They [Shell] never think about the poor man. So, there is no hope that things will get better for us.…Only with the help of people all over the world might we be able to recover.Footnote 1
Who is to blame for the dire state of our ecosystems, large and small? The diffuse responsibility chains underlying much environmental degradation render this question notoriously difficult to answer, both morally and legally. Situated at politico-economic nodes of power, transnational corporations (TNCs) have asserted a key role in shaping our new era of ecological precarity—the Anthropocene.Footnote 2 There is ample empirical evidence attesting to this fact. One report quantifies the economic damage of global environmental degradation by hands of the largest 3000 public companies at a staggering $2.2 trillion in 2008 alone.Footnote 3 The much-cited Carbon Majors Report estimates that “[o]ver half of global industrial emissions since human-induced climate change was officially recognized can be traced to just twenty-five corporate and state producing entities.”Footnote 4 Similarly, a small number of companies in the food and beverage industry contribute the vast majority of plastic litter collected across fifty-one countries.Footnote 5 Despite past decades’ boom in self-regulation under the heading of corporate social responsibility (CSR) and environmental, social, and corporate governance (ESG),Footnote 6 these impacts continue largely unabated, bolstering calls for legally enforceable models of accountability.Footnote 7
Legal responses to the corporate Anthropocene have run into two hurdles. First, much of environmental law remains deeply embedded in an administrative frame that hinges on the environmental responsibility of public institutions.Footnote 8 The rising importance of private actors in the global system in terms of number and power puts the adequacy of such public accountability channels in doubt. Second, the transnationalization of corporate activities makes their regulation exceedingly difficult in a nation state-centered paradigm that consecrates national sovereignty. In the absence of a strong supra-national or international environmental regime, “[e]ffective legal governance in the Anthropocene … requires state laws to reach further, extending beyond territorial borders to capture transnational corporate conduct.”Footnote 9
To tackle these conjoined issues, a nascent class of lawsuits is targeting TNCs’ ecological footprint abroad before European and North American courts through the tools of (international) private law.Footnote 10 As some commentators suggest, such “selfless” unilateral interventions hold the promise of widening access to environmental justice and increasing the accountability of TNCs.Footnote 11 Although the debate surrounding the jurisprudential contribution and normative desirability of transnational litigation for environmental protection is far from new,Footnote 12 its geographicalFootnote 13 and substantiveFootnote 14 focus have shifted significantly over the past decade.
This article contributes to this debate in two ways. First, I present a comparative doctrinal analysis of three major transnational environmental litigation sagas to highlight common threads and national nuances in the judicial resolution of such cases. Second, I offer a critical reading of these decisions, arguing that they exhibit serious normative drawbacks, both in procedural as well as in distributive terms.Footnote 15 Procedurally, the transplantation of local justice needs to European institutions feeds into colonial legacies of epistemic domination through law across the North-South divide. With regards to distributive effects, private cross-border lawsuits normalize an extractive logic that accumulates profits in the North and costs in the South and fail to address the root causes of global environmental injustices. Although home state litigation often remains the only viable option for claimants, it constitutes a heavily circumscribed and unscalable tool of dispute resolution, one that can only ever deliver “light” forms of environmental justice.
B. The Rise of Transnational Environmental Litigation
As a distinct mode of judicial dispute resolution, transnational litigation is generally characterized by “the presence of a transnational element, such as a foreign party or evidence located abroad.”Footnote 16 While the phenomenon itself is as old as the legal regulation of cross-border commerce,Footnote 17 it has grown and diversified in the wake of globalization processes during the second half of the twentieth century.Footnote 18 Today, transnational litigation is commonly subdivided into “public,”Footnote 19 “regulatory,”Footnote 20 and “private”Footnote 21 branches.Footnote 22 This article is mostly concerned with the latter, private branch, although the boundaries between the three are somewhat fluid.
Private law proceedings spanning multiple jurisdictions have played a formative role in enabling and shaping the current neoliberal configuration of globalized business. Their scope ranges from corporate governance to the paraphernalia of contract and tort law.Footnote 23 The indeterminacy of this transnational legal grammar, however, has simultaneously galvanized its subversive deployment in the battle against harmful corporate practices. For instance, there exists a rich tradition of tort-based “foreign direct liability claims” arising from TNCs’ human rights violations,Footnote 24 particularly so under the auspices of the US Alien Tort Statute.Footnote 25 Not least because of the ongoing “greening” of human rights law,Footnote 26 similar litigation has recently begun to mushroom around environmental causes.Footnote 27
In part, the surge in transnational environmental litigation responds to the failures of TNC regulation at the international level. While there exists a multitude of soft law mechanisms—including, among others, the OECD Guidelines for Multinational Enterprises, the UN Guiding Principles on Business and Human Rights, and the UN Agenda 2030—none of these soft instruments and only a handful of multilateral treatiesFootnote 28 empower harmed parties to seek direct judicial redress.Footnote 29 The adjudicatory enforcement of domestic environmental laws in corporate host states, in turn, is often distorted by vested economic interests and resource constraints.Footnote 30 Against this backdrop, litigation in TNCs’ home states remains the only pathway available to challenge corporate predation against the environment.
Three species can be distinguished within the genre of transnational environmental tort litigation. The distinction I draw here hinges on the link between the nature of the claims on the one hand and the forum in which they are brought on the other.
First, litigants may challenge a TNC in its domicile for environmental damage it has directly caused abroad, for example, through transboundary pollution originating in the home state but causing damage elsewhere,Footnote 31 or through managerial decisions that have been taken at the corporate headquarters and directly produce adverse consequences elsewhere.Footnote 32 In such cases of immediate liability for cross-border damage, issues of causation usually feature center stage.
The second class of cases concerns so-called “anchor jurisdiction,”Footnote 33 where a corporate parent is targeted for the acts or omissions of a subsidiary. In such situations, jurisdiction can only be established if two conditions are fulfilled. First, there must be some recognized legal doctrine that would allow for the cases against parent and subsidiary to be jointly heard in the parent’s domicile. Second, the claims lodged against the parent must have some chance of success for there to be a credible case. Usually, this requires that the parent assumed a duty of care over the subsidiary’s operations through the business law tools of ownership and control. In contrast to the substantive focus of the direct liability mode, the corporate group mode imposes considerable burdens on claimants at the procedural stage.Footnote 34
A third type of litigation is appearing on the horizon, one that does not rest on a relationship within corporate groups, but merely on TNCs’ purchasing power over other actors along their value chains.Footnote 35 Given that many small and medium-sized enterprises in the Global South manufacture almost exclusively for one customer, that customer does not need to obtain ownership rights to exercise effective control over the upstream company. But what happens if the local manufacturer causes serious environmental damage? Can a supply chain relationship give rise to a duty of care, and can such a case be heard in the forum of the downstream purchaser? These questions are largely uncharted in current case law. Although their exploration lies beyond the scope of this article, the latest legislative developments suggest that cross-border purchasing relationships may well be the next litigation frontier.Footnote 36
It is worth nothing that not all counter-corporate litigation is necessarily transnational, as many national lawsuits against large carbon emitters exemplify.Footnote 37 Although these climate cases’ ripple effects are inherently global, their legal framing usually remains domestic.Footnote 38
C. Environmental Corporate Liability in Comparative Perspective
Following several high-profile decisions by the U.S. Supreme Court in 2013, 2018, and 2021, the American legal system is now perceived as a hostile forum for transnational liability claims against TNCs.Footnote 39 As a result, litigants have increasingly turned to European courts in their quest for civil justice.Footnote 40 Simultaneously, EU law seems to have discovered its own appetite for extraterritoriality.Footnote 41 How have these developments impacted environmental litigation and adjudication? In this section, I juxtapose and compare a selection of three prominent cases:Footnote 42 Vedanta v. Lungowe (England & Wales),Footnote 43 Dooh v. Shell (The Netherlands),Footnote 44 and Lliuya v. RWE (Germany).Footnote 45 As per the classificatory scheme introduced above, Vedanta and Dooh concern liability relationships within corporate groups, whereas Lliuya deals with direct responsibility for the transboundary effects of corporate greenhouse gas emissions.
The chosen cases are indicative—rather than representative—of the growing transnationalization of environmental litigation in Europe. All three of them have attracted a great deal of scholarly attention because of their innovative use of legal modalities. Whereas most commentaries have homed in on the cases’ significance within their respective jurisdictions,Footnote 46 however, I submit that reading them in conjunction allows for new insights into the wider potential and drawbacks of environmental litigation to be gained. The case analysis proceeds in three steps. After setting out the factual backdrops, I expound the procedural challenges engendered by the litigations’ transnational character in relation to jurisdiction and applicable law. Lastly, I compare how the courts have tackled the tort issues raised.
I. Three Tales of Environmental Harm
Much transnational environmental damage follows the same factual pattern. It should come as no surprise that the studied cases all target corporate giants operating in the extractive industries, whose very business models sit uneasy with notions of sustainability.Footnote 47 The aggrieved claimants, in turn, are small-scale farmers whose reliance on a healthy environment for economic gain and sustenance makes them particularly vulnerable to ecological deterioration. All three litigations revolve around corporate emissions into the surrounding soil, water, and atmosphere also known as “toxic torts.”Footnote 48 Tired of playing the figurative canary in the coal mine, the communities bearing the brunt of corporate extractivism are increasingly fighting back in court.
Vedanta revolved around the severe toxic pollution caused by the Nchanga copper mine in Zambia, which, at the time of litigation, was the second largest mine of its type in the world.Footnote 49 The case was brought by the British law firm Leigh Day on behalf of 1,826 individuals residing in the mine’s surroundings. The claimants belong to materially underprivileged communities, earning well below the national average income and basing most of their livelihoods on subsistence farming. As such, they are critically dependent on the resources provided by nearby waterways. On the other side of the dispute stood Konkola Copper Mines plc (KCM), the Zambian-based owner and operator of the mine, and Vedanta Resources plc, KCM’s London-based majority shareholder. The remaining minority stake in KCM was owned by the Zambian government.Footnote 50 The claimants alleged that KCM frequently and knowingly discharged harmful substances arising from the mining operations into local rivers, leading to “personal injury, damage to property, loss of income and loss of amenity and enjoyment of land.”Footnote 51 Their claims were based in the common law of negligence, nuisance, trespass, and breach of statutory duties as mandated by Zambian law.Footnote 52 In addition, the parent company Vedanta was sued for breaching the duty of care it had assumed in exercising close oversight and control over KCM.Footnote 53 After the Supreme Court’s jurisdictional ruling in 2019, the case was eventually settled for an undisclosed amount in early 2021 without an admission of liability and without having received a ruling on the merits.Footnote 54
The actions before the Dutch Courts were initiated by four Nigerian farmers. Each had been affected by several oil leaks during the 2000s.Footnote 55 In fact, many residents saw themselves forced to leave the highly polluted areas for economic and health reasons. An investigation quickly found that the spills had originated from the nearby oil installations of Shell Petroleum Development Company of Nigeria Ltd (SPDC), the wholly-owned Nigerian subsidiary of Royal Dutch Shell Plc (RDS), the latter being registered in the UK and headquartered in the Netherlands.Footnote 56 Alleging that the defendants had acted negligently in causing, reacting to, and remediating the oil pollution, the claimants sought civil remedies in tort, including compensation for incurred damages as well as injunctions to repair the defective installations and engage in a large-scale clean-up of any remaining oil pollution.Footnote 57 The claims were brought before the Dutch courts in three parallel lawsuits due to considerable differences in the respective fact patterns,Footnote 58 but all three cases engaged similar legal issues. Throughout the proceedings, the Nigerian farmers were supported by the Dutch NGO “Milieudefensie.”Footnote 59 The litigation commenced in 2008 and received a first ruling by the Hague District Court in 2013.Footnote 60 The case was then appealed by both parties to the Court of Appeal, which issued an interlocutory decision in 2015Footnote 61 and awarded the final judgment in January 2021.Footnote 62
At its launch in 2015, the German case Lliuya was among the first transnational suits to target an energy giant for its global carbon emissions and attracted much attention,Footnote 63 not least for its appreciable potential to inspire similar developments elsewhere.Footnote 64 The claimant, Saúl Luciano Lliuya, lives with his family in Huaraz in the Andean region of Peru. The city of roughly 112,000 inhabitants is threatened by the nearby Palcacocha Lake, which has grown dangerously in volume as a result of the surrounding glaciers melting rapidly in a warming climate. A glacial avalanche may cause the lake to burst at any time and devastate Mr. Lliuya’s home in the resulting flood wave. Similar incidents have occurred in the past, with disastrous consequences. The likelihood of such a flood wave has been described as one of when rather than if.Footnote 65 Mr. Lliuya seeks to recover a portion of the costs of various adaptation measures required to safeguard his property against future flooding from German energy company RWE AG, Europe’s largest emitter of greenhouse gases (GHG). As RWE is estimated to be responsible for roughly 0.47 percent of historical GHG emissions since 1854,Footnote 66 the damages claimed amount to the commensurate percentage of the expected cost of protection measures, a sum of roughly 17,000 EUR.Footnote 67 The case was brought with the institutional support of the NGO “Germanwatch”Footnote 68 under § 1004 of the German Civil Code (Bürgerliches Gesetzbuch), which grants injunctive relief in cases of private nuisance, i.e., an interference with another’s ownership rights. In the first instance, the District Court of Essen ruled that there was no justiciable causation between the disturber’s emissions and the incurred damages.Footnote 69 Undeterred by the setback, the claimant appealed to the Higher Regional Court of Hamm, who accepted the appeal on November 30, 2017.Footnote 70 After the taking of on-site evidence was delayed multiple times by the COVID-19 pandemic, the case is now moving forward with a final decision expected by 2023.Footnote 71
II. Jurisdictional Haggles
A first layer of legal complexity emerges from the litigations’ transnational character, which gives rise to competing claims of jurisdictional authority. The dominant territorial model of jurisdiction requires courts to dismiss cases that are not sufficiently connected to their own legal system as a matter of deference to other nations’ judicial prerogatives. There are exceptions to this general rule, though. Whether a claim can proceed in a given forum has to be assessed on a case-by-case basis with reference to applicable national and international procedural regulations.Footnote 72 Within the EU, these precepts are codified in the Brussels I Recast Regulation on the exercise of jurisdiction in “civil and commercial matters.”Footnote 73 The Regulation’s default rule in Article 4 allocates jurisdiction to the courts of the defendant’s domicile (forum domicilii). With regard to legal persons, the corporate domicile is defined by the physical location either of a company’s “statutory seat,” its “central administration,” or its “principal place of business.”Footnote 74
Despite this broad interpretation, the complex and opaque structures underlying large corporate groups typically require claimants to show that the EU-domiciled parent company—in other words, not a third-country subsidiary—owed a direct duty of care towards the foreign victims to establish jurisdiction under Article 4. Non-EU defendants generally do not fall within the purview of the Regulation, but if a parent is found to owe a direct duty of care to foreign plaintiffs, a non-EU subsidiary may still be hauled before EU courts where domestic procedural laws allow for it. This idea of “residual jurisdiction” is found in Article 6(1) of the Regulation.Footnote 75 Both Vedanta and Dooh ultimately revolved around this inconspicuous mechanism.
After the Vedanta claimants had won a favorable ruling on jurisdiction in the High Court, the defendants immediately appealed to the Court of Appeal,Footnote 76 and—upon losing there—to the UK Supreme Court.Footnote 77 Four main questions were addressed by the Court in deciding whether the case could proceed in England: (i) Whether there was a real, triable issue against Vedanta, (ii) whether KCM was a proper party to the claim against Vedanta, (iii) what the proper place was for the claim to be heard, and (iv) how substantial justice could be ensured.Footnote 78
Regarding (i), the Court was asked to evaluate whether Vedanta had breached its duty of care and was therefore an appropriate “anchor defendant” to ground jurisdiction in its home state England pursuant to Article 4 of Brussels I Recast—the forum domicilii rule. This was answered in the affirmative, for reasons elaborated in subsection IV on toxic torts.
The second question related to the propriety of dragging KCM, the “foreign defendant,” in front of an English court. Here the residual jurisdiction mechanism of the Regulation’s Article 6(1) came into play. In England, Practice Direction 6B of the Civil Procedure Rules allows for jurisdiction to be established if the foreign defendant is a “necessary and proper party” to the dispute.Footnote 79 Ever since the ECJ’s restriction of the forum non conveniens doctrine in Owusu v. Jackson,Footnote 80 however, courts’ ability to decline jurisdiction over such defendants is severely curtailed. Faced with the likely risk of irreconcilable judgments in Zambia and England, Lord Briggs saw “one hand tied behind [the Court’s] back” and “the other … effectively paraly[z]ed” in staying proceedings, so as long as there was “a minimum level of triable issue … against an English incorporated parent.”Footnote 81 In short, the claims against Vedanta were found to be genuine and tenable in separation from any action against KCM.
Having established jurisdiction over both defendants, the Court proceeded by asking whether England was the proper venue for the case to be heard at all. Lord Briggs stressed that the claimants had a choice as to whether to pursue one claim against both defendants in Zambia or separate cases in Zambia and England. In fact, given the case’s overwhelming connection to Zambia, “it would offend the common sense of all reasonable observers to think that the proper place for this litigation to be conducted was England.”Footnote 82
In a final analytical step, however, both the High Court and the Court of Appeal recognized the appreciable risk that substantial justice may not be attainable in the Zambian system.Footnote 83 The principle that proceedings must not be stayed if there is another forum “in which the case may be tried more suitably for the interests of all the parties and the ends of justice” was authoritatively established in Spiliada v. Cansulex.Footnote 84 In line with the Spiliada doctrine, the Supreme Court upheld the lower courts’ analysis of the hurdles to justice faced in Zambia, stressing two particular obstacles. The first barrier concerned the lack of adequate legal funding arrangements in Zambia, where contingency fee agreements are prohibited and legal representation with the capabilities to adequality litigate such a complex case is therefore nearly impossible to come by for the poverty-stricken claimants. The second barrier touched upon the poor track record of similar environmental litigation before Zambian courts, quashing any “confidence that these cases would be appropriately managed and resolved.”Footnote 85 In particular, the Supreme Court reviewed and reinforced the High Court’s detailed analysis of two previous litigation instances which had both failed for a lack of available technical expertise.Footnote 86 Considering this likely denial of justice in Zambia, the Court ruled that the case could proceed to the merits stage in England.
The Dutch courts’ jurisdiction over the claims in Dooh proved a similarly contentious issue, which the Court of Appeal addressed in two steps. It first investigated to what extent the claim against the parent company could succeed under the Brussels I Recast Regime. Second, it applied the Dutch Code of Civil Procedure (DCCP) to determine whether jurisdiction over the foreign defendant could be grounded in the Dutch anchor defendant, given the connection between the claims against RDS and SPDC. In doing so, like the Vedanta courts, it too relied on the loophole in Article 6(1) of Brussels I Recast.
Establishing jurisdiction over RDS was a relatively straightforward exercise. The company had its headquarters, and thus its domicile, in the Netherlands in accordance with Article 63 Brussels I Recast. This gave the Court full and undisputed jurisdiction over RDS under the forum domicilii rule.Footnote 87 In addition, the judges firmly rejected the notion that the claims were bound to fail from the outset and confirmed that the claims “could possibly be awarded” under Nigerian law.Footnote 88 The thrust of the Court’s jurisdictional argument, though, relied on the close connection between the two defendants. Article 7(1) of the DCCP allows the claims against two separate defendants to be joined, “provided the claims against the various defendants are connected to the extent that reasons of efficiency justify a joint hearing.”Footnote 89
Having confirmed its domicile-based jurisdiction over RDS, the Court of Appeal’s analysis then turned to whether such a link between the defendants was present in the case at hand. In upholding the previous rulings, it concluded that there was indeed a sufficiently close connection to join both cases and quoted a number of factors to support this finding, including that (i) the defendants were held both jointly and severally liable; (ii) the claims lodged against both defendants were identical; (iii) the factual pattern was identical and concerned the same oil spill; (iv) the legal question centered around the cause of the spill and potential negligence on the defendants’ part; (v) further investigations are necessary; and (vi) these investigations should be undertaken by one court only so as to reduce the risk of divergent results.Footnote 90 Next to expediency concerns, the Court also saw a clear risk of irreconcilable judgements if the action against SPDC was moved to Nigeria.Footnote 91 Moreover, the Court of Appeal upheld the District Court’s assertion that the connection between the defendants need only be proven at the jurisdictional level and will remain in place throughout the proceedings in disconnection from any substantive findings.Footnote 92 The jurisdictional gateway thus continues to tie the case to the Dutch forum even if the underlying claims later turn out to be unfounded.
In stark contrast to Vedanta and Dooh, the question of jurisdictional authority has not played a heightened role in Lliuya, despite both the claimant and the damage—although not the defendant—being based in Peru. Pursuant to the forum domicilii rule, the claimants contended that German courts were the proper forum to hear the case against German-domiciled RWE.Footnote 93 This line of reasoning was not disputed by the defendant in its written response, and the District Court of Essen tacitly assumed jurisdiction without addressing the issue in more detail, although it appears that Peruvian courts could theoretically seize the dispute under the forum locus damni logic.Footnote 94
Beyond the specifics of Lliuya, German legal culture tends to be territorially conservative and wary of hauling foreign defendants before its tribunals. The Code of Civil Procedure (Zivilprozessordnung) generally lacks provisions dealing with the international competence (direkte internationale Zuständigkeit) of German courts, including a national mechanism comparable to the English and Dutch “gateways” that would allow cases between a German-domiciled parent and a foreign subsidiary to be joined under the umbrella of Article 6(1) Brussels I Recast.Footnote 95 This means that only direct claims against German or other EU parties can be brought, largely preempting cases like Vedanta and Dooh that are fundamentally aimed at subsidiary operations.
III. Applicable Law
Before assessing the claims’ substance, the judges were faced with another crucial question: Whose law should apply to the dispute? As with jurisdiction, determinations of applicable law are largely harmonized at the EU level. For non-contractual claims, these rules are predominantly found in the Rome II Regulation,Footnote 96 whose Article 7 grants claimants a choice between the law of the place of damage (locus damni) and the law of the place giving rise to the damage (locus delicti) in cases of environmental damage. Recital (25) of the Regulation elaborates the rationale behind this rule by reference to the environmental policy of the EU, in particular its commitments to sustaining “a high level of protection,” the precautionary principle, and the “polluter pays” principle.
Because the Regulation only applies to damage arising after its entry into force in 2009, this provision was of little use to the claimants in Vedanta and Dooh. In both cases, however, the litigious parties agreed that the applicable law should be the locus damni—the place of damage—that is, ZambianFootnote 97 and NigerianFootnote 98 law, respectively. The stakes of this choice are not to be overestimated, though. Both the Zambian and the Nigerian legal system heavily draw on the English common law and widely adhere to English precedents.Footnote 99 In contrast, the default locus damni rule would have designated Peruvian law as applicable to the damage in Lliuya. Instead, the claimant made use of his right under Article 7 to opt for the application of German law as the lex locus delicti.Footnote 100
IV. Toxic Torts
Private law offers an attractive toolkit to seek environmental redress.Footnote 101 If tort constitutes the “fons et origo” of environmental rights,Footnote 102 the grammar of private law continues to play an important role in remediating environmental damage, as the cases illustrate. Both the extent and the manner in which tort claims have been deployed differ significantly, however.
At face value, Vedanta “is all (and only) about jurisdiction.”Footnote 103 The court’s jurisdictional analysis penetrates deep into the substantive merits, though, providing a glimpse of the parameters along which the case could have been resolved. The gist of Vedanta’s tort element addresses liability in corporate group structures. Lord Briggs argued that the reach of a parent’s duty of care towards third parties depends on “the extent to which, and the way in which, the parent availed itself of the opportunity to take over, intervene in, control, supervise or advise the management of the relevant operations (including land use) of the subsidiary.”Footnote 104 Ownership is therefore merely relevant as a means for the parent to control the operations of the subsidiary, but does not in itself create an assumption or duty to that effect—effective control is the decisive element. The submitted evidence showed that Vedanta was responsible for the establishment and implementation of group-wide environmental standards and could therefore be held accountable for the harmful consequences of KCM’s conduct.Footnote 105 The same court recently reinforced and developed the Vedanta findings in Okpabi,Footnote 106 where the Supreme Court clarified once more that “control is just a starting point”Footnote 107 in considering factors that may generate a duty of care. It thus firmly rejected a restrictive, formalistic reading of a parent’s duty of care in favor of an earnest appreciation of its de facto practices.Footnote 108
In contrast to its English counterpart, the Dutch court in Dooh elaborated in great detail on the tort claims, which were based on a statutory strict liability rule created by Article 11(5)(c) of the Nigerian Oil Pipelines Act (OPA), in addition to several common law torts.Footnote 109 The main dispute centered on Shell’s responsibility for causing the leaks, although Shell’s immediate reaction to the spill and its later clean-up actions were also addressed. The defendants argued that the pipeline had been sabotaged by unknown third parties, whereas the claimants insisted the damage was due to a lack of maintenance and security measures. Because of the strict liability provision engaged, however, the onus of proof lay on the defendants. Although the weight of the evidence indicated that sabotage was indeed the likely cause, some reasonable doubt as to this conclusion remained. SPDC was therefore held strictly liable for any ensuing damage. Notably, the Court refused to extend this liability to the Dutch parent company, RDS, because the parent’s duty of care fundamentally rested on the subsidiary’s negligence. The applicable burden of proof did not suffice to establish such negligence, and thus the parent had not breached its duty of care towards the claimants.
In addition to the tort claims, the Nigerian farmers also invoked a violation of environmental rights against the defendants. These rights were based in Articles 20, 33, and 34 of the Nigerian constitution, and Article 24 of the African Charter on Human and Peoples’ Rights, respectively.Footnote 110 The rights-based claims turned out to be short-lived, however. Even before assessing whether Nigerian law allowed for a horizontal application of constitutional rights through civil liability mechanisms, the Court argued that the defendants’ conduct failed to meet the thresholds of severity and attributability required for an infringement to be established under the European Court of Human Right’s jurisprudence in López Ostra v. Spain. Footnote 111 Regarding remedies, the exact amount of economic compensation to be paid by SPDC under the OPA stands to be determined at a later point. Moreover, in one of the parallel proceedings, Oguru and Efanga, the Court ordered the defendants to install a leak detection system that would allow for a quicker response to future leaks.Footnote 112
Although Lliyua has so far only received a four-page indicative order, the judges seized that opportunity to firmly dismiss some of the defendant’s legal arguments and to highlight that “[i]t comports with the principles of the legal system that even a party who acts lawfully must be liable for property damage caused by him.”Footnote 113 The Court thus gave legal credence to the claim that there was a scientifically tenable and legally actionable chain between RWE’s GHG emissions and the risk to his property. In rough terms, this chain involved the emission of a clearly identifiable amount of GHGs from the defendant’s power plants into the atmosphere, where an increasing concentration of such gases increases the retention of solar radiation, with the consequence of rising temperatures in the Peruvian Andes. As a result of such regional warming, the local glaciers are releasing large amounts of ice and water into the Palcacocha Lake, whose likely outburst would threaten the claimant’s property.Footnote 114 Despite the deferral of a definitive decision to the provision of further evidence on each causal element within the chain, the Court’s 2017 order was widely celebrated as a watershed moment for confirming the plausibility of the claimants’ legal reasoning.Footnote 115
D. An Avenue for Environmental Justice?
Vedanta, Dooh, and Lliuya have evoked strong reactions in the legal community and beyond. Each case lends itself to David-versus-Goliath narratives of afflicted farmers taking up the legal slingshots to rise against powerful corporate overlords.Footnote 116 One commentator has proposed a “global legal framework” to facilitate similar mobilization in the future.Footnote 117 Unfortunately, such rosy accounts all too easily overlook the extent to which transnational tort litigation is embedded in larger structures that constrain its emancipatory potential. In this section, I build on a contextual reading of Vedanta, Dooh, and Lliuya to problematize the notion that cross-border lawsuits offer a meaningful avenue for the attainment of environmental justice.Footnote 118 The imbalances in access to legal resources, the alienating impact of private international law, and the translation of environmental wrongs into tort law jointly suppress the articulation and operationalization of environmental justice ideals beyond a caricatured, thin conception.
I. Procedural Justice in a Transnational Setting?
Jurisdictional doctrines catalyze transnational tort litigation. Their extraterritorial implications, however, may also give rise to serious legitimacy concerns. As Sara Seck argues, the procedural legitimacy of home state jurisdiction is dependent upon the extent to which it gives a voice to—and respects the voice of—subaltern claimants from the Global South.Footnote 119 While civil adjudication may nominally provide such a forum, its availability and effectiveness in practice are curtailed by insurmountable extra-legal hurdles. For starters, the inevitable transaction costs of high-stakes litigation prevent claimants without the requisite financial prowess from being able to access European court systems. In addition, foreign claimants are unlikely to possess the knowledge and understanding of European judicial institutions required to bring proceedings.Footnote 120 Even if, and once an action has been initiated, victims’ unique and subjective experiences of suffering need to be translated into European legal grammars.Footnote 121 This exercise of translation often occurs against the backdrop of what has been called an “epistemological abyss” separating Southern and Northern ways of knowing and experiencing the world.Footnote 122
To overcome these financial, practical, and epistemic hurdles, victims are crucially dependent on Northern NGOs and law firms who are capable and willing to take their cases. Most of the aggrieved presumably fail to garner adequate legal representation and cannot make their claims heard at all.Footnote 123 Even where a relationship with legal representatives is successfully established, it is invariably one marked by dependency and stark power imbalances. This dynamic becomes all the more problematic where the interests of both parties diverge—for example, it may be beneficial for claimants to settle a case and receive the cash-out, whereas NGOs or activist lawyers may prefer a substantive judgment that can only be attained at the merits stage—or, indeed, the other way around.Footnote 124
Once a case is brought, it is usually judged upon according to the the locus damni default option, i.e., the laws of the place of damage. While this approach is sensible and aligns with claimants’ and defendants’ expectations, it creates unique problems of legal expertise. Although the application of foreign laws has a long history in private international law, environmental rights and obligations are complex legal creatures that are deeply interlinked with the social context in which they arise.Footnote 125 Whether a foreign, European court can do full justice to this idiosyncrasy may be doubted. The difference between Northern and Southern jurisprudence can be substantial; a fact that European judges all too readily brush over. For instance, the Supreme Court’s assessment in Vedanta relied exclusively on English materials with no regard for their interaction with other elements of the Zambian legal system. The same holds true for the Dooh court, whose assessment of Nigerian law fundamentally rested on its alleged similarity to the English common law.Footnote 126 Considering the complex structure of the Nigerian system, which combines elements of common law with customary practices, this assumed equivalence should be taken with a grain of salt. Such concerns are mitigated where claimants are given a choice as to the applicable law, as seen in Lliuya. Lliuya constitutes a relative outlier, though. Not only do many cases fall outside the Rome Regulation’s choice-of-law provision’s temporal scope, the possibility of picking between the lex locus damni and the lex locus delicti also amounts to a genuine choice only in cases of transboundary harm—in all other circumstances, the place of damage and the place where the tort was committed would indicate the same law.
II. The Poverty of Tort Law
Tort law is sometimes framed as a universal language of civil rights and wrongs.Footnote 127 Not only is this conception empirically untenable,Footnote 128 it also obscures the drawbacks of minting public rights to a healthy environment in the form of private wrongs.Footnote 129 Tort standing doctrines restrict the class of claimants to those who can demonstrate specific and demonstrable harm, reducing actionable environmental damage to individual loss. Given the complex systems of property law in post-colonial societies, affected individuals may not possess a formal title to their land, thereby stymying recourse to property-based torts such as nuisance or trespass. In the Dooh litigation, the defendants exploited this feature by continuously casting doubt on the individual affectedness of the claimant’s property with a view to delaying the proceedings.Footnote 130
Depending on the system in question, the focus on individual loss may also prevent public interest organizations from acting as claimants and leveraging their legal and environmental expertise. A rights-based approach, although no panacea, is likely to adopt a broader interpretation of standing; after all, environmental rights tend to capture a broader category of factual patterns beyond individual loss, and their public character mandates a more democratic form of legal contestation.Footnote 131 Whereas notions of stewardship play an important role in current conceptualizations of environmental rights,Footnote 132 they hardly feature in tort discourses.
Another drawback of tort grammar concerns the applicable burden of proof. Apart from a small number of statutory provisions imposing strict liability, the weight of proving defendants’ tortious conduct rests on the claimants. Given the informational and power imbalances involved, this is highly problematic. The causal chains underlying environmental damage are often protracted and complex, and underprivileged claimants are likely to lack the knowledge and resources to establish causation beyond reasonable doubt. TNCs, on the other hand, can easily abuse the complexity of environmental damage to cast doubt on their fault, aided by expert evidence and social engineering.Footnote 133 The difficulty of proving causation is a main factor delaying the proceedings in both Dooh and Lliuya. In the former case, Shell’s liability could only be established because the relevant statutory provision contained a reversal of the burden of proof, a fortunate coincidence that Mr. Lliuya cannot rely upon. Similar problems occur in rights-based litigation, of course, but human rights tribunals have shown more willing to reverse the burden of proof at their discretion to make up for stark information asymmetries.Footnote 134
The trouble with the discovery process runs deeper than the burden of proof, however. Environmental litigation across the North-South divide is just as much about contesting what constitutes valid environmental knowledge as it is about objective “truths.”Footnote 135 Although this epistemological battleground is often hidden from sight, its implications for environmental justice outcomes should not be forgotten. As Eric Dooh remarked in relation to Shell’s assertion that the local environment had been measurably restored: “How can they say that they cleaned it up when you can still see oil lying all over?”Footnote 136
Even if a verdict in claimants’ favor is reached, the remedies available in tort tilt towards economic compensation and injunctive relief, espousing a particular vision of corrective justice.Footnote 137 In each of the cases, monetary compensation alone is a woefully inadequate response to the emotional and physical suffering inflicted, the displacement of entire communities, and the continuing impairment of natural ecosystems. Indeed, an exclusive reliance on monetary and injunctive relief bears the risk that corporate offenders will merely internalize liability risks as yet another cost of doing business.
Against the backdrop of authoritative rulings in the UK and the Netherlands, many defendants will seek to settle the dispute so as to avoid lengthy proceedings, as ultimately seen in Vedanta and a number of other high-profile cases.Footnote 138 Such “settlement justice” comes with its own problems. For starters, it negates victims of environmental harm a public recognition of their injury and fails to expose corporations’ illegal and predatory practices. Settlements may therefore be perceived as “hush money.”Footnote 139 Also here, practical challenges of adequate interest representation and unequal bargaining power are particularly acute in a transnational context. The infamous Trafigura litigation surrounding the dumping of toxic disposals by the Probo Koala ship in Ivory Coast serves as a cautionary tale.Footnote 140 In Trafigura, the UK law firm Leigh Day—the same firm that represented the Vedanta claimants—managed to negotiate a £30 million settlement on behalf of roughly 30,000 claimants. Sadly, due to a chain of misappropriations, thousands of claimants ended up empty-handed, and Leigh Day was eventually found in breach of its contractual obligations and duties of care towards those claimants.Footnote 141
To be sure, matching environmental harm with adequate remedies is a pervasive challenge plaguing environmental law more generally.Footnote 142 But choosing a rights perspective over the tort frame may not only widen the remedial spectrum, it also foregrounds the responsibility of public actors to protect environmental resources against the practices of TNCs.Footnote 143 This seems particularly pertinent in light of the close ties between state and corporate institutions in many environmental injustices.Footnote 144 Responses to the corporate Anthropocene must account for the interlinked civil and public wrongs it entails. In this regard, the headline-grabbing stories engrained in court rulings risk crowding out local efforts at political mobilization.Footnote 145
Twenty years ago, Michael Anderson offered a skeptical view of tort litigation’s potential to challenge environmental degradation in cross-national settings:
Coming back to the original question – whether tort law serves as an effective means to enforce environmental standards in a cross-border context – one is forced to admit that it plays an important role in the absence of other means. The considerable growth in transnational environmental tort cases is likely to continue simply because affected communities and environmental activists find this to be the only legal tool at their disposal…That its profile is much higher in the transnational context is simply testimony to the lack of other accountability mechanisms.Footnote 146
Although the latest case law suggests that the field has evolved significantly in the past two decades, one is forced to conclude that Anderson’s words hold as true today as they did then. This is all the more lamentable when considering the fact that the environmental externalities of corporate activities have virtually exploded in the meantime and have pushed our planet dangerously close to the edge of ecological collapse.Footnote 147
The three European transnational litigation sagas studied in this article demonstrate that the legal contestation of big business’s environmental footprint is possible—if a long list of hurdles is overcome. But is it even worth the trouble? Although Vedanta, Dooh, and Lliuya read as success stories, they transport a severely impoverished understanding of environmental justice. Their jurisdictional element allows a narrow gateway to European courts for a select few victims of environmental harm, mercifully aided by a foreign NGO or law firm, at the hefty price of submitting the dispute to a foreign forum with foreign judges trained in a foreign legal and cultural tradition. These foreign institutions may well lack the necessary knowledge to appreciate local legal constructs in their wider social context. Substantively, the grammar of tort law further circumscribes the potential of such cases as opposed to a more inclusive rights frame.Footnote 148 Then again, the persuasiveness of my critique is at least partially dependent on claimants’ lived experiences in such proceedings. This is an empirical question in urgent need of addressing through anthropological and socio-legal methods.Footnote 149 One may also be hopeful that transnational tort litigation can incentivize changes in corporate behavior, which is another empirical question in need of further research.
Admittedly, many commentators are aware of the drawbacks of transnational tort litigation but posit that imperfect justice is better than no justice at all. In my view, this line of argument misses the wealth of more legitimate alternatives for empowering victims of TNCs’ environmental impacts. For instance, Northern states may assist in strengthening national and regional adjudication or push for the global proliferation and enforcement of environmental rights through diplomatic means.Footnote 150 Perhaps even more urgently, home states should start subjecting TNCs’ global operations to stringent due diligence standards to prevent harm from occurring in the first place rather than focusing on ex post relief.Footnote 151
Ultimately, tort litigation’s focus on individual actors and particularized harm runs danger of obscuring the structural injustices of the corporate Anthropocene.Footnote 152 The roots of these injustices extend to the bloody legacies of extractive industries during the colonial era, when the global South was exploited to sustain the industrialization and wealth accumulation of Northern states. Meaningful redress mechanisms must address the economic, geo-political, and epistemic power imbalances in the global political economy, or they risk reinforcing them.Footnote 153 An earnest acknowledgement of transnational proceedings’ limits would mark an important first step towards a revitalized role for law in taming the corporate Anthropocene.