Litigating for Sustainability: Are the courts up to the challenge of the post-COVID reality?
By Mark B. Taylor — 29 June, 2020
Before the COVID-19 crisis forced many societies into lockdown, a growing number of people were protesting the lack of action on climate change. Movements such as Fridays for the Future and Extinction Rebellion had mobilized people from around the world, young and old. As I write, protests against institutionalized racism – sparked by the killings of African Americans by US police – have spread to hundreds of cities in the US, and prompted anti-racist demonstrations world-wide. As societies begin to emerge from varying degrees of lockdown, it impossible to ignore the fact that social and environmental justice are, together, at the top of the post-COVID political agenda.
The law – including the courts – is playing a role in these movements for change. For decades, victims of human rights abuses have resorted to the courts to address abuses, including discrimination and racism. More recently, a wave of law suits involves citizens suing their governments over failures to do enough to combat the causes of climate change. Yet, the law is also being used by those in power to criminalize protesters and undermine democratic rights and freedoms.
It is tempting to characterise this as simply judicial business as usual: the courts are bound by the rule of law and how that plays out beyond the courtroom is – or should be – secondary. This is true, as far as it goes. But it is also true that decisions of courts play a significant role in defining justice for those of us not present in the courtroom. As the courts take on issues of social and environmental justice, at a moment when those issues are particularly contentious, it is useful to take a step back and consider the strategic implications of what is often called strategic litigation.
Looking for justice through ‘counter corporate litigation’
As a postdoctoral researcher in the SMART project, at the Faculty of Law, University of Oslo, I set my analytical sights on a particular sub-set of litigation – what I came to call counter corporate litigation, cases involving businesses in allegations of negative social or environmental impacts. To overcome the fragmentation between social and environmental areas of law, I deployed a scientifically grounded definition of sustainability that combines both social and economic dimensions, both the planetary boundaries and the social foundations of a safe and just space for human activity. This was the same definition we used throughout the SMART project. Part of the objective of my research was to see how the practice of strategic litigation was both influencing and adapting to a definition of sustainability based on this framework.
What I found was that the struggle to achieve justice through the courts corresponds to key social and environmental aspects of sustainability. I identified four categories of counter corporate litigation, namely biosphere violations, eco-human toxicity, predation, and corporate lawfare - each with their own sub-categories, which I outline below.
The principal examples of attempts to use litigation to hold companies accountable for violations of planetary boundaries arise from the wave of climate litigation cases, including a cluster of cases filed by investors and municipalities against companies in the U.S. There are also examples in other countries, such as a complaint by a Peruvian farmer against an energy company in Germany (Lliuya vs RWE) and by Dutch citizens against an oil and gas company in the Netherlands (Milieudefensie v Royal Dutch Shell). In addition, climate has been a focus of a National Inquiry on Climate Change (NICC), conducted by the Commission on Human Rights of the Philippines, and of regulatory decisions about coalmines in Australia (Gloucester Resources Limited v Minister for Planning) and airports in the UK (Heathrow).
Toxicity is an established area of regulation in many jurisdictions. Within common law jurisdictions, ‘toxic tort’ (Cranor, 2016) litigation plays an important role in the overall regulatory mix and there is a large literature dedicated to these cases. Industrial activities pose particular risks to people and the environment, and there are a wide range of activities that generate risks from toxicity, from the use of pesticides in agriculture, chemicals in the workplace or long-term toxicity arising from disposal in the environment. It is impossible to address the thousands of domestic cases that occur each year in a variety of jurisdictions, but there are a number of emblematic transnational cases that have engaged multiple jurisdictions. These include Bhopal, Dutch Shell Nigeria, Trafigura, and Cape plc.
Several different kinds of business conduct may be predatory, including exploitation of labour, appropriation of land or other assets, and business participation in coercion or violence. The common thread across categories of predation is the element of coercion, including the threat or use of violence, in the unjust acquisition of wealth. There are well-established legal regimes at the national level that prohibit these kinds of activities, backed by mature international norms in customary and treaty-based international law, such as the Conventions of the International Labour Organisation (ILO). As a result, there are many examples of enforcement of these norms against business entities. Many of these are found in the labour tribunals in a number of countries, but there are also numerous examples of tort or civil cases alleging forced labour or corporate participation in violence against workers or communities (e.g. Nevsun, Lafarge, van Anraat, Amesys/Qosmos).
In several cases, business entities facing public criticism or regulatory action as a result of negative impacts on people or nature have resorted to defamation or racketeering litigation to discourage or constrain critics. From the case law, it appears that corporate lawfare has two main functions: litigation that in effect privatises political contention (moving it from the public sphere into a civil or tortious contention in a courtroom), and litigation that criminalises or stigmatises critics or opponents (Comaroff and Comaroff, 2006). In practice, these effects often overlap in one case or a nexus of several cases, in particular where corporations deploy Strategic Litigation Against Public Participation (SLAPP) lawsuits (Resolute v. Greenpeace; Natural Fruit).
A taxonomy for globalised litigation
By developing these categories, each with their own sub-categories, a taxonomy of counter corporate litigation began to emerge. This taxonomy provides some perspective on loosely-defined terms, such as strategic litigation, lawfare and cause-lawyering, although it is not limited to these. Indeed, plaintiffs in counter corporate litigation may be government authorities, as well as companies themselves.
What the taxonomy makes clear is that the courts are increasingly being asked to counter corporate power, principally by mediating the conflicts which arise from the negative social and environmental impacts of business activity. Because transnational production and consumption processes are pervasive, counter corporate cases are inevitably global.
For example, while it has long been the case that human rights litigation often arises from environmental impacts (such as the use of toxic chemicals in the workplace or their release into the environment), it is increasingly the case that climate litigation is based on human rights claims. Both kinds of cases concern impacts on people and the planet that are global in nature, either because their impacts are global, such as greenhouse gas emissions, or because particular corporate impacts have been globalised, such as vulnerabilities for workers that arise from toxicity or labour precarity in transnational value chains.
The global dimensions of contemporary capitalism are an important cause of the rise in transnational litigation in the first place. The effectiveness of national regulation is undermined by the fragmentation – of both governance and systems of production and consumption – that has resulted from the rise of transnational value chains. Counter corporate litigation is not always transnational, but case law outlined in the taxonomy leaves no doubt that the courts are being asked to address problems that arise in part because state regulation has been ineffective, including because of a lack of jurisdiction for harms caused by domiciled companies occurring abroad.
In this light, counter corporate litigation is a novel but natural legal development. Our systems of governance are attempting to adapt to the risks posed by our systems of production and consumption. This requires responding to the fact that these systems are fragmented across different jurisdictions. Other aspects of business regulation have long been doing the same, from corporate governance and anti-corruption, to industrial relations and corporate social responsibility. It is no surprise then that it is possible to generate a whole taxonomy of cases that exemplify how the courts are being asked to respond to the global causes and effects of unsustainable value creation.
The taxonomy outlined here suggests there is a basis for thinking about traditionally separate bodies of litigation as part of a larger project. That project is likely to gain momentum, as demands increase for progressive and pro-planetary measures as part of the social and economic recovery from COVID-19. Clearly, it is time to stop thinking about social and environmental litigation as entirely separate fields of legal practice and to start thinking in terms of the role of litigation in regulating for sustainability as part of that recovery. In doing so – by examining how counter corporate litigation defends (or fails to defend) the interests of people and the planet across the full spectrum of sustainability – we may better understand the role of law in broader movements for social and environmental justice.