Spain

This scenario had not materialized until recently. In September 2020, Greenpeace Spain, Oxfam Intermón and Ecologistas en Acción filed a complaint against the Spanish Government (Greenpeace Spain et al. v. Spain) grounded on administrative law, for not having passed on time the Integrated National Energy and Climate Policy Plan, and the Long-term Strategy required by the European Union Regulation 2018/1999 of 11 December 2018. Indirectly the Government was also sued for not having taken sufficient climate action and, consequently, affecting constitutional rights.

Case law on a purely climate change grounds under this scenario does not currently exist in Spain. The soft law, vague and abstract nature of climate regulations limit the degree to which they can be controlled by judges and make it difficult to identify subjective rights that could be used by individuals to substantiate their claim. Furthermore, there is a lack of precision in the form of the public distribution of GHG emission sources, which makes it very difficult to question in court a public decision that would lead to an increase in these emissions.

In this context, at this point, judicial control in Spain seems to be limited to supervising discretionary administrative decisions when exercised: (a) in a manifest arbitrary and unreasonable manner or (b) when procedural or formal legality vices (motivation, procedure —participation, public hearing—) appear during the decision-making process. Therefore, the jurisdiction through which climate litigation might proliferate is the administrative one, as seen in Greenpeace et al.

Actions —acts or specific administrative decisions or a rule of general scope or regulatory nature— or inaction —where a legal obligation to act exists— of public institutions can be challenged before the contentious-administrative jurisdiction (Law 29/1998). 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 27/2006, 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, parties can claim before courts: a) a statement against a concrete public action or omission for not being in accordance with law; b) the annulment in the case of general provisions that are contrary to climate change obligations; or c) a performance of obligations. Moreover, there is the option to have an individualized legal situation and its restoration recognised, including damages compensation, where appropriate.

This course of action in the administrative jurisdiction may be complemented by the possibility to initiate a contentious-administrative procedure for the protection of the fundamental rights of the person. Such procedures are regulated in Articles 114 et seq. of Law 29/1998 (Contentious-Administrative Jurisdiction) which link environmental concerns with traditional fundamental rights as explained below.

Beyond this administrative pathway, a constitutional one may be open through the ‘recurso de amparo’, contained in Article 41 et seq. of Organic Law 2/1979, of 3 October, of the Constitutional Court, and the appeal to fundamental rights of substantivenature. Carrying out one of these cases involves numerous difficulties but a major obstacle is the absence of a fundamental right with an environmental or a climate change content. Though the Spanish Constitution encloses a ‘right to enjoy an adequate environment’ (Article 45), in practice, this is merely meant as a ‘guiding principle’ of social and economic policies though and is not a true subjective right to be protected by the Spanish Constitutional Court. That said, as a result of the ECtHR case law (in particular, from the López Ostra Sentence, of November 23, 1994), the Spanish Constitutional Court interprets that environmental emissions can also imply a violation of the fundamental rights to physical integrity, personal and family privacy and the inviolability of the home. Therefore, the lack of a fundamental right to a healthy environment does not prevent the Constitutional Court from ruling on matters with environmental content when other fundamental rights recognized in the Spanish Constitution are affected.

For domestic constitutional or regional human rights to apply, the individual has not only prove to be directly affected but also that the interference with their personal sphere is due to the State’s direct actions or its failure to sufficiently protect them. Considering the diffuse nature of climate change, it would be extremely difficult to prove a link between State action/inaction and the damages occasioned. The State also enjoys a wide margin of appreciation to determine if the interference with the fundamental right can be justified by invoking the “general interest”, which implies that the judge cannot determine what kind of environmental policy measures should the States take. Some pending cases before the ECtHR, including one against Spain (Duarte Agostinho and Others v. Portugal and 32 Other States), will provide some clarity on these issues.