Recently, climate-related disputes in the UK focused on challenges to government decision-making and policy through the judicial review mechanism. However, the English courts have, to date, made it clear that their role is not to make policy decisions or to decide on government strategy, continuing instead to reaffirm that Parliament has a wide discretion to exercise its powers (see, for example, Client Earth v. BEIS, Plan B Earth, Cox v. Oil and Gas Authority, and R (on the application of Friends of the Earth Ltd and others) v. Heathrow). Climate-related actions in the UK have, therefore, arguably proved less successful than in other jurisdictions (a notable example being the Urgenda decision, in which a Dutch court held that, by failing to reduce emissions, the Dutch government had acted unlawfully).
We are now seeing the first signs of a change of approach, focusing instead on corporate actors as the strategic target for UK-centred climate change litigation. This change is the result, in part, of increased transparency and disclosure requirements placed on corporate entities, which produces more actionable information and gives claimants greater scope to target claims based on embedded international standards and settled climate knowledge. This is the “information paradox”: inadequate disclosure of information may give rise to corporate liability, yet publication of this same data may provide a foot in the door for strategic litigation against corporates. In this article, we explore some of the attendant risks for corporations.
