The Climate Report: Third Quarter 2023
LAWYER SPOTLIGHT: Michelle Bradfield
For more than 20 years, Michelle Bradfield has been representing States and private entities on a variety of complex international arbitration matters, often involving public international law, including investment treaty arbitration, international commercial arbitration, boundary and maritime disputes, and deep-sea mining and sovereignty issues. She is regularly involved in "bet-the-company" disputes and has worked for numerous FTSE 100 and Fortune 100 companies in disputes around the globe.
Michelle, who is located in Jones Day's London Office, regularly advises clients on ESG litigation risk in the United Kingdom. She was recently appointed to the ESG Committee of the City of London's Law Society and will serve as editor of the ESG Guide to Disputes, which will be issued by the Global Arbitration Review. Michelle frequently speaks at conferences on ESG litigation and risk, including the seldom-discussed issue regarding a State's liability for proactive climate action and consequences under international law, which includes multibillion-dollar claims initiated under investment treaties and often heard via an entity affiliated with the World Bank. The Legal 500 ranks her in the "Hall of Fame" for both international arbitration and public international law and describes her as "among the best in London."
REGULATORY ISSUES & UPDATES
New CFTC Enforcement on Carbon Markets Misconduct
The U.S. CFTC publishes a rare alert soliciting tips about potential manipulation in the carbon markets and announces the formation of a new environmental fraud task force.
UK's Advertising Regulator Cracks Down on Greenwashing
The Advertising Standards Authority issues a series of rulings banning certain advertisements run by three major energy companies.
CARB Approves Regulation to Reduce Railroad Emissions
The California Air Resources Board adopts a first-in-the-nation regulation that limits the emission of greenhouse gases, criteria pollutants, and toxic air contaminants from locomotives in the state.
New EU Deforestation Regulation
As discussed in a recent Jones Day Commentary, the European Union ("EU") has adopted a new regulation designed to tackle deforestation and forest degradation in the EU and globally by preventing European citizens from buying, using, and consuming products that are not deforestation-free. Covered companies will need to ensure that the covered products they import and export into and out of the EU are deforestation-free, have been produced in accordance with applicable laws, and are covered by a specific due diligence statement.
LITIGATION ISSUES & UPDATES
High Court Dismisses ClientEarth's Application to Initiate Proceedings Against Shell's Directors
The UK High Court emphasized that in assessing a shareholder derivative action, the court will consider whether the directors are acting to promote the success of the company for the benefit of all of its members.
Airlines Facing "Greenwashing" Litigation on Three Continents
Consumer protection lawsuits in the United States, Europe, and Australia accuse airlines of misrepresenting the sustainability of their business operations.
Climate Litigation in Australia: Current State of Play
Australia continues to see a relatively large number of climate-related filings, including multiple suits commenced against corporations and governments in relation to climate issues, with more filings anticipated.
D.C. Circuit Vacates Part of the EPA's HFCs Phasedown Rule
The U.S. Court of Appeals for the District of Columbia Circuit vacates the part of the rule that mandates refillable cylinders to transport hydrofluorocarbons and implements a QR-code certification and tracking system to be affixed to the refillable cylinders.
Anticipating and Defeating Insurer Coverage "Defenses" for Climate Change Litigation
As discussed in a recent Jones Day Commentary, in response to increasing climate change lawsuits against commercial policyholders, certain insurance companies have attempted to resurrect coverage "defenses" to climate change litigation that have been repeatedly rejected in other contexts and remain contrary to legal precedent. Commercial policyholders should be skeptical of such insurer posturing and not overlook their liability insurance programs when faced with climate change litigation, which may provide valuable defense and indemnification coverage for such exposures.
TRANSACTIONAL ISSUES & UPDATES
Decarbonizing the Health Care Sector
More than 60 counties are now committed at the government level to lowering the emissions of health systems, with recent developments in Europe, the United Kingdom, and the United States.
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