We advise our clients through a customized holistic lawsuit avoidance and/or defense strategy in identifying and assessing climate risk and transforming and adapting the business model to achieve the Paris Agreement’s 1.5 degree target and, if necessary, defending against climate lawsuits.
The recent wave of climate litigation against German automakers and Wintershall Dea is new in the law. The plaintiffs want to use the courts to intervene in the business activities of companies, arguing that they will be disproportionately restricted in their fundamental rights if the CO2 emissions of the defendant companies are not reduced beyond what is required by law. The Shell ruling from the Netherlands and the decision of the German Constitutional Court on the Climate Protection Act serve as a model and basis. There is a strong indications that these lawsuits are just the beginning and that other sectors that directly or indirectly emit significant amounts of CO2 from greenhouse gases, such as agriculture, industry or buildings and aviation, will also be sued. Financing banks and investors with a “fossil loan portfolio” or “fossil investments” may also become targets of climate lawsuits.
Other lawsuits (for example FossielVrij NL v. KLM and Greenpeace France v. TotalEnergies SE) and investigations by regulatory authorities (BaFIn and SEC v. DWS/Deutsche Bank) have recently also been directed against misleading advertising about climate protection efforts and climate-neutral products and CO2 offset programs of individual companies (so-called greenwashing).
A successful avoidance and/or defense strategy against such lawsuits and investigations must, by way of a holistic approach, evaluate the company’s climate targets and ESG strategy as well as its internal and external communications as part of a risk analysis. Beyond the legal aspects, the political and overall social dimension of climate change must also be taken into account. Defending against climate change claims requires a combination of expertise in civil litigation and public climate change law. For this reason, we have formed a cross-firm legal defense team between Skadden and Pohlmann & Company. Together with Dr. Anke Sessler and Max Stein, we are ideally placed to offer recognized and long-standing expertise in both climate protection law and litigation/arbitration.
In the German law review for substantive and procedural climate protection law (KlimaRZ), we discuss on an ongoing basis new court decisions on climate protection law and actively accompany further developments in this area.