Earth Day 2021: using the law for change

The brainchild of Senator Gaylord Nelson who, having long held concerns about the deteriorating environment in the US, was inspired to take action having witnessed the effects of a massive oil spill in Santa Barbara in 1969. Each year since then, Earth Day has raised awareness of the urgent crisis facing our planet and the landmark Paris Agreement was signed on Earth Day 2016.

Earth Day 2021

This year, Earth Day will be marked by three days of action between 20-22 April 2021, with a particular focus on the theme ‘Restore Our Earth’. A series of events will cover natural processes, emerging green technologies, and innovative thinking that can restore the world’s ecosystems. At Hausfeld, we mark the day by encouraging each other to put one of Earth Day’s 51 actions to Restore Our Earth into practice.

In November, the UK is hosting the crucial COP26 UN Climate Summit which is widely viewed as one of the global community’s last chances to avert climate catastrophe. Just this week, the UN’s World Meteorological Organization published its annual State of the Global Climate report[1] which starkly emphasised “relentless, continuing climate change” and the “increasing occurrence and intensification of high-impact events and severe losses and damages affecting people, societies and economies”. The daily news reports highlight the impact this has worldwide, often in the most unequal and unfair ways.

It is key that our leaders are reminded of the significance of COP26 and Earth Day will help keep the climate crisis high on the agenda. It also provides some much-needed hope that we can all contribute to the solutions through positive action.

Using the law for change

Creative use of the law to force positive change is another area for hope. In December 2019, the Dutch Supreme Court upheld previous decisions in the Urgenda case by finding that the Dutch Government has a legal duty to its citizens to prevent dangerous climate change[2]. Tangible action was seen following the decision, with the Dutch government introducing a package of significant measures including the closure (or reduction in capacity) of several coal power plants and a €3bn spending package to subsidise renewable energy projects and home refits.

Urgenda was the first decision of its kind and has clear implications for other governments around the world. Currently, the European Court of Human Rights is fast-tracking a complaint brought by 6 young people from Portugal with the support of Global Legal Action Network against 33 countries accountable for contributing to the climate crisis[3]. Hausfeld is acting for Save the Children, one of the few organisations to be granted permission by the Court to intervene.

Elsewhere, a Peruvian farmer, Saul Luciano Lliuya, is pursuing a claim against German energy company, RWE, for its alleged contribution (quantified at 0.47%) to the greenhouse gas emissions that are causing the nearby Pastoruri glacier to melt[4]. Should this cause Lake Palcacocha to overflow, it is reported to threaten to destroy the livelihoods of some 120,000 local residents.

We have seen ground-breaking attempts by a Kiribati citizen affected by climate change to use this as grounds to seek asylum in New Zealand[5] and by 21 youth plaintiffs to pursue the federal Government for alleged violations of their constitutional rights arising from climate change in Juliana v. United States[6]. Although both cases were ultimately unsuccessful, they are thought to have positively advanced the law for future challenges.

In the sphere of corporate accountability, there has been an increased focus on so-called ‘greenwashing’, where companies seek to improve their sales or profitability through overstating or exaggerating their environmental credentials. In November 2020, the UK Competition and Markets Authority (CMA) opened an investigation into how products and services claiming to be 'eco-friendly' are being marketed, and whether consumers could be being misled. The CMA is expected to produce new consumer law guidance in summer 2021 following the review[7].

In relation to corporate governance, the duties of company directors in relation to climate change is also a topic of increasing debate. Speaking in 2019, Lord Sales commented, “there is much force in the view that directors may and, increasingly, must take into account and accord significant weight to climate change in their decision-making. This is not least because a failure to act sustainably is more and more likely to have adverse financial impacts on companies who are, or are perceived to be, behind the curve on environmental issues”[8] and the Financial Times reported last year, that there had been a surge of shareholder climate rebellions[9]. The world’s first shareholder-led lawsuit over alleged failure to adequately disclose climate risk was filed against Exxon in 2016[10] and it is anticipated that there may be an increase in similar cases going forwards.

Client Earth also achieved a notable success in Poland where plans for a coal-fired powerplant have been shelved. Client Earth obtained shares in the companies behind the project and used their shareholder rights to successfully challenge the proposals on the basis that they were said not to be financially viable[11].

Conclusion

It is clear, therefore, that creative use of the law has and will continue to be a key tool in driving environmental and climate progress and that, in conjunction with personal action and effective government policy, it can help to Restore Our Earth.

Happy Earth Day 2021!