Questions Answered in ENR Case Law Update - Issue 10
WHAT IS GREENWASHING AND HOW DO WE STOP IT?
Greenwashing is the practice whereby companies use advertising and marketing to overstate or distort their environmental credentials or obscure the extent of the environmental harm which their activities cause. We consider the harms that greenwashing causes, and the ways in which the UK, the EU and others are combating it, whether through the targeting of false or inflated marketing, or the imposition of increased reporting and disclosure obligations on businesses. We also consider the possibility of greenwashing-related civil claims by activist investors and shareholders, affected consumers and interested NGOs seeking to enforce corporate compliance with emissions targets and seeking redress for perceived greenwashing.1
THE TORT OF NUISANCE: WHAT IS REQUIRED TO ESTABLISH A "CONTINUING NUISANCE"?
The concept of "continuing nuisance" in law is different from that which might be understood from the ordinary meaning of the words. Continuing nuisance refers to a repeated activity of a defendant or ongoing state of affairs for which the defendant would be responsible, and which causes “continuing undue interference with the use and enjoyment of the claimant’s land”. An oil leak, which was quickly repaired, was a one-off event. There was no repeated activity or ongoing state of affairs. The cause of action in nuisance accrued and completed once the oil reached the shore and affected the claimants’ land. There was no continuing or fresh cause of action for the period that the oil remained on their land, and the claimants' claim was therefore out of time. Jalla and another v Shell International Trading and Shipping Co Ltd and another2.3
CLIMATE CHANGE AND JUDICIAL REVIEW – WHAT HAS BEEN HAPPENING IN THE ENGLISH COURTS?
In three decisions issued during the first half of 2023, both the Court of Appeal4 and the High Court5 considered applications for judicial review based on the UK Government's alleged failure to meet its obligations under the Paris Agreement, including its commitment to the Net Zero Strategy. With the applications dismissed in two out of the three cases, we consider each decision in turn, against the background of the growing trend of using judicial review to challenge climate policies and decisions. The judgments reflect the fact that judicial reviews based on the process or procedure of decision-making and grounded in established principles of public law are, naturally, more likely to succeed than those which challenge the decision itself. Round-up: Climate related judicial reviews in the UK.6
What factors influence the enforceability of signed Heads of Terms for renewable energy projects?
The Court of Appeal confirmed that a signed heads of terms agreement relating a proposed lease of unused land for use as an anaerobic digestion plant was not intended to be, and was not, binding on the parties. The Court of Appeal also agreed with the first instance court that three factors were particularly relevant: (i) the existence of a binding contract for a 25 year lease was incompatible with the much shorter duration of the lock-out clause; (ii) a number of important terms of the lease were left “wholly in the air”; and (iii) in the context of the whole of the dealings between the parties, the omission of the phrase “subject to contract” was of less importance than it might otherwise have been. Pretoria Energy Company (Chittering) Ltd v Blankney Estates Ltd7.8
