The new wave in ESG Litigation: biodiversity litigation

Developments in case-law and legislation as catalyst for RBB litigation 

It is expected that RBB litigation will grow rapidly due to the urgency to protect biodiversity. In this respect, proven legal concepts and strategies in HRCC litigation can be used as blueprints for RBB litigation. 

In addition, there are recent legislative developments, such as the Corporate Sustainability Reporting Directive (CSRD) and the Corporate Sustainability Due Diligence Directive (CSDDD), which mandate stricter reporting and due diligence obligations related to biodiversity and will be explained in greater detail below.  

Developments in case-law 

The broader interpretation of human rights-based jurisprudence and concepts in relation to socio-economic rights in HRCC litigation, including, for example, in respect of ‘standing’ and ‘harm’, often serves as a basis for RBB litigation. 

The best-known examples of HRCC litigation in the Netherlands are the Urgenda case against the Dutch state and the Shell case of May 2021. The legal concepts used in these cases are being applied to other HRCC litigation. 

On top of national case-law, there is international confirmation that human rights must include protection against dangerous climate change in the Climate Granny Case rendered by the European Court of Human Rights (ECtHR). 

In addition, the link between human rights and biodiversity is increasingly recognised internationally.

In 2021, the UN Human Rights Council affirmed the right to a clean, healthy and sustainable environment, explicitly noting the negative impact of biodiversity loss on this right. 

The UN General Assembly followed in 2022 with a similar recognition, stressing that biodiversity loss poses a serious threat to the human rights of both current and future generations. This loss, according to other UN treaty bodies and rapporteurs, directly affects fundamental human rights such as the right to life, health, and food, and also affects the rights of children and indigenous peoples. 

Increase of international legislation and agreements 

The Paris Agreement served as a catalyst for the increase in HRCC litigation since 2015. 

For RBB, Kunming-Montreal Global Biodiversity Framework (GBF) and the 'Paris Agreement of Nature' performed an equal function. This non-binding framework is based on the UN Convention on Biological Diversity of 1992.

Article 10 of the Biodiversity Treaty contains an obligation to adopt measures for the use of biological resources to avoid or minimise the adverse impact on biological diversity.

In addition, multiple legislative developments will create stricter norms on biodiversity. 

The Biodiversity Treaty includes interesting side agreements with certain obligations such as the Glasgow Leaders’ Declaration on Forests and Land Use.

At EU level, there are ambitious biodiversity legislative initiatives following the Green Deal (EU Nature Restoration Plan and Zero Pollution Action Plan). The Taxonomy Regulation determines the types of business activities with a positive impact on biodiversity. 

In annexes to the recently adopted CSDDD, it is explicitly stated that the above-mentioned biodiversity obligation is included in the due-diligence obligation. This will have significant impact on biodiversity obligations. 

A similar but softer due-diligence obligation can also be indirectly applied to international companies based on the UN Guiding Principles on Business & Human Rights and the OECD Guidelines on Business Conduct. 

The reporting obligations in the CSRD also have an impact on biodiversity. In this respect, it is also relevant that the Climate Disclosure Standards Board (CSDB), Global Reporting Initiative (GRI) and European Financial Reporting Group (EFRAG) are working on several standards, such as the Biodiversity Standard. 

Other relevant legislative developments include the ‘Finance for Biodiversity Pledge’, which relates to the financing of biodiversity. 

In certain jurisdictions legislation is already in place that provides rights to nature, such as rivers, including Ecuador, Canada, New Zealand, India and Bangladesh. 

Improvement of scientific evidence and guidance in urgency, damages and direct causal connection 

Scientific insights form the foundation for HRCC litigation, both in demonstrating the need for action and in formulating legal arguments. 

As a result, RBB litigation often chooses equally reliable sources and many of the studies have topics that overlap. 

In 2022, the Science Based Targets Initiative was initiated to set science-based targets for companies to maintain biodiversity. In May 2023, the Science-Based Targets for Nature (SBTN) were revealed, which is considered a significant step forward for organisations to combat the global challenge of nature loss by balancing scientific rigor and feasibility. The guidance includes integrated technical guidance enabling companies to assess and prioritise their environmental impact on freshwater quality and quantity alongside land targets for the protection and restoration of terrestrial ecosystems. These targets aim to reduce negative impact and enhance a positive outcome for nature and people across companies and their direct operations and supply chains. The SBTN emphasises the interconnectedness of biodiversity, climate change, and sustainable business practices. 

Conclusion

Biodiversity litigation is the new kid on the block in ESG litigation, but it has the potential to significantly impact businesses in the near future. 

RBB litigation is maturing rapidly due to lessons learned in HRCC litigation and other developments. 

Multinationals should be aware of this trend and consider adequate measures and governance improvements to avoid or minimise the negative effects that its business operations and supply chains may have on biodiversity.