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Update
30.12.2024
Spotlight on our 2024 updates:
  • December 2024

    ICJ hears Vanuatu-led climate case
    From 2 December until 13 December, the International Court of Justice (ICJ) will hear testimonies from 98 countries and 12 organisations relating to a request for an advisory opinion on international law by a Vanuatu-led coalition of small states of the UN. The ICJ is requested to advise (i) whether states are obliged under international law to protect the climate and environment from GHG emissions, for the benefit of states and present and future generations; and (ii) what the legal consequences are if states caused significant harm to the climate and environment, with respect to (small island) states and present and future generations. Vanuatu, which initiated the case, faces increasing threats from rising sea levels and fears that the human rights of its citizens may be compromised. The ICJ’s advisory opinion is expected after the summer of 2025 at the earliest. The request relates to an earlier opinion of the International Tribunal for the Law of the Sea (ITLOS) and a pending case at the Inter-American Court of Human Rights.

    Court of Appeal of The Hague rejects climate case against Shell
    On 12 November, the Court of Appeal of The Hague rejected the claims of Milieudefensie in its climate case against Shell. Please see the previous edition of ESG Matters for a summary of the judgment.

    New York State Supreme Court dismisses plastic pollution claim
    On 31 October, the New York Supreme State Court dismissed a claim lodged by the attorney general of New York against PepsiCo. The attorney general sought to hold PepsiCo liable for plastic pollution in the Buffalo River. She argued that PepsiCo is responsible for third parties discarding PepsiCo’s products and packings in the river. It was not argued that PepsiCo itself polluted the river. The Court saw no legal basis for the claim and criticised the attorney general for bringing the claim in the first place.

  • November 2024

    NGOs file complaint with UNEP over support for TNFD
    On 24 October, a global group of NGOs filed a complaint with the UNEP over its support of the Taskforce on Nature-related Financial Disclosures (TNFD). The complaint describes the TNFD as a ‘new frontier for corporate greenwashing’. It alleges that UNEP breached its own policies on environmental defenders, gender, and access to information.

    SEC addresses sustainability claims of US investment manager
    On 21 October, the SEC announced that US asset manager WisdomTree has agreed to pay USD 4 million to settle greenwashing charges. The asset manager had marketed three ETFs as having an ESG investment strategy and had stated in prospectuses that the ETFs would not invest in activities relating to fossil fuels and tobacco. The SEC however found that the funds invested in coal mining, natural gas extraction, and tobacco companies. There were also no procedures or policies in place to exclude such companies from the funds.

    NGO files complaint at French financial supervisor against asset manager for greenwashing
    On 17 October, ClientEarth lodged a complaint with French financial supervisor AMF against US asset manager BlackRock, challenging 18 investment funds being marketed as ‘sustainable’ in France, the EU and the UK. It is based on an analysis of the funds’ characteristics and applicable legislation, including ESMA guidance, national supervisory guidance and SFDR disclosure requirements. The focus is on the inclusion of fossil fuel investments by the funds, which is alleged to be in breach of these rules.

    ACM addresses sustainability claims of parcel delivery companies
    On 3 October, the Netherlands Authority for Consumers and Markets (ACM) announced that DHL, DPD and PostNL will revise their sustainability claims. The claims ‘GoGreen’, ‘Naturally on the road’ and ‘Sustainably delivered’ will be removed. The claim ‘Your parcel will be sustainably delivered’ has been changed to ‘For the final stretch to your front door, we increasingly drive electrically or on biofuel’. This follows ‘normative discussions’ based on the ACM Guidelines regarding sustainability claims.

  • October 2024

    Greenpeace admissible in claim against Dutch State on climate change in Bonaire
    On 25 September, the Dutch District Court held that Greenpeace is admissible as representative of the inhabitants of Bonaire in its collective climate change claim against the Dutch State. Greenpeace alleges that the Dutch State violates its duty of care by not taking sufficient measures to protect the people of Bonaire from climate change and not sufficiently reducing CO2 emissions on Dutch territory. While the court declared Greenpeace admissible, it declared eight individual claimants inadmissible. The Dutch State has to submit its statement of defence by 6 November 2024.

    Penalty of AUD 12.9 million for Australian investment fund manager
    On 25 September, the Federal Court of Australia ordered Vanguard Investments Australia to pay an AUD 12.9 million penalty for misrepresenting the ‘ethical’ characteristics of its Ethically Conscious Global Aggregate Bond Index Fund. Vanguard falsely claimed that it screened bond issuers and excluded those with significant activities in certain industries, including fossil fuels.

    German court declares energy company’s climate-neutral claims misleading
    On 3 September, the Landgericht Hamburg ruled on a case brought by the Deutsche Umwelthilfe against energy company BP for misleading advertisements. The company had advertised its motor oils as ‘climate neutral’ and product imprints of ‘certified carbon neutral product’ based on the usage of carbon credits, including from a forest protection project in Zambia. The court found that the use of carbon credits was not clearly communicated, and noted that the offsetting project only runs for 30 years whereas the product-related GHG emissions will remain in the atmosphere for much longer. Additionally, the calculation methods used raised questions. The ruling follows two recent greenwashing rulings by the same court in which similar communications were also declared misleading.

  • September 2024

    NGOs file claim against EU Commission over green labelling of planes and ships
    On 28 August, a coalition of NGOs, backed by 35,000 citizens, announced that they are taking the EC to court over the decision to include polluting fossil fuel planes and ships in the EU Taxonomy. The new criteria classify fossil fuel planes and ships as ‘sustainable’ if they meet certain efficiency criteria (i.e. producing slightly less CO2). The NGOs argue that these criteria contradict the requirements of the Taxonomy Regulation because they are not based on conclusive science, do not support a 1.5°C pathway, and will hamper developing low-carbon alternatives in these sectors. In January 2024, the NGOs launched a legal challenge requesting the EU Commission to review the criteria. This challenge was rejected by the EU Commission in June 2024. The NGOs are now filing a case in the European Court of Justice to compel it to review these criteria.

    South Korean court orders government to improve climate law
    On 29 August, the Constitutional Court of South Korea decided on a landmark climate case brought by, among others, young children against the government. The court acknowledged that South Korea has a duty to protect its citizens’ fundamental rights by addressing the climate crisis through measures to mitigate such risks by reducing greenhouse gas emissions and adapting to its consequences. It held that the Korean Carbon Neutrality Framework Act and the First National Plan for Carbon Neutrality and Green Growth infringed the plaintiffs’ fundamental constitutional rights by failing to provide quantitative reduction targets for GHG emissions from 2031 to 2049, thereby shifting an excessive burden onto future generations.

    German court held future statements TUI Cruises misleading
    On 9 August, the Landgericht Hamburg ruled on a case brought by the Deutsche Umwelthilfe against TUI Cruises for misleading advertisements. The court held that the ‘2050 Dekarbonisierter Kreuzfahrbetrieb (Net-zero) statement published on TUI Cruises’ website qualified as misleading. Although these statements outlined TUI’s future goals, the court found them unclear and emphasised that a company’s future goals can influence consumer decisions.

    Australian superannuation fund to pay USD 11.3 million greenwashing fine
    On 2 August, the Australian Federal Court ordered the Australian superannuation fund Mercer to pay USD 11.3 million to settle a greenwashing case brought by the Australian Securities and Investments Commission (ASIC) in 2023. The court approved a settlement reached between Mercer and ASIC at the end of 2023. As part of this settlement, Mercer admitted that it violated Australian law by making false and misleading statements claiming that it excluded investments in fossil fuel, gambling and alcohol sectors when it actually had extensive holdings in these sectors.

  • August 2024

    ACM addresses sustainability claims of energy supplier
    On 25 July, the Dutch Authority for Consumers and Markets (ACM) announced that the energy supplier Vattenfall will remove the claim ‘Fossil free living within one generation’ (in Dutch: ‘Fossielvrij leven binnen één generatie’) from its communications with consumers. The ACM assessed this claim as potentially misleading. The announcement follows ‘normative discussions’ between ACM and Vattenfall. While Vattenfall’s climate plans are concrete and verifiable, the slogan does not describe these plans in a concrete and verifiable way. Consequently, Vattenfall will state its climate ambitions in a more concrete manner. In its announcement, the ACM refers to its guidelines on sustainability claims.

    Greenpeace notices Energy Transfer of anti-SLAPP case
    On 23 July, Greenpeace International sent a notice of liability to the US-based energy company Energy Transfer. The notice relates to a letter sent in 2016 by the NGO and over 500 other organisations to banks, urging them to stop financing Energy Transfer’s oil pipeline project. In response to this letter, Energy Transfer initiated a lawsuit against the organisations. After this lawsuit was dismissed, the energy company initiated a new lawsuit solely against Greenpeace, again seeking damages amounting to approximately USD 300 million. Greenpeace’s notice now asserts that the latter case is unlawful under Dutch law, considering the recently adopted anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) directive. It demands that Energy Transfer halt its lawsuit and compensate Greenpeace for its costs. This marks the first time that an NGO has publicly invoked the anti-SLAPP directive (which does not apply yet).

  • July 2024

    Grantham Research Institute publishes annual climate litigation report
    On 27 June, the Grantham Research Institute on Climate Change and the Environment published its sixth annual report on global trends in climate change litigation. At least 230 new climate cases were filed in 2023, slightly fewer than in previous years. In corporate climate litigation, 230 corporate climate cases have been filed since 2015. Last year saw particular increase in greenwashing cases, with a success rate of over 70%. For the first time, this year’s report includes transition risk cases, which relate to the management of climate risks, as a separate category of cases. Anti-ESG cases are on the rise, particularly in the US. More litigation is expected in relation to post-disaster cases, ecocide and criminal law, and a convergence is expected of environmental and climate litigation.

    German Supreme Court rules that climate-neutral claims are greenwashing
    On 27 June, the German Federal Supreme Court (Bundesgerichtshof) ruled on a greenwashing case brought by the German Centre for Protection against Unfair Competition against a fruit gum and liquorice manufacturer. The manufacturer had advertised in a trade magazine stating that it had been producing all products in a climate-neutral manner since 2021, using a logo with the term ‘climate-neutral’ and referring to the website of a ‘climate partner’. The court of first instance and the court of appeal ruled that the claims were not misleading because the advertisement referred to an explanatory website. The Supreme Court overturned the appeal decision, stating that in the field of environment-related advertising, the risk of misleading is particularly high. Ambiguous environmental terms such as ‘climate neutral’ must therefore be explained in the advertisement itself. In particular, the term ‘climate-neutral’ must be explained because - from a climate protection point of view - CO2 reduction takes precedence over compensation. The court also notes that the misleading advertising was relevant from a competition point of view, as the alleged climate neutrality of a product is of considerable importance for consumers’ purchasing decisions.

    Hawaii Transportation Department settles climate case with Hawaii youth
    On 20 June, the Hawaii Department of Transportation announced the settlement of the Navahine climate case relating to transportation-related climate pollution, brought by 13 young people against the State of Hawaii. The settlement agreement acknowledges the rights of Hawaii’s youth to a life-sustaining climate, and confirms the Hawaii Transportation Department’s commitment to plan and implement changes to Hawaii's transportation system to achieve net-zero emissions by 2045.

    Paris Court of Appeal declares two diligence law cases admissible
    On 18 June, the Paris Court of Appeal ruled on three cases brought against TotalEnergies, EDF and VIGIE Group for violation of the French diligence law. This law requires large companies to draft and implement diligence plans to identify, prevent and mitigate the risks of serious violations of human rights and fundamental freedoms, the health and safety of individuals and the environment resulting from their business activities. The Paris Court of Appeal ruled that the claims against VIGIE group are inadmissible. In contrast to the district court, the Court of Appeal ruled that claims by certain plaintiffs in the cases against TotalEnergies (ruling) and EDF (ruling) are admissible, allowing the district court to rule on the merits of the claims (after Supreme Court proceedings, if any).

    Texas court dismisses climate shareholder proposal case
    On 17 June, a Texas court dismissed the case brought by ExxonMobil against NGOs Arjuna Capital and Follow This. ExxonMobil sought a declaratory judgment that it may exclude the NGOs’ shareholder proposal relating to Exxonmobil’s climate policy from its proxy statement. The NGOs had already withdrawn their proposal. In a preliminary ruling, the court dismissed the case against Follow This, but accepted jurisdiction over the case against Arjuna Capital. Subsequently, Arjuna Capital unconditionally and irrevocably promised not to submit shareholder proposals relating to ExxonMobil’s greenhouse gas emissions in the future. The Court therefore ruled that there is no longer a ‘live controversy’ in this case, so that the case should be dismissed.

    Australian federal court rules that pension fund claims are greenwashing
    On 5 June, the Federal Court of Australia ruled that several sustainability claims made by the trustee of the Australian pension fund Active Super were misleading. The case was initiated by the Australian Securities and Investments Commission (ASIC). The trustee stated on its website, in reports and in disclosure documents that it excluded investments in gambling, tobacco, oil tar sands, coal mining and Russia. At the same time, it did not apply these exclusion criteria to a significant proportion of the securities included in the index in which it invested. The trustee’s argument that consumers would distinguish between direct and indirect investments was not accepted. The Court will consider the penalty at a further hearing.

  • June 2024

    Texas Court issues preliminary ruling in climate shareholder proposal case
    On 22 May, the Court of Texas delivered a preliminary ruling in the case brought by ExxonMobil against NGOs Arjuna Capital and Follow This. ExxonMobil argues that it may exclude the NGO’s’ shareholder proposal on Exxonmobil’s climate policy from its proxy statement. The NGOs have already withdrawn the proposal. In its ruling, the court assumed subject-matter jurisdiction over the case and personal jurisdiction over US-based defendant Arjuna Capital. It did not accept personal jurisdiction over Dutch defendant Follow This. The ruling comes after several institutional investors threatened to vote against the installation of ExxonMobil’s new CEO, saying the case was an anti-climate action and an anti-shareholder move. The case will now move on to the merits with Arjuna Capital as the sole defendant.

    ITLOS issues advisory opinion on climate change and the sea
    On 21 May, the International Tribunal for the Law of the Sea (ITLOS) issued an advisory opinion on climate change and international law of the sea. The opinion was requested by a commission of small island states, and is based on a large number of amicus briefs and two weeks of hearings. The opinion states that the 1982 UN Convention on the Law of the Sea (UNCLOS) imposes a strict due diligence obligation on contracting states with regard to transboundary pollution caused by greenhouse gas emissions. In particular, states are required to take all necessary measures to prevent, control and reduce GHG emissions that directly or indirectly affect oceans and seas. They should adopt and enforce laws and regulations based on the best available science and climate change treaties such as the Paris Agreement, and cooperate and harmonise their policies in this regard. In particular, states should also protect, preserve and restore marine resources in relation to the impacts of anthropogenic GHG emissions. The advisory opinion is expected to influence the pending change-related advisory opinions at the Inter-American Court of Human Rights and the International Court of Justice.

    Dutch authorities launch criminal investigation into wood importers
    On 17 May, the Netherlands Food and Consumer Product Safety Authority (NVWA) announced that it is conducting a criminal investigation into two Dutch importers of wood. According to the authorities, the importers were not able to prove that they conducted sufficient due diligence on the origin of wood which they imported from Brazil and Suriname. This could constitute a breach of the Timber Regulation, to be replaced by the Deforestation Regulation as of 30 December 2024. The investigation is still pending.

    German court orders federal government to adopt measures to achieve 2030 climate target
    On 16 May, the higher administrative court of Berlin-Brandenburg ruled that the German federal government’s climate protection plan is not sufficient to achieve the climate target of 65% reduction in 2030 compared to 1990, as set out in the Climate Protection Act (CPA). The court finds that it is foreseeable that most of the sectoral annual targets of the CPA will be exceeded, and that the plan suffers from methodological flaws and is partly based on unrealistic assumptions. The federal government is ordered to take measures to align the climate protection plan with the targets of the CPA. The ruling is subject to appeal. It follows an earlier administrative judgment of November 2023, which ordered the federal government to adopt an immediate action programme for the buildings and transport sectors.

    UK High Court rules that UK climate protection plan is unlawful
    On 3 May, the administrative UK High Court ruled that the UK government’s climate protection plan is in breach of the Climate Change Act (CCA). The court ruled that the plan was an ‘irrational decision’ by the secretary of state because he was not sufficiently informed about the risk that the proposed policies would be insufficient to meet the carbon budgets set out in the CCA. The secretary of state also failed to demonstrate that the climate protection plan sufficiently contributes to sustainable development. The parties will now make submissions on the court’s order to revise the plan. The ruling follows a judgment in July 2022, which ordered the UK government to adopt a revised climate protection plan.

    Dutch energy provider withdraws climate claim
    On 2 May, the Dutch Authority for Consumers and Markets (ACM) announced that the Dutch energy company Eneco will remove the claim ‘faster towards climate neutral’ (in Dutch: ‘sneller klimaatneutraal’) from its advertising. The announcement follows ‘normative discussions’ with the company. The ACM assessed the claim as potentially misleading, because it does not make clear that it concerns an ambition for the year 2035. In its announcement, the ACM states that it must be clear to consumers what companies will actually do in terms of sustainability, referring to its guidelines on sustainability claims.

  • May 2024

    EU authorities launch greenwashing investigation in the aviation industry
    On 30 April, the EC and the EU Consumer Protection Cooperation (CPC) Network announced a coordinated anti-greenwashing enforcement action against 20 European airlines. The EC and CPC Network are concerned that certain green claims made by these airlines qualify as misleading under the Unfair Commercial Practices Directive (UCPD). The EC and the CPC Network will now enter into discussions with the airlines, on the basis of which the CPC authorities will decide on any further enforcement action. The enforcement action follows a complaint by EU consumer organisation BEUC, and a Dutch court ruling on similar legal grounds against a Dutch airline.

    Anti-SLAPP directive published in Official Journal
    On 16 April, the directive on protection from strategic lawsuits against public participation (SLAPP) was published in the Official Journal. The directive aims to protect natural and legal persons who engage in public participation, such as journalists, human rights defenders and NGO’s, from manifestly unfounded claims and abusive court proceedings in civil or commercial matters with cross-border implications. It introduces procedural minimum safeguards, rules on early dismissal, remedies against abusive court proceedings and procedural rules protecting from third-country SLAPP-proceedings. Member States have to transpose the directive into national law by 7 May 2026.

    ECtHR rules on three climate cases
    On 9 April, the European Court of Human Rights (ECtHR) ruled on three climate change cases. The cases of Carême v. France and Duarte Agostinho et al v. Portugal and 32 other States were declared inadmissible on formal grounds. In Verein Klimaseniorinnen v. Switzerland, the Court ruled that Switzerland’s climate laws violated Article 8 of the European Convention on Human Rights (ECHR) and found a violation of Article 6 ECHR. Notably, the Court ruled that states have a limited margin of appreciation when setting climate targets, but a wide margin of appreciation when choosing the measures to achieve those targets. The Court also provided criteria for determining whether states have acted within their margin of appreciation in relation to climate policies. See last month’s Highlight for more information.

    Australian court declares investment manager’s green statements misleading
    On 28 March, the Federal Court of Australia ruled that several sustainability-related statements made by Australian investment manager Vanguard are misleading. Vanguard had stated in various ways that it excluded bond issuers with significant activities in certain industries. At the same time, it did not apply these exclusion criteria to a significant proportion of the securities included in the index in which it invested. The Court will consider the penalty at a hearing on 1 August.

    Supreme Court of India establishes constitutional right relating to climate change
    On 21 March, the Supreme Court of India established a right ‘to be free from the adverse effects of climate change’ under the Indian Constitution. The Court had previously recognised a constitutional right to a clean environment in earlier decisions. In the light of the increasing impacts of climate change, the Court now established a ‘right to be free from the adverse effects of climate change’ as a distinct constitutional right. This new climate-related human right is grounded on (i) the right to life and personal liberty and (ii) the right to equality under the Indian Constitution. In the case at hand, the Court emphasised that this right must be balanced with other constitutional interests relating to India’s economic development, social equity, physical environment and biodiversity. An expert committee was appointed to advise the Court on how to balance these constitutional interests in this particular case.

  • April 2024

    Travel website removes sustainable travel campaign
    On 25 March, the Dutch Authority for Consumers and Markets (ACM) announced that travel website Booking.com will remove its ‘Travel Sustainable’ campaign. The announcement follows ‘normative discussions’ of the ACM with the company. As part of the campaign, member accommodations received a sustainability score and a number of green leaves on the website. The ACM assessed the presentation of this programme as misleading, among others because (i) the statement ‘Travel Sustainable’ could wrongly make consumers believe that travelling to the selected accommodations is sustainable; (ii) it was unclear to consumers what the sustainability score was specifically based on; and (iii) the programme did not display the sustainability efforts of non-member accommodations.

    Amsterdam District Court declares 15 green statements by Dutch airline misleading
    On 20 March, the District Court of Amsterdam ruled that 15 sustainability-related statements by Dutch airline KLM are misleading. The case marks the first time a Dutch court decides on a greenwashing claim. Of considerable practical relevance are the court’s considerations on the statements on (i) commitment to the Paris Agreement targets; (ii) measures taken to achieve net zero ambitions; (iii) the use of carbon credits; and (iv) the use of sustainable aviation fuel. The court ruled that statements violated the Dutch implementation of the Unfair Commercial Practices Directive. The court found that it is sufficiently plausible that the average consumer would take a different economic decision as a consequence of the statements. The court rejected the NGO’s other claims, which included an injunction to stop making these statements in the future, an order to publish rectification statements, and an order to publish warnings on its website and on flight tickets.

    Spanish energy company files greenwashing lawsuit against competitor
    On 18 March, it was reported that Spanish energy company Iberdrola has filed a greenwashing lawsuit against its competitor Repsol based on Spanish competition law. Iberdrola accuses Repsol of presenting itself as a leader in the energy transition while being the largest greenhouse gas emitter in Spain. Iberdrola requests the removal of Repsol’s advertising campaigns relating to biofuels and green hydrogen.

    Belgian farmer files climate lawsuit against French energy company
    On 13 March, a Belgian farmer and three NGO’s sued French energy company TotalEnergies at the Commercial Court of Doornik. The farmer claims that TotalEnergies is partly responsible for the damage caused to his operations by extreme weather events in the period 2016-2022, and requests a symbolic amount of EUR 1,00 in damages. TotalEnergies is also requested to (i) immediately stop investing in new fossil fuel projects; (ii) reduce its greenhouse gas emissions from the production and supply of fossil fuels by 60% in 2030; and (iii) reduce its oil and gas production by 47% in 2030, 75% in 2040 and 88% in 2050. The claim is based on Belgian tort law and refers to the recent ruling of the Brussels Court of Appeal in the climate case (Klimaatzaak) against the Belgian governments.

    OECD complaint against Luxembourg pension fund
    On 11 March, NGO Greenpeace Luxembourg filed a complaint with the OECD National Contact Point (NCP) against sovereign pension fund Fonds de Compensation de la Sécurité sociale SICAV FIS (FDC SICAV). The NGO alleges that the fund’s investment strategies are not in line with the OECD Guidelines for Multinational Enterprises. It requests the fund to (i) set up an investment strategy including risk-based human rights and environmental due diligence and in line with the Paris Agreement; (ii) conduct human rights and environmental due diligence on its investments; and (iii) establish a grievance mechanism in line with the UNGPs. If the parties do not reach a solution during the mediation phase, the NCP will issue a non-binding advice on the matter.

    Danish court declares pork producer’s green statement misleading
    On 1 March, Denmark’s Western High Court ruled that pork producer Danish Crown has misled consumers by marketing its products as ‘climate-controlled’. The case was brought by NGO’s the Danish Vegetarian Association and the Climate Movement. The court ruled that Danish Crown could not sufficiently substantiate its statement that its meat is ‘climate-controlled pig’. Notably, the court ruled that this statement could be expected to significantly distort the economic behaviour of the average consumer. The statement ‘Danish pork is more climate-friendly than you think’ was not found misleading. The court also rejected the NGO’s request for a prohibition to make these statements in the future and to publish a rectification.

  • March 2024

    German webshop to remove green claims and filters from website
    On 22 February, the Commission and several national supervisory authorities, including the Dutch Authority for Consumers and Markets (ACM), announced that German webshop Zalando will remove misleading sustainability claims from its website. The announcement follows a coordinated action of European supervisors (Consumer Protection Cooperation Network) on sustainability claims in the European garment sector. Zalando has agreed to cease the generic use of the word ‘sustainability’ and other incorrect claims to indicate sustainability benefits, including green visuals in its product search filters. Zalando will also provide clear information on specific product advantages, such as the indication of a certain percentage of recycled materials, and will revise its general sustainability pages.

    New Zealand Supreme Court corporate climate case proceeds to trial
    On 7 February, the New Zealand Supreme Court ruled that the climate case of Māori leader Mike Smith against seven New Zealand fossil fuel companies will proceed to trial. Smith does not request damages, but rather an order on the companies to reduce their greenhouse gas emissions. The claim, based on New Zealand common law, has three grounds: public nuisance, negligence and a proposed climate duty. The Court held that the claim based on public nuisance amounts to a ‘reasonably arguable cause of action’, addressing four topics: (i) plausible identification of actionable public rights; (ii) whether otherwise legal activities can still amount to public nuisance; (iii) the special damages rule; and (iv) causation. The Court also did not strike out the other two claims. While the Court explicitly noted that its preliminary decision “says little about [the] merits” of the case, it will have an impact on other corporate climate cases under common law.

    Polish energy company’s management sues former directors for investing in coal plant project
    On 30 January, a large majority of the shareholders of Polish energy company Enea voted in favour of a motion to claim damages from the company's former directors and supervisory board members, including their D&O liability insurers, for investing in a coal-fired power plant project. The directors allegedly ignored warnings about the project's financial climate risks and failed to conduct sufficient due diligence on the financial feasibility of the project in light of, inter alia, rising carbon prices and changing energy demand. The project was abandoned in 2020, after NGO ClientEarth successfully challenged the project in court, resulting in a financial loss of more than EUR 170 million.

  • February 2024

    Friends of the Earth Netherlands (Milieudefensie) announces climate case against ING
    On 19 January, NGO Friends of the Earth Netherlands (Milieudefensie) announced its intention to initiate a climate case against Dutch bank ING. Milieudefensie demands that ING (i) aligns its climate policy with the 1.5°C target of the Partis Agreement; (ii) reduces its absolute CO2 emissions by 48% and its CO2-eq emissions by 43% in 2030 compared to 2019; and (iii) among others, demands a climate plan from its large corporate clients and phases out its financing of the fossil fuel sector. If ING does not concede to these demands within eight weeks, Milieudefensie intends to initiate its climate case. ING published its reaction here.

    Norwegian court invalidates impact assessments for three Norwegian oil fields
    On 18 January, the Oslo District Court ruled that the impact assessments for three Norwegian oil fields, carried out by the Norwegian Ministry of Energy, are invalid. The court suspended the granting of any new permits required for the further development or operation of the oil fields until a final ruling on the validity of the approval decisions is delivered. The impact assessments were ruled invalid because they did not, or did not sufficiently, address the expected greenhouse gas emissions associated with the oil fields. At this stage, the Court did not establish a violation of Articles 2, 8 or 14 ECHR, as the climate cases at the ECHR are still pending.

    Paris Court of Appeal installs chamber for ESG cases
    On 15 January, the Paris Court of Appeal announced the installation of a dedicated chamber within its economic division to deal with cross-disciplinary environmental disputes. In particular, the chamber will handle appeal proceedings relating to the French due diligence law, the CSRD and the CSDDD. The Court states that the installation of this chamber demonstrates the importance it attaches to these cases. The chamber will hear its first cases in the first half of 2024.

    Bonaire climate case against the Dutch State
    On 11 January, NGO Greenpeace Netherlands and eight residents of the island of Bonaire initiated a collective climate case against the Dutch State. In their writ of summons, the claimants request the District Court of the Hague to, inter alia, order the Dutch State to implement climate mitigation measures, as well as various adaptation measures to protect the inhabitants of Bonaire from the consequences of climate change. The primary mitigation claim requests an order on the Dutch State to reduce its CO2-eq emissions to net zero by 2030, with any remaining emissions to be compensated by international climate finance.

  • January 2024

    ACM addresses sustainability claims of Dutch supermarket chain
    On 21 December, the Netherlands Authority for Consumers and Markets (ACM) announced that Dutch supermarket chain Plus will remove unsubstantiated sustainability claims from its stores and brochures, following a ‘normative discussion’ with the supermarket chain. The supermarket’s green claims, such as ‘climate neutral supermarket’, ‘conscious’ and ‘sustainable’, were based on external research on consumer perceptions of the supermarket, but lacked factual substantiation. The supermarket chain has agreed to remove the green claims and will apply the ACM’s updated Guidelines on sustainability claims. The enforcement action follows large-scale greenwashing enforcement actions by the ACM in H2 2022.

    State of Tennessee subpoenas BlackRock in anti-ESG lawsuit
    On 18 December, the Attorney General of the US State of Tennessee subpoenaed BlackRock Inc. in an ESG-related consumer protection lawsuit. This follows a subpoena issued on 15 December by the Judiciary Committee on the US Congress regarding possible antitrust law violation by Blackrock’s agreements to decarbonise its assets. The state alleges that BlackRock made misleading statements about the influence of ESG considerations on its investment strategies. The complaint states that BlackRock has made firm-wide ESG-related commitments, while at the same time marketing several funds as exclusively pursuing financial goals. The State argues that these two positions are fundamentally conflicting. BlackRock’s statements that ESG is a driver of companies’ financial performance would not be supported by facts and contradict other statements made by BlackRock. The State requests, among others, a civil fine of USD 1.000 for each violation of the Tennessee Consumer Code and restoration of damages.

    Australian superannuation fund to pay USD 11.3 million greenwashing fine
    On 7 December, the Australian Securities and Investments Commission (ASIC) requested the Australian Federal Court to approve a settlement agreement with Australian superannuation fund Mercer. Under the terms of the agreement, the fund will pay USD 11.3 million to settle the greenwashing case brought by ASIC earlier this year. The case concerned the fund’s statements that it excluded investments in the fossil fuel, gambling and alcohol sectors, when in fact it had extensive holdings in these sectors. The Federal Court is expected to approve the settlement agreement. Two other greenwashing cases brought by ASIC are still pending at the Australian Federal Court.

    French company La Poste ordered to improve its due diligence on social circumstances of subcontractors
    On 5 December, the Paris Judicial Tribunal in first instance ruled that the 2019 and 2020 due diligence plans of post company La Poste violated the French loi de vigilance or due diligence law. The SUD PTT trade union brought the case after it was discovered that undocumented workers were illegally working night shifts at a French subcontractor of a La Poste subsidiary. The tribunal ruled that La Poste’s risk mapping as prescribed by the loi de vigilance did not adequately reflect the risks associated with, among other things, illegal labour, resulting in a lack of the necessary evaluation procedures for subcontractors. The tribunal therefore ordered La Poste to improve its due diligence plan by adding a risk map, to establish subcontractor assessment procedures that are based on the specific outcomes of its risk mapping, and to improve its whistleblowing mechanism and internal controls. The union’s ancillary claims were rejected. Several other loi de vigilance­-based cases against French corporates are pending.

    Friends of the Earth files OECD complaint against US credit agency for fossil fuel project investments
    On 5 December, Friends of the Earth filed a complaint with the OECD National Contact Point (NCP) against the Export-Import Bank of the United States (US EXIM). The NGO highlights EXIM’s role in projects that would not otherwise be financed and argues that EXIM fails to act in line with governmental commitments, the Paris Agreement and the Clean Energy Transition Partnership as it invested almost USD 1 billion in the fossil fuel sector in 2023. The NGO calls on EXIM to bring its policies in line with the OECD Guidelines, by fully and publicly reporting on its total greenhouse gas emissions, including financed emissions, and by setting clear and rapid goals to align its portfolio with the 1.5°C goal of the Paris Agreement. If the dialogue between the parties fails, the NCP is expected to issue a statement on the case in approximately one year, which may include recommendations to EXIM.

  • ESG litigation updates in 2023

    See our overview of ESG litigation updates in 2023 here

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