Reparation for Climate Change: The Successes and Limits of Litigation

Larisa Alwin

Chapter 18: Interim Reflection

The preceding chapters shed light on climate litigation about corporate liability for climate change. The overarching topic is to understand the legal and practical realities of climate litigation against corporations, especially against the “carbon majors,”, and the role of courts in this regard. The authors give insight in the form of a snapshot of the state of affairs in 2025. They do not aim to give a complete overview or an exhaustive discussion of all imaginable topics that can arise. Inspired by the model scenarios that were set out by the organizers of the Conference to guide and structure the discussions, the chapters lead us through several aspects of climate litigation against corporations and its legal and practical realities.¹

The takeaway from the chapters is that we are in the midst of a global legal development in climate litigation against corporations through cases decided by national courts. The applicable national law can be favorable for climate litigation, but can also raise obstacles. Climate litigation against corporations raises specific issues and challenges and has several inherent tensions. Another takeaway is that the “success” of climate litigation is not limited to the assignment of a claim. The following offers a reflection on these takeaways, with further thoughts inspired by the chapters, naming possible future issues and subjects for further research.

1.Global Legal Development Through National Legal Doctrine

Climate litigation against corporations is a worldwide phenomenon.² All over the world, climate cases against corporations are pending and new cases continue to be launched. Cases against corporations represent a growing percentage in the global climate litigation corpus. The case law discussed in the — S. 358 —previous chapters focuses on climate litigation in Europe, the United States and Australia, where most such cases are pending. The global case law shows that plaintiffs seek a broad approach, with injunction-based cases aimed at ensuring that corporations produce fewer greenhouse gas (GHG) emissions in the future and also actions for performance aiming at compensation for climate damage that has already occurred and/or reimbursement of costs for the installation of protective measures for impending climate damage. The injunction-based claims target at a wide range of corporate activities and obligations, all directly or indirectly aimed at reducing the corporations’ GHG emissions and holding them responsible for their own emissions and those of their value chain. Besides claims directly asking for an injunction to reduce GHG emissions, claims target prohibiting investments in new plants, proper assessments of investments on climate change, pulling back from financing and investing in fossil fuel industries and “greenwashing” by corporations, among other aims. Climate litigation is used as a means of putting pressure on corporations to do their part and demand justification if they do not appear to do so; plaintiffs are clearly looking for as many avenues as possible to hold corporations responsible for climate change, reduce emissions and compensate damages caused by climate change.

This legal development is global, but it takes place in cases before national courts governed by national legal doctrine. The national courts apply their own procedural law and the applicable national substantive law. The cases discussed in the chapters demonstrate how climate change is fitted into existing national legal doctrines. A typical feature of this global legal development is interaction: between climate science and legal doctrine, between national jurisdictions all over the world, between national and international courts and between civil (tort) law, human rights law and other areas of law. Climate cases against corporations show additional interaction with national legal doctrines and “soft law” on corporate responsibility such as the OECD Guidelines³ and UN Guiding Principles.⁴ These interactions require a broad view in legal scholarship on climate cases — both against states and corporations — and also a deep understanding of the international and domestic legal doctrines that are applied in climate case law. One of the potential pitfalls for legal scholars and practitioners in this field can be to look at foreign case law only through the lens of their own domestic legal doctrine.

Unlike states, corporations can potentially face climate litigation in other jurisdictions than the country where they are domiciled. Depending on the applicable national rules of international jurisdiction, plaintiffs will often have the option to take corporations to court in other countries. Parent company liability can broaden the options for plaintiffs to choose a jurisdiction that they assess as favorable for their case. National legal systems with generous rules of standing can also prove favorable for plaintiffs; an example is article 3:305a of the Dutch Civil Code, which allows for class actions seeking to protect common interests, which cannot be individualized because they accrue to a much larger group of persons, which is undefined and unspecified. On the other hand, domestic legal doctrine can also pose obstacles that prove insurmountable in climate cases against corporations in jurisdictions were the forum non conveniens and the “political question” doctrine can be used to decline jurisdiction or for dismissal, as is the case in for example the United States. It goes without saying that plaintiffs are wise to thoroughly investigate where to file a climate case against a corporation, also because the outcome can differ depending on the applicable national substantial legal doctrine.

There is no overarching international public or private regime for climate liability of corporations; the interaction in the global legal developments in climate cases has not led to a substantive global legal doctrine on corporate liability for climate change. The cases discussed in the preceding chapters, for example the German and Dutch cases discussed by Jentsch (chapter 15), show varying approaches to corporate liability to climate change due to differences in the applicable domestic law and legal traditions. One can safely assume that the exact same claim brought against the same corporation in various jurisdictions can have a different outcome per jurisdiction.

It does not seem plausible that these varying approaches by national courts can be bridged solely through global legal development within the existing national legal doctrines fired by the interaction mentioned before. Within the European Union (EU) the Corporate Sustainability Reporting Directive (CSRD) and the Corporate Sustainability Due Diligence Directive (CSDDD) could have contributed to more unity in corporate obligations linked directly or indirectly to emission reduction. Also the specific EU-wide liability regime of Article 29 CSDDD could have contributed to more unity within the EU. The amendments in the 2025 EU “Omnibus” package — which include the removal of the EU-wide liability regime in the CSDDD — form a setback in this regard.⁵

2.Recurring Themes in Climate Litigation and Typical Features of Climate Cases Against Corporations

Despite the different approaches due to domestic legal doctrine, the global climate case law corpus shows recurring themes in all types of cases. Plaintiffs often build forth on earlier claims by filing similar claims and using similar arguments to support their positions. Defendants tend to fall back on the same or similar arguments in their defense. Many of the recurring themes are connected to the characteristics of climate change. Climate change and its damage are always caused by multiple emitters, emissions can have worldwide effect, it takes time before emissions have effect, the effects can differ in time and place and synergistic effects can occur. It is probably safe to say causation is one of the most challenging aspects of climate litigation, especially in cases in which damages are claimed. Causation can also play a role in relation to the effectiveness of the injunction claimed.

Climate case law shows that the “last step” is challenging, especially in cases against corporations. In several cases, though obligation of the corporations in relation to climate change has been established, the claim was not assigned.⁶ Establishing causation between the emissions and the damages and establishing the individual reduction obligation of a corporation as named in the claim both prove extremely difficult. Both points merit further (interdisciplinary) research. Questions that arise here are: how to adapt reduction paths made for policy makers and climate science findings to an individual corporation? Is there a gap to bridge between climate scientists and legal practitioners and if so, how to do so? Are there alternative ways of thinking about this “last step” both from a legal point of view and seen from the climate science perspective?

The question that arises is which features are typical for climate cases against corporations. Several are discussed in the previous chapters, for example shareholder litigation and directors’ responsibility. Other typical features concern topics related to the corporate structure and to running a commercial enterprise, such as disclosure (to shareholders), investments and greenwashing (in advertising and in reporting). Examples of typical questions that can arise in climate litigation against corporations are:

—Is it sufficient for a corporation to abide by the law?

—Which scopes of GHG emissions as categorized by the World Resources

Institute Greenhouse Gas Protocol⁷ fall within corporations’ responsibility? Put differently: are corporations be held responsible for emissions in their value chain, and to what extent?

—Do permits and concessions have indemnifying effect? And, in that re-

spect, how to deal with everlasting permits and concessions?

—What are the effects of emission cap and trade systems such as the ETS

system?

Typical for corporate responsibility and liability for climate change are also the corporations’ knowledge of the risks posed by GHG emissions, the size of their GHG emissions and their ability to contribute to the reduction of GHG emissions.

An issue which could become more prominent is responsibility and liability connected to the direct or indirect obligation for corporations to reduce GHG emissions. Here questions can arise such as: can a corporation reduce its GHG emissions by selling plants or business units or is it obliged to shut down and clean up? What if a corporation knowingly sells to a buyer who will emit more GHGs in their exploitation of the plant or the business unit?

Legislation aimed at reduction of GHG emissions might also lead to claims such as those of energy corporations against the Dutch State. They claimed damages stating their ownership rights were breached by legislation that obliged coal plants to shut down within a certain period.⁸

The interests of future generations are an important theme in climate litigation. Until now, this theme predominantly features in cases against states. Though claims have been filed against corporations that not only serve the interests of the current generation, but also those of future generations, the debate in these cases has focused on the legal grounds and the scope of the corporations’ responsibility for climate change. A question arises about the role future generations could or should play in the corporate boardroom.

3.Inherent Tensions in Climate Litigation (Against Corporations)

Climate litigation in general has several inherent tensions, such as:

—Climate litigation concerns a global issue that cannot be solved by the

defendant alone. This tension is generally solved by the reasoning that the defendant has to “do its part” or “contribute its fair share.”

—Climate litigation is often strategic litigation, in other words, litigation pur-

suing broader interests beyond the parties’ rights. The judgments settle the rights and obligations of the parties. They do not end the broader, often complex and contextual political debate about state and/or corporate responsibility for climate change.

—Also: the judgments can raise new and/or unanswered questions, which

can lead to new climate cases or can touch on overarching topics out of scope for the judiciary: what is the relationship between the obligations of the responsible actors involved? Is there a hierarchy in responsibilities of the actors involved? How is the combined effort best organized? These are in fact general questions regarding the effectuation of the Paris Agreement.

—Climate cases are generally time consuming, while climate litigation, es-

pecially in injunction-based cases, is generally meant to speed up the pace of climate measures. Climate litigation exposes corporations, who have an interest in certainty for their business decisions especially when it comes to long-term investments, to years of uncertainty. The upside is that this allows for further discussion and refinement of the arguments, both in the legal discourse and in society.

Climate litigation concerning damages has additional inherent tensions. Van Zeben raises the question of whether finding corporations financially liable for the disappearance of a species can, and should, be seen as a “success” in the context of climate litigation.⁹ This touches on the broader question of what is “best”: injunctions directly or indirectly aimed at reduction of GHG emissions, or monetary damages for damage that has occurred. In a recent publication, Spier and Wiegers assert that climate litigation can lead to an unfair distribution of damages as they might not necessarily be awarded to those who suffer most due to climate change and the applicable national legal doctrines can be more or less generous.¹⁰ However, courts have to decide in the case at — S. 363 —hand and determine whether the claim of these plaintiffs against this corporation (or this state) can be rewarded under the applicable law. The overreaching question of moral justness of certain claims and fairness of the distribution of the damages is out of scope for the courts.

4.A Few Thoughts on “Success”

There is no clearcut answer to the question of when climate cases against corporations can be considered successful besides that “success” is not limited to the assignment of the claim. Questions arise such as: can climate litigation be considered a success if it brings attention to the issue and stimulates debate in society and in legal doctrine? Can litigation be considered successful if the claim is not assigned because the corporation has adjusted its behavior after the claim was filed? Can a case in which the claim is not assigned but the scope of corporate liability is (further) defined be considered successful? These questions all regard the direct and indirect effects of climate litigation, taking into account the broader aim of the plaintiffs. They often use these lawsuits as a platform to articulate their concerns, set an example for other corporations, contribute to societal debate about corporate responsibility regarding climate change and to put the issue on the political agenda. Interdisciplinary research can shed light on the effects of climate litigation against corporations. By now the corpus of climate cases against corporations probably offers enough examples that can be used as case studies to examine the effects on the defendants, their sector and also on the legislative response to these cases and the influence on the general opinion in society of what can be expected of corporations in relation to climate change.

5.Conclusion

A lot more can be said about the preceding chapters. They give interesting food for thought on the rapidly evolving subject of corporate liability for climate change. The global legal development on this topic continues as we speak: after nearly ten years, the Lliuya climate case, brought by a Peruvian farmer against RWE, was dismissed by the German Higher Court of Hamm.¹¹ The Court asserted that the plaintiff could possibly have a claim against the defendant under § 1004 of the German Civil Code, but concluded that the evidence showed that there was no concrete danger to his property.¹² Also — S. 364 —Milieudefensie has announced that it is launching a new case against Shell demanding that it put a stop to new oil and gas expansion, building forth on the assessment by the Court of Appeal in the Hague that Shell might be obliged to do so.¹³ The future will show where the global legal development on corporate liability for climate change will lead. One thing is sure: climate litigation against corporations will continue as long as plaintiffs feel that the policy process implementing the Paris goals is ineffective and that corporations should also contribute their share in reducing GHG emissions.