Czech Republic

In the Czech Republic, there have been no cases thus far where citizens have alleged that the state has breached the law because it has authorised a project that contributes to climate change or fails to adapt adequately to climate change.

The absence of specific climate cases could be explained by several reasons:

• National climate laws concerning the emissions trading scheme and regulation of ozone layer depleting substances do not constitute a sound basis for judicial action, because they focus on very limited and mostly administrative issues. For example, the Air Protection Act (Act No. 86/2002 Coll.) does not provide a comprehensive regulation, since only a minor part on biofuels addresses the reduction of greenhouse gas emissions and promotion of renewable energy;
• Decision-making process in the Czech Republic is overly complicated and involves several stages;
• Restricted procedural remedies.

Potentially, an individual may bring a case against a public actor charged to authorise, for example, a major infrastructure project.

The procedural requirements for a legal action against public actors depend on the protection sought by an individual or NGO. There are four main types of judicial protection before administrative courts: action against a decision of an administrative authority, protection against a failure to act, protection against unlawful interference, and judicial review of Measures of a General Nature (MGN).

• In the case of legal action against an administrative decision, individuals may challenge the decision if they meet the requirements of access to justice set out in the Czech Administrative Justice Code (Act. No. 150/2002 Coll.). Individuals must be directly affected by the decision and must exhaust all appropriate remedial actions before the submission of a complaint. This represents an obstacle in climate change litigation as it is assumed that climate change issues are somewhat a vague concept which does not affect the individuals in particular cases concerning their rights or duties. NGOs do have standing in such cases if they are able to demonstrate a close relationship to the issue at question in order to claim a violation of the right to the favourable environment [Judgment of the Czech Constitutional Court (2014), No. I. ÚS 59/14]. The courts will only quash an administrative decision provided that: 1) it truly does not comply with obligations leading to a rise in greenhouse gas emissions and there is no other way to fulfil these obligations, and 2) this fact renders the authorisation illegal.
• In the case of an action against an MGN, the only action possible is judicial review, and the action is restricted to the rights of the plaintiff. Judicial review can only by undertaken by regional courts at the first-degree level and the Supreme Administrative Court as Cassation. At the level of the first-degree, the regional court is competent to try actions against the decisions of the administrative authority, actions against inactivity, actions against unlawful intervention, and electoral matters. The Supreme Administrative Court is solely authorised to conduct proceedings regarding political parties and political movements, adopt decisions with regard to competence actions, and vacate the measures of a general nature.
• In the case of unlawful interference, the court would have to agree that the inability or unwillingness of the state or public actor to comply with international climate change obligations would result in such interference.
• In the case of protection against a failure to act, the court’s scope of review is restricted to the omission to adopt a decision in administrative proceedings and does not extend to the omission to adopt an MGN.

Legal actions may challenge the regional and municipality urban planning and environmental impact assessment (SEA and EIA), as well as most of the decisions in the subsequent authorisation procedures. Indeed, the most important arguments regarding negative impacts of a project on the environment can be found within the scope of the land use permitting procedure. Consequently, the EIA procedures are highly relevant to environmental actions, and potentially, to climate litigation. However, it is not possible to challenge the EIA independently, since it is not a decision and merely serves as a basis for the administrative decision on the project (i.e. land use permit). To be a potential avenue for a climate case, an EIA needs to include climate considerations; however, the consideration of climate change would then be only secondary, the validity of the EIA representing the main legal issue discussed by the courts.