The UK & Scotland's 'green recovery' – three key litigation trends

Both the UK and Scottish Governments have announced measures designed to engineer a green recovery. A green recovery is a widely adopted name for a package of environmental, regulatory and fiscal reforms to recover economies after the COVID-19 pandemic. In a series of posts on climate and sustainability we have been looking at issues which impact on different sectors. In this post I look at three likely litigation trends in response to a green recovery.

Action against Government

A key emerging trend in environmental litigation is challenging government policy on climate change. Most governments have introduced emissions reduction targets in response to international agreements like the Paris Agreement. Scotland's emissions reduction target is contained in the Climate Change (Scotland) Act 2009 and commits Scotland to net-zero emissions by 2045. At a UK level the target is contained in the Climate Change Act 2008 with the UK targeting net-zero emissions by 2050.

Putting targets in legislation is a way that governments can demonstrate a firm commitment to reducing emissions, but it also opens those targets and the policies behind them up to scrutiny. Across Europe actions are being brought by NGOs and pressure groups challenging climate policies. In particular, that in light of the Paris Agreement governments ought to set more ambitious policies, for example through the adoption of higher emissions reduction targets. Examples of challenges in Europe include the successful challenge by the Urgenda Foundation to the Dutch Government's climate change targets. The Dutch Supreme Court ruled that the Dutch government had to reduce Dutch emissions by a minimum of 25% by 2020 compared to 1990 levels. It found the Dutch government’s failure to take responsibility for the Netherlands’ contribution to the climate crisis was a breach of its obligations under the European Convention on Human Rights.

Closer to home there has been a successful challenge by Plan B to the expansion of Heathrow Airport. The Court of Appeal found that the UK government acted unlawfully in failing to take into account the Paris Agreement when devising policy about the expansion of the airport. The Court also found that when the Government reconsiders the policy to fix its deficiencies, it should also take into consideration the nonCO2 climate impacts of aviation and the effect of emissions beyond 2050, which was not done in its original decision. The Plan B challenge is currently under appeal at the UK Supreme Court.

Challenges to companies

Direct challenges to corporate activity are not a new phenomenon but there is scope for that to increase. Particularly as greater scrutiny is placed on the grant of permits and licences by regulators and new financial reporting requirements are introduced. Environmental, social and governance (ESG) measures are now being imposed by EU and national lawmakers. ESG requires companies to report on a range of non-financial elements of a corporate's performance. By way of example, the EU’s Non-Financial Reporting Directive requires certain large companies to report on a range of policy areas including environmental protection, social responsibility and treatment of employees, respect for human rights, anticorruption and bribery, and diversity on company boards.

Environmental class actions in Scotland

Finally, on 31 July new rules were introduced to allow group proceedings in Scottish courts, this means class actions can be brought in Scotland for the first time. The Scottish Government has identified an important societal benefit to allowing group proceedings is the potential to deter harmful behaviour on the part of businesses and encourage corporate social responsibility. Group proceedings open up to third party representatives (like environmental organisations) the ability to make claims on behalf of multiple pursuers. This will allow class actions to be brought for environmental damage and significant pollution events like an oil spill.

That said, a significant limitation on the group proceedings rules is that they do not apply to judicial review or statutory appeal proceedings which make up the majority of planning and environmental litigation in Scotland. In particular, the new rules would not appear to assist an NGO or community group which wanted to quash a decision taken by a public authority. It is early days for the group proceedings regime in Scotland, but it seems inevitable that at least some of the early cases will be about environmental issues.