Ecocide: the next wave of legal actions?

With a rise in climate-related cases globally and bold new legislation holding those responsible for preventing climate damage accountable, 'Ecocide' laws are poised to revolutionise ESG litigation in the coming years.

UK courts have received a record number of cases aimed at tackling climate change offenses, per a recent report from the London School of Economics (LSE). According to data from Columbia Law School’s Sabin Center for Climate Change Law, a total of 133 cases are before the courts in England, Wales, Scotland, and Northern Ireland, with 24 filed in 2023 alone, making the UK the country with the second highest number of climate change cases in the world. Only the US ranks higher, with a staggering 1,745 current climate change lawsuits.

The LSE report, published by the university’s Grantham Research Institute in partnership with the Sabin Center, identifies multiple strategy areas to characterise ongoing climate litigation. The majority of global climate-centred cases focus on challenges to government policy, though there are a growing number of lawsuits seeking monetary damages for greenhouse gas emissions and other environmental harm caused by defendants. Other legal strategies employed include challenges to proper environmental licensing for development projects and tackling ‘climate-washing’, the latter of which assess the validity of environmental claims made about products and services.

2024 is expected to be another record-breaking year for climate legislation and legal developments in the UK. The climate crisis has already made headlines this year, following the recent Supreme Court decision in R (Finch) v Surrey County Council and Ors, requiring the developers of new UK oil projects to consider the environmental impact of burning fossil fuels in an assessment report before planning permissions can be approved.

Another landmark case is due to be heard by the High Court in London in October 2024, when the Anglo-Australian mining corporation BHP will defend a case concerning the collapse of Brazil’s Fundão Dam in 2015. This group action lawsuit, brought on behalf of nearly 700,000 individuals impacted by the disaster, is expected to pave the way for further environmental litigation in the UK.

On the legislative front the Ecocide Bill, introduced to the House of Lords in November 2023 by crossbench peer Baroness Boycott, is set to usher in drastic change within England and Wales. While still in early stages of discussion, this bill is intended to deter future environmental harm while holding to account those responsible for causing ‘severe’ ecological destruction.

The proposed legislation would criminalise ‘ecocide’ – an offence that has been widely defined to include acts, omissions, or knowledge of acts leading to widespread or irreversible damage to the environment. Under the proposed bill, the prohibited acts would extend to anyone found to have aided, abetted, counselled, or procured an actionable offence, in addition to anyone who did not act to prevent the environmental harm.

The bill has specific implications for both individuals and organisations, the latter of which includes companies, public bodies, government agencies, and other entities regarded as servants or agents of the Crown.

It is significant that the bill will place strict liability upon companies, as is the concept of ‘superior responsibility’ it imposes on directors, senior management, and anyone in a position of authority for actions committed by their staff.

As it currently stands, the draft bill places direct accountability on heads of companies and other high-level managers, who would be required to ‘take all reasonable measures within their power to prevent or stop the commission of a crime or to submit the matter to the competent authorities for investigation’. Investigations into potential offences would be carried out by the Environment Agency.

While this bill marks the first of its kind for England and Wales, it would see us join a small but growing number of countries whose national legal systems already prohibit ecocide. These existing frameworks tend to focus on acts causing irreversible pollution and mass damage to people, plants, animals, and local ecosystems. Many frameworks include specific references to the quality of natural resources like soil, water, and air.

The term ‘ecocide’ originated during the 1970s in the context of global concern regarding the widespread use of chemicals and the destruction of local forests and cropland by the US during the Vietnam War.

In 1990, Vietnam became the first country to legally prohibit ecocide, defining the offence as a crime against humanity. In the following decades, multiple countries whose natural ecosystems were impacted by nuclear radiation from the 1986 Chernobyl disaster – including Ukraine, Belarus, and Russia – implemented their own national laws against ecocide.

Other countries that have adopted prohibitions against ecocide include Ecuador, Chile, France, and Belgium. In addition, similar proposals for regional ecocide legislation are currently being considered in Scotland, the Netherlands, Mexico, the Catalonia region of Spain, and more.

The expansion of environmental protection laws suggests that legal strategies around climate conservation efforts are changing. Data from the Sabin Center indicates that, of the climate lawsuits currently pending internationally, the vast majority (around 70 per cent) were filed since 2015, the same year the Paris Agreement was introduced. The LSE’s report suggests that the total number of new cases may actually be slowing down to strategically concentrate on litigation with the greatest impact.

Recent lawsuits have also highlighted the human rights aspects of climate change litigation: an estimated 45 per cent of all climate cases filed to date globally have been lodged before a variety of human rights courts and tribunals. The use of human rights arguments in climate-focused litigation is unlikely to go away, particularly given the links between community rights and environmental protection and the recent resurgence of local ecocide laws.

In addition to the increasing number of national laws, there is increasing support for recognition of ecocide at the international level. In February, Belgium became the first European country to officially call for the adoption of ecocide in the International Criminal Court’s Rome Statute. Such a change to existing legislation would see ecocide listed alongside the globally-prohibited atrocities of war crimes, crimes against humanity, and genocide.

While the LSE reports that only 5 per cent of global climate lawsuits have reached international courts and international recognition of ecocide remains wholly theoretical at this time, global support for this movement – along with the proposed national Ecocide Bill for England and Wales – are significant indicators of how the law could be changed in the future, offering greater protection for the natural environment while deterring polluting activities.

Tougher laws holding those responsible for serious ecological damage to account are likely to be warmly welcomed by the general public given the broad consensus to urgently tackle climate change. However, the wide scope of liability proposed by the proposed Ecocide Bill is likely to have profound implications for governments, businesses and individuals, adding a new layer of complexity to supply chain due diligence and management, business governance and production methods.

Enforcement agencies will need to quickly get to grips with their new powers in order to achieve the legislation’s intended aims, and professional advisors working alongside polluting industries such as fossil fuel, agriculture and fast fashion (amongst many others) may find themselves walking a very fine line in order to help their clients navigate change.