Global trends in biodiversity litigation

International scientific research publications and reports, such as those from Cambridge and the Grantham Institute, identify biodiversity litigation as a new evolving challenge. Biodiversity litigation is considered a specific type of climate change litigation. While traditional climate change litigation primarily focuses on reducing greenhouse gas emissions and proving the resulting global warming, biodiversity litigation deals with the conservation and sustainable use of genetic resources, species, ecosystems, and their interactions. Although still in its early stages, with around 50 registered cases compared to 2000 climate change cases, biodiversity litigation is expected to benefit from lessons learned in traditional climate change litigation.

ESG litigation, including biodiversity litigation, has specific dynamics and impacts on companies' reputation, consumer preference, and stock value. Generally, ESG related topics are also trialed through the media, which adds weight to its impact. ESG Litigation mainly evolved in the context of climate change litigation, but ESG litigation includes more than only climate change litigation. Certain categories of ESG litigation relevant to biodiversity are injunctions, greenwashing, shareholder actions, investment/finance, damages claims, and (real estate) project litigation.

Recent biodiversity litigation cases have had significant implications for companies. For example, the Supreme Court case of MK Ranjtsinh sought to protect the Great Indian Bustard from overhead power lines. In another case, the district court of Maryland, USA, in August 2024, ordered a new opinion on the biodiversity impact of a new oil and gas project in the Gulf of Mexico. The court required the National Marine Fisheries Service to reassess the effects of offshore fossil fuel development on endangered whales, rare turtles, and vital Gulf of Mexico ecosystems.

The global legal framework for biodiversity litigation is based on the United Nations Convention on Biological Diversity (1992, Rio de Janeiro), which promotes international technical and scientific cooperation in biodiversity conservation and sustainable use. The Kunming-Montreal framework, often referred to as the 'Paris Climate Agreement of biodiversity,' sets an ambitious pathway to achieve a world living in harmony with nature by 2050. However, the targets are vague and need clarification at future COPs.

For companies, the UN Guiding Principles on Human Rights and Business and the OECD Guidelines on Enterprises are relevant. These soft laws require companies to conduct due diligence to prevent negative impacts on biodiversity through their business activities and to take reasonable efforts to avoid indirect negative impacts through their business partners. Transparency requirements, such as the Global Reporting Initiative, are also being established.