Mandatory due diligence laws and climate change litigation: Bridging the corporate climate accountability gap?

Abstract

The debate on corporate climate accountability has become increasingly prominent in recent years. Several countries, particularly in the Global North, have adopted mandatory human rights and/or environmental due diligence legislation. At the same time, judicial and quasi‐judicial proceedings are helping to shape the contours of corporate climate accountability. This article considers how litigation against corporations and due diligence legislation interact, and thereby help develop and strengthen corporate climate accountability. While the practice in this area is still limited, there is scope to reflect on early developments and how they may influence both future climate litigation as well as ongoing and future law‐making on due diligence. We first review recent developments in climate litigation against corporations, focusing on the extent to which they rely on climate due diligence obligations. We then survey existing and proposed due diligence legislation, examining the extent to which it addresses corporate climate accountability. Finally, we identify scenarios of how due diligence legislation and climate litigation may interact and possibly converge to strengthen corporate climate accountability. We furthermore identify knowledge gaps and areas for further research.

The politics of supply chain regulations: Towards foreign corporate accountability in the area of human rights and the environment?

“…In Germany, France, and at the EU level, environmental and human rights NGOs, progressive representatives from churches, trade unions and members from leftist and green parties as well as the EU parliament and public ministries responsible for environmental and social affairs have presented their own law proposals and promoted comprehensive and enforceable laws, including legal liability (Weihrauch et al, 2023). Moreover, as Rajavuori and colleagues (2023) point out, the proliferation of climate litigation against large‐scale emitters is likely to act as a driver for the adoption of HREDD laws.…”

“…While many laws exclusively cover environmental or human rights issues, some recent regulations, such as the French and German laws encompass both issue areas (Dehbi & Martin‐Ortega, 2023; Gustafsson et al, 2022). As Rajavuori and colleagues (2023) show, HREDD laws either explicitly cover companies' climate impacts, or they have been increasingly referred to for enhancing corporate accountability in this area. There has been an increasing recognition that environmental and human rights impacts are often intrinsically linked and therefore cannot be effectively addressed in isolation from each other (see Dehbi & Martin‐Ortega, 2023).…”

The devil is in the detail—The need for a decolonizing turn and better environmental accountability in global supply chain regulations: A comment

“…In the Global North, several of the papers corroborate other scholarship identifying civil society‐led coalitions as instrumental in the adoption of due diligence laws in consuming (importing) countries of the European Union (EU) and the United States. The relatively rapid diffusion of these norms is largely attributable to these advocacy networks spreading out beyond human rights and environmental activists to include business associations and politicians , though there are significant political divergences over whether supply chain regulation should be mandatory or voluntary (Gustafsson et al, 2023b; Partzsch, 2018; Partzsch & Vlaskamp, 2016; Rajavuori et al, 2023; Weihrauch et al, 2023).…”

“…There is also concern, expressed in several papers, that HREDD laws have failed to lay effective regulatory grounds for the environmental accountability of foreign corporate practices (Berning & Sotirov, 2023; Dehbi & Martin‐Ortega, 2023; Rajavuori et al, 2023). Part of this relates both to the issue selectivity of some HREDD laws—restricted, for example, to modern slavery (UK) and child labor (Netherlands)—or, within general HREDD laws, the requirement that environmental harm breaches a human rights threshold, as in the French and German laws on due diligence in supply chains.…”

“…Climate change impacts do not make the cut, subsumed instead under a general obligation on applicable companies to transition to a sustainable economy. Rajavuori et al (2023) note more generally that the human rights primacy of HREDD laws militates against foreign corporate accountability for climate-related harm, finding more scope for answerability in climate risk disclosure rules (e.g., by the US Securities and Exchange Commission) or, more bluntly, climate change litigation against corporations. Without a deeper and wider integration of ecological and climate change impacts in HREDD, their environmental scope will remain constricted.…”