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Transnational Corporate Liability for Environmental Damage and Climate Change: Reassessing Access to Justice after Vedanta v. Lungowe

Published online by Cambridge University Press:  15 May 2020

Samvel Varvastian
Affiliation:
Cardiff University, School of Law and Politics, Cardiff (United Kingdom (UK)). Email: varvastians@cardiff.ac.uk.
Felicity Kalunga
Affiliation:
Cardiff University, School of Law and Politics, Cardiff (UK). Email: kalungafk@cardiff.ac.uk.

Abstract

On 10 April 2019 the Supreme Court of the United Kingdom delivered judgment in the case of Vedanta v. Lungowe, which concerned the liability of an English company for environmental damage caused by its subsidiary in Zambia. The decision confirms that English parent companies can owe a duty of care to foreign claimants affected by operations of their subsidiaries abroad and that the English courts may have jurisdiction to hear such cases, even when a foreign court is a more appropriate place for the trial. It establishes an important precedent for providing access to justice for foreign claimants in transnational corporate liability litigation. Given the global presence of English companies and the fact that their foreign subsidiaries have been involved in multiple cases of environmental damage in the host states, the decision could give an impetus to future claims being brought in the English courts. Also, the decision opens some interesting possibilities for climate change liability litigation against English parent companies and their foreign subsidiaries, as their cumulative greenhouse gas emissions are likely to be considerably higher than when taken separately, arguably making prospective claims against them more viable.

Type
Article
Copyright
Copyright © The Author(s), 2020. Published by Cambridge University Press

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Footnotes

A draft version of this article was presented during a climate litigation workshop organized by the Grantham Research Institute on Climate Change and the Environment at the London School of Economics and Political Science (LSE), London (UK), 21 June 2019. We are grateful to Joana Setzer, Jacqueline Peel, Veerle Heyvaert, Ketan Jha, Geetanjali Ganguly, Javier Solana and Lucy Maxwell for their valuable feedback. We are also grateful to Anna Grear and Valerie Fogleman for their support during the production of this article. Finally, we would like to thank the anonymous TEL referees for their useful comments.

References

1 In Apr. 2010 the explosion on the Deepwater Horizon oil rig, operated by BP (a British oil and gas multinational corporation (MNC)) led to the largest marine oil spill in history, causing vast environmental damage: see Beyer, J. et al. , ‘Environmental Effects of the Deepwater Horizon Oil Spill: A Review’ (2016) 110(1) Marine Pollution Bulletin, pp. 2851CrossRefGoogle ScholarPubMed.

2 See, e.g., Cherry, M.A. & Sneirson, J.F., ‘Beyond Profit: Rethinking Corporate Social Responsibility and Greenwashing after the BP Oil Disaster’ (2010) 85(4) Tulane Law Review, pp. 9831038Google Scholar, at 984.

3 See, e.g., Center for International Environmental Law (CIEL), ‘Smoke and Fumes: The Legal and Evidentiary Basis for Holding Big Oil Accountable for the Climate Crisis’, Nov. 2017, available at: https://www.ciel.org/wp-content/uploads/2019/01/Smoke-Fumes.pdf; Supran, G. & Oreskes, N., ‘Assessing ExxonMobil's Climate Change Communications (1977–2014)’ (2017) 12(8) Environmental Research Letters, pp. 118CrossRefGoogle Scholar, at 12–15; Frumhoff, P.C., Heede, R. & Oreskes, N., ‘The Climate Responsibilities of Industrial Carbon Producers’ (2015) 132(2) Climatic Change, pp. 157–71CrossRefGoogle Scholar, at 161–6.

4 Vedanta Resources Plc and Anor (Appellants) v. Lungowe and Ors (Respondents) [2019] UKSC 20, on appeal from [2017] EWCA Civ 1528 (Vedanta).

5 Dominic Liswaniso Lungowe and Ors v. Vedanta Resources Plc and Konkola Copper Mines Plc [2016] EWHC 975 (TCC) (Lungowe), para. 12.

6 Ibid., para. 13. In this article, the term ‘England’ is used as a shorthand expression for jurisdiction in England and Wales.

7 At the time of the Supreme Court's decision, Vedanta held nearly 80% of KCM's shares; the remaining 20% were held by ZCCM Investment Holdings Plc, almost entirely owned by the Zambian government. The latter also had a golden share in KCM. For information on KCM shareholding see Konkola Copper Mines Plc, ‘A Wealth of Information’, available at: http://kcm.co.zm/corporate-profile/company-overview/shareholding.

8 Vedanta, para. 2.

9 However, as observed by the High Court, ‘there are no details about their injuries, their land, or their alleged losses’: Vedanta, para. 11.

10 Notably, this was not the first time that KCM has been sued over its polluting activities. Thus, the initial legal action against KCM dates back to the mid-2000s, when a group of local residents brought a similar lawsuit before the Zambian courts: Nyasulu and 2,000 Ors v. KCM (2007/HP/1286) The case is discussed in more detail in Section 2.3 below.

11 Lungowe, para. 31. The primary way in which the case was put was in negligence: according to the claimants, Vedanta's duty of care arose as a result of its assumption of responsibility ‘for ensuring that [KCM]'s mining operations do not cause harm to the environment or local communities, as evidenced by the very high level of control and direction that [Vedanta] exercises at all material times over the mining operations of [KCM] and its compliance with applicable health, safety and environmental standards’.

12 Ibid., paras 31–8.

13 Vedanta, para. 17.

14 Jurisdiction against Vedanta was derived from Art. 4(1) of Regulation (EU) No. 1215/2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters [2012] OJ L 351/1, according to which persons domiciled in an EU Member State shall be sued in the courts of that Member State. Notably, the UK left the EU on 31 Jan. 2020, although EU law will continue to apply during the transitional period until 31 Dec. 2020.

15 Civil Procedure Rules 1998 (UK), S.I. 1998 No. 3132.

16 Lungowe, para. 97.

17 Ibid., para. 199.

18 Lungowe and Ors v. Vedanta Resources Plc and Anor [2017] EWCA Civ 1528, para. 136.

19 Vedanta, paras 22 and 102.

20 Ibid., para. 55.

21 Ibid., para. 49.

22 Ibid. While not a human rights case, the Supreme Court's articulation of Vedanta's duty of care towards the claimants is quite consistent with the United Nations (UN) Office of the High Commissioner, ‘Guiding Principles on Business and Human Rights’, 2011, available at: https://www.ohchr.org/documents/publications/GuidingprinciplesBusinesshr_eN.pdf (which call for corporate responsibility to respect human rights regardless of the business structure: ibid., Principle 14).

23 Vedanta, para. 22.

24 Ibid., para. 89.

25 Ibid.

26 Ibid.

27 See Lungowe, para. 184.

28 Ibid., para. 178.

29 Lubbe and Ors v. Cape Plc [2000] UKHL 41 (concerning claims for damages by over 3,000 South African residents and an English resident for personal injuries (and in some cases death) allegedly suffered as the result of exposure to asbestos and its related products in South Africa. The activities related to the production of asbestos carried out by a South African subsidiary of the defendant, Cape Plc, an English company.

30 Ibid.

31 Lungowe, paras 175–6.

32 Ibid., para. 186. The dearth of lawyers was proved from a 2012 report by the Bureau for Institutional Reform and Democracy on access to justice in Zambia, which highlighted the dearth of lawyers in Zambia and the consequences for its citizens with only four lawyers in Chingola town.

33 Ibid., paras 190 and 194.

34 2007/HP/0725.

35 2007/HP/1286.

36 Lungowe, para. 191.

37 Vedanta, p. 37.

38 Lungowe, para. 191.

39 Ibid.

40 Ibid., p. 37.

41 Spiliada Maritime Corporation v. Cansulex Ltd [1987] A.C. 460. The basic principle is that a stay will be granted on the ground of forum non conveniens only where the court is satisfied that some other available forum, having competent jurisdiction, is the appropriate forum for the trial of the action, where the case may be tried more suitably in the interests of all the parties and for the ends of justice: ibid., p. 476.

42 It is beyond the scope of this article to discuss cases where the parent company itself was involved in the polluting activities abroad, or cases where the harm was caused by a subsidiary of an English company in England.

43 E.g., Vedanta has subsidiaries not only in Zambia, but also in several other countries (details available at: https://www.vedantaresources.com/Pages/Home.aspx), including India and Ireland, where the mining operations of these subsidiaries have caused air and groundwater pollution as well as damage to farmlands, resulting in litigation before national courts: see Dunne v. Vedanta Lisheen Mining Ltd [2016] IEHC 500 (High Court of Ireland); The State of Tamil Nadu and Ors v. Vedanta Ltd [2019] No. 23/2019 (Supreme Court of India).

44 The 2015 Mariana dam disaster is considered to be the worst environmental disaster in Brazil's history, with toxic waste from the collapsed mine devastating the local river and reaching the Atlantic Ocean, as well as dealing irreversible damage to local animal and plant life and killing 19 people. The owner of the dam, Samarco Mineração S.A., is a joint venture of BHP, an Anglo-Australian mining, metals and petroleum company, and Vale S.A., a Brazilian metals and mining company: see Tuncak, B., ‘Lessons from the Samarco Disaster’ (2017) 2(1) Business and Human Rights Journal, pp. 157–62CrossRefGoogle Scholar. Notably, in Jan. 2019 Vale S.A. was involved in yet another catastrophic failure in one of its mines – the Brumadinho dam disaster – which left more than 200 people dead and local rivers and soil substantially polluted.

45 See Business and Human Rights Resource Centre, ‘BHP Billiton & Vale Lawsuit (re Dam Collapse in Brazil)’, available at: https://www.business-humanrights.org/en/bhp-billiton-vale-lawsuit-re-dam-collapse-in-brazil.

46 Lungowe, paras 21–24, 80–82.

47 Connelly v. RTZ Plc [1998] AC 854. The claimant in Connelly was a UK citizen who allegedly developed cancer while working in a uranium mine in Namibia operated by a South African company, which was a subsidiary of RTZ Plc, an English company. The claimant sued the parent company, alleging that it was negligent in the implementation of the policy and supervision of health, safety and environmental protection at the mine.

48 2008/HP/245 (Kangwa).

49 Kangwa, ibid., p. J12.

50 Ibid., p. J49.

51 Martha Mutizhe Kangwa and 27 Ors v. Zambia Environmental Management Agency and 2 Ors, Supreme Court of Zambia, SCZ/8//287/2011 Judgment No. 49 of 2014.

52 Ibid.

53 It has been observed that even if victims of environmental damage and human rights abuses succeed in their cases brought before African national courts or regional international bodies, the failure of many African governments to enforce these decisions significantly impedes access to justice: see, e.g., Chenwi, L., ‘The Right to a Satisfactory, Healthy, and Sustainable Environment in the African Regional Human Rights System’, in Knox, J.H. & Pejan, R. (eds), The Human Right to a Healthy Environment (Cambridge University Press, 2018), pp. 5985CrossRefGoogle Scholar; see also Chs 37, 42 and 43 (discussing the particular vulnerability of communities in Africa to environmental and human rights abuses in May, J.R. & Daly, E. (eds), Human Rights and the Environment: Legality, Indivisibility, Dignity and Geography (Edward Elgar, 2019))Google Scholar.

54 Jonah Gbemre v. Shell Petroleum Development Corp. of Nigeria Ltd and Ors, (2005) Suit No. FHC/B/CS/53/05 (Federal High Court).

55 Gbemre, ibid., p. 1. See African Charter on Human and Peoples’ Rights, Nairobi (Kenya), 27 June 1981, in force 21 Oct. 1986, available at: http://www.achpr.org/instruments/achpr.

56 Gbemre, n. 54 above, pp. 30–1.

57 See Faturoti, B., Onya, G. Agbaitoro & O., ‘Environmental Protection in the Nigerian Oil and Gas Industry and Jonah Gbemre v. Shell PDC Nigeria Limited: Let the Plunder Continue?’ (2019) 27(2) African Journal of International and Comparative Law, pp. 225–45CrossRefGoogle Scholar, at 235–6; Ukala, E., ‘Gas Flaring in Nigeria's Niger Delta: Failed Promises and Reviving Community Voices’ (2010) 2(1) Washington and Lee Journal of Energy, Climate, and the Environment, pp. 97126Google Scholar.

58 Pontin, E.M. Blanco & B., ‘Litigating Extraterritorial Nuisances under English Common Law and UK Statute’ (2017) 6(2) Transnational Environmental Law, pp. 285308Google Scholar, at 305. See also the UK Supreme Court in Vedanta (noting that ‘a conclusion that a foreign jurisdiction would not provide substantial justice risks offending international comity’: Vedanta, para. 11).

59 See, e.g., Whytock, C.A. & Robertson, C. Burke, ‘Forum Non Conveniens and the Enforcement of Foreign Judgments’ (2011) 111(7) Columbia Law Review, pp. 1444–521Google Scholar (discussing how different standards in the application of the forum non conveniens doctrine can create a transnational access to justice gap); see also Gardner, M., ‘Retiring Forum Non Conveniens’ (2017) 92(2) New York University Law Review, pp. 390461Google Scholar.

60 Curran, V. Grosswald, ‘Harmonizing Multinational Parent Company Liability for Foreign Subsidiary Human Rights Violations’ (2016) 17(2) Chicago Journal of International Law, pp. 403–46Google Scholar, at 406.

61 Ibid., p. 408.

62 Skinner, G.L., ‘Beyond Kiobel: Providing Access to Judicial Remedies for Violations of International Human Rights Norms by Transnational Business in a New (Post-Kiobel) World’ (2014) 46(1) Columbia Human Rights Law Review, pp. 158265Google Scholar, at 168.

63 See, e.g., Faga, H.P. & Uchechukwu, U., ‘Oil Exploration, Environmental Degradation, and Future Generations in the Niger Delta: Options for Enforcement of Intergenerational Rights and Sustainable Development through Legal and Judicial Activism’ (2019) 34 Journal of Environmental Law and Litigation, pp. 185218Google Scholar, at 194–204 (for a discussion of large-scale environmental degradation in Nigeria, including air, water and land pollution, caused by oil exploration). See also Sirleaf, M.V.S., ‘Prosecuting Dirty Dumping in Africa’, in Jalloh, C.C., Clarke, K.M. & Nmehielle, V.O. (eds), The African Court of Justice and Human and Peoples’ Rights in Context: Development and Challenges (Cambridge University Press, 2019), pp. 553–89CrossRefGoogle Scholar (for discussion of the role of MNCs in dumping of toxic waste in African countries).

64 Bratspies, R., ‘Corrupt at Its Core: How Law Failed the Victims of Waste Dumping in Côte d'Ivoire’ (2018) 43(2) Columbia Journal of Environmental Law, pp. 417–73Google Scholar (discussing large-scale illegal resource extraction in Africa, Asia, Latin America, and Russia, as well as multiple incidents of violations of law before, during and after the dumping of particularly hazardous waste in Côte d'Ivoire by the various parties involved).

65 For a discussion of how these doctrines benefit MNCs see, e.g., Kirshner, J.A., ‘Why Is the US Abdicating the Policing of Multinational Corporations to Europe: Extraterritoriality, Sovereignty, and the Alien Tort Statute’ (2012) 30(2) Berkeley Journal of International Law, pp. 259302Google Scholar, at 264–5; Vastardis, A. Yilmaz & Chambers, R., ‘Overcoming the Corporate Veil Challenge: Could Investment Law Inspire the Proposed Business and Human Rights Treaty?’ (2018) 67(2) International & Comparative Law Quarterly, pp. 389423CrossRefGoogle Scholar.

66 Osofsky, H.M., ‘Climate Change and Environmental Justice: Reflections on Litigation over Oil Extraction and Rights Violations in Nigeria’ (2010) 1(2) Journal of Human Rights and the Environment, pp. 189210CrossRefGoogle Scholar, at 192.

67 See, e.g., Onwuazombe, I.I., ‘Human Rights Abuse and Violations in Nigeria: A Case Study of the Oil-Producing Communities in the Niger Delta Region’ (2017) 22(1) Annual Survey of International and Comparative Law, pp. 115–60Google Scholar, at 118; Grear, A. & Weston, B.H., ‘The Betrayal of Human Rights and the Urgency of Universal Corporate Accountability: Reflections on a Post-Kiobel Lawscape’ (2015) 15(1) Human Rights Law Review, pp. 2144CrossRefGoogle Scholar, at 40 (observing that ‘human rights are inadequately protected in the face of TNC complexity, power and global influence’ and that ‘the various legal strategies deployed to protect human rights by recruiting alternative legal avenues and forms of accountability are ultimately unsatisfying’).

68 Percival, R.V., ‘Global Law and the Environment’ (2011) 86(3) Washington Law Review, pp. 579634Google Scholar, at 601–2; Grear, A., ‘Corporations, Human Rights, and the Age of Globalization: Another Look at the “Dark Side” in the Twenty-First Century’, in Weston, B.H. & Grear, A. (eds), Human Rights in the World Community: Issues and Action (University of Pennsylvania Press, 2016), pp. 416–26Google Scholar, at 418–21; Muchlinski, P., ‘The Development of Human Rights Responsibilities for Multinational Enterprises’, in Sullivan, R. & Robinson, M. (eds), Business and Human Rights: Dilemmas and Solutions (Routledge, 2017), pp. 3351CrossRefGoogle Scholar, at 38–9.

69 See Palombo, D., ‘The Duty of Care of the Parent Company: A Comparison between French Law, UK Precedents and the Swiss Proposals’ (2019) 4(2) Business and Human Rights Journal, pp. 265–86CrossRefGoogle Scholar, at 275 (at the political level, attempts to introduce corporate duty of vigilance legislation in several countries have consistently faced opposition, alleging that such legislation would put national businesses in a disadvantaged position compared with foreign companies because of potential exposure to liability litigation. The notable exception to this is France, which in 2017 became the first country to pass legislation establishing ‘a due diligence obligation for French parent companies to monitor the extraterritorial human rights and environmental abuses committed by their offshore affiliates’). See also Grosswald Curran, n. 60 above, pp. 415–22.

70 Sherman, J.F., ‘Should a Parent Company Take a Hands-off Approach to the Human Rights Risks of its Subsidiaries?’ (2018) 19(1) Business Law International, pp. 2336Google Scholar, at 28.

71 Okpabi and Ors v. Royal Dutch Shell Plc and Anor [2017] EWHC 89 (TCC), 26 Jan. 2017 (Okpabi (2017)); Okpabi and Ors v. Royal Dutch Shell Plc and Shell Petroleum Development Company of Nigeria Ltd [2018] EWCA Civ 191 (Okpabi (2018)).

72 Another case that arose under very similar circumstances is The Bodo Community and Ors v. Shell Petroleum Development Company of Nigeria Ltd [2014] EWHC 1973 (TCC). In that case, however, the claims proceeded against the subsidiary on the sole basis of an agreement that it would voluntarily submit to the jurisdiction and admit responsibility for the pollution.

73 Okpabi (2018), n. 71 above, para. 2.

74 Okpabi (2017), n. 71 above, paras 113–6, 119.

75 Okpabi (2018), n. 71 above, para. 134.

76 A similar conclusion was reached in a non-environmental case, AAA v. Unilever Plc [2017] EWHC 371 (QB). The case was brought by victims of ethnic violence in Kenya following the general elections, when groups of attackers invaded the tea plantation operated by the Kenyan subsidiary of an English-based company, killing, raping and physically assaulting the workers. The Court of Appeal dismissed the claim against the parent company, thus preventing the claimants from asserting jurisdiction against the subsidiary company in England.

77 Aristova, E., ‘Tort Litigation against Transnational Corporations in the English Courts: The Challenge of Jurisdiction’ (2018) 14(2) Utrecht Law Review, pp. 621CrossRefGoogle Scholar, at 16.

78 See the discussion of the relevant case law in Grosswald Curran, n. 60 above, pp. 434–44.

79 Akpan v. Royal Dutch Shell Plc, ECLI:NL:RBSGR:2013:BY9854 (District Court, The Hague, 2013); Dooh v. Royal Dutch Shell Plc, ECLI:NL:GHDHA:2015:3586 (Court of Appeal, The Hague, 17 Dec. 2015). Notably, in its ruling the Dutch courts made multiple references to English case law. For a broader discussion of this case see N. Jägers, K. Jesse & J. Verschuuren, ‘The Future of Corporate Liability for Extra Territorial Human Rights Abuses: The Dutch Case against Shell’ (2013) 107 AJIL Unbound, pp. e36–e41; Weller, M. & Pato, A., ‘Local Parents as “Anchor Defendants” in European Courts for Claims against their Foreign Subsidiaries in Human Rights and Environmental Damages Litigation: Recent Case Law and Legislative Trends’ (2018) 23(2) Uniform Law Review, pp. 397417CrossRefGoogle Scholar.

80 See, e.g., the recent decision of the Supreme Court of Canada in the non-environmental case of Nevsun Resources Ltd v. Araya, 2020 SCC 5, concerning Eritrean workers’ forced labour in a mine owned by a Canadian company, in which it was confirmed that corporations are not immune from direct liability for human rights violations under customary international law: ‘it is not “plain and obvious” that corporations today enjoy a blanket exclusion under customary international law from direct liability for violations of “obligatory, definable, and universal norms of international law”, or indirect liability for their involvement in … “complicity offenses”’: ibid., para. 113.

81 See Whytock, C.A., ‘The Evolving Forum Shopping System’ (2011) 96(3) Cornell Law Review, pp. 481534Google Scholar, at 490–7 (discussing the advantages that foreign claimants could traditionally enjoy by perusing transnational litigation in US courts).

82 See, e.g., S. Baughen, Human Rights and Corporate Wrongs: Closing the Governance Gap (Edward Elgar, 2015), pp. 54–9, 78–80, 152–71.

83 28 U.S.C. § 1350.

84 See S.P. Mulligan, ‘The Alien Tort Statute (ATS): A Primer’, 1 June 2018, p. 1, available at: https://crsreports.congress.gov/product/pdf/R/R44947/4. Notably, while the US Supreme Court held that ‘the ATS is a jurisdictional statute creating no new causes of action’, it considered that in certain narrow circumstances courts may recognize a common law cause of action for claims based on contemporary international law: see Sosa v. Alvarez-Machain, 542 U.S. 692, 724–5 (2004).

85 Kiobel v. Royal Dutch Petroleum, 569 U.S. 108 (2013). Directly related to these circumstances was Wiwa v. Royal Dutch Petroleum Co., 226 F 3d 88 (2d Cir. 2000), brought by the family of the executed Ogoni activist Ken Saro-Wiwa under the ATS against RDS and SPDC. In 2009 RDS agreed to pay USD 15.5 million to settle the case. Similar circumstances occurred in Bowoto v. Chevron Corp., 621 F.3d 1116 (9th Cir. 2010), which was also brought under the ATS and dismissed by the US Court of Appeals for the Ninth Circuit. In Bowoto, a group of Nigerian citizens, protesting against the environmental damage caused by Chevron Nigeria Ltd, a subsidiary of the US-based oil company Chevron, was attacked by Nigerian military, allegedly hired by Chevron to suppress the protests. The claimants did not pursue claims against the subsidiary company.

86 Kiobel, ibid., p. 125. It has been observed that this formulation produced more questions than answers and led to conflicting interpretations by the lower courts: see, e.g., Alford, R.P., ‘The Future of Human Rights Litigation after Kiobel’ (2014) 89(4) Notre Dame Law Review, pp. 1749–72Google Scholar, at 1754 (referring to the decision as ‘complex and confusing, offering scant guidance as to how lower courts should proceed when claims touch and concern U.S. territory’). For a discussion of different interpretations see Note, , ‘Clarifying Kiobel's Touch and Concern Test’ (2017) 130(7) Harvard Law Review, pp. 1902–23Google Scholar. This decision did not put an end to the claimants’ attempts to hold Shell accountable, as they have subsequently pursued litigation in the Netherlands, where it may have better prospects of success: see Claimants v. Royal Dutch Shell Plc and Ors, ECLI:NL:RBDHA:2019:6670 (District Court of The Hague, 2019) (holding that Dutch courts have jurisdiction to hear the claims: ibid., paras 4.23–4.29).

87 Jesner v. Arab Bank Plc, 138 S. Ct. 1386 (2018). The lawsuit was brought by non-US victims of terrorist attacks in Israel, the West Bank and Gaza, and their families, alleging that Arab Bank aided and abetted the terrorist groups in the Middle East by transferring funds to their accounts, including transactions passing through the bank's offices in New York City.

88 The court held that ‘any imposition of corporate liability on foreign corporations for violations of international law must be determined in the first instance by the political branches of the Government’: Jesner, ibid., p. 1408.

89 Instead, the US Supreme Court made the following observation: ‘Because this case involves a foreign corporation, we have no need to reach the question whether an alien may sue a United States corporation under the ATS. And since such a suit may generally be brought in a federal court based on diversity jurisdiction, 28 U.S.C.§ 1332(a)(2), it is unclear why ATS jurisdiction would be needed in that situation’: Jesner, n. 87 above, p. 1410 (note*).

90 Dellinger, M., ‘Post-Jesner Climate Change Lawsuits under the Alien Tort Statute’ (2019) 44(S) Columbia Journal of Environmental Law, pp. 241–97Google Scholar, at 269. For a discussion of the prospective transnational climate change liability claims brought by foreign claimants directly against the US private emitters in the US courts or in their home state courts see Byers, M., Gage, K. Franks & A., ‘The Internationalization of Climate Damages Litigation’ (2017) 7(2) Washington Journal of Environmental Law & Policy, pp. 264319Google Scholar. Corporate climate change liability will be discussed in more detail in the next part of this article.

91 Dodge, W.S., ‘Corporate Liability under the US Alien Tort Statute: A Comment on Jesner v. Arab Bank’ (2019) 4(1) Business and Human Rights Journal, pp. 131–7CrossRefGoogle Scholar, at 135.

92 Ibid.

93 E.g., political question, sovereign immunity, comity, forum non conveniens, etc: Baughen, n. 82 above, pp. 59–80. See also Bookman, P.K., ‘Litigation Isolationism’ (2015) 67(5) Stanford Law Review, pp. 1081–144Google Scholar.

94 In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India in Dec. 1984, 809 F.2d 195 (2d Cir. 1987). For a discussion of this case see Baxi, U., ‘Writing about Impunity and Environment: The “Silver Jubilee” of the Bhopal Catastrophe’ (2010) 1(1) Journal of Human Rights and the Environment, pp. 2344CrossRefGoogle Scholar.

95 Aguinda v. Texaco, Inc., 303 F.3d 470 (2d Cir. 2002). For a discussion of this case see Yilmaz Vastardis & Chambers, n. 65 above, pp. 407–11.

96 See Loon, H. van, ‘Principles and Building Blocks for a Global Legal Framework for Transnational Civil Litigation in Environmental Matters’ (2018) 23(2) Uniform Law Review, pp. 298318CrossRefGoogle Scholar, at 309; see also Liu, C., ‘Escaping Liability via Forum Non Conveniens: ConocoPhillips's Oil Spill in China’ (2014) 17(2) University of Pennsylvania Journal of Law and Social Change, pp. 137–74Google Scholar.

97 See, e.g., Heiser, W.W., ‘Forum Non Conveniens and Choice of Law: The Impact of Applying Foreign Law in Transnational Tort Actions’ (2005) 51(3) Wayne Law Review, pp. 1161–92Google Scholar, at 1170; Posner, E.A. & Sunstein, C.R., ‘Chevronizing Foreign Relations Law’ (2007) 116(6) Yale Law Journal, pp. 1170–229CrossRefGoogle Scholar; Dodge, W.S., ‘International Comity in American Law’ (2015) 115(8) Columbia Law Review, pp. 2071–142Google Scholar.

98 See Grear & Weston, n. 67 above, p. 37 (arguing that the outcome in Kiobel ‘strengthens the rationales for paying attention to non-[ATS] strategies’). An example of a more successful outcome in non-ATS transnational environmental litigation is Jam et al. v. International Finance Corp., 139 S.Ct. 759 (2019), recently addressed by the US Supreme Court, in which a group of farmers and fishermen from India sued the International Finance Corporation (IFC) for inadequate supervision of the construction of a coal-fired power plant in the state of Gujarat (India). The IFC maintained that it was immune from suit under the 1945 International Organizations Immunities Act and moved to dismiss for lack of jurisdiction. The US Supreme Court held that the Act does not grant absolute immunity from suit to international organizations. Notably, though, in Jam the defendant was not a private company but an international organization with 184 member countries, including the US and India.

99 See, e.g., Bookman, n. 93 above, p. 1116 (noting that the US ‘is no longer presumptively plaintiffs’ favorite forum’ and that ‘securities, environmental, and human rights litigation provide examples of types of litigation that are gradually migrating abroad’).

100 Okpabi (2018), n. 71 above, para. 88.

101 Massachusetts v. Environmental Protection Agency (EPA), 549 U.S. 497 (2007). The Supreme Court held that the US EPA had abdicated its responsibility under the federal air quality legislation to regulate automobile GHG emissions.

102 Future Generations v. Ministry of the Environment, STC4360 (2018). The claimants successfully challenged the Colombian government's inaction over deforestation in the Amazon region, which, according to the claimants, greatly contributed to the total volume of GHG emissions in the country and therefore climate change.

103 The State of the Netherlands (Ministry of Infrastructure and the Environment) v. Urgenda Foundation, ECLI:NL:HR:2019:2007 (2019). The Court held that the state was in breach of its duty of care by failing to pursue more ambitious GHG reduction targets: see Zeben, J. van, ‘Establishing a Governmental Duty of Care for Climate Change Mitigation: Will Urgenda Turn the Tide?’ (2015) 4(2) Transnational Environmental Law, pp. 339–57CrossRefGoogle Scholar; and Mayer, B., ‘The State of the Netherlands v. Urgenda Foundation: Ruling of the Court of Appeal of The Hague (9 October 2018)’ (2019) 8(1) Transnational Environmental Law, pp. 167–92CrossRefGoogle Scholar.

104 See S. Varvastian, ‘The Human Right to a Clean and Healthy Environment in Climate Change Litigation’ (2019) Max Planck Institute for Comparative Public Law & International Law Research Paper No. 2019-09, 10 Apr. 2019, pp. 1–18.

105 See, e.g., Saiger, A.-J., ‘Domestic Courts and the Paris Agreement's Climate Goals: The Need for a Comparative Approach’ (2020) 9(1) Transnational Environmental Law, pp. 3754CrossRefGoogle Scholar.

106 See Ganguly, G., Setzer, J. & Heyvaert, V., ‘If At First You Don't Succeed: Suing Corporations for Climate Change’ (2018) 38(4) Oxford Journal of Legal Studies, pp. 841–68CrossRefGoogle Scholar.

107 American Electric Power Co. v. Connecticut, 564 U.S. 410, 429 (2011).

108 Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 856–8 (9th Cir. 2012).

109 See Heede, R., ‘Tracing Anthropogenic Carbon Dioxide and Methane Emissions to Fossil Fuel and Cement Producers, 1854–2010’ (2014) 122(1–2) Climatic Change, pp. 229–41CrossRefGoogle Scholar. For updated reports based on Heede's study see Climate Accountability Institute, https://climateaccountability.org/index.html.

110 BP, along with other major fossil fuel producers, was sued by property owners in Mississippi who claimed that the companies’ GHG emissions contributed to global warming and therefore to a rise in sea level, which added to the ferocity of Hurricane Katrina, ultimately causing massive damage to the claimants’ property: Comer v. Murphy Oil USA, 585 F.3d 855 (5th Cir. 2009); Comer v. Murphy Oil USA, Inc., 839 F.3d 849 (S.D. Miss. 2012). Similarly, BP and other fossil fuel producers were defendants in Kivalina, n. 108 above. Both lawsuits were dismissed on procedural grounds.

111 Mayor & City Council of Baltimore v. BP Plc & Ors, 388 F.Supp.3d 538 (D. Maryland 2019) (dismissing the argument that the ‘City's claims “intrude upon both foreign policy and carefully balanced regulatory considerations at the national level, including the foreign affairs doctrine”’ because the ‘defendants [did] not actually identify any foreign policy that [was] implicated by the City's claims. The decision was appealed against, including the defendants’ motions to have it removed to a federal court; in March 2020, the US Court of Appeals for the Fourth Circuit allowed it to stay in the state court); City of New York v. BP Plc & Ors, 325 F.Supp.3d 466 (S.D. New York 2018) (the claim was against the parent company only. The court held that ‘to the extent that the city was seeking to hold companies liable for damages stemming, not just from domestic, but from foreign greenhouse gas emissions, the city's claims were barred by presumption against extraterritoriality and the need for judicial caution in the face of serious foreign policy consequences’. As of March 2020, the case was on appeal in the US Court of Appeals for the Second Circuit); King County v. BP Plc & Ors, WL 4385447 (W.D. Wash. 2018) (the claim was against the parent company only. The court granted one of the defendants – RDS – motion to dismiss the claims against it on the ground of lack of jurisdiction); City of Oakland v. BP Plc & Ors, 325 F.Supp.3d 1017 (N.D. California 2018) (dismissing the claims on grounds of separation of powers and foreign policy. As of March 2020, the case was on appeal to the Ninth Circuit); Rhode Island v. Chevron Corp. & Ors, 393 F.Supp.3d 142 (D. Rhode Island 2019) (dismissing the argument that the foreign-affairs doctrine completely pre-empts the state's claims. As of March 2020, the case was on appeal in the US Court of Appeals for the First Circuit); City & County of Honolulu v. Sunoco LP & Ors, 1CCV-20-0000380 (Hawai'i Cir.Ct., filed in 2020).

112 See, e.g., City of New York, ibid., p. 473; City of Oakland, ibid., p. 1024.

113 Republic of the Philippines, Commission on Human Rights, ‘In Re: National Inquiry on the Impact of Climate Change on the Human Rights of the Filipino People and the Responsibility therefor, if any, of the “Carbon Majors”’, Case No: CHR-NI-2016-0001, Memorandum for the Petitioners, 19 Sept. 2019.

114 CIEL, ‘Groundbreaking Inquiry in Philippines Links Carbon Majors to Human Rights Impacts of Climate Change, Calls for Greater Accountability’, 9 Dec. 2019, available at: https://www.ciel.org/news/groundbreaking-inquiry-in-philippines-links-carbon-majors-to-human-rights-impacts-of-climate-change-calls-for-greater-accountability. The Commission, however, is not a judicial body and its primary functions are investigatory and advisory: see Savaresi, A. & Auz, J., ‘Climate Change Litigation and Human Rights: Pushing the Boundaries’ (2019) 9(3) Climate Law, pp. 244–62CrossRefGoogle Scholar, at 259–61.

115 However, claims against private emitters, following the model of litigation against governments and requiring companies to substantially reduce their GHG emissions, are also starting to emerge: see nn. 126 and 127 below.

116 See, e.g., Stott, P.A. et al. , ‘Attribution of Extreme Weather and Climate-related Events2016 7(1) WIREs Climate Change, pp. 2341CrossRefGoogle ScholarPubMed, at 30; Marjanac, S. & Patton, L., ‘Extreme Weather Event Attribution Science and Climate Change Litigation: An Essential Step in the Causal Chain?’ (2018) 36(3) Journal of Energy & Natural Resources Law, pp. 265–98CrossRefGoogle Scholar.

117 Todd, J., ‘A “Sense of Equity” in Environmental Justice Litigation’ (2020) 44(1) Harvard Environmental Law Review, pp. 169233Google Scholar, at 181. See also Kysar, D.A., ‘What Climate Change Can Do about Tort Law’ (2011) 41(1) Environmental Law, pp. 171Google Scholar.

118 See, e.g., Comer (2012), n. 110 above, p. 849; City of Oakland v. BP Plc, No. C 17-06011 WHA and No. C 17-06012 WHA (N.D. Cal. 2018) (order granting motions to dismiss for lack of personal jurisdiction), p. 5; King County v. BP Plc, n. 111 above, p. 9.

119 City of Oakland v. BP Plc, ibid., p. 2.

120 An important point here is that half of the emissions have been produced since 1986 (see Heede, n. 109 above, p. 234); by that time, major fossil fuel companies were already aware of the risks associated with fossil fuel production and use (see n. 3 above).

121 See Mitchell, D. et al. , ‘Attributing Human Mortality During Extreme Heat Waves to Anthropogenic Climate Change’ (2016) 11(7) Environmental Research Letters, pp. 18CrossRefGoogle Scholar; Ekwurzel, B. et al. , ‘The Rise in Global Atmospheric CO2, Surface Temperature, and Sea Level from Emissions Traced to Major Carbon Producers’ (2017) 144(4) Climatic Change, pp. 579–90CrossRefGoogle Scholar; Licker, R. et al. , ‘Attributing Ocean Acidification to Major Carbon Producers’ (2019) 14(12) Environmental Research Letters, pp. 114CrossRefGoogle Scholar. For a comprehensive assessment of how climate change attribution science can be used in litigation see Burger, M., Horton, R. & Wentz, J., ‘The Law and Science of Climate Change Attribution’ (2020) 45(1) Columbia Journal of Environmental Law, pp. 57240Google Scholar.

122 See n. 3 above.

123 See, e.g., Ganguly, Setzer & Heyvaert, n. 106 above, pp. 856–8. See also Olszynski, M., Mascher, S. & Doelle, M., ‘From Smokes to Smokestacks: Lessons from Tobacco for the Future of Climate Change Liability’ (2017) 30(1) Georgetown Environmental Law Review, pp. 145Google Scholar.

124 Lliuya v. RWE AG, 2O 285/15 (VG Essen, 2016).

125 Lliuya v. RWE AG, 1-5 U 15/17 (Landgericht Essen, 2017).

126 Smith v. Fonterra Co-Operative Group Ltd and Ors [2020] NZHC 419 (High Court of New Zealand).

127 Notably, unlike most other cases against fossil fuel companies, the claimant in this case is not seeking damages but, instead, is requesting the Court to require each defendant to achieve net zero emissions by 2030: ibid., paras 12–17. A similar case, Milieudefensie et al. v. Royal Dutch Shell Plc, initiated by a group of Dutch NGOs against RDS in Apr. 2019, is currently pending in the District Court of The Hague.

128 Smith, n. 126 above, para. 103 (‘I am reluctant to conclude that the recognition of a new tortious duty which makes corporates responsible to the public for their emissions, is untenable. … [I]t may be … that a novel claim such as that filed by Mr Smith could result in the further evolution of the law of tort. It may, for example, be that the special damage rule in public nuisance could be modified; it may be that climate change science will lead to an increased ability to model the possible effects of emissions. These are issues which can only properly be explored at trial. I am not prepared to strike out the third cause of action and foreclose on the possibility of the law of tort recognising a new duty which might assist Mr Smith’).

129 For a discussion of the relevance of the Lliuya case to English law see Kumar, V. & Frank, W., ‘Holding Private Emitters to Account for the Effects of Climate Change: Could a Case Like Lliuya Succeed under English Nuisance Laws?’ (2018) 12(2) Carbon & Climate Law Review, pp. 110–23CrossRefGoogle Scholar.

130 Information about the action is available at: https://www.totalincourt.org/?s=amisdelaterre.

131 See Palombo, n. 69 above, pp. 275–6.

132 Though not necessarily involving the parent/subsidiary relationship and concerning different types of business.

133 This is especially true in the case of countries with a significant presence of foreign fossil fuel corporations, including Nigeria and the Philippines: see Heede, n. 109 above, p. 231.

134 The alleged negligible contribution to cumulative emissions is a common argument in climate change litigation; it was refuted by both the Supreme Court of the Netherlands in Urgenda, n. 103 above, para. 5.7.8 (ruling that ‘[t]he defence that a duty to reduce greenhouse gas emissions on the part of the individual states does not help because other countries will continue their emissions cannot be accepted … : no reduction is negligible’), and the US Supreme Court in Massachusetts v. EPA, n. 101 above, pp. 525–6 (holding that the existence of other major GHG emitters, like China and India, should not preclude the US agency from its regulatory duty, because ‘[a] reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere’). Some other courts, however, have ruled differently. For a discussion see Varvastian, S., ‘Access to Justice in Climate Change Litigation from a Transnational Perspective: Private Party Standing in Recent Climate Cases’, in Jendrośka, J. & Bar, M. (eds), Procedural Environmental Rights: Principle X of the Rio Declaration in Theory and Practice (Intersentia, 2017), pp. 481502Google Scholar.

135 Smith, n. 126 above, para. 98.

136 The fact that such lawsuits could be brought by those affected by climate change in the developing world raises, among other issues, the question of climate justice: see Peel, J. & Lin, J., ‘Transnational Climate Litigation: The Contribution of the Global South’ (2019) 113(2) American Journal of International Law, pp. 679726CrossRefGoogle Scholar, at 681; Setzer, J. & Benjamin, L., ‘Climate Litigation in the Global South: Constraints and Innovations’ (2020) 9(1) Transnational Environmental Law, pp. 77101CrossRefGoogle Scholar.

137 Smith, n. 126 above, para. 98.

138 City of Oakland v. BP Plc (order granting motions to dismiss for lack of personal jurisdiction), n. 118 above, pp. 6 and 12.

139 See UN General Assembly, Report of the Special Rapporteur on the Issue of Human Rights Obligations relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment (15 July 2019), UN Doc. A/74/161, available at: http://www.srenvironment.org/sites/default/files/Reports/2019/UNGA%20Safe%20Climate%20Report%202019.pdf.

140 Juliana v. United States, 947 F.3d 1159, 1169 (9th Cir. 2020)

141 Ibid., pp. 1169–75.

142 See Kuh, K. Fischer, ‘Judicial Climate Engagement’ (2020) 46 Ecology Law Quarterly (forthcoming)Google Scholar. See also Burger, Horton & Wentz, n. 121 above, p. 141 (noting that attribution science is not always effective in persuading courts to take action on climate change – not only because of the ‘complexity and limitations in the science’ but also because of political barriers).

143 See T.C. Mitimingi & M. Hill, ‘Zambia Files Notice of Plans to Seize Vedanta Copper Assets’, Bloomberg, 20 May 2019, available at: https://www.bloomberg.com/news/articles/2019-05-20/zambia-files-notification-of-plans-to-take-over-vedanta-assets. The decision is being implemented through a petition that has been filed in the Zambian High Court by ZCC-IH to liquidate KCM: see C. Phiri, ‘KCM Placed under Liquidation’, Zambia Reports, 21 May 2019, available at: https://zambiareports.com/2019/05/21/kcm-placed-liquidation.

144 Vedanta, para. 6.

145 Ibid., para. 10.

146 Lungowe, para. 79.

147 See, e.g., Grosswald Curran, n. 60 above, p. 443 (arguing that Vedanta and similar cases in common law jurisdictions could also be taken into account by US courts, to a greater extent than cases in civil law jurisdictions).

148 See Sherman, n. 70 above, p. 29.

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