The Shifting Tide of Climate Litigation

The Shifting Tide of Climate Litigation

by Tanvi Ajmera

Climate litigation is on the rise. More than 2,500 climate related cases have been filed against companies and corporations around the world.  More governments and governments are, through the use of strategic climate litigation, being held responsible for their actions that are detrimental to the environment. What many fail to take into account, however, is the slow but sure revelation of the other side of the coin. The same companies facing these defamatory claims are now using litigation to their advantage by challenging the claims made against them.

The latest example of this was in November of this year, when international oil company Shell raised an action against international environmental organization Greenpeace following an incident where four activists from Greenpeace boarded one of Shell’s vessels at sea near the Canary Islands.  The protestors occupied the vessel for four days to protest against the redevelopment of the Penguins oil and gas field in the North Sea.  During the action they hoisted themselves onto the ship using ropes resulting in shipping delays and some limited damage to the vessel operated by Shell and built by the offshore construction company Fluor. This resulted in Shell and Fluor collectively raising an action against the organization to claim damages amounting to around $8.6 million, as well as a ban on Greenpeace’s methods of protesting, which fundamentally “[silences] climate demands.” Greenpeace has condemned this as an “intimidation lawsuit.”

This is not the first time Shell has initiated legal action against Greenpeace, however. The current case mirrors the material facts raised in the 2016 case of Shell v Greenpeace, wherein Shell filed a suit for preliminary injunction to prevent Greenpeace from interfering in their work during the Arctic drilling season in Alaska. Shell, then, argued that Greenpeace’s environmental activism is “vigorous” and “intrusive.” The same line of argumentation is followed in the current case. It will be interesting to see whether the Alaskan case study sets a strong precedent for the current case based in a different jurisdiction, or whether Shell will be successful in silencing Greenpeace’s methods of protesting even further.

Protestors boarded Shell's Penguins floating production storage and offload vessel (FPSO) in January this year (source for images: Greenpeace)

The timing of the recent lawsuit is striking. Not only does it raise major questions regarding the legitimacy of litigation as an effective tool to achieve climate justice, it is also concerning when considering the intensification of criminal legal measures, the right to protesting, and the criminalisation of environmental defenders. The Public Order Act 2023 which has recently been ratified in the United Kingdom gives more power to authorities to arrest and strike down protestors and organizations. Section 7 of this Act has already been used to make arrests towards Just Stop Oil protesters. This is potentially concerning for organizations like Greenpeace whose protesting methods are consistently being challenged, questioned, and deemed to fall within the category of “eco-terrorism.” The nuances of this case thus bring forth questions of free speech, and whether in the twenty-first century – given the environmental implications plaguing the world today – the line between democracy and corporations’ reputation issues should be blurred. This begs the question: in a world where environmental degradation is our most pressing threat – should speaking up and protesting against environmental injustice and malpractices be a crime?

Climate litigation used to represent a beacon of hope for individuals and environmental organizations around the world. Its future seemed promising. However, its legitimacy now seems to be resting on shaky foundations. Climate litigation is now demonstrating a shifting tide. What once used to be a tool to hold companies and corporations accountable, is now a platform for them to protect their interests, and silence their opposition.

The results from the recent Shell v Greenpeace case, therefore, can and will have major implications for where climate litigation goes from here.

Tanvi Ajmera is a masters student at Queen Mary University of London School of Law.