Spain

Project-specific litigation on purely climate change grounds does not currently exist in Spain. This could change soon given recent legislative developments in this jurisdiction which includes a national law on climate change and energy transition (Law 7/2021).

However, as exposed below, there are a number of administrative environmental cases which might serve as precedents for the development of project-specific climate change litigation in the future. In addition, as environmental issues -including climate protection- are increasingly present in urban planning regulations, there is a potential for a rise in climate litigation in this area as well.

In project-specific litigation, plaintiffs may challenge before the contentious-administrative jurisdiction acts or specific administrative decisions that allegedly contribute to climate change (e.g., the authorization of a new airport involving an increase in GHG emissions) or administrative inaction where a legal obligation to act exists. On the other hand, courts may review the breach of the legal established proceedings in the approval of the administrative act (e.g., public participations in authorization of an infrastructure or industry). The challenge would take place, in this context, not for reasons of material legality, but for having omitted or erroneously carried out the necessary proceedings or the duty of motivation of public action.

To have standing, claimants must prove that they hold a “legitimate interest,” which is considered differently depending on the category of “individual” who files the claim. Since the approval of Law 26/2007 of July 18th, which regulates the rights to access to information, public participation and justice in environmental matters, environmental NGOs have standing if they meet three requirements: (i) that the organization has been constituted at least two years before the claim; (ii) that environmental protection is among its statutory purposes; and (iii) that the organization is active in the territory where the environmental damage occurs (Articles 22 and 23). Individuals who act on their own must prove at the time of filing the case that they hold a concrete legitimate interest. In climate change matters, this will not always be easy to prove because of the global nature of both the causes and the impacts of climate change. Only in the matter of urban planning, where a popular action is accepted, may the standing conditions be facilitated.

In this context, it is relevant to note that European and Spanish regulations on environmental assessments require taking into account climate impacts in the approval or modification of certain public and private projects (EIA) or public plans or programs (SEA). It is thus reasonable to affirm the possibility to annul projects, plans or programs adopted which do not take into account these impacts (related to both mitigation or adaptation concerns) or only do so in a defective way.

In addition, there are some specific scenarios which could potentially serve for the development of project-specific climate litigation. The existence of substantive legality issues in urban planning is one of them, as environmental issues are increasingly present in urban planning regulations, including those related to climate change. When this is the case, these plans must be in full congruence with climate protection. If not, their incongruence could lead to litigation.

So far, there have been some cases of an environmental nature which might serve as precedents for the development of project specific climate change litigation in the future. For example, in one case (Decision of the Superior Court of Justice of Madrid of 4.3.2016 (RCA 187/2015)), the Court annulled the modification of Madrid ?s urban plan because the subsequent increase in population it envisaged could “unjustifiably” alter the district’s environmental quality. In another case, the Spanish Supreme Court annulled the adoption of a plan because of its negative impact on surface and groundwater resources (Supreme Court Decision of 11.10.2013, (RC 5161/2010)).

In this field of environmental and urban planning there have also been numerous cases where procedural legality issues have resulted in the annulment of the specific administrative act (authorization) or the plan itself (its approval or modification) for lacking environmental assessments or other requirements (e.g., Supreme Court Decision 17.2.2015 (RC 1005/2013)).

In terms of adaptation to climate change, there is a judicial ruling that expressly mentioned climate change in its legal reasoning, in addition to some other human activities, as contributing to the increase of floods and their negative impact (Tribunal Supremo Decision of 29.3.2017 (case 541/2017)).

As potential remedies, parties can claim before courts (Article 31.1 Contentious-Administrative Jurisdiction Law – LJCA): a) a statement against a concrete public action or omission for not being in accordance with law (e.g., the annulment of the authorization of a new airport involving an increase in GHG emissions) and b) a performance of obligations, when the inaction of the Administration is disputed. If an individualized legal situation and its restoration are recognized in a potential climate change litigation case via the article 31.2 LJCA, damages compensation could be established.