If you’re not as green as you say, it’ll cost you some green.

A new report from the London School of Economics shows that climate litigation is still on the rise, although it noted that the number of cases filed each year might be starting to stabilize. With new trends emerging in what kinds of cases achieve success for plaintiffs, however, that number could easily tick up again.

A Painful Transition

Catherine Higham, a policy fellow at LSE and one of the report’s authors, told The Daily Upside that “greenwashing” cases — where companies are accused of misleading the public about their green commitments — are an area in which plaintiffs enjoy high success rates. “70% of those cases that allege misleading statements or inaccuracies are found in favor of the plaintiffs,” Higham said. The majority of those cases are brought by consumers, Higham said, but a handful have come from investors. 

Another legal area that saw significant growth over the past year, Higham said, was so-called transition risk cases. These are cases where companies are accused of bungling the transition to net-zero:

• Higham highlighted a case in which Polish energy company Enea sued some of its former directors for leading an investment in a new coal plant project that was ultimately abandoned because it couldn’t find financing, and was eventually replaced with a liquid gas project.
• “Fundamentally what we’re looking at is these directors deciding to keep going with investments in a fossil coal project when it looked clear that actually the writing’s on the wall for that, and would have made more sense to shift to a less high-emitting version of the project,” Higham said.

Higham said she expects to see transition risk cases become more prevalent “as we see more stranded assets and more of these kinds of challenges.” With the International Energy Agency predicting peak oil, coal, and gas demand by 2030, investing in new fossil fuel projects could carry mounting legal risk.

Americans Love Suing their Government: The report also found that in the US, where the majority of climate change cases are lodged, there is a different approach than in the rest of the world. While 40% of non-US cases are filed against companies, within the US 85% are filed against the government. “That doesn’t mean there aren’t lots of corporate cases in the US — there are just even more cases against the government,” Higham said. She added that the US is home to the most “polluter pays” cases, many of which have not yet reached the courts. “If we were to see a success in one of those cases, we would definitely see many more plaintiffs getting involved,” she said. Send in the lawyers.

The Northern cod may or may not be back.

Last week, the Canadian government lifted a 32-year moratorium on the commercial fishing of cod in the country’s easternmost province, Newfoundland and Labrador. It sounds historic, but environmentalists and political observers found the details a little fishy.

School of Codonomics

It was 1992. Northern cod populations had fallen to 1% of historical levels after decades of overfishing by local and international trawlers. On July 2, the day after Canada Day, the federal government shut down a then-$700 million industry accounting for 40% of the fish caught in the province. As many as 30,000 of the 570,000 people in the province lost their jobs in the largest mass layoff in Canadian history.

Emotions ran so high on the day of the announcement that irate fishermen tried to break into the government’s press conference, which security barricaded with chairs. Growth in the shellfish and offshore oil industries helped offset the blow in the ensuing years, but Newfoundland’s population has since declined about 60,000 to 510,000 as low wages have driven people to richer regions. The lifting of the moratorium, meanwhile, has raised environmentalist eyebrows:

• The total allowable catch (TAC) for 2024 is 18,000 tonnes — a modest increase from the 13,000 tonnes the government already allowed under a so-called stewardship fishery. The 1992 TAC? 120,000 tonnes. While government scientists say Northern cod populations have climbed to the “cautious” from the “critical” zone, they haven’t grown since 2016, and remain at historic lows.
• “Prematurely celebrating the recovery of Northern cod and opening the commercial fishery puts the stock at significant risk and undermines efforts to rebuild healthy oceans and coastal communities,” said Rebecca Schijns, a fishery scientist at Oceana Canada. George Rose, a cod scientist who previously worked for the government, told Newfoundland news outlet The Independent that the decision “frames success as crawling above the threshold of disaster.”

Fish Politics: The press release announcing the end of the moratorium included statements from six Newfoundland and Labrador members of parliament, all of whom happen to be members of the governing Liberal Party — it’s trailing badly in the polls and must face an election before October 2025. One of them told the CBC the announcement was “definitely not” political. Definitely, eh?

Can the industry that hooked us on Camels, Pall Malls, and Lucky Strikes change its stripes? 

On Sunday, The Wall Street Journal reported that Reynolds American is launching a new line of nicotine-free flavored vapes. It’s just the industry’s latest attempt to undergo a conscious uncoupling from the addictive chemical that keeps consumers coming back in the first place.

Sensa Sensibility

Reynolds American’s Vuse brand of nicotine e-cigarettes currently leads the industry by market share. But that industry has now long sat in legal limbo. The FDA requires e-cigarette makers to prove that their products are less harmful than regular cigarettes, a mandate that has bedeviled rival Juul. And last October, the FDA ordered that Reynolds American remove all but its unflavored tobacco Vuse pods from the market; the agency argued the risk of attracting young people via menthol and other flavored pods outweighed the benefits of helping adults switch from regular cigarettes.

Meanwhile, illegal flavored Chinese nicotine pods have flooded the US market quicker than regulators can halt them. By launching its flavored nicotine-free brand, dubbed Sensa, Reynolds American hopes to kill a few birds with one stone:

• It remains unclear whether nicotine-free e-cigarettes are subject to similar federal oversight as those containing nicotine. For now, at least, Reynolds American tells the WSJ it did not seek regulatory clearance for the product.
• Six different flavors of Sensa vapes will hit shelves on Monday, at a suggested retail price of $19.99 — slightly higher than most competitors in the disposable e-cigarette space. Reynolds American says it will require retailers to sell the vapes only to customers who are at least 21, though it remains unclear if the law requires such a threshold.

Zynside Out: Philip Morris is also wading through a new era of oversight. Earlier this month, the company halted all online sales of its ultra-popular Zyn oral nicotine pouches to comply with a subpoena from the Washington DC attorney general. Flavored nicotine products are illegal in the capital, but were allegedly still available to residents via the online store. Maybe the arduous process of actually having to leave the house will help some Zyn users kick the habit.