In Chile, there have been at least 6 actions brought against the State due to the approval of projects that have contributed to climate change and fail to meet adaptation or mitigation measures.

In Chile, Project-Specific Litigation against the State revolves around the Environmental Approval Resolution (“EAR”) challenges. Usually, two channels are used: (i)constitutional action and (ii)judicial claim before the Environmental Courts. The Environmental Courts are specialised Courts with a mixed composition, created in 2012 to resolve administrative disputes of an environmental nature and lawsuits for environmental damage.

Challenging the EAR is restricted to those citizens, indigenous peoples, or organisations that have participated in the assessment procedure by making observations and/or exercised administrative resources. They can also be claimed through the Environmental Courts, by those third parties who requested the administrative invalidation of the Environmental Assessment Resolution. Usually, plaintiffs in these cases sought to nullify the administrative authorisation of the projects through a judicial claim before the Environmental Courts.

In the case Asociación de Prestadores de Servicios Turísticos de Mejillones v Director Ejecutivo del Servicio de Evaluación Ambiental, a group of neighbours filed a Constitutional Action against the Environmental Assessment Service, for the non-consideration of climate change in the review of the EAR of the Angamos Thermoelectric Power Plant. The action was rejected by the Court of Appeals, which ruled that the protection action is not the way to challenge environmental administrative acts. This judgment was appealed to the Supreme Court.

In the Compañía Minera Nevada v Servicio de Evaluación Ambiental case, the Environmental Assessment Service initiated a proceeding to adequate the Environmental Assessment Resolution that approves the mining project Pascua Lama. The project owner argued that due to climate change there had been relevant modifications in the ecosystem, which had affected the volume of glaciers. The claimants argued the glaciers were affected by the company. The Second Environmental Court rejected the claim stating that climate change modifies temperatures and other key factors, affecting fragile environments. Therefore, projects need permanent revision to evaluate new mitigation or adaptation measures in new scenarios caused by climate change. The Supreme Court confirmed the ruling.

In 2015, the mining company Cerro Colorado submitted a new project to the Environmental Assessment System to give continuity to the extraction until 2023. Both the Second Environmental Court and the Supreme Court ruled in favour of claimants and ordered to the Environmental Assessment Service to roll back the procedure and to apply climate change criteria during the assessment (specially to water resources) and evaluate adaptation and mitigation measures, even when claimants had not alleged the necessity to consider climate change. This ruling by the Supreme Court overcome the restricted view held in the case Corporación Privada para el Desarrollo de Aysén y otros con Servicio de Evaluación Ambiental, in which the Third Environmental Court maintained that environmental assessment is for the evaluation of local impacts of the project and that there is no legal requirement for the projects to consider climate change. The same argument had been held by the Third Environmental Court in the case Gabriela Simonetti Grez y otros con Servicio de Evaluación Ambiental still pending before the Supreme Court.

Finally, in the Jenny Patricia Montaño Olivares and other v Servicio de Evaluación Ambiental case regarding the mining project Mantoverde, the First Environmental Court ruled that the environmental authority must consider citizen observations to incorporate the conditions of extreme climate variability.

Considering these recent rulings held by Chilean courts and the future climate change framework law, there will be more opportunity for citizens and/or authorities to participate in the environmental assessment of projects, for the inclusion of measures for mitigation, and adaptation to climate change.

In the Czech Republic, there have been no cases thus far where citizens have alleged that the state has breached the law because it has authorised a project that contributes to climate change or fails to adapt adequately to climate change.

The absence of specific climate cases could be explained by several reasons:

  • National climate laws concerning the emissions trading scheme and regulation of ozone layer depleting substances do not constitute a sound basis for judicial action, because they focus on very limited and mostly administrative issues. For example, the Air Protection Act (Act No. 86/2002 Coll.) does not provide a comprehensive regulation, since only a minor part on biofuels addresses the reduction of greenhouse gas emissions and promotion of renewable energy;
  • Decision-making process in the Czech Republic is overly complicated and involves several stages;
  • Restricted procedural remedies.

Potentially, an individual may bring a case against a public actor charged to authorise, for example, a major infrastructure project.

The procedural requirements for a legal action against public actors depend on the protection sought by an individual or NGO. There are four main types of judicial protection before administrative courts: action against a decision of an administrative authority, protection against a failure to act, protection against unlawful interference, and judicial review of Measures of a General Nature (MGN).

  • In the case of legal action against an administrative decision, individuals may challenge the decision if they meet the requirements of access to justice set out in the Czech Administrative Justice Code (Act. No. 150/2002 Coll.). Individuals must be directly affected by the decision and must exhaust all appropriate remedial actions before the submission of a complaint. This represents an obstacle in climate change litigation as it is assumed that climate change issues are somewhat a vague concept which does not affect the individuals in particular cases concerning their rights or duties. NGOs do have standing in such cases if they are able to demonstrate a close relationship to the issue at question in order to claim a violation of the right to the favourable environment [Judgment of the Czech Constitutional Court (2014), No. I. ÚS 59/14]. The courts will only quash an administrative decision provided that: 1) it truly does not comply with obligations leading to a rise in greenhouse gas emissions and there is no other way to fulfil these obligations, and 2) this fact renders the authorisation illegal.
  • In the case of an action against an MGN, the only action possible is judicial review, and the action is restricted to the rights of the plaintiff. Judicial review can only by undertaken by regional courts at the first-degree level and the Supreme Administrative Court as Cassation. At the level of the first-degree, the regional court is competent to try actions against the decisions of the administrative authority, actions against inactivity, actions against unlawful intervention, and electoral matters. The Supreme Administrative Court is solely authorised to conduct proceedings regarding political parties and political movements, adopt decisions with regard to competence actions, and vacate the measures of a general nature.
  • In the case of unlawful interference, the court would have to agree that the inability or unwillingness of the state or public actor to comply with international climate change obligations would result in such interference.
  • In the case of protection against a failure to act, the court’s scope of review is restricted to the omission to adopt a decision in administrative proceedings and does not extend to the omission to adopt an MGN.

Legal actions may challenge the regional and municipality urban planning and environmental impact assessment (SEA and EIA), as well as most of the decisions in the subsequent authorisation procedures. Indeed, the most important arguments regarding negative impacts of a project on the environment can be found within the scope of the land use permitting procedure. Consequently, the EIA procedures are highly relevant to environmental actions, and potentially, to climate litigation. However, it is not possible to challenge the EIA independently, since it is not a decision and merely serves as a basis for the administrative decision on the project (i.e. land use permit). To be a potential avenue for a climate case, an EIA needs to include climate considerations; however, the consideration of climate change would then be only secondary, the validity of the EIA representing the main legal issue discussed by the courts.

No cases have been reported under this scenario in the Philippines.

In this jurisdiction, an individual can challenge a public actor for approving a project that allegedly does not comply with the law and lead to a rise in GHG emissions.

One of the most relevant pathways to demand environmental protection 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 or 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.

A second route to consider is judicial review. Courts must evaluate whether grave abuse of discretion has occurred in the governmental decision. Adjudication can commence only when the following conditions are present: (i) an actual and justiciable controversy exists (i.e. contestation between parties’ legal rights or direct adverse effect on the individual); (ii) petitioners have standing (i.e. they must be injured (or be in immediate danger of injury) as a result of the act); (iii) the issue of constitutionality is raised at the earliest opportunity; and (iv) it is necessary to the determination of the case itself.

A third route may be through the Environmental Impact Assessment (EIA) system. Here, litigation may be promoted alleging that the public authority does not comply with its obligations under the EIA law. The EIA system is project-based and covers environmentally critical projects and projects located in environmentally critical areas. While EIA litigation is a common route for climate litigation in other jurisdictions, it can be argued that in the Philippines it is not prevalent because most issues are dealt with through discussions/negotiations between project proponent and EIA regulator.

There has been no litigation against state challenging project approval. Nevertheless, a case can be based on the following grounds:

  • Human Rights:
  • The Environmental Protection Act 2004:
    • Article 14 grants individuals the right to request the discontinuation of an activity affecting the environment, if it causes or would cause an excessive environmental burden or presents or would present a direct threat to human life or health. It can also be used for activities where the environmental burden will manifest itself in the future, which is often the case with activities contributing to climate change.
    • EPA allows for public participation in environmental impact assessment, process of issuance of environmental protection consent and in the process of issuance of environmental protection permits for projects (Articles 40, 43 and 58 of EPA). Failure to conduct proper public participation in these processes could be a basis to challenge project approval before the administrative court (U 893/2014).
  • Obligations code 2001: Article 133 of the Obligation Codeconcretises the constitutional right to a healthy living environment and can form a ground for litigation challenging a specific project. The case of VSL order II Cp 3973/2009 established that under the Obligations Code, individuals have grounds to challenge any activity that causes direct danger for the life and health of people, which can have indirect implications to climate change.

To remediate, the Court can grant orders to:

  • Prohibit the economic activity in violation of public benefit.
  • Prohibit project proponent from starting/proceeding with the project (Article 14 EPA)
  • Under the Obligations Code, the court can order that all appropriate measures be taken to prevent the occurrence of damage (Art 133 Obligation Code). If appropriate measures cannot prevent damage, the court can order that an individual must refrain from the activity from which that damage derives (Art 133 Obligation Code). Where the damage occurs during performance of a generally beneficial activity, court can order reimbursement. The reimbursement shall only be possible if that damage exceeds the customary boundaries (Article 133 Obligation Code)

In terms of locus standi, it is difficult to claim standing and interest in relation to breaches of constitutional rights for claims relating to the environment. Similar to scenario 1, claimants are required to show legal interest. Legal interest has been recognized where the participants live in the immediate vicinity of an area under assessment (Judgments U-I-315/00; U-I-265/99; U-I-292/97; U-I-24/96), which could make it difficult to show standing for climate cases. Citizens have standing under the Obligations code if they can show damage or disturbance from the project in question.

Possible reasons for lack of this type of litigation:

  • difficulty of proving excessive environmental burden and the existence of a direct threat to human life or health,
  • lack of sufficient statistical data on the status of the environment in Slovenia, to illustrate the damage in the environment caused by the concerned activity. Consequently, any attempt to prove such damage or threat would be very costly

Israel has experienced litigation on specific projects on the following grounds:

  • The polluter pays principle has been used as a basis of climate change litigation in Israel, by virtue of the Clean Air Act section 63. It was applied in the Kedoshim v. IDF, Class Action No. 24714-02-16, a class action lawsuit filed against the Israeli Defense Forces (IDF) for negligence in preventing fire and refraining from proper steps to extinguish it during routine training activities, resulting in emissions of greenhouse gases and damage to the entire population, and contributing to global warming.
  • The precautionary principle can be used as tool for individuals to raise actions against specific projects and could be used in the future in the context of climate change litigation. This principle is also embedded in number of existing environmental legislation (The Clean Air Law, the Non-Ionizing Radiation Law, the Environmental Protection Law (Emissions/Releases and Transfers to the Environment – Reporting and Registering Obligations). This principle was applied in the case of Haifa Chemicals Ltd. V. Municipality of Haifa Criminal Appeal no. 2841/17 where there was a dispute over an ammonia storage facility in an industrial area located close to a populated urban area. It does not deal with climate change specifically but it is illustrative as to how the precautionary principle can be used in litigation, and could form the basis as to how this principle may be used in climate change litigation in the future.
  • Other possible grounds in claims against a government entity are general civil law grounds, for example the civil wrong of negligence, which could theoretically be used to claim future damage from climate change-related harms such as flooding. Given the challenges with proving future causality and in the absence of specific legislation, the chances of such a claim are low.

In terms of remedies, under the polluter pays principle financial remedies are the most likely outcome.

The Locus standi requirements are broad. The Israeli legal system allows for both individual citizens and NGOs to raise actions against the government or government entities in relation to specific projects.

There are several cases of project-specific litigation in environmental matters that are relevant for climate litigation. Most of these cases are based on planning and licencing laws as well as their respective procedural dimensions. However, to date, no case explicitly challenging the government for authorising a project that frustrates efforts to mitigate of climate change or leads to ineffective adaptation has been decided by courts.

There is a long line of cases, e.g. relating to nuclear power (BVerfG, 1979), noise by air and car traffic (BVerfG, 1981, BVerfG, 1988), ozone (BVerfG, 1995), electro smog (BVerfG, 1997). Claimants commonly allege that the State had breached its duty to actively protect the fundamental rights of its citizens. However, in none of the mentioned cases the Constitutional Court actually assumed that a protective duty had been violated. More specifically, in a case regarding a planning permission for a long-term deposition of nuclear waste (BVerfG, 2009), based, among others, on Articles 20a, 2 II, 14 and 1 of the German Constitution (Basic Law – BL), the Constitutional Court held that citizens have to accept a minimum residual risk. However, other cases also provided that risk prevention can be part of the protective duty of the State if it serves to prevent fundamental rights violations.

In the pending law suit DUH vs. Stralsund Mining Authority (2020) the NGO Deutsche Umwelthilfe argued that the Mining Authority must review its 2018 planning permission issued on the basis of Article 43.1.2 Energy Industry Law (former version) for a gas pipeline and to order risk assessment measures linked to the related methane emissions, based on recent scientific findings.

In order to have standing, individuals have to show that they can rely on a norm that provides a direct entitlement for them or is intended to protect them as a directly concerned third party, e.g. as a neighbour. This requirement is challenging for climate change litigation because the rules requiring the authorities to take climate protection into account normally do not single out individual rights or protections of third persons. Therefore, planning law decisions that are detrimental to the climate may only be challenged where other interests are at stake that include an individual rights dimension.

Due to the implementation of the Aarhus Convention, claims based on procedural violations play a particular role for processes of planning and licensing. The Environmental Remedies Act provides that environmental NGOs can inter alia challenge acts that require an environmental impact assessment on substantive or procedural grounds. This is an exception to the mentioned century-old German administrative law doctrine of the subjective public right since by their very nature, NGOs will normally not be directly concerned in their rights. This new instrument of claims by NGOs by way of collective action is still in process to becoming accepted in practice. Furthermore, the implementation of the Aarhus Convention – and several rulings of the European Court of Justice – has widened the scope for standing of individuals, particularly in regard to rights of information and participation.

With regard to legal grounds in the area of planning law, relevant norms can be found in the Federal Construction Code or in the Federal Code on Protection against Emissions, often complemented by law of the respective federal state. Regional plans that concretise spatial planning can play a major role, as well. Yet, taking into account global climate protection in the balancing exercise during planning processes has so far not always worked very well, as this concern is not taken sufficiently seriously and has been considered as too abstract.

In the area of licencing law, climate litigation could become relevant where a building or piece of infrastructure is subject to a particular risk from climate change, e.g. flooding, which may cause damage to the neighbour´s property. So far, however, no case has been decided along those lines.

Regarding the procedural dimension, § 1 Environmental Information Act provides a right to information. Individuals can also challenge licensing decisions that are not based on a (sufficient) environmental impact assessment to the extent that the lack of such an assessment has made it impossible for the claimant to participate in the deliberation process (§ 4 I, III in conjunction with § 1 Environmental Remedies Act).

Finally, claimants can hold the State accountable for legal violations through the instrument of State liability (Article 34 BL in conjunction with § 839 of the German Civil Code). In the Forest-Damage-cases (BVerfG, 1998) private forest owners sued the State, alleging a violation of their property right (Article 14 I BL) due to increased air pollution, which would cause their forests to decline and be attributable to the State. However, the Constitutional Court held that liability for a global phenomenon such as forest decline as a result of distant emissions is a matter for the legislator and cannot be established by courts. State liability may be triggered indirectly in future cases, if the right to life, physical integrity or property is at stake.

In the area of planning and licencing law, breaches can mainly be remedied in so far as planning decisions are overturned or licences withheld. Furthermore, § 6 of the Environmental Information Act grants an individual remedy where information regarding infrastructure projects is unduly withheld.

Denmark has not experienced any litigation against the state or government department/agency for approving a project that contributes negatively to climate change or that fails to adapt to climate change. At least not in cases where climate change was mentioned directly. However, there have been cases both related to climate mitigation and adaptation where climate unfriendly projects have led to cases being brought against a public actor.

A first example comes from Danish administrative practice and is a decision by the Environment and Nature Board of Appeal of 4 November 2011 (MAD 2011.2645). The appeal board annulled a decision to allow for a large, combined heat and power plant to be coal-fired. Greenpeace Denmark successfully argued the lack of an assessment under the Habitats Directive (Article 6(3)) and the inadequacy of the environmental permit conditions. The key ground of review was a procedural one: the lack of an appropriate impact assessment.

Similarly, in a case before the Supreme Court, a Danish Cyclist Association successfully raised a claim regarding the lack of an EIA of a road project (U2000.1103H/MAD2000.83H). Again, however, climate change was not an argument and specific climate change legislation was not at stake. They key ground of review was procedural: the authorisation of the project was deemed unlawful because of the lack of an appropriate impact assessment. This was again the case in a High Court case from 1994 (U1994.78Ø) where Greenpeace Denmark was accepted as having sufficient legal interest in a claim against the Ministry of Transport regarding an EIA of the Øresund-bridge project.

In New Zealand, project approvals have been challenged based on their climate impacts. 

Climate advocacy groups recently sought judicial review of the New Zealand transport agency’s decision to fund and build the Mill Road project, asserting the highway would increase carbon emissions by inducing more road traffic and enabling urban sprawl.  The government subsequently withdrew the project, citing the project’s costs.

In the planning law context, cases have deemed the consideration of future climate impacts appropriate in the context of development projects. Nearly a decade ago, the Environment Court upheld a Council decision declining consent for the development of residential property in a coastal area likely to be affected badly by erosion and inundation within a 50-year time period.

There has also been a series of cases alleging that project-specific approvals by local authorities have failed to properly take into account greenhouse gas emissions. These cases have manifested in the context of challenges to local authority consents for specific projects. Environmental organisations have mounted challenges to local bodies’ decisions to grant consent for activities involving the discharge of greenhouse gases in a number of instances. Since 2004, New Zealand legislation has specified that Councils must exclude from consideration the effects of discharges on climate change, except where use or development of renewable energy enables a reduction in discharges. In the context of project-specific authorisations, the Supreme Court has examined the legislation, making similar findings to this effect in both instances.   New legislation in the form of a proposed new Natural and Built Environments Act (NBA) may carry forward this policy orientation of nationally centralised management of climate change mitigation, rather than delegating this task to Councils via approval decisions.

As to the potential for judicial review of administrative decision-making concerning the implementation of New Zealand’s international climate change commitments, including the authorisation of major new infrastructure, the Thomson case provides some indication of the likely complex scientific and justiciability issues that would be raised. As discussed under scenario 1, the decision in Thomson signals that courts in New Zealand may be inclined to adjudicate challenges to national climate policies provided they can be framed within the limits of justiciability.

South Africa has witnessed climate change litigation challenging project approval. The case of Earthlife Africa Johannesburg v The Minster of Environmental Affairs and Others challenged the EIA process and environmental authorization of coal-fired power plant granted by the Department of Environmental Affairs (DEA). The case was based on the following grounds;

  • Human Rights: Section 24 of the Constitution guarantees the right to an environment that is not harmful to health or well-being. Courts have a duty to interpret all legislation to promote the spirit and object of the Bill of Rights. (Section 39(2) Constitution). Thus, interpreting the environmental licencing provisions (such as Section 240 NEMA) in line with the Constitution mandates the prevention of pollution and environmental protection by securing ecologically sustainable development and use of natural resources
  • Breach on statutory provisions:
    • Section 2 National Environmental Management Act (NEMA) provides guiding principles in public decision-making, including sustainable development and a general mitigation principle that environmental harm must be avoided, minimised or remedied (Sections 2(3) & (4) NEMA). This provision, coupled with Section 240 (1) NEMA, implies a mandatory pre-requisite i.e., a climate change impact assessment to be conducted before granting an environmental authorization
    • Section 2 National Environment Management: Air Quality Act (NEMAQA)require decisionmakers to consider air quality impacts of projects while Section 39 mandates licensing authority to consider the current and future air pollution from the activity when considering an application for an Atmospheric Emission License (AEL). Furthermore, the authority must apply practicable environmental option to prevent, control, abate or mitigate the pollution.
    • Section 43(1) of NEMAQA acknowledge the curbing of GHG emission and climate change mitigation via the requirements for an AEL. An AEL concluded in terms of Sections 39(b) and (c) of NEMAQA must specify GHG measurements and reporting requirements.
  • International climate change law: Section 233 of the Constitution instructs courts to follow any reasonable interpretation of legislation that is consistent with international law. The international climate change obligations in Articles 3(3) and 4(1)(f) of the UNFCCCas well as the country’s NDC support a conclusion that climate change impacts and mitigation measures must be included as relevant factors during an environmental authorisation (Earthlife case par. 90-91).

When challenging project authorisation on the grounds of a violation of the Bill of Rights and under NEMA, claimants have wide standing. Individuals and associations can file a case 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 38 Constitution, Section 32(1)NEMA, Earthlife Africa case par. 3).’

Remedies: In the Earthlife Africa case, the court reviewed and set aside the authorisation and remitted back to the licensing authority for reconsideration. Particularly, the court directed the Minister for Environmental Affairs to consider, among others, climate change impact assessment (Earthlife Africa Case par. 126).

Colombia has experienced climate change litigation challenging the government for authorising a specific project that leads to increased emissions or ineffective adaptation. Based on the case law so far, the following grounds could be used in future litigation:

  • Procedural obligations: before granting an environmental license, the Constitutional Court established the requirement to acquire prior consultation from indigenous and tribal communities from a specific area the project will impact. Failure to oblige can provide a procedural ground to base a claim. (Environmental Licenses case)
  • Popular action: can be brought to seek protection of collective rights of a specific community, including the collective right to safety and prevention of (technically) foreseeable disasters (Disasters Prevention case)(Art. 88 of the Constitution). The success of this case not only ensured that risk management plans were formulated, but also executed by governmental departments.
  • Precautionary principle: was applied as a rule of direct and autonomous application regarding the decisions of public authorities, when considering theRio Declaration on Environment and Development and Colombian Law 99 of 1993 (environmental damage) (Art.1 num.6). In this case, mining contracts were suspended due to the foreseeable irreparable damage to the ecosystems and natural resources the mining activities would have caused to the zone (Ibague case).
  • Preventative principle: in its decision, the State Council considered the Sendai Framework for Disaster Risk Reduction 2015-2030, alongside other international frameworks, to highlight the need for prevention and risk reduction for inhabitants of territories with foreseeable flooding, by public authorities. Highlighting the vulnerability and urgency of the situation, the court ruled for necessary measures to be taken to mitigate the risk exposed to the habitants of the Oro river (Oro River floods).
  • Collective rights: breach of collective rights, such as security and disaster prevention, as the territory and contained communities were exposed to risk factors of flooding and affected caused by environmental changes. (Marlinda and Villagloria communities’ case).

Remedies include court orders directed to the public authority to: formulate action plans and comply with obligations (Disasters Prevention case); take action to mitigate physical risks(i.e. floods) (Oro River floods); relocate communities (risk management) (Marlinda and Villagloria communities’ case); or suspend/invalidate actions foreseen to cause irreparable damage (when using the precautionary/preventative principle) (Ibague case).

Additionally, Colombia’s legal system includes mechanisms that allow a claim to be brought before the court when challenging an action that interferes with an individual(s) protection of rights and/or the application of national laws and local regulations relating to the environment, in which case the remedies can be:

  • Nullity of the administrative act
  • Nullity of the administrative act and restoration of the right
  • Direct Repair Action

These mechanisms could be utilised when the authorisation of a specific project leads to increased emissions or ineffective adaptation, if the project violates the individual(s) rights or violates national laws/local regulations.