Climate litigation cases have seen lawyers become increasingly outspoken, with open criticism of judges breaking unspoken courtroom etiquette. Could the days of no comment be behind us, Charles McKeon asks.
Lawyers are famously cautious in letting their clients speak publicly about ongoing legal disputes – no comment, no risk, and if you do comment, keep it tame.
Their caution is understandable – they are often bound by confidentiality restrictions. Even when that’s not the case, they want to get a result for their client – so why risk it?
The rise of climate litigation worldwide, however, might cause them to rethink this traditional approach. Frequently, these cases are brought by litigants who are also expert activists: non-profit organisations who blend the law with campaigning tactics as a route to delivering climate justice.
Climate litigation has surged, with the UN’s Environment Programme reporting more than 2,500 global cases as of May 2023 – more than doubling since 2017.
Oil and mining firms, other alleged ‘polluters’ and even national governments are increasingly in the crosshairs of headline-making court actions. That presents a new kind of challenge for their legal advisors: how to help clients defend themselves outside the courtroom, as well as inside it?
Oil giant Shell recently sued Greenpeace in what the NGO called an ‘intimidation lawsuit’, asking London’s High Court to stop them protesting at their port and sea infrastructure and seeking nearly £2m in damages.
While the lawsuit may well have merit (it’s important to note that no ruling has been handed down, though Shell did secure a separate injunction against Greenpeace protests in the North Sea), it’s certainly not done the oil giant’s green credentials any favours.
Interestingly, Greenpeace responded not with the kind of dry public statement often seen in legal disputes, but with a meme from the hit TV show Succession depicting fan favourite Greg seeking legal revenge on the non-profit.
Greenpeace was then endorsed by Succession’s creator, Jesse Armstrong, who decried Shell for ‘doing a Cousin Greg’ and invoking Tom Wambsgans immortal line “’I like your style, Shell. Who’re you gonna go after next, Save the Children?”
Life does in fact imitate art in some instances.
In a separate headache for Shell, leading climate litigation organisation Client Earth published a broadside against a London court judgment throwing out its case against the company’s board members.
ClientEarth’s case was totally novel in targeting Shell’s directors’ individually, claiming that they breached their duties to shareholders by mismanaging the foreseeable risks of climate change. To do so, the campaigning organisation bought 27 shares in Shell.
Ultimately, the Court of Appeal rejected the NGO’s case – only for Client Earth to respond in kind by criticizing the ruling. “Judges can get it wrong,” it declared. “This is a missed opportunity for the courts”. One of Client Earth’s lawyers even recorded a video explainer.
Some lawyers reading these statements may be surprised by how openly critical Client Earth’s legal team were of the judges’ decision. It’s another sign of the way increasingly large-scale and ambitious activist litigation is changing the etiquette of communications around legal disputes.
Climate litigation’s objectives inherently overlap with the goals of the campaigning organisations bringing the case. Their tactics are likely to overlap too, even in the face of defeat.
Legal teams for campaign organisations do not represent all lawyers. It might be unlikely that litigators at City firms will adopt these exact tactics on behalf of their clients any time soon.
And yet, as climate litigation continues to develop, and more ‘conservative’ interests like institutional shareholders also bring cases against large corporates, there may be room for white shoe lawyers to consider more aggressive communications.
With news this month of a Polish energy company suing its own former directors for backing a coal project that carried climate risk, it might not be long before we see more corporates bringing the cases, not just facing them.
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