National:
Stop corporate pre-emption

Implement regulations through national legislation that stop polluting corporations from attempting to pre-empt being brought to justice or to abuse processes meant to uphold justice.

What does this look like?

• Adopt and enforce safeguards against any abuse of rules such as those pertaining to prescription and amnesty, among others that fosters or contributes to impunity.

  • Prescription – either of prosecution or penalty - in judicial, administrative, and other cases should not occur for periods that render no effective remedy available.

  • Prescription should not apply to crimes under international law that are by their nature imprescriptible. When it does or must apply, prescription should not be effective against civil or administrative actions brought by victims seeking reparation for their injuries.

• Stop attempts by polluting corporations to avoid justice and fair trials, such as:

  • Appealing to move legal claims to parts of the judicial system that favour a corporation.

  • Counter suing.

• Incorporate pre-emption clauses for international litigation.

  • Through legislation or litigation, ensure that the corporation being held liable is not able to pre-empt further or future liability actions from governments and/or victims at the sub-national level.

  • Adopt provisions that allow for the implementation of strict liability regimens, especially for environmental litigation cases.

  • Adopt constitutional reforms that allow the inclusion of nature rights and environmental rights.

    • All action taken to protect the rights of nature must reinforce and support the rights of people, local communities (including peasants, fisherfolks, nomadic and rural peoples), indigenous peoples, and collective rights.

National:
Establish primacy of human rights

Reaffirm and operationalize through national and international human rights law the need for human rights to be upheld by states and respected by transnational corporations as well as their subsidiaries, controlled companies and any entity in their global value chain and their representatives. Uphold clear guidance on what is considered a violation of human rights and what the appropriate punishments are for violations.

Provide access to justice and remedy for affected people and workers in the home and host country of the transnational corporation, and in any other country where it has substantive assets, or in a dedicated international jurisdiction such as an international court on transnational corporations and human rights.

What does this look like?

• Establish the primacy of human rights, and enshrine:

  • a) the primal obligation of a state and its representatives to protect these rights and not being made subject to appropriate national legislation

  • b) a corporation’s legal obligation to respect human rights as well as the common good, not subject to any law of the originating country providing immunity to transnational corporations operating in other countries.

  • c) mechanisms for individuals or entities to hold polluters liable for violating these rights.

  • Adopt measures that facilitate a transition to a non-polluting system, including policies and practices that:

    • 1) ensure people are aware of their rights;

    • 2) provide what is necessary to conserve the environment, rehabilitate it, and repair the damage; and,

    • 3) ensure violations of these rights will not happen again.

• Clearly define in law what is considered a violation of these rights, and the civil, criminal, financial, administrative or any other type of action that can be taken when violations occur.

• In creating guidelines for how to define a violation of human rights in national law, governments should take into account:

  • The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law adopted in 2005 by the United Nations General Assembly. Some important concepts include:

    • The obligation to respect, ensure respect for and implement international human rights law and international humanitarian law, drawing from guidance and agreements such as the Human Rights Committee, the Committee against Discrimination against Women, the Guidelines on Responsible Governance of the Land, Fisheries and Forests, the Declaration of Indigenous Rights (UNDRIP), and the Declaration of Peasant Rights).

    • A victims’ right to remedies, including:

      • Access to justice.

      • Reparation for harm suffered.

      • Access to relevant information concerning violations and reparation mechanisms.

    • The updated set of principles for the protection and promotion of human rights through action to combat impunity (impunity principles) endorsed by the United Nations Commission on Human Rights (succeeded by the Human Rights Council in 2006-E/CN.4/2005/102/Add.1). Some important concepts include:

      • General obligations of States to take effective action to combat impunity.

      • The inalienable right to the truth.

      • The establishment and role of truth commissions.

      • Jurisdiction of international and internationalized criminal tribunals.

      • Measures for strengthening the effectiveness of international legal principles concerning universal and international jurisdiction.

      • Restrictions on prescription.

      • Rights and duties arising out of the obligation to make reparation.

      • Reparation procedures that allow for restitution, compensation, rehabilitation and guarantees of non-repetition.

      • Publicizing reparation procedures.

      • Scope of the right to reparation.

• Establish the liability of parent and outsourcing companies over the activities of their subsidiaries, controlled companies and any entity in their global value chain

  • Click here for a case study on France’s ‘duty of vigilance’ law, passed in 2017, which provides a ground-breaking precedent for this that, though imperfect in large part due to corporate lobbying, should continue to be built upon.

• Expand the legal obligation of corporations to include the CEOs, managers, and those in positions of power within corporations.

• Adopt legislation that enshrines climate commitments made at institutions such as the United Nations Framework Convention on Climate Change into law so that corporations can be held accountable to respect them.

National:
Reverse burden of proof principle

Increase access to justice against corporate impunity by ensuring that the burden of proving whether harm or abuses were committed by transnational corporations or certain actors should fall to the accused, not to the past, present and future victims of such abuse.

What does this look like?

• Adopt provisions to reverse the burden of proof principle to help ensure victims are better positioned within justice processes that displace national law.

• Adopt provisions to place the burden of proof on polluting and destructive corporations, not the people holding them accountable.

National:
Establish primacy of the rights of nature

Formalize in national law, including amendments to constitutions, the right of nature to be protected, in a manner that reinforces and also protects human rights, including the rights of people, local communities, indigenous peoples, and collective rights.

What does this look like?

Formally recognize the rights of nature, enshrining its right to be protected and conserved, and concretize the primacy of the rights of nature and human rights above all else.

• All action taken to protect the rights of nature must reinforce and support the rights of people, local communities (including peasants, fisherfolks, nomadic and rural peoples), indigenous peoples, and collective rights.

• Countries where similar action has been taken include Ecuador, Bolivia, India, and New Zealand, though it is essential to note that in all cases, meaningful implementation is yet to be achieved. Click here to read more about the measures in each of these countries.

National:
Climate damages fine for polluters

Implement and collect fines from corporations for polluting activities such as fossil fuel extraction to help justly and directly finance a shift off of polluting products. The cost of such a fine must not be placed upon people but rather be collected from corporations by governments and publicly governed to serve the people.

What does this look like?

The payment of the fine must not be used to permit or legitimize more pollution to take place, or create dependence on continued pollution as a source of income. Therefore implementation of climate damages fines must be in accordance with the guidelines detailed below.

• Establish a national climate damages fine for every unit that polluting corporations pollute or extract.

• Corporations must be legally barred from passing on the cost of the fine to consumers, and must demonstrate that the payments are coming directly from their net revenues or profits.

• A climate damages fine should incentivize a reorientation by the polluting and power-producing industries away from fossil fuels or other polluting products by reducing the profits they derive from that activity. This also would make them a less attractive investment option.

• The fine should only be one option utilized by governments in a suite of complementary financial measures, including others such as the removal of subsidies for fossil fuel or agrochemicals, to make polluting industry business increasingly non-viable.

• In the same spirit, the use of climate damages fines should reinforce, not replace, a government’s responsibility to mobilize and allocate public finance to address climate change and the subsequent needs of communities. Any governments utilizing such a fine must do so alongside safeguards that ensure the resources raises will serve communities and be protected against corruption.

• The design of the fine should ensure that it escalates annually making polluting industries’ business increasingly unprofitable year on year, raising billions of dollars annually to address climate impacts while contributing to a phase out of the product (such as fossil fuels) by mid-century.

• It must be a fine at source (e.g. for fossil fuel corporations a fine on extraction or for agribusiness at the start of the food supply chain), with the cost borne directly by the corporations, not the country where the activity is taking place.

• Implementation of the fine must include reporting transparently on what is being paid and to whom, making it more difficult for polluters to lobby policymakers and enforcers for preferential rules, and prices.

• Finance received through the collection of such a fine should:

  • Be used only to serve the public interest by addressing climate impacts or funding a just transition. The latter could include activities such as to fund decentralized, community-led renewable energy solutions as well as decentralized food systems, including local farms, that ensure care and restoration of land.

  • Must in no way be used to directly or indirectly promote fossil fuel or other polluting activities.

  • Directly contribute to the international financing facility for Loss and Damage and go directly to communities to address climate impacts. Wealthy, industrialized countries should contribute significantly more (50%) of resources gathered through climate damages fines. Similarly, the bulk of resources raised through these fines in lower-income countries enduring the greatest impacts of climate change should go directly to support impacted communities in-country, on a sliding scale basis.

National:
End subsidies, “bailouts” and liability waivers for polluting industries

End a variety of investments and mechanisms that artificially prop up polluting industries and insulate them from addressing the damage they’ve caused, including but not limited to subsidies and perverse incentives, bailouts, and liability waivers.

What does this look like?

• Reject outright any policies or proposals that seek to waive the liability or culpability of corporations, whether it be past, present or future. Guard against these clauses being embedded in otherwise positive climate action legislation.

• Reject any and all “bailouts” that incentivize polluting industries when they must instead be severely regulated and phased out. Rather, fund the relief and recovery people and nature need by advancing liability measures in this roadmap that require corporations to pay for the damage they’ve knowingly caused and the broken systems they have intentionally helped create.

• Stimulus and relief packages such as those responding to the COVID-19 pandemic should be harnessed as opportunities to advance liability measures at the national level and invest in just, resilient systems that are truly in harmony with nature.

• End government subsidies to polluting and destructive industries and corporations, with no incremental phase-out period.

• Require financiers such as banks, asset managers, insurance companies to immediately divest from fossil fuel and deforestation projects.

National:
Investigate and sue polluters and their enablers like financiers

Through a variety of legal mechanisms, people and entities at all levels should initiate investigations and lawsuits that hold polluting and destructive industries and their enablers liable for their multifaceted roles in the climate crisis and wrongdoing.

What does this look like?

• States/regions/communities/individuals formally launch investigations into polluting and destructive industry corporations and actors to firmly establish what they knew about climate change, and when, and what actions they did or didn’t take to address these findings.

  • Investigation and legal claims toward agribusiness can be made on the grounds of direct harm or eco-destruction caused through business practices.

• States/regions/communities/ formally sue polluting industry corporations for compensation for the damage caused or projected to be caused as a result of their business practices, failure to comply with climate action commitments, or their deception and manipulation.

  • Compensation received should directly support frontline communities and those that endure the direct abuse of polluting and destructive corporations, or to funds that distribute to these communities, such as those detailed here.

• Register legal claims with national and international judicial bodies to expose and challenge the damage and abuses (environmental or related to people and community) endured as a result of specific projects or business practices of transnational corporations.

  • These claims, often brought by local communities, have the ability to set ground-breaking precedents that spur lasting change. For example, a local community of Indian fishermen launched a lawsuit that wound up setting a powerful legal precedent for international financial institutions via the U.S. Supreme Court. Read more about this here.

• Judicial systems should guarantee specific prescribed time frames that should be a matter of months (not years), and that states or legal systems are required to adhere to when liability claims are registered.

• File liability lawsuits against the institutional investors and financiers that enable corporations to pollute, destroy, abuse, and to use the corporate personhood or corporate veil to protect themselves.

• Initiate lawsuits against executives and directors of financial corporations that fail to adequately consider and address climate risks. Just 35 investment banks like JP Morgan Chase, Wells Fargo, Bank of America and HSBC, have channelled more than US$2.66 trillion into fossil fuels between 2016-2019. There is increasing precedence and potential to sue corporate actors like financiers for breaches of duty of care and diligence.

In recent years, climate change litigation to advance liability claims has been increasing significantly across global jurisdictions. In the past, the majority of these lawsuits have been brought against governments. We’re now, however, witnessing an intensifying focus in launching climate liability cases against corporations based on several robust legal arguments and claims. This shift in focus on holding corporations legally liable for climate change has been facilitated by advancements in climate attribution science, knowledge from previous legal challenges and precedents, increased evidence regarding corporations’ climate change denial and deception efforts, increased public action to hold corporations accountable for climate change, as well as more effective collaboration between governments, attorneys, scientists and advocates across various jurisdictions and legal contexts.

Some of the most prominent types of legal claims that may be utilized to sue corporations directly, collectively, or individually include but are not limited to:

• Public Nuisance

  • Nuisance is an act or omission that interferes with the rights of the community, or the public generally. Public nuisance claims focus on the argument that the extraction and promotion of fossil fuels contributes to climate change impacts, such as sea-level rise, and that these impacts create a public nuisance that interferes with rights of individuals or communities represented.

• Negligence

  • Most polluting corporations had prior knowledge of climate change science and impacts, in some cases decades before it was commonly known by the public. Being able to demonstrate this prior knowledge forms the basis for negligence claims related to a corporation’s breach of their duty of care by not preventing foreseeable harm, and for negligent failure to warn of the likelihood of this harm.

• Misleading advertising

  • These claims focus on corporate advertising that misled the public regarding the corporation’s climate change activities, the nature of its products, or the anticipated impacts of its actions on communities in its supply chain. Misleading advertising cases allege that promotional and advertising campaigns by polluting corporations violate national law or even the Organization for Economic Cooperation and Development (OECD) Guidelines for Multinational Enterprises, which require accurate communications between businesses and people.

• Consumer protection

  • These claims focus on breaches in consumer protection law, which typically forbids corporations from engaging in any unfair or deceptive trade practices. Consumer protection cases assert that polluting corporations engaged in deceptive marketing and promotion of their products by disseminating misleading information refuting the scientific knowledge generally accepted at that time, advancing junk science and developing public relations materials that prevented reasonable consumers from recognizing the risk that products like fossil fuels would cause serious climate change impacts.

• Strict liability * Rather than alleging fault (such as negligence or tortious intent by the defendant), these cases claim strict liability for “design defects," - i.e. problems with a product’s design that render it dangerous to use. In these cases, fossil fuels, for example, are the product, with the defect in this case being the impact of the emissions and the known risks associated with them. For strict liability claims to be robust, the evidence needs to show the defendants engaged in business, sold the product to plaintiffs, the product was used as intended and it caused harm to the plaintiffs.

• Human rights * Human rights-based climate litigation focuses on the role of corporations in driving climate change and the related impact on an individual’s human rights. These types of claims utilize human rights law to demonstrate corporate obligations to respect human rights such as those expressed in the Declaration on the Rights of Peasants, Peasants and Other People Working in Rural Areas. These types of claims demonstrate that domestic human rights bodies may also provide leverage for further action on climate change.

• Nature rights

• Torts

• Administrative actions

• Health recovery costs and strengthen sanitary healthcare systems.

• Violation of Free, Prior and Informed consent as granted under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIPs)

• Violations under the Convention on the Elimination of All Forms of Discrimination against Women

• Violations of customary and traditional rights of communities.

Click here to read about the lessons learned through the precedent of advancing tobacco industry liability through the Master Settlement Agreement.

National:
Compel the release of industry documents

Through measures laid out elsewhere in this roadmap, or via other means, decision-makers may obtain access to industry documents that evidence wrongdoing. Releasing this data is critical for people, civil society, the media, and officials alike to hold corporations accountable for their harms.

What does this look like?

• Provide for and utilize the right to freedom of information and related legislation, as well as access to information as per Principle 10 of the Rio Convention.

• Publicly disclose and release any data and documentation from polluting corporations that has been previously withheld from the public, making it possible to monitor and expose their wrongdoings.

• Click here to read about the lessons learned through the precedent of advancing tobacco industry liability through the Master Settlement Agreement.

National:
Protect policymaking from polluters’ manipulation

Pass and implement conflict-of-interest policies and legislations to create the space for policymakers and public-serving actors to advance justice and real solutions.

What does this look like?

• Reduce the ability of polluters to advance policymaking that protects their profits by implementing measures to firewall policymaking from their interference and influence. * This includes but is not limited to:

  • 1. instituting a firewall to end polluting industry access to decision-making processes.

  • 2. addressing vested or conflicting interests.

  • 3. ending preferential treatment of and rejecting partnerships with individuals and institutions or organizations directly or indirectly representing dirty or destructive industries.

National:
End business with polluters

Withhold a corporation’s license to pollute and abuse by blacklisting polluting corporations, especially those that are currently under public scrutiny or investigation.

What does this look like?

• Ban corporations that are currently the subject of legal investigations or found guilty through such investigations (sub-nationally, nationally, regionally or internationally) for allegations related to fraud, misconduct, or human rights abuses from receiving any privilege or incentives, including but not limited to subsidies, stimulus funds, tax breaks, and access to policymaking spaces and negotiations.

• International institutions such as the UN bodies and the World Bank or other financing and investment bodies cease relationships with, or blacklist, these corporations.

  • These measures should also be taken toward polluting corporations and industries in general, in addition to applying them immediately to entities under legal scrutiny.

  • End the World Bank’s Ease of Doing Business rankings, which grades economies not on the strength of their environmental or corporate accountability policies, but effectively pressures countries to deregulate.

  • Cut ties and contracts with such corporations at all levels, including local-level partnerships that allow polluters to “greenwash” their image and buy goodwill among community members.

National:
Recognize and deliver climate reparations

Global South communities, women, youth, Black and other communities of colour, and Indigenous communities are on the front lines of the climate crisis. Recognize that they are owed reparations for the damage wrought by climate change and polluting or destructive corporate practices. And deliver reparations by requiring these corporations to sincerely apologize and address the damage they cause and debts owed. See also Loss and Damage in the International Actions Level.

What does this look like?

• Require corporations to provide public, sincere apologies to communities and individuals that have endured abuse, in some case for decades, and whose lives, livelihoods, homes and cultures have been adversely affected or lost as a result.

• Distribute and deliver reparations owed to communities on the frontlines of the climate crisis by requiring corporations to pay their climate debt to these communities, while acknowledging such a debt can never be fully paid.

• Reparations must not create dependence on polluting corporations and the mechanism for delivery of reparation—whether financial or otherwise—should be led by the affected person or persons.

• Reparations could be delivered in part through a variety of means, subject to the approval of affected communities, including:

  • Direct compensation for losses incurred (both past, present, and future).

  • Restoring land unlawfully or unduly under the control of polluting corporations back to its natural stewards, i.e. indigenous communities or local/frontline communities including women, peasants, fisherfolks, nomadic and rural peoples.

  • Making accessible technology that directly helps impacted communities respond to and address the impacts of climate change.

• Cancel any and all debt from Global South countries or frontline communities that arises out of financing real and legitimate climate action within a country.

• Align reparations measures with the demands of frontline communities based in a country/jurisdiction calling for reparations.

National:
Community-based climate damage funds

Provide support needed to frontline communities and countries that are adapting to climate change while simultaneously enduring its impacts.

What does this look like?

• Establish national or local climate damages/self-defence funds that collect, govern, and disburse the funds retrieved from liability measures advanced internationally, nationally, or sub-nationally.

• These should be community governed.

• Funds should provide for:

  • the development of community controlled renewable energy initiatives;

  • ensuring food sovereignty;

  • increasing resilience against climate disasters.