ESG Weekly Update – February 14, 2024

14 February 2024

EU: European Council Postpones the Vote on CSDDD

On February 9, 2024, the Belgian Presidency of the European Council (the “Council”) removed the vote on the Corporate Sustainability Due Diligence Directive (the “CSDDD”) draft from the Council’s agenda.

The decision was made following news that Germany and Italy intend to abstain from voting, making it unlikely the required qualified majority would have been met. A new date has not yet been announced.

Press Release
Debevoise CSDDD Update
Debevoise CSDDD In Depth

U.S.: New Hampshire Bill Criminalizing ESG Investing Fails to Garner Support

On February 8, 2024, the New Hampshire State House Committee on Executive Departments and Administration unanimously rejected a bill proposed by state Republican representatives (more on this here) that would have criminalized ESG investing by state funds by making it a felony punishable by up to 20 years in prison. The Committee’s unanimous recommendation was accepted by the full House.

New Hampshire House Bill 1267

France: Paris Court of Appeal Establishes New Chamber for Climate Litigation

On January 15, 2024, the Paris Court of Appeal announced a new chamber under the economic section with exclusive jurisdiction over climate litigation.

The chamber will preside over disputes, including appeals, related to ecological responsibility and the duty of vigilance introduced by the 2017 Vigilance Law (more on this here). The Vigilance Law introduced human rights and due diligence obligations for large companies headquartered in France.

In December 2023, the Paris Judicial Court handed down the first judgment involving the duty of vigilance in a case against La Poste, a French postal services company. The court held that La Poste’s existing procedures offered insufficient protection for employees and required La Poste to confer with its employees to adopt a new evaluation plan for subcontractors to minimize the risk of using undocumented workers.

Press Release (in French)
La Poste Judgment (in French)

New Zealand: Supreme Court Permits Climate Claims against Corporates to Go to Trial

On February 7, 2024, the Supreme Court of New Zealand (also known as Te Kōti Mana Nui o Aotearoa), in the case of Smith v Fonterra & Ors, unanimously upheld a private citizen’s right to bring claims against seven corporate defendants on climate issues.

In particular, the court allowed Mr. Smith’s claims in negligence, public nuisance and a proposed “climate system damage” tort to proceed, overturning the Court of Appeal’s earlier decision to strike all outstanding claims. Mr. Smith is the climate change spokesman for Iwi Chairs Forum representing 71 iwi tribes. He sued seven companies for their involvement and contribution to high-emitting industries. Mr. Smith seeks injunctions to compel the defendants to reduce or cease contributing to emissions and a declaration that the defendants’ behavior is unlawful.

On public nuisance, the court acknowledged that: (i) the rights pleaded in the case – namely the rights to public health, public safety, public comfort, public convenience and public peace – may provide the foundation for a public nuisance pleading; (ii) public nuisance does not require the act complained of to be unlawful; (iii) the claim is tenable due to the allegation of damage to coastal land in which the claimant has a legal interest; and (iv) while causation may be difficult to prove, a defendant may be responsible for its contribution to a common interference with public rights. The court further allowed the claims in negligence and the “climate system damage” tort to proceed.

The case will return to the High Court for case management before a trial date is set.

Press Release

U.S.: DeSantis Says Florida Will Enforce Anti-ESG Laws, More Legislation Pending

On January 31, 2024, Florida Governor Ron DeSantis announced that Florida intends to bring enforcement actions for violations of Florida’s anti-ESG legislation. In a video posted on X, Governor DeSantis mentioned that the state will work to ensure compliance with requirements under state legislation, including attestations from financial institutions that they don’t engage in ESG activities or use social credit scores.

Last May, Florida passed HB 3 restricting ESG activities of financial institutions in the state. HB 3 prohibits consideration of nonpecuniary factors in investment of public funds and restricts financial institutions from limiting services based on ESG metrics.

(We track similar developments in the United States regarding ESG legislation and federal and state-level investigations into ESG practices and initiatives in the Debevoise State-Level ESG Investment Developments: Tracker and ESG Investigations Tracker.)


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