Issue - August 18, 2026

Good morning. It’s Tuesday, August 18, and this week’s ESG Litigation Weekly covers South Africa’s Constitutional Court setting aside a Shell-linked offshore exploration right along the Wild Coast, the dismissal of the U.S. EEOC’s subpoena-enforcement case against Nike after the company complied with the agency’s subpoena, an Australian court’s A$7.3 million penalty over misleading ESG fund statements and related governance failures, and more.

South Africa’s Top Court Sets Aside Shell-Linked Wild Coast Exploration Right
South Africa’s Constitutional Court set aside the Supreme Court of Appeal’s remedy that had preserved Impact Africa’s offshore exploration right, in which Shell held a 50% participating interest, pending a further renewal process. Restoring the effect of the High Court’s order, the majority held that later consultation could not adequately cure defects in the original grant. The underlying findings included inadequate community consultation and failures to consider climate change, coastal-management requirements, and the precautionary principle. The Court also found that remitting the decade-old application would not be just and equitable given changed circumstances and Impact Africa’s contribution to the unlawful process. The exploration right and its renewals therefore remain set aside.
🔗 Read more → Constitutional Court of South Africa (Media Summary, Court Judgment), Greenpeace Africa (Press Release)

EEOC Subpoena Enforcement Case Against Nike Dismissed After Compliance
A Missouri federal court dismissed without prejudice the Equal Employment Opportunity Commission’s (EEOC) subpoena-enforcement action against Nike after the agency informed the court that Nike had complied with Administrative Subpoena No. SL-25-08. The subpoena sought information for an EEOC investigation into alleged race discrimination involving white employees, job applicants, and training-program participants, including matters involving layoffs and certain mentoring and career-development programs. The dismissal ends the court proceeding over enforcement of the subpoena and does not adjudicate the underlying discrimination allegations.
🔗 Read more → CourtListener (Court Order, Memorandum and Order, Case Docket), EEOC (Press Release)

Fifth Circuit Vacates Approval for Texas GulfLink Oil Export Project
The Fifth Circuit vacated the Maritime Administration’s approval of Texas GulfLink’s proposed offshore oil export terminal and remanded the matter to the agency. Better Brazoria challenged the approval under the Deepwater Port Act, arguing that the project’s designated application area improperly excluded its proposed pipeline. The court agreed, holding that a deepwater port’s application area must encompass offshore pipelines that form part of the port. Properly drawn, Texas GulfLink’s application area would intersect the planned pipeline for the separately approved Sea Port Oil Terminal project, contrary to the Act’s requirement that only one deepwater port be approved within an application area.
🔗 Read more → U.S. Court of Appeals for the Fifth Circuit (Court Opinion), Earthjustice (Press Release)

Federal Court Rejects ExxonMobil’s Preemption Challenge to California Climate Disclosure Law
A California federal court dismissed ExxonMobil’s as-applied claim that SB 261 is preempted by the National Securities Markets Improvement Act. SB 261 requires covered companies to publish biennial reports on climate-related financial risks and measures taken to address them, with penalties of up to $50,000 for noncompliance. The court held that SB 261 neither alters SEC filings nor conditions companies’ ability to offer securities in California. ExxonMobil’s Supremacy Clause claim was dismissed without leave to amend. Its separate First Amendment challenges were not decided in this order.
🔗 Read more → Court Order via Courthouse News Service

Colorado Federal Court Rejects Challenge to Denver Building Electrification Rules
A Colorado federal court dismissed with prejudice an industry challenge to Denver rules restricting certain natural gas appliances in commercial buildings. Trade associations argued that the 2023 standards were preempted by the Energy Policy and Conservation Act (EPCA) because they regulate covered appliances’ energy use. The court disagreed, holding that EPCA’s “energy use” refers to a standardized measure determined through federal test procedures before products reach consumers and that Denver’s standards do not regulate energy use in that sense. The ruling resolved the plaintiffs’ remaining challenge after earlier claims involving Denver’s 2025 and 2027 standards had been dismissed as unripe.
🔗 Read more → CourtListener (Court Order), Sierra Club (Press Release)

Australia Sets Minimum Standards for On-Demand Delivery Gig Workers
Australia’s Fair Work Commission introduced minimum standards for employee-like workers providing on-demand food, beverage, and grocery deliveries through digital platforms, effective August 17. The interim order establishes an earnings floor based on engaged time, with hourly rates ranging from A$31.30 for bicycle and e-bike workers to A$32.00 for certain motor-vehicle users through the end of 2026. It also requires platform operators to provide personal accident insurance at their expense and establishes standards covering consultation, records, dispute resolution, information sharing, and workplace representation. The Commission said the framework is interim and will be reviewed as related minimum-standard proceedings develop.
🔗 Read more → Fair Work Commission (Decision, Minimum Standards Order, Fact Sheet)

Germany Proposes Extending National Carbon Price Corridor Through 2027
Germany’s federal government proposed extending the national fuel emissions trading price corridor through 2027, maintaining the €55 to €65 per tonne range that applies in 2026. The draft amendment to the Fuel Emissions Trading Act follows the one-year postponement of the EU ETS2 surrender phase to 2028 and is intended to provide businesses with greater planning certainty during the transition. It would also adjust 2027 auction rules, including limiting bids per compliance account to 20% of the volume offered at each auction, and limit certificates assigned to 2026 and 2027 to their respective calendar years while allowing them to cover emissions from that year or earlier years. The proposal requires legislative approval.
🔗 Read more → German Federal Ministry for the Environment (Draft Bill)

Swiss Federal Council Recommends Rejecting Sustainable Finance Initiative
Switzerland’s Federal Council recommended that Parliament reject the popular initiative “For a sustainable and future-oriented Swiss financial centre” without a direct or indirect counter-proposal. The initiative would constitutionally require Swiss financial market participants to align environmentally impactful overseas activities with international climate and biodiversity goals and would prohibit certain financing and insurance services linked to new or expanded fossil fuel extraction. The Federal Council said existing climate legislation, disclosure requirements, and ongoing work on financial-sector transition plans already address the initiative’s core objectives, while the proposed bans and new supervisory mechanisms could create implementation challenges, costs, and limited effectiveness. The government will prepare its formal dispatch by April 16, 2027.
🔗 Read more → Swiss Federal Council (Press Release)

EU PPWR Begins Applying
The EU’s Packaging and Packaging Waste Regulation (PPWR) began generally applying on August 12, introducing harmonized requirements covering the packaging life cycle and replacing most provisions of the previous Packaging and Packaging Waste Directive. The rules apply to packaging regardless of material or origin and address manufacturing, composition, reuse, recyclability, and waste management. A key requirement now in effect restricts PFAS above specified thresholds in food-contact packaging. Other measures are phased in, including harmonized packaging labels from 2028 and requirements on recyclability, minimum recycled plastic content, reuse targets, packaging minimization, and certain single-use formats from 2030.
🔗 Read more → EUR-Lex (Regulation (EU) 2025/40), European Commission (Packaging Waste)

SEC Staff Ends Responses to Shareholder Proposal No-Action Requests
The U.S. Securities and Exchange Commission’s (SEC) Division of Corporation Finance announced that it will stop responding to all Rule 14a-8 no-action requests concerning exclusions of shareholder proposals, effective immediately unless and until it announces otherwise. The change expands a 2025–2026 proxy-season policy under which staff had already limited substantive responses to most exclusion requests. Companies must still notify the SEC under Rule 14a-8(j) when they intend to omit a proposal, but staff will no longer issue letters stating whether it would object. The Division of Investment Management will take a substantially similar approach for investment companies.
🔗 Read more → U.S. SEC (Statement)

Over 4 million people have had the same lightbulb moment.

Morning Brew is a free daily newsletter that breaks down what's happening in business, finance, and tech — clearly, quickly, and with enough personality to make it the best email in your inbox.

No yelling. No filler. Just the news, finally making sense.

Try it for free

Australian Court Imposes A$7.3 Million Penalty in ESG Fund Case
The Supreme Court of New South Wales ordered Fiducian Investment Management Services Limited (FIMS) to pay A$7.3 million after finding that statements in product disclosure statements for its Diversified Social Aspirations Fund were liable to mislead the public and that FIMS breached its duty of care and diligence as responsible entity. FIMS admitted the contraventions. The disclosures described environmentally and socially responsible investment objectives and ongoing monitoring, while underlying investments included companies deriving substantial revenue from fossil fuels. The court also found failures to adequately monitor holdings, review underlying investment strategies, amend the disclosures, or change investments to align with the fund’s stated ESG objectives.
🔗 Read more → Australian Securities and Investments Commission (Press Release, Court Judgment)

German Court Finds Netto Yogurt Environmental Claim Misleading
According to Deutsche Umwelthilfe (DUH), the Regional Court of Amberg held that Netto Marken-Discount used misleading environmental advertising for a yogurt marketed with the claim that cows received “good feed from environmentally friendly cultivation.” DUH reported that the court found the wording conveyed an expectation that feed production met heightened environmental standards involving cultivation methods, pesticides, fertilizers, irrigation, and regional processing. Netto’s explanation indicated that the feed was non-GMO and predominantly produced on its own land. The court found those characteristics insufficient to substantiate the broader environmental claim, noting that avoiding genetically modified feed largely reflects existing legal requirements.
🔗 Read more → DUH (Press Release)

Greenhushing Can Create Its Own Sustainability Risks
A Forbes analysis argues that companies responding to greenwashing concerns by reducing sustainability communications may create a different set of business and legal risks. “Greenhushing,” or intentionally under-communicating sustainability efforts, can contribute to lost commercial opportunities, constrained access to capital, regulatory exposure, and weaker stakeholder trust. The article cites evidence that many companies continue or increase sustainability investments while communicating less about them. It recommends avoiding both overstated claims and blanket silence by communicating measurable, substantiated information and maintaining disclosure systems capable of meeting regulatory, investor, and commercial requirements across jurisdictions.
🔗 Read more → Forbes (Greenhushing: Why Corporate Silence on Sustainability Is A Real Risk)

Catch up on previous editions → ESGLitigation.com

Enjoyed this issue? Please share it with your colleagues.
Have feedback or collaboration ideas? Contact us at [email protected]