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Here are highlights of this month's climate litigation update. The full update is available here:
Federal Court Let Consumers Continue with Claims that Evian Water Was Misleadingly Marketed as “Carbon Neutral”
The federal district court for the Southern District of New York allowed consumer plaintiffs to proceed with claims based on their allegations that the defendant manufacturer made false and misleading claims that evian water is “carbon neutral.” The court concluded that it could not determine as a matter of law that the term “carbon neutral” did not have the capacity to mislead. The court found that the term was “a technical word not within an average consumer’s common parlance and carrying multiple meanings” and that it was plausible that the term could mislead a reasonable consumer. The court also found that “carbon neutral” was the type of the “general environmental benefit claim” that the Federal Trade Commission’s Green Guides warn against; that the plaintiffs’ allegations regarding consumer confusion were sufficient; and that the defendant “expects too much” from consumers when it directs them beyond the label to websites to learn what “carbon neutral” means. The court therefore declined to dismiss claims under the Massachusetts consumer protection statute and the California Consumers Legal Remedies Act. The court also found that the plaintiffs’ allegations that they paid a price premium based on the alleged misrepresentation was sufficient to allege an injury. In addition, the court allowed the plaintiffs to proceed with a fraud claim, and with breach of express warranty and unjust enrichment claims under California law. The court dismissed claims under Sections 349 and 350 of New York’s General Business Law without prejudice because the plaintiffs did not allege they were deceived in New York. The court also dismissed an implied warranty claim under California law and an express warranty claim under Massachusetts law without prejudice. Dorris v. Danone Waters of America, No. 22-cv-8717 (S.D.N.Y. Jan. 10, 2024)
Norway: Oslo District Court Ruled that Scope 3 Emissions Must Be Subject to an Impact Assessment
On June 29, 2023, two environmental NGOs, Greenpeace Nordic and Natural og Ungdom (Nature & Youth), challenged three administrative decisions whereby the Norwegian Energy Ministry approved the plan for the development and operation of the oil and gas fields of Breidablikk, Yggdrasil, and Tyrving in the North Sea. The three fields in question have been subject to impact assessments by the companies that are operators and licensees for the fields. However, these impact assessments do not include combustion (Scope 3) emissions from the oil and gas produced.
In the absence of administrative or specialized environmental courts in the Norwegian legal system, the lawsuit occurred in a civil court. The plaintiffs based their challenge on various legal grounds, including Section 4-2, second paragraph, of the Petroleum Act, alongside Section 22a of the Petroleum Regulations. The interpretation of these statutes was guided by Article 112 of the Norwegian Constitution, emphasizing the right to a healthy environment. Additionally, the challenge was grounded in compliance with the EU Directive on Environmental Impact Assessments (EIA Directive). The plaintiffs also invoked legal sources such as Articles 2 and 8 of the European Convention on Human Rights (ECHR), on the right to life and right to respect for private life and family life and home, respectively, both independently and in conjunction with Article 14 of the ECHR, prohibiting discrimination. Furthermore, the challenge drew support from Section 104, second paragraph, of the Norwegian Constitution, which focuses on the dignity rights of children and the obligation to incorporate their best interests, and Article 3 of the UN Convention on the Rights of the Child, on the best interests of the child. Further legal theories encompass Norway’s Nature Diversity Act and Public Administration Act.
Essentially, the plaintiffs argued that the assessment of Scope 3 emissions should have been conducted before issuing the three administrative decisions. In contrast, the Ministry of Petroleum and Energy, now the Ministry of Energy, asserted that a general-level assessment of Scope 3 emissions by the Ministry sufficed and that there was no explicit requirement for this assessment to be integrated into the specific impact assessments for the Breidablikk, Yggdrasil, and Tyrving fields.
On January 18, 2024, the Oslo District Court concluded that all three decisions were unlawful. There is a legal requirement that Scope 3 emissions must be subject to an impact assessment pursuant to Section 4-2 of the Petroleum Act and Section 22a of the Petroleum Regulations, interpreted in light of Article 112 of the Norwegian Constitution (on the right to a healthy environment). This also follows from Article 4 no. 1 of the EU EIA Directive, Article 3 no. 1. Conversely, for the three challenged administrative decisions, no impact assessment of Scope 3 emissions had been carried out, contrary to the Norwegian Supreme Court’s ruling in the first Norwegian Climate Case. By referring to the mentioned Supreme Court decision, the Oslo District Court asserted that the greater the consequences of a measure under review, the stricter the EIA requirements. Similarly, the greater the consequences of a measure, the more thorough the court’s procedural review must be. For petroleum activities, courts should not be reluctant to review cases on procedural grounds, in this case, the EIA (p. 27). Differently from the first Norwegian Case, where the challenged decision sprang from a Parliament resolution, the challenged decisions are of the Ministry’s competence, yielding to more judicial scrutiny. In connection to such scrutiny, the Court cited the IPCC AR6, comparative case law, and expert opinions heard during the case hearing.
Further, the Court concluded that there is no legal obligation to consider the best interests of children in connection with each individual decision on a plan for development and operation (PDO) of petroleum activities. The Court, therefore, concluded that the decisions are not contrary to section 104 of the Norwegian Constitution and Articles 3 and 12 of the UN Convention on the Rights of the Child. The Court concluded that the decisions are not contrary to Articles 2, 8, and 14 of the ECHR, pending a challenge to the mentioned Supreme Court’s decision before the European Court of Human Rights. Remarking on remedies, the application for a temporary injunction was granted in that the state is prohibited from adopting other decisions that require valid PDO approval for Breidablikk, Yggdrasil, and Tyrving until the validity of the decisions has been finally decided. The state, represented by the Ministry of Petroleum and Energy, was ordered to reimburse the plaintiffs’ legal costs in connection with the case (NOK 3 260 427, circa USD 309,833.49- incl. VAT in compensation for legal costs to the plaintiffs). In addition, the court’s fee will be included. The decision can be appealed. (Greenpeace Nordic and Nature & Youth v. Energy Ministry (The North Sea Fields Case, Oslo District Court)
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