INTRODUCTION

It is no exaggeration to say that the age of corporate climate litigation is upon us. This is not only with respect to the number of cases filed globally against companies, lawsuits that implicate companies, and even pre-emptive lawsuits filed by companies. Such lawsuits affect companies in unprecedented ways: their valuation, their governance, and in turn, their role as key agents of climate mitigation and adaptation. This is new; a decade back, stakeholders in climate policy and governance were far more invested in the role of international institutions and the nation state. Now there are dedicated databases and research centres on the role of corporations. There are several explanatory factors behind this interest, including: dilution of reliance on the outcome of protracted negotiations under the United Nations Framework Convention of Climate Change (UNFCCC), a discursive shift from voluntary action to liability in scholarly commentary and popular outlets as evidence accumulates in impending ecological change, publicised evidence of undisclosed reports by companies, and the emergence of attention on ‘Carbon Majors’ as state-like actors in climate change. From the perspective of material or real-world effects of corporate climate litigation, there also appears to be a realisation that obtaining material remedies such as injunctions or damages is not the only goal of such cases. On the contrary, the indirect effect of driving behavioural change in corporations through monitoring sustainability claims, valuation of shares, and changes in investment portfolio appears to be the driving force behind such cases.

INTRODUCTION

People v. Arctic Oil is a full-bench judgment and decision delivered by the Norwegian Supreme Court in December 2020.It was a case where Greenpeace and Nature & Youth (joined by Grandparents’ Climate Movement and Friends of the Earth Norway as interveners) filed an application to quash licences issued by the Norwegian government for petroleum exploration in the Barents Sea during the 23rd Licensing Round (Licensing Decision). The case began its trajectory before the Oslo District Court with a fair bit of publicity – there was an ice sculpture with a ‘112’ inscription found outside the courthouse,signifying Article 112 of the Norwegian Constitution on the right to a healthy environment. Thus, the case was framed by the petitioners as a climate rights case where both rights under the European Convention of Human Rights (ECHR) as well as constitutional rights were in play. The case then went up to the BorgartingCourt of Appeal, and finally to the Supreme Court. The case was decided in favour of the government at all three stages. Aggrieved by the decision, young Norwegians have filed an application before the European Court of Human Rights (ECtHR) on a similar cause of action, focusing on Article 2 (right to life) and Article 8 (right to private family life) of the ECHR.

In this chapter, I highlight the problematic starting point of three key trends in the relevant literature on the sale of citizenship, demonstrating that it suffers from a ‘streetlight effect’ by inescapably privileging the claims made in the name of what theorists see as the pre-existing community, allowing such claims to trump all other concerns. The fact of the matter is, however, that when certain forms of inclusion are assessed, it is not only the interests of rich, Western societies which are at stake.

INTRODUCTION

Sometimes a case comes along that has repercussions beyond the parties to the dispute and the specific legal questions under consideration. It not only has the potential to be crystallized as a precedent with respect to the subject matter in the State where it is filed, but has ramifications for other areas of law and other legal systems. It becomes a ‘judicial decision that has normative implications beyond the context of a particular case’. The Urgenda decision 2 of the Rechtbank Den Haag (the Hague District Court) published on 24 June 2015 is one such decision.

The case was raised by a group of private petitioners represented by the Urgenda Foundation, a non-governmental organization (NGO), arguing that the State's climate mitigation measures are not significant enough to protect the citizens of the Netherlands from the impending threat of global warming (hereinafter the judgment is referred to as ‘Urgenda’). The State, therefore, did not satisfy its duty of care towards its citizens. In its decision, the Court agreed with Urgenda that the State is required to take more action to combat climate change.

The decision has had widespread consequences. It has already assumed importance not only in the Dutch legal system, but has also prompted climate change lawsuits in other jurisdictions. The decision has grabbed the attention of the media, and celebrities have endorsed the call for more climate action. Legal scholars also seem to be substantially interested in it, and there has been an outpouring of literature on the case. Most of this literature indicates, however, that the decision is situated on shaky legal grounds. The impact and value may be toppled if the State of the Netherlands succeeds in an appeal it has lodged against the decision in the Court of Appeals. To my mind, irrespective of the outcome of the appeal, the decision is already firmly etched in the history of climate law. This is so for reasons I have detailed in two earlier articles. In the first article, I show how ‘diffused’ jurisprudence from other jurisdictions combined with Dutch jurisprudence to allow the Court to take cognizance of a private climate change lawsuit and handle the thorny issue of judicial overreach in the bargain.