By Anna Dell’Amico
This post is part of the Environmental Law Review Syndicate.
Editor’s Note: This article was originally written for a class in spring 2023, and all lawsuits mentioned are up to date as of summer of 2023.
It is becoming increasingly common for companies, governments, and other institutions to make net-zero climate pledges, but they often plan to use carbon offsets to reach these goals. However, this rise of net-zero pledges and the corresponding spike in demand for carbon offsets should not be celebrated. Offsetting schemes delay decarbonization, mislead the public, and cause human rights violations, including land dispossession. Given this problematic rise in the use of carbon offsets and the harm they have caused, what legal strategies have advocates deployed in response? Are there other strategies they should consider using?
One strategy advocates have applied so far is to sue corporate carbon credit buyers for greenwashing—that is, making misleading or false environmental sustainability claims about their products or services. In this article, I critically analyze both the contributions and shortcomings of greenwashing litigation in its ability to counteract the rise of offsetting schemes and achieve justice for communities affected by carbon offsetting projects. In addition, I offer other legal strategies advocates should consider adopting to help fill gaps left by greenwashing litigation. Specifically, advocates can file lawsuits on behalf of victims in court in jurisdictions with strong due diligence legislation or file complaints at any of the Organization for Economic Cooperation and Development’s National Contact Points for Responsible Business Conduct.
I. BACKGROUND: EXPANSION OF NET-ZERO COMMITMENTS AND RELIANCE ON CARBON CREDITS
It has become increasingly common for public and private institutions to set goals to reach net-zero greenhouse gas emissions by a certain date.[1] This net-zero paradigm is mainstream: as of June 2023, 149 countries covering 92% of the world’s GDP and 929 publicly-listed companies have set net-zero targets.[2] Countries typically set their net-zero pledges in their nonbinding Nationally Determined Contributions to the Paris Agreement and/or through domestic legislation,[3] while corporations and other nonstate actors make their pledges voluntarily.[4] Generally, the net-zero framing—which lacks a universal definition—leaves actors free to decide the extent to which they will meet their targets through decarbonization or carbon offsets, where “carbon offsets” refer to increasing carbon sinks through activities like reforestation. Companies are incentivized to purchase offsets given (1) net-zero targets or similar claims of carbon neutrality yield reputational benefits and may be encouraged by investors, and (2) purchasing offsets is often cheaper than decarbonizing supply chains. For these reasons, companies are already taking advantage of offsets to reach their net-zero targets. The voluntary carbon credit market was valued at more than US $2 billion in 2021, indicating widespread corporate reliance on offsets.[5]
Reliance on carbon offsets to meet climate mitigation goals is problematic for several reasons. It forestalls actual decarbonization while placing the mitigation burden on forest communities, often in the Global South. In addition, offsetting schemes are based on the misconception that carbon emissions can be “neutralized” by removing carbon from the atmosphere. A common strategy for carbon removal is to plant trees or prevent deforestation, since trees bind carbon over time.[6] However, carbon stored underground in the form of fossil fuels is not equivalent to carbon stored in trees, as carbon in the ground is stored permanently, whereas carbon stored in a tree may be released into the atmosphere if the tree is chopped or burnt down.[7] Moreover, newly planted trees require many years to bind significant quantities of carbon, whereas burning fossil fuels causes immediate carbon emissions into the atmosphere.[8] Investigations have also revealed that many carbon offsets on the market are fraudulent.[9] Furthermore, even if one could neutralize emissions through reforestation and preventing deforestation, there is insufficient land available for the offsets planned by companies and governments in their net-zero pledges.[10]
Carbon credits also cause human rights violations, including land dispossession. One way land dispossession occurs is through ”land grabbing,” or large land acquisitions by investors.[11] The demand for carbon credits incentivizes land grabs because investors can use lands for forest plantations and thereby generate carbon credits.[12] Investors often acquire such lands from governments, who in turn have seized them from Indigenous peoples and other local communities. Governments justify these seizures by refusing to recognize these communities’ customary ownership of their territories.[13] Another way land dispossession occurs is when carbon credits are generated through the prevention of deforestation. When establishing a protected forest to be used for carbon credits, governments have forcibly evicted Indigenous and other local communities.[14] These evictions are based on a “fortress conservation” model that assumes people must be prevented from accessing nature in order to conserve it.[15] Therefore, carbon credit projects follow a pre-existing playbook in which governments use conservation as a pretext for seizing valuable, resource-rich lands from Indigenous and other local communities.[16] Despite being implicated in these rights violations, buyers of carbon credits continue to boast progress toward their net-zero targets. Moreover, land dispossession is not the only human rights impact of carbon offsetting. The rising demand for tree plantations is reducing the land available for food crops, which raises food prices and worsens food security.[17] In addition, in the case of the Kasigau Corridor carbon offset project in Kenya ran by the U.S. company Wildlife Works, women connected to the project have reported sexual harassment and abuse by the company’s senior male staff members.[18]
Advocates have taken note of the negative impacts of carbon offsetting schemes and adopted certain legal strategies in response. What are these legal strategies, and are there other strategies that advocates should consider using? This article first evaluates the ways strategic litigation has addressed corporate offsetting schemes, and then proposes additional strategies. For the purposes of this article, litigation is broadly defined to include complaints filed not only at courts but also non-judicial, self-regulatory organizations and other grievance mechanisms. This analysis focuses only on cases where individuals or NGOs initiate the complaints and corporations are the respondents. Therefore, it excludes enforcement actions initiated by regulators, lawsuits initiated by companies against competitors, and claims brought against states or other potentially responsible actors.
II. STRATEGIC LITIGATION PRIMARILY TARGETED FALSE ADVERTISING, AND SHOWS LIMITED SUCCESS IN ADDRESSING HUMAN RIGHTS ABUSES
The bulk of advocates’ strategic litigation responses to corporations’ use of offsets have been in the form of greenwashing litigation. In particular, these cases challenge “greenwashing via offsets,” which refers to when “a company markets a financial product as green but relies wholly or in material part on the purchase of voluntary carbon credits to support this claim.”[19] Greenwashing-via-offsets litigation challenges the ways such marketing misleads consumers and creates a situation of unfair competition. In this section, I examine existing greenwashing-via-offsets lawsuits and assess their capacity to counteract the trend of using offsets and to achieve accountability for carbon credit-related human rights abuses.
A. Overview of Greenwashing-via-Offsets Cases: Forums in Which They Have Been Brought, Remedies Sought, and Procedural Status
In my research, I identified sixteen greenwashing-via offsets cases which concern business advertisements claiming the ability to offset emissions. The plaintiffs in these cases assert that these advertisements mislead consumers and therefore violate domestic consumer protection, advertising, and competition laws. A table with each of these cases is provided below in Annex A.[20] The cases highlighted here are useful for assessing the contributions and limitations of greenwashing-via-offsets cases in responding to carbon credit-related human rights abuses and comparing the efficacy of such cases to other potential legal strategies.
Of the sixteen complaints, nine were in front of advertising self-regulatory organizations (SRO),[21] five in courts, one in a ministerial-level central administrative organization, and one in an independent law enforcement agency.[22] Fourteen of the cases were brought in Europe, one in South Korea, and one in Canada.[23] Their legal bases are domestic consumer, advertising, marketing, and competition law.[24] Several of the cases in European jurisdictions rely on domestic implementing legislation of the E.U. Directive on Unfair Commercial Practices.[25] In addition, most SROs base their advertising standards on the International Chamber of Commerce Advertising and Marketing Communications Code (ICC Code),[26] and this code also serves as a legal basis for multiple complaints.[27]
Understanding the potential remedies in greenwashing-via-offsets cases is necessary to understand what they can achieve concretely. The possible remedies in greenwashing via offsets cases vary depending on the forum. In civil complaints filed in courts of law, claimants have the widest discretion in designing their demand for relief. In the cases analyzed, complainants have sought the following remedies:
- a finding by the court that the advertising is misleading and breaches consumer law;[28]
- an order mandating the business to cease such marketing practices;[29]
- an order prohibiting the business from making future claims about their net-zero commitments without robust substantiation and any necessary caveats or disclaimers;[30]
- an order for the business to advertise the court ruling on their online accounts;[31] and/or
- an order mandating that the business issue corrections to customers online and in the press.[32]
In consumer complaints brought to SRO complaint-handling bodies, the only remedy available is a non-binding decision ordering removal or amendment of the advertisement if the body finds the advertisement violates the applicable advertising rules. SROs are established by the advertising industry itself; therefore, while these bodies can apply sanctions to promote compliance, they lack the enforcement power of the state.[33] Still, SRO sanctions tend to be effective by threatening reputational damage to the noncompliant advertiser. For example, under the Dutch Advertising Code Commission, compliance with decisions is about ninety-five percent, and advertisers who disregard its rulings are placed on a non-compliant list.[34] The U.K. Advertising Standards Authority also employs public shaming sanctions to ensure the “vast majority” of its rulings are complied with.[35] One of such sanctions includes placing paid-search advertisements to drive traffic to the Advertising Standards Authority’s webpage detailing the advertiser’s noncompliance.[36]
The potential for enforcement is higher for each of the cases brought to the Korean ministerial-level central administrative organization (Korea Free Trade Commission) and Canadian independent law enforcement agency (Competition Bureau of Canada). However, for both types of actions, the government, not the original complainant, decides the ultimate remedy. The Korea Free Trade Commission has broad powers to remedy violations to the Regulation on Unfair Labeling and Advertising, including the ability to impose financial penalties, file criminal charges, and suspend certain advertisements when there is the threat of irrecoverable damage to consumers or rival businesses.[37] The Competition Bureau of Canada also has various compliance mechanisms at its disposal, including encouraging voluntary compliance, negotiating binding consent agreements, or initiating litigation with the option to seek injunctive relief.[38]
To what extent have greenwashing-via-offset cases achieved their desired remedies? Ten cases are pending, and therefore cannot yet be analyzed. Of the cases that have been resolved, the results are mixed. Three cases have been upheld,[39] while three others have been dismissed on forum non conveniens grounds.[40] Two of the three upheld complaints were back-to-back complaints brought against Shell in the Dutch SRO. The initial complaint, Reclame Fossielvrij v. Shell (I), successfully challenged Shell’s “Drive CO2 Neutral” advertisement, and the second complaint, Reclame Fossielvrij v. Shell (II), successfully challenged the company’s amended “Compensate for CO2 emissions” advertisement.[41] The third successful claim was against TotalEnergies (Total) in a German Court, and the resulting court order barred Total from advertising its heating oil as “CO2-compensated.”[42] The three dismissed cases were brought by NGOs in 2022 in various European SROs against FIFA concerning its 2022 World Cup carbon neutrality claims.[43] They each were dismissed so they could be jointly considered in Switzerland, where FIFA is headquartered.[44]
B. Advantages and contributions of greenwashing-via-offsets litigation
Given the growth in greenwashing-via-offsets litigation, it is fitting to take stock of what these cases have accomplished, examine their role in challenging problematic offsetting schemes, and consider what more can be done beyond such cases to achieve corporate accountability. The advantages of the greenwashing litigation strategy are that it (1) increases the litigation risk for companies claiming the ability to offset their emissions; (2) enhances competition between businesses on their sustainability performance; (3) advances advocacy campaigns for regulatory change; and (4) tends to be resolved more quickly at lower litigation costs compared to other kinds of corporate climate litigation.
First, greenwashing-via-offsets cases serve a clear strategic purpose. They compel the removal or amendment of a particular advertisement and create a novel category of legal risks applicable to all corporations that claim carbon neutrality based on offsets. In addition, the effect of these cases can transcend the jurisdiction in which they are brought because they tend to rely on consumer protection laws that are similar across many jurisdictions. Therefore, potential plaintiffs can replicate the legal theories used in one jurisdiction in another one.
For instance, there are forty-two countries that have or are developing their national advertising and marketing codes based on the ICC Code.[45] A decision from the French SRO finding an advertisement violated the ICC Code may increase the risk of that company receiving a similar judgment for airing the advertisement in any of the other forty-one ICC Code jurisdictions. Private law firms are taking note of this legal risk. In the past year, a number of large law firms and other commentators have posted articles alerting businesses of net-zero greenwashing cases and the legal risks created by exaggerated or unsubstantiated net-zero claims.[46] While this may successfully pressure some companies, for others the reward of carbon-neutral ads outweighs this legal risk, as demonstrated by the legal battle against Shell discussed below in section III.C.
Second , greenwashing-via-offsets cases, like all greenwashing cases, address the significant role of consumer behavior in the climate emergency.[47] Changing consumer behavior is a crucial component of achieving the Paris Agreement’s goal to limit global average temperature increases. In order to achieve emissions reductions by making consumption choices based on the environmental performance of businesses, consumers need accurate information about those businesses’ environmental performance. Yet, most consumers are unable to distinguish products with a potentially hollow “carbon-neutral” label from those which have achieved meaningful sustainability improvements along their entire supply chains.[48] Therefore, by pressuring companies to increase the accuracy of communications concerning their environmental performance, these cases can help consumers compare products and services based on their true environmental impact.[49]
Third, these cases play a strategic role in campaigns to ban fossil fuel advertising at the domestic and international levels. These campaigns are based on evidence that fossil fuel advertisements increase consumption and emissions.[50] They are also based on the recognition that advertising shapes fossil fuel companies’ social license—that is, the degree to which consumers accept or approve of these companies’ practices. Social license can in turn shape the degree to which government officials are motivated to strictly regulate such companies.[51] By considering greenwashing cases as part of larger campaigns, these cases can be evaluated based both on their direct impact on the responding company and their contribution to the campaign goal.[52]
The following are examples of organizations using these cases as part of larger campaigns and legislative efforts, further demonstrating the role greenwashing-via-offsets cases play in addressing the rise of carbon credit schemes. ClientEarth, which petitioned to intervene in the Greenpeace France v. TotalEnergies case, is one of thirty organizations campaigning for an E.U. directive to ban fossil fuel advertising and sponsorships.[53] The NGO Deutsche Umwelthilfe (DUH) has brought greenwashing-via-offsets cases against three companies along with sending cease-and-desist letters to seven others for their alleged greenwashing activities.[54] DUH has campaigned in Germany and the European Union for greater regulation of corporate environmental performance ads.[55] Greenpeace Canada, which submitted a greenwashing-via-offsets complaint against Shell Canada, has supported a campaign in Canada to enact a nationwide tobacco-style law banning fossil fuel advertisements.[56] These campaigns are based on the recognition that legislation, rather than repeated litigation, should be the permanent solution to misleading offset-based net-zero advertising.[57] So far, there is limited legislative progress at the national level. In August 2022, France, where two of the sixteen identified greenwashing-via-offsets cases have been brought, became the first country in Europe to ban certain fossil fuel advertisements.[58] This legislation passed after a greenwashing-via-offsets case was filed against Total at the French SRO in March 2022, though there is no evidence that this case caused the legislation’s passage.
Fourth , greenwashing-via-offset cases can be resolved more quickly than other types of corporate climate litigation, which means they also require fewer resources for advocates to bring them. Greenwashing-via-offsets cases are resolved especially quickly when filed at SROs, whose complaint mechanisms tend to be cost-effective and efficient compared to judicial fora.[60] For example, at the Dutch SRO, Reclame Fossielvrij v. Shell (I) was decided within six months of filing,[61] and Reclame Fossielvrij v. Shell (II) received an initial ruling within four months and was concluded on appeal four months after that.[62] Likewise, greenwashing cases brought to courts also have the potential to be resolved quickly, possibly because these cases are not especially complex: they do not involve many parties, documents, or witnesses, nor do they require resolving particularly difficult legal questions. For example, in the only other complaint that has been upheld so far, the Düsseldorf District Court decided DUH v. TotalEnergies within 11 months of filing. [63] However, not all greenwashing via offsets complaints are resolved quickly. Most of the complaints analyzed for this article are still pending, including one filed as early as November 2021.[64]
This speed of resolution is stark when comparing greenwashing-via-offset cases to other corporate climate cases that tackle corporate policy directly. Unlike greenwashing cases, which allege corporate advertising misleads consumers, these other corporate climate cases seek to hold high-emitting corporations accountable for injuries allegedly caused by their contributions to the climate crisis. These other corporate climate cases tend to resolve slowly, likely because they are more complex, their approaches demand more expansive interpretations of existing law, and they can only be filed in courts rather than specialized complaint bodies. The landmark case brought in the Hague District Court against Royal Dutch Shell—which sought an order for the fossil major to reduce its emissions by 45 percent by 2030—received a provisionally-binding ruling within about two years.[65] Similar cases filed against Total in January 2020,[66] BMW in September 2021,[67] and Volkswagen in November 2021[68] are still pending. Another case brought against Mercedes-Benz in September 2021 was dismissed in September 2022 and is still pending on appeal over a year later.[69] The timelines of these corporate climate cases contrast with those of greenwashing-via-offsets cases, most of which have been resolved within one year.
C. Limitations of Greenwashing-via-Offsets Litigation
Greenwashing litigation has a valuable role to play in combating the net-zero paradigm and forms part of a legitimate campaign to end fossil fuel advertising. Yet, strategic litigation alone can rarely provide a comprehensive solution to complicated social injustices, and greenwashing-via-offsets cases in the context of the rise of carbon credit schemes is no exception. This section explores the limitations of the greenwashing litigation approach, and the subsequent section will propose complementary strategies for holistically tackling carbon credit human rights abuses and the net-zero paradigm.
First, a limitation of greenwashing-via-offsets cases is they are unable to directly address serious human rights abuses caused by corporate carbon credit schemes. As noted in the introduction, corporate carbon offsetting schemes not only mislead consumers, but also have caused to human rights abuses such as land dispossession. Greenwashing-via-offsets cases, and even the more ambitious campaigns to ban fossil fuel advertising, cannot address human rights abuses associated with carbon credit projects because they address corporate advertisements, not corporate strategies. As noted by Clémentine Baldon, who represents Greenpeace France in its greenwashing case against Total, such cases “cannot directly change the strategy of the company, but at least can change the way the company is presenting its strategy to consumers.”[70] In the near term, the likeliest effect of a successful greenwashing lawsuit is for the corporate respondent to amend its advertisements but to still maintain its offsetting policy. Though NGOs’ communications strategies for these greenwashing cases sometimes draw attention to the human rights abuses caused by such schemes,[71] their standard desired remedy is an order for a company to remove or amend an advertisement. Therefore, for community members who have had their lands expropriated or suffered other human rights abuses, such cases are not a vehicle for redress.
Second, greenwashing-via-offsets cases do not pose enough of a deterrent to stop companies from purchasing carbon credits. The only way greenwashing-via-offsets cases can potentially respond to the human rights abuses caused by offsetting schemes is by discouraging companies from buying offsets at all. While there is some evidence that greenwashing-via-offsets lawsuits have discouraged companies from purchasing carbon offsets, this effect is minor. In 2022, the offset market grew at a slower rate than in 2021, likely in part as a result of concerns that the current carbon credits on the market are low-quality and therefore purchasing them incurs a reputational risk for the buyer.[72] Greenwashing-via-offsets lawsuits have helped draw attention to these quality concerns. One notable example of a company abandoning its use of offsets involved the airline company EasyJet, which announced in September 2022 that it would move away from its reliance on offsets and adopt a target to reduce its actual emissions by 78 percent by 2050.[73] Yet, most companies are not following suit. Even though the voluntary carbon market did not increase at the rate that was expected in 2022, companies still bought 155 million carbon credits that year, with each credit representing one ton of carbon dioxide equivalent avoided, reduced, or removed.[74] Moreover, recent predictions expect the value of the voluntary carbon market to increase to $10-40 billion USD by 2030 and $250 billion by 2050.[75]
The following three greenwashing-via-offsets cases help demonstrate the limitations of such cases in tackling the rise of carbon credit schemes, even when they achieve their desired remedies. In DUH v. TotalEnergies, the court ruled in plaintiffs’ favor. However, as of the time of writing this article, Total’s website still advertises CO2-compensated heating oil, even though the case was decided in April 2023.[76] In addition, the parent company Total has not indicated a plan to reduce its reliance on offsets. As recently as April 2023, Total began advertising its plan to offset its emissions through building biodigesters.[77] Therefore, even though an NGO’s complaint against Total for greenwashing-via-offsets was upheld, the company has given no signal that it plans to reduce its reliance on offsets or its promotion of this approach.
Similarly, the complaints upheld against Shell at the Dutch SRO have not yet convinced the company to abandon its offsetting schemes. In Reclame Fossielvrij v. Shell (I), advocates filed a complaint in 2021 with the Dutch SRO regarding Shell’s “Drive CO2 Neutral” advertisement campaign.[78] The SRO upheld the complaint, and Shell removed the advertisement in the Netherlands.[79] However, Shell continues to run the same advertisement in several other countries, including Belgium, the United Kingdom, and Canada.[80]
Soon after the Reclame Fossielvrij v. Shell (I) decision, Shell launched a new campaign in the Netherlands with slightly different wording: “Make a Difference: Compensate for CO2 emissions.”[81] In response, advocates brought another complaint to the Dutch SRO in 2022, Reclame Fossielvrij v. Shell (II), which was also upheld.[82] Notwithstanding these consecutive losses, Shell later launched another advertisement in the Netherlands which claims consumers can purchase “CO2-compensated gas” for heating their homes, and a similar advertisement in the United Kingdom using “carbon neutral” language.[83]
Since then, the NGOs Reclame Fossielvrij and New Weather Institute have filed new complaints against Shell at the Dutch and U.K. SROs, respectively.[84] However, it appears that from Shell’s perspective, the reputational benefits from carbon-neutral advertising outweigh the legal fees and reputational costs from greenwashing litigation. Indeed, such litigation costs pose a relatively minor burden to Shell, being a large multinational corporation. Moreover, Shell, as a fossil fuel company, will always have to rely on carbon credits or carbon capture to claim net-zero emissions in its advertisements, unless it moves into other industries.
The third limitation is that offsetting cases may expand the boundaries of consumer protection and competition law, but such impact does not carry over into the jurisprudence of business and human rights. Domestic legal systems and international law contain gaps that allow multinational enterprises to commit human and environmental rights abuses without accountability.[85] Corporate offsetting projects are displacing communities, often in the Global South where protection of human rights is often less robust, and thus such human rights abuses fall into an “accountability gap.”[86] Given the increasing rise in demand for offsets, there is an urgency to closing this accountability gap, which consumer protection and competition law cannot do.
D. The Case of Indigenous Peoples and Cordillera Azul National Park
The experience of communities in Peru presents a pertinent example of how the corporate accountability gap applies to offsetting schemes. In 2001, the Peruvian State created the Cordillera Azul National Park on the ancestral lands of at least 28 Kichwa, Kakataibo, and Shipibo Indigenous communities without first obtaining their free, prior, and informed consent.[87] The Peruvian State, through this national park designation, violated the territorial rights of these Indigenous communities: those who lived in the now-park boundaries were evicted, and surrounding communities lost access to lands on which they engaged in customary activities such as hunting, gathering of food, and visiting spiritually significant sites.[88] Furthermore, this designation created a barrier to Kichwa communities in gaining collective ownership.[89]
In 2008, the Peruvian government began operating a Reduction of Emissions from Deforestation and Forest Degradation (REDD+) project in the Park.[90] By preventing deforestation and forest degradation in the Park, the Peruvian state has generated carbon credits which it has sold to corporations and, to a lesser extent, its own government agencies.[91] Between 2013 and 2021, the government used the park to sell more than thirty million carbon credits to corporations.[92] The entities which have purchased the greatest number of credits include Shell (more than fourteen million credits) and Total’s “Nature Based Solutions” unit (more than 12 million).[93] Indigenous communities have accused the state of not being transparent with these sales and of excluding them from receiving benefits from the transactions.[94]
Indigenous communities, which bear the brunt of the harms that accompany carbon offset transactions, responded with multifaceted campaigns focused on the Peruvian state’s role in violating their human rights. In 2020, with the support of the UK NGO Forest Peoples Programme, the Kichwa community of Puerto Franco filed a writ of protection for their fundamental rights at the Mixed Court of Bellavista against several state agencies, including the National Service of Natural Protected Areas.[95] It demands the agency carry out a free and informed consultation process; ensure Indigenous communities in the area benefit from local conservation activities; order Park guards to restore Indigenous communities’ access to subsistence activities in the Park; and uphold their rights to participate in management of the lands.[96] Aside from this lawsuit, affected communities also submitted a petition to the U.N. Committee on the Elimination of Racial Discrimination (Committee).[97] Their petition requested that the Committee consider the violations of their territorial rights under its early warning and urgent action procedure.[98] Less than a year later, the Committee complied and sent a formal communication to Peru through this procedure.[99]
This case study illustrates the accountability gap in which corporate buyers of carbon credits currently sit. Shell and Total have bought a significant portion of the carbon credits issued from the Park. Therefore, their purchase of carbon credits incentivized the human rights abuses associated with the Park’s carbon credit scheme, including violations of land rights and self-determination. Affected communities have, for good reason, targeted the state’s role in violating their human rights, leaving corporate entities to shoulder little of the blame. To the extent that Indigenous communities’ advocacy has addressed corporate buyers of carbon credits, it has been through calling out their complicity in press releases.[100] NGOs have also cumulatively brought eight greenwashing-via-offsets lawsuits against Shell and Total.[101] However, advocates have not brought any legal actions directly against the companies in relation to the harm they cause through carbon credit purchases, and the greenwashing lawsuits do not seek relief for the Indigenous and other local communities facing the lion’s share of the immediate impacts from offsetting schemes. Additional legal strategies are necessary to hold these corporations to account.
III. PROPOSED LEGAL MECHANISMS FOR ACHIEVING CORPORATE ACCOUNTABILITY
This section proposes additional mechanisms for holding corporations accountable for carbon credit human rights abuses. Unlike greenwashing litigation, the following mechanisms provide an avenue for claimants to challenge corporate carbon credit schemes for human rights violations in the Global South. Therefore, advocates should consider combining these different approaches with greenwashing suits.
A. OECD National Contact Points
The first option is to file a complaint at any of the fifty-one Organization for Economic Cooperation and Development (OECD) National Contact Points for Responsible Business Conduct (NCPs).[102] These non-judicial grievance mechanisms are tasked with hearing complaints brought against corporations of the adhering state for breaches of OECD Guidelines for Multinational Enterprises (Guidelines), regardless of where the breach occurred.[103] Complaints can be submitted by any individual or entity with a legitimate interest in a matter substantively covered by the Guidelines.[104] The NCPs are a unique institution in the business and human rights arena because they provide an grievance mechanism for violations of human rights.[105]
Though NCPs cannot enforce the Guidelines on corporations, they do offer dispute resolution in the form of conciliation or mediation, if the company consents.[106] Since 2011, this alternative dispute resolution process has led to an agreement between the parties forty percent of the time, which in some cases has included concrete reparation and financial compensation.[107] Aside from compensation, guarantees of non-repetition and a change in company policy may be available to claimants seeking relief.[108] Should the company refuse to take part in alternative dispute resolution, which is common, the NCPs in some jurisdictions will still examine the facts to determine whether there has been a breach of the Guidelines, arrive at a judgment, and publish this in a final statement.[109] Notably, many multinational enterprises are headquartered in the United Kingdom and the Netherlands, whose NCPs still publish a final statement even where the corporation does not consent to alternative dispute resolution.[110] The process can also contribute to restorative justice by creating a record and official acknowledgement of wrongdoing.[111]
Filing a complaint with an NCP can also provide an opportunity for advocates to raise awareness and “name and shame” the corporation for its carbon credit human rights abuses in the Global South.[112] This advocacy opportunity is limited, as the confidentiality rules in the Guidelines’ Implementation Procedures impose constraints on campaigning at certain stages.[113] However, at the filing stage and when the NCP is making its initial assessment, there are no confidentiality requirements.[114] Thus, advocates can leverage the moment of filing to publicize the corporation’s wrongdoing. Following the initial assessment, and if the NCP decides the submission merits further examination, the parties can consent to alternative dispute resolution at the NCP. During alternative dispute resolution, the parties cannot publicly disclose facts and arguments brought forward.[115] This does not, however, restrict advocates from continuing to publicize information that is available to the public.[116]
The outcome of the complaints brought to NCPs must also be made publicly available.[117] When the parties do not arrive at an agreement, the NCP must at the very least issue a final statement identifying the parties and the issues that were involved.[118] Sometimes, it will also include recommendations and reasons an agreement was not made.[119] If no agreement was reached or the corporation refuses consent to mediate, then the NCP will still note the issues the parties raised, the NCP’s reasoning for deciding the issues raised merit further examination, and the procedures the NCP initiated in assisting the parties.[120]
NCP findings can also feed into developing more progressive business and human rights law. Scholars contend that NCPs’ outcomes shape broader norms regarding business and human rights.[121] Such jurisprudence can be developed by the statements NCPs must publish during any complaint.[122] This role is important because there are few other fora in which the body of business and human rights law can be developed. Greenwashing litigation is also unable to develop this area of law.
While NCPs can partially fill key corporate accountability gaps, they are far from an ideal mechanism. As an enforcement mechanism, they are too weak to dramatically change corporate behavior. Their remedies are also incapable of fully realizing justice for affected communities. Strategies that contemplate using the NCPs should strongly consider merging their cases with broader campaigns for systemic change to avoid legitimizing these inadequate fora. For instance, impact can be maximized if an NCP complaint is integrated into a campaign for domestic due diligence legislation. An NCP complaint could also form part of a campaign seeking to strengthen NCPs’ enforcement powers.
B. Domestic Litigation Based on Due Diligence Laws
Tort suits based on domestic due diligence laws can also provide a legal avenue for civil society to address extraterritorial corporate human rights abuses. Several jurisdictions have now adopted legally-binding due diligence laws. However, only France’s 2017 Law on Duty of Vigilance grants victims standing to bring civil action, presenting a unique opportunity for real impact.[123] The law allows claimants to leverage the hard enforcement power of a court to sanction large companies for extraterritorial human rights abuses. Such tort suits may also lead to a binding judgment, unlike the available remedies before an NCP.
Total’s use of carbon offsets offers a useful illustration, given that the company is headquartered in France. In 2021, to offset its emissions, Total revealed a plan to plant more than one million trees in the Batéké plateaux in the Republic of the Congo.[124] Though Total claimed the project would benefit local communities, reports have revealed the opposite.[125] Total and the Congolese government failed to consult communities prior to launching the project, and communities lost access to land they farmed and depended on.[126] So far, two greenwashing-via-offsets cases have been brought against Total for its actions. One complaint, DUH v. TotalEnergies, was upheld in Düsseldorf District Court in Germany, and another filed in the Paris Judicial Court in France is pending.[127] While NGOs have brought lawsuits against Total under the French due diligence law,[128] a case has not yet been brought based on the human rights violations caused by the company’s carbon offsetting project in the Batéké plateaux.
This tort suit strategy can also be combined with the OECD NCP strategy. Sometimes, the NCPs serve as stepping stones prior to the consideration of judicial fora. For example, when the rights of the Indigenous Unión Hidalgo community in Mexico were violated by French energy company EDF, the community initially attempted to reach an agreement through the French NCP.[129] When this was unsuccessful, they filed a lawsuit at the Paris Civil Court.[130]
Despite tort suits’ potential to achieve more robust remedies, they also have drawbacks. First, given the widespread repression of human rights defenders, it is risky for communities to sue corporations directly for violating their rights, especially in certain regions. According to Frontline Defenders, land, Indigenous, and environmental rights defenders were the most targeted group of human rights defenders in 2022, especially in Latin America.[131] These defenders most commonly suffered arrest and detention, as well as physical attacks and death threats. Indigenous peoples’ rights defenders in particular accounted for 22 percent of all killings of human rights defenders.[132] In addition, a common tool for repression that corporations use against these defenders are Strategic Lawsuits Against Public Participation (SLAPPs).[133] Therefore, bringing a tort suit against a multinational corporation generates risks for the plaintiffs, especially when the violations occurred in the regions most dangerous for rights defenders. Second, neither tort suits nor NCP complaints are able to restore victims to their pre-violation state. This is because it is often the state which takes ownership of communities’ land and sells it as carbon credits. This was the case for the human rights abuses in both Peru and the Republic of the Congo. Therefore, the state must still be addressed for communities to gain title to their lands.
V. CONCLUSION
There is an urgent need to push back against unregulated corporate net-zero frameworks and carbon offsetting schemes, which have the effect of slowing decarbonization and violating human rights. In response to the rise of corporate reliance on carbon offsets, advocates have filed legal actions that allege greenwashing, thereby combatting consumer deception and challenging the social license of high emitters. However, advocates should also be conscious of the limitations of greenwashing cases—especially in addressing transnational human rights violations—and consider additional legal strategies. This article proposes two alternative approaches, including filing complaints at OECD National Contact Points and tort lawsuits based on due diligence laws. Though with their own shortcomings, these strategies provide avenues for affected communities to demand redress, hold corporate carbon credit buyers to account, and raise awareness. Additional research will be needed to construct sound legal arguments for holding corporations accountable for rights violations resulting from their purchases of carbon credits. In addition to the strategies proposed here, researchers and advocates would do well to consider other creative legal responses and international advocacy methods for challenging the rise of carbon credit schemes and achieving justice. Moreover, an additional research inquiry could explore targeting other actors responsible for advancing carbon offsetting projects, such as government purchasers of carbon credits or investors in carbon credit projects, including private investors and development finance institutions.
Annex A is available to download here.
Endnotes
[1] See Tracking Net Zero Progress: How Aligned Are We on the Global Path to Net Zero?, University of Oxford Net Zero Project, https://netzeroclimate.org/innovation-for-net-zero/progress-tracking/ (last visited Nov. 12, 2023); Commitments to Net Zero Double in Less Than a Year, United Nations Climate Change (Sept. 21, 2020), https://unfccc.int/news/commitments-to-net-zero-double-in-less-than-a-year#:~:text=Bonn%2C%2021%20September%202020%20%E2%8 93%20The,their%20recovery%20from%20Covid%2D19. See also Shelley Welton, Neutralizing the Atmosphere, 132 Yale L. J. 171, 179 (2022).
[2] See NewClimate Institute et al., Net Zero Stocktake 2023 4 (2023).
[3] See Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 12, 2015, T.I.A.S. No. 16-1104; Welton, supra note 1 at 189.
[4] See Daniel C. Esty & Nathan de Arriba-Sellier, Zeroing in on Net-Zero: From Soft Law to Hard Law in Corporate Climate Change Pledges, 94 Univ. Colo. L. Rev. 635, 643–44 (2003).
[5] See Anders Porsborg-Smith et al., The Voluntary Carbon Market Is Thriving, Boston Consulting Group (Jan. 19, 2023), https://www.bcg.com/publications/2023/why-the-voluntary-carbon-market-is-thriving.
[6] See Oda Almås-Smith & Joan Carling, Taking Stock: a Rapid Review and Critical Analysis of UNFCCC COP26 Outcomes and Potential Implications for Indigenous Peoples’ Rights 28 (2022), https://www.forestpeoples.org/en/report/2022/cop26-taking-stock-critical-review-analysis.
[7] See id.
[8] See id.
[9] See Patrick Greenfield, Revealed: More Than 90% of Rainforest Carbon Offsets by Biggest Certifier Are Worthless, Analysis Shows, Guardian (Jan. 18, 2023), https://www.theguardian.com/environment/2023/jan/18/revealed-forest-carbon-offsets-biggest-provider-worthless-verra-aoe.
[10] See Almås-Smith & Carling, supra note 6 at 28.
[11] See Jérémie Gilbert, Land Grabbing, Investors, and Indigenous Peoples: New Legal Strategies for an Old Practice?, 51 Cmty. Dev. J. 350, 351–52 (2016). This increase in land grabs caused by the demand for offsets is following a pattern similar to that which began in the Global South in the 2010s to meet the demand in Europe for biofuel. Land Grabbing for Biofuels Must Stop, GRAIN (Feb. 21, 2013), https://grain.org/article/entries/4653-land-grabbing-for-biofuels-must-stop#.
[12] See Eve Devillers & Kristen Lyons, Green Colonialism 2.0: Tree Plantations and Carbon Offsets in Africa 9 (The Oakland Institute 2023).
[13] See id. at 5, 11; Sebastien Jodoin et al., Carbon Markets Could Protect Nature and the Planet, But Only if the Rights of Those Who Live There are Recognized Too, Rights + Resources (Mar. 15, 2022), https://rightsandresources.org/blog/carbon-markets-could-protect-nature-and-the-planet-but-only-if-the-rights-of-those-who-live-there-are-recognized-too/.
[14] See Almås-Smith & Carling, supra note 6, at 14.
[15] See, e.g., Hanna Siurua, Nature above People: Rolston and “Fortress” Conservation in the South, 11 Ethics & Env’t 71, 73–74 (2006).
[16] See Eleonor Baldo-Soriano et al., What Is REDD+? A Guide for Indigenous Communities 38 (Christian Erni & Helen Tugendhat eds., 3rd ed. 2012), https://www.forestpeoples.org/en/topics/redd-and-related-initiatives/publication/2012/what-redd-guide-indigenous-communities-new-edit.
[17] See ActionAid, Not Their Lands: The land impact of Royal Dutch Shell’s net zero climate target 3 (2021), https://actionaid.org/sites/default/files/publications/Not-Their-Lands_Media%20Briefing.pdf.
[18] See generally Centre for Research on Multinational Corps. & Kenya Human Rights Commi’n, Offsetting Human Rights: Sexual Abuse and Harassment at the Kasigau Corridor REDD+ Project in Kenya (2023).
[19] Sean D. Tseng et al., Greenwashing and How to Avoid It: An Introductory Guide for Asia’s Finance Industry 18 (2023), https://www.clientearth.org/latest/documents/greenwashing-and-how-to-avoid-it-an-introductory-guide-for-asia-s-finance-industry/.
[20] Note that this Annex was last updated as of May 13, 2023; therefore, it is possible that there have been developments in these matters and new matters filed since then.
[21] Advertising self-regulatory organizations (SRO) are independent entities funded by the advertising industry itself with the task of “enforcing national advertising standards and rules, and ensuring that ads are legal, decent, honest, and truthful.” What are Advertising Self-Regulatory Organisations?, European Advertising Standards Alliance, https://www.easa-alliance.org/what-are-advertising-self-regulatory-organisations/ (last visited Oct. 22, 2023).
[22] See Annex A.
[23] See id.
[24] See id.
[25] See Rechtbank Amsterdam [Amsterdam District Court] Amsterdam 7 juli 2022, Dagvaarding [Writ] at ¶6, (Fossielvrij NL/KLM) (Neth.), available online at FossielVrij NL v. KLM, Climate Case Chart, http://climatecasechart.com/non-us-case/fossielvrij-nl-v-klm/ (last visited Nov. 18, 2023) [hereinafter “FossielVrij NL v. KLM Writ”]; Isabel Sutton, Company Climate Claims in Court: Pending Cases Will Shape Future of ‘Net Zero’ Pledges, Clean Energy Wire (Sept. 23, 2022) (noting several cases whose legal basis includes implementing legislation for the E.U. Directive on Unfair Commercial Practices, including Greenpeace France and Others v. TotalEnergies; Environmental Action Germany (DUH) v. TotalEnergies; Environmental Action Germany (DUH) v. BP Europa SE and Shell Deutschland GmbH; and Environmental Action Germany (DUH) v. Beiersdorf ).
[26] See Int’l Council for Ad Self-Regul., 2020 Global Factbook of Advertising Self-Regulatory Organizations 6 (2021), https://icas.global/wp-content/uploads/2020_Global_SRO_Factbook.pdf.
[27] See Jury de Déontologie Publicitaire [Jury of Advertising Ethics] Paris, Nov. 2, 2022, Plainte devant le Jury de Déontologie Publicitaire portée par Notre Affaire À Tous A l’encontre de Fédération Internationale de Football Association [Compl. to the Jury of Advertising Ethics lodged by Notre Affaire À Tous against Fédération Internationale de Football Association] at 7–8, 14–15, available online at Notre Affaire à tous v. Fifa, Climate Case Chart, http://climatecasechart.com/non-us-case/notre-affaire-a-tous-v-fifa/#:~:text=Summary%3A,Association%20Football%20Federation%20(FIFA) (last visited Nov. 18, 2023) [hereinafter “Notre Affaire À Tous v. FIFA Compl.”]; Commission Suisse pour la Loyauté [Swiss Fairness Commission] Nov. 2, 2022, Plainte formée por Alliance Climati portant sur des messages publicitaires de Ia Fédération lnternationale de Football Association [Compl. lodged by Swiss Climate Alliance concerning advertising messages of the Fédération lnternationale de Football Association] 10 (Switz.), available online at KlimaAllianz v. FIFA, Climate Case Chart, https://climatecasechart.com/non-us-case/klimaallianz-v-fifa/#:~:text=In%20a%20concerted%20action%20with,carbon%20neutral%20was%20misleading%20athletes%2C (last visited Nov. 18, 2023) [hereinafter “KlimaAllianz v. FIFA Compl.”]; Jury d’Ethique Publicitaire [Advertising Ethics Jury] Brussels (Belg.) Dec. 1, 2022, Carbon Market Watch Plainte auprès du jury d’éthique publicitaire belge, portant sur la communication de “neutralité carbone” de la Coupe du Monde de la FIFA 2022 [Plainte auprès du jury d’éthique publicitaire belge, portant sur la communication de “neutralité carbone” de la Coupe du Monde de la FIFA 2022] at 4, 6, 10, available online at Carbon Market Watch v. FIFA, Climate Case Chart, http://climatecasechart.com/non-us-case/carbon-market-watch-v-fifa/#:~:text=Carbon%20Market%20Watch%20alleges%20that,the%20Belgian%20advertisement%20ethics%20panel (last visited Nov. 18, 2023) [hereinafter “Carbon Market Watch v. FIFA Compl.”]. See also Int’l Chamber of Commerce [ICC], ICC Advertising and Marketing Communications Code (2018), https://iccwbo.org/wp-content/uploads/sites/3/2018/09/icc-advertising-and-marketing-communications-code-int.pdf.
[28] See Tribunal Judiciaire de Paris [Court of Paris] Paris, Mar. 2, 2022, Assignation a la requete de Greenpeace France, Amis de la Terre France, et Notre Affaire à Tous A l’encontre de TotalEnergies SE, et TotalEnergies Electricite et Gaz France [Compl. at the request of Greenpeace France, Friends of the Earth France, and Notre Affaire à Tous against Total Energies SE and Total Energies Electricity and Gas France] at 25, 38–67, 71, available online at Greenpeace France and Others v. TotalEnergies SE and TotalEnergies Electricité et Gaz France, Climate Case Chart, http://climatecasechart.com/non-us-case/greenpeace-france-and-others-v-totalenergies-se-and-totalenergies-electricite-et-gaz-france/ (last visited Nov. 18, 2023) [hereinafter “Greenpeace France et al. v. TotalEnergies Compl.”].
[29] See id. at 71–72; Korea Free Trade Commission, Oct. 27, 2022, Compl. by Solutions for Our Climate & Consumers Korea against SK Lubricants at 23 (S. Kor.) (on file with the author), Korean version of complaint available online at https://forourclimate.org/hubfs/%ED%83%84%EC%86%8C%EC%A4%91%EB%A6%BD%20%EC%9C%A4%ED%99%9C%EC%9C%A0%20%EB%B6%80%EB%8B%B9%ED%95%9C%20%ED%91%9C%EC%8B%9C%EA%B4%91%EA%B3%A0%20%EC%8B%A0%EA%B3%A0%EC%84%9C-1.pdf [hereinafter “SFOC v. SK Lubricants Compl.”].
[30] See Greenpeace France et al. v. TotalEnergies Compl., supra note 28 at 73.
[31] See id. at 74.
[32] See FossielVrij NL v. KLM Writ, supra note 25 at 152–53.
[33] See Int’l Council for Ad Self-Regul., supra note 26 at 3.
[34] See Afhandeling van Klachten in Cijfers [Figures of Handled Complaints], Stichting Reclame Code, https://www.reclamecode.nl/cijfers-sub/ (last visited Nov. 14, 2023).
[35] See Sanctions, ASA.org, https://www.asa.org.uk/codes-and-rulings/sanctions.html (last visited Nov. 14, 2023).
[36] See id.
[37] See Regulation on Unfair Labeling and Advertising, Korea Fair Trade Commission, https://www.ftc.go.kr/eng/contents.do?key=3057 (last visited May 4, 2023).
[38] See Compliance and Enforcement, Government of Canada, https://ised-isde.canada.ca/site/competition-bureau-canada/en/how-we-foster-competition/compliance-and-enforcement (last visited May 4, 2023).
[39] See Press Release, Deutsche Umwelthilfe, Verbrauchertäuschung Mit Vermeintlicher „Klimaneutralität“: Deutsche Umwelthilfe Gewinnt vor Gericht Gegen TotalEnergies Wegen Angeblich „CO2-Kompensiertem Heizöl“ [Consumer deception with supposed “climate neutrality”: Environmental Action Germany wins in court against TotalEnergies because of alleged “CO2-compensated heating oil”] (Apr. 5, 2023), https://www.duh.de/presse/pressemitteilungen/pressemitteilung/verbrauchertaeuschung-mit-vermeintlicher-klimaneutralitaet-deutsche-umwelthilfe-gewinnt-vor-gericht/ [hereinafter “Deutsche Umwelthilfe Press Release”]; Uitspraken: Dossiernr 2021/00190 [Pronunciations: File 2021/00190], Stichting Reclame Code, https://www.reclamecode.nl/uitspraken/klimaat/vervoer-2021-00190/304997/ (last visited May 5, 2023) [hereinafter “Reclame Fossielvrij v. Shell (I) Decision”]; Uitspraken: Dossiernr 2022/00100-CVB [Pronunciations: File 2022/00100-CVB], Stichting Reclame Code, https://www.reclamecode.nl/uitspraken/shell/vervoer-2022-00100-cvb/365319/ (last visited May 4, 2023) [hereinafter “Reclame Fossielvrij v. Shell (II) Decision”].
[40] See Notre Affaire à tous v. FIFA, Climate Case Chart, http://climatecasechart.com/non-us-case/notre-affaire-a-tous-v-fifa/#:~:text=Summary%3A,Association%20Football%20Federation%20(FIFA) (last visited Nov. 19, 2023); Carbon Market Watch v. FIFA, Climate Case Chart, supra note 27.
[41] See Reclame Fossielvrij v. Shell (I) Decision, supra note 39; Reclame Fossielvrij v. Shell (II) Decision, supra note 39.
[42] See Deutsche Umwelthilfe Press Release, supra note 39.
[43] See Annex A.
[44] See Les Plaintes Internationales Déposées Contre la FIFA Accroissent la Pression Sur la Suisse [International complaints against FIFA increase pressure on Switzerland], Alliance Climatique Suisse [Swiss Climate Alliance] (Dec. 19, 2022), https://alliance-climatique.ch/article/les-plaintes-internationales-deposees-contre-la-fifa-accroissent-la-pression-sur-la-suisse/.
[45] See Int’l Chamber of Commerce, supra note 27.
[46] See, e.g., Carbon Offsets: A Coming Wave of Litigation? Quinn Emanuel Trial Lawyers (Sept. 7, 2022), https://www.quinnemanuel.com/the-firm/publications/client-alert-carbon-offsets-a-coming-wave-of-litigation/; Net Zero Claims in UK Advertising: What Companies Need to Know About the Risk of Greenwashing, Sidley Austin (Mar. 8, 2023), https://www.sidley.com/en/insights/newsupdates/2023/03/net-zero-claims-in-uk-advertising-what-companies-need-to-know; Focus on Greenwashing: The Latest Regulatory Proposals in the EU and the UK, Latham & Watkins (Apr. 6, 2023), https://www.lw.com/admin/upload/SiteAttachments/Focus-on-Greenwashing-The-Latest-Regulatory-Proposals-in-the-EU-and-the-UK.pdf; Climate Litigation Risk – Five Trends to Watch in 2023, Dentons (Jan. 9, 2023), https://www.dentons.com/en/insights/articles/2023/january/9/climate-litigation-risk-five-trends-to-watch-in-2023. Gabriel Brasil & Gregor Pecnik, The Journey to Net Zero: Navigating the carbon Offsets Landscape, Control Risks (Aug. 30, 2022), https://www.controlrisks.com/our-thinking/insights/the-journey-to-net-zero-navigating-the-carbon-offsets-landscape?utm_referrer=https://www.google.com; Niall McLean & Rebecca Morrison, Brodies, The Rise of “Greenwashing” Litigation – the Group Proceedings Trend to Watch in 2023 (Jan. 30, 2023), https://brodies.com/insights/planning-environment-and-climate/the-rise-of-greenwashing-litigation-the-group-proceedings-trend-to-watch-in-2023/.
[47] See Renee Cho, How Buying Stuff Drives Climate Change, Columbia Climate School: State of the Planet (Dec. 16, 2020), https://news.climate.columbia.edu/2020/12/16/buying-stuff-drives-climate-change/.
[48] See Sören Amelang, ‘Climate Neutral’ Products are Counterproductive Greenwashing Bluff – NGO, Clean Energy Wire (Sept. 8, 2022), https://www.cleanenergywire.org/news/climate-neutral-products-are-counterproductive-greenwashing-bluff-ngo.
[49] See id.
[50] See Ban Fossil Fuel Ads, https://banfossilfuelads.org/.
[51] See id.; Laura Clarke, The Standard, Greenwashing is a Creeping Crisis: Time to Take it in Hand (Apr. 19, 2023), https://www.standard.co.uk/comment/comment/greenwashing-problem-crisis-cilmate-change-action-b1073723.html. See also Fossil Fuel Ads Make Us Sick, https://www.stopfossilfuelads.ca/.
[52] For this article, a campaign is defined as a cascading series of actions that build and move power to reach a goal. See Rising Organizers, unpublished 2020 Organizing Fellowship training materials (on file with author).
[53] See Environmental Groups Sue TotalEnergies for Misleading the Public Over Net Zero, ClientEarth https://www.clientearth.org/latest/press-office/environmental-groups-sue-totalenergies-for-misleading-the-public-over-net-zero/ (last visited Nov. 19, 2023); Ban Fossil Fuel Ads, supra note 50.
[54] See Press Release, Deutsche Umwelthilfe, Immer dreistere Verbrauchertäuschung durch das Versprechen angeblicher Klimaneutralität: Deutsche Umwelthilfe geht gegen sieben weitere Unternehmen vor [Increasingly brazen consumer deception through the promise of alleged climate neutrality: Environmental Action Germany is taking action against seven more companies] (Jan. 17, 2023), https://www.duh.de/presse/pressemitteilungen/pressemitteilung/immer-dreistere-verbrauchertaeuschung-durch-das-versprechen-angeblicher-klimaneutralitaet-deutsche-u/.
[55]See Werbeversprechen Klimaneutralität: Wie sich Unternehmen ein grünes Image kaufen [Advertising Promise of Climate Neutrality: How Companies Buy a Green Image], Deutsche Umwelthilfe https://www.duh.de/themen/verbraucher/verbrauchertaeuschung/klimaneutral/ (last visited Nov. 15, 2023).
[56] See Greenpeace Canada (@GreenpeaceCA), Twitter (Jul. 31, 2022, 1:47 PM), https://twitter.com/GreenpeaceCA/status/1553844699558969346. See also Fossil Fuel Ads Make Us Sick, supra note 51.
[57] In bringing the fourth complaint against Shell for successive carbon-neutral ads, Andrew Simms from the U.K. NGO New Weather Institute said, “[w]e simply do not have the time to chase every misleading advertisement from fossil multinationals in every country.” Klachten in Nederland en VK over Misleidende Shell-marketing voor ‘CO2-gecompenseerd Gas’ [Complaints in the Netherlands and UK about Misleading Shell Marketing for ‘CO2-compensated gas’], Reclame Fossielvrij (Apr. 11, 2023), https://verbiedfossielereclame.nl/klachten-in-nederland-en-vk-over-misleidende-shell-marketing-voor-co2-gecompenseerd-gas/.
[58] See Rosie Frost, France Becomes First European Country to Ban Fossil Fuel Ads – But Does the New Law Go Far Enough?, Euronews (Aug. 24, 2022), https://www.euronews.com/green/2022/08/24/france-becomes-first-european-country-to-ban-fossil-fuel-ads-but-does-the-new-law-go-far-e.
[59] See Annex A.
[60] See Int’l Council for Ad Self-Regul., supra note 26 at 11.
[61] See Annex A.
[62] See id.
[63] See Deutsche Umwelthilfe Press Release, supra note 39.
[64] See Annex A.
[65] See Milieudefensie et al. v. Royal Dutch Shell plc., Climate Case Chart http://climatecasechart.com/non-us-case/milieudefensie-et-al-v-royal-dutch-shell-plc/ (last visited May 3, 2023).
[66] See Notre Affaire à Tous and Others v. Total, Climate Case Chart, http://climatecasechart.com/non-us-case/notre-affaire-a-tous-and-others-v-total/ (last visited May 3, 2023).
[67] See Deutsche Umwelthilfe (DUH) v. Bayerische Motoren Werke AG (BMW), Climate Case Chart, http://climatecasechart.com/non-us-case/deutsche-umwelthilfe-duh-v-bmw/ (last visited May 3, 2023).
[68] See Kaiser, et al. v. Volkswagen AG, Climate Case Chart, http://climatecasechart.com/non-us-case/kaiser-et-al-v-volkswagen-ag/ (last visited May 3, 2023).
[69] See Deutsche Umwelthilfe (DUH) v. Mercedes-Benz AG, Climate Case Chart, http://climatecasechart.com/non-us-case/deutsche-umwelthilfe-duh-v-mercedes-benz-ag /(last visited May 3, 2023).
[70] Id.
[71] See Dina Ni, Greenpeace Canada Files Competition Bureau Complaint Against Misleading Shell Advertising, Greenpeace (Nov. 10, 2021), https://www.greenpeace.org/canada/en/press-release/50740/driving-carbon-neutral-with-fossil-fuels-greenpeace-canada-files-competition-bureau-complaint-against-misleading-shell-advertising/.
[72] See Carbon Offset Market Could Reach $1 Trillion With Right Rules, BloombergNEF (Jan. 23, 2023), https://about.bnef.com/blog/carbon-offset-market-could-reach-1-trillion-with-right-rules/.
[73] See Paul Sandle, EasyJet to Scrap Carbon Offsetting to Focus on Cutting Emissions, Reuters (Sept. 26, 2022), https://www.reuters.com/business/aerospace-defense/easyjet-shifts-focus-cut-own-emissions-rather-than-off-setting-2022-09-26/.
[74] See Carbon Offset Market Could Reach $1 Trillion With Right Rules, supra note 73. Regarding how carbon credit units are measured, see VCS Program Details, Verra, https://verra.org/programs/verified-carbon-standard/vcs-program-details/.
[75] See Anders Porsborg-Smith et al., supra note 5; Where the Carbon Offset Market Is Poised to Surge, Morgan Stanley (Apr. 11, 2023), https://www.morganstanley.com/ideas/carbon-offset-market-growth.
[76] CO2-Emissionen von Wärme werden bei TotalEnergies CO2-kompensiert [CO2 Emissions from Heat Are CO2 Compensated at TotalEnergies], TotalEnergies, https://heizoel.totalenergies.de/rund-um-heizoel/aktuelles-tipps/sonstiges-aktuelles/twk-co2-kompensiert-200720/ (last visited Nov. 19, 2023).
[77] See Total Chooses to Offset Carbon by Building Biodigesters, TotalEnergies, https://totalenergies.com/news/total-chooses-offset-carbon-building-biodigesters.
[78] See Reclame Fossielvrij v. Shell (I) Decision, supra note 39.
[79] See id.
[80] See Klachten in Nederland en VK over Misleidende Shell-marketing voor ‘CO2-gecompenseerd Gas’, supra note 57. Greenpeace Canada’s complaint at the Competition Bureau of Canada concerns this ad, but the Bureau has not yet publicly responded to the complaint; Annex A.
[81] See Ook aangepaste CO2-slogan Shell volgens Reclame Code Commissie misleidend [Shell’s adjusted CO2 slogan is also misleading according to the Advertising Code Committee], Nu (June 30, 2022), https://www.nu.nl/economie/6209405/ook-aangepaste-co2-slogan-shell-volgens-reclame-code-commissie-misleidend.html#nujij.
[82] See Reclame Fossielvrij v. Shell (II) Decision, supra note 39.
[83] See Klachten in Nederland en VK over Misleidende Shell-marketing voor ‘CO2-gecompenseerd Gas’, supra note 57.
[84] See id.
[85] See, e.g., Corporations, Amnesty International, https://www.amnesty.org/en/what-we-do/corporate-accountability/ (last visited May 4, 2023).
[86] See id. See also David Takacs, Forest Carbon Projects and International Law: A Deep Equity Legal Analysis, 22 Georgetown Int’l Env’l L. Rev. 521, 528 (2010).
[87] See Ed Davey, In Peru, Kichwa Tribe Wants Compensation for Carbon Credits, AP News (Dec. 22, 2022), https://apnews.com/article/business-peru-forests-climate-and-environment-2c6cddb1707a12c31c14d9a226699068; The Kichwa People Reject the Cordillera Azul National Park’s Exclusionary Conservation and Opaque Carbon Trading, Forest Peoples Programme (June 9, 2022), https://www.forestpeoples.org/en/news-article/2022/Kichwa-peoples-statement-stop-carbon-dealing-our-territories [hereinafter “Forest Peoples Programme Article of June 9, 2022”]; Press Release, Forest Peoples Programme, Indigenous Organisations Ask UN Body to Urge Peruvian Government to Stop Exclusionary Conservation in Cordillera Azul National Park (Aug. 10, 2022), https://www.forestpeoples.org/en/peru/indigenous-organisations-ask-UN-halt-exclusionary-conservation-pncaz/; Press Release, Forest Peoples Programme, Indigenous Kichwa Community Take Peruvian State and National Park to Court (July 1, 2021), https://www.forestpeoples.org/en/press-release/kichwa-take-Peru-state-PNAZ-court [hereinafter “Forest Peoples Programme Press Release of July 1, 2021”].
[88] See Davey, supra note 88; Letter from Reogildo Amasifuen Sangama, President, CEPKA, et al., to Secretariat, Committee on the Elimination of Racial Discrimination re: Early Warning and Urgent Action Procedures, ¶11 (Jul. 15, 2022), https://www.forestpeoples.org/sites/default/files/documents/CERD%20urgent%20action%20request%20Kichwa%20PNCAZ%2015.7.22%20EN.pdf [hereinafter “CERD Letter”].
[89] See Forest Peoples Programme Press Release of July 1, 2021, supra note 88.
[90] See Cordillera Azul REDD+ Project, CIMA, https://www.cima.org.pe/en/cordillera-azul-national-park/cordillera-azul-redd-project (last visited Nov. 19, 2023). REDD+ is a framework under the legal structure of the United Nations Framework Convention on Climate Change whereby developing countries can “receive results-based payments for emission reductions when they reduce deforestation.” What is REDD+?, United Nations Climate Change, https://unfccc.int/topics/land-use/workstreams/redd/what-is-redd?gclid=EAIaIQobChMI86_JhZaMggMVchCtBh2IlAVfEAAYASAAEgISIPD_BwE (last visited Nov. 19, 2023).
[91] See id.
[92] See Forest Peoples Programme Article of June 9, 2022, supra note 88.
[93] See id.
[94] See id.
[95] See Forest Peoples Programme Press Release of July 1, 2021, supra note 88.
[96] See id.
[97] See CERD Letter.
[98] See id.
[99] See UN Questions Peruvian State Over Violations of Indigenous Rights in Cordillera Azul National Park and REDD+ Project, Forest Peoples Programme (May 4, 2023), https://www.forestpeoples.org/en/news/2023/Peru-un-cerd-questions-state-indigenous-rights-pncaz-REDD.
[100] See Forest Peoples Programme Article of June 9, 2022, supra note 88.
[101] Six of such lawsuits were brought against Shell in the United Kingdom, Netherlands, Canada, and Germany. Two of such lawsuits were brought against Total in France and Germany. See Annex A.
[102] See What are National Contact Points for RBC?, OECD, https://mneguidelines.oecd.org/ncps/ (last visited May 4, 2023). The OECD is an intergovernmental organization established in 1961 which currently has 38 industrialized and emerging-economy country member states. See About the OECD, OECD Watch, https://www.oecdwatch.org/oecd-ncps/about-the-oecd/ (last visited Nov. 13, 2023); About the OECD, U.S. Mission to the Organization For Economic Cooperation & Development, https://usoecd.usmission.gov/mission/oecd/about-the-oecd/ (last visited Nov. 13, 2023).
[103] See Kari Otteburn & Axel Marx, Seeking remedies for corporate human rights abuses: what is the contribution of OECD National Contact Points?, in Research Handbook on Global Governance, Business and Human Rights 229, 230 (Axel Marx et al. eds., Edward Elgar 2022).
[104] See Fanny Pulver, The Implementation of Free, Prior and Informed Consent and Indigenous Peoples’ Rights under the OECD Guidelines for Multinational Enterprises 220 (2022) (Ph.D. Dissertation, University of Zurich), https://eizpublishing.ch/wp-content/uploads/2022/08/FPIC-and-Indigenous-Peoples-Rights-under-the-OECD-Guidelines-for-MNEs-Digital-V1_02-20220811.pdf.
[105] See generally Caroline Rees & David Vermijs, Mapping Grievance Mechanisms in the Business and Human Rights Arena (2008). The 2011 amendments to the Guidelines created a dedicated human rights chapter and expanded their approach to supply chain due diligence. Otteburn & Marx, supra note 104 at 230, 232-33.
[106] See Pulver, supra note 105 at 225.
[107] See id. at 232.
[108] See Otteburn & Marx, supra note 104 at 248.
[109] See id. at 224.
[110] See id.
[111] See Pulver, supra note 105 at 231.
[112] See Otteburn & Marx, supra note 104 at 246.
[113] See generally OECD Guidelines for Multinational Enterprises, Guide for National Contact Points on Confidentiality and Campaigning when Handling Specific Instances (2019) [hereinafter “OECD Guide”].
[114] See id. at 10.
[115] See id. at 11.
[116] See id.
[117] See id. at 6.
[118] See id.
[119] See id.
[120] See Otteburn & Marx, supra note 104 at 236.
[121] See id. at 250–51.
[122] This includes the initial, final, and follow up statements. Pulver, supra note 105 at 232.
[123] See Loi 2017-399 du 27 mars 2017 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre [Law 2017-399 of March 27, 2017 on the Duty of Care of Parent Companies and on their Affiliated Entities], Journal Officiel de la République Française [J.O.] [Official Gazette of France], Mar. 28, 2017, art. 2. Other jurisdictions have adopted due diligence laws, but they do not allow for private actors to sue corporations for violating these laws. This includes Norway, which adopted a due diligence law that does not allow for citizen suits. See Lov om virksomheters åpenhet og arbeid med grunnleggende menneskerettigheter og anstendige arbeidsforhold (åpenhetsloven) [Act relating to enterprises’ transparency and work on fundamental human rights and decent working conditions (Transparency Act)] §§8-11 (NL/law/2021-06-18-99) (Nor.); see also Markus Krajewski et al., Mandatory Human Rights Due Diligence in Germany and Norway: Stepping, or Striding, in the Same Direction? 6 Bus. & Hum. Rts. J. 550, 557 (2021). Germany adopted its Law on Supply Chain at about the same time Norway did, but it also states that corporations cannot be held civilly liable for violating the law. See Gesetz über die unternehmerischen Sorgfaltspflichten in Lieferketten [LkSG] [Act on Corporate Due Diligence Obligations in Supply Chains], Jul. 16, 2021, Bundesanzeiger [BAnz] at 2,962, §3, paragraph 3 (Ger.); Jenny Gesley, Germany: New Law Obligates Companies to Establish Due Diligence Procedures in Global Supply Chains to Safeguard Human Rights and the Environment, Library of Congress (Aug. 7, 2021), https://www.loc.gov/item/global-legal-monitor/2021-08-17/germany-new-law-obligates-companies-to-establish-due-diligence-procedures-in-global-supply-chains-to-safeguard-human-rights-and-the-environment/.
[124] See Republic of the Congo: The Planting of More than One Million Trees Begins on the Batéké Plateaux, TotalEnergies (Nov. 11, 2021), https://totalenergies.com/media/news/press-releases/republic-congo-planting-more-one-million-trees-begins-bateke-plateaux.
[125] See id.
[126] See Sam Quashie-Idun & Emma Howard, ‘How are we going to live?’ Families dispossessed of their land to make way for Total’s Congo offsetting project, Unearthed (Dec. 12, 2022), https://unearthed.greenpeace.org/2022/12/12/total-congo-offsetting-land-dispossessed/.
[127] See Deutsche Umwelthilfe Press Release, supra note 39; Greenpeace France and Others v. TotalEnergies SE and TotalEnergies Electricité et Gaz France, Climate Case Chart, http://climatecasechart.com/non-us-case/greenpeace-france-and-others-v-totalenergies-se-and-totalenergies-electricite-et-gaz-france/ (last visited Nov. 18, 2023).
[128] See Friends of the Earth et al. v. Total, Climate Case Chart, http://climatecasechart.com/non-us-case/friends-of-the-earth-et-al-v-total/; Climate Case Chart, Notre Affaire à Tous and Others v. Total, http://climatecasechart.com/non-us-case/notre-affaire-a-tous-and-others-v-total/.
[129] See Wind park in Mexico: French firm disregards indigenous rights, European Center for Constitutional and Human Rights, https://www.ecchr.eu/en/case/wind-park-in-mexico-french-firm-disregards-indigenous-rights/ (last visited May 4, 2023).
[130] See id.
[131] See Front Line Defenders, Global Analysis 2022 14 (2022), available for download at https://www.frontlinedefenders.org/en/resource-publication/global-analysis-2022.
[132] See id.
[133] See id. at 15.
