Danone case indicates: environmental lawsuits no longer limited to climate litigation

The environmental organisations ClientEarth, Surfrider Foundation Europe and Zero Waste France have filed a lawsuit against the food company Danone before the Tribunal judiciaire de Paris. Among other things, they accuse Danone of violating the French law on due diligence by not explicitly listing the avoidance of plastic in its due diligence report. The French law imposes new human rights and environmental obligations on large businesses.

Before filing the lawsuit, the three organisations had warned Danone about its plastic use at the end of September. "We believe that the company's use of plastic violates an important French law that requires companies to recognise and take into account the environmental, health and human rights impacts of their activities," ClientEarth said on its website.

ClientEarth said that Danone consumed more than 750,000 tonnes of plastic in 2021, thus exceeding the previous year's consumption. As a manufacturer and supplier of food, which is usually packaged in single-use plastic, the company has never taken adequate measures to eliminate the harm associated with the use of plastic, ClientEarth said.

The organisations behind the case are demanding that Danone presents "the environmental, climate, health and human rights impacts of its plastic use from production to end of life" and provides a full assessment of its plastic footprint. With their lawsuit, they also want to force Danone to establish and implement a "deplastification plan".

"The lawsuit against Danone confirms our prediction that environmental organisations will no longer limit their legal activities to the issue of 'climate' alone, but will increasingly initiate legal proceedings in other ESG areas in order to achieve their goals. This trend should be kept in mind, even though the coverage of the coming year is still likely to be dominated by 'classic' climate litigation," Johanna Weißbach, a Munich-based litigation expert at Pinsent Masons, said.

Important court decisions in climate change cases are pending on all continents in 2023, not least in Germany and Europe: There are several cases pending at the European Court of Human Rights (ECHR), all seeking a declaration that the failure of governments to act to limit global warming is a violation of various human rights.

One of these proceedings is a lawsuit filed by a group of elderly women from Switzerland who call themselves KlimaSeniorinnen (ClimateSeniors) and claim that their health is particularly endangered by climate change and resulting heat waves. A public hearing before the Grand Chamber of the Court is scheduled for March 2023.

A group of German teenagers and young adults is also demanding more climate protection by the German government and has filed a complaint with the ECHR, too.

Meanwhile, a decision is  expected in Germany on the lawsuit of a Peruvian farmer against a leading electricity producer. The farmer argues that the company contributes to climate change by operating coal-fired power plants and is thus partly responsible for the melting of the Andean glaciers and the threatened overflow of a glacial lake. He wants the company to contribute to the costs of protective measures for his hometown Huarez, which lies below the glacier. In the early summer of 2022, the Higher Regional Court of Hamm, which is dealing with the case, visited Huarez to inspect the situation on site and have it assessed by court experts.

In addition, several climate lawsuits against leading car manufacturers are ongoing in Germany. A lawsuit against Mercedes-Benz was dismissed last year, but decisions in cases brought against Volkswagen and BMW are still pending.

"2023 will be a landmark year in the field of climate litigation, as many fundamental issues in the field are likely to be decided by courts for the first time," Alessandro Capone from Pinsent Masons said. "It remains to be seen whether this will lead to a higher degree of legal certainty for all parties and thus a lower number of new lawsuits, or whether it will set the stage for further climate litigation."