Denmark has not experienced any litigation against the state or government department/agency for approving a project that contributes negatively to climate change or that fails to adapt to climate change. At least not in cases where climate change was mentioned directly. However, there have been cases both related to climate mitigation and adaptation where climate unfriendly projects have led to cases being brought against a public actor.
A first example comes from Danish administrative practice and is a decision by the Environment and Nature Board of Appeal of 4 November 2011 (MAD 2011.2645). The appeal board annulled a decision to allow for a large, combined heat and power plant to be coal-fired. Greenpeace Denmark successfully argued the lack of an assessment under the Habitats Directive (Article 6(3)) and the inadequacy of the environmental permit conditions. The key ground of review was a procedural one: the lack of an appropriate impact assessment.
Similarly, in a case before the Supreme Court, a Danish Cyclist Association successfully raised a claim regarding the lack of an EIA of a road project (U2000.1103H/MAD2000.83H). Again, however, climate change was not an argument and specific climate change legislation was not at stake. They key ground of review was procedural: the authorisation of the project was deemed unlawful because of the lack of an appropriate impact assessment. This was again the case in a High Court case from 1994 (U1994.78Ø) where Greenpeace Denmark was accepted as having sufficient legal interest in a claim against the Ministry of Transport regarding an EIA of the Øresund-bridge project.
- Decision by Environment and Nature Board of Appeal of 4 November 2011 (MAD 2011.2645)
- Decision by Supreme Court (U2000.1103H/MAD2000.83H)
- Decision by High Court (U1994.78Ø)
With regard to climate unfriendly projects and adaptation, the Coast Protection Act enables municipalities to take action to protect the coast from erosion or flooding. However, whilst the Coastal Protection Act may have increased significance due to climate change, adapting to climate change is not listed among the aims of the Act.
A potential claimant must have a significant and individual interest in the rejection of a project and can submit an appeal to the Environment and Food Board of Appeal. In Decision of 5 May 2017, NMK-451-00001 the appeal board upheld a decision of the municipality not to promote a flood resilience infrastructure requested by landowners. The project was not strongly supported by the Coastal Authority, which considered that individual coastal protection, opposed to a local government-initated project, was a better solution. But the majority of the affected landowners opposed the individual coastal protection project since the plan of the municipality was to make the landowners participate in covering the project expenses. Climate change, however, was not an argument explicitly made in the case.
- Decision by Environment and Food Board of Appeal (Decision of 5 May 2017, NMK-451-00001)
A further procedural ground of review that could be used is the lack of a permit to carry out a project that may have a positive or negative effect on the country’s greenhouse gas emissions or climate change adaptation. Permits are granted by public bodies and, if rejected, an appeal can be lodged by anyone with a significant, individual interest to the Environment and Food Board. The appeal board makes a full review of both procedural and substantive matters and can replace the permit with a new permit or new conditions. The permit can also be appealed to the general courts within six months. The courts can review the legality of the decision, but generally refrain from considering technical matters. Again, however, no specific climate change legislation would be at stake.
For more country specific context and relevant national climate change law see: https://climate-laws.org/geographies/denmark
This country report has been produced by Catherine Hall, C2LI Senior Research Assistant and Esmeralda Colombo, C2LI Legal Analyst. This summary is based on Birgitte Olsen for the 2018 International Academy of Comparative Law Biannual Conference in Fukuoka, Japan.