UK Supreme Court – Climate and Human Rights Litigation Database

Okpabi and Others v. Royal Dutch Shell and Others

Summary:
In October and December 2015, the Ogale and Bille Nigerian communities filed parallel complaints against the UK company Royal Dutch Shell plc (Shell) and its Nigerian subsidiary Shell Petroleum Development Company (SPDC) in the UK High Court. The claimants sought a remedy for the extensive oil pollution caused by Shell arguing that it had affected their livelihoods and the environment. They claimed that Shell had failed to prevent oil spills and did not conduct proper clean-up. The plaintiffs argued that Shell had not seriously prevented contamination of agricultural land and waterways. They argued that Shell, as the parent company, owed them duty of care because it exercised significant control over the material aspects of SPDC’s operations and was responsible for them.

In January 2017, the High Court held that the claimants could not sue Shell in English Courts. The Court held that there was not sufficient evidence that Shell exercised a high degree of oversight, control or direction over SPDC. It therefore had no legal responsibility as a parent company for pollution by its Nigerian subsidiary. The Court of Appeal upheld the High Court’s decision in February 2018. The Court held that the parent company did not hold a duty of care towards the affected communities. In May 2020 the plaintiffs filed an appeal with the UK Supreme Court, arguing that the parent company Shell owed them a common law duty of care in respect to the extensive environmental harmed caused by their business operations in Nigeria. On 12 February 2021, the Supreme Court allowed the appeal and ruled that the case could proceed in the UK Courts. The decision determined that there is an arguable case that Shell is legally responsible for the pollution caused by the activities of its subsidiary to the Ogale and Bille communities.

Date of decision:
12 February 2021

Admissibility:
The UK Supreme Court ruled that UK courts have jurisdiction over the case, due to the fact that the parent company may owe the plaintiffs a duty of care and therefore the action against Shell constitutes a triable issue.

Merits:
TBD

Remedies:
TDB

Suggested citation:
UK Supreme Court, Okpabi and Others v. Royal Dutch Shell and Others, UKSC 2018/0068, Judgment of 12 February 2021, [2021] UKSC 3.

See also:
The similar (on the facts) case of Milieudefensie and Others v. Royal Dutch Shell PLC (before the Dutch courts).

For the full judgment, click here.

To watch a webcast of the hearing, click here.

R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd

Summary:
On 26 June 2018, the UK Secretary of State for Transport adopted the Airports National Policy Statement (ANPS), which governs the construction of a third runway at Heathrow Airport. This led to challenges from several environmental campaigners, including Friends of the Earth Ltd and Plan B Earth. Among other grounds, it was argued that the Secretary of State had disregarded the UK Government’s commitments under the Paris Agreement (ratified on 17 November 2016 by the UK) when designating the ANPS.

In 2019 the Divisional Court dismissed all of the objectors’ claims in two separate judgments. However, in 2020 the Court of Appeal allowed part of Friends of the Earth’s and Plan B Earth’s grounds, and held that the ANPS was unlawful (see judgment here). The Secretary of State did not appeal the Court of Appeal’s decision. However, Heathrow Airport Ltd, owner of Heathrow Airport, sought and was granted permission to appeal to the Supreme Court (UKSC). Heathrow Airport stated that it had already invested a large sum of money in promoting the third runway. On 16 December 2020, the Supreme Court unanimously decided to allow Heathrow Airport’s appeal on all grounds, ruling that the ANPS was lawful. However, the judgment states clearly that the climate must be considered at the planning permission stage of the third runway.

Human rights claims:
Under Section 3 of the Human Rights Act 1998, Friends of the Earth et al. argued against interpreting section 5(8) of the Planning Act 2008 in a way that excluded consideration of the Paris Agreement temperature limit. This would result in the development of large-scale national projects posing an unacceptable risk to people’s lives and homes, in breach of Articles 2 and 8 of the European Convention on Human Rights (ECHR).

The Supreme Court found that this reasoning must fail for two reasons. First, this argument had already been raised as a separate ground before the Divisional Court, where it was rejected. This decision was not appealed to the Court of Appeal, and was therefore not considered subject to the UKSC proceedings. Secondly, even if this argument were within the scope of the appeal, it would not have succeeded because any effect of the third runway on the lives and families of those affected by the consequences of climate change would result not from the designation of the ANPS but from granting permission to develop the construction project. As Heathrow Airport Ltd. had conceded, and the respondents agreed, the ANPS requires the third runway to be evaluated against the emissions targets in place if and when an application to develop the runway were to be made (para 113 of the UKSC judgment).

Further information:
Shortly after the Supreme Court’s decision, Plan B Earth announced in a press release that it intends to take the judgment to the European Court of Human Rights, arguing that reliance upon the 2 degrees Celsius target is a violation of the right to life (see here). Additionally, Plan B Earth served a pre-action letter on the UK Government alleging that its failure to develop a plan to address climate change is a violation of human rights as well as domestic and international law (see here).

Date of decision:
16 December 2020

Suggested case citation:
UK Supreme Court, R (on the application of Friends of the Earth Ltd and others) v. Heathrow Airport Ltd, UKSC 2020/0042, Judgment of 16 December 2020, [2020] UKSC 52

Case documents:
For the full judgment, click here.

To watch a webcast of the hearing, click here.

Further reading:
Joanne Hawkins, ‘A lesson in un-creativity: (R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd [2020] UKSC 52’, 23(4) Environmental Law Review (2021), 344-349. Available here.