There have been no cases against private actors for climate-related damages.

One reason for this is the lack of specific climate laws. However, based on the existing environmental case-law, potential grounds on which private climate litigation might be based are:

• Constitutional Grounds: In 2008, the civil Chamber of the Court of Appeals decided  caseNo. 22?-1089/08 regarding the alleged violation of the constitutional rights to life and to a healthy environment of a family living in the vicinities of a mine (“Vizeyska”) maintained by a state enterprise. The civil court recognized that the enterprise had violated the family’s constitutional rights by failing to diligently maintain the mine and failing to resettle the family.
• National Environmental Law: The Court of Appeals in case No. 22?-1089/08 upheld the decision taken by the civil court in the first instance on national environmental law grounds. The main legal grounds were the alleged violation of several environmental laws, including the Land Code of Ukraine, the state sanitary rules on planning and building of settlements, and the law on atmospheric protection.

Remedies: in the previous case law, complainants suing private actors over environmental damage have been seeking for both injunctive (i.e., ending damaging activities) and compensatory relief. In the environmental lawsuit concerning the Vizeyska mine, the plaintiffs requested to put an end to the activity of the mine, as well as moral damage and sanctions for the inability to perform ordinary activities. The Court acknowledged that the state enterprise had violated the law by failing to organize adequate sanitary zones and resettle the family. Moreover, it provided compensation for the moral damage.

In Ukraine, there have not been climate cases against specific public authorities’ decisions to approve projects that could lead to an increase in emissions or ineffective adaptation.

The lack of a comprehensive national climate law is an obstacle to this type of climate lawsuits, but the 2017 Environmental Impact Assessment Law could provide a future ground.

In Environment-People-Law (EPL) vs. Cabinet of Ministers of Ukraine and others (2011) (described in scenario 1) the NGO’s complaint against the government and the State Environmental Investment Agency included a request to oblige the State and the Agency to establish and enforce procedures for issuing permits for GHG emissions and to set emissions limits. The grounds relied on by Plaintiffs for this claim was Law 2707-XII on the protection of atmospheric air. Plaintiffs stated that its interests protected under law regarding the protection and preservation of the environment was violated. This claim was dismissed by Kiev District Administrative Court.

Other potential grounds: The law of Ukraine ‘On Environnental Impact Assessment’ (2017) prescribes the obligatory assessment of the impact of a planned activity on the climate, and as such, it may provide a valid legal ground for public project-based litigation in Ukraine.

Regarding standing, Ukraine’s law allows both individuals and organizations to bring lawsuits against public authorities. Particularly, Art. 21 of the Law on Environmental Protection (1995) assigns environmental NGOs the right to appeal to court for the protection of the environment.  Secondly, Art. 6 of the Code of Administrative Justice gives each person the right to bring a case whenever her rights, freedom or interests may be affected by the public authorities’ activity or inactivity.

Regarding remedies, in EPL vs. Cabinet of Ministers of Ukraine and others (2011), plaintiffs asked the Court to oblige the State and the Environmental Investment Agency to develop, submit, adopt, and enforce a procedure on permitting of activities that involve greenhouse gas emissions. The Kiev District Administrative Court dismissed this claim based on its finding that Plaintiffs failed to specify laws or standards that would require the government or its ministries to develop and adopt procedures for issuing permits specifically.

Ukraine has experienced climate change litigation against the state for its overall climate policy.

While Ukraine lacks a comprehensive climate change law, climate cases against the government relating to its overall climate policy have been based on the following grounds:

• Administrative and environmental law, international climate laws: In two lawsuits, the international charitable organization “Environment-people-law” has directly addressed the government’s commitments under the United Nations Framework on Climate Change and the Kyoto Protocol. In Environment-People-Law (EPL) vs. Cabinet of Ministers of Ukraine and others (2011), the organization filed a complaint against the Government, the Minister of Ecology and Natural Resources and the State Environmental Investment Agency. The main legal grounds for the complaint were the national law 2707-XII on the protection of atmospheric air environmental and information laws, as well as Ukraine’s climate commitments under the international climate laws and the National Action Plan.
• National climate plans, governmental resolutions: The same organization filed a lawsuit against the Ministry of Ecology and Natural Resources in 2013. In Environment-People-Law vs. Ministry of Ecology and Natural Resources of Ukraine, the plaintiffs sought that the Ministry’s inactivity, in its role as coordinator of the implementation of Ukraine’s obligations under international climate law, was declared illegal. The main legal grounds were the legal commitments under the UNFCCC, the measures envisaged in the National Action Plan, and the governmental resolutions aiming to the implementation of Ukraine’s international commitments. The Court of first instance argued that the international acts had only “declarative” effect, and thus the state’s compliance had to be evaluated based on the implementation of the measures embedded in the National Action Plan.  Besides, the final decision was grounded on the governmental resolutions assigning the Ministry specific responsibilities for the implementation of the climate commitments.

Regarding standing, Ukraine’s law allows both individuals and organizations to bring climate lawsuits against public authorities. Particularly, Art. 21 of the Law on Environmental Protection (1995) assigns environmental NGOs the right to appeal to court for the protection of the environment.  Secondly, Art. 6 of the Code of Administrative Justice (2005) gives each person the right to bring a case whenever her rights, freedom or interests may be affected by the public authorities’ activity or inactivity.

Regarding remedies, the courts in Ukraine have refused to order the public authorities to change their climate policy, while recognizing the state’s duty to implement the commitments taken, insofar as enshrined in national plans. In EPL v. Cabinet of Ministers of Ukraine and others, the claimants requested the court to demand the adoption of several climate-related measures. Among those, two remedies were particularly relevant to the litigation scenario 1, namely, the request a) to compel the government to publish information on the implementation of the climate commitments, as envisaged under the National Action Plan, and b) to order the Ministry of the Ecology to set GHG limits. Regarding the former one, the Supreme Administrative Court found that the information laws granted the government a broad discretion in deciding how to communicate its environmental policies and on that basis, excluded that the government was obliged to issue a specific report on its climate commitments.  Regarding the latter one, the District Court argued that the national environmental laws did not oblige the Ministry to elaborate specific reduction targets.

Conversely, in EPL v. Ministry of Ecology and Natural Resources the requested remedies were largely met by the courts. The District Court of Kiev provided that the Minister’s inactivity had been illegal, insofar it had not provided methodological guidance in setting GHG emissions reduction targets, and it had not implemented the necessary measures to fulfil the National Action Plan.