Oxford Journal of Legal Studies, (2018), pp. 1–28
If at First You Don’t Succeed: Suing
Corporations for Climate Change
Geetanjali Ganguly*, Joana Setzer** and Veerle Heyvaert***
Abstract—This article discusses the history and the future prospects of private
climate litigation, which seeks to hold private entities legally accountable for
climate change-related damage or threats of damage. It argues that, following failed
attempts to clear judicial thresholds with regard to standing, proof of harm and
causation, a new wave of private climate change lawsuits can be identified, and it is
by no means doomed to failure. This is because climate change litigation takes
place in a rapidly evolving scientific,discursive and constitutional context, which
generates new opportunities for judges to rethink the interpretation of existing legal
and evidentiary requirements and apply them in a way that will enhance the
accountability of major private carbon producers. Moreover, even unsuccessful
cases can contribute to articulating climate change as a legal and financial risk,
which may help to guide climate change-responsive adjudication in the longer term.
Keywords: private climate litigation, Carbon Majors, judicial interventions,
climate change causation, corporate responsibility, climate risk disclosure
In recent talks, former NASA scientist James Hansen called for a wave of
lawsuits against governments and fossil fuel companies that are delaying action
on climate change. For Hansen, a pioneer of climate science, the key is to sue
corporations like ExxonMobil, BP and Shell for the damage they are doing to
* PhD Candidate, Department of Law, London School of Economics and Political Science. Email:
** British Academy Postdoctoral Fellow, Grantham Research Institute on Climate Change and the
Environment and the Department of Law, London School of Economics and Political Science. Email:
J.Setzer@lse.ac.uk. Joana Setzer acknowledges the financial support of the British Academy through the
Postdoctoral Fellowship, as well as the Grantham Foundation for the Protection of the Environment and the
ESRC via the Centre for Climate Change Economics and Policy.
*** Associate Professor, Department of Law, London School of Economics and Political Science. Email:
ßThe Author(s) 2018. Published by Oxford University Press.
This is an Open Access article distributed under the ter ms of the Creative Commons Attribution License
(http://creativecommons.org/licenses/by/4.0/), which permits unrestricted reuse, distribution, and reproduction
in any medium, provided the original work is properly cited.
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the environment, those affected and future generations.
Hansen is currently
involved in a lawsuit against the US federal government, brought by his
granddaughter and 20 others.
Similarly, Jeffrey Sachs, economist, director of
the Earth Institute at Columbia University and a UN special adviser, now
urges citizens to pursue major polluters and negligent governments for liability
and damages, and ‘flood the courts’ with legal cases demanding the right to a
safe and clean environment.
This article contributes to the burgeoning literature on climate litigation by
examining recent developments in climate litigation launched against corpor-
ations. We argue that, notwithstanding the failure of a past generation of
climate litigation to hold private actors to account, the second wave of pending
court challenges is by no means doomed to failure. The second wave is
characterised by a broader range of arguments and litigation strategies than its
predecessor, and unfolds within a rapidly evolving scientific,discursive and
constitutional context. We argue that this evolving context generates new
opportunities for judges to rethink the interpretation of existing legal and
evidentiary thresholds for claimants to meet the burden of proof and apply
them in a way that will enhance the accountability of private greenhouse gas
(GHG) emitters. Although the judicial enforcement of corporate accountability
for climate change has proved elusive thus far, future cases may fare
better. Moreover, even unsuccessful cases may help to guide climate change-
responsive adjudication in the longer term.
The structure of this article is as follows. Section 2 situates our research
within the broader context of climate litigation and explains the distinguishing
characteristics of strategic private climate litigation, which is the focus of our
investigation. Section 3 provides an expanded analysis of key issues in the first
wave of strategic private climate litigation, and examines the challenges
involving jurisdiction, standing and causation in prominent cases. Section 4
discusses the changes in the scientific, discursive and constitutional context in
which current lawsuits emerge, and their likely impact on the outcome of
adjudication. Section 5 contemplates the possibility that this second wave of
private litigation may still end in failure, and reflects on the contribution, if
any, of climate litigation under such circumstances. Section 6 presents
conclusions and issues for further exploration.
Jonathan Watts, ‘‘‘We Should Be on the Offensive’’—James Hansen Calls for Wave of Climate Lawsuits’ The
Guardian (London, 17 November 2017) <www.theguardian.com/environment/2017/nov/17/we-should-be-on-the-
offensive-james-hansen-calls-for-wave-of-climate-lawsuits> accessed 29 November 2017.
Juliana v United States, No 6:15-cv01517 (2017) <http://climatecasechart.com/case/juliana-v-united-states/>
accessed 29 November 2017.
Jeffrey Sachs, ‘A Proposal for Climate Justice’ lecture delivered at the London School of Economics and
Political Science and hosted by the Grantham Research Institute on Climate Change and the Environment (3
October 2017) <www.lse.ac.uk/Events/2017/10/20171003t1830vOT/a-proposal-for-climate-justice> accessed 29
2Oxford Journal of Legal Studies
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2. Strategic Private Climate Litigation
Climate litigation is a broad and still maturing term that refers to the rapidly
growing body of lawsuits in which climate change and its impacts are either a
contributing or key consideration in legal argumentation and adjudication.
More than 1000 cases have been identified as concerning climate change
litigation—828 in the United States alone, and 263 cases in 25 other countries,
with most filed since the mid-2000s.
The majority have climate change as a
secondary component of the lawsuit. Such ‘incidental climate litigation cases’
deal with issues from false green advertising to challenges over permits issued,
to energy or coal mining activities. In the 25 non-US jurisdictions, over three-
quarters of the cases concern climate change only at the periphery of the
argument and acknowledge the issue as relevant but not determinative.
Strategic climate litigation, in contrast, concerns cases initiated to exert
bottom-up pressure on governments (‘strategic public climate litigation’) or
corporations (‘strategic private climate litigation’) to mitigate, adapt or
compensate for losses resulting from climate change. Strategic climate litigation
cases are in the minority, but receive considerable attention from academics,
state and non-state actors.
Strategic public climate litigation aims to influence public policy or policy
decisions with climate change implications, primarily through the attainment of
injunctive relief. Cases asserting governmental failure to account for GHG
emissions associated with public projects and cases of judicial review of public
regulatory action (or inaction) on climate change have already achieved some
degree of success.
The first was Massachusetts vEnvironmental Protection
Agency (EPA) (2007), in which the US EPA was found in breach of its
statutory obligations to regulate GHG emissions under the Clean Air Act.
A recent report by the United Nations Environment Program (UN Environment), in cooperation with the
Sabin Center for Climate Change Law at Columbia University (Sabin Center), concludes that climate change
litigation is not only proliferating, but also growing in ambition and effectiveness. See UN Environment, ‘The
Status of Climate Change Litigation: A Global Review’ (2017) <http://wedocs.unep.org/bitstream/handle/20.500.
11822/20767/climate-changelitigation.pdf?sequence1&isAllowedy> accessed 25 June 2017.
Non-US cases can be found in the Climate Change Laws of the World database maintained by the
Grantham Research Institute on Climate Change and the Environment, at the London School of Economics and
Political Science, jointly with the Sabin Center, ‘Climate Change Laws of the World Database’ (2017) <www.lse.
ac.uk/GranthamInstitute/climate-change-laws-of-the-world> accessed 3 February 2018. US cases are listed in the
Climate Litigation Database maintained by the Sabin Center <http://climatecasechar t.com/us-climate-change-
litigation> accessed 3 February 2018. Note that while these are the most comprehensive resources available on
the subject, they are not exhaustive.
For this and other trends in climate litigation see Michal Nachmany and others, ‘Global Trends in Climate
Change Legislation and Litigation’ (2017) <www.lse.ac.uk/GranthamInstitute/publication/global-trends-in-cli-
mate-change-legislation-and-litigation-2017-update/> accessed 25 October 2017; Joana Setzer and Mook
Bangalore, ‘Regulating climate change in the courts’ in A Averchenkova, S Fankhauser and M Nachmany
(eds), Trends in Climate Change Legislation (Edward Elgar 2017) 175–92.
Although focused on regulatory behaviour, these cases are highly relevant to corporations. Judicial review
can: lead to the adoption of more stringent emissions standards; compel the inclusion of GHG emissions limits in
regulatory permits issued for new activities or particular sectors; result in the delay or revocation of permits and
licences; or lead to more stringent procedural obligations (reporting, disclosure).
Massachusetts v Environmental Protection Agency (EPA) 549 US 497 (2007).
If at First You Don’t Succeed 3
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The 2015 Urgenda case, which held that, in failing to adopt sufficiently
ambitious mitigation targets, the Dutch state had breached its duty of care vis-
`-vis society under Dutch tort law, as provided in section 6:162 of the Dutch
Civil Law Code,
heralded a new era for strategic public climate litigation.
Mere months later, in the less publicised but equally momentous decision in
Leghari, the Lahore High Court determined that the national government’s
delay in implementing Pakistan’s climate policy constituted a breach of the
country’s human rights obligations.
The momentum created by Urgenda and
Leghari led to similar cases emerging in the courts of several jurisdictions, from
Belgium to India and the United States.
The focus of this article, however, is not on strategic public but specifically
on strategic private climate litigation. It involves cases launched with the
explicit aspiration to influence corporate behaviour and strategies in relation to
In the early 2000s, a small clutch of lawsuits against oil, gas
and electric companies was tested in North American courts. Victims claimed
that the actions of such companies exacerbated damages they suffered as a
result of extreme weather events. The cases were high profile because of the
novelty of their subject matter, yet all were unsuccessful. Claimants found it
exceedingly difficult to surmount procedural and substantive thresholds. The
discouraging precedents, however, evidently have not dampened enthusiasm
for the cause.
Indeed, a second wave of strategic private climate litigation can
now be observed. The current strategic cases against private defendants
typically allege climate change-related damage and seek compensation from
major carbon producers.
Two strong motivations underpin renewed efforts to target corporations as
defendants. The first relates to their appropriateness, that is, the argument that
corporations are the ‘right’ parties to bear responsibility for climate change.
Stichting Urgenda v Government of the Netherlands (Ministr y of Infrastructure and the Environment),
ECLI:NL:RBDHA:2015:7145, Rechtbank Den Haag, C/09/456689/HA ZA 13-1396, para 4.35.
Giulio Corsi, ‘A Bottom-Up Approach to Climate Governance: The New Wave of Climate Change
Litigation’ ICCG Reflections No 57 (October 2017). The Urgenda ruling is currently under appeal and a verdict
is anticipated in October 2018.
Ashgar Leghari v Federation of Pakistan (WP No 25501/2015), Lahore High Court Green Bench, Orders of
4 and 14 September 2015. In a far-reaching judgment, the Green Bench of the Lahore High Court ordered the
Pakistani government to appoint a focal person on climate change and develop a list of adaptation measures to be
implemented by 2015. The court also established a Climate Change Commission to oversee the government’s
compliance with its orders.
The analysis of strategic public climate litigation is outside the scope of this article. For some research on
the subject, see Josephine van Zeben, ‘Establishing a Governmental Duty of Care for Climate Change Mitigation:
Will Urgenda Turn the Tide?’ (2015) 4 TEL 2; Jesse Lambrecht and Claudia Ituarte-Lima, ‘Legal Innovation in
National Courts for Planetary Challenges: Urgenda vState of the Netherlands’ (2016) 18 Env L Rev 1.
In only 34 out of 263 cases currently identified in jurisdictions other than the United States are
corporations defendants or co-defendants. Grantham Research Institute on Climate Change and the
Environment, ‘Climate Change Laws of the World Database’ (2017) <www.lse.ac.uk/GranthamInstitute/
climate-change-laws-of-the-world> accessed 3 February 2018. It is worth noting that corporations also feature
as claimants in climate litigation, typically to challenge climate change regulation. This article focuses on cases in
which corporations feature as defendants.
Reimund Schwarze, ‘Liability for Climate Change: The Benefits, The Costs, and the Transaction Costs’
(2007) 155 U Pa L Rev 1949.
4Oxford Journal of Legal Studies
Arguably, enterprises in energy, transport, agriculture and other manufacturing
sectors such as cement bear a collective and therefore legal responsibility for
climate change through their carbon-emitting activities.
This view is also
voiced by non-governmental organisations (NGOs) and climate activists. For
example, a report published by the Climate Justice Programme asserts:
The Carbon Majors are responsible for two thirds of the human-made carbon
emissions in the atmosphere today. These corporations have made outrageous profits
while outsourcing the true cost of their product upon the poor who are paying with
their homes, ability to grow food and with their lives.
Moreover, corporations are increasingly cast as pivotal actors in the global
effort to transition to low-carbon economies and improve resilience. Since the
consumption of fuel products for electricity generation and transportation
generates nearly 70% of global GHGs, corporations play a vital role in
achieving climate change mitigation.
When considering adaptation, corpor-
ations are involved in infrastructure provision, development and land use.
The second motivation relates to the potential effectiveness of targeted private
climate litigation. Successful action against a relatively small group of
corporations who are responsible for a large percentage of emissions could
generate a considerable global impact. Richard Heede’s work, which seeks to
measure the responsibility for carbon emissions of the ‘Carbon Majors’, the
world’s largest GHG emitters, buttresses this argument.
From a legal
perspective, Hsu contends that ‘seeking direct civil liability against those
responsible for [GHG] emissions’ is the only litigation strategy ‘that holds out
any promise of being a magic bullet’.
Hsu further observes that ‘[a civil]
litigation strategy is potentially a means of regulation itself, as a finding of
liability could have an enormous ripple effect and send [GHG] emitters
scrambling to avoid the unwelcome spotlight’.
Hence, private climate
litigation targeted at the Carbon Majors may be more effective than either
public litigation or alternative governance strategies.
The turn to private litigation targeting corporations is, furthermore,
consistent with the transnationalisation of climate change governance in
response to inadequate international regulation by states under the auspices of
´e and others (eds), Climate Change Liability: Transnational Law and Practice (CUP 2012) 29.
Keely Boom, Julie-Anne Richards and Stephen Leonard, ‘Climate Justice: The International Momentum
towards Climate Litigation’ (June 2016) <http://climatejustice.org.au/wp-content/up loads/2016/06/Report-
Climate-Justice-2016.pdf> accessed 5 August 2016. The term ‘Carbon Major s’ usually refers to 90 corporations
that are responsible for over 30% of global industrial GHG emissions. As a result, emissions from these
companies rival those of nation states. See Richard Heede, ‘Tracing Anthropogenic Carbon Dioxide and
Methane Emissions to Fossil Fuel and Cement Producers, 1854–2010’ (2014) 122 Climatic Change 229.
See Jacqueline Peel and Hari M Osofsky, Climate Change Litigation: Regulatory Pathways to Cleaner Energ y
(CUP 2015) 173–220.
Heede (n 16).
Shi-Ling Hsu, ‘A Realistic Evaluation of Climate Change Litigation through the Lens of a Hypothetical
Lawsuit’ (2008) 79(3) U Colo L Rev 13.
If at First You Don’t Succeed 5
the United Nations Framework Convention on Climate Change
The dismantling of the distinction between Annex I and non-
Annex I member states in the post-Kyoto Protocol era, as well as deep
resistance to the idea of state liability for loss and damage,
has led to calls for
a new approach that predominantly focuses on the responsibility of non-state
actors, particularly Carbon Major companies with a presence in both Annex I
and non-Annex I countries and operating in a transnational regulatory space.
3. The First Wave of Private Climate Litigation
The first wave of private climate litigation spanned 2005 to 2015 and was
mainly concentrated in the United States. Several lawsuits filed in state district
courts were dismissed on the grounds of non-justiciability of a political
The most salient examples are Comer v Murphy Oil and Kivalina v
ExxonMobil. In both cases, the plaintiffs argued that the defendants (energy
producers) engaged in emitting activities which contributed substantially to
climate change and were therefore responsible for climate change-related
injuries suffered by them. In Comer, the plaintiffs (residents of Louisiana)
alleged that the emitting activities of the defendant energy companies
contributed to climate change and had intensified the destructive capacity of
Similarly, in the Kivalina case, the plaintiffs (Inupiat
Eskimo peoples from Alaska) alleged that the activities of a group of energy
companies, including ExxonMobil,
were responsible for the transboundary
release of GHGs, which had produced a series of adverse climate impacts in
Kivalina, such as coastal erosion and the melting of Arctic sea ice and
See Kenneth W Abbott, ‘The Transnational Regime Complex for Climate Change’ (2012) 30 Environment
and Planning C: Politics and Space 571; Liliana B Andonova, Michele M Betsill and Harriet Bulkeley,
‘Transnational Climate Governance’ (2009) 9(2) Global Environmental Politics 52.
A 2012 UNFCCC-commissioned literature review defined climate change ‘loss and damage’ as: ‘the actual
and/or potential manifestation of impacts associated with climate change in developing countries that negatively
affect human and natural systems’. Damage is considered to be the physical impact of climate change, while
losses are seen in terms of monetised values. See UNFCCC, ‘Warsaw International Mechanism for Loss and
Damage associated with Climate Change Impacts’ (2013) <https://unfccc.int/files/meetings/bonn_nov_2017/in-
session/application/pdf/cp23_auv_i7.pdf> accessed 14 May 2018; Emma Lees, ‘Responsibility and Liability for
Climate Loss and Damage after Paris’ (2017) 17(1) Climate Policy 59–70.
Heede (n 16) 231. See also Peter C Frumhoff, Richard Heede and Naomi Oreskes, ‘The Climate
Responsibilities of Industrial Carbon Producers’ (2015) 135(1) Climatic Change 157; Lisa Benjamin, ‘The
Responsibilities of Carbon Major Companies: Are They (and Is the Law) Doing Enough?’ (2016) 5 TEL 2;
Environmental Law Alliance Worldwide (ELAW), ‘Holding Corporations Accountable for Damaging the
Climate’ (2014) <www.elaw.org/system/fil es/elaw.climate.litigation.report.pdf> accessed 3 August 2016. See also
Peel and Osofsky (n 17) 13. Peel and Osofsky argue that litigation has a vital role to play in addressing the
failures of the international climate treaty regime with respect to emissions reductions.
See People of the State of California v General Motors Corp No C06-05755 (ND Cal, 17 September 2007);
American Electrical Power Co (AEP) v Connecticut 564 US 410; Kivalina v ExxonMobil Cor poration et al 696 F.3d
849, 2012 WL 4215921 (9th Cir 2012); Comer v Murphy Oil USA Inc 607 F.3d 1049 (5th Cir 2010).
Comer (n 24).
In 2008, the villagers of Kivalina filed a lawsuit (encompassing a series of common law tort claims) against
nine oil companies, fourteen power companies, and one coal company.
6Oxford Journal of Legal Studies
These impacts threatened the existence of their village and way
of life, and ultimately resulted in their displacement and relocation.
Common allegations in the first wave of private climate litigation were built
around the argument that the carbon-emitting behaviour of corporations causes
damage to legally protected interests, and that this damage should be
remedied. Consequently, most cases revolved around (i) procedural questions
of standing and jurisdiction, and (ii) substantive issues of causation and
damage. The sections below further explore the court’s reasoning on these
matters, with specific reference to Comer and Kivalina.
A. Standing and Jurisdiction
In the first wave of private climate litigation, corporate defendants successfully
filed motions to dismiss plaintiffs’ claims on procedural grounds. In the United
States, corporate defendants managed to prevent several climate change
lawsuits from proceeding to the merits stage by challenging the court’s
jurisdiction through the invocation of the standing and political question
doctrines as a first line of defence. Derived from article III of the US
Constitution, the standing doctrine stipulates that the jurisdiction of federal
courts is limited to cases where: (i) the plaintiff has suffered an injury in fact;
(ii) that is fairly traceable to the defendant’s misconduct (causation)
(iii) is capable of being redressed by the court.
Unless all three conditions are
met, the plaintiff will lack standing before the court. As such, the standing
doctrine has posed a considerable challenge to plaintiffs seeking to bring claims
alleging harms resulting from climate change.
While courts have accepted injuries alleged by plaintiffs (eg damage claims
for rising sea levels and loss of recreational or aesthetic value from changing
landscapes), they have generally rejected their assertions regarding causation
In Massachusetts v EPA, the court found that, as the State
of Massachusetts, the plaintiff was entitled to ‘special solicitude’,
that the failure to regulate GHGs presented an ‘actual’ and ‘imminent risk of
harm to the state’.
A contrario, private claimants do not benefit from ‘special
Kivalina (n 24).
US Constitution, art III; the fair traceability/causation limb of the ar t III standing doctrine is separate from
the ‘proximate causation’ or ‘causation in fact’ requirements under the tort of negligence. The former is a
procedural requirement that must be cleared by a plaintiff before a court can even proceed to make a deter mination
on causation at the merits stage of the case.
US Constitution, art III.
Niran Somasundram, ‘State Court Solutions: Finding Standing for Private Climate Change Plaintiffs in the
Wake of Washington Environmental Council v Bellon’ (2015) 42 Ecology LQ 1.
‘Special solicitude’ is a legal rule that refers to the special consideration afforded by the US Supreme Court
to the federal states. This is on the basis that states have special, quasi-sovereign interests in protecting their
lands, the air and the health of their populations which renders them exempt from meeting requirements under
the law of standing that plaintiffs are generally required to fulfil when suing the US federal government. Christie
Henke, ‘Giving States More to Stand On: Why Special Solicitude Should Not Be Necessar y’ (2008) 35 Ecology
Massachusetts v EPA (n 8).
If at First You Don’t Succeed 7
solicitude’. Accordingly, the federal court decisions that followed this case
denied standing to private plaintiffs seeking relief for climate change against
regulatory agencies or GHG emitters.
Alternatively, private claims relating to climate change have stumbled over
the political question doctrine, which stipulates that federal courts will not
adjudicate certain controversies because their resolution is a matter for the
political branches of government. Under American constitutional law, the
political question doctrine prescribes that courts can exclusively adjudicate on
questions of law, which are deemed justiciable. Therefore, courts will generally
refrain from adjudicating questions that are inherently political.
Massachusetts v EPA and American Electrical Power v Connecticut, the US
Supreme Court ruled that the EPA, operating under the executive branch of
government, has exclusive authority to regulate GHG emissions pursuant to
the Clean Air Act.
Consequently, American courts deferred to the executive
on questions of fact pertaining to climate change and opined that such
questions require an initial policy determination.
In Comer and Kivalina, the plaintiffs filed a series of tort claims in the areas
of nuisance, civil conspiracy and negligence. In response, the defendant
corporations successfully contended that the plaintiffs’ arguments raised
inherently non-justiciable political questions in respect of which courts have
no subject-matter jurisdiction.
Such questions, the defendants argued, were
more suited to resolution by the political branches of government.
cases, the district courts found in favour of the defendants and ruled that they
were precluded by the political question doctrine from considering the
plaintiffs’ nuisance claims.
Consequently, both courts decided that the
plaintiffs lacked standing.
Developments briefly appeared to take a more favourable turn for private
claimants in climate litigation when, in Comer, the plaintiffs were successful on
appeal. A panel of the district court ruled that the plaintiffs had standing and
their claims were justiciable.
However, the case was eventually dismissed and
a further petition to the US Supreme Court was denied.
In 2011, the same
plaintiffs attempted to file a new complaint in the Southern District Court of
Mississippi, but had their claims dismissed on the basis that they were barred
See eg Washington Environmental Council v Bellon 732 F.3d 1131, 1136 (9th Cir 2013).
The political question doctrine derives from the US Supreme Cour t’s decision in Marbury v Madison 5US
(1 Cranch) 137; Baker v Car r 369 US 186 establishes a set of criteria for determining if a question is political in
AEP (n 24).
Kivalina (n 24); Comer (n 24).
See Native Village of Kivalina v ExxonMobil Corp 696 F.3d 849, 858 (9th Cir 2012), cert denied, 133 S Ct
2390 (2013); Comer (n 24) 863–7.
Comer (n 24).
In re Comer US No 10-294 (Jan. 10, 2011).
8Oxford Journal of Legal Studies
by the doctrine of res judicata,
the statute of limitations, the political question
doctrine, lack of standing and an inability to prove causation.
The difficulty of proving causation—the link between an actor’s behaviour and
subsequent harm to another—has also been an obstacle to successful private
climate litigation. Causation requires that a plaintiff demonstrate a causal
connection between an injury and the defendant’s action to satisfy the proposition
that remedies for injury should come from those responsible. Yet, pinpointing the
actor(s) responsible for an injury can be factually and conceptually difficult, if not
impossible, in cases where the damage is a result of climate change. The
difficulties for plaintiffs to persuasively pinpoint the cause of climate change-
related harm is, again, beautifully illustrated in Kivalina. The district court held
that the plaintiffs could not demonstrate either a ‘substantial likelihood’ that
ExxonMobil’s activities had caused the plaintiffs’ injuries or that the ‘seed’ of
their injuries was ‘fairly traceable’ to the defendant’s GHG emissions.
Specifically, the court concluded that the plaintiffs could not establish causation
because there was ‘no realistic possibility of tracing any particular alleged effect of
global warming to any particular emissions by any specific person, entity, [or]
group at any particular point in time’.
The Ninth Circuit affirmed the decision
of the district court, although it did so without revisiting the issues raised by the
political question doctrine and standing.
The Ninth Circuit held, instead, that
federal legislation pre-empted the plaintiffs’ federal common law claims,
explaining that any solution for the alleged effects of global warming ‘must rest
in the hands of the legislative and executive branches of our government, not the
federal common law’.
Similarly, the district court in the Comer case ruled that
the plaintiffs could not demonstrate proximate causation.
4. The Second Wave of Private Climate Litigation
Although so far no precedents exist of successful private climate litigation,
future private climate lawsuits are by no means doomed to failure. A rapidly
evolving scientific,discursive and constitutional context has cleared the path for a
second wave of strategic private litigation cases, which have a better chance of
overcoming the judicial hurdles of standing, proof of harm and causation that
scuppered earlier attempts. This ‘new wave’ of private climate litigation was
Res judicata refers to the common law doctrine whereby claims that have already been adjudicated by a
competent court cannot be relitigated by the same parties.
Comer et al v Murphy Oil USA et al No 1:11-cv-00220 (SD Miss).
Kivalina (n 24).
Kivalina (n 24).
See Kivalina (n 37).
Kivalina (n 37).
Comer (n 24).
If at First You Don’t Succeed 9
motivated by the publication of the Carbon Majors study in 2013 and has
spread beyond the United States into new jurisdictions. It gathered momentum
in 2015, with a petition filed with the Commission on Human Rights of the
Philippines by typhoon survivors, advocates, NGOs including Greenpeace
Southeast Asia, and thousands of online supporters.
This initiative was
followed by cases such as Lliuya v RWE,
also filed in 2015; the cases filed by
two Californian counties (San Mateo and Marin County) and the city of
against 37 oil, natural gas and coal companies and trade
groups in 2017; Guy Abrahams v Commonwealth Bank of Australia,
filed in the Federal Court of Australia, again in 2017; and a lawsuit filed by
New York City against the world’s five largest Carbon Majors (ExxonMobil,
Shell, BP, Chevron and Conoco-Phillips) in January 2018.
At the time of
writing, the second wave of strategic private climate litigation shows no sign of
cresting, as news alerts regarding new or planned litigation continue to be filed
on a regular basis.
Focusing on (i) the scientific context, we examine how new developments in
climate science and research are delivering new evidence that can strengthen
assertions of a causal link between climate change-related harm and a private
company’s behaviour, which could clear a major hurdle on the path towards
establishing standing and vindicating claims. With regard to (ii) legal discourse,
we argue that better prospects for establishing causal connections between
climate change harm and the behaviour of a discrete group of corporate
defendants could, in turn, augment the precedential value of successful tobacco
and asbestos litigation. We also reflect on recent changes in the discourse
around directors’ liability and disclosure requirements, which could conceiv-
ably alter understandings of what constitutes responsible ‘climate change
behaviour’ and open the door to new categories of claimants. Finally, we take
account of (iii) the changing environmental constitutional context and identify
jurisdictions in which climate-based claims before the court may find a more
receptive hearing, thus raising the likelihood of successful private litigation.
A. Scientific Context
The first factor propelling a new wave of strategic private climate litigation—
and the likelihood of courts upholding claims in damages against large
Philippines Reconstruction Movement and Greenpeace v Carbon Majors Case No CHR-NI-2016-0001 (2015)
human-rights-of-the-philippines-2015/> accessed 21 August 2017.
Saul Luciano Lliuya v RWE (2017) 20171130 Case No-2-O-28515.
County of San Mateo v Chevron Cor p (2017) <http://climatecasechart.com/case/county-san-mateo-v-
chevron-corp/> accessed 21 August 2017.
Guy Abrahams v Commonwealth Bank of Australia (2017) VID879/2017.
<www.lse.ac.uk/GranthamInstitute/litigation/abrahams-v-commonwealth-bank-of-australia/> accessed 21 August
New York v BP plc (2017) <http://climatecasechart.com/case/city-new-york-v-bp-plc/> accessed 5 February
10 Oxford Journal of Legal Studies
emitters—is the scientific context in which the litigation evolves. Strategic
private climate litigation today looks significantly different from private climate
litigation 10 years ago as a result of (i) the growth and consolidation of climate
science released by the Intergovernmental Panel on Climate Change (IPCC),
and better and up-to-date localised data; (ii) the increased possibility of
quantifying the proportional contribution of the world’s largest emitters to
climate change; and (iii) developments in attribution science.
(i) The growing resilience of climate science
The first wave of strategic climate litigation was underpinned by the syntheses
of climate change data released by the IPCC. In the United States, Comer v
Murphy Oil gave states the green light to use IPCC climate science to prove the
existence of anthropogenic climate change.
The plaintiffs’ pleadings relied
heavily on IPCC-certified science, furnishing climate models that project
increases in global temperatures as supporting evidence.
IPCC data was
treated as sufficient to confirm the requirement of ‘fair traceability’. Although
the Comer case ultimately failed after being remanded to the district court for a
decision on the substance, the Court of Appeal’s engagement with the question
of climate change causation beyond the level of a prima facie dismissal hints at
the potential for future judicial recognition of a less stringent climate change
The new wave of strategic climate litigation draws upon the existence of a
robust scientific consensus on anthropogenic climate change, as articulated by
the IPCC Fifth Assessment Report.
In the area of public climate litigation,
the Dutch Urgenda case aptly illustrates that courts in civil law jurisdictions are
willing to embrace the IPCC assessment reports as incontrovertible evidence of
climate change as a serious humanitarian and planetary threat.
Moreover, climate science is being used more strategically by claimants, with
the most recent and localised scientific evidence infused in the proceedings. In
a string of recent lawsuits filed by US local authorities in locations ranging
from Richmond, Virginia, to the City of Imperial Beach, California, the local
authority plaintiffs assert that large corporations such as Chevron and Royal
Dutch Shell are directly responsible for a substantial portion of committed sea
level rise (sea level rise that will occur even in the absence of any future
Francis Menton, ‘Issues of Proof in Climate Change Litigation’ (2009) 242 New York Law Journal 124. In
the Comer case, the Court of Appeals for the Fifth Circuit court reversed the district court’s initial ruling in the
wake of the IPCC’s publication of its Third Assessment Report in 2009. Kivalina (n 24); Comer (n 24). In the
same vein, IPCC assessments were accepted as evidence in AEP (n 24), where the US Supreme Cour t ruled that
corporations cannot be sued for climate change under federal common law because the Clean Air Act empowers
the EPA to regulate carbon and GHG emissions.
Comer (n 24) 863–7.
IPCC, ‘Fifth Assessment Report (AR5)’ (2013–2014) <www.ipcc.ch/report/ar5/> accessed 20 May 2017.
The IPCC is currently in its sixth assessment cycle and the next round of IPCC assessment reports (AR6) are
due to be published in 2021.
Urgenda (n 9).
If at First You Don’t Succeed 11
emissions) because of the consumption of their fossil fuel products.
Accordingly, they seek compensation for the costs of responding to flooding
events and adapting to current and future climate change damage from sea-
level rise. In their argumentation, the plaintiffs rely on up-to-date sea-level-rise
science and vulnerability evaluations. These cases shift the focus from
meteorological change to sea-level change, which has become explicitly
linked to a warming planet. The greater precision in mapping areas prone to
inundation, or susceptible to greater flooding risks due to rising sea levels, may
help to both visualise and actualise damaging climate change impacts in a way
that was previously difficult.
(ii) Quantifying businesses’ historical emissions
In the first wave of strategic private climate litigation commonly corporate
defendants argued that their contribution to GHG emissions is insignificant in
relation to historical or global emissions, and therefore cannot be said to
directly cause climate change harms or have a significant environmental
The temporal and geographical scope of anthropogenic climate
change spans decades and continents. The diffuse and transboundary character
of GHG emissions renders it difficult to attribute liability for climate change to
particular actors. Courts were therefore reluctant to make definitive findings of
fact about climate change causation, and tended to regard climate change as a
consequence of collective policies rather than individual choices. For that
reason, climate change challenges were treated as political questions that were
generally unsuitable for judicial review or adjudication.
However, advances in climate science have enabled researchers to identify
discrete groups of potential defendants whose contributions to the climate
crisis are identifiable, measurable and significant. Richard Heede’s 2013 study
was the first to map and quantify the cumulative emissions of the 90 largest
carbon producers from 1854 to 2010.
The study calculates a percentage
figure for the individual contribution of each ‘Carbon Major Entity’ of two-
thirds of all global anthropogenic carbon emissions.
Although the study and
its methodology are not without controversy,
the results of Heede’s research
Laura Paddison, ‘Exxon, Shell and Other Carbon Producers Sued for Sea Level Rises in California’ The
Guardian (London, 26 July 2017) <www.theguardian.com/sustainable-business/2017/jul/26/california-commu-
nities-lawsuit-exxon-shell-climate-change-carbon-majors-sea-level-rises> accessed 13 October 2017; County of
Marin v Chevron Corp CIV1702586 Cal Super Ct, 3; City of Oakland v BP plc 3:17-cv-06011; New York v BP plc
Jacqueline Peel, ‘Issues in Climate Change Litigation’ (2011) 1 Climate Change Law Review 15, 16.
Heede (n 16). 1854 to 2010 roughly corresponds to the period since the Industrial Revolution to the
Heede (n 16).
Douglas Starr, ‘Just 90 Companies Are to Blame for Most Climate Change, This Carbon Accountant Says’
Sciencemag.org (August 2016) <www.sciencemag.org/news/2016/08/just-90-companies-are-blame-most-climate-
change-carbon-accountant-says> accessed 11 October 2016. UC San Diego political scientist David Victor does
not criticise the findings of Heede’s research, but notes that focusing on the 90 major carbon producers ignores
that we are all energy users and have all contributed to the problem. While Heede has conceded this point, he has
12 Oxford Journal of Legal Studies
have since been peer reviewed and published in the academic journal Climatic
Change. A critical finding of this study is that the 90 Carbon Majors released
more than half of their total contribution of carbon emissions after 1988, which
indicates that the roots of the problem are more recent and easier to trace than
Many regard this study as ‘a turning point in the debate about apportioning
responsibility for climate change’
and commend it as the first study of its
kind to ‘[identify] a discrete class of defendants’
in climate litigation, with the
potential to assist plaintiffs in claiming compensation for climate change harms.
ELAW claims that the existence of such research ‘removes a previously
insurmountable hurdle for grassroots lawyers seeking to hold major carbon
emitters accountable’, and that it will ‘help lawyers around the world seeking to
hold corporations liable to meet the burden of causation’.
Indeed, shortly after its publication, the Carbon Majors study formed the
basis of two unprecedented private climate change lawsuits. The first is the
petition filed in September 2015 by the Philippines Reconstruction Movement
and Greenpeace Southeast Asia with the Philippines’ Commission on Human
Rights. The petition requests that the Commission exercise its investigative
powers to look into the role of Carbon Majors in causing climate change and
The central legal question in the case is: ‘whether or not
the Respondent Carbon Majors must be held accountable ... for the human
rights implications of climate change and ocean acidification’. The Carbon
Majors study was one of the ‘bedrock pieces of science research’ that helped
shape Greenpeace’s campaign.
The second is the lawsuit filed in November 2015 by Saul Luciano Lliuya, a
farmer from the Andean region of Peru, against the German utility company
RWE. Through this claim, Lliuya, who is supported by the NGO
Germanwatch, demanded from RWE a US$21,000 financial contribution
related to the costs of building defences against glacial lake flooding, landslides,
likely inundation of his village and destruction of his property. The sum of
$21,000 equates to 0.47% of the estimated cost of engineering projects that
would protect against flooding of the glacial lake. The claim is based upon the
Carbon Majors research and its finding that 0.47% of CO
that has been
further argued that the choices of individual consumers are already made for them by the energy infrastructure
(ie fossil fuel companies), for example, through their extraction and commercial use of fossil fuels.
Heede (n 16).
Starr (n 61).
Starr (n 61). This observation was made by Carol Muffett, the President and CEO of the Center for
International Environmental Law in Washington, DC.
ELAW (n 23).
Philippines Reconstruction Movement and Greenpeace (n 48).
Starr (n 61).
If at First You Don’t Succeed 13
emitted into the atmosphere during the industrial era can be traced back to
Whether or not they refer explicitly to the Carbon Majors study, the lawsuits
initiated in the second wave of private climate litigation specifically quantify the
individual and historical emissions from major carbon-emitting corporations
and argue on the basis of defendant-specific attribution. For example, in their
recent lawsuit against 37 Carbon Majors, Californian local governments in
Marin County, San Mateo and the City of Imperial Beach argue that the fossil
fuel defendants ‘are directly responsible for 227.6 gigatons of CO
between 1965 and 2015, representing 20.3% of total emissions of that potent
greenhouse gas during that period’.
Supported by IPCC-certified climate
science and studies such as Heede’s work on Carbon Majors, NGOs, civil
society groups and public authorities are likely to continue filing climate
change lawsuits on behalf of local communities that experience climate harms.
Similarly, citizens might rely on this type of evidence to petition for legal
(iii) Developments in attribution science
While Heede’s work helped identify individual defendants or groups of
defendants, it did not resolve the question of whether very large emitters are
responsible for specific climate change-related events. However, climate change
attribution research is also developing rapidly. In recent years, attribution
research with respect to single (extreme) events has made significant progress.
For example, researchers from the Union of Concerned Scientists and Oxford
University collaborated with Heede to combine both fields of attribution.
tracing company emissions over time, Ekwurzel and others attribute fractions
of the accumulation of CO
in the atmosphere, increases in atmospheric
temperature and elevation of the sea level to individual companies.
significantly, their article indicates how deaths from a single extreme weather
event could be attributed to climate change and, ultimately, to Carbon Major
These ongoing developments in the science of extreme weather
event attribution have the potential to significantly impact the legal landscape
for climate-related suits.
Lawsuits in the second wave of private climate litigation are already drawing
upon the advancements in climate attribution science, and courts might be
more open to the notion of individual corporate responsibility for climate
County of Marin v Chevron (n 57).
See Brenda Ekwurzel and others, ‘The Rise in Global Atmospher ic CO
, Surface Temperature, and Sea
Level from Emissions Traced to Major Carbon Producers’ (2017) 144 Climatic Change 579.
Ekwurzel and others (n 69).
Ekwurzel and others (n 69).
Sophie Marjanac, Lindene Patton and James Thornton, ‘Acts of God, Human Influence and Litigation’
(2017) 10 Nature Geoscience 616; Sophie Marjanac and Lindene Patton, ‘Extreme Weather Event Attribution
Science and Climate Change Litigation: An Essential Step in the Casual Chain? (2018) 36 Journal or Energy &
Natural Resources Law 265.
14 Oxford Journal of Legal Studies
harm, provided that partial or contributory causation can be scientifically
proven with respect to the defendant’s conduct. In Lliuya v RWE, the Civil
High Court in Hamm (Germany) rejected the judgment of the Essen Court,
which had dismissed the plaintiff ’s claims in the first instance based on his
inability to establish specific causation.
The Essen Court provided two main
reasons for its dismissal. First, in a manner reminiscent of the California
District Court in Kivalina, it held that the complexity of climate change and its
consequences made it impossible to trace a clear causal link between CO
emissions from the defendant’s power plants and the endangerment to the
plaintiff’s home in Peru from glacial flooding.
The plaintiff therefore failed to
satisfy the ‘but for’ test of causation under German civil law. Secondly, it
opined that RWE’s contribution to climate change did not meet the test of
adequacy due to the existence of numerous co-contributors to climate
As such, it was impossible to establish a causal link between the
emissions of a single entity and specific climate change impacts.
In contrast, the Hamm Court has provisionally accepted the plaintiff’s
causation arguments subject to requests for further evidence and expert opinions
to be submitted at the evidentiary stage of the hearing. It declared that ‘while
RWE’s emissions are not wholly responsible for the flood risk to Huaraz, it is
enough that its emissions are partially responsible for the actual, present risk’.
Accordingly, the court held that there is no legal basis to rule out the existence of
partial causation in this case, whereby RWE can be considered a co-contributor to
climate change impacts on Huaraz.
It also generally accepted climate models as
valid sources of legal evidence, and concluded that the question of whether
RWE’s emissions are partially contributing to the endangerment of the plaintiff’s
hometown of Huaraz is a scientific determination.
Following the decision, the Union of Concerned Scientists stated that
lawsuits such as this one will draw on the rapidly advancing field of climate
attribution science, which now enables us to pinpoint just how much fossil fuel
producers have contributed to rising seas, increasing global temperature, and a
growing list of other impacts.
This burgeoning field of research and its swift incorporation into litigation
underline the potentially pivotal role of attribution science for strategic climate
litigation, and private climate litigation in particular.
Saul Luciano Lliuya v RWE (2018) Az 5 U 15/17 OLG Hamm.
Lliuya v RWE (n 73).
Lliuya v RWE (n 73).
Germanwatch, ‘General Ruling of the Civil High Cour t in Hamm’ (Germanwatch.org, 14 November 2017)
<https://germanwatch.org/en/huaraz> accessed 14 November 2017.
Germanwatch (n 76).
Germanwatch (n 76).
Kathy Mulvey, ‘Climate Case by Peruvian Farmer Green-Lighted in Germany’ (Climateliabilitynews.org, 14
November 2017) <www.climateliabilitynews.org/2017/11/14/climate-change-peru-germany-rwe/> accessed 18
If at First You Don’t Succeed 15
B. Legal Discourse
The developments discussed in the preceding paragraphs involve changes in
scientific knowledge which may make it easier for claimants in private climate
cases to meet evidentiary thresholds. Through a combination of advances in
climate science, quantification and attribution science, claimants may now
argue with some credibility that, ‘but for’ the emissions of company X, they
would not have suffered a particular, measurable harm. The proliferation of
such argumentation could result in climate change no longer being represented
before the court as a diffuse and general problem caused by myriad unknown
and unidentifiable sources, but instead as the consequence of a specific set of
choices and actions, undertaken by a discrete group of well-informed actors,
which causes particular and measurable damage. This conceptualisation could
trigger a shift in the judicial mindset and recast climate change from a political
question into an individual concern. Recent litigation already shows signs of
subtle shifts in the narrative. Two prominent emanations of this shift are (i) the
resurgence of interest in exploiting the precedential value of tobacco and
asbestos litigation and (ii) recent changes in the discourse around directors’
liability and disclosure requirements.
(i) Augmenting the precedential value of tobacco and asbestos litigation
The first wave of tort-based climate litigation reflected some of the strategies
used in tobacco and asbestos litigation. Examples of successful asbestos and
tobacco litigation abound. In the English tort case of Fairchild v Glenhaven, the
House of Lords ruled in favour of the plaintiff, who had contracted
mesothelioma as a result of being exposed to asbestos while working for
different employers. With respect to causation, the court found that although it
was impossible to pinpoint which employer had directly caused the harm, the
defendant corporation Glenhaven had nonetheless materially increased the risk
of harm to the plaintiff and was found to be jointly and severally liable.
Similarly, in the 1990s and early 2000s, plaintiffs began to experience greater
levels of success in US tobacco litigation. In 2002, an individual plaintiff in
tobacco litigation secured a major victory against the Philip Morris company. A
jury found the tobacco corporation liable to pay a record $28 billion in punitive
damages to Betty Bullock, a 64-year-old woman who had contracted
inoperable lung cancer from tobacco smoke.
The punitive damages award
was eventually reduced in 2011 to $28 million on appeal.
The challenges surrounding private climate litigation have a number of
similarities with those affecting asbestos and tobacco litigation. In all cases,
liability involves the manufacture of products (asbestos, tobacco and fossil
Fairchild v Glenhaven  UKHL 22.
Bullock v Philip Morris USA Inc (California Court of Appeal, Second District, Case No B222596).
Bullock v Philip Morris USA Inc Cal App 4th 543 (2011).
16 Oxford Journal of Legal Studies
fuels, respectively) initially considered harmless but later understood to create
severe health and environmental risks. In all cases, attribution of harm is
complicated by the existence of multiple sources of causation. Moreover, in all
cases the government, as a provider of public services, incurs major public
costs in dealing with the consequences of, respectively, asbestos exposure,
tobacco use and climate change.
But the success of private asbestos and
tobacco litigation was not replicated in the first wave of strategic private climate
litigation. The main reason was the relatively greater challenge in establishing a
causal chain in climate cases. Whereas tobacco and asbestos victims could at
least pinpoint the group of potential culprits, plaintiffs in first-generation
climate change lawsuits could not.
However, in light of the changing context of causation in the field of climate
change, tobacco and asbestos precedents might be more instructive for future
tort-based climate litigation. Developments in attribution science are likely to
bring private climate litigation into closer alignment with asbestos and tobacco
litigation, particularly since the cohort of potential defendants in climate
litigation has become easier to identify and narrow down to a key set of players,
the Carbon Majors. Moreover, there has been an ongoing effort to demonstrate
that, much like ‘big tobacco’, major carbon emitters have long had knowledge
and awareness of climate change, yet took actions to confound or mislead the
In the landmark tobacco case of USA v Philip Morris, DC District
Court Judge Kessler famously ruled that the Department of Justice had
presented overwhelming evidence of Philip Morris’s participation in a
conspiracy to defraud the public.
The US experience thus showed that it
was not only possible for directly affected private parties to sue for damage, but
that governments, too, could sue corporations to recover health and environ-
mental damage-related costs. ExxonMobil has been at the centre of a similar
controversy in the context of climate change, being accused of suppressing
climate change research, as well as spreading doubt in advertorials.
Recent attempts to build on the legacy of tobacco and asbestos litigation and
use it as a relevant precedent for climate litigation are the Californian lawsuits
filed in July 2017 by San Mateo County, Marin County and the City of
Imperial Beach. In a manner analogous to the tobacco and asbestos litigation
of the 1990s, the plaintiffs in the California climate lawsuits accuse oil
companies of knowing that their emitting activities are causing catastrophic
climate change. The emergence of governments as claimants in private climate
litigation moreover helps to overcome some of the legal obstacles that thwarted
Martin Olszynski, Sharon Mascher and Meinhard Doelle, ‘From Smokes to Smokestacks: Lessons from
Tobacco for the Future of Climate Change Liability’ (2017) 30 Geo Int’l Envtl L Rev 1.
See Center for International Environmental Law—CIEL, ‘Smoke and Fumes ’ (November 2017) <www.
ciel.org/wp-content/uploads/2017/11/Smoke-Fumes-FINAL.pdf> accessed 10 November 2017.
USA v Philip Morris USA Inc 449 F.Supp.2d 1 (DDC 2006).
Geoffrey Supran and Naomi Oreskes, ‘Assessing ExxonMobil’s Climate Change Communications (1977–
2014)’ (2017) 12 Environmental Research Letters 084019.
If at First You Don’t Succeed 17
the claimants in Kivalina and Comer. Rather than relying on federal common
law, which the courts decided could not be applied because the common law
on these issues was displaced by the Clean Air Act, these cases are grounded
instead in state common law, which is unaffected by the prior rulings.
The tobacco and asbestos precedents are also instructive in highlighting the
regulatory potential of private climate litigation. Tobacco and asbestos litigation
proved a powerful mechanism for modifying corporate behaviour through the
introduction of legislative schemes. By the 1990s and early 2000s, the sheer
volume of class action tobacco and asbestos litigation against major corpor-
ations influenced the adoption of sweeping legislative changes in the form of
both compensation funds and new regulatory frameworks. Although courts did
not always hold defendants liable due to the scientific complexity of
establishing a causal link between exposure and the manifestation of future
harms, asbestos and tobacco cases were nevertheless instrumental in the
development of legislative schemes to provide systemic redress to victims.
In view of such developments, in this second wave of strategic private climate
litigation it is foreseeable that lawsuits may drive legislative change, particularly
as the scientific evidence on attribution for particular climate change impacts
mounts. Proposals for model legislative schemes for climate change victims are
already in circulation. As Douglas Kysar predicted, while US tort law in its
current incarnation is ill-equipped to respond to climate change, the growing
volume of private climate litigation will ultimately compel the tort system to
adapt and shift into alignment with the administrative state’s regulatory role in
relation to climate change.
(ii) Litigation as a component of corporate climate risk management
Another change in the legal context driving the second wave of strategic private
climate litigation involves a growing representation of litigation as an aspect of
corporate climate risk management. In addition to the possibility of directly
affected victims of climate change initiating tort actions against corporate
emitters, corporations face actions over corporate disclosure requirements and
associated duties of directors, as well as claims by shareholders and investors
for greater transparency and disclosure of information relating to climate risk
In particular, the argument that energy-intensive companies have a
legal responsibility to disclose the impact of climate change is gradually
maturing into a self-standing ground for litigation.
John Schwartz, ‘Students, Cities and States Take the Climate Fight to Court’ New York Times (New York,
10 August 2017) <www.nytimes.com/2017/08/10/climate/climate-change-lawsuits-courts.html> accessed 12
August 2017. Attorneys for the plaintiffs said they modelled their legal tactics on past efforts to hold
accountable tobacco companies and producers of cancer-causing agents. Joshua Emerson Smith, ‘Novel Legal
Strategy Underpins Sea Level Rise Lawsuits against Oil and Coal Companies,’ San Diego Union Tribune (San
Diego, 23 July 2017) <www.sandiegouniontribune.com/news/environment/sd-me-climate-change-legal-
20170723-story.html> accessed 12 August 2017.
Douglas A Kysar, ‘What Climate Change Can Do about Tort Law’ (2011) 41 Environmental Law 1, 5.
Peel and Osofksy (n 17) 182.
18 Oxford Journal of Legal Studies
Climate risk disclosure has become the subject of intense litigation in the
United States and beyond. In 2015, the New York Attorney General’s
settlement with Peabody Energy Corporation required improved climate
change disclosures after a two-year investigation into the company. A further
investigation led by the New York Attorney General (and others) focuses on
ExxonMobil for potentially misleading investors about climate risks to the
company. The inquiry relates to the allegations that ExxonMobil funded
outside groups that seek to discredit climate science, while at the same time its
in-house scientists were outlining potential climate risks to Exxon company
executives. In the UK, the NGO ClientEarth recently issued a complaint to the
Financial Reporting Council (FRC) regarding the omission of climate risk
reporting in the annual reports of two oil and gas companies, SOCO
International plc and Cairn Energy plc.
The prospect that company directors could be held legally liable for failing to
manage climate change risks has become all the more explicit since Bank of
England Governor Mark Carney’s speech of September 2015. Carney warned
that company directors and pension fund trustees could be held liable for
contributing to anthropogenic climate change, for not reasonably managing the
risks associated with climate change, for misleading investors about the
business risks of climate change or for failing to comply with legal reporting
Such predictions are gradually being vindicated, as the second wave of
private climate litigation includes a small but significant cohort of cases in
which shareholders sue financial services firms over climate risk disclosure. The
first of such cases was filed in August 2017, against the Commonwealth Bank
of Australia, over its 2016 annual report.
The shareholder plaintiffs argued
that the report, prepared by the Commonwealth Bank of Australia, failed to
address climate risk as part of its risk management framework and did not
include reference to funding for the Carmichael coal mine in Queensland. The
shareholders requested a declaration that the Commonwealth Bank had
contravened the Corporations Act and an injunction to prevent it from
omitting climate risks from future annual reports. The case was dropped one
month later as the Commonwealth Bank included in its 2017 annual report an
acknowledgement that climate change posed a significant risk to its operations,
ClientEarth, ‘ClientEarth Triggers Review of Companies’ Climate Disclosures’ (ClientEar th.org, 22 August
2016) <www.clientearth.org/clientearth-triggers-review-companies-climate-disclosures/> accessed 1 November
Mark Carney, ‘Commonwealth Climate and Law Initiative (CCLI)’ (2016) <www.smithschool.ox.ac.uk/
research-programmes/ccli/background.php> accessed 1 November 2016.
Michael Slezak, ‘Commonwealth Bank Shareholders Sue over ‘‘Inadequate’’ Disclosure of Climate Change
Risks’ The Guardian (London, 8 August 2017) <www.theguardian.com/australia-news/2017/aug/08/common-
wealth-bank-shareholders-sue-over-inadequate-disclosure-of-climate-change-risks> accessed 21 August 2017.
If at First You Don’t Succeed 19
with a promise to conduct climate change risk assessments in the upcoming
Against the backdrop of escalating climate investor suits, and at the request
of the G20 finance ministers and central bank governors, a Taskforce on
Climate-Related Financial Disclosures (TCFD) was established by the
Financial Stability Board, under the leadership of former New York City
mayor Michael Bloomberg. The TCFD was assigned the mission to review
how the financial sector could take climate-related issues into account,
develop ‘voluntary, consistent climate-related financial disclosures that would
be useful to investors, lenders, and insurance underwriters in understanding
In its final report, published in June 2017, the TCFD outlines
a set of recommendations and guidelines for corporations on their financial risk
disclosure obligations relating to climate change across the G20 jurisdictions.
In a similar vein, proposals have been made to reform company law by
introducing a corporate duty of environmental care.
Such a duty would
resemble the norm of malfeasance
and the common law tort of negligence
(the duty to avoid harm to others), and would render corporate disclosure and
reporting requirements mandatory.
At the core of this duty of environmental
care is the notion that the purpose and functions of the modern corporation
require significant revision in the face of planetary challenges like climate
change. More specifically, as Mathiopoulous argues, redefining the purpose of
the modern corporation requires a shift away from shareholder-centric models
of corporate governance towards a broader stakeholder-oriented model,
requiring corporations to act in the public interest and in a manner that is
socially and environmentally responsible.
The importance of these developments is difficult to overstate. They
represent a significant shift in our understanding of climate change risk from
an external, public health and safety risk to an internalised corporate risk which
needs to be adequately managed. From the corporation’s perspective, climate
Gareth Hutchens, ‘Commonwealth Bank Shareholders Drop Suit over Nondisclosure of Climate Risks’ The
Guardian (London, 21 September 2017) <www.theguardian.com/australia-news/2017/sep/21/commonwealth-
bank-shareholders-drop-suit-over-non-disclosure-of-climate-risks> accessed 22 November 2017.
Taskforce on Climate-Related Financial Disclosures, ‘Recommendations of the Taskforce on Climate Related
Financial Disclosures’ (2017) <www.fsb-tcfd.org/publications/final-recommendations-report/> accessed 20 April 2017.
˚fjell and Benjamin J Richardson, ‘The Future of Company Law and Sustainability’ in Beate
˚fjell and Benjamin J Richardson (eds), Company Law and Sustainabilit y: Legal Barr iers and Opportunities (CUP
Malfeasance refers to any act that is wrongful or unlawful. Under civil law, it includes the carrying out of an
unlawful act by a public official in violation of their professional duty which caus es injury to others. Cornell Law
School: Wex Legal Dictionary, ‘Malfeasance’ <www.law.cornell.edu/wex/malfeasance> accessed 20 January 2018.
˚fjell and M€
onen further posit that a duty of environmental care could be given effect under company
law through the following statutory wording in relation to directors’ duties: ‘the purpose of a company is to create
sustainable value through the balancing of the interests of its investors and other involved parties within the
planetary boundaries’. Beate Sja
˚fjell and Jukka M€
onen, ‘Upgrading the Nordic Model for Sustainable
Companies’ (2014) 11(2) ECL 58.
Jim Apollo Mathiopoulos, ‘The Purpose of For Profit Corporations in Light of Modern Perceptions and
Wider Corporate Responsibilities (Part 1)’ (2017) 38 Co Law 9, 278.
20 Oxford Journal of Legal Studies
change becomes an agenda point that needs to be addressed through policies
ranging from investment in technological innovation to the development of
disclosure strategies, contingency planning and insurance. These developments
might further corporate transparency and reduce the likelihood of disinforma-
tion campaigns on climate change. From a company’s perspective, they could
also serve to reduce the risk of future climate litigation.
What is key for our discussion is that the maturing understanding of climate
change risks as corporate risks opens the door to new categories of litigants
who have a stake in ensuring that firms behave as responsible climate risk
managers. These now expand beyond the familiar category of victims who are
exposed to climate change-related damage, and the NGOs that assist them, to
include shareholders and investors who have a vested interest in obtaining full
information about all corporate assets and liabilities, including liabilities related
to climate change risk. The final category of new litigants consists of public
authorities who have an interest in ensuring that the public is not being
defrauded by misleading information and that public resources will not be
depleted in remedying climate change-related damage. These are new players,
and they are also a different kind of player. Compared with the victims of the
physical impacts of climate change, such as the thousands of people who lost
their homes and possessions during Hurricane Katrina and, more recently, the
storms that battered the Caribbean and the South-East US coastline, investors,
shareholders and public authorities tend to be better resourced and more
experienced in litigation, and to have greater access to legal expertise.
C. Institutional and Constitutional Context
Although the vast majority of climate litigation still takes place in the United
States, in recent years courts and other adjudicative bodies around the world
have been experiencing an increase in lawsuits involving climate change. In
some cases at least, courts outside the United States have proved surprisingly
receptive to litigants’ claims. This development is most evident in public
climate litigation, which has been thoroughly shaken up by the decisions of the
Hague District Court in Urgenda and the Lahore High Court in Leghari.
In private climate litigation, too, courts and tribunals have recently sent
some unexpectedly encouraging signs to claimants. First, with respect to the
Greenpeace Philippines petition, the Human Rights Commission confirmed its
explicit authority and jurisdiction to investigate all forms of human rights
violations, including those resulting from climate change, in this national
inquiry involving 47 investor-owned carbon producers.
This means the
Commission considered the issue of jurisdiction and rejected the companies’
motions to dismiss the investigation. The Commission announced multiple
Leghari (n 11).
Philippines Reconstruction Movement and Greenpeace (n 48).
If at First You Don’t Succeed 21
fact-finding missions and public hearings in 2018—three in Manila, one in the
United States and another in Europe. The petitioners will ramp up the global
call for the companies to participate in the public hearings and for the
Commission to issue findings and a resolution to the national inquiry by 10
December 2018, the 70th Anniversary of the UN Universal Declaration of
Human Rights. Secondly, the recent ruling by the Hamm Regional Court in
Lliuya v RWE has also given the plaintiff ’s case a new lease on life, particularly
with respect to the issue of climate change causation.
It is difficult to pinpoint the precise reasons for these shifts in judicial
decision making, particularly in legal cultures as different as the Netherlands
and the Philippines. Perhaps a factor is that, as extreme weather events become
ever more frequent and warning signs that our planet is teetering on the brink
of catastrophic change multiply, something simply has got to give. In the
Global South, too, an upward trend in climate litigation against corporations
on behalf of individuals can be discerned. Following the petition in the
Philippines, residents of several other southeastern countries—including
Vanuatu, Kiribati, Tuvalu, Fiji and the Solomon Islands—declared their
intent to file similar petitions.
In a similar vein, a finding of liability in Lliuya
vRWE could potentially have far-reaching impacts, notwithstanding the small
sum of sought damages involved. The following paragraphs identify three
factors that may help to explain these recent shifts:(i) the proliferation of
environmental courts; (ii) the constitutionalisation of environmental protection;
and (iii) the rise of transnational judicial networks.
(i) The proliferation of environmental courts
An increase in the litigation and adjudication of climate change matters
worldwide might partly be attributed to increased judicial capacity to deal with
such matters, as indicated by the recent surge of specialist environmental
courts and tribunals, particularly in the Global South. Among other common
law countries, Kenya has legal provisions that may be conducive to climate
litigation, as well as a specialised environmental court.
In India, judges have
been willing to consider the proposition that environmental damage may
constitute a violation of fundamental rights. The right to a healthy environment
is enshrined in article 21 of the Indian Constitution. In addition, India has a
National Green Tribunal (NGT) that, since its inauguration in 2010, has
already issued a number of decisions that affirm environmental protection as a
fundamental right. NGT decision-making procedures are heavily animated and
enhanced by the involvement of scientific and technical experts who are key
Peter E Seley and Richard Dudley, ‘Emerging Trends In Climate Change Litigation’ (Law360.com,7
March 2016) <www.law360.com/articles/766214/emerging-trends-in-climate-change-litigation> accessed 10
ELAW (n 23).
22 Oxford Journal of Legal Studies
evidentiary actors and data providers.
This signals the potential for climate
science to play a greater role in future legal proceedings on climate change in
(ii) The constitutionalisation of environmental protection
The adoption of constitutions by many countries around the world over the
past decades has been accompanied by an ‘environmental rights revolution’,
with environmental problems increasingly being addressed through the prism
of human rights and constitutionalism.
Of the 196 countries with consti-
tutions, 148 have enshrined some form of environmental constitutionalism.
Countries such as Brazil, Colombia, Kenya and Mexico have constitutional
provisions that recognise the right to a healthy environment and the role of the
public prosecutor’s office in the enforcement of this right against private
corporations or the government. The combination of such constitutional
provisions with a growing body of robust climate change legislation provides an
increasingly solid basis for climate litigation.
In Brazil, federal legislation further provides for the ‘polluter pays’ principle
and strict liability for environmental offences, which means that it is unneces-
sary to prove that the defendant caused harm through negligence or intent.
The Brazilian Superior Court of Justice has relied on these legal provisions to
ban the use of fires in sugarcane harvesting, among other reasons, because of
the GHG emissions generated by this activity.
Since the enactment of the
2009 national climate change law (Law 12,187), the Prosecutor’s Office filed a
class action lawsuit against 40 aeroplane companies operating in the interna-
tional airport of S ~
ao Paulo for the emissions and pollution caused during
landing and departures. The case is pending at the Federal Court.
(iii) The rise of transnational judicial networks
The international legal community also plays an increasingly active role in
educating international and domestic courts and tribunals about climate
justice, and the importance of their role in achieving it. For example, the Oslo
Principles on Global Climate Change Obligations, drafted in 2015 by legal
experts and judges, identify a number of existing legal bases on which both
governments and enterprises (including large fossil fuel and cement corpor-
ations) are obligated to reduce GHG emissions. Obligations imposed on
enterprises include self-assessment of vulnerability and risk; public disclosure
duties towards clients, investors and entities likely to be directly or indirectly
Gitanjali Nain Gill, ‘Environmental Justice in India: The National Green Tribunal and Expert Members’
(2015) 5 TEL 2.
Roderic O’Gorman, ‘Environmental Constitutionalism: A Comparative Study’ (2017) 6 TEL 435.
ibid, 436, 461.
ELAW (n 23).
Recurso Especial No 1.000.731—RO, 25 August 2009, Braulino Bası
´lio Maia Filho v Instituto Brasileiro do
Meio Ambiente e dos Recursos Naturais Renova
If at First You Don’t Succeed 23
affected by their activities; and conducting environmental impact assessments
prior to the construction of new facilities.
The Expert Group on Climate
Obligations of Enterprises has undertaken a similar initiative, with legal experts
and judges involved in the drafting of the Principles on Climate Obligations for
Inspired by the Oslo Principles, which apply primarily to states,
the Enterprise Principles comprise a series of climate obligations specifically
targeted at enterprises and investors, with an emphasis on emissions reduction.
5. Failing Better
Together, developments in climate science, legal discourse and the constitu-
tional context could herald a shift towards a more propitious climate for private
litigation. Most importantly, developments in attribution science could help to
overcome the causation hurdle, as they make it easier for claimants to argue
convincingly that, but for a defendant’s actions, they would not have been
exposed to environmental harm. Equally relevant are the developments in the
discourse which represent corporate failings to act against climate change not
only as failings vis-a
`-vis the immediate victims of climate change, but also as
failings towards the state and towards investors and shareholders. This framing
unlocks the potential for new categories of litigants who may bring particular
strengths to the table that climate change victims tend to lack. Investors and
shareholders may be better resourced than NGOs representing local commu-
nities at risk. Public authority claimants, too, tend to have greater resources
and experience than typical ‘first wave’ claimants, and moreover may be able to
invoke legal privileges, such as ‘special solicitude’ considerations, which are
unavailable to private claimants. Moreover, the example of a few unexpected,
arguably iconoclastic rulings, such as the Urgenda and Leghari decisions, may
embolden other courts to follow suit. The evolving constitutional context,
which underlines the vital importance of a healthy and sustainable environment
as a precondition for the very existence of a democratic society under the rule
of law, may constitute precisely the sort of enabling environment that the
judiciary needs to take new and controversial steps towards the reconceptua-
lisation of climate change mitigation and management as a universal legal
In our view, the scientific, discursive and constitutional changes discussed in
this article improve the odds of success for present and future plaintiffs.
Admittedly, however, they do not constitute an iron-clad guarantee. For
example, in the US context, the political question and displacement doctrines
Expert Group on Global Climate Change Obligations, ‘Oslo Principles on Global Climate Change
Obligations’ (1 March 2015) <http://globaljustice.macmillan.yale.edu/sites/default/files/files/OsloPrinciples.pdf>
accessed 8 August 2016.
Expert Group on Climate Obligations of Enterprises, Principles on Climate Obligations of Enterprises (Eleven
International Publishing 2018).
24 Oxford Journal of Legal Studies
may prove impervious to contextual shifts. Moreover, even if it becomes easier
for claimants to assert with greater confidence that large corporate actors are
responsible for a sizeable and knowable percentage of the choices and
behaviour that result in climate change, this form of attribution may still fall
short of judicial expectations that particularised harm is linked to a specific
cause for liability to be established. Indeed, the cases launched by the cities of
San Francisco and Oakland against five corporate defendants
US District Court for the Northern District of California were recently
dismissed because, according to the judge, the causes of climate change ‘are
wordwide’ and cannot be addressed through court action.
have been quick to claim that this means that, for all remaining similar
lawsuits, the writing is on the wall. Hence, improved odds notwithstanding, the
next generations of private climate litigation may meet the same fate as the
However, the world of environmental litigation is rich in both pyrrhic
victories and sublime failures. Claimants need not always be vindicated in
court to get their point across and contribute to long-term legal change.
Indeed, the existing body of experience with private climate litigation already
illustrates this dynamic: even though no corporate actors have yet been held
legally accountable, the sheer possibility of this happening has fostered the
conceptualisation of climate change as a legal and financial corporate risk, and
the corresponding expectation on the part of shareholders and investors that
corporations will manage this risk.
Defendant corporations in climate litigation are likely to incur costs in terms
of reputational damage. Even if a corporate defendant successfully deflects a
climate change lawsuit and recovers costs, its practices are likely to remain
subject to ongoing public and financial scrutiny. A prominent example of this is
ExxonMobil, which had its ‘triple A’ credit rating downgraded in 2017 and
subsequently faced pressure from investors to disclose climate risks. In
addition, ExxonMobil suffered reputational damage when it emerged that it
actively misled investors and the public about climate science.
In addition, there are litigation costs. Climate change lawsuits are expensive
to litigate, even for well-resourced corporations. Since climate change is a
transboundary phenomenon, corporations can potentially be sued for damages
in any jurisdiction in which climate harm occurs and could therefore face a
litany of lawsuits. The exponential increase in climate harms globally means
that Carbon Major corporations may be liable to pay billions of dollars worth
of damages for existing as well as future climate harms. In addition, not all
Chevron Corp, BP plc, ConocoPhillips, Exxon Mobil Corp and Royal Dutch Shell plc.
City of Oakland v BP plc (n 57).
Megan Darby, ‘Shareholder Pressure Mounts on Downgraded ExxonMobil’ The Guardian London, 28
April 2016) <www.theguardian.com/environment/2016/apr/28/shareholders-pressure-mounts-on-downgraded-
exxonmobil-climate-change> accessed 16 November 2016.
If at First You Don’t Succeed 25
climate change damage is covered by insurers. Corporate defendants typically
rely on liability insurers for indemnification and defence, but climate change-
related allegations against corporations do not automatically trigger the
corporate insurer’s indemnification and defence duties vis-a
`-vis their clients.
The broader field of climate litigation also provides a different, but equally
compelling, reminder not to confuse judicial outcomes with long-term results.
Climate litigation also encompasses court action aimed at challenging climate
change law and regulation, as exemplified in the European Court of Justice’s
ETS Aviation ruling.
Here, the plaintiffs failed in their attempt to invalidate
an EU legal measure, as the court deemed that the aviation-related amend-
ments to the Emissions Trading Directive were lawful. Yet within one year, the
EU decided to suspend the application of the aviation provisions vis-a
country airlines. In the event, the ECJ ruling did not settle the dispute between
the EU, the aviation sector and non-EU governments. Rather, it brought it to a
head and led third countries to apply renewed diplomatic pressure and threaten
the EU with trade sanctions against what they continued to see as an
unacceptable measure, whether or not judicially sanctioned.
The ETS aviation saga shows that success in the courtroom does not
necessarily translate into long-term sustainability of the ‘winning’ approach.
Moreover, it is important not to reduce the significance of a judgment to its
dispositive part. Even when dismissing claims, judges may use the adjudicative
process as a signalling opportunity to highlight a need for legal change, or to
indicate an alternative pathway that might be more fruitfully pursued to
achieve the objectives of unsuccessful claimants. As observed in the context of
tobacco and asbestos litigation, judicial signalling might trigger legislative
change through the adoption of remedial schemes for those who have
experienced harm. Finally, even in the absence of such ‘judicial nudging’,
unsuccessful cases can contribute to social change. Examples from the field of
animal rights litigation are instructive in this context. Even though attempts to
have non-human animals recognised as rights holders before the court
habitually fail, the argument is frequently made that such cases help to raise
social awareness and may contribute to a change in attitudes that could
For example, in the Kivalina case, one of the successful defendants, AES Corporation, sued its insurer for
defence and indemnification. The court ruled in favour of the insurer on the grounds that the climate change
damage in question did not constitute an ‘occurrence’ such as ‘a for tuitous event or accident’, sufficient to trigger
the insurer’s obligations under the insurance policy. AES Corp v Steadfast Ins Co 725 S.E.2d 532 (Va 2012). See
Sabin Center for Climate Change Law, ‘Virginia Court to Decide the First Climate Change-Related Insuranc e
Coverage Case’ (2017) <http://blogs.law.columbia.edu/climatechange/2011/05/16/virginia-court-to-decide-the-
first-climate-change-related-insurance-coverage-case/> accessed 1 November 2017.
C-366/10 Air Transport Association of America and Others v Secretar y of State for Energy and Climate Change
 ECR I-13755.
See Suzanne Kingston, Veerle Heyvaert and Aleksandra Cavoski, European Environmental Law (CUP
26 Oxford Journal of Legal Studies
ultimately prove more effective in tackling a public interest problem than any
set of legal changes would be.
The judgments and pending cases discussed in this article provide an overview
of litigation strategies to hold large GHG emitters accountable for their
respective contributions to global warming or to exert pressure on industry to
address climate change. The analysis yields a number of important insights
about the current state of private climate litigation and an indication of the
direction that such litigation might take in future. The first generation of
private climate litigation was largely unsuccessful due to the failure of plaintiffs
to establish sufficient causal links between climate harm and defendant
conduct. Nevertheless, the move towards private climate litigation is gaining
momentum, with plaintiffs adopting innovative strategies that capitalise on new
developments in climate science. Scientific developments, together with shifts
in the legal discourse and the institutional context in which climate litigation
unfolds, have significantly raised the likelihood of success for plaintiffs in
pending and future climate change lawsuits.
Climate litigation has also spread beyond the United States into new
jurisdictions throughout Asia, South America, the Pacific and Europe.
Corporations are being investigated for the impact their activities have on
human rights. In addition, citizens from the Global South are suing northern
corporations in their respective jurisdictions. Private citizens and civil society
actors are also increasingly employing innovative litigation strategies in
jurisdictions of the Global South such as Brazil, India, Pakistan and Kenya,
which are more receptive to environmental and rights-based protections.
Even if a corporation avoids being held accountable by climate change
victims, it may incur a series of costs in terms of liability for future climate
harms, reputational damage and ongoing public scrutiny and pressure to
disclose climate change risk. Moreover, governments may challenge private
corporations for withholding from the public and investors information about
climate change and its risks. Furthermore, company executives and directors
may be directly sued for breach of their fiduciary duties and obligations to
consider and disclose climate change risk. Concerns about climate change risk
have re-energised private sector discourses and given rise to law reform
proposals to redefine the purposes and functions of the modern corporation.
Litigation on climate risk disclosure is likely to grow significantly and may
become a major category of second-wave climate change lawsuits.
Alexia Staker, ‘‘‘Should Chimpanzees Have Standing?’’ The Case for Pursuing Legal Personhood for Non-
Human Animals’ (2017) 6 TEL 3; Anne Peters, ‘Global Animal Law: What It Is and Why We Need It’ (2016) 5
TEL 1; Jacqueline Peel and Hari M Osofsky, ‘A Rights Turn in Climate Change Litigation?’ (2017) 1 TEL 31.
If at First You Don’t Succeed 27
In sum, although we cannot guarantee that the second wave of private
climate litigation will be more successful than the first, the odds have definitely
improved. Moreover, the proliferation of lawsuits in spite of discouraging past
experience shows that private plaintiffs and advocacy organisations are
committed to the continued pursuit of new litigation strategies in an expanding
range of fora. While it remains unlikely that all claimants will emerge
victorious, it is even more improbable that this wave of momentum will leave
the law unchanged.
28 Oxford Journal of Legal Studies