Spain

Due to the lack of any specific provisions, and the limitations of the Environmental Liability Act and of private law, Spain has not yet witnessed any litigation against private actors for climate change related damage.

The legal basis for filing a potential claim for climate change related damage against private actors is actually rather weak. Despite of the fact that the Spanish Constitution establishes that those who infringe the right and duty to an adequate environment will have the obligation to restore damage, there is no specific statutory development of such a duty to restore but merely to a partial extent. The Spanish legislature transposed the Environmental Liability Directive (Directive 2004/35/CE) into national law by means of the Environmental Liability Act 26/2007 (LRM), but this instrument fails to provide to private persons any legal standing to sue. In this scenario, the only available path would be to instigate public authorities to act against the private actor and to challenge the possible inaction.

In the lack of specific provisions, the only way to sue private actors is through the mechanism of liability in tort (Spanish Civil Code). Individuals may invoke the general provisions on liability for fault (Art. 1902 CC) or strict liability (Art. 1908 CC).

However, in this context, Spanish courts are usually rather demanding as regards the degree of certainty for a causal link to be established between the defendant’s conduct and harm. Therefore, it is not entirely certain whether a Spanish court would be satisfied with the mere fact that the defendant’s action leads to a rise in GHG emissions. On that note, the LRM makes clear that liability for damage caused by so-called ‘diffuse pollution’ can only exist on the basis of a causal link between damage and the activities of specific operators. Moreover, air is not included as an environmentally protected resource by the LRM.

At any rate, Spanish courts usually inquire into which is the damage suffered by the alleged victim on an individual basis. A merely collective damage (like climate change) is not sufficient to trigger this kind of liability, with the exception of damage to consumers (Article 11 of the Civil Procedure Act). The prevailing opinion is that standing to sue for collective harm cannot be extended as to include environmental litigation as well. It is also open to question whether class actions are fully adequate in regard to compensation for damage to the environment such as in the case of climate change.

Regarding preventive measures, injunctive remedies are not statutorily provided under Spanish law. A mere threat of damage is not sufficient to trigger tort mechanisms. However, the possessor of a good may request the protection from the court whenever there is a possibility that she may be perturbed in it. It is unclear whether the GHG emissions may amount to a perturbation of possession to that regard. Similarly, the owner of land may obtain injunctive relief if it is established that there is a reasonable probability of an interference with the use or enjoyment of that land by a third person. It may be argued that polluting emissions may thus affect this use or enjoyment by way of a flexible interpretation of Article 1908 CC and Article 590 CC. By contrast, the LRM empowers public authorities to adopt any interim measures needed to prevent the pollution from becoming worse, or to prevent damage from being caused, and ‘in particular, to protect human health’. Henceforth, individuals could induce authorities to act. Concerning lenders liability, on one hand, a conditio sine qua non causal link should be established as it stipulates that the damaging activity is possible only because of the funding provided by the lender’s specific pension fund. On the other hand, a second level of legal analysis is required, namely, to check whether damage is attributable to the defendant on a legal basis (objective imputation test), for instance, because the latter increases the risk for damage to happen. Such a test may fail in the case of lenders liability.

In spite of the previous, the statutory definition of the liable operator is quite broad under Spanish law: any person who has a “determining economic power over the technical operation”. So, it makes it possible to hold a pension fund, for instance, liable for environmental damage, under the conditions described above. However, they will escape liability if it can be established that they are “external” to the activity carried out by the liable operator.