Slovenia

There has been no litigation against state challenging project approval. Nevertheless, a case can be based on the following grounds:

• Human Rights:
  • Article 72 of the Slovenian Constitution grants the right to a healthy living environment. This can form the ground of litigation if a specific project violates the right to a healthy environment.
• The Environmental Protection Act 2004:
  • Article 14 grants individuals the right to request the discontinuation of an activity affecting the environment, if it causes or would cause an excessive environmental burden or presents or would present a direct threat to human life or health. It can also be used for activities where the environmental burden will manifest itself in the future, which is often the case with activities contributing to climate change.
  • EPA allows for public participation in environmental impact assessment, process of issuance of environmental protection consent and in the process of issuance of environmental protection permits for projects (Articles 40, 43 and 58 of EPA). Failure to conduct proper public participation in these processes could be a basis to challenge project approval before the administrative court (U 893/2014).
• Obligations code 2001: Article 133 of the Obligation Codeconcretises the constitutional right to a healthy living environment and can form a ground for litigation challenging a specific project. The case of VSL order II Cp 3973/2009 established that under the Obligations Code, individuals have grounds to challenge any activity that causes direct danger for the life and health of people, which can have indirect implications to climate change.

To remediate, the Court can grant orders to:

• Prohibit the economic activity in violation of public benefit.
• Prohibit project proponent from starting/proceeding with the project (Article 14 EPA)
• Under the Obligations Code, the court can order that all appropriate measures be taken to prevent the occurrence of damage (Art 133 Obligation Code). If appropriate measures cannot prevent damage, the court can order that an individual must refrain from the activity from which that damage derives (Art 133 Obligation Code). Where the damage occurs during performance of a generally beneficial activity, court can order reimbursement. The reimbursement shall only be possible if that damage exceeds the customary boundaries (Article 133 Obligation Code)

In terms of locus standi, it is difficult to claim standing and interest in relation to breaches of constitutional rights for claims relating to the environment. Similar to scenario 1, claimants are required to show legal interest. Legal interest has been recognized where the participants live in the immediate vicinity of an area under assessment (Judgments U-I-315/00; U-I-265/99; U-I-292/97; U-I-24/96), which could make it difficult to show standing for climate cases. Citizens have standing under the Obligations code if they can show damage or disturbance from the project in question.

Possible reasons for lack of this type of litigation:

• difficulty of proving excessive environmental burden and the existence of a direct threat to human life or health,
• lack of sufficient statistical data on the status of the environment in Slovenia, to illustrate the damage in the environment caused by the concerned activity. Consequently, any attempt to prove such damage or threat would be very costly