In August 2018, ClientEarth, an Environmental Organisation based in London, paid $23.00 for Ten shares in Enea, a Power Company based in Poland. The Transaction bought the Lawyers at ClientEarth, a tiny stake in Ostroleka C, a One-gigawatt Coal-fired Power Station Enea was about to build 120km North of Warsaw. It also bought them the Standing they needed to Stop the Company from building it.
The Lawsuit ClientEarth filed against Enea’s Directors, a couple of months later alleged that, in pursuing the Project, they were failing to act in Shareholders’ Best interests.
Ostroleka C, the Lawyers argued, was destined to become a stranded Asset: one which, in the increasingly Decarbonised World of European Electricity generation, would be unable to operate profitably. It therefore presented an “indefensible” Financial Risk. In July 2019, a Judge in Poznan ruled in their favor. Construction was Abandoned a few months later. Enea and its partner, Energa, wrote off the $250 million invested in it. There will probably Never be another Coal-fired Plant built in Poland.
Lawsuits to Fight Carbon Emissions began to make themselves felt in the Mid-2000s. After the Paris Agreement of 2015, they reached a New Level. The Sabin Centre for Climate Change Law in New York, and the Grantham Research Institute in London, collate Data on Cases which cite: Climate Science, Climate Policy, Emissions Reduction, or efforts to adapt to the Consequences of Climate Change as a significant Factor. More than 1,000 of the 1,951 Cases on the Grantham institute’s List, were filed Post Paris.
This is in part because Paris brought a broader Awareness of Climate Change. But it is also because the 2015 Agreement made things Actionable in a way that they had not been before. The deal in Paris committed Governments to keeping the Increase in average Global Temperature since the 19th Century well below 2°C. Climate Science allows the Greenhouse-Gas Emissions compatible with that Goal to be quantified.
This give imaginative Lawyers a lot to work with. And because Paris is a Global agreement, they have a lot of venues to work in. The Grantham List includes Cases in 41 Countries and 13 International orRregional Courts and Tribunals.
There are Three reasons the trend is likely to continue:
- One, is that as more countries put their Paris pledges, and the updates to them made in Glasgow last year, into law there are more opportunities for lawyers to pounce.
- Second, is that success breeds success. According to the Grantham data, as of 2021 58% of Cases outside America which had been concluded had outcomes favourable to the parties seeking more Action on Climate. Only 32% of results had been Unfavourable.
- Third, is that more Lawyers are getting interested and more Activists are trying to interest them. Organisations and Individuals, fed up with the Slow pace of Change, brought about by Political Dealmaking, and Activism on the streets, see the Courts as a promising New front in the Fight against Emissions.
Most of the Cases to date, have been attempts to get Governments to live up to what are seen as their Commitments. This approach’s most striking Success has been in the Netherlands. In November 2013, the Urgenda Foundation, an Environmental Organisation, and 900 Dutch Citizens Sued their Government, on the basis that its Emissions Targets were too weak to keep the Country Safe. In December 2019, the Dutch Supreme Court upheld a Lower Court’s ruling in their Favor. The Government was ordered to ensure that Emissions at the end of 2020, were at least 25% Lower than 1990 levels, rather than the 17% it had adopted. The Revised target was just met.
In February 2020, a group of young Germans led by Luisa Neubauer, a Climate Activist, Sued their Government for Failing to set Climate Targets that were in line with the Paris Agreement goals. A year later, the Federal Constitutional Court found in favor of the Plaintiffs; it ruled that the Government had a Duty to protect future Generations, and that the Nation’s Emissions Budget could Not be consumed by One generation, at the expense of the Next. As a result of the Ruling, Germany’s Climate-Change Act was amended to aim for a 65% Reduction in Greenhouse-Gas Emissions by 2030, relative to 1990 levels, instead of the 55% previously required.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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