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, and/or 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 did not 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, and/or 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 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 and 2019.[1][2] There is increasing precedence and potential to sue corporate actors like financiers for breaches of duty of care and diligence.[3][4]

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.[5][6] 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; and 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,[7] 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.[8] These types of claims demonstrate that domestic human rights bodies may also provide leverage for further action on climate change.

• Other types of claims that have potential to directly hold polluting or destructive corporations liable include:

  • 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).[9]

  • Violations under the Convention on the Elimination of All Forms of Discrimination against Women.[10]

  • 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.