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 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 Chile there have been no actions filed against the state for their climate policy on the grounds of inadequate mitigation and adaptation to climate change directly. This may be due to the fact that the discussion has been focused inside the Congress (since 2020) regarding the Bill Project of the Climate Change Framework Law. The legislative processing of the law was preceded by a citizen participation process initiated by the Environmental Ministry in 2018, where different actors expressed their opinions before the authorities. Moreover, Chile has been relatively active in the topic within the international and national stage, assuming its own contribution to climate change. On the other hand, in Chile it is unusual to litigate against the lack of public policies.
Despite this, there have been remarkable cases relating to issues on adaptation regarding violations of human rights caused by climate change impacts and the deficiencies in the State response, capacity, regulations and policies where climate change is not the main point, but it is a ground of the conflict. Those cases have been channelled through constitutional actions. Indeed, in Chile any citizen can file a case against the government through the “Recurso de Protección” (constitutional action) against arbitrary or unlawful acts or omissions that deprive, disrupt or threaten the legitimate exercise of some of the rights and guarantees set forth in Article 19 of the Constitution such us the right to life and the physical and psychological integrity of the person (Art. 19 no. 1), arbitrary non-discrimination (Art. 19 no. 2), the right to live in an unpolluted environment (Art. 19 no. 8), the right to develop any economic activity (Art. 19 no. 21) or the right to property (Art.19 no. 24). This action aims to immediately adopt the necessary measures to re-establish the rule of law and ensure the due protection of the affected party, notwithstanding any other rights that may be asserted before the relevant authority or courts.
The main relevant case (“S.T.T.N2 de Marineros Auxiliares de Bahía de Pto. de Tocopilla v. Ministerio De Energía”) refers to three workers unions of thermoelectric plants, that filed a protection action against the Ministry of Energy for a reform to a Decree No. 62/2006 “Regulation of Power Transfers between Generating Companies established in the General Law of Electric Services” that seeks to accelerate the gradual closure of thermoelectrical plants. The workers indicated that their source of employment depends directly or indirectly on the generation of energy based on coal, which is why this act is illegal as it does not contemplate measures in their favour for, specifically, a labour reintegration. The Supreme Court accepted the constitutional action, ruling that mitigation measures must comprehend a “just transition”, which must include the environmental, social and economic effects of climate change. It affirms that, along with the technical grounds, the authority must be especially diligent and concern itself with the social acceptance of the measure and the protection of the most vulnerable citizens. Therefore, it orders the authority to implement a just transition public policy in favour of climate change mitigation which will consider workers, in the shortest possible time.
In a second relevant case (Sindicato Trabajadores Independientes Pescadores Artesanales v National Fisheries and Aquaculture Services and 3 others), a group of small-scale fishermen file a constitutional action against the maritime authority (DIRECTEMAR), the fishing authority (SERNAPESCA), and Environmental Authorities (Ministry of the Environment and Superintendency of Environment) for the dumping of 9,000 tonnes of dead salmon into the sea which, together with the increase in sea temperature, triggered the phenomenon known as “red tide”. The Supreme Court found that there was a lack of technical grounds for authorising the dumping into the sea, considering the complex environmental and climatic context which violated the constitutional rights to live in a pollution-free environment (Art. 19 no.8 of the Constitution). The Supreme Court hold that authority must act preventively on those complex and risk scenarios and must take their decisions based on scientific evidence. With this case, the Supreme Court imposed a high standard public policy decision, which must take into account the effects of climate change.
The third (Gallardo v Anglo American Sur S.A.) and fourth (Instituto Nacional de Derechos Humanos v Gobernación Provincial de Petorca) case spotlighted are related to the desertification of an extended region in Chile due to the impact of climate change. The Supreme Court hold that the authorities must take enough measures to provide at least 100 liters of drinkable water to people living in places facing extreme droughts, otherwise, they are infringing the human right to life and water. Even when the Constitution and regulations doesn’t recognise the human right to water, Supreme Court hold that it is justiciable, and it must be respected even though the law authorise to private actors to use the water of the rivers. The parliamentary discussion on this matter has been reactivated since those cases, with climate change as the main cause of droughts, as an assumption.
In all these cases, the fundamental rights and the constitutional protection action presents itself as a suitable means of jurisdictional intervention for people whose rights could eventually be affected by the impacts of climate change.
Considering the recent developments in Chile, future cases could increase depending on (i) the approval of a new Constitution and the new standard, rights, values and future institution; (ii) the implementation of adaptation measures, especially related to water access; (iii) the evolution of effects of Climate Change in Chile in relation with the natural vulnerabilities and risks of the country; and (iv) disproportionally affected places by industrial complex like coal plants.
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.
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.
To this date, there is only one case challenging Czech Republic’s national climate policy. This can be explained by several reasons:
- There is no specific national law dealing with climate change;
- Climate policy is mostly embodied by the air pollution legislation and emissions trading regulation;
- Procedural law requirements remain an obstacle to environmental action popularis, as an applicant has to show that their individual rights have been affected in order to bring a case to the court;
- Large parts of the Czech climate change regulation are legally non-binding.
In Klimatická žaloba ?R v. Czech Republic, an ongoing case submitted to the Prague Municipal Court in April 2021, plaintiffs claim the failure of the government to act has led to unlawful interference with their subjective rights which are guaranteed by the Czech Constitution.
In general, there are two potential avenues for climate cases under this scenario:
First, regarding constitutional rights and access to the Constitutional Court, a petition proposing the annulment of a statute, or individual provisions thereof, may be submitted by the President, a group of at least 41 Deputies or a group of at least 17 Senators, a Panel of the Court deciding a constitutional complaint, the government or anyone who submits a constitutional complaint. This means that for individuals and NGOs, the access to the Constitutional Court is restricted to a specific case and a violation of their constitutional rights listed in the Czech Charter of Fundamental Rights and Freedoms. The protection of ownership and privacy is often invoked in environmental cases. The Charter also grants the right to a favourable environment (Art. 35), but its significance is diminished by Art. 41 which stipulates that it is enforceable merely through and in the scope of regular laws implementation.
Second, regarding Administrative Courts, an individual or NGO can bring a case against a public actor that allegedly does not comply with its climate change obligations. Four main types of judicial protection are provided by the administrative courts: an 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). However, not all of these judicial routes enable individuals to challenge an overall act or omission by the legislator or government. Indeed, only the last three options can apply to this scenario.
Regarding actions challenging a MGN – which is defined as neither a piece of legislation nor an administrative decision – there is no administrative appeal allowed and the only possible legal remedy against a MGN is via judicial review. According to § 101a of the Czech Administrative Justice Code, any person who claims infringement of their rights by an MGN, is entitled to file a legal action against it. The standing of NGOs has been established by Czech Constitutional Court in its Decision No. I.ÚS 59/14. The scope of the review encompasses both procedural and material issues, but is restricted to the rights of the plaintiff. In addition, in the case of unlawful interference, the court would have to agree that the inability or unwillingness of the state to comply with international climate change obligations would result in such interference.
Finally, in the case of protection against a failure to act, its scope is restricted to the omission to adopt a decision in administrative proceedings. As a consequence, it cannot be used against the lack of will to adopt a specific policy or a MGN.
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.
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.
No litigation has been initiated in the Philippines by individuals to challenge the government’s overall climate policy for not complying with its international climate change obligations. Some cases have been filed challenging sectorial or specific laws related to climate change.
The absence of more systemic cases could be attributed, on one side, to the lack of private rights or a private right of action in the Paris Agreement or the NDC. On the other side, it could be attributed to the considerable leeway that the NDC leaves to the government in conditioning its compromises to the reception of financial resources and technology transfer following the common but differentiated responsibilities (CBDR) and respective capabilities principle.
Beyond this, some routes can be identified as possibly central to make the government accountable for its climate overall response. The Philippines has a dualist legal system, which means that international treaties must be made part of Philippine law to be valid and effective. Once it is part of domestic law, courts have the power to review its constitutionality or validity. This means that an individual who thinks that the Philippines’ NDC fails to protect their constitutional rights can pursue judicial/constitutional review. On the other hand, the National Climate Change Act 2009 established a Climate Change Commission with the function of formulating a Framework Strategy on Climate Change. The Framework identifies key sectors with significant mitigation potential and sets out goals and responsibilities for ministries and regulatory agencies but does not include quantitative targets. The law establishes that the Framework shall be formulated in accordance with international commitments. That gives the opportunity to challenge, for example, the Strategy’s level of ambition compared with the goals internationally agreed.
In this jurisdiction, 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.
Global Legal Action on Climate Change v the Philippine Governmentwas the first climate-related lawsuit using the Writ of Kalikasan. The action was brought to compel the government to implement a law (Republic Act 6716) and construct rainwater collectors in every village throughout the country as an effective climate adaptation measure. Eventually, a work plan was submitted to the Supreme Court and a Memorandum of Understanding was signed to carry out the construction works. Its implementation was to be subject to monitoring by the Supreme Court.
Another relevant decision is Victoria Segovia et al. v Climate Change Commission et al. In this case, a group of citizens, including children of the future, alleged that the failure of the government’s departments to implement the ‘Road Sharing Principle’ (part of the Framework Strategy on Climate Change) has resulted in the continued degradation of air quality, in violation of petitioner’s constitutional right to a balanced and healthful ecology. Interestingly, the court found that the Rule of Procedure for Environmental Cases (i) had liberalized the standing rules, being sufficient for a Writ of Kalikasan that the petitioner represents the inhabitants prejudiced by the environmental harm, and (ii) allowed direct resort to the Supreme Court, being within this court’s discretion whether to accept petitions brought directly before it. However, the petition failed as the court found that the plaintiffs failed to show that the defendants were guilty of any unlawful act or violation of environmental laws that constitutes a violation of their environmental right. A petition for the Writ of Kalikasan must clearly establish the breach of specific environmental laws, rules, and regulations and not merely contain repeated invocation of the constitutional right and bare allegations that it was violated. In this sense, individuals that want to bring a case against public actor for allegedly failing to comply with climate obligations should focus on enforcing, inter alia, quantitative targets such as those found in the NDC, instead of the broad policy strategies laid out in the Framework Strategy and related climate action plans.
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.