Due to the lack of any specific provisions, and the limitations of the Environmental Liability Act and of private law, Spain has not yet witnessed any litigation against private actors for climate change related damage.

The legal basis for filing a potential claim for climate change related damage against private actors is actually rather weak. Despite of the fact that the Spanish Constitution establishes that those who infringe the right and duty to an adequate environment will have the obligation to restore damage, there is no specific statutory development of such a duty to restore but merely to a partial extent. The Spanish legislature transposed the Environmental Liability Directive (Directive 2004/35/CE) into national law by means of the Environmental Liability Act 26/2007 (LRM), but this instrument fails to provide to private persons any legal standing to sue. In this scenario, the only available path would be to instigate public authorities to act against the private actor and to challenge the possible inaction.

In the lack of specific provisions, the only way to sue private actors is through the mechanism of liability in tort (Spanish Civil Code). Individuals may invoke the general provisions on liability for fault (Art. 1902 CC) or strict liability (Art. 1908 CC).

However, in this context, Spanish courts are usually rather demanding as regards the degree of certainty for a causal link to be established between the defendant’s conduct and harm. Therefore, it is not entirely certain whether a Spanish court would be satisfied with the mere fact that the defendant’s action leads to a rise in GHG emissions. On that note, the LRM makes clear that liability for damage caused by so-called ‘diffuse pollution’ can only exist on the basis of a causal link between damage and the activities of specific operators. Moreover, air is not included as an environmentally protected resource by the LRM.

At any rate, Spanish courts usually inquire into which is the damage suffered by the alleged victim on an individual basis. A merely collective damage (like climate change) is not sufficient to trigger this kind of liability, with the exception of damage to consumers (Article 11 of the Civil Procedure Act). The prevailing opinion is that standing to sue for collective harm cannot be extended as to include environmental litigation as well. It is also open to question whether class actions are fully adequate in regard to compensation for damage to the environment such as in the case of climate change.

Regarding preventive measures, injunctive remedies are not statutorily provided under Spanish law. A mere threat of damage is not sufficient to trigger tort mechanisms. However, the possessor of a good may request the protection from the court whenever there is a possibility that she may be perturbed in it. It is unclear whether the GHG emissions may amount to a perturbation of possession to that regard. Similarly, the owner of land may obtain injunctive relief if it is established that there is a reasonable probability of an interference with the use or enjoyment of that land by a third person. It may be argued that polluting emissions may thus affect this use or enjoyment by way of a flexible interpretation of Article 1908 CC and Article 590 CC. By contrast, the LRM empowers public authorities to adopt any interim measures needed to prevent the pollution from becoming worse, or to prevent damage from being caused, and ‘in particular, to protect human health’. Henceforth, individuals could induce authorities to act. Concerning lenders liability, on one hand, a conditio sine qua non causal link should be established as it stipulates that the damaging activity is possible only because of the funding provided by the lender’s specific pension fund. On the other hand, a second level of legal analysis is required, namely, to check whether damage is attributable to the defendant on a legal basis (objective imputation test), for instance, because the latter increases the risk for damage to happen. Such a test may fail in the case of lenders liability.

In spite of the previous, the statutory definition of the liable operator is quite broad under Spanish law: any person who has a “determining economic power over the technical operation”. So, it makes it possible to hold a pension fund, for instance, liable for environmental damage, under the conditions described above. However, they will escape liability if it can be established that they are “external” to the activity carried out by the liable operator.

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.

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.