] R (on the application of Friends of the Earth Ltd) v Secretary of State for International Trade/UK Export Finance (UKEF) [2023] EWCA Civ 14 [44].
[62] ibid [50].
[63] Benoit Mayer, ‘Judicial Interpretation of Tort Law in Milieudefensie v. Shell: A Rejoinder’ (2022) 11 Transnational Environmental Law 433, 434.
[64] Milieudefensie (n 1) para 2.3.5.
[65] An advisory declaration might be granted, but only exceptionally and to public bodies only. See R (Richards) v Environment Agency [2022] EWCA Civ 26.
[66] Smith v Fonterra (n 21) [26].
[67] Smith v Fonterra (n 21) [24].
[68] Milieudefensie (n 1) para 4.4.13.
[69] Gregg v Scott [2005] UKHL 2 [217].
[70] James Goudkamp and Donal Nolan, Winfield and Jolowicz on Tort (20th edn, Sweet & Maxwell 2020) para 7-006.
[71] Nolan (n 29) 561.
[72] R (Richards) (n 65).
[73] Jane Stapleton, ‘Regulating Torts’, in Christine Parker and others (eds), Regulating Law (Oxford University Press 2004) 136.
[74] An inquiry into how a judgment should best structure a response to this question is beyond the scope of this case note. The proper rationale for tortious liability may vary depending on one’s assumptions as to whether, among other things, concepts like wrongdoing, the utility of imposing liability and the duty of care are relevant to the inquiry.
[75] Van de Velden and Stefanelli (n 57) 23.
[76] R (Richards) clarified that an order prescribing a factual outcome to the Environmental Agency entailed judicial overreach because setting a factual target was not the only way for the Agency to comply with the standards expected of it. See R (Richards) (n 65).
[77] Department for Business and Trade, ‘UK Sustainability Reporting Standards’ (gov.uk, 2 August 2023) <https://www.gov.uk/guidance/uk-sustainability-disclosure-standards> accessed 27 December 2023.
[78] Such as the award given in Rees to recognise the wrong attached to the claimants’ loss of reproductive opportunity. See Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52, [2004] 1 AC 309 [125].
[79] Smith v Fonterra (n 21).
[80] Elaine Mak, ‘Comparative Law before the Supreme Courts of the UK and the Netherlands: An Empirical and Comparative Analysis’, in Mads Andenas and Duncan Fairgrieve (eds), Courts and Comparative Law (Oxford University Press 2015) 418, 427.
[81] White v Jones [1995] 2 AC 207 [263]. Lord Goff considered the German position that a disappointed beneficiary may be entitled to claim damages from the testator’s negligent solicitor, under the principle known as ‘contract with protective effect for third parties’ ([255]), but recognised that the same effect need not be achieved in English law via orthodox contractual reasoning: [263].
Clarissa Wong
LLB (LSE) ’25 and Notes Editor of the LSE Law Review 2023-24, Notes Editor of the LSE Law Review Summer Boards 2023 and 2024. I would like to thank Prof. Emmanuel Voyiakis and Prof. Jacco Bomhoff from the London School of Economics and Political Science for their feedback on earlier drafts of this article. I am grateful to the editors and publications team at the LSE Law Review for their invaluable feedback and support.
An excellent comparative analysis of Milieudefensie within a common law framework. Thought-provoking discussion on company negligence in climate change emissions!