The report provides a broad overview of the evolving
litigation risk landscape arising from the effects of climate change, identifying
some of the key themes, controversies and legal hurdles.
The authors suggest that the significance of this trend
should not be underestimated, with over 1200 climate change cases having been
filed in more than 30 jurisdictions to date. As both litigation approaches and
scientific evidence evolve, litigation increasingly represents a powerful tool
in the hands of those who seek to attribute blame for contributing to effects
of climate change or failing to take steps to adapt in light of available
In as much as the physical risks of climate change raise
both direct and indirect implications for a diversity of sectors, so too do the
associated legal risks. As Clyde & Co Partner Nigel Brook remarks, “As the
volume of climate change litigation grows and legal precedents build, new
duties of care are emerging and the liability risk landscape is undergoing a
shift which is likely to affect a wide range of commercial sectors”.
The authors classify litigation which has been emerging over
the last two decades into three broad categories:
1. Administrative cases against
governments and public bodies;
2. Tortious claims against
corporations perceived as perpetrators of climate change;
3. Claims brought by investors
against corporations for failing to account for possible risks to
carbon-intensive assets or for failing to account for or disclose risks to
business models and value chains in financial reporting.
The report also addresses novel approaches that claimants
are adopting when bringing climate litigation, as well as the practical and
legal considerations that these give rise to.
Finally, the report looks at global trends in climate
litigation and their implications for businesses in different industries around
the world, highlighting the issues which should be on companies’ radars over
the months and years to come. The authors indicate that climate change
litigation has already been deployed against companies beyond the oil and gas
majors and suggest that this trend is likely to continue.
Litigation has advanced far from being targeted at first line ‘emitters’ to being used as a means of holding companies accountable for how they respond to the physical and financial risks of climate change. Clyde & Co. plans to explore these liability risks in greater depth in future reports.
An update to the landmark
2016 Hutley opinion has been released by the Centre for Policy Development (CPD) on
29th March, 2019. The 2016 opinion set out the ways that company directors
who do not properly manage climate risk could be held liable for breaching
their legal duty of due care and diligence.
The supplementary opinion, provided again by
Noel Hutley SC and Sebastian Hartford Davison on instruction from Sarah Barker,
reinforces and strengthens the original opinion by highlighting the financial
and economic significance of climate change and the resulting risks, which
should be considered at board-level. It puts an emphasis on five key developments
since 2016 that have built up the need for directors to take climate risks and
opportunities into account and reinforced the urgency of improved governance of
this issue. While the 2019 opinion is rooted in the Australian context, just as
the 2016 opinion, it has much wider applicability, as much of the developments
discussed in the update have been simultaneously happening in jurisdictions
outside of Australia.
The five areas of development covered in the 2019
supplementary opinion include:
Progress by financial supervisors: The 2019 opinion suggests statements made by
Australian supervisory organisations such as the Australian Prudential
Regulation Authority (APRA), Australian Securities and Investments Commission
(ASIC) and the Reserve Bank indicate they now all see the financial and
economic significance of climate change. Similar realisations have been
happening among supervisory organisations in the UK, with the Prudential
Regulation Authority (PRA) due to imminently release a supervisory statement on banks’
and insurers’ approaches to managing the financial risks from climate change,
following a public consultation on the matter in late 2018 / early 2019. At the
European level, the wider sustainability of the financial system is under review
with the European Commission rolling out its
Action Plan for Financing Sustainable Growth;
New reporting frameworks: Three new reporting frameworks have emerged since 2016. The most
broadly applicable is The Task Force on Climate-Related Financial Disclosures
(TCFD) recommendations. In June 2017, the TCFD, a task force set up by
the Financial Stability Board in 2015, published its final
recommendations to help companies disclose climate-related risks and
opportunities. The Principles
for Responsible Investing (PRI) and CPD frameworks have now both aligned their
climate-reporting frameworks with the TCFD recommendations. The other two
reporting frameworks mentioned in the 2019 supplementary opinion are more
relevant for the Australian context, and include the new recommendations on
assessing climate risk materiality from the Australian Accounting Standards
Board (AASB) and the Auditing and Assurance Standards Board (AUASB), as well as
the updated guidance from the ASX Corporate Governance Council;
Mounting investor and community pressure: Investors and community groups are increasing
voicing concern around climate risks;
Development of the scientific
knowledge: The UN Intergovernmental Panel on Climate Change (IPCC)
published a special report
on the impacts of 1.5 °C warming in 2018. The opinion recognises this as a “notable
development in the state of scientific knowledge” that affects the gravity and
probability of climate risks which directors need to consider; and
Advances in attribution science: Important developments in
attribution science have now made it easier to identify the link between
climate change and individual extreme weather events.
suggests management of climate risks will require engagement with company
directors in certain sectors in particular. These include banking, insurance,
asset ownership/management, energy, transport, material/buildings, agriculture,
food and forest product industries.
CPD CEO Travers McLeod, explains the
implications of this supplementary opinion for company directors, stating “the
updated opinion makes it clear that the significant risks and opportunities
associated with climate change will be regarded as material and foreseeable by
the courts. Boards and directors who are not investing in their climate-related
capabilities are exposing themselves and their companies to serious risks”,
according to a press statement.
Mr Hutley and Mr Hartford Davis write “the
regulatory environment has profoundly changed since our 2016 Memorandum, even
if the legislative and policy responses have not” […]“These developments are
indicative of a rapidly developing benchmark against which a director’s conduct
would be measured in any proceedings alleging negligence against him or her.”
The 2019 update to the 2016 landmark Hutley opinion also
provides ample evidence as to why company directors all over the world not only
need to be aware of their firms’ contribution to climate change – it is just as
important to assess and disclose their potential climate risks in a transparent
manner. It is therefore vital to ensure that future business plans are in line
with the Paris Agreement and to also anticipate and prepare for climate change
impacts, both in terms of risks and opportunities. The voluntary TCFD
recommendations provide a framework for both corporates and financial
institutions for assessing and disclosing climate risks and opportunities, and
mandated disclosures are on the horizon.
Acclimatise – experts in physical risk assessment and disclosures
Acclimatise has worked on physical climate risk and
adaptation with corporates and financial institutions for over a decade,
helping them identify and respond to physical risks and to take advantage of
emerging opportunities generated by a changing climate. We have witnessed the
corporate, societal and environmental benefits stemming from the promotion of
To discuss how your organisation can meet TCFD or other disclosure requirements, please contact Laura Canevari: L.Canevari(a)acclimatise.uk.com
With the Arctic heating up twice as fast as the rest
of the world, the borders its sea ice once protected are being left exposed. That
so-called unpaid sentry is disappearing fast, giving way to not just new shipping
routes but also security challenges countries in the region are reacting to.
Sea ice in the Arctic is being lost at a staggering rate of over 10,000 tonnes per second, by 2035 the region could be ice-free during summer. Speaking to The Guardian, Klaus Dodds, professor of geopolitics at Royal Holloway, University of London, explained “The unique Arctic security architecture has shape and form that come from natural extremities. If the Arctic becomes just another ocean, this breaks down. It’s elemental.”
This is also the reason why military activity in the
Arctic is increasing: the prospect of a completely open water body is cause for
concern among countries that until recently relied on sea ice for securing
their northern borders. However, it should be emphasised that an increase in
military activity does not imply imminent conflict. Comparing the situation to
that in the South China Sea – where nations compete not through combat but by
demonstrating presence – former Norwegian defence minister Espen Barth Eide
said “It’s not because there is an immediate threat, it’s that, as an area
becomes more important, it’s natural to have a heightened military presence.”
With national security concerns also comes an
increased sense of competition for the growing business interest in the region.
The Northern Sea Route from Asia to Europe can save ships up to 20 days travel
time as opposed to the Southern Sea Route (Suez Canal passage). Parts of the northern
passage historically have only been ice-free for two months each year. However,
as mentioned above, that is rapidly changing. Remote places like Tromsø in Norway
are becoming bustling tourism and business hubs. “Now we have a historically
strange situation with political and economic activity in the Arctic. So many
people are knocking on our door, including business and state representatives
from China, Pakistan, Singapore and Morocco,” said Tromsø mayor Kristin Røymo.
The receding ice is a massive game changer, especially for Russia. Not only does the country have the largest border in the Arctic region but must of the Northern Sea Route currently extends across Russia’s exclusive economic zone. As long as the ice doesn’t recede beyond that zone, Russia will get paid by anyone who uses that shipping route. But as sea ice recedes further, ships will be able to travel in international waters. China, an observing member of the Arctic Council since 2013, is one of the countries exploring this possibility and the potential for infrastructure investments in a “Polar Silk Road”, threatening the exclusive position Russia has been in historically.
In addition to the growing interest in the Arctic for its shorter shipping routes, oil & gas companies are sniffing their chance at exploring new oil and gas fields. Norway came under fire earlier this year for having approved over 80 new exploration licenses. At the Arctic Frontiers conference in January, environmentalists highlighted the dual role of oil as both a driver of climate change, which is heavily impacting the Arctic, and as a driver of increasing resource extraction in one of the most fragile and pristine environments on this planet. These tensions and the growing competition are also putting into question peaceful cross-border cooperation efforts that held up even during the cold war and regulated fishing, scientific research and even reindeer herding.
The British heatwave may seem far behind us, but Christmas tree growers across Britain are still feeling the heat after soaring temperatures wiped out a third of their new crop.
And while it is unlikely that customers will be left without a tree this year, farmers are becoming increasingly aware that they must adapt to a future of extreme conditions in order to protect future yields.
This is becoming especially apparent after the Met Office announced heatwaves will soon become the norm in Britain,with summer temperatures shooting up by over 5C within decades.
Searing temperatures and limited rainfall over the course of the summer caused crops to ripen early, resulting in lettuce and broccoli shortages. On Christmas tree farms, young saplings with smaller roots were left unable to suck up enough water from the parched ground.
Adrian Morgan from the British Christmas Tree Growers Association says that up to 70percent of trees planted in the spring perished in the heat. This is a particular cause for concern as the UK sources up to a fifth of its Christmas trees from European nations.
More specifically, a lack of predictability is the root cause of inadequate growth.The late Beast from the East in 2018 meant farmers couldn’t plant spring crops until much later, in which they were immediately hit by the dry weather in the summer.
Adrian Morgan points to planting in the autumn as a means of ensuring future harvests,a move that will prove difficult for many.
“It’s a leap of faith in a way, because a lot of people growing Christmas trees in England and Wales are also arable farmers, and there’s a significant amount of pressure on them to get their harvest in,” he said.
Due to the decade-long growing time of Christmas trees, the effects of this year’s extreme weather will not be fully felt for several years. Despite this, growers are already accepting the need to change in order to save their business, as well as the season’s most beloved plant.
A new study, published this week in the journal Nature Climate Change, analysed disclosures from more than 1,600 global companies and found that many companies are failing to accurately characterise their climate change risk or adequately prepare for its physical impacts.
The study, authored by Conservation International and CDP, was based on responses to CDP’s annual climate change questionnaire, which asks companies to report on climate risk management strategies. The study represents the first comprehensive analysis of climate risk reporting across multiple industries and sectors of the global economy.
Companies are recognising and reporting physical climate risks – from droughts, floods, cyclones, and changes in precipitation patterns and in average and extreme temperatures. Two-thirds of risks identified were viewed by companies as ‘more likely than not’ or ‘virtually certain’ to occur, and more than half of companies said that they expect climate change to increase their costs or disrupt production capacity.
Company strategies for managing the impacts of climate change were sorted by the researchers into three categories: ‘soft’ strategies, such as conducting risk assessments and updating emergency response plans; ‘hard’ approaches that involve capital investments in technology or infrastructure, such as flood control and air conditioning; and ecosystem-based adaptation, such as grasslands restoration, sustainable agriculture and forestry, or conservation of coastal ecosystems.
The most common approach to climate change, employed by 39% of companies, involves a mixture of soft and hard strategies. One third of companies use soft strategies only. Notably, 18% of companies did not disclose any adaptation strategy for the physical climate risk identified.
The researchers state that “companies’ disclosures on climate risk reveal a preference for incremental or reactive adaptation strategies.” Companies are retaining the language of risk management and “too often translate the complex challenge of climate change into solutions that align with business-as-usual practices.”
The study finds that while many companies are trying to incorporate climate change into their risk management practices, five key ‘blind spots’ are preventing businesses from adequately preparing for its impacts:
The magnitude and costs of physical climate change risks. Of the companies surveyed, which represent 69% of global market capitalisation, they are collectively underreporting climate risks to investors by at least 100 times. This reflects the fact that a large number of companies do not report financial impacts and those that do, are probably underestimating them.
Climate change risks and adaptation strategies ‘beyond the fenceline’. Despite evidence that climate change will have wide-ranging impacts for businesses, most companies have focused their adaptation strategies on a small set of impacts to direct operations, not taking into account supply chain, customer, employee, and wider societal impacts.
The potential for Ecosystem-based Adaptation (EbA). The huge win-win potential of ecosystem conservation, restoration and sustainable management, to both reduce the physical impacts of climate change and deliver other co-benefits, is largely being ignored.
The costs of adaptation. Only a limited number of companies are reporting the up-front cost of climate change adaptation measures. These are largely framed in terms of ‘management costs’, which do not necessarily represent additional expenditures on adaptation. Few companies are calculating the return on investment, the relative cost effectiveness of different strategies, or the cost of doing nothing. The near-absence of these cost comparisons limits investors’ ability to understand or assess the strategy against available alternatives.
Nonlinear climate risks and the need for radical change. Most corporate adaptation strategies assume that climate change risk is basically linear. But science increasingly suggests the existence of ‘tipping points’ – such as sudden permafrost thaw, ice sheet loss, or Amazon forest die-back – that could lead to more abrupt changes and severe risks to businesses and society as a whole. The authors conclude that “radical adaptation for radical change, it seems, is not yet part of the business agenda.”
The study closes on a more positive note, stating that these barriers to improved disclosure and ultimately better climate change adaptation strategies are not insurmountable. The authors highlight that corporate governance structures matter for climate change reporting. Furthermore, mandatory reporting requirements and standardised performance indicators would facilitate more transparent and robust reporting. The 2017 Task Force on Climate-related Financial Disclosures (TCFD) recommendations has provided impetus for companies to report the financial implications of climate risks and many companies are now reporting in-line with these recommendations. In 2018, CDP has also aligned its reporting with the TCFD recommendations, meaning that companies can more clearly communicate their risks and management approaches to their investors and customers. Finally, in cases where adaptation action offers benefits for multiple actors and become ‘public goods’, new partnership models may be required to enable costs to be shared, both with other companies and with governments.
Recent research has concluded that while Australian companies are increasingly aware of the need to disclose their climate risks, the majority are failing to demonstrate strategies to actually do so – this could lead to legal challenges.
To complete this research, Market Forces analysed the public disclosures of the 74 ASX100 companies (as of July 2018) that operate in sectors highlighted by the Taskforce on Climate-related Financial Disclosures (TCFD) as facing the highest levels of climate risk.
According to Market Forces companies are now disclosing more detailed discussions of the risks and opportunities they face from climate change. But only 12% of them have disclosed detailed analyses of how their business will cope under different climate scenarios. Even fewer have actual plans to reduce their emissions.
Of the 74 analysed companies only 3, South32, AGL, and Stockland, were found to disclose in line with all the TCFD recommendations. Commonwealth Bank, BHP, Westpac and ANZ each come close to fully satisfying the recommendations while Macquarie and Mirvac are among the companies that have committed to addressing all recommendations in their 2019 reporting.
These findings are especially important since Australian regulators are increasing their scrutiny regarding climate risk disclosure. A recent report by the Australian Security & Investments Commission (ASIC) found many companies were actually breaking the law by failing to adequately consider and disclose climate risk.
However, regulators need to clarify what specific climate-related disclosures are required of companies operating in even the most exposed sectors and also mandate a TCFD-compliant climate risk reporting for all companies operating in ‘high risk’ sectors, as well as financial institutions.
Read about Acclimatise’s work on assessing physical climate risks and opportunities with UNEP FI and 16 commercial banks by clicking here.
In a recent evaluation of the 2013 European Adaptation Strategy the European Commission (EC) asserted that adapting the regions and economic sectors of the European Union (EU) to the impacts of climate change is now more urgent than was forecasted in 2013.
The finding was shared in a report on the implementation of the adaptation strategy and lessons learned, published on 12 November. The recently released IPCC report about the impacts of 1.5 °C versus 2.0 °C global warming added even more urgency to the EC’s findings.
“The need to adapt remains and it has actually grown, as impacts of past emissions unfold through heatwaves, storms, forest fires at high latitudes or destructive floods.”
Miguel Arias Cañete, DG CLIMA
Commissioner for Climate Action and Energy Miguel Arias Cañete said: “Our collective work on adaptation has shown we not only know more but can also do more to prevent the worst climate impacts projected by 2050. The need to adapt remains and it has actually grown, as impacts of past emissions unfold through heatwaves, storms, forest fires at high latitudes or destructive floods. This evaluation provides a credible basis for the EU policy on adaptation to explore new directions, improvements and also alignment with international developments since 2013.”
The EC’s evaluation showed that the adaptation strategy had delivered on its objectives to promote action by Member States, ‘climate-proof’ action at EU level and support better-informed decision-making. However, it is very clear that Europe is still vulnerable to climate impacts and more work needs to be done in order to build resilience. The findings will undoubtedly provide food for thought for the upcoming UN climate change conference COP24.
Some of the key findings of the evaluation are:
The current adaptation strategy is still relevant, and the Commission will be guided by its objectives.
Major infrastructure projects financed by the EU budget have become climate-proof and will withstand sea level rise, flooding or intense heat.
In the future, an effort must be made to ensure most, or all, EU cities have a thorough adaptation plan to protect citizens from both extreme and slow-onset climate hazards. The plans should also cater for specific vulnerabilities of certain communities (e.g. the EU’s Outermost Regions) and the different risks faced by the very diverse regions in the European continent.
The contribution of the private sector to enhance society’s resilience must be encouraged: the Commission’s efforts will continue to be channelled through its Action Plan on Financing Sustainable Growth and the subsequent legislative proposals adopted in 2018.
Climate services for specific adaptation needs should develop into business opportunities, based on reliable and standardised data and the incentives provided by Copernicus and other European Earth observation initiatives.
A study, commissioned by the World Wide Fund for Nature (WWF) Scotland, found that nine in 10 large companies in Scotland believe climate change poses a risk to their business.
The October poll indicates that 85% of large businesses and SME’s in Scotland say they want the Scottish Government to be a global leader in tackling climate change. The finding comes just after the release of an IPCC report warning that we have 12 years to limit climate change.
Additionally, the Bank of England only recently declared that banks and insurance companies will be required to appoint a senior manager to take responsibility for protection from climate change risk.
Responding to the poll’s findings, Dr Sam Gardner, acting director at WWF Scotland, said:
“These findings make it clear climate change is no longer a concern of a few ‘green’ businesses. Climate change poses many chronic and severe risks to our planet’s natural and financial systems. The best way for Scotland to minimise the threat posed by climate change and maximise the opportunities arising from our response is for Scotland to continue to take a world-leading role, as businesses across Scotland clearly seem to understand.”
Matt Lancashire, Scottish Council for Development and Industry director of policy, believes that Scotland’s transition to a low-carbon economy is a great opportunity for the Scotland’s economic growth.
“Our renewable energy sector has generated sustainable economic growth and created thousands of high-quality jobs, directly and in an extensive supply chain, while also reducing emission and making the air we all breath cleaner.”
The survey of 300 Scottish businesses was conducted by Censuswide on behalf of WWF Scotland and included 150 businesses with over 250 employees and 150 SME businesses.
In a move that was branded “disappointing” by the Environmental Audit Committee (EAC), the UK government has resisted calls to make it compulsory for large companies to report their exposure to climate risks. The move leaves the UK lagging behind France, which passed a law mandating climate risk reporting for big business in 2015.
Companies are facing increasing pressure from investors and shareholders to report their climate risk exposure, which is likely to have a significant bearing on future performance. The UK Government’s decision to rely on voluntary reporting instead was presented in its response to the EAC’s report on green finance – which had urged the government force businesses to disclose their climate exposure.
“It is disappointing that the Government has not used this opportunity to follow France in making it mandatory for large companies and asset owners to report their exposure to climate change risks and opportunities.” Said EAC Chair Mary Creagh MP.
The governments decision is at odds with the prevailing sentiment of investors. The Financial Stability Board’s Task Force on Climate-related Financial Disclosures (TCFD) has built considerable momentum behind the need to disclose climate information as part of companies’ financial reporting. Over five hundred companies have publicly expressed their support for the TCFD’s recommendations.
Major banks are also taking steps to understand climate risks. Sixteen of the world’s leading banks, the UN Environment Finance Initiative, and Acclimatise recently published new methodologies to help banks understand how the physical risks and opportunities of a changing climate might affect their loan portfolios.
“The physical impacts of climate change may pose a risk to banks’ loan portfolios.” said Acclimatise’s Chief Technical Officer, Dr Richenda Connell. “Once banks understand the scale of the risks, this will be a milestone that will encourage other corporates to take climate risk management seriously. Building resilience to physical climate impacts also presents banks with investment opportunities. Those that understand this best will have a competitive advantage.”
More needs to be done to encourage businesses to understand and respond to climate risks and opportunities. Recent research from the Asset Owners Disclosure Project, shows that while awareness is rising about climate change, almost ninety percent of assets managed by the world’s largest public pension funds have not been subjected to a climate risk assessment.
In the UK, the Department for Work and Pensions (DWP) has admitted that there is little understanding amongst trustees on the scale of fiduciary duties that are related to climate and environmental risks.
Note: There is a survey at the end of this article to find out about private sector involvement in nature-based solutions, especially in Latin America and the Caribbean, make sure to complete it if you know of good examples!
In the past few years, ‘nature-based solutions’ has emerged as a new umbrella term for measures “inspired and supported by nature”. Nature-based solutions cover a range of methods that are tried and tested, such as ecosystem services, green-blue infrastructure, ecosystem-based adaptation, and more. This new term provides a new category of sustainable practices that utilize the natural world, which can be used by policy and decision makers to tackle many societal issues, such as climate change.
The recently released special report on the impacts of global warming of 1.5 °C above pre-industrial levels by the Intergovernmental Panel on Climate Change (IPCC) has put the urgency of immediate and effective climate action front and center once again. Not only is a swift reduction of greenhouse gas emissions extremely important, but, with the amount of warming that has already happened, climate change adaptation is also top of the priority list.
Climate change presents many challenges to the private sector, in particular for companies whose products or services are dependent on natural resource or have assets that are exposed to the elements. Companies will need to consider how to protect their assets from damages caused by extreme weather events, how to maintain services in the face of a changing climate, and how to maintain access to increasingly scarce natural resources. Not planning for climate change impacts can result in service failures with severe economic or reputational losses and cascading impacts to other sectors.
So, how can nature-based solutions help companies deal with climate and climate-related risks and why should the private sector invest in them? Here are three reasons to begin with:
Nature-based solutions often take advantage of existing natural resources that regenerate themselves, consuming less energy and remaining unaffected by power loss as opposed to many gray infrastructure solutions. An example of this could be water treatment of industrial wastewater through wetlands rather than a wastewater treatment facility .
Many nature-based solutions are self-sustaining and don’t lose performance capacity over time. Depending on the solution it might even improve. Gray infrastructure solutions lose value over time and have a finite life expectancy after which they need to be replaced or decommissioned. This could be, for example, restoring or establishing oyster reefs to break wave energy and reduce coastal erosion instead of building artificial wave breakers.
Nature-based solutions have many co-benefits that can range from mere aesthetics to biodiversity conservation, decreasing water runoff and thus flood risk, and having a beneficial impact on human health. These co-benefits can significantly improve the reputation of private companies. Take for example a company that installs rainwater harvesting features in the form of vegetation and underground water storage to use the harvested water in bathrooms on their premises, thus reducing its impact on the local water supply, providing a pleasant green environment to its employees, and having a positive impact on local biodiversity.
In order to effectively make the business case for nature-based solutions and encourage the private sector to increase its investment in them, the Inter-American Development Bank, UN Environment, Acclimatise, and UN Environment World Conservation Monitoring Centre are working on a project that will identify the barriers and enablers to private sector uptake of nature-based solutions, specifically in Latin America and the Caribbean.
Despite the potential benefits and vast applications of nature-based solutions, few examples of private sector use in Latin America and the Caribbean have been profiled. Through this project, we seek to identify examples of implementation, the barriers and enablers to uptake by the private sector and what steps could be taken to increase the consideration and use of nature-based solutions to build infrastructure resilience.
If you know of any good examples in the region, please fill in the survey and tell us about them!