In Chile, there have been cases presented against private actors for their role contributing to climate change impacts and for lack of mitigation and/or adaptation measures through constitutional actions and the environmental liability regulation.

Judicial action is available for people whose constitutional rights could eventually be affected by any illegal or arbitrary action caused by a public or private actor. The case Lidia del Carmen Muñoz Iturra v Forestal Arauco is an example of this action as this was used against private actors due to their lack of adaptation measures against climate change. Citizens filed a constitutional action due to increased forest fire requesting prevention measures to be taken by the owners of the electrical lines, forestry companies and property owners. The actors contended that the defendants had a social liability with their adjacent environment. The action was interposed stating that Chile was going through one of the largest fires in its history with more than 520 thousand hectares consumed, although allegations did not refer directly to climate change. The action was rejected in first and second instance, without referring to climate change as the Courts did not find any urgent remedy to be provided by means of a constitutional procedure. In addition, the judgment of the Court of Appeals indicated that the establishment of mandatory preventive measures on private property owners was not possible, nor was it possible to determine such measures, since they depended on a multiplicity of technical information such as atmospheric factors (temperature, humidity or wind speed) that the Court did not have and could not evaluate in a summary procedure.

There may be more opportunities for further constitutional actions against private actors depending on the approval of a new constitution. Human Rights Treaties signed by Chile could also be a viable avenue to pursue a lawsuit against private actors, particularly those related to the right to access to drinkable water.

Environmental liability actions can be pursued by any natural and legal person who can demonstrate a connection with the damaged ecosystems. The Chilean State, represented by the State Defense Council, could present a lawsuit before the competent Environmental Court. In these actions, municipalities have standing and a legal obligation regarding events carried out within its borders and citizens could request to municipalities to present liability claim. The following liability cases could provide precedents for future cases against private actors.

In the Rubén Cruz Pérez and others v Compañía Minera Nevada case, a mining company was sued for the damage that the Pascua Lama project could cause to glaciers. The company defended itself, stating that the decrease in the volume of frozen water occurred was a result of climate change and not directly from their actions. After analysing the evidence and gathering scientific background on the relation between climate change and glaciers, the Court rejected the lawsuit due to lack of proof, understanding that it was likely that the glaciers diminish their water reserves as a consequence of climate change. Nevertheless, the Second Environmental Court stated that, given the new climate conditions and extreme meteorological events, it would be environmentally reasonable, that both project owners and the Authorities consider measures for protection, mitigation or compensation, addressing the environmental situation of the glaciers in the areas of influence of the project.

In the lawsuit against the Bocamina Thermal Complex (Herminio Bautista Carillo and other v Empresa Nacional de Electricidad S.A. and others) as a result of the emissions generated by the Central for the production of coal-based energy, the Third Environmental Court analysed the damage inferred to the air component. They found that the particulate material and gases generated by the thermoelectric plant produced a series of harmful effects, among them “indirect” contributors to climate change.

In the Manuel Humberto Vega Puelles v Minera Montecarmelo S.A. case the mining company Montecarmelo was sued due to operating with a bad drainage system. Chemicals drained led to heavy metals intersecting a stream and the plaintiffs’ properties, who requested reparation for the ecosystem damage. For the recovery of the affected territory, the Second Environmental Court ordered that climate criteria be considered such as the “El Niño phenomenon”, seasonality, and climate change.

Regarding environmental liability claim, plaintiffs have considerable difficulties to act against private actors, particularly regarding proof. As a general rule, the Chilean environmental liability regime is subjective, that is, anyone who culpably or maliciously causes environmental damage, must answer for it. Therefore, claimants must prove, before the Environmental Court, a cause and effect relationship between the offense committed and the damage caused. Moreover, in the case the projects have the environmental permits required, private actors usually argue that the activity is allowed and licit.

In the Czech Republic, there have been no cases where citizens have brought a private actor to court for allegedly breaching the law by carrying out operations that contribute negatively to climate change, despite the fact that the Civil Code and Art. 35 of the Constitution explicitly recognise the right to a favourable environment.

Disputes between private actors in environmental matters are usually solved on the basis of the provisions protecting the rights of the neighbours (§ 1013 of the Civil Code). Under these provisions, the affected person may ask the court to order the owner to refrain from anything that would cause emissions which are disproportionate to the local circumstances and substantially restrict the normal use of the tract of land. However, this kind of protection is only available to owners and tenants, not the general public concerned. The claimant may also ask the civil court to issue a preliminary injunction in order to provisionally amend the conditions of the parties, or if there is a risk that the enforcement of the (subsequent) court decision could be threatened.

If emissions are the result of the operation of an enterprise or a similar entity which has been officially approved, a neighbour only has the right to financial compensation for the harm suffered as a result of the emissions, even where the harm was caused by circumstances which had not been taken into account during the first steps of the approval procedure. In the case of damages caused by hazardous operation, strict liability applies: a person who operates an enterprise or another facility which is particularly hazardous shall compensate the damage caused by the source of the increased danger (Act No. 89/2012 Sb., Civil Code).

It should be emphasized that under Czech civil law it is, however, difficult to substantiate the required causal nexus between droughts or floods and the operation of a particular facility.

An important climate case has occurred under this scenario in the Philippines. 

The Carbon Majors Case was the first (and only so far) climate complaint against corporations in this jurisdiction. It was submitted to the Human Rights Commission, a national human rights institution. In this case, a group of NGOs and people petitioned the Commission to investigate the responsibility of the ‘Carbon Majors’ for human rights violations or threats of violations resulting from the impacts of climate change. The ‘Carbon Majors’ identified were 47 coal, oil, gas, and cement transnational corporations, allegedly responsible for the bulk of greenhouse gas emissions since the start of the industrial age. The Commission is not a court, so it does not have the power to compel any private actor to reduce emissions or to penalise them. It can only make recommendations to the government and will potentially add to global pressure on shareholders to divest from significant carbon emitters. It is argued that this inquiry will potentially contribute to the development of international and regional human rights law, providing grounds for civil claims in the Philippines by individuals adversely affected by climate change.

Another route to demand environmental protection against private actors is through the constitutional right to a healthy environment. Article II (Section 16) of the Philippines Constitution provides that “[t]he State shall protect and advance the right of the people to a balanced and healthful ecology in accordance with the rhythm and harmony of nature”. In 2009, the Philippine Supreme Court crafted a set of procedural rules to facilitate the protection of the people’s constitutionally enshrined rights to life and a healthy environment: the Rules of Procedure for Environmental Cases. They govern procedures in civil and criminal cases in the first and second-level courts that involve alleged violations of environmental laws, rules, and regulations. Particularly notable is the introduction of the Writ of Kalikasan (Writ of Nature). Petitioners can apply for a Writ of Kalikasan to be issued when the alleged environmental damage is of such magnitude that it adversely affects the life, health, or property of inhabitants in two or more cities or provinces. It is a remedy available to a natural o juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated or threatened by an unlawful act or omission of a public official or employee, or private individual or entity. Through the Writ of Kalikasanit is possible to challenge a private actor whose acts lead to a large rise in emissions. Some not climate-related decisions offer key insights on this route.

The case Ang Aroroy ay Alagaan, Inc., et al v. Filminera Resources Corporationis relevant because it shows that causation is fundamental in this type of case. In this case, a Writ of Kalikasan was issued against five mining companies after allegations that their mining operations caused water, air, and soil pollution. However, the Court of Appeal denied the petition against Filminera because petitioners failed to establish the causal link between the environmental damage and the defendant’s operations. This case reflects the realities of a David and Goliath legal battle in which petitioners did not have the resources to conduct sophisticated and updated environmental quality tests. The salient point for present purposes is the importance of having a good ‘test case’ that is backed reliable science that can sufficiently convince the court of the causative link between climate change impacts and the acts of the defendant. In the alternative, it is recommended that litigants focus on establishing corporations’ non-compliance with environmental laws.

Regarding remedies, the decision in the West Tower Condominium v. FPICcase is also significant. In this case,a corporation petitioned for the issue of a Writ of Kalikasan on behalf of residents, including minors and generations yet unborn, against other corporations and their respective board of directors and officers due to a leak in The White Oil Pipeline System which contaminated water and emitted fumes forcing residents to abandon their homes. While the Supreme Court, among other things, decided that defendants had to comply with an environmental rehabilitation action plan, whose implementation had to be overseen by the government, observed that the Rules of Procedure for Environmental Cases did not provide a legal basis for the Court to award damages to individual petitioners, who had to file a separate civil suit to seek compensation.

There has been no litigation in relation to private actors in Slovenia. However, a case can be based on:

  • Obligations Code 2001: Article 133 allows for the request for removal of risk of damage. It provides that “Any person may request that another person remove a source of danger that threatens major damage to the former or an indeterminate number of persons and refrain from the activities from which the disturbance or risk of damage derives, if the occurrence of disturbance or damage cannot be prevented by appropriate measures”

Under the Obligations Code 2001, the following remedies can be granted:

  • Orders that appropriate measures to prevent the occurrence of damage or disturbance or to dispose of a source of danger be taken at the expense of the possessor
  • Compensation for damage in excess of the customary boundary. Court has noted that compensation under Article 133 is available only when the interference in the environment is excessive and only for the difference between the normal and excessive interference of the activity in the environment (VSM Judgment I Cp 2989/2005, 7 November 2006; Judgment II Ips 940/2007, 24 January 2008)

For locus standi, claimants have to demonstrate the act or omission by the private actor has resulted in damage or disturbance to the claimant.

In Israel there have been no climate change actions raised against private actors, however the following grounds could be the basis of future actions:

  • Constitutional grounds: under Israeli Basic Laws and the decision in The Israel Union for Environmental Defence v. The Government of Israel HCJ no. 4128/02, there can be action raised if a private actor breaches the minimum environmental standard.
  • National Law: Under the Clean Air Act citizens can bring an action against a private actor if they are found to have committed an act or omission which results in air pollution. Additionally, this can also be of a criminal nature. The definition of air pollution under the Act includes substances like carbon dioxide and methane resulting from combustion so the connection to climate change could be argued. Pensions and Investments: the Commissioner of the Israeli Capital Market, Insurance and Saving Authority issued instructions  for pension institutions, requiring a portion of pension funds to be channelled  to social investments, which will not necessarily yield a return to investors. However, it is not possible under current law to bring a claim against a pension fund that does not support environmental protection, social justice or the protection of human rights.

In relation to remedies, under the Clean Air Act  citizens can be granted damages for the loss sustained due to breach of the Act. Private actors may also have committed an act or omission which could be of a criminal nature and so a remedy could also be punitive.

The Locus Standi is broad. Under the Clean Air Act any citizen can bring an action if they have suffered damage. If a human rights claim is made under the Israeli Basic Law then the individual citizen would also have standing.

In the pending Lliuya case Peruvian citizen filed a case against the German energy company RWE. The claimant demands a contribution to the costs of suitable protective measures against the danger of flooding and hence damage to his house in Huaraz, Peru, likely to resulting from a spill-over caused by a nearby glacier lake that is melting due to climate change. The case is mainly based on § 1004 (in combination with § 823 para. 1 German Civil Code) which includes the principle of nuisance law that, if the ownership is unlawfully interfered with, the owner may require the disturber to remove the interference. The claimant argues that RWE contributed to global warming by emitting 0,47 % of world-wide emissions and hence created a situation which, in a linear fashion, adds to the risk of flooding through a melting glacier.  Some of the intricate problems of the case are how to deal with damage that occurs at a long distance, in the long term, and in a cumulative fashion and related questions of causation.

Moreover, the NGO Deutsche Umwelthilfe brought actions against BMW and Mercedes-Benz arguing that they produce vehicles which are particularly damaging for the climate and therefore infringe a fundamental right to climate protection. The claims are based on the right to injunctive relief under § 1004  para. 1 and § 823 para. 1  German Civil Code. The NGO argues that the defendants are inter alia obliged to prevent infringements of fundamental rights by refraining from the distribution of climate-damaging vehicles with a combustion engine after 2030.

Future claims under contract law, tort law, hazard- and strict liability law as well as various claims stemming fromproperty law, in particular nuisance law are generally conceivable. Claims can be filed against activities that have effects elsewhere in the world, as they can be based on either the place of action or of the result of an action. Potential cases may, for instance, concern situations where property owners have to adapt to an increased risk of flooding or suffer from damage after extreme weather events. Strict liability and nuisance law may be the most suitable bases for successful claims in this regard, as they do not require a fault. Claims against damage or nuisance to property caused by private actors need to show cumulative, long-term and distant damage and issues of causality may arise.

Denmark has not experienced any litigation against private actors for climate unfriendly operations. However, a possible avenue could be explored through Denmark’s participation in the OECD Guidelines for Multinational Enterprises. The latter have required OECD Members to establish National Contact Points (NCP) to promote the effective implementation of the Guidelines. Whilst the Danish NCP has not been very active, it was reformed in 2012 with the adoption of a new Act on the establishment of a Mediation and Complaints-Handling Institution for Responsible Business Conduct. The Danish NCP is an independent public sector body. Anyone can make a complaint. The processing is less expensive and much quicker than going to court. Much of the evidence collection is, to some extent, undertaken by the NCP itself. Whilst financial compensation can’t be awarded by the NCP, the result could be considered equivalent to a court judgment. In fact, naming and shaming could lead to altered conduct and make the business in question start operating in a more climate friendly manner.

In New Zealand, there has been at least one case against private actors for allegedly breaching the law by carrying out operations that contribute negatively to climate change.

In Smith v. Fonterra Co-operative Group Limited, the New Zealand High Court allowed a claim to proceed that is grounded in a duty of care of corporations to the public for their emissions. Smith brought tort claims against several operators of greenhouse gas emitting facilities, including dairy farms, a power station, and an oil refinery. Smith alleged that the defendants’ contributions to climate change constitute a public nuisance, negligence, and breach of a duty to cease contributing to climate change. The Court held that Smith could not demonstrate public nuisance or negligence but declined to strike out the common law duty of care claim, although the Court indicated significant hurdles existed for such a claim to succeed. Resolution of that claim is pending trial. The Court rejected the public nuisance claim on the grounds that the plaintiff did not demonstrate special or particularised damages and the connection between the pleaded harms and defendants’ activities were too indirect and not sufficiently linked to the relief sought, as a grant of relief would not stop the harm. Defendants’ compliance with statutory and regulatory requirements presented an additional hurdle to a successful public nuisance claim. The Court found Smith’s negligence claim was premised on a novel duty of care that was untenable.

As this case demonstrates, the necessity to show particularised damages caused by the alleged tortious conduct may limit the availability of tort causes of action for climate-induced harms. However, where these thresholds can be met, there are several potential remedies available, including injunctive relief to prevent the continuation of certain damaging activities or to impose necessary mitigation or adaption measures.

South Africa has experienced climate change litigation against private actors, as the Earthlife Africa casewas also filed against the project proponents (4th and 5th Respondents). In addition to violation of constitutional rights and NEMA provisions canvased in the Earthlife Africa case, the following grounds could also form a basis:

  • Breach of statutory provisions. A case can be filed under Regulation 28 to the Pension Fund Act 24 of 1956 against a pension fund or any other institutional investment body. The Regulation requires the board of a pension fund to consider environmental, social and governance (ESG) factors before making and investment decision. This provides a basis of challenging investments that contribute to an environmental challenge such as climate change

With respect to standing, the Constitution and NEMA allows individuals and associations to file cases on their behalf, on behalf of another person, on behalf of their members, in the public interest and in the interest of protecting the environment (Section 233 of the Constitution, Section 32(1)NEMA, Earthlife Africa case par. 3).

The main challenges faced by litigants in South Africa in bringing cases before Constitutional Court were highlighted in the Earthlife Africa caseare as follows:

  • financial constraints for litigants and
  • lack of specialised knowledge in highly technical fields such as climate change.

Whilst Colombia has not experienced litigation challenging private actors for alleged operations that lead to more climate change, claims have been brought against private actors for their acts or omissions that demonstrate a breach of obligations in the following cases:

  • Rediba case: using the tutela mechanism (Article 86 of the Constitution), the claimants challenged different public entities, and a company which provided public services (Rediba S.A) for a violation of fundamental rights such as life in dignified conditions, health, water, and a healthy environment, caused by an unsanitary landfill. The court ruled in favour of the plaintiffs and highlighted the mistakes by the environmental authority: for failing to consider the negative impact of Rediba S.A’s actions; and the failure of the operator of the landfill, in addition to the deficiencies of their license, to comply with the conditions established in it.
  • Dow Química de Colombia case: recognised the company Dow Química de Colombia S.A. responsible for the spill of a chemical compound stored in the Mamonal area, at Cartagena. This resulted in the environmental pollution of water and air, the disappearance of flora and faunae, and inevitable rise in greenhouse gases. The court then employed the polluters-pay principle.

Remedial action includes a court order to carry out a review of granted environmental licenses, and determine whether it is necessary to modify or resolve, totally or partially, the administrative act (Rediba case); employ polluters-pay principle and collect damages (Dow Química de Colombia case).

Furthermore, the following grounds could also base a claim:

  • non-compliance with national or international climate change obligations,
  • violation of environmental rights, fundamental rights, or human rights, such as right to life, health, and a healthy environment (Art. 79 of the Constitution).