Australian oil & gas producer Santos is facing climate change litigation.  The Australasian Centre for Corporate Responsibility (ACCR) is alleging the company engaged in misleading or deceptive conduct when its 2020 annual report claimed natural gas provided clean energy and that the company had a plan to reach zero emissions by 2040.  Santos' plan relies on carbon capture and storage technology, which ACCR alleges is unproven, expensive and unreliable.

How can companies communicate their net zero commitments without running the same risk?  It's a good question, and one that we are going to see debated in the courts for some time to come. Companies need to approach preparing their public statements and reports with this increased scrutiny in mind.  Spending time up front to ensure that climate-related public statements are defensible and factually supported can make a difference later, if such statements are challenged.

In a recent Dutch case, Milieudefensie et al. v. Royal Dutch Shell, The Hague District Court found Royal Dutch Shell owed a duty of care to prevent injury resulting from the carbon emissions based in part on statement and commitments made by Shell in its own public statements and reports.

See our recent Fasken bulletin on the Shell case and the rise in climate change litigation for more information.