Comparative Climate Change Litigation: Beyond the Usual Suspects (Ius Comparatum - Global Studies in Comparative Law Book 47) 3030468828, 9783030468828

Citation preview

Ius Comparatum – Global Studies in Comparative Law

Francesco Sindico Makane Moïse Mbengue  Editors

Comparative Climate Change Litigation: Beyond the Usual Suspects

Questionnaire

Climate change, the individual and moving Can an individual in your legal system bring a case against the government for allegedly not forward the international climate change complying with its international climate change agenda (mitigation and adaptation) obligations? Can an individual in your legal system bring a case Climate change, the individual, human rights and moving forward the international against a public or private actor that allegedly does not comply with climate change obligations climate change agenda (mitigation and (national or international), on human rights adaptation) grounds? Climate change, the individual and moving Can an individual bring a case in your legal system forward the climate change agenda against against a public actor charged to authorise a major infrastructure operation that allegedly does not public actors (I) (mitigation) comply with national obligations leading to a rise in greenhouse gas emissions? Climate change, the individual and moving Can an individual bring a case in your legal system forward the climate change agenda against against a public actor that allegedly does not comply with national obligations leading to a public actors (II) (adaptation) failure to adapt to climate change? Climate change, the individual and moving Can an individual in your legal system bring a case forward the climate change agenda against against a private actor whose acts lead to a large rise in greenhouse gas emissions? private actors (I) (mitigation) Climate change, the individual and moving Can an individual in your legal system bring a case against a pension fund (or a similar entity) whose forward the climate change mitigation actions (i.e. investments) contribute to a global rise agenda against private actors (II) in greenhouse gas emissions or difficult adaptation (mitigation/adaptation) to climate change?

• Climate change, the individual and moving forward the international climate change agenda (mitigation and adaptation) Snowdonia has committed to a 30% reduction in greenhouse gases by 2030 and has included such a pledge in its Nationally Determined Contribution (NDC) under the Paris Agreement. Civil society in Snowdonia are increasingly concerned that the © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8

621

622

Questionnaire

national climate policies planned by Snowdonia do not match the ambition present in its NDC. Against such a background, can an individual in your legal system bring a case against the government for allegedly not complying with its international climate change obligations? If this is the case in your country, please state the case(s) in which this has happened clarifying the legal grounds and legal strategies leading to the decision. Please also indicate whether a specific climate change legislation was or was not at stake.1 If this has not happened in your country, please state the current legal and political challenges that individuals face when bringing a case of this kind, and what would be needed to overcome such challenges. • Climate change, the individual, human rights and moving forward the international climate change agenda (mitigation and adaptation) Snowdonia’s Constitution includes a provision giving its citizen a right to a healthy environment. Climate change will impact mainly on future generations and thanks to increased awareness in schools, children in Snowdonia are concerned about what lays ahead and about their human rights enjoyment, which may be hampered by rising sea levels, etc. Against such a background, can an individual in your legal system bring a case against a public or private actor that allegedly does not comply with climate change obligations (national or international), on human rights grounds? If this is the case in your country, please state the case(s) in which this has happened clarifying the legal grounds and legal strategies leading to the decision. Please also indicate whether specific climate change legislation was or was not at stake. If this has not happened in your country, please state the current legal and political challenges that individuals face when bringing a case of this kind, and what would be needed to overcome such challenges. • Climate change, the individual and moving forward the climate change agenda against public actors (I) (mitigation) The city of Bowmore in Snowdonia is considering redeveloping an abandoned area into a new airport. Major revenue and increased financial flows are arguments

 In assessing whether “climate change legislation” was or not present we urge national rapporteurs to consider the approach taken by the Globe Climate Legislation Study in M Nachmany et al. The GLOBE Climate Legislation Study: A Review of Climate Change Legislation in 99 Countries, Summary for Policymakers (GLOBE International and the Grantham Research Institute, London School of Economics 2015), p. 30, available at http://www.lse.ac.uk/GranthamInstitute/wp-content/uploads/2015/05/Global_climate_legislation_study_20151.pdf: “The definition of ‘climate change legislation’ is not clear cut. There are ambiguities both with the term ‘climate change’ and the term ‘legislation’. Included in this study is legislation, or regulations, policies and decrees with a comparable status, that refer specifically to climate change or that relate to reducing energy demand, promoting low carbon energy supply, tackling deforestation, promoting sustainable land use, sustainable transportation, or adaptation to climate impacts.” Rapporteurs will also find useful the most recent national reports on climate change legislation developed by the Globe Climate Legislation database available at http://www.lse.ac.uk/GranthamInstitute/legislation/ the-global-climate-legislation-database/. 1

Questionnaire

623

in favour of the major infrastructure development. On the other hand, the new airport will lead to more air traffic, which will lead to more greenhouse gas emissions. Furthermore, there are discrepancies as to whether the city of Bowmore has complied with a number of procedural obligations related to the development of the major infrastructure (e.g., public participation, environmental impact assessment). Against such a background, can an individual bring a case in your legal system against a public actor charged to authorise a major infrastructure operation that allegedly does not comply with national obligations leading to a rise in greenhouse gas emissions? If this is the case in your country, please state the case(s) in which this has happened clarifying the legal grounds and legal strategies leading to the decision. Please also indicate whether specific climate change legislation was or was not at stake. If this has not happened in your country, please state the current legal and political challenges that individuals face when bringing a case of this kind, and what would be needed to overcome such challenges. • Climate change, the individual and moving forward the climate change agenda against public actors (II) (adaptation) After 3 years in a row of major floods, the city of Bowmore in Snowdonia has decided to enhance its flood resilience infrastructure. It is also considering changing its regulations regarding construction near the coast due to coastal erosion. Individuals in the community are concerned that these measures are not strong enough since science is clearly showing that climate change will lead to more devastating impacts in Bowmore in the short and especially in the medium and long term. Furthermore, there are discrepancies as to whether the city of Bowmore has complied with a number of procedural obligations related to the development of planning of its flood resilience infrastructure and new coastal policies (e.g., public participation, environmental impact assessment). Against such a background, can an individual bring a case in your legal system against a public actor that allegedly does not comply with national obligations leading to a failure to adapt to climate change? If this is the case in your country, please state the case(s) in which this has happened clarifying the legal grounds and legal strategies leading to the decision. Please also indicate whether specific climate change legislation was or was not at stake. If this has not happened in your country, please state the current legal and political challenges that individuals face when bringing a case of this kind, and what would be needed to overcome such challenges. • Climate change, the individual and moving forward the climate change agenda against private actors (I) (mitigation) Aluminium has been a major industry in Snowdonia for many generations. This carbon intensive sector of the economy provides jobs for an important part of the population. A concerned group of citizens raises the issue of climate change and of environmental health due to the emissions related to the production of aluminium in Snowdonia. Against such a background, can an individual in your legal system

624

Questionnaire

bring a case against a private actor whose acts lead to a large rise in greenhouse gas emissions? If this is the case in your country, please state the case(s) in which this has happened clarifying the legal grounds and legal strategies leading to the decision. Please also indicate whether specific climate change legislation was or was not at stake. If this has not happened in your country, please state the current legal and political challenges that individuals face when bringing a case of this kind, and what would be needed to overcome such challenges. • Climate change, the individual and moving forward the climate change mitigation agenda against private actors (II) (mitigation/adaptation) Pension funds in Snowdonia invest in all sort of profitable activities, including fossil fuels. Citizens in Snowdonia have joined the global divestment movement and are calling pension funds to move away (i.e. divest) from climate change unfriendly portfolios. Against such a background, can an individual in your legal system bring a case against a pension fund (or a similar entity) whose actions (i.e. investments) contribute to a global rise in greenhouse gas emissions or difficult adaptation to climate change? If this is the case in your country, please state the case(s) in which this has happened clarifying the legal grounds and legal strategies leading to the decision. Please also indicate whether specific climate change legislation was or was not at stake. If this has not happened in your country, please state the current legal and political challenges that individuals face when bringing a case of this kind, and what would be needed to overcome such challenges. • Future opportunities and challenges ahead Feel free to wrap up your national report with any further observation about the opportunities and challenges that individuals in your country face when bringing a “climate change” related case before a national court. If there is an element of good practice stemming from your country, please spell it out in your conclusions (even if you have done so already) in your report and explain why such a practice should be deemed as a good practice and whether you believe it could be replicated elsewhere.

Ius Comparatum – Global Studies in Comparative Law Volume 47 Founding Editors Jürgen Basedow, Max Planck Institute for Comparative and International Private Law, Hamburg, Germany George A. Bermann, Columbia University, New York, USA Series Editors Katharina Boele-Woelki, Bucerius Law School, Hamburg, Hamburg, Germany Diego P. Fernández Arroyo, Institut d’Études Politiques de Paris (Sciences Po) Paris, France Editorial Board Members Joost Blom, University of British Columbia, Vancouver, Canada Vivian Curran, University of Pittsburgh, Pittsburgh, PA, USA Giuseppe Franco Ferrari, Università Bocconi, Milan, Italy Makane Moïse Mbengue, Université de Genève, Geneva, Switzerland Marilda Rosado de Sá Ribeiro, Universidade do Estado do Rio de Janeiro, Rio de Janeiro, Brazil Ulrich Sieber, Max Planck Institute for Foreign and International Criminal Law Freiburg, Germany Dan Wei, University of Macau, Macau, China

As globalization proceeds, the significance of the comparative approach in legal scholarship increases. The IACL / AIDC with almost 800 members is the major universal organization promoting comparative research in law and organizing congresses with hundreds of participants in all parts of the world. The results of those congresses should be disseminated and be available for legal scholars in a single book series which would make both the Academy and its contribution to comparative law more visible. The series aims to publish the scholarship emerging from the congresses of IACL / AIDC, including: 1. of the General Congresses of Comparative Law, which take place every 4 years (Brisbane 2002; Utrecht 2006, Washington 2010, Vienna 2014, Fukuoka 2018 etc.) and which generate (a) one volume of General Reports edited by the local organizers of the Congress; (b) up to 30 volumes of selected thematic reports dealing with the topics of the single sections of the congress and containing the General Report as well as the National Reports of that section; these volumes would be edited by the General Reporters of the respective sections; 2. the volumes containing selected contributions to the smaller (2-3 days) thematic congresses which take place between the International Congresses (Mexico 2008; Taipei 2012; Montevideo 2016 etc.); these congresses have a general theme such as “Codification” or “The Enforcement of Law” and will be edited by the local organizers of the respective Congress. All publications may contain contributions in English and French, the official languages of the Academy. More information about this series at http://www.springer.com/series/11943

Francesco Sindico  •  Makane Moïse Mbengue Editors

Comparative Climate Change Litigation: Beyond the Usual Suspects

Editors Francesco Sindico Law School University of Strathclyde Glasgow, United Kingdom

Makane Moïse Mbengue Faculty of Law University of Geneva Geneva, Switzerland

ISSN 2214-6881     ISSN 2214-689X (electronic) Ius Comparatum – Global Studies in Comparative Law ISBN 978-3-030-46881-1    ISBN 978-3-030-46882-8 (eBook) https://doi.org/10.1007/978-3-030-46882-8 © Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Contents

 Climate Change Litigation and the Individual: An Overview��������������������    1 Francesco Sindico, Makane Moïse Mbengue, and Kathryn McKenzie Part I Countries That Have Experienced (Some) Climate Change Litigation Climate Change and the Individual: South African Climate Change Litigation��������������������������������������������������������������������������������������������   37 Michelle Barnard  Climate Change Litigation in Colombia��������������������������������������������������������   53 María del Pilar García Pachón, Adriana Viloria, and María Daniela de la Rosa Calderón  Climate Change and the Individual in the Netherlands������������������������������   75 Jonathan Verschuuren  Climate Change and the Individual: A Norwegian Perspective������������������   91 Esmeralda Colombo  Climate Change and Individuals’ Rights in Switzerland����������������������������  119 Ursula Brunner and Cordelia C. Bähr  Climate Change and the Individual in the United Kingdom ����������������������  133 Kim Bouwer  Climate Change Litigation in Canada ����������������������������������������������������������  153 Catherine Choquette, Dustin Klaudt, and Laura Shay Lynes  Climate Change and the Individual in the United States����������������������������  199 Margaret Rosso Grossman  Climate Change Litigation in New Zealand��������������������������������������������������  225 Caroline Foster v

vi

Contents

 Climate Change and the Individual: Case Study of the Philippines ����������  241 Jolene Lin Part II Climate Change Litigation: Going Beyond the Usual Suspects  Litigating Climate Change in Bolivian National Courts������������������������������  259 Paola Villavicencio Calzadilla  Climate Change and the Individual in Mexico����������������������������������������������  277 Rodolfo Godínez Rosales Climate Change Litigation in Chile: Between the Constitutional and the Environmental Jurisdiction Path������������������������������������������������������  287 Pilar Moraga Sariego  Climate Change and the Individual: The Brazilian Perspective ����������������  309 José Roberto de Castro Neves and Patricia Klien Vega  Climate Change Litigation in Israel: Trends, Prospects and Challenges������  323 Tzipi Iser Itsiq and Tzvi Levinson  Climate Change Law, Policy and Litigation in Qatar����������������������������������  337 Aaron Richard Harmon and Jon Truby  Climate Litigation in India������������������������������������������������������������������������������  347 Shibani Ghosh  Climate Change and the Individual: A Perspective of China����������������������  369 Tianbao Qin and Meng Zhang  Climate Change Litigation in Kenya: Possibilities and Potentiality ����������  387 Lydia A. Omuko-Jung  Climate Change Litigation in Nigeria: Challenges and Opportunities�������� 409 Uzuazo Etemire Local Liability for Global Consequences? Climate Change Litigation in Belgium ��������������������������������������������������������������������������������������������������������  427 Lieselot Marien and Leonie Reins  Climate Change Disputes in the Czech Republic������������������������������������������  455 Vojtěch Vomáčka and Ilona Jančářová  The Italian Path to Climate Change: Nothing New Under the Sun������������  471 Barbara Pozzo  Climate Change Legislation and Litigation in France: A Work in Progress������������������������������������������������������������������������������������������������������������  485 Maud Sarliève  Climate Change and the Individual in the Finnish Legal System ��������������  509 Erkki J. Hollo

Contents

vii

Opportunities for Climate Litigation in Russia: The Impossibility of the Possible ��������������������������������������������������������������������������������������������������  521 Yulia Yamineva  Climate Change Litigation in Ukraine����������������������������������������������������������  539 Mariia Muravska  Climate Change Litigation in Spain��������������������������������������������������������������  557 Rosa Mª. Fernández Egea, Sofia Simou, and Albert Ruda  Emerging Awareness of Climate Change Litigation in Slovenia ����������������  575 Vasilka Sancin and Maša Kovič Dine  Climate Change Litigation in a Comparative Law Perspective������������������  593 Barbara Pozzo Questionnaire ����������������������������������������������������������������������������������������������������  621

Climate Change Litigation and the Individual: An Overview Francesco Sindico, Makane Moïse Mbengue, and Kathryn McKenzie

Abstract  This chapter serves as an introduction to the comparative climate change litigation exercise present in this book, which stems from efforts leading up to the 2018 International Academy of Comparative Law Colloquium. The chapter is based on several fact scenarios established by the editors, in order to develop a comparative look at climate change across a variety of countries. This effort will ultimately lead to the development of the Climate Change Litigation Initiative  (C2LI), an online platform intended to further explore the state of climate change litigation in national courts. This introductory chapter summarises the findings from the book in general and specifically highlights the different scenarios on which the individual chapters are based. It further explores in detail the issues of standing, grounds and remedies in climate change litigation, and highlights a number of crosscutting issues discussed throughout the book.

1 Introduction Despite progress in international climate change processes, such as the adoption of the Paris Agreement in December 2015,1 climate change requires an “all hands on deck” approach.2 The latter includes not only states, international organisations and large emitters (businesses), but also the individual. In particular, in order to mitigate and adapt to climate change, individuals need to be in a position to not only lobby  UNFCCC, Decision 1/CP.21, ‘Adoption of the Paris Agreement’, FCCC/CP/2015/10/Add.1.  Moncel and van-Asselt (2012).

1 2

F. Sindico (*) · K. McKenzie Strathclyde Centre for Environmental Law and Governance, University of Strathclyde Law School, Glasgow, UK e-mail: [email protected]; [email protected] M. M. Mbengue University of Geneva Law School, Geneva, Switzerland e-mail: [email protected] © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_1

1

2

F. Sindico et al.

towards a better future (via, for example, public participation in law making processes related to climate change), but also to bring public and private actors to court for their alleged “climate change” related violations. This is even more important when key countries shift their climate change policies.3 Against this background, past examples of climate change litigation brought forward by individuals (or group of individuals) such as the Urgenda case in the Netherlands,4 or the Leghari case in Pakistan,5 raise some important and interesting legal issues: how can an individual bring a case against a government whose actions or omissions are causing dangerous climate change? How can an individual bring a case against a public body whose actions or omissions lead to a rise in greenhouse gas emissions or to a failure to adapt to climate change? How can an individual bring a case against a private actor whose acts are causing an increase in greenhouse gas emissions and are allegedly violating national law requirements leading to further climate change? This book will not focus on international litigation. It will not focus on whether States can bring other States before international courts as a means to deal with climate change. The book will focus on the legal challenges that individuals face when deciding to take climate change cases before national courts, whether it is to boost mitigation or adaptation, or even to advance the overall international community’s fight against climate change. While there is a bourgeoning literature on climate change and litigation,6 together with international projects and online databases,7 these tend to come from specific jurisdictions and to focus mainly on common law approaches. This book opens up the discussion of climate change and individuals (and the role of litigation therein) to a wider geographical array enabling us to capture challenges and opportunities coming from different socio-legal cultures. In particular, the book raises issues also from countries where litigation has not (yet) happened and discusses the reasons behind the lack of litigation. This chapter is divided in six sections. Following this brief introduction, Sect. 2 will frame climate change litigation in the current reality of climate change, the state of play of the literature on climate change litigation and will explain the scenario based methodology behind the project that led to this book. Section 3 will focus on three key stages in any case: standing, merits (grounds of review) and

 As has taken place in the US with the stance of the Trump administration on climate change, see Mehling (2017); and in Brazil under the Bolsonaro administration. 4  Urgenda Foundation v. Kingdom of the Netherlands (2015). 5  Leghari v. Federation of Pakistan (2015). 6  Burns and Osofsky (2009), Lord et al. (2011), Faure and Peeters (2011), Lin (2012). A very useful resource is the report on climate change litigation by UNEP, The Status of Climate Change Litigation, a Global Review (2017). Savaresi and Auz (2019), Peel and Osofsky (2018), Wilensky (2015). 7  Useful information can be found in the litigation database complied by the Sabin Centre for Climate Change Law at Columbia University in collaboration with Arnold & Porter, LLP.  The database is available at http://wordpress2.ei.columbia.edu/climate-change-litigation/. 3

Climate Change Litigation and the Individual: An Overview

3

remedies. In Sect. 4, we will discuss particularly challenging crosscutting issues, such as causation, science and separation of powers. Section 5 will discuss a number of challenges such as access to justice, lack of capacity, legal culture and the lack of climate change awareness within society, which could prevent individuals from lobbying in favour of litigation in the first place. Finally, Sect. 6 will draw some general conclusions about the project and the book.

2 Climate Change and Litigation In this section, we will contextualise the project behind this book. On the one hand, although much has been written about climate change science, it is necessary to stress again the urgency and level of the problem. On the other hand, climate change litigation is by no means a novelty and we will discuss the current state of the literature around it highlighting how it has usually focused (understandably) on countries with litigation. Finally, we will explain why this project and the book resulting therefrom is different from previous ones, but at the same time complementary thereto.

2.1 We Really Do Not Have Much Time Left… In the past few years, we have seen a rise in extreme and increasingly deadly weather events, such as flooding, wildfires, hurricanes, droughts, heatwaves and the like throughout the world. Sea levels are rising and glaciers are melting and the World Health Organization has reported that patterns of infection of life-threatening diseases are on the rise, that approximately 250,000 additional deaths are expected per year between 2030 and 2050 due to climate change related health issues, and that the cost of direct damage from climate change related health issues will average approximately US$ 2–4 billion per year by 2030.8 As climate science gets increasingly more sophisticated and technically advanced, our understanding of the severity and urgency of the problems we face is becoming more advanced as well. The UN’s Intergovernmental Panel on Climate Change (IPCC), in its most recent scientific report (Fifth Assessment Report, or AR5), found that climate change will not only amplify the risks of extreme weather events and harm to human (and natural) health, but will create new ones if decisive action is not taken immediately.9 The IPCC’s AR5 further underscored the urgency of this issue by clarifying that we will see a ‘high to very high risk of severe, wide-spread and irreversible impacts globally’ by the end of the twenty-first century

 World Health Organization, ‘Climate Change and Health’.  IPCC, Fifth Assessment Report, Climate Change 2014: Synthesis Report, s 2.3.

8 9

4

F. Sindico et al.

without additional action on mitigation and adaptation beyond what is currently in place.10 The severity, length and frequency of climate change and its life-threatening risks will be significantly affected by whichever actions are taken now to reduce overall emissions: substantial reductions can indeed reduce these risks.11 The United Nations Environment Program (UNEP) in its Emissions Gap Report (2018) raised the stakes even higher, reporting that, rather than a reduction, 2017 saw an increase in global emissions, highlighting once again that current commitments and actions are inadequate and that ‘unprecedented, urgent action’ is required by all governments.12 It is not all doom and gloom, however. Yes, the science tells us that action must be taken with extreme urgency, but the science also tells us that if action is taken, these risks can be mitigated. It will require what the Acting Director of UNEP, Joyce Msuya calls ‘existential change’ on the part of everyone.13

2.2 All Hands on Deck Governments are perhaps best positioned to take action to address these urgent and severe challenges and must play a significant role in developing, adopting, and implementing policies and other measures to tackle the range of problems we face due to climate change. Indeed, 195 countries have, by signing the Paris Agreement, committed to taking such action. However, while an adequate response to climate change requires each Member State to take decisive and urgent action to develop comprehensive and effective climate policy, we must also understand that the problems we face do not have any one single solution and will require responses at every level. We cannot rely on only one form of action. Instead, effective climate governance means that responses must be developed and implemented across scales, including inter-governmental, national and local.14 An adequate response to climate change will, therefore, require an ‘all hands on deck’ approach, which includes litigation. Much of the academic literature on climate change litigation is skewed toward high-profile cases, countries where there has been significant judicial activity and international legal actions that can be taken in response to the global problem of climate change.15 It makes sense, of course, that the literature would focus on lessons for potential future cases based on past  Ibid s.3.2.  Ibid s.3. 12  UNEP ‘Emissions Gap Report’ (2018), pp. xiv–xxiii. 13  Ibid p. xiii. 14  IPCC, Fifth Assessment Report (2014) s 4.4; See also Bouwer (2018), Moncel and vanAsselt (2012). 15  See, e.g. Carnwath (2016), Banda and Fulton (2017); ibid; Burns and Osofsky (2009); UNEP ‘The Status of Climate Change Litigation: A Global Review (2017); Cox (2016), McCormick et al. (2017) and Peel (2017). 10 11

Climate Change Litigation and the Individual: An Overview

5

litigation experiences. It also makes sense for much of the literature to focus on regions and countries where there has been a significant amount of litigation, like the USA or Australia. There is a wealth of case law and legislative or parliamentary history relevant to climate change in some countries and high-profile cases provide fertile ground for discussion, research and strategizing. However, it is the smaller scale actions and the regions or countries where there has been little or no such litigation that we want to also highlight in this book. It is the question of how civil society, the individual, can participate in the judicial system where the effects of climate change are impacting life now and for future generations that interest us. Increasingly, civil society has been stepping up (and out) to raise concerns that government action on climate change has thus far been inadequate, and to raise awareness about the need for more urgent action. We have seen climate strikes and demonstrations in many areas of the world, young people taking to the streets to raise the alarm and demand action. Civil society also has another tool to employ in this fight and that is climate change litigation, the very kind of litigation this book is meant to discuss. Although litigation is only one piece of the climate change puzzle, it can serve as a tool to inform social perceptions, highlight the importance and potential harm of certain conduct by public and private actors, help shape judicial attitudes, and can push governments to take more substantial action to address climate change. An apparent lack of political will to take urgent action, or failures by institutions at any level, be they public or private, can be a motivating factor for civil society to turn to litigation.16 As Lord Carnwath puts it, ‘the courts will also have an important role in holding their governments to account, and, so far as possible within the constraints of their individual legal systems, in ensuring that those commitments are given practical and enforceable effect.’17

2.3 Beyond the Usual Suspects and Going Beyond the Literature Having acknowledged the urgency of the climate change challenge and the need to pursue all options, including litigation, we will now explain the rationale behind the project and the book. Every two years the International Academy of Comparative Law (IACL) organises its Biannual Conference where a number of topics are discussed. In 2016 climate change was chosen as one of the areas that would be covered in the 2018 Biannual IACL Conference in Fukuoka, Japan. The two editors of this book were chosen as rapporteurs and they decided to turn their attention to climate change litigation. From the beginning, we wanted to focus on climate change 16 17

 Bouwer (2018), p. 491.  Carnwath (2016), p. 8.

6

F. Sindico et al.

litigation in a slightly different way than what was done until then. On the one hand, we wanted to open up the discussion of climate change litigation to as many countries as possible, including jurisdictions with little or no litigation at all. This meant putting together a wide-ranging group of national rapporteurs (see Table 1), which include both researchers and practitioners, including practising lawyers, some involved in disputes themselves. On the other hand, rather than giving national rapporteurs the task to report on the state of play within their jurisdiction, we decided to take a more practical approach. We developed six scenarios and asked the national rapporteurs to write a report discussing whether such a scenario had materialised in their country and, if so, whether it had led to litigation. More importantly, we asked national rapporteurs to focus on those scenarios that had not taken place in the countries they were

Table 1  Countries included in the book by Continent

Continent Africa

Country Kenya Nigeria South Africa Asia China India Israel Philippines Qatar Russia Europe Belgium Czech Republic Finland France Italy Netherlands Norway Slovenia Spain Switzerland Ukraine United Kingdom Oceania New Zealand North America Canada Mexico United States of America South America Bolivia Brazil Chile Colombia

Chapter 20 21 2 19 18 16 11 17 27 22 23 26 25 24 4 5 30 29 6 28 7 10 8 13 9 12 15 14 3

Climate Change Litigation and the Individual: An Overview

7

responsible for and discuss legal and non-legal reasons why litigation had not taken place. We also encouraged national rapporteurs to consider legal and non-legal strategies for litigation to take place in the future. In hindsight, the six scenarios can be reduced to three. We focus our attention on cases brought against the government, the government or another public actor, and cases against private actors. Firstly, the book discusses cases where individuals have taken a government to court for its actions or omissions that have allegedly led to an increase in greenhouse gas emissions or to a failure to adapt to climate change. Secondly, we discuss how an individual can take the government or another public authority to court for authorising an activity that leads to an increase in greenhouse gas emissions. Within this second group, we also consider cases focusing on adaptation in which a claimant would bring a case against a public actor for authorising a specific activity that fails to adapt properly to climate change, or fails to adopt an adaptation measure altogether. Thirdly, our attention moves to cases against private actors. Here we will focus on disputes where individuals bring cases against private actors (industry) for their operations, which lead to an increase in greenhouse gas emissions. In this third and final scenario, we will also look into possible cases against pension and investment funds for failure to divest from financing activities that cause climate change. National rapporteurs duly submitted their reports prior to the 2018 IACL Biannual Conference where preliminary results were presented. National rapporteurs were then asked to revise their national reports in order for them to be included as chapters in this book. The result is the book you have in front of you, which brings together insights from over thirty countries and more than forty contributors. While we do not want to judge based on the quality of our own work, what we can say without a doubt is that this book goes beyond the usual suspects in terms of countries covered and, by using the above-mentioned scenario based methodology, goes beyond the existing literature.

3 Climate Change Litigation: Standing, Grounds of Review and Remedies This chapter develops a better understanding of the journey individuals face when bringing climate change disputes against the government, public bodies and/or private actors. Before proceeding, it is important to make two observations. First, this section also focuses on individuals in countries where there has not been any litigation. This is an important aspect of the efforts put into this project and book: i.e. to highlight the experience of countries with little or no climate change litigation. In the latter situation, some of the challenges discussed in this section are speculative, as they have not been tested. A second observation, which is valid for the entire book, is that we are not discussing challenges faced by individuals who want to bring cases as a means to advocate in favour of litigation as the main or even only

8

F. Sindico et al.

way to deal with climate change in a given jurisdiction. Quite the opposite: we are not advocating for litigation in this book, but also not against it. We understand the merits of climate change litigation, but also its limits. Going back to the above-mentioned journey, bringing a climate change dispute to court involves three different phases: standing (the possibility to be heard by a court in the first place), grounds of review (discussion on the merits of the claim) and remedies (action following a positive decision by the court in favour of the individual bringing the claim). For each one of these phases we will sketch its main characteristics and refer to some critical examples and cases stemming from the countries analysed in the book and project. However, this will provide just a glimpse and readers are encouraged to go to the specific chapters to gain a much more in-­ depth understanding of how this journey operates in the different countries covered in the book.

3.1 Standing For an individual to be able to consider taking the government, a public actor or a private entity to court, she needs to have standing. When it comes to standing against the State or public bodies, plaintiffs will usually have to meet the following requirements: the interest at stake has to be genuine,18 the issue has to be serious,19 it has to be an issue that can be validly resolved by a court20 and, lastly, there should be no other effective way to bring the dispute before the court.21 In some cases against private actors, standing will require the individual to prove that she has a sufficient legal interest, which could require, as is the case in Canada, a direct, personal, existing and actual interest in the dispute.22  When an organisation brings a claim on behalf of individuals, the nature and objectives of the organisation will be scrutinised from a standing perspective. This is what happened in the Urgenda case, where the Court pointed to the aims of the Urgenda Foundation, which referred to its goal of advancing a more sustainable society. Interestingly, the Court elaborated on what a sustainable society meant, linking it to the famous definition of sustainable development stemming from the Brundtland Report “Our Common Future”, World Commission on Environment and Development, ‘Our Common Future’ (1987), which includes the rights not only of current, but also of future generations. In doing so, it is unclear whether the Court embraced standing for future generations, but it clearly opened the door to considering long-term negative effects stemming from climate change, which will inevitably impinge upon the (human) rights of future generations. For a more detailed discussion of the Urgenda case and standing issues, see Sect. 1 in the chapter on The Netherlands in this book. 19  For example, in Switzerland a claimant has to demonstrate that the decision of the public actor affects them more than how it affects the general public. In other words, it puts on the individual a heavy burden that can be sometimes very difficult to meet. See Sect. 3 in the chapter on Switzerland in this book for a more detailed discussion. 20  See Sect. 5.2 in the chapter on Canada in this book. 21  Ibid. 22  Ibid. 18

Climate Change Litigation and the Individual: An Overview

9

Standing is a procedural legal challenge that becomes the first strategic hurdle for claimants and the first line of attack for the defendants. Several of the crosscutting issues that we will discuss in Sect. 4 are relevant also during the standing phase of the climate change litigation journey, such as, for example, causation.23

3.2 Merits (Grounds of Review) Once an individual has standing, the case against the government, a public actor or a private entity will be decided based on an alleged violation of a specific obligation. In other words, it is paramount that the claimant identifies a legal obligation that has been breached. This calls for an examination of possible grounds of review in the context of climate change litigation. 3.2.1 Breach of International Law Obligations A first ground of review could be a scenario whereby a government has a legally binding obligation under international law and does not comply with it, either through its actions or through omissions. Whether an individual could bring such a dispute before a national court depends on the country’s approach to international law. If international law is immediately and directly applicable (monist approach), then a breach of international law could be a ground of review in a national court. If the country favours a dualist approach,24 according to which international law will be effective only by means of domestic legislation, the breach of that specific national law will be at the core of the dispute, rather than international law per se.25 Finally, in some cases, the individual may challenge not the domestic piece of legislation that implements a country’s commitments under, for example, the Paris  See Sect. 4.1 below in this chapter.  See Shaw (2008), p. 131. 25  Canada can be considered a dualist country and the government passed the Kyoto Implementation Act as a means to comply with its international obligations, but then decided to withdraw from the Kyoto Protocol altogether. Two cases were brought against the Canadian government arguing that, by withdrawing from the Kyoto Protocol, it had breached its international law obligations. The Court decided against the individuals referring mainly to the executive prerogative and claiming that separation of powers was not breached in this case. See Sect. 2.2 in the chapter on Canada in this book for a more in-depth discussion. Another case in which an individual brought a case against a domestic piece of legislation that implemented the country’s international obligations is the Thomson case in New Zealand. Here, the plaintiff challenged the Climate Change Response Act 2002 claiming that the publication of a new IPCC report required the government to revise its national climate change target. The government responded by saying that such a decision fell within its discretionary power, but the Court ruled against the State making it clear that the release of new science in the form of a new IPCC report called for a revision. The Court ultimately did not enforce its decision due to the change in government in 2017 and its position that it would revise its climate change targets. See Sect. 2 in the chapter on New Zealand in this book for more detail. 23 24

10

F. Sindico et al.

Agreement, but a country’s nationally determined contribution (NDC) set for under the Paris Agreement itself.26 An obvious challenge that needs to be highlighted is when an individual finds herself faced with a lack of a domestic climate change law and policy altogether. Without such normative presence, it will be very difficult (although not impossible) for plaintiffs to ground their complaint on precise and enforceable obligations.27 While the lack of domestic legislation is still a challenge in some countries, there has been a tremendous rise in climate change legislation over the years. With the adoption of the Paris Agreement, this trend has increased and it is now more a matter of having better law, rather than just law.28 Moving back to the Paris Agreement, it is important to recall that, even for monist countries, the Paris Agreement imposes only a procedural obligation consisting of the obligation to develop, publish and maintain an NDC.29 It will be very difficult for an individual to sue a government for its breach of the Paris Agreement.30 This does not mean that the Paris Agreement has no relevance in climate change litigation since, in some cases, courts have referred to the Paris Agreement to interpret national climate law.31 International law obligations will be less relevant, if not completely absent, when it comes to disputes against private actors, since their operations will mainly fall under the competence of the State where they are based.

 In the Thomson case the plaintiff argued that the NDC was illegal because a number of elements had not been taken into consideration, including the negative effects of climate change on Tokelau, a non-self-governing territory of New Zealand, and the ineffectiveness of the country’s NDC from a global perspective. Ibid. 27  The lack of climate law has been mentioned as one of the reasons for the difficulties faced by Earthlife Africa in South Africa. See Sect. 2 in the chapter on South Africa in this book for more detail. 28  See the London School of Economics Database on Climate Laws available at http://www.lse. ac.uk/GranthamInstitute/climate-change-laws-of-the-world/. 29  Paris Agreement (n1); Rajamani and Brunnée (2017) and Klein (2017). 30  In a case against the Norwegian government in which the latter would have breached its own international climate change obligations, as enshrined in its Intended Nationally Determined Contribution, by granting licences for deep-sea extraction in the Barents Sea. The Court did not entertain the international law dimension of the case and did not consider the Paris Agreement in the interpretation of the government’s obligations. It decided against the claimants suggesting a strong deference towards the government. See Sect. 3.2.1 in the chapter on Norway in this book for more detail. 31  The climate change decision in South Africa is relevant because in this case the Court did consider that the obligation to undertake an environmental impact assessment under South African law had to be interpreted taking into account the participation of the country in the Paris Agreement. See Sect. 2 in the chapter on South Africa in this book for more detail. 26

Climate Change Litigation and the Individual: An Overview

11

3.2.2 Human Rights One interesting avenue to bring a State to court is for individuals to argue that the government has breached its human rights obligations towards its citizens. Here, the dispute will focus on the alleged fact that national climate change efforts (law and policy) are not sufficient and will lead to a violation of a number of human rights.32 The main question will be to consider whether a domestic piece of climate change legislation is compatible with human rights law. Moreover, in those jurisdictions where the margin of appreciation doctrine operates, individuals will need to prove that the State has exceeded such margin. In order to assess the compatibility with human rights law, the individual will need to first ascertain that the State is indeed bound by human rights law. In some cases, the international human rights law will be incorporated into national law, in others the country will be obliged from its participation in regional (and global) human rights processes.33 Taking a human rights grounds route can be an important strategic option for individuals in countries like Switzerland where the Constitution prevents pieces of legislation being scrutinised in terms of their legality before the courts.34 It can also be strategically important when Indigenous Peoples are considering whether to bring a claim against a State or a public actor.35 Indigenous Peoples will not only look at climate change litigation for possible breach of substantive human rights, but they will also focus on the possible violation of procedural human rights, such as the right to be consulted.36 Human rights cases are usually conceived as a case of an individual against her own State. However, in some cases the law provides that human rights have to be protected also by the private sector.37

 The unsuccessful case in the UK, Plan B Earth, also hinged upon human rights grounds. The claimants considered the failure of the UK Secretary of State to revise upwards the ambition of emission reduction targets to constitute a human rights violation. See Sect. 2.1 in the chapter on the United Kingdom in this book for an in-depth discussion of this case. 33  An important case was lodged in Switzerland by a group of elderly women who maintained that Swiss climate change law was not strong enough and would, ultimately, lead to a violation of their right to life as well as their human rights enshrined in articles 2 and 8 of the European Convention on Human Rights. The claimants argued that Switzerland was in breach of its human rights obligations because it did not set a target that would achieve “well below 2” and because in a global question like climate change the margin of appreciation for the State was much less. See Sect. 2 in the chapter on Switzerland in this book for a detailed discussion. 34  Ibid; in particular, see art. 190 of the Swiss Constitution in this respect. 35  In Canada there could be a plethora of other human rights that are particularly relevant for indigenous peoples’ claims. For example, equality rights and freedom of religion have been used in environmental claims. Although unsuccessful, they could show what lies ahead. For a discussion on equality and religion in this context, see Sect. 3.2.2 in the chapter on Canada in this book. 36  Procedural human rights, such as the right to be consulted are becoming relevant grounds for action in cases brought by indigenous peoples in Canada. Ibid. 37  This is the case in the Quebec Charter, which opens the door to human rights cases against private actors. Ibid. 32

12

F. Sindico et al.

3.2.3 Tort Law A further ground to consider is tort law (or tort of negligence) and the breach of the standard of due care. Here, a court will be asked to judge whether a State has met its duty of care towards its citizens when it comes to its actions to mitigate climate change. A number of steps need to be considered here. First, is there a duty of care in the first place?38 Second, has the duty been breached? Third, is there a causal link (causation) between the action or omission of the state or public authority and the alleged breach? Finally, is there actual loss?39 Tort law could be also used to challenge a public actor’s decision leading to less resilient adaptation, mainly on negligence and nuisance grounds. These kinds of disputes could arise especially in relation to flooding events, although some cases brought by individuals may well be accompanied by larger claims lodged by insurance companies.40 Tort cases are more often than not linked to the actions of private actors. In fact, a tort law action could be brought against private actors for their actions leading to a rise in greenhouse gas emissions, provided that the individual is able to show a relationship between the damage suffered and the actions undertaken by the private actor.41 The damage is often referred as “special” harm and can be defined as “particular, direct and substantial damage over and above that sustained by the public at large”.42 A new kind of tort, the tort of “intentional investment in abnormally dangerous activities”, was developed by claimants in a case in the US aimed at challenging investment by funds in climate unfriendly projects and activities.43 The case was considered not justiciable, as standing was not granted, hence raising the question

 In the Urgenda case the main question become what amounts exactly to the duty of care. The Urgenda legal team examined numerous sources of law (European human rights law, the Dutch Constitution and international law) that provided the contours of the duty of care. The latter amounts to an obligation upon a State to take mitigation measures to prevent dangerous climate change. See Sect. 3.2.2 in the chapter on The Netherlands for a discussion. 39  For a discussion of the legal standards under tort law, see e.g. Sect. 5.2 in the chapter on Canada in this book. 40  This was the case in the United Kingdom. See Sect. 3.2 in the chapter on the UK for a more detailed discussion. 41  Frequently this type of case will be public nuisance case. Ibid. 42  See note 112 in the chapter on Canada in this book. A case of this nature, extending the arguments of duty of care from the State to a private actor, was filed in April 2019 in The Netherlands against Royal Dutch Shell. See http://www.lse.ac.uk/GranthamInstitute/litigation/milieudefensieet-al-v-royal-dutch-shell-plc/ for details of the case. Royal Dutch Shell whose emissions amounted to 1.7% of global emissions between 1988 and 2015, ranking as the 9th biggest global contributor to climate change, has been found guilty in tort cases in the past and asked to pay damages to Nigerian farmers for the environmental deterioration caused by oil spill damages in Nigeria. See Sect. 4.2 ‘Litigation against major GHG emitters’ in the chapter on the Netherlands in this book for a history and more detail regarding Royal Dutch Shell. 43  This case is discussed briefly in footnote 96 in the chapter on the United Kingdom in this book. 38

Climate Change Litigation and the Individual: An Overview

13

as to whether tort could be used by individuals as a ground to challenge pension and investment funds. 3.2.4 Liability In civil law jurisdictions, liability can be a powerful ground for plaintiffs to sue private actors in a climate change case. However, there will be plenty of obstacles along the way. First, liability requires proof of fault.44 Second, once fault is assessed, damage must be proved and actual and future damage must be certain and assessable.45 Third, causation needs to be tackled. The plaintiff will need to prove a causal link between the fault and the damage. From a climate change case perspective, this requires the plaintiff to prove not only that greenhouse gas emissions cause climate change, but that the plaintiff’s damage is caused by climate change. 3.2.5 Judicial Review An individual may seek to bring a government or a public actor to court because of the irrationality (unreasonableness) or the procedural impropriety of an act or of a decision it has taken. The former requires the plaintiff to prove that the decision from the public body has been unreasonable, where reasonableness can be defined as “the existence of justification, transparency and intelligibility within the decision-­ making process.”46 The latter requires an individual to prove that specific procedural obligations incumbent upon the public actor have not been complied with. In some instances, acts can require to take climate change effects into consideration 47 and, if such effects are not fully or properly considered, the decision adopted by the public body may be challenged. These grounds fall under what is often referred to as judicial review. While the latter is a term better known in common law jurisdictions,48 we use it here as an all-­ encompassing term that includes different means of appealing against State or government decisions under a regulatory and administrative law regime. Judicial review will be mainly used against a government or a public authority’s decision to

 If we take Quebec as an example, fault means acting not in accordance with the normal behaviour of a “prudent and diligent actor placed in the same circumstance”. See the chapter on Canada for more detail, specifically note 103. Fault could also be construed as an abuse of rights. 45  See, for example Sect. 4.1.3 in the chapter on Canada in this book for a discussion about damages. 46  See note 146 in the chapter on Canada in this book. 47  See Sect. 5.1.1 in the chapter on Canada in this book. 48  Judicial review in common law countries bestows power on the judiciary to review executive and administrative actions and decision for legality and appropriateness; it is “the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly.” Church of Scientology v Woodward; see also https://www.alrc.gov.au/publications/common-law-principle-11. 44

14

F. Sindico et al.

authorise socio-economic activities that could lead to a rise in greenhouse gas emissions, hence leading to more climate change.49 Judicial review can, however, also be used when a government or a public actor fails to take measures crucial to adapt to climate change. In some jurisdictions, like in the UK, claimants have challenged State-wide climate change law and policy via judicial review.50 3.2.6 Public Trust Doctrine In some common law jurisdictions, the public trust doctrine could be used in climate change litigation. According to this doctrine, the State holds specific natural resources (air or water for example) in trust for public use. If the State takes actions that could lead to negative effects to those natural elements that it is keeping in trust, then it would be violating its public trust doctrine obligations and can be held accountable. Where a domestic piece of legislation embodies the public trust doctrine, then plaintiffs will have a greater chance of success.51 The public trust doctrine is akin to the active protection on the part of the Crown, which can be found, for example, in New Zealand’s legal system.52 The possibility to use the public trust doctrine is an interesting strategy in countries where the life and culture of indigenous peoples are closely linked to nature, the latter is being negatively affected by climate change and the country has entered into an agreement with the Indigenous Peoples whereby they are granted rights over the land.53

 The UK has seen a flurry of such cases, with cases brought by individuals against, for example, the planned construction of a third runway at Heathrow airport. The UK has also seen judicial review used to challenge developments that would lead to a decrease in greenhouse gas emissions, such as the planning of wind farms, showing that litigation can also be used to put other interests before climate change mitigation. See Sect. 2.2 in the chapter on the United Kingdom in this book for more detail on these examples. In Canada a recent case, unrelated to climate change, has opened the possibility of judicial review on grounds of lack of social acceptability in cases where the local public does not accept a specific project. 50  In the Plan B Earth case the claimants argued that the Secretary of State was acting irrationally in not revising upward the level of emission reduction targets. See note 33 in the chapter on the United Kingdom in this book. 51  In Canada, for example, no cases have been brought before a court under this doctrine, but the British Columbia Islands Trust Act embodies the public trust doctrine very well. BC Islands Trust Act, section 3 states “The object of the trust is to preserve and protect the trust area and its unique amenities and environment for the benefit of the residents of the trust area and of British Columbia generally, in cooperation with municipalities, regional districts, improvement districts, other persons and organizations and the government of British Columbia.” Islands Trust Act, RSBC 1996, c. 239, s. 3. 52  The Wai 2607 was a claim brought by Maori representatives against the State for the lack of climate change action, which had negatively affected Maori livelihoods, ecosystems and culture. See Sect. 2.2 in the chapter on New Zealand in this book for a more detailed discussion of this case. 53  An example of this is enshrined in Article II of te Tiriti in New Zealand, which guarantees “The full exclusive and undisturbed possession of their lands and estates, forests, fisheries and other 49

Climate Change Litigation and the Individual: An Overview

15

3.2.7 Breach of Other Environmental Obligations If there is not a specific climate change law that can be invoked, or if the existing climate change governance framework cannot be relied on, a possible ground is to rely on an alleged breach of other environmental obligations.54 Individuals interested in contesting the lack of effective adaptation in their countries may find this route promising. In fact, good climate change adaptation really means good environmental law and policy. The realm of climate change adaptation includes, amongst others, water governance, flood polices, agricultural law, etc.55 3.2.8 Criminal Law Grounds If a private actor is breaching the law, there may be instances when this could amount to a criminal offence. Criminal law has been used to strengthen environmental law and make environmental protection more effective.56 However, climate

properties which they may collectively or individually possess as long as it is their wish and desire to retain the same in their possession.” Ibid. 54  This was the case in the Netherlands, where claimants wanted to stop the construction of coal power plants, but the way the energy sector was regulated under the EU Emissions Trading Scheme prevented a case being brought on climate change grounds. Since the plants were planned close to high biodiversity sites (Natura 2000 sites), the claimants alleged that the construction and operation of the coal power plants had to be further investigated in order to comply with the government’s environmental and biodiversity obligations. Ultimately, this led only to a delay in the construction of the plants, which were built nonetheless, but they demonstrate that an individual can bring the breach of non-climate change legal obligations as a strategy to delay or block altogether the authorisation by public bodies of activities that will lead to an increase in greenhouse gas emissions. See Sect. 3.3 in the chapter on The Netherlands in this book. In South Africa, the decision to link climate change to air pollution most likely played an important role in the Court’s decision to accept the requirement of a climate change impact assessment for the authorisation of a socio-economic activity (coal power plant) that affects negatively both air pollution, with knock on effects on human health, as well as climate change. For more detail, see Sect. 3.1 in the chapter on South Africa in this book. 55  In some countries, like in Switzerland, an individual can bring a case against a public actor for a breach of a law in one of these non-climate fields. In the Swiss case of A. et al. v. Linthwerk for example, claimants argued that a flood protection plan was insufficient to protect their agricultural land. Although the claim was properly brought, the Court ruled against the claimants, stating the flood protection plan was sufficient. For a more detailed discussion of this case, see Sect. 4 in the chapter on Switzerland in this book. 56  Environmental crimes take the form of illegal trade in wildlife or hazardous materials or waste, illegal logging, etc. and there is growing concern about environmental crimes affecting air quality (e.g. through deforestation), damage to soil and water, and biodiversity loss. See the United Nations Interregional Crime and Justice Research Institute for a discussion about international and transnational environmental crimes, http://www.unicri.it/topics/environmental/. For examples of domestic criminal law related to environmental and/or climate change laws, see the chapters in this book on France, specifically Sect. 3.2.2; Canada, particularly footnote 3 and Sect. 4.2.4; Bolivia, Sects. 3.2 and 3.3; and China, Sect. 3.3.

16

F. Sindico et al.

change cases are not that straightforward since in most cases the release of greenhouse gas emissions stems from lawful activities.57 3.2.9 Anti-Competitive Grounds In Canada an inquiry was sought against organisations for sharing false and misleading representation.58 Such actions would have been in breach of the Competition Act and would have the effect of reducing competition for carbon-intensive economic activities. Although the inquiry was not undertaken, the Commissioner was not altogether against opening such a line of inquiry. It will be interesting to see whether competition law could be a new ground for climate change litigation in the future in countries where individuals feel that part of the private sector is actively promoting climate scepticism and confusing citizens as to the negative effects stemming from carbon intensive activities. 3.2.10 Fiduciary Duties In possible cases against pension or investment funds, fiduciary duties may be used as grounds for legal action. The legal obligation being allegedly breached could be their fiduciary duty towards their shareholders.59 The question of pension and investment funds is also particularly interesting in countries like Switzerland, home to large portfolios of equity.60 No case has arisen because pension funds are not justiciable before the courts in Switzerland, since they are under the control of the national supervisory authority. However, the latter has quasi-judicial powers and could consider that persons managing the funds be held liable if they do not act with care.61 What is emerging, however, is that climate change is being perceived as a risk, not so much towards the environment or people, but towards the financial return of the fund.62 This could be the driver that will push pension and investment funds to become more climate friendly. However, whether an individual can bring a case before a court and attack the risk stemming from investments in non-climate friendly activities is still an open question.

 For a discussion of these complexities, see Sect. 3.4 in the chapter on Norway in this book.  Anti-competitive grounds are discussed in more detail in Sect. 4.2.4 in the chapter on Canada in this book. 59  Interestingly, the largest Norwegian pension fund mentions ‘childrens rights’ in connection with climate change in its annual report, appearing to open the door to the possibility of invoking the principle of inter-generational equity. For an in-depth discussion, see Sect. 3.4.2 in the chapter on Norway in this book. 60  See Sect. 6 in the chapter on Switzerland in this book. 61  See note 56 in the chapter on Switzerland in this book. 62  See Sect. 3.3 in the chapter on the United Kingdom in this book. 57 58

Climate Change Litigation and the Individual: An Overview

17

3.2.11 Breach of International, National and Corporate Guidelines A further way to attack pension funds and oblige them to divest from carbon-­ intensive industries could be by relying on their own allegiance to codes of conduct that call for taking climate change seriously.63 These codes of conduct are voluntary guidelines developed at the international, national or corporate level. The OECD has developed its own Guidelines for Multinational Enterprises and has set up an institutional structure that includes National Contact Points.64 The latter can be approached by individuals who consider the guidelines to have been breached by companies operating in their territory.65 Canada is one of the five largest oil producers in the world, so it is not surprising that pension funds continue to invest in this sector. Having said that, most key players are committing themselves to national and international “voluntary” climate change initiatives and there seems to be no appetite in Canada to take divestment to the courts, at least for now.66 Tables 2 and 3 provide the reader with an overview of the different grounds of review discussed in this section.

3.3 Remedies The third key in the chain of effective litigation, after standing and merits (grounds of review), are the remedies that the individual will be seeking in her dispute against the government, a public actor or a private entity. Remedies could include declarations of constitutional invalidity, severance, reading or reading down offensive litigation, prohibitive or mandatory injunctions or even damages.67 What this really means is that there are three layers when it comes to remedies. The first one is to seek a declaration according to which the law that is being challenged will be considered invalid or illegal. In particular, when it comes to cases against public authorities who have authorised an activity that could lead to an increase in greenhouse  Norway is home to the largest sovereign wealth fund and it follows Ethical Guidelines. By following them, Norway has distanced itself from carbon intensive operations, such as the Dakota Access Pipeline in the United States, but has continued investing in companies producing coal in other parts of the world. See (n60) above. 64  OECD Guidelines for Multinational Enterprises. 65  In 2017 ING was brought before the Dutch National Contact Point for allegedly breaching a number of procedural duties including the obligation to disclose current and future greenhouse gas emissions stemming from its operations. The challenge was declared admissible and in April 2019, the NCP issued its first ever final statement requiring ING to bring its investment strategy in line with climate goals set out in the Paris Agreement. See https://www.business-humanrights.org/en/ netherlands-national-contact-point-accepts-first-oecd-guidelines-complaint-linked-to-climatechange-against-ing-bank. 66  See Sect. 6 in the chapter on Canada in this book. 67  There is a good discussion of available remedies in the chapter on Canada in this book. See section 2.2.3 ‘Remedies available under the Canadian Charter and the Quebec Charter’. 63

Grounds of review Applicable scenario(s) Breach of international Claim against the State for actions or omissions that law obligations allegedly lead to an increase in GHG emissions or a failure to adapt to climate change Human rights Claim against the State for actions or omissions that allegedly lead to an increase in GHG emissions or a failure to adapt to climate change Tort law Claim against the State for actions or omissions that allegedly lead to an increase in GHG emissions or a failure to adapt to climate change Liability Claims against private actors for activities that lead to increased GHG emissions, or against pension or other investment funds for improper or negligent investment Judicial review Claims against the government or other public authority for authorising activity that leads to increased GHG emissions Public trust Doctrine Claims against the State for actions or omissions that allegedly lead to an increase in GHG emissions or a failure to adapt to climate change Breach of other Claims against the State for actions or omissions that environmental allegedly lead to an increase in GHG emissions or a failure obligations to adapt to climate change Criminal law grounds Claims against private actors for (illegal) activities that lead to increased GHG emissions Anti-competitive Claims against private actors for activities that lead to grounds increased GHG emissions or against pension or other investment funds for improper or negligent investment Fiduciary duties Claims against private actors such as pension or investment funds for improper or negligent investment activity Breach of international, Claims against private actors for activities that lead to national and corporate increased GHG emissions or against pension or other guidelines investment funds for improper or negligent investment

Table 2  Grounds of review and applicable scenarios

Claims against the government or other public authority for authorising activity that leads to increased GHG emissions

Claims against the government or other public authority for authorising activity that leads to increased GHG emissions Claims against the government or other public authority for authorising activity that leads to increased GHG emissions

Claims against private actors for activities that lead to increased GHG emissions Claims against private actors for activities that lead to increased GHG emissions

18 F. Sindico et al.

Climate Change Litigation and the Individual: An Overview

19

Table 3  Applicable scenarios and grounds of review Applicable scenarios Claim against the State for actions or omissions that allegedly lead to an increase in GHG emissions or a failure to adapt to climate change

Ground of review • Breach of international law obligations • Human Rights • Tort Law • Public Trust Doctrine • Breach of other environmental obligations Claims against the government or other public authority for • Human Rights authorising activity that leads to increased GHG emissions • Tort Law • Judicial Review • Breach of other environmental obligations Claims against private actors for activities that lead to increased • Human Rights GHG emissions or against pension or other investment funds for • Tort Law improper or negligent investment • Liability • Criminal law grounds • Anti-competitive grounds • Fiduciary duties • Breach of international, national and corporate guidelines

gas emissions the requested remedy on behalf of the claimants can be to annul (declare invalid) or revisit the decision.68 A step further, a second layer, acknowledges that, while such initial remedy may send a positive political signal, it does not stop any action stemming from the implementation of the law to take place. Hence, a second remedy can be framed generally as an injunction, if the case revolves around an action or omission authorised by a public actor, or as reform, if the case is primarily against the State and is about the failure to act strongly enough against climate change. A possible remedy here could be to request the government to consider developing a more ambitious climate policy so that its actions will lead to a decrease in greenhouse gas emissions and in adaptation that is more resilient.69 As we will

 This was indeed the case in the unsuccessful Norwegian case where the claimants were seeking a declaration from the Court that the government’s decision to grant permits for offshore oil exploration in the Barents Sea was invalid. For a longer discussion of this case, see Sect. 3.2.1 in the chapter on Norway in this book. 69  In a tort claim like the Urgenda case, the remedy requested by the claimant was along these lines and consisted of encouraging the State to develop a more ambitious climate plan with a legally binding target in line with its duty of care towards its citizens. Urgenda requested the Dutch State to aim for an emission reduction between 25 and 40% in 2020. For an in-depth discussion of the Urgenda case, see the chapter on the Netherlands in this book. A similar approach was taken in the KlimaSeniorinnen Schweiz case where the claimants requested Switzerland to put in place “adequate” environmental legislation in order to comply with its human rights obligations. “Adequate” 68

20

F. Sindico et al.

see below,70 a remedy of this sort may appear to encroach on politics, potentially blurring the competence boundaries of judiciary and government.71 Injunctions are also a remedy that can be considered when an action is taken against a private actor.72 Finally, individuals may well feel aggrieved and request the third layer of remedies, damages. In some cases, a declaration of invalidity coupled with policy reform and injunction will still not be enough to respond to the negative effects of the law or of its implementation. In some cases the latter will lead to costs incurred by the claimants, for example related to how they had to adapt to negative climate change effects. In such cases, it is likely that the individual will also seek damages as a further and final remedy. For example, a remedy in a case against a private actor whose actions lead to an increase in greenhouse gas emissions may consist in a request for damages.73 Individuals bringing tort claims against private actors may decide to request damages as a compensatory measure for the negative effects stemming from climate change.74

4 Climate Change Litigation: Crosscutting Matters The previous section highlighted the challenges facing an individual when it comes to standing, merits (grounds of review) and remedies. We now turn our attention to a number of legal issues that can appear in one or more of the chains of litigation, starting with causation, followed by the presence of climate science and concluding with the doctrine of separation of powers.

was informed by international climate change law and by climate science and a target of “well below 2” was what was being requested. For an in-depth discussion of the KimaSeniorinnen Schweiz case, see the chapter on Switzerland in this book. 70  See Sect. 4.3 in this chapter. 71  In the Thomson case in New Zealand the remedy that was being asked by the individual was an order by the Court obliging the government to revise national climate change targets following the publication of an IPCC report. A further remedy was sought in this case and that was a declaration of illegality of the government’s decision setting the country’s NDC. For an in-depth discussion of the Thomson case, see Sect. 2.1 in the chapter on New Zealand in this book. The Wai 2607 case called for recommendations to the government for stricter climate policy and action. For an indepth discussion of the Wai 2607 case, see Sect. 2.2 in the chapter on New Zealand in this book. 72  There is a good discussion of injunctive relief as a remedy in Sect. 4.3 in the chapter on Norway in this book. 73  Along the lines of the Shell case discussed in more detail in Sect. 4.2 in the chapter on The Netherlands in this book. See also (n42) above. 74  In Canada, the Quebec Charter allows for punitive damages against private actors for human rights breaches. See Sect. 3.2.2 in the chapter on Canada in this book, particularly the section ‘Remedies under the Canadian Charter and the Quebec Charter’.

Climate Change Litigation and the Individual: An Overview

21

4.1 Causation One of the key hurdles an individual will face when it comes to a climate change case is the question of causation. Climate change, framed by some as a wicked problem,75 is inherently multipolar and multifaceted with no one clear-cut responsible party. From a litigation perspective, the challenge often lies in being able to trace down which emissions lead to a specific injury. The extent to which this becomes an insurmountable challenge depends on the specific legal culture of each country and the progressive nature of the court’s response to causation.76 Causation can lead to a different set of challenges. Some countries may argue before a court that their share of greenhouse gas emissions is insignificant from a global perspective and that an increase in domestic climate change ambition will not make a tangible difference. This was very much one of the lines of defence of the Dutch government in the Urgenda case. The Court relied on UNFCCC art. 3.1 and on the principle of common but differentiated responsibilities therein to clarify that any level, however small, of emissions will lead to increased climate change and a State has an obligation to mitigate its greenhouse gas emissions accordingly.77 In recent years, plaintiffs have moved beyond seeing causation as necessarily the end of the road for a climate change dispute. From a scientific perspective, numerous reports,78 and the most recent IPCC report in particular,79 prove very strongly the relationship between human activity and climate change. Causation is not an issue when it comes to the anthropogenic nature of climate change. What is still problematic is attributing emissions from a specific source to a specific damage caused by climate change. However, even here things have changed quite considerably. On the one hand, the amount of information related to the share of greenhouse gas emissions per individual company has been studied and backed by hard data.80 Together with progressive approaches towards the effect of cumulative emissions,81 this allows plaintiffs to overcome the causation hurdle in some cases. On the other hand, evidence is being released that companies operating in carbon intensive sectors were well aware of the negative effects from a climate change perspective of

 Climate change has frequently been referred to as a ‘wicked problem’ or a ‘super wicked problem’ due to global nature of its effects and the difficulty of determining specific responsible parties. See Termeer et al. (2013), Davoudi et al. (2009), Jordan (2010). 76  In Chile, for example, both climate change cases against a public body and a private actor failed because of the failure to demonstrate the necessary correlation between the climate change damage and the actions at stake. See Sects. 3.2 and 3.2.2 in the chapter on Chile in this book. 77  Urgenda Decision, Para 4.90; see also the chapter on the Netherlands in this book for an in-depth discussion of the Urgenda case and the Urgenda Decision. 78  See for example, IPCC, Fifth Assessment Report (2014); IPCC, Climate Change 2007: Synthesis Report (2007). 79  IPCC—Special Report on Global Warming of 1.5 °C (2018a). 80  Griffin (2017). 81  See for example, Heede (2014). 75

22

F. Sindico et al.

their operations,82 akin to what happened in the past in the tobacco sector.83 The extent to which this prior knowledge will be brought before a court of law is yet to be seen, but it could lead to interesting results in relation to causation.

4.2 Science and Climate Change Litigation To what extent can claimants invoke climate science to strengthen their position? Science can be invoked to back the anthropogenic nature of climate change, but it can also be used to justify a stronger response against climate change. The latter was the case in the Urgenda case where the claimants referred to the IPCC 4th Assessment Report to encourage the Dutch government to take a more ambitious stand when it comes to climate change mitigation.84 The use of climate science, and of the IPCC in particular, to push for stronger domestic targets has been criticised by some,85 arguing that the IPCC Assessment Report was used as if it constituted a legally binding source of international law. The truth is, however, that it is international climate change law itself that requires States to take science into account when interpreting climate law.86 Following the Urgenda case and its nature as a tort law case,87 the content of what amounts to a duty of care for its citizens was interpreted also in reference to existing climate science and the IPCC reports in particular. The KlimaSeniorinnen Schweiz case builds on the Urgenda approach and it has been maintained that “[t]he well below 2°C target is possibly the standard of care required today.”88 In this case, the claimants considered UNFCCC article 2 and its targets as legally binding upon Switzerland.89 The success of using international law within a domestic court depends not only on the predisposition of judges and domestic legal systems, but also on how persuasive the arguments are in relation to the legally binding nature of the provisions within the international climate change legal regime, including the Paris Agreement.90 What is clear is that for those individuals who look at climate science as a means to put pressure on their governments,  Recently uncovered documents show that the oil and gas industry had knowledge of the effects of their industry. See Center for International Environmental Law (CIEL) ‘Smoke and Fumes’; see also Robinson and Robbins (1968). 83  See CIEL’s reporting on the relationship between the tobacco and oil industries and their knowledge regarding health effects at https://www.smokeandfumes.org/smoke/moments/15. 84  See (n77) above. 85  See note 27 in the chapter on The Netherlands in this book. 86  United Nations Framework Convention on Climate Change (UNFCCC); Paris Agreement (n1). 87  Urgenda Decision, Para 2.31; see also (n77) above. 88   See  note 20, chapter on Switzerland in this book. For an in-depth discussion of the KimaSeniorinnen Schweiz case, see the chapter on Switzerland in this book. 89  See Sect. 2 in the chapter on Switzerland in this book. 90  Bodansky (2016), Klein (2017) and Rajamani (2016). 82

Climate Change Litigation and the Individual: An Overview

23

the 2018 IPCC Special Report on 1.5 will provide further data and will surely feature in cases in the future.91 The Thomson case is one of the examples where climate science was truly at the heart of the dispute. The plaintiff argued that the reason why the New Zealand government had to review its climate change national target was because of the release of a new IPCC report. The latter, she argued, should trigger the revision of climate policy domestically. The Court agreed with the plaintiff, although it did not have to enforce its decision due to the change in government. References to climate science both within the UNFCCC and the Paris Agreement were instrumental in the Court’s decision.92 Another interesting aspect of the Thomson case is the way it relied on expert witnesses. Such procedural practice is likely to become more and more relevant especially if judges do not sit on environmental courts and do not possess the necessary technical expertise.93

4.3 Separation of Powers Why does an individual take its own government to court? In most cases, it is because the government faces an accusation of having breached an obligation it owes towards its citizens. The latter feel aggrieved and look to the courts for a decision and a remedy. As we have already mentioned before in discussing the Urgenda case,94 climate change litigation can lead to tensions between the government and the judiciary. The former will believe that the courts should not interfere in what are ultimately political questions. Courts will argue that it is their democratic duty to keep the government in check. In other words, we are before a question of separation of powers, dealt with differently by courts in different countries. The Urgenda case was a resounding success for those believing that the doctrine of separation of powers should not prevent the courts from entering into delicate political territory. In the judges’ own words: “The task of providing legal protection from government authorities, such as the State, pre-eminently belong to the domain of a judge.”95 The KlimaSeniorinnen Schweiz case provides a different narrative with the defendant (the State) strongly arguing that it was not for the judiciary to get involved in determining what constitutes adequate environmental legislation.96  IPCC (n79) above.  For an in-depth discussion of the Thomson case, see Sect. 2.1 in the chapter on New Zealand in this book. 93  Ibid. 94  See Sect. 3.3 above. 95  Urgenda Decision, Para 4.97. See also (n77) above. 96  After the authorities denied the initial request, the Swiss Administrative Court denied the plaintiffs’ appeal and the case is now before the Swiss Supreme Court for consideration. See https:// www.greenpeace.org/international/press-release/20343/swiss-seniors-appeal-climatecase-in-federal-supreme-court/. 91 92

24

F. Sindico et al.

The Thomson case in New Zealand was also fought on justiciability grounds. According to the government, an NDC is eminently a political exercise and not one that can be judged by a court of law. The latter did not quash the NDC as it considered that the government had included the considerations required by the plaintiff. However, the Court did undertake a discussion on its role and considered that judges do have a role to play when it comes to climate change policy. Interestingly, the Thomson Court did this by referring to several cases elsewhere, showing a high degree of judicial cross fertilisation.97 Norway is also an example where judges have taken a different approach. The country has passed a progressive piece of legislation according to which the government has to explain how it will achieve its climate change targets in the framework of the annual budget and how the budget will impact on climate change.98 Both obligations cannot be challenged before courts in Norway, leaving individuals with the possibility of recourse through the Parliamentary Ombudsman.99 Moreover, in a major case brought before the courts trying to annul the Norwegian government’s decision to grant deep-sea extraction licences in the Barents Sea the Court showed a high-level of deference towards the government.100

5 Climate Change Litigation: Challenges Ahead We now move on to discuss some further challenges that individuals may face if they were to bring climate change cases before courts in countries with little or no climate change litigation. These challenges include lack of access to justice, often for financial reasons; lack of capacity, which can relate to the lack of specialised courts; a legal culture that does not favour litigation; and lack of climate change awareness.

5.1 Access to Justice A challenge for any individual in any jurisdiction is the possibility to have access to justice. If the costs of litigation are too high, and are not mitigated by suitable legal aid provisions, then access to the judicial system becomes an illusion. Climate change cases can be very costly due to the complex nature of the subject matter. Many countries may see less climate change litigation because of this financial

 See (n92) above.  See Sect. 2 in the chapter on Norway in this book. 99  See Sect. 3.2.1 in the chapter on Norway in this book. 100  Ibid. 97 98

Climate Change Litigation and the Individual: An Overview

25

challenge. South Africa is one of these countries.101 Even in a rich country like Norway, there have been debates as to the affordability of climate change cases. In addition, the decision by a court to request the government’s case expenses to be covered by the claimants has been criticised.102 Litigation costs are a problem in the United Kingdom, where cuts and policy changes have made things even more complicated.103 Even in countries where there is an option to file for relief from high court fees and litigation costs, such as Kenya, the process of obtaining such relief can be prohibitively complex and long.104 To overcome this challenge, access to courts should be affordable. However, creative solutions are being explored whereby individuals and groups of individuals are starting to rely on crowdfunding to bear the costs of litigation. The extent to which such a strategy is sustainable in the long term is, however, debatable. Another challenge for individuals in accessing the domestic judicial system can be issues related to standing before courts for climate change issues. Qatar is an example of a country where individual private parties lack standing to sue the State over climate change or environmental issues.105 China is an example of a country where there has been progress on broadening standing to NGOs to bring cases to court; however, it is still up to the individual judge to determine whether an NGO has an appropriately worded purpose in order to have access to courts at all.106

5.2 Lack of Capacity (Including Lack of Specialised Courts) The complex nature of climate change cases together with the relative novelty of the climate change law discipline lead to a further important challenge for individuals interested in bringing a government, a public body or a private actor to court. The challenge lies in the lack of capacity not only of the individuals themselves, but also of the judiciary. South Africa falls into this category.107 Also countries like Norway could benefit from further judicial training on climate change legal matters.108 Training seems the obvious solution to overcome a capacity challenge. While this may be true, lack of capacity is being dealt with by litigation itself. What we mean by this is that judges are learning in the process of hearing climate change  For a discussion on the financial hurdles faced by claimants in South Africa, see Sect. 4 in the chapter on South Africa in this book. 102  See Sect. 3.2.2 in the chapter on Norway in this book for more detail. 103  For a discussion on the costs of litigation in the UK, see Sect. 1.2 in the chapter on the United Kingdom in this book. 104  See Sect. 4.2 in the chapter on Kenya in this book for a discussion of filing as a pauper in Kenyan courts. 105  See Sect. 3 in the chapter on Qatar in this book. 106  See Sect. 3.3 in the chapter on China in this book. 107  See (n101) above. 108  See (n102) above. 101

26

F. Sindico et al.

cases. Obviously not an ideal solution, it is nevertheless a powerful one and is happening nonetheless, albeit in some countries more than others. Another way of dealing with the lack of capacity of the judiciary is by focusing on traditional legal doctrines that judges will be familiar with. A further way to challenge the fact that some judges and courts may have difficulties in grasping the scientific complexity present in climate change cases is through the establishment of a specialist environmental court.109 Depending on how such courts are financed and resourced, the latter can be more agile and more effective when dealing with climate change cases. However, even in countries where specialised courts have been developed, such as India’s National Green Tribunals, there can still be a lack of capacity in terms of overflowing dockets and high unpredictability of outcomes of individual tribunals and judiciary decisions.110 In addition to these issues regarding the lack of capacity of the judiciary, political instability can result in a lack of capacity of the legislature to draft and pass appropriate laws and a lack of trust in the judicial system due to a history of corruption. Ukraine is such an example.111

5.3 Legal Culture By legal culture, we refer to a twofold possibility here. On the one hand, a country may well have a legal system where courts thrive and where tensions are often solved through traditional dispute settlement systems before tribunals. In such instances, the challenge will be the unpreparedness or incompatibility of how law has evolved, often through case law, with the specific challenges that climate change cases present to a legal system. On the other hand, legal culture can mean a historical and sometimes cultural aversion to adversarial dispute settlement systems. Some countries may well favour administrative or negotiated solutions to disputes, and such an approach will impact on the possibility of bringing climate change cases before the courts of such a country. The Russian Federation is an example of this latter approach to legal culture in the context of litigation.112 In other instances, legal culture is driven by the political landscape in a country that makes bringing climate change litigation difficult. In Qatar, for example, the department responsible for climate regulatory enforcement is embedded in the State energy producer, Qatar Petroleum, potentially creating a conflict of interest in

 See Sect. 5.1.1 in the chapter on Canada in this book.  See Sect. 4 in the chapter on India in this book. 111  See Sect. 4 in the chapter on Ukraine in this book for an in-depth discussion of these issues. 112  See Sect. 4.1 in the chapter on the Russian Federation in this book. 109 110

Climate Change Litigation and the Individual: An Overview

27

enforcement.113 Similarly, in the Czech Republic, the highly influential industrial lobby makes it politically challenging to pass climate change regulation.114 In other examples, a lack of specific legislation, on which claimants could base a challenge to a State’s action or inaction can make bringing litigation against the State problematic or uncertain, such as in China.115 Other uncertainties in legal cultures that can make bringing climate change litigation difficult include uncertainties on enforcement, such as in India,116 and a lack of guidelines for damages’ calculations, such as in Kenya.117

5.4 Lack of Climate Change Awareness Where a country’s population is either not fully aware of climate change and how it affects them, or unaware of the State’s role in tackling climate change, climate litigation is unlikely, regardless of other challenges faced by claimants as discussed in this section. Kenya is an example where a survey by the Kenyan government revealed that much of the country’s population that is most vulnerable to the effects of climate change are aware of rising temperatures and increased drought, but do not link these phenomena with climate change or greenhouse gas emissions, not to mention the State’s role.118 Similarly, a lack of awareness of the Paris Agreement and States’ obligations, along with more immediate social society concerns like economic crises or sustained armed conflict serve to perpetuate a lack of climate litigation in some countries. Ukraine is an example of this.119

6 The Promise of Climate Change Litigation Climate change litigation literature has burgeoned over the past years and one may wonder why the need for yet another book. Two aspects make this book different. On the one hand, the book and the chapters are based on a scenario-based methodology. We have focused our attention on cases brought against the government, the

 See Sect. 4 ‘Effective climate change litigation in Qatar: the way forward’ in the chapter on Qatar in this book. 114  See Sect. 2.2 in the chapter on the Czech Republic in this book. 115  See Sect. 3.1 in the chapter on China in this book. 116  See Sect. 4 in the chapter on India in this book. 117  See Sect. 4.1 in the chapter on Kenya in this book. 118  See Sect. 4.3 in the chapter on Kenya in this book for an in-depth discussion of this issue. 119  See (n111) above. 113

28

F. Sindico et al.

government itself or another public actor, and cases against private actors.120 On the other hand, this book goes beyond the usual suspects in that it does not limit its attention to countries that have experienced climate change litigation. The added value of the book is that it focuses also on countries with little or no climate change litigation,121 hence exploring the reasons for the lack of litigation and discussing strategies towards litigation. While the chapters clearly go into much more detail for each country, this introductory chapter has focused its analysis on issues of standing, grounds and remedies. It has then discussed cross cutting issues present in many jurisdictions that make climate change litigation particularly complex such as causation, science and separation of powers. Finally, it has sought to highlight those aspects that still stand in the way of climate change litigation in some countries, such as lack of access to justice, lack of capacity, legal culture and lack of climate change awareness. The analysis in this chapter and throughout the book leads to a number of considerations that deserve to be briefly mentioned as they represent aspects, which future academic research on climate change litigation might explore. Firstly, international courts and tribunals do not have the monopoly in the development and implementation of international law. In this respect, climate change litigation is a laboratory to show and assess how domestic courts can act as vehicles for the promotion of the rule of international law, in general, and for the progressive development of climate change law, in particular. The various chapters have highlighted the exponential potential of climate change litigation and the promise that could come with more efficient climate change litigation strategies. At a time where multilateralism is threatened and where certain states are questioning their obligations to tackle global warming under the Paris Agreement, climate change litigation can help to fill the gap and prompt compliance with international obligations and climate action both by governments and also other stakeholders at the domestic level. Secondly, the IPCC reiterated that countries are not doing enough to contribute meaningfully to the overall Paris Agreement emission reductions122 and highlighted

 As outlined in Sect. 2.3 of this chapter, the book discusses three main types of cases: cases where individuals take a government to Court for its actions or omissions regarding greenhouse gas emissions and adaptation to climate change, cases where an individual takes the government or another public authority to Court for authorising an activity that leads to an increase in greenhouse gas emissions, and cases by individuals against private actors (industry) for operations that lead to an increase in greenhouse gas emissions, including pension and investment funds failing to divest from financing activities that cause climate change. 121  See Table 1 for a full list of countries included in the book. 122  “Current national pledges on mitigation and adaptation are not enough to stay below the Paris Agreement temperature limits and achieve its adaptation goals. While transitions in energy efficiency, carbon intensity of fuels, electrification and land-use change are underway in various countries, limiting warming to 1.5°C will require a greater scale and pace of change to transform energy, land, urban and industrial systems globally (…) Although multiple communities around the world are demonstrating the possibility of implementation consistent with 1.5°C pathways, very few countries, regions, cities, communities or businesses can currently make such a claim.” (IPCC 2018b). 120

Climate Change Litigation and the Individual: An Overview

29

that “[t]ransnational networks that support multilevel climate action are growing, but challenges in their scale-up remain.”123 Transnational networks encompass actions and initiatives that involve a multiplicity of actors from different countries in pursuit of the same objective, i.e. tackling global warming. The various chapters in the present book show that climate change litigation can be seen as one response to the challenges identified above. On the one hand, climate change litigation in some countries, as illustrated by the Urgenda, Thomson or Leghari cases for instance, has the potential of bringing states to adopt more ambitious national pledges on mitigation. On the other hand, climate change litigation brings a multi-stakeholder perspective that would render communities,124 regions, cities or businesses more accountable,125 or hopefully more active in the fight against global warming. In fact, even if they do not expressly mentioned so, the chapters show indirectly that climate change litigation has the potential to develop “transnational networks” in support of climate action.126 Linked to the considerations above there is a final point that we wish to make. In order for climate change litigation to play a positive role in the global fight against climate change, it is important to educate different stakeholders in the practice of climate change litigation. Climate education should not be perceived only as making climate science accessible and understandable to children and young people. Climate education should include bringing all policy efforts to improve climate change mitigation and adaptation closer to relevant stakeholders. When it comes to climate change litigation, these stakeholders include civil society, the judiciary and all actors involved in climate change related operations, both in the public and private sector. All of which will hopefully benefit from this book. We wish to conclude this chapter by highlighting once more that this book is not a plea for litigation; it is a book about climate change litigation. By educating as many stakeholders as possible in as many countries of the world by going beyond the usual suspects, climate change litigation can play a positive role in the global fight against climate change.

 Ibid.  See for instance, Sect. 2 in the chapter on Switzerland in this book. 125  See for instance, Sect. 3.5 in the chapter on Colombia in this book. 126  The phenomenon of emulation that derives from climate change litigation reveals its transnational character. For instance, attempts such as “The Case of the Century” in France are largely influenced by litigation actions that took place in The Netherlands and before that in the United States with the case labelled the “Climate Case of the Century”. For further information on the cases mentioned above see Singer (2018) and Pochon (2019). 123 124

30

F. Sindico et al.

References Literature Banda M, Fulton C (2017) Litigating climate change in national courts: recent trends and developments in global climate law. Environ Law Rep 47(2):10121–10134 Bodansky D (2016) The legal character of the Paris Agreement. Rev Eur Comp Int Environ Law 25(2):142–150 Bouwer K (2018) The unsexy future of climate change litigation. J Environ Law 30(3):483–506 Burns W, Osofsky H (2009) Adjudicating climate change: state, national and international approaches. Cambridge University Press, Cambridge Carnwath L (2016) Climate change adjudication after paris: a reflection. J Environ Law 28(1):5–9 Cox R (2016) A climate change litigation precedent: Urgenda Foundation v the State of the Netherlands. J Energy Nat Resour Law 34(2):143–163 Davoudi S, Crawford J, Mehmood A (2009) Planning for climate change: strategies for mitigation and adaptation for spatial planners. Earthscan, London Faure M, Peeters M (eds) (2011) Climate change liability. Edward Elgar, Cheltenham Heede R (2014) Tracing anthropogenic carbon dioxide and methane emissions to fossil fuel and cement producers, 1854–2010. Clim Change 122(1–2):229–241 Jordan A et al (2010) Climate change policy in the European Union: confronting the dilemmas of mitigation and adaptation? Cambridge University Press, Cambridge Klein D et al (eds) (2017) The Paris Agreement on climate change - analysis and commentary. Oxford University Press, Oxford Lin J (2012) Climate change and the courts. Legal Stud 32(1):35–57 Lord R, Goldberg S et al (2011) Climate change liability: transnational law and practice. Cambridge University Press, Cambridge McCormick S et al (2017) Science in litigation, the third branch of U.S. climate policy. Science 357(6355):979–980 Mehling M (2017) A new direction for US climate policy: assessing the first 100 days of Donald Trump’s Presidency. Carbon Clim Law Rev 11(1):3–25 Moncel R, van-Asselt H (2012) All hands on Deck! mobilizing climate change action beyond the UNFCCC. Rev Eur Commun Int Environ Law 21(3):163–176 Peel J (2017) Climate change litigation: lessons and pathways. Judicial Comm 29(11):99–104 Peel J, Osofsky H (2018) A rights turn in climate change litigation. Transnl Environ Law 7(1):37–67 Rajamani L (2016) The 2015 Paris Agreement: interplay between hard, soft and non-obligations. J Environ Law 28(2):337–358 Rajamani L, Brunnée J (2017) The legality of downgrading nationally determined contributions under the Paris Agreement: lessons from the US disengagement. J Environ Law 29(3):537–551 Robinson E, Robbins RC (1968) Sources, Abundance, and Fate of Gaseous Atmospheric Pollutants. Final Report and Supplement. Available at https://www.osti.gov/biblio/6852325. Accessed 26 July 2019 Savaresi A, Auz J (2019) Climate change litigation and human rights: pushing the boundaries. Clim Change Law 9:244–262 Shaw M (2008) International law, 6th edn. Cambridge University Press, Cambridge Termeer C, Dewulf A, Breeman G (2013) Governance of wicked climate adaptation problems. In: Knieling J, Filho W (eds) Climate change governance. Springer, Berlin Wilensky M (2015) Climate change in the courts: an assessment of non-U.S. climate litigation. Duke Environ Law Policy Forum 26(1):131–179

Climate Change Litigation and the Individual: An Overview

31

Treaties, Conventions and Other International References IPCC (2007) Climate Change 2007: Synthesis Report. Contribution of Working Groups I, II and III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change. https:// www.ipcc.ch/report/ar4/syr. Accessed 2 July 2019 IPCC (2014) Fifth Assessment Report, Climate Change 2014: Synthesis Report. https://www.ipcc. ch/pdf/assessment-report/ar5/syr/SYR_AR5_FINAL_full_wcover.pdf. Accessed 7 June 2019 IPCC (2018a) Special Report on Global Warming of 1.5°C: Summary for Policymakers. https:// www.documentcloud.org/documents/4556564-Summary-for-Policy-Makers.html#document/ p1. Accessed 12 July 2018 IPCC (2018b) Special Report on Global Warming of 1.5°C: Chapter 4  – Strengthening and Implementing the Global Response. https://www.ipcc.ch/site/assets/uploads/sites/2/2019/05/ SR15_Chapter4_Low_Res.pdf. Accessed 6 Sept 2019 OECD Guidelines for Multinational Enterprises. http://www.oecd.org/corporate/mne/. Accessed 9 July 2019 Paris Agreement under the United Nations Framework Convention on Climate Change (2015) Entered into Force 4 Nov. 2016 UNEP (2017) The Status of Climate Change Litigation, a Global Review. http://columbiaclimatelaw.com/files/2017/05/Burger-Gundlach-2017-05-UN-Envt-CC-Litigation.pdf. Accessed 3 July 2019 UNEP (2018) Emissions Gap Report. http://wedocs.unep.org/bitstream/handle/20.500.11822/26895/EGR2018_FullReport_EN.pdf?sequence=1&isAllowed=y. Accessed 3 July 2019 United Nations Framework Convention on Climate Change (1992) 1771 U.N.T.S. 107, 31 I.L.M. 849. Entered into Force 21 Mar. 1994 UNFCCC (2015) Decision 1/CP.21. Adoption of the Paris Agreement. FCCC/CP/2015/10/Add.1 World Commission on Environment and Development (1987) Our Common Future. UN Doc A/42/427 Annex 1 World Health Organization, ‘Climate Change and Health’. https://www.who.int/news-room/factsheets/detail/climate-change-and-health. Accessed 7 May 2019

Case Law and Legislative Resources A. et al. v. Linthwerk, FSC 1C_148/2008 (Switzerland) Church of Scientology v Woodward (1982) 154 CLR 25, 70 (Brennan J) (USA) Islands Trust Act. RSBC 1996, c. 239 (United Kingdom) Leghari v. Federation of Pakistan (2015). http://wordpress2.ei.columbia.edu/climate-change-litigation/non-us-case/ashgar-leghari-v-federation-of-pakistan. (Pakistan) Urgenda Foundation v. Kingdom of the Netherlands (2015). http://wordpress2.ei.columbia.edu/ climate-change-litigation/non-us-case/urgenda-foundation-v-kingdom-of-the-netherlands/. (The Netherlands)

Online Resources Australian Law Reform Committee. https://www.alrc.gov.au/publications/common-law-principle-11. Accessed 14 July 2019 Center for International Environmental Law (CIEL) ‘Smoke and Fumes’ reporting at https://www. smokeandfumes.org/documents/16. Accessed 23 July 2019 Griffin P (2017) The Carbon Majors Database: CDP Carbon Majors Report 2017. Carbon Disclosure Project. https://6fefcbb86e61af1b2fc4-c70d8ead6ced550b4d987d7c03fcdd1d.ssl.

32

F. Sindico et al.

cf3.rackcdn.com/cms/reports/documents/000/002/327/original/Carbon-Majors-Report-2017. pdf?1501833772. Accessed 20 July 2019 London School of Economics Database on Climate Laws. http://www.lse.ac.uk/GranthamInstitute/ climate-change-laws-of-the-world. Accessed 15 July 2019 Pochon M (2019) Two million signatures in support of French climate litigation ‘Case of the Century’. Notre Affaire A Tous. https://notreaffaireatous.org/press-release-two-million-signatures-in-support-of-french-climate-litigation-case-of-the-century. Accessed 8 Sept 2019 Sabin Centre for Climate Change Law at Columbia University in collaboration with Arnold & Porter, LLP. http://wordpress2.ei.columbia.edu/climate-change-litigation. Accessed 15 July 2019 Singer P (2018) ‘Trial of the century’ as American group asks court to rule on US climate inaction. Shanghai Daily. https://archive.shine.cn/opinion/foreign-perspectives/Trial-of-the-centuryas-American-group-asks-court-to-rule-on-US-climate-inaction/shdaily.shtml. Accessed 8 Sept 2019 United Nations Interregional Crime and Justice Research Institute. http://www.unicri.it/topics/ environmental. Accessed 22 July 2019 Francesco Sindico  is Reader in International Environmental Law at the University of Strathclyde Glasgow, Law School where he is the Co-Director of the Strathclyde Centre for Environmental Law and Governance. Francesco coordinated the Climate Change Litigation Initiative (C2LI), a global initiative on climate change litigation led by the Strathclyde Centre for Environmental Law and Governance, which builds on this book. Francesco has published extensively on Transboundary Aquifers and International Law, including a monograph published by Edward Elgar in 2020. He currently serves as Associate Editor for the journals Carbon and Climate Law Review and Review of European Community and International Environmental Law. Francesco is currently active in international dispute settlement advising governments before international courts. He has also provided technical support to governments and collaborated with international organisations in training and capacity building programmes. Makane Moïse Mbengue  is a Professor of International Law and Head of the Department of Public International Law and International Organization at the Faculty of Law of the University of Geneva. Prof. Mbengue is also an Affiliated Professor at Sciences Po Paris (School of Law). He holds a Ph.D. in Public International Law from the University of Geneva. Prof. Mbengue has been involved in climate change negotiations and has acted as expert for the African Group in Climate Change Negotiations. He has acted and acts as expert for the African Union, the Secretary General of the United Nations, the United Nations Economic Commission for Africa (UNECA), the United Nations Environment Programme (UNEP), the World Health Organization (WHO), the World Bank, the International Labour Organization (ILO), the United Nations Conference on Trade and Development (UNCTAD), the UN Office of the High Commissioner on Human Rights (OHCHR), the Organization of the Islamic Conference, the Islamic Development Bank, the World Trade Organization, the West African Monetary Union, the League of Arab States, African Regional Economic Communities (ECOWAS, COMESA, EAC and ECCAS), the Senegal River Development Organization, the Niger Basin Authority, the Lake Chad Commission and the International Institute for Sustainable Development (IISD) among others. He also acts as counsel and arbitrator in disputes before international courts and tribunals (in particular, before the International Court of Justice and in investment cases) and as advisor for governments. He is the author of several publications in the field of international law. He is the President of the African Society of International Law (AfSIL) since 2017. Kathryn McKenzie  is a PhD candidate at the Strathclyde Centre for Environmental Law and Governance (SCELG) in Glasgow. Her research focuses on climate change litigation with a particular emphasis on ocean governance. She holds an LLM from Strathclyde University in Global

Climate Change Litigation and the Individual: An Overview

33

Environmental Law and Governance and is the Lead Research Assistant with the Climate Change Litigation Initiative (C2LI), a project jointly led by the SCELG, the University of Geneva Faculty of Law and the National University of Singapore Asia-Pacific Centre for Environmental Law. Prior to joining SCELG, Kathryn worked as a lawyer-mediator in the United States, providing consultant and mediation services, specialising in multi-organisation partnerships and high conflict dispute resolution with a focus on social justice. Kathryn earned her J.D. with a Concentration in Environmental Law from Capital University Law School in Columbus Ohio, and her Bachelor of Music in Classical Voice Performance from The Boston Conservatory of Music in Boston, Massachusetts.

Part I

Countries That Have Experienced (Some) Climate Change Litigation

Climate Change and the Individual: South African Climate Change Litigation Michelle Barnard

Abstract  The first climate change related case law in South Africa saw the non-­ profit organisation, Earthlife Africa, approach the High Court of South Africa to declare an administrative act of the Department of Environmental Affairs (DEA) unreasonable and therefore invalid. The administrative act in question was the granting of an environmental authorisation for the construction of a coal-fired power plant. The applicant argued that the necessary climate considerations were not considered during the environmental authorisation process and relied on a number of international and national legal instruments to successfully prove this. While the Court found in favour of the applicant, the remedy requested, namely that the environmental authorisation be revoked, was not granted. The Court rather chose to refer the matter back to the DEA for reconsideration.

1 Introduction The first and only climate change-centred litigation in South Africa was decided upon in 2017  in the case of Earthlife Africa Johannesburg v The Minster of Environmental Affairs and Others.1 The parties to the case brought before the High Court of South Africa may be listed as follows: Earthlife Africa Johannesburg (Earthlife)2: Applicant  [2017] JOL 37526 (GP).  Earthlife is a non-profit organisation founded to mobilise civil society around environmental issues and is an interested and affected party (“IAP”) as contemplated in section 24(4)(v)(a) of National Environmental Management Act 107 of 1998 (NEMA) and is thus entitled to a reasonable opportunity to participate in public information and participation procedures for the investigation, assessment and communication of the potential consequences or impacts of activities on the envi1 2

M. Barnard (*) North-West University, Potchefstroom, South Africa e-mail: [email protected] © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_2

37

38

M. Barnard

and Minister of Environmental Affairs: 1st Respondent, Chief Director: Integrated Environmental Authoriza­ tions at the Department of Environ­ mental Affairs: 2nd Respondent The Director: Appeals and legal review Department of Environmental Affairs: 3rd Respondent Thabametsi Power Projects (Pty) Ltd: 4th Respondent Thabametsi power company (Pty) Ltd: 5th Respondent. On 25 February 2015, the Chief Director, Integrated Environmental Authorisations (2nd respondent) granted environmental authorisation for the construction of the Thabametsi power station (5th respondent) which Earthlife (applicant) appealed to the Minister of Environmental Affairs (1st respondent) to be reversed. This relief was sought on the grounds that while a number of national as well as international legal instruments expressly or implicitly mandate climate change impact assessments, this requirement was not properly addressed in the Thabametsi Environmental Impact Assessment (EIA). The Minister of Environmental Affairs (1st respondent) however upheld the decision by the Chief Director to grant the authorisation but instructed that a condition be included in the environmental authorisation that a climate change impact assessment must be done within 6 months after the appeal decision.3 Earthlife now seeks to have both the initial environmental authorisation as well as the Minister’s decision on appeal to be reviewed. Earthlife’s appeal centred on the proposition that section 24O(1) of the National Environmental Management Act 107 of 1998 (NEMA) (criteria to be taken into account by competent authorities when considering application) implies as a mandatory pre-requisite, a climate change impact assessment to be conducted and considered before the grant of an environmental authorization. Despite the respondents’ arguments that no express statutory duty is imposed on the competent South African authorities to conduct a climate change impact assessment before granting environmental authorisation, the Court upheld Earthlife’s appeal. However, the court did not provide the relief sought, by having the matter returned to the second respondent for a fresh decision, but rather found that this may be disproportionate in the circumstances of the matter. The court found that the essential and most consequential defect was not the second respondent’s handling of the climate change impacts but rather the first respondent’s treatment of Earthlife’s fourth ground of appeal (that climate change assessments are indeed statutorily entrenched) and that the matter must be reverted back to the first respondent. In this chapter, a series of questions will be answered with reference to the judgment handed down in the case at hand. Some questions are however theoretically answered by way of a reflection on existing South African legislation and policies and not the judgment itself. ronment. It also has standing in terms of section 32(1) of NEMA to bring a review application in its own interest as an IAP, in the public interest and in the interest of protecting the environment. 3  Earthlife Africa Johannesburg v The Minster of Environmental Affairs and Others (n. 1) at Paras 7 and 8.

Climate Change and the Individual: South African Climate Change Litigation

39

2 Climate Change Law in South Africa The South African legal framework pertaining to climate change is poorly developed and currently consists of policy documents and draft legislation in the form of the National Climate Change Response Green Paper of 2010, the National Climate Change Response White Paper of 2011 and the Climate Change Bill of 2018. While both the Green Paper, White Paper and Climate Change Bill reflect South Africa’s general objective in terms of climate change mitigation and adaptation, these documents impose no duty on the State as they are not binding pieces of legislation. The general objective which should direct the South African climate change response as distilled from the three documents listed above is: making a fair contribution to the global effort to achieve the stabilisation of greenhouse gas concentrations in the atmosphere at a level that prevents dangerous anthropogenic interference with the climate system; and effectively adapt to and manage unavoidable and potential damaging climate change impacts through interventions that build and sustain South Africa’s social, economic and environmental resilience and emergency response capacity.4

The fact that no climate change legislation in South Africa exists might point towards the government’s lack of political will to address a major environmental issue and it also makes it difficult to base climate change claims on specific statutory provisions. In the Earthlife case, however, the applicants relied on a number of national and international legal instruments in order to bring a successful claim against the South African government.

3 Climate Change Litigation in South Africa 3.1 Claims Against the Government In addressing the question of whether an individual can bring a case against the South African government for not complying with its international climate change obligations the court found in favour of the applicants. The respondents were heavily set against the argument that international climate change law imposes compulsory mitigation obligations upon South Africa as a developing country. Their arguments revolved around the categorisation of countries as Annex I (with compulsory mitigation obligations) or non-Annex I (with voluntary mitigation obligations) countries. The respondents argued that the Kyoto Protocol, 1997 obliges only Annex I countries to the United Nations Framework Convention on Climate Change, 1992 (UNFCCC) to adopt mitigation measures to limit GHGs by setting emissions targets. In light of the fact that South Africa is not an Annex I country it is not bound

 Section 2 of the Green Paper of 2010.

4

40

M. Barnard

by these international obligations.5 The respondents also argued that the South African Intended Nationally Determined Contributions (INDC) communicated at the 21st Conference of the Parties and in terms of the Paris Agreement, 2015 expressly anticipates the establishment of further coal-fired power stations and an increased carbon emission rate until 2020.6 The respondents note that the South African INDC prioritises poverty alleviation over climate change action and that in addressing South Africa’s energy challenges and poverty further coal-fired power stations will be needed. In responding to these arguments put forward by the respondents, the applicant relied heavily on the interpretation approach of “reading in” international climate change obligations into national law and/or policy. In particular, the applicant indicated how South African legislation consistently interpreted with current international law would have the result of the reading in of a climate change impact assessment requirement in the NEMA.7 The teleological interpretation of NEMA as followed by the applicant in its fourth ground for appeal8 is prescribed in terms of section 233 of the Constitution of the Republic of South Africa, 1996. This provision instructs courts to follow any reasonable interpretation of legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.9 In following this interpretation approach, the applicant urged the court to interpret section 24O(1)(b) of NEMA10 against the international climate change obligations contained in articles 3(3) and 4(1)(f) of the UNFCCC.  Article 3(3) mandates State parties to take precautionary measures to anticipate, prevent and/or minimise the causes of climate change while article 4(1) (f) obliges these parties to include climate change considerations in their national environmental policies and actions. As to the point of the South African INDC and the argument by the respondents that this INDC in actual fact mandates further coal-­ fired power stations, the Court clarified the issue at hand. It stated that the question at hand was not whether the INDC permits new coal-fired power station but rather whether climate change impact assessments should be required before authorizing new coal-fired power stations. As to this question, the Court viewed that a climate  Earthlife Africa Johannesburg v The Minster of Environmental Affairs and Others (n. 1) at Para 35. 6  The South African INDC is based on the peak-plateau-decline trajectory with the levels being described as follows: PEAK—between 398 and 583 Mt CO2-eq(by 2025), PLATEAU—between 398 and 614 Mt CO2-eq (remains at this level for a decade) and DECLINE - 212 and 428 Mt CO2-eq (from 2035 onwards). South Africa’s Intended National Determined Contribution (INDC) 2014 submitted at COP 21 held in Paris in December 2015. 7  Earthlife Africa Johannesburg v The Minster of Environmental Affairs and Others (n. 1) at Paras 83 and 84. 8  The Chief Director had failed to take into account the state’s international and national obligations to mitigate and take positive steps against climate change. Earthlife Africa Johannesburg v The Minster of Environmental Affairs and Others (n. 1) at Para 53. 9  Ferreira and Ferreira-Snyman (2014), p. 1473. 10  This section lists the requirements that should be considered by the Chief Director when considering the granting of an environmental authorisation. 5

Climate Change and the Individual: South African Climate Change Litigation

41

impact assessment is necessary and relevant to ensure that a proposed coal-fired power station fits into the South African INDC objective of building cleaner and more efficient power stations.11 As to the question of reading international legal obligations into national legal frameworks, the Court reacted favourably to the teleological interpretation approach as proposed by the applicant. It stated that the legislative and policy scheme (which should be seen to include international climate change law and policy) overwhelmingly support a conclusion that climate change impacts and mitigation measures must be included as relevant factors during an environmental authorisation. To quote Judge Murphy at para 91 of the judgment: For all these reasons, I find that the text, purpose, ethos and intra- and extra-statutory context of section 24O(1) of NEMA support the conclusion that climate change impacts of coal-fired power stations are relevant factors that must be considered before granting environmental authorisation.

3.2 Claims Against Public Bodies’ Decisions 3.2.1 A Decision That Does Not Comply with Climate Change Obligations on Human Rights Grounds In the South African legal system it is possible for an individual to bring a case against a decision of a public body that does not comply with climate change obligations on human rights grounds and in the Earthlife case this was one of the central issues at hand. On the topic of climate change impact assessments as requirement during environmental authorisation, the applicant highlighted the Constitutional duty resting on the Courts to interpret all legislation to promote the purport, spirit and objects of the Bill of Rights.12 As stated by the applicant, this approach should be applied when the legislative provision (in this case section 24O(1)(b) of NEMA) under interpretation affects or pertains to a specific right/s contained in the Bill of Rights. In this case, the right to an adequate environment as contained in section 24 of the Constitution was applied by the applicant in interpreting NEMA.13 Section 24 reads: Everyone has the right (a) to an environment that is not harmful to their health or well-being; and (b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that (i) prevent pollution and ecological degradation; (ii) promote conservation; and

 Earthlife Africa Johannesburg v The Minster of Environmental Affairs and Others (n. 1) at Para 90. 12  Section 39(2) of the Constitution of the Republic of South Africa, 1996. 13  Earthlife Africa Johannesburg v The Minster of Environmental Affairs and Others (n. 1) at Para 81. 11

42

M. Barnard (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

In its interpretation of section 24O(1)(b) of NEMA against the fundamental human right to an adequate environment, the applicant highlighted that sections 24(b)(i) and (iii) mandates the prevention of pollution and environmental protection by securing ecologically sustainable development and use of natural resources. The foregoing must be balanced with justifiable economic and social development in order to reach the overarching objective of promoting sustainable development in South Africa.14 The applicant argued that not only do coal-fired power plants cause air pollution but that the gases emitted during coal-fired electricity generation exacerbate the environmental challenge of climate change. The applicant listed a number of substantial environmental risks related to climate change, namely: rising temperatures, greater water scarcity, and the increasing frequency of natural disasters to underline the need to include climate change impact assessments in environmental impact assessments.15 In a parallel argument the applicant also referred to the close link between sustainable development and the principle of inter-generational equity in order to indicate that the State must take reasonable measures to protect the environment against the risks of climate change “for the benefit of present and future generations”.16 3.2.2 The Decision to Authorise a Major Infrastructure Operation That Allegedly Does Not Comply with National Obligations Leading to a Rise in Greenhouse Gas Emissions This was one of the primary legal issues before the court. In their arguments the respondents focused on the lack of an express national mandate in environmental legislation, regulations or policies for a climate change impact assessment to take place prior to environmental authorization. Thabametsi (4th and 5th respondents) disputed the fact that section 24O of NEMA included reference to climate change considerations as criteria to be considered when granting environmental authorization. The applicant’s rebuttal to the arguments of the respondents was set out in their fourth ground of appeal,17 namely that Chief Director had failed to take into account the state’s international and national obligations to mitigate and take positive steps against climate change. In dealing with the national obligations, the applicants relied again on a purposive interpretation of certain provisions of NEMA as well as

 Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province, and Others [2007] (6) SA 4 (CC). de Wet and du Plessis (2010), p. 347. Kotzé (2010), p. 137. 15  Earthlife Africa Johannesburg v The Minster of Environmental Affairs and Others (n. 1) Para 82. 16  Ibid. 17  Ibid. at Para 60. 14

Climate Change and the Individual: South African Climate Change Litigation

43

provisions contained in the National Environment Management: Air Quality Act 39 of 2004 (NEMAQA). NEMA In their arguments in proving that national obligations to mitigate climate change and indeed conduct a climate change impact assessment before environmental authorization takes place, the applicant purposively interpreted section 240(1) of NEMA. Section 24O(1)(b) of NEMA lists the criteria to be considered during an environmental authorization as: (b) take into account all relevant factors, which may include (i) any pollution, environmental impacts or environmental degradation likely to be caused if the application is approved or refused; (ii) measures that may be taken (aa) to protect the environment from harm as a result of the activity which is the subject of the application; and (bb) to prevent, control, abate or mitigate any pollution, substantially detrimental environmental impacts or environmental degradation; (iii) the ability of the applicant to implement mitigation measures and to comply with any conditions subject to which the application may be granted; (iv) where appropriate, any feasible and reasonable alternatives to the activity which is the subject of the application and any feasible and reasonable modifications or changes to the activity that may minimise harm to the environment; (v) any information and maps compiled in terms of section 24(3), including any prescribed environmental management frame-works, to the extent that such information, maps and frame-works are relevant to the application; (vi) information contained in the application form, reports, comments, representations and other documents submitted in terms of this Act to the Minister, Minister of Minerals and Energy, MEC or competent authority in connection with the application; (vii) any comments received from organs of state that have jurisdiction over any aspect of the activity which is the subject of the application; and (viii) any guidelines, departmental policies and decision making instruments that have been developed or any other information in the possession of the competent authority that are relevant to the application

The applicants then interpreted the above-mentioned provision purposively by applying the binding directive principles contained in section 2 of NEMA. These

44

M. Barnard

binding directive principles must be applied to inform all decisions taken under NEMA—which includes decisions regarding environmental authorisations. These directive principles not only serve as guidelines within which organs of State must exercise their functions but they must be applied to guide the interpretation, administration and implementation of NEMA and any other environmental legislation.18 Included in the list of NEMA directive principles are the principles of sustainable development19 as well as a general mitigation principle which holds that environmental harm must be avoided, minimized and remedied.20 The applicant views the environmental impact assessment process as a driver for sustainable development in that it ensures a balancing act between developmental need (social and economic) and the environmental impact said development is set to have. While these provisions purposively interpreted may lay the basis for arguing in favour of a general obligation to mitigate climate change, a more specific obligation to include climate considerations in the environmental impact assessment process was derived from the provisions of the NEMAQA. NEMAQA Earthlife’s second ground of appeal was that the Chief Director failed to take into account the air quality impacts of the project and in so doing contravened NEMAQA.  In terms of its stated objective NEMAQA must provide reasonable measures for: the protection and enhancement of air quality; the prevention of air pollution and ecological degradation; securing ecologically sustainable development while promoting justifiable economic and social development; and generally give effect to section 24(b) of the Constitution in order to enhance the quality of ambient air for the sake of securing an environment that is not harmful to the health and well-being of people.21

NEMAQA is therefore primarily concerned with the quality of ambient air and secondarily concerned with other kinds of pollution and environmental degradation. NEMAQA provides that when considering an application for an Atmospheric Emission License (AEL) the licensing authority must consider current and/or future air pollution resulting from carrying out a listed activity as well as the effect of said pollution on the environment, health, social conditions, economic conditions, cultural heritage and ambient air quality.22 Section 1 of NEMAQA defines “pollution”

 Ibid. at Para 80.  NEMA Section 2(3). 20  Ibid. at Section 2(4)(a)(viii). 21  NEMAQA, Section 2. 22  Ibid. Section 39(b). 18 19

Climate Change and the Individual: South African Climate Change Litigation

45

as having the meaning assigned to it in section 1 of NEMA, which defines it to include any change in the environment caused by substances emitted from any activity where that change has an adverse effect on human health or well-being or on the composition, resilience and productivity of natural or managed ecosystems, or on materials useful to people, or will have such an effect in the future.

This all-embracing definition of pollution thus encompasses the emission of GHGs as a form of pollution. Furthermore, as prescribed by section 39(c) the licensing authority must apply practicable environmental option to prevent, control, abate or mitigate the pollution.23 On its fourth ground of appeal, the applicant relied heavily upon the content of section 43(1) of NEMAQA to drive home the point that national legislation indeed acknowledge the curbing of GHG emission and climate change mitigation via the requirements for an AEL. In terms of the stated provision, an AEL concluded in terms of sections 39(b) and (c) of NEMAQA must specify GHG measurements and reporting requirements. In much the same vain, the National Framework for Air Quality Management24 acknowledges that “specialist air quality impact assessments must consider greenhouse gas emissions as well”. The requirements for an AEL are listed in section 43(1) of NEMAQA as: (i) the maximum allowed amount, volume, emission rate or concentration of pollutants that may be discharged in the atmosphere over the life of the listed activity25; (ii) point source (a single identifiable source and fixed location of atmospheric emission) emission measurement and reporting requirements26; (iii) any other operating requirements relating to atmospheric discharges, including non-point source or fugitive emissions27; and (iv) greenhouse gas emission measurement and reporting requirements.28 The Court considered the purposive interpretation of section 24O(1)(b) read with section 2 of NEMA in conjunction with the applicants exposition of sections 39(b) and (c) and section 43(1) of NEMAQA and found that the applicant had proved the existence of a national obligation to conclude a climate change impact assessment before environmental authorisation.

 Earthlife Africa Johannesburg v The Minster of Environmental Affairs and Others (n. 1) at Para 59. 24  Government Notice 919 GG 37078 of 29 November 2013. 25  NEMAQA, Section 43(1)(g). 26  Ibid. Section 43(1)(i). 27  Ibid. Section 43(1)(h). 28  Ibid. Section 43(1)(1). 23

46

M. Barnard

3.2.3 Public Actor That Allegedly Does Not Comply with National Obligations Leading to a Failure to Adapt to Climate Change In the case at hand, the focus fell mainly on the topic of climate change mitigation in the form of including climate change considerations into the list of requirements of the environmental impact assessment of a coal-fired power station. The applicant did however make fleeting mention of the duty resting on the South African government to develop and implement a National Climate Change Response Adaptation Strategy. In founding the legal basis for this duty, the applicant referred to the National Climate Change Response White Paper of 2011 of South Africa. In terms of its provisions, the White Paper states that an effective South African response to, and just transition to a climate-resilient and low-carbon economy and society depends upon legislative interventions that are socially, economically and environmentally sustainable.29 In its answering affidavit, the DEA stated that while it has taken positive steps in developing a National Climate Change Response Adaptation Strategy, it must be borne in mind that the White Paper itself recognises the country’s strong dependence on coal for electricity generation and that it will continue to be a significant GHG emitter.30 The respondent once again tried to rely on the argument that adaptation to coal-fired related climate change would only be economically viable in the medium to long term (again referring to the peak-plateau-decline trajectory) and that it acted correctly in authorising the Thabametsi power plant.31 In rebuttal to the contentions of the respondent, the applicant referred to the inclusion of “the mainstreaming of climate change considerations and responses into all relevant sector, national, provincial and local planning regimes” as strategic priorities in the White Paper. Earthlife contended that the integrated environmental authorization process as purported to in Chapter 5 and the section 240(1)(b) requirements of NEMA, the Chief Director should have considered both the GHG emissions and the future climate change impacts of the project as part of a full “climate change screening”. The applicant sees both mitigation as well as adaptation measures to be included in such a climate change screening and that the optimisation of climate change adaptation to impacts of the full life cycle of the project is key.32 The applicant focused strongly on the lack of adaptation measures related to water scarcity as a climate change impact closely linked with coal-fired electricity generation. Earthlife submitted to the Minister of Environmental Affairs that water access adaptation measures were not considered by the Chief Director “either adequately or at all”.33

 Section 2 of the White Paper. Kidd and Couzens (2013), pp. 653–678.  Ibid. at Para 6.2 and para 7. 31  Earthlife Africa Johannesburg v The Minster of Environmental Affairs and Others (n. 1) at Para 27. 32  Ibid. at Para 54. 33  Ibid. at Para 55. 29 30

Climate Change and the Individual: South African Climate Change Litigation

47

In her decision on the appeal the Minister noted Earthlife’s contention that a detailed climate impact study on the impacts of climate change—in particular water access as adaptation measure in a changed climate—was indeed necessary. Furthermore, interested and affected parties should have been awarded the chance to comment on this aspect and their comments should have been considered by the DEA before granting the authorization.34 It should be noted that the concerns regarding the absence of adaptation considerations has been taken on board and are now reflected in Thabametsi’s climate change resilience report.35

3.3 Claims Against Private Actors 3.3.1 Claims Against a Private Actor Whose Actions Contribute to a Large Rise in GHG Emissions The question of whether one individual would be able to bring a case against another individual on the basis of his/her act leading to a large rise in GHG emissions was not dealt with in the Earthlife judgment. This notwithstanding, such an action would theoretically be legally possible in South Africa and would be based on the constitutional right to an adequate environment.36 In terms of section 167(3)(b)(i) of the Constitution a person may be granted direct access37 to the Constitutional Court if the matter pertains to a constitutional matter and granted that the individual has locus standi. Section 38 of the Constitution contains a list of persons who may approach the court with an allegation that a right in the Bill of Rights has been infringed or is being threatened. Included in the list are the following persons: 38. (a) (b) (c) (d) (e)

anyone acting in their own interest; anyone acting on behalf of another person who cannot act in their own name; anyone acting as a member of, or in the interest of, a group or class of persons; anyone acting in the public interest; and an association acting in the interest of its members.

Applying the same argument as the applicant did when interpreting NEMA against sections 24(a) and 24(b)(i) it should be theoretically possible for an individual to gain access to the Constitutional Court on the basis of section 38 of the Constitution.38 Interestingly enough in the current case, it was the respondents (and not the applicant) who made mention of possibly contesting the constitutionality of  Ibid. at Para 62.  Savannah Environmental Climate Change Study and Palaeontological Impact Assessment for Final Public Review, 17 June 2017, Para 3.2. 36  Section 24 of the Constitution. 37  Direct access means that the matter brought before the Constitutional Court has not been heard by the High Court or the Supreme Court of Appeal. 38  Swanepoel (2014), pp. 63–85. 34 35

48

M. Barnard

NEMA. The applicants however did not pursue this avenue but rather focused on the irregularity of the action of the Chief Director to grant the environmental authorisation. 3.3.2 Claims Against a Pension Fund (or a Similar Entity) Whose Actions (i.e. Investments) Contribute to a Global Rise in Greenhouse Gas Emissions or Difficult Adaptation to Climate Change This aspect was not dealt with in the case at hand but South African law makes it theoretically possible for an individual to bring a case against a pension fund (specifically) and other institutional investments39 (generally) on the ground that their investments contribute to an environmental challenge such as climate change.40 Of specific relevance to this question is Regulation 28 to the Pension Fund Act 24 of 1956 which was promulgated in 2011. Regulation 28 pertains to prudential investment guidelines and states that environmental, social and governance (ESG) factors are just as important considerations as economic factors when investing. In essence it requires the board of a pension fund to consider ESG factors before making an investment and also while invested in any given asset. As enforcement and accountability mechanism for Regulation 28 the Code for Responsible Investing in South Africa, 2011 (CRISA) requires institutional investors to disclose the policies underpinning their investment decisions and actions.41 While CRISA is a non-­mandatory mechanism, its backing by key role-players such as the Government Employees Pension Fund has stimulated a number of institutional investors to subscribe to the code or risk having funds being withdrawn by the GEPF.42 Regulation 28 itself does not contain a list of what would be considered ESG factors to be considered by institutional investors but the investment actions of companies subject to the CRISA provide some insight. A company’s carbon footprint as environmental factor is considered critical by 15% and as critically important by 67% of companies interviewed during a 2013 ESG investment study. On the specific topic of climate change as an environmental factor to be considered when institutional investors consider certain investment, a 2013 study

 Institutional investment is a collective term that refers to various funds including public and private pensions, collective investment schemes and insurance reserves. 40  Girdwoord (2011). 41  For an overview of CRISA visit accessed 12 December 2017. 42  Many large South African asset managers, such as Old Mutual, Allan Gray and Prudential, subscribe to the CRISA in their investment philosophies, believing that it is to the long-term benefit of their clients. Managers may screen the companies they invest in or, through shareholder voting power, influence companies that are failing to uphold their ESG responsibilities to “do the right thing”. accessed 12 December 2017. 39

Climate Change and the Individual: South African Climate Change Litigation

49

shows that 46% of these investors view climate change as important.43 The provisions related to ESG-friendly investments by pension funds and other institutional investors as contained in Regulation 28 would embody the legal ground upon which an individual might be able to bring a case against said investor in a South African court.

4 Effective Climate Change Litigation in South Africa: The Way Forward While the Earthlife judgment is a positive step towards a South African environmental law landscape which is more sensitive to climate change and its impacts, some major hurdles still face individuals wishing to address climate change issues via the judiciary. Two very specific and pertinent issues especially relevant to the Global South are financial constraints of litigants and the lack of specialised knowledge in highly technical fields such as climate change. Gaining access to a South African court in the instance where government or a private actor has neglected their climate change commitments looks to be the easy part considering the interpretation of legal instruments by the applicants in the Earthlife case. What will however be more challenging is finding an applicant who is willing and able to pay the extensive legal fees connected with litigation of this nature. In the instance where finances have been successfully obtained and the applicant enters litigation, she will in all probability bring her case before a judge who is not versed in the very technical content of climate change law. The foregoing statement is made considering the relatively new status of climate change law globally but more specifically in South Africa.44 Moreover, considering that only three pieces of non-binding policy documents embody the current South African climate change legal framework, finding jurisprudence to base a judgement on is also an impediment at the South African national level. These general challenges aside, Earthlife and the nature of the remedy provided also points to another very specific indicator of the non-efficacy of litigation. The remedy requested by the applicants, namely that the decision of the Chief Director be set aside and that the environmental authorisation process start anew, was not provided by the Court and a rather watered down remedy was provided instead. The reluctance of the Court to make a ruling that set aside the unreasonable administrative action is unfortunate despite the fact that the requested remedy would have sent a much stronger message to governmental authorities. The points listed above lead the author to conclude that litigation does not embody the most effective vehicle for environmental change in the South African legal context.

 Van der Ahee and Schulschenk (2013).  The first piece of climate change policy was only drafted in 2010 and since then only two other pieces of climate change specific policies have followed. 43 44

50

M. Barnard

5 Conclusion The ruling of the Court to not set aside the environmental authorisation but rather to have the appeal process be reconstituted will (in all probability) have the same effect as revocation of the initial granting of the authorisation. The Court would have sent a stronger message in setting aside the environmental authorisation. The Court’s decision not to provide the remedy requested is vague and I do not agree with the statement that such a remedy would be disproportionate—considering that this remedy would only apply to Thabametsi’s environmental authorisation being set aside. The decision handed down in this case should to my mind pave the way for statutory revision of the EIA requirements in South Africa and should not “merely” provide precedent for further, lengthy and costly litigation.

References Code for Responsible Investing in South Africa, 2011 Constitution of the Republic of South Africa, 1996 de Wet E, du Plessis AA (2010) The meaning of certain substantive obligations distilled from international human rights instruments for constitutional environmental rights in South Africa. Afr Human Rights Law J 10:345–376 Earthlife Africa Johannesburg v The Minster of Environmental Affair and Others [2017] JOL 37526 (GP) Ferreira G, Ferreira-Snyman A (2014) The incorporation of Public International Law into Municipal Law and Regional Law against the backdrop of the dichotomy between Monism and Dualism. Potchefstroom Electr Law J 17(4):1471–1496 Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province, and Others [2007] (6) SA 4 (CC) Girdwoord A (2011) The Regulatory Context for Responsible Investing in South Africa. World Wildlife Fund Briefing Paper Kidd M, Couzens E (2013) Climate change response in South Africa. In: Hollo E, Kulovesi K, Mehling M (eds) Climate change and the law. Springer, New York Kotzé LJ (2010) Phiri: the plight of the poor and the perils of climate change: time to rethink environmental and socio-economic rights in South Africa. J Human Rights Environ 2:135–160 Kyoto Protocol, 1997 National Climate Change Response White Paper, 2011 National Environment Management: Air Quality Act 39 of 2004 National Environmental Management Act 107 of 1998 National Framework for Air Quality Management Government Notice 919. Government Gazette 37078 of 29 November 2013 Paris Agreement, 2015 Regulation 28 to the Pension Fund Act 24 of 1956 Savannah Environmental Climate Change Study and Palaeontological Impact Assessment for Final Public Review, 17 June 2017 Swanepoel CF (2014) The judicial application of the “interest” requirement for standing in constitutional cases: “A radical and deliberate departure from common law”. De Jure United Nations Framework Convention on Climate Change, 1992 Van der Ahee G, Schulschenk J (2013) The state of responsible investment in South Africa, MCom Thesis. University of Pretoria

Climate Change and the Individual: South African Climate Change Litigation

51

Michelle Barnard  is an Associate Professor at the Faculty of Law, North West University and holds an LLB, LLM and LLD at the same institution. Her research focuses on the linkages between energy generation and consumption and climate change mitigation and adaptation at the South African, Southern African, African and international levels. She has authored and co-authored a number of journal articles and chapters in books on these and related topics.

Climate Change Litigation in Colombia María del Pilar García Pachón, Adriana Viloria, and María Daniela de la Rosa Calderón

Abstract Climate change negatively affects Colombia’s rich biodiversity. Therefore, there is a necessity to analyze law as a mechanism for protecting the country’s natural resources from the effects of this global condition. In that matter, it is necessary to present the country’s legislation, politics, and planning regarding climate change, in order to understand the context in which these obligations arise. Derived from these various responsibilities, various types of claims were identified. These claims can be studied in respect of the alleged actor and the alleged conduct, whether it is the government or the private sector who did not comply with the climate change obligations, or the failure of the public sector’s decisions on climate change adaptation. This document presents the scenario of climate change litigation in the country, by a study of the case law on various contentious situations. It shows their effect on the broader scenario of Colombia’s attempts at climate change management and protection.

1 Introduction Colombia has an extraordinary environmental richness, represented in its amazing bio-diversity, which exists throughout the national territory, especially in the Amazonian region that corresponds to 42% of the country. This natural heritage represents 10% of the world’s biodiversity and 311 types of continental and coastal

M. del Pilar García Pachón (*) Universidad Externado de Colombia, Environmental Law Department, Bogotá, Colombia e-mail: [email protected] A. Viloria Superintendencia de Servicios Públicos Domiciliarios, Bogotá, Colombia M. D. de la Rosa Calderón Universidad Externado de Colombia, Bogotá, Colombia © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_3

53

54

M. del Pilar García Pachón et al.

ecosystems, among which are natural forests, páramos,1 wetlands, glaciers, marine beaches, coral reefs, seagrass beds, rocky coastlines, soft bottoms, etc.2 Consequently, in accordance with the need to protect nature, the Political Constitution of Colombia contains provisions to protect the nation’s cultural and natural wealth (Article 8. CP), protect the diversity and integrity of the environment, preserve areas of special ecological importance, promote education to achieve these ends (Article 79. CP), prevent and control environmental deterioration factors, impose legal sanctions, and demand compensation (Article 80). From the constitutional mandate, from the past, progress has been made in the issuance of policies and norms aimed at the protection and conservation of the natural environment,3 and the country has adhered to various international instruments in favor of conservation.4 Colombia’s natural wealth is threatened by climate change, since it contributes 0.46% of the planet’s greenhouse gases (Government of Colombia, S.F). Also, because of its geographical position and its ecological and socioeconomic conditions, it is highly vulnerable to the effects of climate change. These circumstances show that it is particularly relevant to analyze the role of law in protecting against this phenomenon, and this includes the way judicial power is advanced against the negative effects of climate change. To achieve this goal, the Colombian legal and political bases in this area will be described and then the claims that have been presented related to climate change in Colombia will be analyzed, as well as the judgments and their content.

 The concept “páramo” in Spanish or moor, was defined by the Res. 0769 of 2002 as follows: “Páramo: High mountain ecosystem, located between the upper limit of the Andean forest and, if it is the case, with the lower limit of the glaciers or perpetual snow, in which it dominates a herbaceous and grassy vegetation, frequently frailejones and may have formations of low and shrubby forests and presenting wetlands such as rivers, streams, peat bogs, swamps, lakes and lagoons”. 2  Vid. (IGAC et al. 2007). According to the Information System on Biodiversity in Colombia, the Country occupies the first place in diversity of birds and orchids, the second in diversity of plants, amphibians, sweet-aquaculture fish and butterflies, the third place in diversity of reptiles and plants, and the fourth on a world scale in terms of diversity of mammals; vid. (SIB 2019). 3  In 1959, Colombia already had laws that sought the conservation of renewable natural resources. Law 9 of that year delimited seven zones of forest reserve and established that forest lands that are used or could serve as water supply for internal consumption, production of electricity and irrigation, would also be forest reserve areas and whose slopes are greater than 40% (art. 2. °). 4  Regarding Conservation Colombia, it is part of different international agreements focused on the conservation of biodiversity, for example: the Convention on the Continental Shelf of 1958; Convention on Fishing and Conservation of the Living Resources of the High Seas, 1958; the 1972 Convention concerning the Protection of the World Cultural and Natural Heritage—UNESCO 1972; the Convention on International Trade in Endangered Species of Wild Fauna and Flora— Cites 1973; Treaty for Amazonian Cooperation 1978, Convention for the Protection of the Marine Environment and Coastal Zones of the South-East Pacific (Lima Convention) (1981), The Convention for the Protection and Development of the Marine Environment in the Wider Caribbean Region (WCR) or Cartagena Convention (1983), among others. 1

Climate Change Litigation in Colombia

55

2 Climate Change in Politics and Law in Colombia During the last 20 years, there has been a rather rapid increase in concern about the regulation of practices that impact global warming and most especially, climate change. This is the reason why, in local and international scenarios, countries have committed to preparing regulation that can effectively enforce the necessary shifts to sustainable development. Colombia is not a stranger to these global tendencies because it has developed a regulatory framework around this matter. These regulations include the materialization of international obligations and the country’s own initiatives recognizing the changes in temperature throughout the globe and the adverse effects on the environment and its inhabitants. The path through Colombia’s climate change law started with the Law 164 of 1994, which ratified the United Nations Framework Convention on Climate Change (UNFCCC). The UNFCCC’s aim was to “stabilize atmospheric concentrations of greenhouse gases, the objective acknowledges climate change as a problem and helps legitimize it as a matter of international concern” (Bodansky 1993). The convention, which was adopted in full, includes commitments that take into consideration Colombia’s position as a developing country, as article 4.1 establishes the international law principle of common but differentiated responsibilities. In this way, Colombia shall contribute to the measures against climate change only within its possibilities and respecting the country’s own national and regional priorities. Nevertheless, some of these obligations include the promotion of technologies that reduce greenhouse gases in its productive sectors.5 Also, taking climate change into consideration when developing social, economic, and environmental policies.6 The next step towards facing the global issue of climate change was ratifying the Kyoto Protocol with the Law 629 of 2000. The Kyoto Protocol followed the guidelines of its predecessor, the UNFCCC: global warming has its origins on CO2 emissions from human activity and so, it is a scientific certainty that must be dealt with. Its international significance was that “for the first time, negotiators have attempted to lay out emission reduction targets for the early part of the 21st century” (Manne and Richels 1998). The Agreement provides mechanisms that countries can execute to comply with the target of reduction of greenhouse gases. But, not all of them are effective for all the parties involved. For instance, the Clean Development Mechanism7 allows only for Annex I countries (developed countries) to invest in ventures of developing countries whose goals are reducing global warming. In this sense, Countries undergoing or at risk of large-scale deforestation, such as Brazil, Indonesia, Bolivia, Peru, Colombia, and Central African nations, have no incentive to reduce or avoid  The United Nations Framework Convention on Climate Change. Article 4.1.c.  id. Article 4.1.f. 7  This mechanism “allows industrialized countries to meet part of their caps using credits from emission-reduction projects in developing countries” (Carbon Trust, 2009). 5 6

56

M. del Pilar García Pachón et al. emissions from deforestation. There is a clear need for substantial incentives for developing countries to meaningfully participate in emissions reductions in the near term. (Santilli et al. 2005)

Subsequently, it is worth mentioning the Conpes documents 3242 of 2003 regarding the Institutional Strategy for the sale of environmental services of climate change mitigation and 3700 of 2011, which contains the Institutional Strategy for the articulation of policies and actions regarding climate change in Colombia. The Conpes documents are produced by the National Department of Planning and approved by the National Council of Economic and Social Policies8 (which is the highest national planning authority). Although, in strict sense they are not legally binding, it is important to analyze these technical documents because they contribute to the understanding of global warming as a problem related to economic and social development and they usually serve as guidelines for producing law. The aim of the Conpes 3242 is the incursion of Colombia into the international market of verified emission reduction of greenhouse gases. According to the document, to execute this plan, it is necessary to create a policy for the sale of environmental services of climate change mitigation and the consolidation of supply of verified emission reduction of greenhouse gases and its international marketing. With respect to the Conpes 3700, its general objective is to “facilitate and foment the formulations and implementation of policies, plans, programs, incentives, projects and methodologies in the matter of climate change, (…) by the configuration of a scheme of intersectoral articulation” (Consejo Nacional de Política Económica y Social 2011). Then, Law 1523 of 2012 led to the adoption of the National Policy of Disaster Risk Management, and the creation of the National Disaster Risk Management System. Under this, climate change is mentioned as one of the functions of the national committee for risk reduction: this organism should guide and articulate environmental management policies and actions for climate change adaptations that contribute to disaster risk reduction. Later, there was a promotion of the development of non-conventional renewable energy sources by the Law 1715 of 2014. Its objective was to align Colombia’s development to the guidelines imposed by internal and external climate change regulations and its consequent obligations. In order to achieve this, a shift is necessary in the industrial and domestic energy sources to other energy sources that can reduce greenhouse gases and promote economic development and security in energy supply. Further, the Decree 298 of 2016 was issued, establishing the organization and functioning of the National Climate Change System.9 According to articles 1 and 2, its primary objectives are to: formulate, coordinate and articulate the policies, regulations, resources, plans, strategies, instruments, mechanisms and information

 El Consejo Nacional de Política Económica y Social (CONPES).  Sistema Nacional de Cambio Climático (SISCLIMA).

8 9

Climate Change Litigation in Colombia

57

regarding climate change and mitigation of greenhouse gas emissions with the necessary involvement of public, private, and non-profit entities. Furthermore, the Law 1844 of 2017 evidences Colombia’s pledge to bind itself to the reinforcement of the global responses to climate change and its effects. This law entirely ratifies the Paris Agreement on Climate Change. Under this treaty, all parties set the goal of maintaining the earth’s temperature under 2  °C.  Also, it includes the improvement of the ability to adapt in the face of adverse effects of climate change and the promotion of climate resilience, towards a sustainable development. Regarding Colombia’s condition, article 4.4 establishes that although developed countries are the ones that should lead the emission reduction goals, developing countries shall maintain their efforts on mitigations and the adoption of emission reduction goals for their economies, regarding the specific national circumstances of every country. Another non-legal public policy document that is worth mentioning is the 2017 Nacional Climate Change Policy: a document for decision takers, elaborated by the Ministry of Environment and Sustainable Development. Above all, it is relevant to emphasize the proposed development model related to green growth. This means the search for a development that eliminates the link between economic growth and greenhouse gas emissions. The purpose of this policy is “to establish a coordinated management of mitigation and adaptation actions, oriented to face climate change risks” (Ministerio del Medio Ambiente y Desarrollo Sostenible 2017). The document proposes that the combination of both types of measures is the path to take to assure a higher level of success. While mitigation actions are targeted to the energy, transport, industry, and waste management sectors, adaptation measures are vital to water, health, infrastructure and housing. Regarding the forestry and agricultural sectors, these need both types of measures. In this way, the approach planned in this National Policy responds to specialized characteristics of sectors and, therefore, a particular response is essential, thus assuring higher efficiency in targeting the very diverse issues to be taken into consideration regarding climate change. More recently, a notable climate change law that is considered relevant to the present times has been issued. This Law 1931 of 2018 establishes guidelines for the management of climate change. It is deemed as a sample of Colombia’s fulfillment of its duties under the Paris Agreement. Hence, the law should be analyzed in a broader manner. It is composed of 4 main topics: general dispositions, the National Climate Change System, instruments for the management of climate change, and financial and economic instruments for the management of climate change. In a broader context, the general dispositions in its article 1 include the objective of the law, which is the establishment of guidelines for climate change management on the decisions of the people and the state, the mitigation of greenhouse gas emissions, and the transition to a competitive, low carbon, sustainable economy. Also, it mentions which principles should guide the implementation of this law. To mention a few: self-management, coordination, co-responsibility, cost-effectiveness, gradual

58

M. del Pilar García Pachón et al.

implementation, prevention, and responsibility to comply with acquired commitments. Furthermore, the law refers to the National Climate Change System (which was created in 2016, as mentioned above) and creates the National Council of Climate Change and explains its functions, such as the presentation of concepts regarding the National Climate Change Policy. Additionally, the law mentions the roles that the different public entities that comprise the National Climate Change System shall comply with. For instance, the ministries, departmental, municipal, and district authorities, as well as regional environmental authorities will have to take into consideration in their development plans, risk management and adaptation to climate change and the use of renewable energies and greenhouse gases. In sum, authorities must incorporate climate change measures in all planning instruments. Regarding the last item, this incorporation must be done in all documents elaborated, adopted, revised, and updated by January 1st of 2020. There are also various instruments for the management of climate change, which provide different approaches. In this sense, studying all of them is a different and broader task than the objective of this chapter. Nevertheless, to shed light on the vastness of the topic it is necessary to mention a few of them. The instruments of planning and management by which climate change management is to be executed include: the National Climate Change Policy, which was previously described; sectoral and territorial integral plans of climate change management; development plans of territorial entities; and territorial ordering plans. Also included are national contributions (regarding gases reductions) before the United Nations Framework Convention for Climate Change, climate change adaptation on risk management plans, public investment projects, and the National Information System about Climate Change. From the perspective of economic instruments, the law establishes: the tradable greenhouse gas emission quotas, the creation of the National Program of Tradable Greenhouse Gas Emission Quotas. Particularly, regarding the financial instruments, the resources that will be generated from the sale of tradable greenhouse gas emission quotas will be used only for greenhouse gas reduction initiatives and climate change adaptation. Furthermore, the state can create an incentive regime for public or private persons that achieve concrete adaption and mitigation actions on climate change. All things considered, Colombia is making some advances towards the regulation of initiatives that take a stand on the challenges that emerge from climate change. Since 1994, when the Law 164 ratified the United Nations Framework Convention on Climate Change, the country has included its principles and objectives. This was done by committing to other international standards, creating state agencies only dedicated to fulfilling the goals of reduction of greenhouse gases and executing adaptation and mitigation climate change measures. Despite the inclusion in several non-legal strategies and planning documents and the issuance of different standards to show that Colombia is prepared to deal with the consequences of climate change, it must be recognized that there is still a need

Climate Change Litigation in Colombia

59

to develop stronger inter-sectoral bridges that will allow implementation of the State policies. The Sectoral Action Plans for Climate Change Mitigation (PAS) need to be implemented, and the actions, programs, and policies to reduce greenhouse gases need to be promoted and effectively achieved in the short, medium and long term (MADS 2018). The mining, oil and gas, electricity, transport, waste, industry, and agricultural sectors that already have a PAS must pursue their objectives in order to reach the projections that Colombia has established. Finally, changes of government, armed conflict, economic needs and intentions to increase capital by the use of biodiversity in an unsustainable manner must be recognized as a serious risk in order to achieve the goals set out in the legislations on climate change in Colombia.

3 Climate Change Litigation in Colombia Considering the Colombian legal system, individuals are allowed to bring claims before local courts against the government, public entities, or private actors for allegedly not complying with national laws or international obligations related to climate change matters. In this sense, an overview of dispute resolution mechanisms in Colombia will be described and some landmark court cases will be analyzed below, through six scenarios related to this phenomenon.

3.1 Claims Against the Government for Allegedly Not Complying with Its International Climate Change Obligations Individuals in Colombia can issue claims against the government for allegedly not complying with its international climate change obligations that have been incorporated in the national legal system. As a matter of fact, an individual could claim the application of a law or an administrative act (Article 87. CP) through the action of compliance included by Law 393 of 1997. Therefore, any act or omission of the government or any other public authority could be challenged if there is sufficient evidence to demonstrate the violation of climate change obligations. However, so far there is no known case within these grounds in Colombia.

60

M. del Pilar García Pachón et al.

3.2 Claims Against Public or Private Actors That Allegedly Do Not Comply with Climate Change Obligations (National or International), on Human Rights Grounds On the other hand, individuals can also bring a case against a public or private actor that allegedly does not comply with national or international climate change obligations, on human rights grounds, highlighting the right to life, health, and a healthy environment (Article 79. CP). In this sense, the legal system provides different means for individuals to bring claims to courts, including the “popular action” (Article 88. CP) for the protection of collective rights and interests, and the “tutela action” (Article 86. CP) for the immediate protection of fundamental constitutional rights. Recently, the Colombian Constitutional Court10 heard a matter of “tutela” where the inhabitants of a small town requested the protection of fundamental rights to life, human dignity, health, and environmental sanitation. They claimed that those rights were affected due to climate change and the significant increase in the town population, since they did not have access to water supply. In this case, the court decided to protect those human rights and ordered different authorities to urgently and immediately ensure the provision of the vital minimum of drinking water for both the claimants and the individuals who, at the time of the decision, were affected on those grounds, since they were supposed to be covered by the Regional Aqueduct. However, up to now, there is no known case where an individual has submitted this kind of action against a public entity or a private actor directly for the breach of climate change commitments.

3.3 Claims Against Public Actors Charged to Authorize a Major Infrastructure Operation That Allegedly Does Not Comply with National Obligations Leading to a Rise in Greenhouse Gas Emissions Up to now, there is no known case where an individual has submitted any claim against a public entity of Colombia for the breach of national obligations leading to a rise in greenhouse gas emissions. However, the legal system includes mechanisms or “actions”, which can be brought before a court by any individual against public entities, towards the protection of rights and/or the application of national laws and local regulations related to

 Cf. Constitutional Colombian Court. Decision T-218/2017. P.J.  Alejandro Linares Cantillo. Bogotá, D.C., April 19th, 2017. Available at: http://www.corteconstitucional.gov.co/ relatoria/2017/t-218-17.htm. 10

Climate Change Litigation in Colombia

61

environmental matters. Those actions are: (i) Nullity of the administrative act; (ii) Nullity of the administrative act and restoration of the right; (iii) Direct Repair Action. In this sense, an individual can issue one of these actions, claiming the fulfilment of procedural obligations related to the development of major infrastructure or to the grant of environmental licenses, which ultimately is the mechanism to analyze if the operation could lead to a rise in greenhouse gas emissions. Also, a procedural obligation is the fundamental right of prior consultation of the indigenous people and other ethnic groups who should be consulted when projects, works, or activities will be carried out within their territories. The above, since their cultural integrity and right to participation are involved, have a special level of protection (Universidad del Rosario n.d.).

3.4 Claims Against Public Actors That Allegedly Does Not Comply with National Obligations Leading to a Failure to Adapt to Climate Change As evidenced in the following cases, individuals in Colombia have claimed the breach of national obligations by public entities that lead to a failure to adapt to climate change. 3.4.1 Amazon Case11 In this case, claimants12 were able to demonstrate that the higher deforestation rate of the Colombian Amazon will continue to increase greenhouse gas emissions and climate change (García Pachón 2018). In this sense, it was determined by the Supreme Court of Justice that there was an omission and a breach of the duty of protection of the Colombian Amazon, since the measures that were taken by the public bodies were not enough to tackle Amazonian deforestation and the large impacts of climate change (Fonseca 2018). For the Court, there was inefficiency of the administrative action, and in adherence to the solidarity principle, the Administration must respond to the situation with various kinds of corrective and palliatives measures (Cabezas 2018). The Amazon case is a successful example of the way in which individuals can exercise the tutela action as an adequate mechanism in Colombia to protect  Cf. Supreme Court of Justice. Decision STC. 4360-2018. P.J. Luis Armado Tolosa Villabona. Bogotá, D.C., April 5th, 2018. Available at: http://www.cortesuprema.gov.co/corte/wp-content/ uploads/2018/04/STC4360-2018-2018-00319-011.pdf. 12  One of the main characteristics of this case, is that the plaintiffs are a group of children, teenagers and young adults, who claim for the protection of their rights and the rights of future generations. 11

62

M. del Pilar García Pachón et al.

fundamental rights to life, health, and a healthy environment. Moreover, and as in previous decisions,13 the Supreme Court of Justice recognized the Colombian Amazon as an entity subject to rights. This narrative about nature possesses great dynamism, especially when we recognize the notion of nature as a subject in opposition to the modern position which considers it as a mere object (Herrera Ospina and Rodríguez Insuasty 2015). The Court ordered the challenged national and local authorities, in coordination with the National Environmental System, to formulate and execute action plans in a short, medium, and long term, seeking a lower rate of Amazonian deforestation. Furthermore, among other measures, the Court ordered the creation of an Intergenerational Pact for the Life of the Colombian Amazon to support the adoption of measures to reduce deforestation and greenhouse gas emissions to zero. All the above was ordered considering that the growing deterioration of the environment is a serious threat to current and future life and all other fundamental rights, and thus gradually exhausts life and all the rights related to it (Erazo Coral 2018). This decision has marked a trend in Colombia regarding the protection of nature and the environment. However, it should be clarified that the effectiveness of this decision is limited by the administrative difficulties of the respondent authorities, the lack of governance in the territory, the continuing armed conflict in the area, illegal mining activities, and the zero or limited treatment of wastewater generated in the area. 3.4.2 Páramo Case14 This is a successful case since it was the first time that the Constitutional Court directly protected a páramo or moor ecosystem against mining activities, not only because of its ecological importance but also because they can hardly be recovered once affected by extractive activities. The constitutional decision analyzed legal and scientific arguments protecting a healthy environment and water resources, since páramos play an important role in mitigating climate change as they are natural carbon deposits. Due to the importance of the diverse environmental services that they provide, the moor ecosystems are given special legal protection by Colombia and by diverse international environmental entities (Rubiano Galvis 2015). Additionally, the Court concluded that the Ministry of Environment and Sustainable Development and the National Mining Authority must carry out the delimitation of the moors with ecological criteria seeking the deceleration of climate change, ­protecting biodiversity, the nation’s wealth, and the fundamental right to water.  Constitutional Colombian Court. Decision T-622/2016. P.J.  Jorge Iván Palacio. Bogotá, D.C., November 10th, 2016. Available at http://www.corteconstitucional.gov.co/ relatoria/2016/t-622-16.htm. 14  Cf. Constitutional Colombian Court. Decision C-035 of 2016. P.J. Gloria Stella Ortiz Delgado. Bogotá, D.C., February 8th, 2016. Available at  http://www.corteconstitucional.gov.co/ relatoria/2016/c-035-16.htm#_ftn131. 13

Climate Change Litigation in Colombia

63

By this, the court’s analysis was based on the need to harmonize the constitutional tension between the powers of the State to extract resources from its property and the autonomy of territorial entities, especially to regulate land uses (Ámbito Jurídico 2016). 3.4.3 Environmental Licenses Case15 The Constitutional Court established that the procedure for granting environmental licenses requires prior review from indigenous and tribal communities from the specific territory and it has to be communicated to the society in general, as an indeterminate third party, which has been a huge success in Colombia to protect the rights of minorities. This is specifically relevant because traditionally the areas where indigenous groups inhabit are of great natural value, water producers, and with high biodiversity, which clearly are going to be affected by projects (Rodríguez 2017). The Court protected the right to access and conservation of a healthy environment, and the use, enjoyment, and disposition of areas not selected for exploitation. 3.4.4 Atrato River Case16 The Constitutional Court recognized the Atrato River as an entity subject to rights related to protection, conservation, maintenance, and restoration by the State and the ethnic communities. It is a successful case since it recognized a serious violation of the fundamental rights to life, health, water, food security, healthy environment, culture, and territory of ethnic communities from the river basin, resulting from the omissions of governmental, national and local entities which did not provide public responses to the needs of the territory and its habitants, given the challenge of illegal mining activities in the region. Besides the recognition of the river as subject to rights, this judgement is innovative because the court recognized the bio-cultural rights of communities to manage and autonomously exercise the protection of their own territories and the natural resources that are part of their habitat, since that is where their culture, their traditions, and their lifestyle develop, counting on their relationship with the environment and the biodiversity (Tierra Digna n.d.).

 Cf. Constitutional Colombian Court. Decision C-298 of 2016. P.J. Alberto Rojas Ríos. Bogotá, D.C., June 8th, 2016. Available at  http://www.corteconstitucional.gov.co/ RELATORIA/2016/C-298-16.htm. 16  Cf. Constitutional Colombian Court. Decision T-622 of 2016. P.J. Jorge Iván Palacio. Bogotá, D.C., November 10th, 2016. Available at  http://www.corteconstitucional.gov.co/ relatoria/2016/t-622-16.htm. 15

64

M. del Pilar García Pachón et al.

Despite the above, the judgement has serious argumentative weaknesses. For example, it applies the precautionary principle incorrectly and recognizes the right to nature without analyzing the content of such recognition or its legal consequences. Like the case of the Amazon River, the level of effectiveness of the judicial decision is not clear. 3.4.5 Risk Management Policy Case17 The Court recognized that fundamental rights to life and decent housing could be disrupted, as an immediate and direct consequence of the disturbance of collective rights. In this case, those fundamental rights were affected by environmental changes and lack of local authorities’ response and proper risk management. This management is defined by the Colombian Geologic Services as the social process that integrates an interinstitutional framework with the participation of communities, and is oriented to formulate, exercise, provide tracing, and evaluate all strategic, programmatic, and execution topics that allow adequate territorial ordering for the reduction of the disaster risks of the communities (Colombian Geologic Service 2015). The Court established that there was an unjustified delay in the resettlement of citizens from areas near the Galeras Volcano, by national and local authorities who delayed in the regulatory transition period introduced by Law 1523 of 2012, which “adopted the national disaster risk management policy and established the National Disaster Risk Management System”. Regarding the population that inhabits the influence area of the Galeras Volcano, the relationship of the people with its natural environment has been altered and that is the reason why it is necessary to change the passive attitude towards this at-risk habitat (Contreras Mojica 2006). In addition, the Court concluded that authorities have to follow the subsidiarity principle, which recognizes the autonomy of local entities to exercise their powers and protect the quality of life of their habitants, while they work with other public entities to face the needs that exceed their institutional and budgetary capabilities, as in the events of disaster or public calamity. 3.4.6 Disasters Prevention Case18 The popular action can be brought in Colombia to seek protection of different rights of a specific community, including the collective right to safety and prevention of technically foreseeable disasters. The Disaster Prevention Case was a success since  Cf. Constitutional Colombian Court. Decision T-269 of 2015. P.J. Jorge Iván Palacio. Bogotá, D.C., May 12th, 2015. Available at: http://www.corteconstitucional.gov.co/ RELATORIA/2015/T-269-15.htm. 18  Cf. Council of  the  State. Decision file: 13001-23-33-000-2015-00052-01(AP)A.  C.R.  María Elizabeth García González. Bogotá, D.C., August 2nd, 2017. Available at: http://portal.gestiondelriesgo.gov.co/Documents/Juridica/Fallo_Consejo_de_Estado_02-06-2017.pdf. 17

Climate Change Litigation in Colombia

65

the State requested the local authorities, with the support of the national unit for risk management, to comply with the law, procedural obligations, and emergency plans in order to foresee and manage the disaster risks caused by the erosion of a town resulting from the dynamic activity of the Magdalena river and the impact of climate change. The above decision was to contribute to the security, wellness, life quality, sustainable development, and protection of the collective rights and interests of the communities at risk. This was necessary because the law establishes the responsibility of the departmental governments not only to formulate the risk management plan and execute its processes on their territories, but also to integrate the departmental planning, strategic, and prioritized actions regarding risk management under their responsibility through all the planning instruments (Magdalena Department Government 2012). 3.4.7 El Niño Case19 The Council of the State of Colombia established that the El Niño phenomenon is unforeseeable and uncontrollable under the current circumstances of climate change. The IDEAM20 supported this idea stating that its occurrence does not follow a common pattern because the deficiencies are more marked in some areas, and in others, cannot even be perceived. Thus, it can be established that in general, the effect is differential throughout the national territory (Montealegre Bocanegra 2007). Therefore, measures such as the constitutional precautionary principle by all public authorities are legitimate, as it is understood as a valuable input to address and manage the increasing uncertainty of the impact of climate change in different territories, which could affect collective interests and fundamental rights. Additionally, the precautionary principle fits perfectly with the legal principle of continuity of public services such as electricity, which every authority has to follow to avoid interruptions, other than those programmed. This principle is a public policy directive for the protection of essential interests (public health and environment) that recommends taking conservation measures that are capable of impeding the fulfillment of an eventual risk (Troncoso 2010).

 Cf. Council of the State. Decision file 11001-03-24-000-2001-00090-01. C. P. María Elizabeth García González. Bogotá, D.C., July 14th, 2017. Available at: http://www.consejodeestado.gov.co/ documentos/boletines/PDF/11001-03-24-000-2001-00090-01.pdf. 20  Colombia’s Hidrology, Meteorology and Environmental Studies Institute. 19

66

M. del Pilar García Pachón et al.

3.4.8 Oro River Floods21 It is important to note, regarding this case, that in rendering its decision, the State Council considered the Sendai Framework for Disaster Risk Reduction 2015–2030, among other international frameworks and highlighted the need for prevention and risk reduction for the habitats of the territory where the floods were foreseeable, and not just disaster care by public authorities. One of the main decisions of the Council of State declared the Government obligation to assume leadership of the prevention and risk reduction policies, even more so when ignorance of this obligation can put the lives of the population at risk. This instrument opens the national and international scale discussion on who is responsible for the management of the negative effects of climate change, which is why there is a need for improvement in the understanding of disaster risk in the dimension of exposure, vulnerability and hazard characteristic; the strengthening of disaster risk governance, including national platforms; and accountability for disaster risk management (UN 2015). Nevertheless, due to the urgency of the matter, the ruling determined the necessity to take measures regarding risk mitigation directed to the inhabitants of the zone near the Oro River because, in any event, the flooding of the river can affect the integrity of the community. 3.4.9 Marlinda and Villagloria Communities’ Case22 The Council of the State found a breach of collective rights, such as security and disaster prevention, as the territory where the communities were located was exposed to multiple risk factors, including floods and affections caused by environmental changes. Floods can negatively affect various scenarios of human life, such as housing, physical health and safety hazards, and psychological distress. Also, flooding impairs clean water sources with pollutants and devastates sanitary toilets. Direct and indirect contact with the contaminants—whether through direct food intake, vector insects such as flies, unclean hands, or dirty plates and utensils—result in waterborne illnesses and life-threatening infectious diseases (Minamiguchi n.d.). The ruling dictated that almost 600 families should be relocated. However, this created a social issue regarding the inhabitants of the zone, because they did not want to leave the territory they consider ancestral, thus dismissing the danger they were facing, by choosing to stay.

 Cf. Council of  the  state. Decision file 68001-23-33-000-2017-00139-01(AC). C.R.  Stella Jeannette Carvajal Basto. Bogotá, D.C., May 25th, 2017. Available at: http://www.consejodeestado.gov.co/documentos/boletines/PDF/68001-23-33-000-2017-00139-01(AC).pdf. 22  Cf. Council of  the  state. Decision file 13001-23-31-000-2011-00315-01(AC) C.R.  Roberto Augusto Serrato Valdés. Bogotá, D.C., May 18th, 2017. Available at: http://www.consejodeestado. gov.co/documentos/boletines/PDF/13001-23-31-000-2011-00315-01(AP).pdf. 21

Climate Change Litigation in Colombia

67

3.4.10 Ibague Case23 The precautionary principle is progressively affirmed as a rule of direct and autonomous application regarding the decisions of public authorities. This decision considered what is established on the matter by the Rio Declaration on Environment and Development and Colombian Law 99 of 1993 (article 1 num. 6). In this case, several mining contracts where preemptively suspended with the sole purpose of avoiding their execution, since they could eventually result in irreparable damage to the ecosystems and natural resources of the zone. As a result, the measures to be applied regarding the precautionary principle have to be graduated, taking into consideration the negative effects to the environment with the development of the concrete activity (Lora Kesie 2011).

3.5 Claims Against Private Actors Whose Acts Lead to a Large Rise in Greenhouse Gas Emissions Any individual in Colombia can raise a claim challenging the actions or omissions of a private actor, demonstrating the actor’s breach of obligations leading to a rise in green-house gas emissions. The above has been evidenced in the following cases: 3.5.1 Rediba Case. T-227/201724 In this tutela case, claimants challenged different public entities and a company named Rediba S.A, which provided public services. The outcome of the case was successful since the Constitutional Court ordered the protection of the Patio Bonito community, which claimed the impact of the Barrancabermeja sanitary landfill on fundamental rights, such as the right to life in dignified conditions, health, water, and a healthy environment. The Court highlighted the mistakes made by the environmental authority (Regional Autonomous Corporation of Santander, CAS) for not considering the negative impact of the operation of Rediba S.A., operator of the landfill that, in addition to the deficiencies of the license, did not comply with the conditions established in it. Therefore, the Court mandated the Autonomous Regional Corporation of Santander to perform an assessment of the environmental and social impacts that  Cf. Council of the state. Decision file 73001-23-31-000-2011-00611-01(AP)A C.R. GUILLERMO VARGAS AYALA. Bogotá, D.C., May 19th, 2016. Available at: http://www.elolfato.com/assets/ Sent-medida-cautelar-R%C3%ADo-Combeima-Dr-Vargas.pdf. 24  Cf. Constitutional Colombian Court. Decision T-227/2017. P.J. Luis Guillermo Guerrero Pérez. Bogotá, D.C., April 20th, 2017. Available at: http://www.corteconstitucional.gov.co/ relatoria/2017/t-227-17.htm. 23

68

M. del Pilar García Pachón et al.

the construction and operation of the sanitary landfill has had and, and based on the assessment, to carry out a review of the terms under which the environmental license was granted, to determine if it was necessary to modify or revoke, totally or partially, said administrative act (García Hernández 2017). Therefore, the case protected the community’s rights by sending a wake-up call to the local authority that it cannot grant licenses without taking into consideration basic relevant life-style and environmental aspects of Patio Bonito and its inhabitants. 3.5.2 Dow Química de Colombia Case. T-080/201525 The decision of the Constitutional Court, confirmed that the company Dow Química de Colombia S.A. was responsible for the spill of a chemical compound (named Lorsban) which was stored in its production plant located in the Mamonal area in Cartagena, affecting the environment with water and air pollution, the disappearance of flora and fauna, and causing the rise of greenhouse emissions. The case supports the protection of public interests over private interests, since there was a deficiency in the maintenance and management of the production plant of the company and a lack of control and vigilance by the competent environmental authorities. Hence, the Court ordered different measures, including the elaboration of a plan for environmental management to allow the recovery, mitigation and prevention of future damages in the Bay of Cartagena. Concerning the Court’s order, and following the polluter-pays principle of environmental law, the amount paid by the company has to go exclusively to environmental remediation programs for the bay or other ecosystems with similar characteristics. Furthermore, the recipients of the money have to be the public authorities who are in charge of the protection of the collective rights injured, in this specific case, the Regional Autonomous Corporation of the Canal del Dique and the District of Cartagena (Reyes 2015).

3.6 Claims Against a Pension Fund (or a Similar Entity) Whose Actions (i.e. Investments) Contribute to a Global Rise in Greenhouse Gas Emissions or Difficult Adaptation to Climate Change In Colombia, any individual or group of individuals can challenge a pension fund that invests in fossil fuels or any other asset that may contribute to the increase of greenhouse gas emissions and difficult adaptation to climate change. Consequently,  Cf. Constitutional Colombian Court. Decision T-080/2015. P.J.  Jorge Iván Palacio Palacio. Bogotá, D.C., February 20th, 2015. Available at: http://www.corteconstitucional.gov.co/ relatoria/2015/t-080-15.htm. 25

Climate Change Litigation in Colombia

69

there are different available actions against public or private actors that could be brought to challenge acts or omissions against national and international obligations on climate change grounds, which may contribute to the violation of environmental rights, and/or in connection with fundamental rights. However, to date, there is no known case against a pension fund or a similar entity.

4 Effective Climate Change Litigation in Colombia: The Way Forward In Colombia, more individuals are bringing claims related to climate change under the grounds of human rights breach and environmental damage. However, there is still a long way towards effective litigation in this field in Colombia, since claims are not focused on compensation for climate change damages, but on the lack of public policies and environmental protection that in some cases may lead to compensation. Also, the claims are normally filed against public authorities, rather than against the government itself or private actors. Nevertheless, the analyzed cases evidence that individuals are making strides in challenging damages to the environment and the negative effects of climate change caused by both public and private actors. Therefore, the discussion is gaining visibility and individuals are in their right to procure and demand that Colombia fulfill the commitments it has acquired against global warming in line with the Paris Agreement and the Sustainable Development Goals. Colombia will continue making greater policy changes and the new national development plan will have to guide public authorities towards ways to tackle climate change. There are different ways to meet climate change obligations and without doubt in Colombia there has to be a greater integration and coordination of national and local authorities to improve their procedures in different environmental scenarios, as seen above; i.e. in the issuance of environmental licenses; responsible exploitation of national resources; risk management procedures to face natural disasters that could be caused by climate change; and in the planning, implementing, and assessment tools to allow greater protection and conservation of territories and natural resources. Therefore, national and international commitments must drive public and private actors together around concrete goals to step up to the new trends over climate change challenges.

70

M. del Pilar García Pachón et al.

5 Conclusions National and international commitments on climate change allow individuals to hold Colombian authorities accountable. Increasing deterioration of the environment and climate change effects must be prevented and mitigated by both public and private actors. The cases related to climate change in Colombia in favor of public interests may lead the way to greater government policy changes towards the protection of current and future life, fundamental and environmental rights, and the real understanding and action against climate change effects. The Atrato River and the Amazon case are especially relevant because in those cases, the judges set out a specific position: the recognition of the river or nature as a legal entity. It must be understood that the legal personality that is given to the river is not the same as that given to a person. What is recognized by Colombia’s courts is a legal personality that makes it subject to the specific rights mentioned, but it has no obligations. It is clear then that in Colombia the rights of nature and its legal status have arisen especially from court decisions, In this respect, we propose a strengthening of the acknowledgment of environmental law by judicial power. The analyzed cases evidence that in Colombia it is necessary to continue adopting preventive measures to anticipate further climate change impacts, since up till now those measures have not been sufficient to tackle this phenomenon in the country. In this sense, it is not enough to seek reparation for damages but instead to demand greater application of national laws and local regulations on the matter before and after the granting of licenses, among other actions or omissions of public and private actors. In parallel, Colombia may have to incorporate international trends on climate change litigation to support the reduction of investments that may lead to a rise in greenhouse emissions and enhance renewable energy investment in the country. By enhancing its legal framework, and learning from international experiences, the government could lead greater efforts from different sectors of the society, including the public and private sector, the academy, and the communities towards an effective management of natural and financial resources. This may include greater support to territories to face climate change challenges, enhancing social awareness, fostering political dialogue, and funding innovative knowledge and technology programs and projects that develop international, national, and local measures. Regarding the current state of the art of legislation on climate change, there has been an expeditious increase in the last decade. Nevertheless, mere legal proliferation is not an answer to the country’s present challenges. The same can be alleged for the aforementioned, non-legally binding, public policy documents. However, the establishment of climate change national planning strategies might have a broader reach because, the measures proposed, should be executed within the confines of the law, but by different specialized sectors. The latter can be done, by promoting policies and projects that can be executed by intersectoral efforts or, as

Climate Change Litigation in Colombia

71

was done by Conpes document 3242, implementing a plan for the incursion of the country into the international market for verified emission reductions of greenhouse gases. Taking all of the above into consideration, regarding Colombia’s laws on effective climate change regulation, its financial and economic instruments for climate change management should be highlighted. These provide a cost-effective means to alleviate the issues at hand, as is done by the National Program of Tradable Greenhouse Effect Emission Quotas (established by Law 1931 of 2018), concerning the mitigation of greenhouse effect gases. These tangible measures, as tributary incentives for the promotion of non-­ conventional renewable energy sources, should be the ones dictating the direction of where legislative efforts should be allocated: creating a real self-sustainable, climate change friendly, development.

References Ámbito Jurídico (2016, February 11) 5 key points to understand the judgement that prohibits miner projects on moors. Retrieved from https://www.ambitojuridico.com/noticias/general/ administrativo-y-contratacion/cinco-claves-para-entender-el-fallo-que-prohibe Bodansky D (1993) The United Nations Framework Convention on Climate Change: a commentary. Yale J Int Law 18(2):453–558 Cabezas N (2018) As subject of a new challenge for the administration: the recognition of the legal protection by the Colombian jurisprudence. Revista digital de Derecho Amazon Jungle Administrativo (20):465–483. Retrieved from https://revistas.uexternado.edu.co/index.php/ Deradm/issue/view/515 Colombian Geologic Service (2015) Update on the Map of Galeras Volcano Volcanic Threat Colombia. Retrieved from https://www2.sgc.gov.co/sgc/volcanes/VolcanGaleras/PDF/ Memoria_Actualizacion_Mapa_Amenaza_Volcanica_Volcan_Galeras_2015.pdf Consejo Nacional de Política Económica y Social (2011) Documento Conpes 3700: Estrategia Institucional para la articulación de políticas y acciones en materia de cambio climático en Colombia. Bogota D.C. Retrieved from https://redjusticiaambientalcolombia.files.wordpress. com/2017/11/conpes37002.pdf Contreras Mojica DM (2006) Volcano an at risk habitat. Revista de Arquitectura El Cable (5). Retrieved from http://bdigital.unal.edu.co/13687/1/1255-6179-1-PB.pdf Erazo Coral SP (2018, April 13) Erazo Coral, Sonia Patricia. Judgment of the Supreme Court of Justice on the protection of the Colombian Amazon. UDENAR Newspaper. Retrieved from https://udenarperiodico.com/sentencia-de-la-corte-suprema-de-justicia-sobre-la-protecciona-la-amazonia-colombiana/ Fonseca C (2018, April 5) Supreme Court orders immediate protection of the Colombian Amazon. Retrieved from News of the Supreme Court of Justice. http://www.cortesuprema.gov.co/corte/ index.php/2018/04/05/corte-suprema-ordena-proteccion-inmediata-de-la-amazonia-colom García Hernández S (2017) Judgement in favor of the community that co-exists with a landfill and do not pick up their trash. Retrieved from https://projusticiaydesarrollo.com/2017/06/06/ sentencia-a-favor-de-la-comunidad-que-convive-con-un-relleno-sanitario-y-no-le-recogensus-basuras/#more-5117 García Pachón M (2018, April 12) The Supreme Court of Justice recognizes the Colombian Amazon as a subject of rights. Retrieved from Environmental Law

72

M. del Pilar García Pachón et al.

Department’s Blog. Externado University: http://medioambiente.uexternado.edu.co/ la-corte-suprema-de-justicia-reconoce-como-sujeto-de-derechos-a-la-amazonia-colombiana/ Herrera Ospina J, Rodríguez Insuasty A (2015) In D. c. paradigms. Retrieved from http://www. scielo.org.co/pdf/agor/v15n2/v15n2a12.pdf IGAC et  al (2007) Ecosistemas Continentales, Costeros y Marinos de Colombia. Imprenta Nacional, Bogotá Lora Kesie KI (2011) The precautionary principle on the Colombian environmental legislation. Retrieved from https://www.uninorte.edu.co/documents/4368250/4488389/El+p rincipio+de+precauci%C3%B3n+en+la+legislaci%C3%B3n+ambiental+colombiana/ c7e464c7-f69c-43e3-967d-f9d63ce1ca6f MADS (2018) Planes Sectoriales de Mitigación. Retrieved December 18, 2018, from http:// www.minambiente.gov.co/index.php/estrategia-colombiana-de-desarrollo-bajo-en-carbono/ planes-sectoriales Magdalena Department Government (2012) Department Plan for Risk Management. Retrieved from https://repositorio.gestiondelriesgo.gov.co/handle/20.500.11762/385 Manne A, Richels R (1998) The Kyoto Protocol: a cost-effective strategy for meeting environmetal objectives? Retrieved from http://www.oecd.org/dev/1923159.pdf Minamiguchi N (n.d.) Health risks and hazards caused by floods. Retrieved from https://hygiejne. ssi.dk/-/media/arkiv/subsites/infektionshygiejne/retningslinjer/vandskade/health-risks-andhazards-caused-by-floods.pdf?la=da Ministerio del Medio Ambiente y Desarrollo Sostenible (2017) Política Nacional del Cambio Climático. Documento para tomadores de decisiones. Bogotá D.C.  Retrieved from https:// redjusticiaambientalcolombia.files.wordpress.com/2018/01/politica-crisis-climatica-colombia-2017.pdf Montealegre Bocanegra JE (2007) Instituional model of IDEAM about the climate effect of the boy and girl phenomenon on Colombia. IDEAM.  Retrieved from http://www.ideam.gov.co/ documents/21021/440517/Modelo+Institucional+El+Ni%C3%B1o+-+La+Ni%C3%B1a. pdf/232c8740-c6ee-4a73-a8f7-17e49c5edda0 Reyes CR (2015) Dow Chemical should respond for the ecological damage caused on the Cartagena bay: Constitutional Court. Retrieved from http:// www.urosario.edu.co/getattachment/2f8a566b-bf72-4af5-8b45-a81e8cbe15db/ Dow-Quimica-debe-responder-por-dano-ecologico-en-b Rodríguez GA (2017) Of the prior consultation to the free, previous and informed consent to indigenous people in Colombia. In E. a. 1 Collection. Grupo Editorial Ibañez. Retrieved from http:// repository.urosario.edu.co/bitstream/handle/10336/8716/24867399-2014.pdf?sequence=1 Rubiano Galvis S (2015) Moor protection and farmer rights: tensions, challenges and opportunities from the legal, politic and institucional applicable frame. Hulboldt Institute. Retrieved from http://repository.humboldt.org.co/bitstream/handle/20.500.11761/9604/14-14-008-2 51PS.pdf?sequence=1&isAllowed=y Santilli M, Moutinho P, Schwartzman S, Nepstad D, Curran L, Nobre C (2005) Tropical deforestation and the Kyoto Protocol: an editorial essay. In Tropical Deforestation and Climate Change. Amazon Institute for Environmental Research. Retrieved from https://pdfs.semanticscholar. org/e7d8/d00f41828ce5cd5da2942dca861eff5046df.pdf#page=47 SIB (2019, enero 4) Sistema de información sobre biodiversidad de Colombia. Retrieved from https://sibcolombia.net/actualidad/biodiversidad-en-cifras/ Tierra Digna (n.d.) We all are Atrato River Guardians. Retrieved from http://tierradigna.org/pdfs/ SomosGuardianesDelAtrato.pdf Troncoso MI (2010) The precautionary principle and the civil responsibilit. Revista de Derecho Privado (18):205–220. Retrieved from https://revistas.uexternado.edu.co/index.php/derpri/ article/download/407/387/ UN (2015) Sendai Framework for Disaster Risk Reduction 2015–2030. Retrieved from https:// www.preventionweb.net/files/43291_sendaiframeworkfordrren.pdf

Climate Change Litigation in Colombia

73

Universidad del Rosario (n.d.) Linea de Investigacion en Derecho Ambiental. Facultad de Jurisprudencia. Retrieved from https://www.urosario.edu.co/jurisprudencia/ catedra-viva-intercultural/ur/La-Consulta-Previa/Que-es-la-Consulta-Previa/

Cases Cited Constitutional Court. Decision T-080 of 2015. February 20th. P.J.  Jorge Iván Palacio Palacio. Available at: http://www.corteconstitucional.gov.co/relatoria/2015/t-080-15.htm Constitutional Court. Decision T-269 of 2015. May 12th P.J.  Jorge Iván Palacio. Available at: http://www.corteconstitucional.gov.co/RELATORIA/2015/T-269-15.htm Constitutional Court. Decision C-035 of 2016. February 8th. P.J.  Gloria Stella Ortiz Delgado. Available at http://www.corteconstitucional.gov.co/relatoria/2016/c-035-16.htm#_ftn131 Council of the State. Decision 73001-23-31-000-2011-00611-01(AP)A C.R.  GUILLERMO VARGAS AYALA.  Bogotá, D.C., May 19th, 2016. Available at: http://www.elolfato.com/ assets/Sent-medida-cautelar-R%C3%ADo-Combeima-Dr-Vargas.pdf Constitutional Court. Decision C-298 of 2016. June 8th, P.J.  Alberto Rojas Ríos. Available at http://www.corteconstitucional.gov.co/RELATORIA/2016/C-298-16.htm Constitutional Court. Decision T-622 of 2016. November 10th. .P.J. Jorge Iván Palacio. Available at http://www.corteconstitucional.gov.co/relatoria/2016/t-622-16.htm Constitutional Court. Decision T-218 of 2017. April 19th. P.J. Alejandro Linares Cantillo. Available at: http://www.corteconstitucional.gov.co/relatoria/2017/t-218-17.htm Constitutional Court. Decision T-227/2017. April 20th P.J.  Luis Guillermo Guerrero Pérez. Available at: http://www.corteconstitucional.gov.co/relatoria/2017/t-227-17.htm Council of the State. Decision 13001-23-31-000-2011-00315-01(AC). C.R.  Roberto Augusto Serrato Valdés. Bogotá, D.C., May 18th, 2017. Available at: http://www.consejodeestado.gov. co/documentos/boletines/PDF/13001-23-31-000-2011-00315-01(AP).pdf Council of the State. Decision 68001-23-33-000-2017-00139-01(AC). C.R.  Stella Jeannette Carvajal Basto. Bogotá, D.C., May 25th, 2017. Available at: http://www.consejodeestado.gov. co/documentos/boletines/PDF/68001-23-33-000-2017-00139-01(AC).pdf Council of the State. Decision 11001-03-24-000-2001-00090-01. C.  P. María Elizabeth García González. Bogotá, D.C., July 14th, 2017. Available at: http://www.consejodeestado.gov.co/ documentos/boletines/PDF/11001-03-24-000-2001-00090-01.pdf Council of the State. Decision 13001-23-33-000-2015-00052-01(AP)A.  C.R.  María Elizabeth García González. Bogotá, D.C., August 2nd, 2017. Available at: http://portal.gestiondelriesgo. gov.co/Documents/Juridica/Fallo_Consejo_de_Estado_02-06-2017.pdf Supreme Court of Justice. Decision STC. 4360-2018. P.J. Luis Armado Tolosa Villabona. April 5th, 2018. Available at: http://www.cortesuprema.gov.co/corte/wp-content/uploads/2018/04/ STC4360-2018-2018-00319-011.pdf María del Pilar García Pachón  is professor at the Externado University of Colombia and Director of the department of environmental law at same University. She holds a Doctorate in Law from the Zaragoza University and a master in environmental management and policy from the Carlos III of Madrid University. She is a lawyer from the Externado University of Colombia. Her research focuses on water law, climate change, waste waters and international water law. García is the author of multiples articles and book chapters published in Latin América and Spain. She also is the editor of more than 30 books related with environmental and water law. Adriana Viloria  is a Lawyer graduated from Universidad Externado-Colombia with LL.M. in International Dispute Resolution and Management of the Extractive Industry from the Centre for Energy, Petroleum, Mineral Law and Policy (CEPMLP)-University of Dundee, Scotland,

74

M. del Pilar García Pachón et al.

U.K. Candidate to a postgraduate degree in Administrative Law from Pontificia Universidad Javeriana-Colombia. Her practice focuses on counseling state entities, as the Superintendency of Domiciliary Public Services, on their day-to-day public law matters, as well on public procurement, administrative procedures and international cooperation legal affairs. María Daniela De La Rosa Calderón  is a Lawyer of Externado University of Colombia, with a postgraduate degree on environmental law of the same university. Currently works as an associate lawyer in the Ibero-American law firm, Philippi Prietocarrizosa Ferrero DU & Uría on the Energy, Mining and Natural Resources practice area and is a member of the Research Group on Environmental Law of the Externado University.

Climate Change and the Individual in the Netherlands Jonathan Verschuuren

Abstract  The ground breaking Urgenda case showed that in the Netherlands there is ample room for climate litigation by individuals against the Dutch state. This contribution discusses in detail how much room the Court created and discusses other future litigation pathways, such as cases against major contributors to climate change. It also discusses the impact the adoption of the 2015 Paris Agreement and the 2018 Dutch Climate Bill will have on the position of the individual who wants to challenge Dutch climate policies.

1 Introduction Despite the huge, worldwide attention that the Dutch Urgenda case has received since 2015, the Netherlands does not have a strong record of climate change related court cases. Apart from a series of administrative law cases against the commissioning of new coal fired power plants between 2008 and 2016, the Urgenda case has been the primary focus of climate litigation in the Netherlands.1 Therefore, this chapter will mainly deal with that case.2 Fortunately for us, in that case the court rendered a lengthy judgment with many interesting, often groundbreaking, and sometimes debatable decisions and points of view. The Urgenda case specifically was on Dutch climate policy which aimed for a 20% reduction of GHG emissions by 2020 compared to 1990 level, in line with EU climate policy. The claimants argued that current global GHG emission levels will lead to severe and potentially catastrophic consequences,  Urgenda Foundation v. The State of The Netherlands, judgement of 24 June 2015, District Court of The Hague (ECLI:NL:RBDHA:2015:7196), available online in unofficial English translation through https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2015:7196. 2  See on the Urgenda case: Cox (2016), De Graaf and Jans (2015), Roy and Woerdman (2016), Verschuuren (2015) and Van Zeben (2015). 1

J. Verschuuren (*) Tilburg University, Tilburg, The Netherlands e-mail: [email protected] © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_4

75

76

J. Verschuuren

which is unlawful also when focusing only on Dutch emissions, as these are excessive as well, in absolute terms and even more so per capita. These consequences are attributable to the State, therefore the State should aim for a stricter emission reduction of between 25 and 40% in 2020. The case was initiated by Urgenda, a foundation that was established in 2008 with the aim to stimulate and accelerate the transition processes to a more sustainable society, beginning in the Netherlands, by, among other things, legal action (the name comes from a contraction of ‘urgent’ and ‘agenda’). Under Dutch tort law, NGOs are allowed to initiate public interest cases.3 The defendant in this case was the State of the Netherlands. 886 individual citizens joined the suit, so the case was lodged by Urgenda acting on its own behalf as well as in its capacity as representative of these individuals. Standing of Urgenda was not challenged, hence the Court accepted standing of Urgenda acting on its own behalf, representing the interests of current as well as future generations. For the latter, the Court simply referred to the aims of the Urgenda foundation, which stipulate that the foundation strives for a more sustainable society. The Court then argued that the term “sustainable society” also has an intergenerational dimension, referring to famous definition from the Brundtland Report ‘Our Common Future’: ‘Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs.’ This was an important move of the Court, as it allowed the Court to look ahead into the future and take future impacts that are only expected to take place in the second half of the century into consideration. Despite the fact that Urgenda was granted standing acting on its own behalf, the Court does not see how they should discuss the interests of the 886 individuals that joined the case, other than by discussing the case as presented by Urgenda on its own behalf. The Court explicitly argues: The court currently does not have sufficient details about the individual claimants to be able to determine that this interest indeed exists. Even if it is assumed that the individual claimants can rely on Articles 2 and 8 ECHR, their claims cannot lead to a decision other than the one on which Urgenda can rely for itself. In this situation, the court finds that the individual claimants do not have sufficient (own) interests besides Urgenda’s interest. Partly in view of practical grounds, this had led the court to reject the claim in so far as it has been instituted on behalf of the claimants.4

2 Climate Law in the Netherlands Climate law in the Netherlands, until very recently, was limited to the bare minimum: the implementation of EU climate law, especially the EU emissions trading scheme in the Environmental Management Act (Wet milieubeheer). This is a  Art. 3:303a Dutch Civil Code (Burgerlijk wetboek). See extensively Van den Broek and Enneking (2014). 4  Urgenda ruling (n. 2) Para 4.109. 3

Climate Change and the Individual in the Netherlands

77

consequence of the general policy decision to focus on precise and effective implementation of EU legislation and to not go beyond EU legislation in any field, particularly in that of the environment. Domestic climate and energy policies, other than those required by the EU, focused almost entirely on voluntary agreements with various sectors, such as electricity producers, industry, transport, construction and agriculture. This has changed to a limited extent after the adoption of the  Climate Act in 2019. In June 2018, the newly elected government announced the introduction of a Climate Bill, which basically is a revised version of a Bill that already was sent to Parliament a few years earlier by the opposition.5 The new Climate Act has following features: –– Targets: GHG emissions in the Netherlands have to go down by 95% in 2050 compared to 1990. To achieve this target, the competent Ministers have to aim for a GHG emissions reduction of 49% in 2030 and a fully CO2-neutral electricity production by 2050.6 –– Climate Plan: a policy plan that has to be adopted by the central government at least every five years and that sets the policy goals as well as the measures that will be taken to achieve these goals. One of the goals that has to be set is the percentage of renewable energy that will be generated as part of the entire energy generation for the country.7 –– Participation: the central government has to discuss the implementation of the Climate Change Act with provincial, municipal and water district authorities as well as with ‘other relevant stakeholders’.8 The 2050 target definitely is ambitious and the Act has been praised for its wide political endorsement (the government sought and obtained broad support from political parties in Parliament, from left to right in the political spectrum). It can, however, also be criticized for lack of legal rigor. The main critique is that the Act does not have binding interim targets. The 2030 target is formulated as an ambition only, as is the target of 100% renewable energy production by 2050. The success of the Act depends entirely on the content of the 5-yearly Climate Plans and the concrete measures that will be taken to implement these plans. So what the Act basically did was  move the hot potato forward to 2020, when the first Climate Plan was adopted. The plan shows that Dutch climate policy still remains largely determined by EU climate law and policy.

 Act of 2 July 2019 on a framework for policy development aimed at irreversibly and set-by-step reducing Dutch emissions of greenhouse gasses in order to limit global warming of the Earth and climate change (Climate Act), Official Bulletin 2019, 253.  6  ibid. Article 2. 7  ibid. Articles 3–5. 8  ibid. Article 8. 5

78

J. Verschuuren

3 Climate Change Litigation in the Netherlands 3.1 Claims Against the Government In this section it is discussed whether an individual can bring a case against the government for allegedly not complying with its international climate change obligations. In the Urgenda case, the Court had to address the question whether the State acted unlawfully by “only” pursuing the reduction targets that were imposed upon the Netherlands by EU-law for 2020: a 21% reduction for sectors covered by the EU Emissions Trading Scheme (basically large industry and power stations), and a 16% reduction for non-EU ETS sectors (such as transport and agriculture). Under Dutch tort law, there are two ways in which unlawful action or inaction can be established: actions contrary to legal norms, or actions that are not contrary to written legal norms, but that are considered to be violating the standard of due care. In this section, I will deal with the first option, as under this option, the Court needs to test the policy against international climate change obligations. Although the Court spends considerable amount of time explaining the principles and obligations laid down in the UNFCCC, the Kyoto Protocol, and the relevant EU climate change law, the actual testing of current Dutch policy against this international and EU law framework is very short. It should be kept in mind, though, that the Urgenda case was a tort case, not an administrative review case. With regard to the international law obligations following from the UNFCCC, the Kyoto Protocol, as well as the no harm principle, a legally binding principle of customary international law, the Court finds that Urgenda cannot directly rely on these international norms, as these are legally binding only towards other states, and not towards individual citizens.9 The same is more or less true for the relevant EU law, both the specific climate law instruments and the Treaty on the Functioning of the EU (TFEU) in which the principles of environmental law have been codified.10 The court does stress, however, that such international norms do play a role in interpreting the open standards, such as the unwritten due care standard (see further Sect. 3 below).11 The only international law standards that can be directly invoked by citizens are human rights, specifically the right to life and the right to family life, as laid down in Articles 2 and 8 of the European Convention on Human Rights (ECHR) respectively. These are dealt with under Sect. 3.2.1 below.

 Urgenda ruling (n. 2) Para 4.42.  ibid. Para 4.44. 11  ibid. para 4.43. 9

10

Climate Change and the Individual in the Netherlands

79

3.2 Claims Against Public Bodies and Private Actors Under Tort Law This section deals with the question whether an individual can bring a case against public or private entities on grounds of human rights (Sect. 3.2.1) and on the unwritten standard of due care in society referred to in the Dutch Civil Code (Sect. 3.2.2).12 As there is no difference under Dutch law whether claims are being addressed against a public body or against a private actor, both will be discussed in this section. 3.2.1 Human Rights The claimants argued that the current global emission levels as well as the current Dutch climate policy constitute an infringement of Articles 2 and 8 of the ECHR which aim to protect the right to life and the right to privacy and family life. Similar to the treatment of Urgenda’s claim that Dutch climate policy breaches legal obligations under international and EU climate law, here the Court was brief too. It simply referred to case law by the European Court of Human Rights (ECtHR) in which the ECtHR clarified that Article 34 ECHR does not allow legal persons, such as environmental NGOs, to invoke these human rights, as they specifically aim to protect natural persons. Again, however, the Court stressed that these human rights, as well as the interpretation given to Articles 2 and 8  in environmental cases before the ECtHR, do play a role when interpreting open norms, such as the unwritten standard of care in Dutch tort law.13 The same is true for Article 21 of the Dutch Constitution which lays down a socio-economic right to the ‘liveability’ of the country and protection of the environment. 3.2.2 Standard of Due Care Under the due care standard of Dutch tort law, the Court tested whether the State fulfilled its duty of care towards its citizens. This is where the case becomes really interesting, because in order to establish what exactly, in this case, this duty of care entails, the Court relies on a large number of binding and non-binding rules and principles (such as the precautionary principle and the principle of ‘fairness’), human rights, policy statements, and even ‘scientific consensus’, to determine what can be expected of the State. The team of lawyers representing the Urgenda Foundation did a very good job in bringing together all possible legal sources that are relevant when determining what can be expected from a national government in the combat against climate change. They forced the Court to take all these sources into account, and one cannot escape 12 13

 Art. 6:162 Dutch Civil Code.  Urgenda ruling (n. 2) Para 4.46.

80

J. Verschuuren

the feeling that the overwhelming number of relevant legal sources played a role in Urgenda’s victory. Let’s have a look at the various legal sources that are used by the Court in its decision: –– Article 2 ECHR lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction, even when these lives are threatened by other (private) persons or activities that are not directly connected with the State, for instance in case of dangerous activities and natural disasters.14 –– Article 8 ECHR requires States to adopt positive measures designed to ensure that environmental degradation does not seriously affect private and family life or the home, which implies also regulating private sector activities, and implementing such measures.15 –– Article 21 of the Dutch Constitution grants the State extensive discretionary power to flesh out its climate policy, but this power is limited. In case of a ‘high risk of dangerous climate change with severe life-threatening consequences for man and the environment, the State has the obligation to protect its citizens by taking appropriate and effective measures’.16 –– Article 3(1) UNFCCC, dubbed ‘principle of fairness’ by the Court, requires parties to the convention to protect the climate system for present and future generations on the basis of equity and common-but-differentiated responsibilities. This means, according to the Court, that future generations cannot be disproportionately burdened with the consequences of climate change and that the current industrialized countries have to take the lead in combatting climate change.17 –– Article 3(3) UNFCCC and Article 191(2) TFEU entail the precautionary principle which indicates that States should not postpone taking cost-effective measures to protect the environment until full scientific certainty has been achieved.18 The Court also refers to Article 191(3) TFEU which requires the EU to take account of, among others, the available scientific information.19 –– The doctrine of hazardous negligence as developed by the Dutch Supreme Court and in academic literature, which requires the State to exercise due care with its climate policy.20

From these sources, and given the high risk of hazardous climate change, which are known to the State at least since 1992, the Court found that the state has a serious duty of care to take measures to prevent hazardous climate change.21 Such measures need to be mitigation measures, as adaptation costs will become disproportionately high in the absence of an effective mitigation policy.22  ibid. Para 4.49. Interestingly, the Court largely follows the non-legally binding ‘Manual on human rights and the environment’ which was drafted by the Council of Europe secretariat with the aim to raise awareness of the relationship between human rights protection and environmental protection, Council of Europe (2012). 15  ibid. Para 4.50. 16  ibid. Para 4.74. 17  ibid. Para 4.57. 18  ibid. Para 4.58, 4.60. 19  ibid. Para 4.61. 20  ibid. Para 4.54. 21  ibid. Para 4.65. 22  ibid. Para 4.75. 14

Climate Change and the Individual in the Netherlands

81

The Court then assessed the scope of the duty of care, largely by determining what level of taking precautionary mitigation measures can still be considered to be cost-effective. The Urgenda Foundation argued that the 25–40% reduction target for 2020 is cost-effective, while the State argued that is also cost-effective to aim for a 40% reduction target in 2030, so with a steeper decline of emissions between 2020 and 2030. Here, the Court confronted the State with its own previous policy (under a different cabinet, more on the political left) which was aimed at achieving a 30% reduction by 2020. As the State did not claim that the new, less ambitious policy goal was driven by improved scientific insights or by new insights in the economic responsibility of the goal, the Court concludes ‘that there is no serious obstacle from a cost consideration point of view to adhere to a stricter reduction target.’23 In addition, the Court based its ruling on the ‘established fact’ that with the 20% reduction policy ‘the State does not meet the standard which according to the latest scientific knowledge and in international climate policy is required for Annex I countries to meet the 2 degree C target.’24 It argued that stalling the reduction speed until 2030 the State will cause a cumulation effect, which will result in higher levels of CO2 in the atmosphere in comparison to a more linear decrease of emissions starting today. A higher reduction target for 2020 (40%, 30% or 25%) will cause lower total, cumulated greenhouse gas emissions across a longer period of time in comparison with the target of less than 20% chosen by the State. The court agrees with Urgenda that by choosing this reduction path, even though it is also aimed at achieving the 2°C target, will in fact make significant contributions to the risk of hazardous climate change and can therefore not be deemed as a sufficient and acceptable alternative to the scientifically proven and acknowledged higher reduction path of 25-40% in 2020.25

This element of the decision has been criticized in literature as the Court seems to primarily rely on the IPCC’s recommendation in its 4th Assessment Report that Annex I states should adopt the 25–40% target for 2020,26 thus elevating the findings from scientific research to a legally binding legal norm.27 On the other hand, it can be argued that the frequent references to scientific research in legal texts, including the UNFCCC and the TFEU, requires the Court to take scientific information into account when interpreting climate law. Roy and Woerdman rightfully indicate that, like in some other areas of expert international governance (such as credit ratings), the benchmark for the amount of care that is required is decided at an international level by the IPCC, and that it is up to the State to demonstrate why it deems necessary to deviate.28 Such shifting of the onus of proof to the State is in line with the precautionary principle.29  ibid. Para 4.70.  ibid. Para 4.84. 25  ibid. Para 4.85. 26  ibid. Para 2.31. 27  De Graaf and Jans (2015), p. 526; Roy and Woerdman (2016), p. 175. 28  Roy and Woerdman (2016), p. 183. 29  ibid. 23 24

82

J. Verschuuren

Instead of arguing that it is economically unfeasible to achieve a stricter target, the State primarily relied on the argument that adhering to a stricter emission target is not effective as the additional cut in emissions would only represent 0.04–0.09% of global emissions, which hardly has any impact.30 The Court dismissed this argument, referring to the UNFCCC and to Dutch Supreme Court case law indicating that it is not possible to reject liability by stating that the contribution to the damage is minor, also taking into account that Dutch per capita emissions are among the highest in the world.31 Interestingly, the Court follows the principle of common-but-­ differentiated responsibilities from Article 3(1) UNFCCC to argue that it is only fair that the Netherlands takes a proactive approach when it comes to mitigation: Here too, the court takes into account that in view of a fair distribution the Netherlands, like the other Annex I countries, has taken the lead in taking mitigation measures and has therefore committed to a more than proportionate contribution to reduction.32

The Court concludes: From the above considerations (…) it follows that a sufficient causal link can be assumed to exist between the Dutch greenhouse gas emissions, global climate change and the effects (now and in the future) on the Dutch living climate. The fact that the current Dutch greenhouse gas emissions are limited on a global scale does not alter the fact that these emissions contribute to climate change. The court has taken into consideration in this respect as well that the Dutch greenhouse emissions have contributed to climate change and by their nature will also continue to contribute to climate change.33

The Court spent a good deal of considerations on the separation of powers. It apparently was very conscious of the fact that it is encroaching upon the realm of policy-­making. As stated above, the government defended its policy by stating that it is working towards remaining within the 2 degrees limit. To achieve this, bigger emission cuts would be required in 2030. It was a policy decision, backed up by a majority in Parliament, to stall emission cuts a bit (also with a view to the economic crisis), and to speed up emission reductions later. According to the government, this is a legitimate political decision that should not be reviewed by courts. In many other countries, especially in the United States, it exactly is this line of reasoning that has prevented climate litigation to be successful.34 Therefore, I will deal with the Court’s considerations on the separation of powers in some detail. The Court took a firm position in the separation of powers debate: It is worthwhile noting that a judge, although not elected and therefore has no democratic legitimacy, has democratic legitimacy in another – but vital – respect. His authority and ensuing “power” are based on democratically established legislation, whether national or

 Urgenda ruling (n. 2) Para 4.78.  ibid. Para 4.79. 32  ibid. Para 4.79. 33  ibid. Para 4.90. 34  For instance in the US, where climate change cases were dismissed for being non-justiciable under the political question doctrine, Gerrard and Wilensky (2016), p. 364; Gerrard and Wannier (2012), pp. 590–591. 30 31

Climate Change and the Individual in the Netherlands

83

international, which has assigned him the task of settling legal disputes. This task also extends to cases in which citizens, individually or collectively, have turned against government authorities. The task of providing legal protection from government authorities, such as the State, pre-eminently belong to the domain of a judge. This task is also enshrined in legislation.35

According to the Court, this was exactly what the claim asks of them: provide legal protection against negligence on the part of the State. The Court acknowledged that by granting judicial review in this case, it will move into the policy arena: This does not mean that allowing one or more components of the claim can also have political consequences and in that respect can affect political decision-making. However, this is inherent in the role of the court with respect to government authorities in a state under the rule of law. The possibility  – and in this case even certainty  – that the issue is also and mainly the subject of political decision-making is no reason for curbing the judge in his task and authority to settle disputes. Whether or not there is a “political support base” for the outcome is not relevant in the court’s decision-making process.36

This is a firm statement indeed! The Court did acknowledge that there has to remain room for political decision-making, hence the Court only set the minimum reduction target of 25%, without imposing the measures that need to be taken to achieve this target.37 The Court, finally, orders the State ‘to limit the joint volume of Dutch annual greenhouse gas emissions, or have them limited, so that this volume will have reduced by at least 25% at the end of 2020 compared to the level of the year 1990’.38 The State responded to the Court’s decision by stating that it on the one hand it would comply with the decision, but on the other it would lodge an appeal because of the fundamental issue of the perceived infringement on the separation of powers principle. In May 2018, the Dutch Climate minister stated: “We also believe that renewable energy should be increased and CO2 emissions should be reduced, so this is really about something else: it’s about how the judge has intervened in something that’s [called] democracy, and actually democracy has been sidelined.”39 In October 2018, however, the Court of Appeal rejected all of the State’s objections, including its objection on the alleged infringement of the separation of powers principle.40 The Court confirmed that, when so asked by individuals or NGOs, courts are obliged to test government actions (including policies) against human rights. So there is no infringement of the principle of separation of powers. On the contrary: testing government actions against human rights belongs to the core of the power of courts.

 Urgenda ruling (n. 2), at Para 4.97.  ibid. Para 4.98. 37  ibid. Para 4.101. 38  ibid. Para 5.1. 39  Neslen, Arthur. 2018. Dutch government appeals against court ruling over emissions cuts. The Guardian, May 28. 40  The State of The Netherlands v Urgenda Foundation, The Hague Court of Appeal, 9 October 2018, case 200.178.245/01 (English translation), available online https://uitspraken.rechtspraak.nl/ inziendocument?id=ECLI:NL:GHDHA:2018:2610. See extensively Verschuuren (2019). 35 36

84

J. Verschuuren

By only setting the required outcome of policies (at least 25% emissions reduction by the end of 2020), the court leaves it up to the Cabinet and Parliament to discuss through which policy interventions this aim will be achieved, thus avoiding interference with policy-making. The Court of Appeal’s judgment was upheld by the Dutch Supreme Court in December 2019, making this a triple victory for Urgenda.41

3.3 Claims Against Public Bodies Under Administrative Law Can individuals bring case against public bodies for allowing major development that is contrary to climate change goals? The answer to this question is yes. Any major development needs to be authorized by competent authorities under Dutch environmental, construction and planning legislation. Prior authorization is subject to review by administrative courts. Interested persons as well as environmental NGOs can lodge such review.42 There is a series of climate change related cases on a 2007 decision to allow the construction of three new coal fired power stations on two locations on the Dutch coast as part of Dutch energy security policy. This decision was met with much criticism from environmental NGOs, mainly because of this long term investment into coal fired power stations is at odds with the needed decarbonization of society within the next few decades. It is, however, generally not possible to challenge policies before administrative courts.43 Nor do any of the more specific authorizations that needed to be granted for the construction and operation of the power stations specifically deal with climate change impacts of these installations, as the CO2 emissions of installations cannot be regulated under environmental permits following the EU Industrial Emissions Directive.44 This is a consequence of the EU emissions trading scheme, which allows power stations to emit as much CO2 as they want, as long as the emissions are equal to the allowances they acquired on the carbon market.45 As a consequence, the NGOs looked for other legal options to challenge the policy before courts and found these in Dutch and EU nature conservation law. Through a number of Court cases the claimants were able to temporarily stop the construction of the power stations as they showed that nature conservation permits were inadequate. As all new power stations are located close to protected areas under the EU birds and Habitats directives (“Natura 2000 sites”), the impacts of noise, vibrations etc. of the construction, as well as emissions of Sulphur dioxide  State of the Netherlands v Urgenda Foundation, Supreme Court of the Netherlands, 20 December 2019, case 19/00135 (English translation), available online https://uitspraken.rechtspraak.nl/inzie ndocument?id=ECLI:NL:HR:2019:2007. 42  Jans and Marseille (2010). 43  Art. 8:3(1)(a) General Administrative Law Act (Algemene wet bestuursrecht). 44  Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control), OJ L 334/17, Article 9. 45  Weishaar (2014), p. 24. 41

Climate Change and the Individual in the Netherlands

85

and Nitrogen oxide had to be better researched and dealt with in the permit conditions.46 After eight years of going in and out of courts, all revised permits, in the end, survived judicial scrutiny and the first new coal fired power station became operational in 2015. It is possible, however, that these power stations will not serve their entire economic lifetime. The new government that took office in 2017 decided to close all coal fired power stations in the Netherlands by 2030.47 It is expected that in 2020, under pressure of the Urgenda judgment, the government will decide to speed up this process.

4 Effective Climate Change Litigation in the Netherlands: The Way Forward This section discusses future litigation pathways that can be pursued based on the current status quo as outlined above. On first thought, one might feel that plenty opportunities already exist in the Netherlands, particularly thanks to the Urgenda case. However, there are two areas where there still remains much to be done: litigation against emitters of GHGs, and litigation against the government and public bodies in the area of adaptation. These two will be discussed here. First, however, I will briefly discuss whether and in how far Urgenda-like mitigation cases against the Dutch State are still likely to occur.

4.1 Further Litigation Against the State on Mitigation The current government seems to believe that with the adoption of the new Climate Act, given the far-reaching 2050 target and given the wide political support the Act received, it has effectively disabled future Urgenda-like lawsuits. This, however, will depend on the ambition shown in the five yearly Climate Plans and on the concrete measures adopted to implement the plan. When the plans are weak, Urgenda and others will probably still pursue the same litigation pathway based on tort law, as the Climate Plan cannot be challenged before an administrative court. In fact, from a legal point of view, the Climate Act renders claimants an extra argument in court. They can claim that the policy laid down in Climate Plan X is insufficiently geared towards achieving the 2050 goal that has been laid down in the Climate Act, and thus constitutes an illegal act.   Administrative Law Division of the Council of State decisions of 28 February 2008, ECLI:NL:RVS:2008:BC5785; 4 May 2011, ECLI:NL:RVS:2011:BQ3434; 24 August 2011, ECLI:NL:RVS:2011:BR5684; 30 October 2013, ECLI:NL:RVS:2013:1694; 27 January 2016, ECLI:NL:RVS:2016:170; and a preliminary case by the District Court of Amsterdam, 7 April 2008, ECLI:NL:RBAMS:2008:BC9281. All decisions available in Dutch through the website of the Ministry of Justice, https://www.rechtspraak.nl/. 47  Coalition Agreement under the new Dutch government (Regeerakkoord). 2017. Vertrouwen in de toekomst. The Hague: Netherlands Government, 38. 46

86

J. Verschuuren

4.2 Litigation Against Major GHG Emitters In the Netherlands, no cases have been lodged against emitters of GHGs yet. Given that one of the world’s leading oil companies, Royal Dutch Shell (RDS), has its headquarters in the Netherlands, it will not come as a surprise that this is about to change. In 2019, the Dutch branch of Friends of the Earth started a tort case against RDS aimed at forcing the company to change its internal policy away from fossil fuel production.48 Dutch tort law would allow tort cases against polluters to be lodged, as long as complainants can show that they suffer damage caused, at least to some extent, by this and other GHG emitters. Between 1988 and 2015, Shell ranked as the 9th biggest emitter or GHGs, being responsible for 1.7% of all global GHG emissions.49 There is some experience with tort cases against RDS in the Netherlands for its actions abroad. In 2013, several cases were lodged before the District Court of The Hague both against RDS and its Nigerian subsidiary for causing extensive damage by oil spills in Nigeria. These cases were lodged by individual Nigerian farmers and a Dutch environmental NGO, and were successful, be it only against the Nigerian subsidiary, not against the parent company.50 The court determined that the Nigerian subsidiary of RDS violated a duty of care and was liable for negligence for not having taken measures to prevent sabotage to its wells, which caused the spills. The court ordered the subsidiary to pay damages to the Nigerian farmers.51 Given their high public profile as one the biggest Dutch multinational corporations and given this successful case in the past, it is not unlikely that climate change related cases will emerge sooner rather than later. The flood of cases against RDS and several other major oil companies in the United States has been the trigger for such future cases in other countries, including the Netherlands. In 2017, seven Californian municipal and country governments filed cases against RDS and others (“big oil”), in an attempt to claim damages from sea level rise, altered water cycles, increased wild fires etc.52 In January 2018,  The case is expected to be on trial in Court in December 2020, and is represented by the same legal team that also did the Urgenda case. See the Friends of the Earth’s website, https://milieudefensie.nl/klimaatzaakshell. Accessed 20 May 2020. 49  Griffin (2017), p. 14. 50  On January 30, 2013, the District Court of The Hague rendered separate judgments in five cases brought by four Nigerian farmers and fishermen, supported by the Dutch branch of Friends of the Earth (Milieudefensie), against the Nigerian subsidiary of Shell and its former and current parent companies in the United Kingdom and the Netherlands. The most important judgement is Akpan v. Royal Dutch Shell PLC, Arrondissementsrechtbank Den Haag [District Court of The Hague], Jan. 30, 2013, Case No. C/09/337050/HA ZA 09-1580 (ECLI:NL:RBDHA:2013:BY9854). An (unofficial) English translation of this and the other four judgments is available from Milieudefensie’s website, http://www.milieudefensie.nl/english/shell/oil-leaks/courtcase/press/ documents/documents-on-the-shell-legal-case. Accessed 30 August 2018. 51  See in more detail, Jägers et al. (2014). 52  Burger, Michael (2017), Local governments in California file common law claims against largest fossil fuel companies, blogpost Sabin Center for Climate Law. http://blogs.law.columbia.edu/climatechange/2017/07/18/local-governments-in-california-file-common-law-claims-against-larg48

Climate Change and the Individual in the Netherlands

87

New York City filed another lawsuit in a federal court, again against RDS and other major oil companies, to recover adaptation costs to protect the city against sea level rise and increased storm intensity.53 So far, these cases have not been successful, but many are still pending in various courts in 2020. In the Netherlands, in 2017 a first step towards challenging investment portfolios of banks and pension funds in case of climate unfriendly investment was taken by the submission of a complaint under the OECD Guidelines for Multinational Enterprises. Several environmental and development NGOs submitted a complaint against the Dutch multinational ING Bank, which is heavily involved in funding fossil industries, including funding new coal fired power plants in developing countries. According to the NGOs, ING is violating several provisions of the OECD guidelines, such as the duty to adopt ‘measurable objectives’ and ‘targets for improved environmental performance’ and to disclose greenhouse gas emissions, both ‘direct and indirect, current and future, corporate and product emissions.’54 The NGOs request ING to start reporting on its indirect greenhouse gas emissions and to establish and pursue goals which will bring the bank’s indirect greenhouse gas emissions in line with the goals of the Paris Agreement. In November 2017, the National Contact Point of the Netherlands declared the complaint admissible. This seems to be the first time a climate change related complaint is found to be a­ dmissible by any National Contact Point for the OECD Guidelines.55 Although this is not a procedure before a court of law, this case may provide a precedent for future cases before domestic civil courts.

4.3 Adaptation Although there is no experience on this yet, the question whether individuals can bring a case against the government for insufficient adaptation measures needs to be answered in the affirmative. As already stated above, Article 21 of the Dutch Constitution lays down a socio-economic right to the ‘liveability’ of the country. This provision, according to the explanatory memorandum is, especially aimed at

est-fossil-fuel-companies/. Accessed 30 August 2018; Wentz, Jessica (2018). Santa Cruz joins other municipalities suing fossil fuel companies for damages caused by climate change, blogpost Sabin Center for Climate Law. http://blogs.law.columbia.edu/climatechange/2018/01/08/santacruz-joins-other-municipalities-suing-fossil-fuel-companies-for-damages-caused-by-climatechange/. Accessed 30 August 2018. 53  Kusnetz, Nicolas (2018), New York City sues oil Companies over climate change, says it plans to divest. Inside Climate News, January 11. 54  The full text of the complaint (in English) is available online through https://www.oxfamnovib. nl/persberichten/klacht-tegen-ing-vanwege-schending-oeso-richtlijnen. Accessed 30 August 2018. 55  According to one of the NGOs involved, see: https://www.oxfamnovib.nl/nieuws/klimaat-klachttegen-ing-in-behandeling-genomen. Accessed 30 August 2018. The case was dismissed in 2019, following successful negotiations between the NGOs and the bank, see: https://www.oesorichtlijnen.nl/actueel/nieuws/2019/04/19/eindverklaring-nederlands-ncp-melding-door-4-ngos-versusing-bank. Accessed 20 May 2020. 

88

J. Verschuuren

the protection of land against flooding and inundation.56 Historically, with around 60% of the land prone to flooding, either by rivers or by the sea, this has always been a major task of governments. It will not come as a surprise, therefore, that an extensive regulatory and administrative system is in place to plan for and execute measures to protect the land against sea level rise and increased water run-off in rivers under climate change.57 The most likely way to challenge proposed measures, for instance arguing that these are insufficient, is therefore through administrative court cases, appealing government decisions under the regulatory regime. Other regulatory regimes, for instance on spatial planning and the environment, generally have broad open norms that give the various competent authorities a wide discretion. Relying on Article 21 of the Constitution, individuals can easily argue, before an administrative court, that this discretion needs to be used for effective adaptation measures and challenge ineffective measures or the lack thereof. Tort cases are possible too, similarly to the Urgenda case, but then with a focus on adaptation. Complainants would have to prove that necessary adaptation policies are lacking or are ineffective, and that these lacking or ineffective policies infringe on the duty of due care. Like in the Urgenda case, the duty of care standard can be used to invoke various human rights, Article 21 of the Dutch Constitution and international climate law.

5 Conclusion As is evident from the above discussion, there is ample room for both civil and administrative law cases both against government bodies and against private companies by individuals supported by NGOs in the Netherlands. The adoption of the Paris Agreement in December 2015 may make cases against governments a bit more challenging, as courts may want to give governments some time to implement the new agreement and the new Act. Nevertheless, the Urgenda rulings make it clear that simply following international climate agreements is not enough. States may be required to go beyond international agreements. The newly adopted Dutch Climate Act also does not take away the need to pursue a litigation pathway due to the absence of legally binding interim targets between now and 2050. It is likely, therefore, that Urgenda and others will keep on scrutinizing Dutch climate policy and go to court when they feel that policies are not strong enough. Another litigation pathway, however, is emerging. The most significant future opportunities, in my view, lie in cases against major contributors to climate change, in particular the oil industry. The wave of cases that is being filed in the United States may well pave the way for a global flood of litigation against ‘big oil’. The

 Parliamentary Documents II, 1975-1976, 13 873, No. 3, 13. See (in Dutch): Verschuuren (1993), pp. 201–202. 57  Verschuuren and McDonald (2012). 56

Climate Change and the Individual in the Netherlands

89

recent adoption of the Principles on Climate Obligations of Enterprises by a group of former judges and law professors from around the world will help push this movement.58

References Council of Europe (2012) Manual on human rights and the environment, 2nd edn. Council of Europe, Strasbourg Cox R (2016) Case comment. The decision of the Hague District Court in the climate case Urgenda foundation v The State of the Netherlands. J Plann Environ Law 10:323 De Graaf KJ, Jans JH (2015) The Urgenda decision: Netherlands liable for role in causing dangerous global climate change. J Environ Law 27:517–527 Expert Group on Global Climate Change (2017) Principles on climate obligations of enterprises. Eleven International Publishing, The Hague Gerrard MB, Wannier GE (2012) United States of America. In: Lord R et al (eds) Climate change liability. Transnational law and practice. Cambridge University Press, Cambridge, pp 556–603 Gerrard MB, Wilensky M (2016) The role of the national courts in GHG emissions reductions. In: Farber DA, Peeters M (eds) Climate change law. Edward Elgar, Cheltenham, pp 359–371 Griffin P (2017) The carbon majors database. CDP carbon majors report. CDP, London Jägers N, Jesse K, Verschuuren J (2014) The future of corporate liability for extraterritorial human rights abuses: the Dutch case against Shell. Am J Int Law Unbound e-36/e-41 Jans JH, Marseille AT (2010) The role of NGOs in environmental litigation against public authorities: some observations on judicial review and access to court in the Netherlands. J Environ Law 22:373–390 Roy S, Woerdman E (2016) Situating Urgenda v the Netherlands within comparative climate change litigation. J Energy Nat Resour Law 34:165–189 Van den Broek B, Enneking L (2014) Public interest litigation in the Netherlands. A multidimensional take on the promotion of environmental interests by private parties through the Courts. Utrecht Law Rev 10:77–90 Van Zeben J (2015) Establishing a governmental duty of care for climate change mitigation: will Urgenda turn the tide? Transnatl Environ Law 4:339–357 Verschuuren J (1993) Het grondrecht op bescherming van het leefmilieu. Tjeenk Willink, Deventer Verschuuren J (2015) Spectacular judgement by Dutch court in climate change case: court orders State to achieve reduction target of 25 per cent in 2020. Environ Liabil 23:72–74 Verschuuren J (2019) The State of the Netherlands v Urgenda Foundation: The Hague Court of Appeal upholds judgment requiring the Netherlands to further reduce its greenhouse gas emissions. Rev Eur Comp Int Environ Law. https://doi.org/10.1111/reel.12280 Verschuuren J, McDonald J (2012) Towards a legal framework for coastal adaptation: assessing the first steps in Europe and Australia. Transnatl Environ Law 1:355–379 Weishaar SE (2014) Emissions trading design. A critical overview. Edward Elgar, Cheltenham Jonathan Verschuuren  is a professor of International and European Environmental Law at Tilburg University, the Netherlands. He is or has been visiting faculty at a range of universities across the world, including the Universities of Connecticut, Potchefstroom, Leuven, and Sydney. In 2015, he received a prestigious Marie Skolodowska Curie fellowship under the EU Horizon 2020 research programme, and in 2017 he was the recipient of the IUCN Academy of Environmental

58

 Expert Group on Global Climate Change (2017).

90

J. Verschuuren

Law senior scholarship prize. His current research focuses on the climate change-agriculture-food security nexus, leading to such publications as ‘Towards an EU Regulatory Framework for Climate Smart Agriculture: the Example of Soil Carbon Sequestration’ (2018) 7(2) Transnational Environmental Law. His other research mainly focuses on various legal aspects of climate change, including coastal adaptation and emissions trading, as well as on important foundations of environmental law, such as the role of principles and human rights. He is the editor of the Climate Law Research Handbook series (Edward Elgar) as well as member of the board of editors of such journals as the South African Journal of Environmental Law and Policy and the Journal of Human Rights and the Environment.

Climate Change and the Individual: A Norwegian Perspective Esmeralda Colombo

Abstract  With only one, not yet final, case decided in climate change matters, Norway’s litigation landscape appears at its inception. Albeit a loss for the promoting NGOs and supportive civil society in terms of the remedies requested, the climate change lawsuit was effective in catalyzing public debate on fossil fuel policies and the role of courts. Yet, the subject matter of the case, a challenge to oil and gas licenses, proved fairly contentious as Norway’s economy is largely reliant on fossil fuel extraction. Such circumstance allows for an analysis of three clusters of climate change claims that individuals are in the position to lodge with Norwegian courts, against either public bodies or private actors, in either mitigation or adaptation matters. Notwithstanding some shortcomings, it appears that individuals can seek avenues of involvement in climate change matters through effective litigation. One of the most promising avenues rests with rights-based lawsuits, which would be buttressed by Norway’s constitutional protection of the right to a healthy environment, children’s rights, and the rights of future generations.

1 Introduction In the aftermath of the first court ruling on climate change matters in January 2018, on the review of oil and gas licenses, the Norwegian public debate revolved around Hamletic doubts on whether there should have been any lawsuit at all, whether courts had been misused by plaintiffs, i.e. environmental NGOs, and whether mobilizing society through legal action amounted to an ‘Americanization’ of society.1

 On the debate before the decision, see Øyrehagen Sunde (2017). On the debate after the decision, see Fauchald (2018).

1

E. Colombo (*) University of Bergen, Faculty of Law, Bergen, Norway e-mail: [email protected] © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_5

91

92

E. Colombo

In the present chapter, I illustrate the legal challenges and opportunities that individuals face in climate change litigation in Norway. I first sketch Norway’s national and international obligations in climate change matters with specific reference to the Paris Agreement and its implementation in Norway (Sect. 2). I later turn to three clusters of legal actions that have materialized, or may materialize in the future (Sect. 3). I conclusively put forward some considerations on pathways for effective litigation in Norway (Sect. 4) and closing remarks (Sect. 5). The present research is based on a number of assumptions and limitations. By climate change litigation, I mean climate change adjudication in courts, in relation to which I sometimes consider administrative or other non-judicial bodies. Throughout the report, legislation characterized as of EEA relevance means that it was agreed within the framework of the European Economic Area (‘EEA’) Agreement between the European Union (‘EU’) Member States and the three EEA EFTA States—Iceland, Liechtenstein and Norway.2

2 Climate Change Law in Norway: Selected National and International Sources Norway has been putting climate change mitigation policies into effect since the 1980s. Among the most important instruments at the national level, Norway’s mitigation policies encompass a carbon tax; greenhouse gas (‘GHG’) emissions regulation laid down in the Petroleum Act and the Pollution Control Act; and the Greenhouse Gas Emissions Trading Act.3 The latter lays down the country’s emissions trading system, which is presently harmonized with the EU Emissions Trading Scheme (‘ETS’).4 The environmental provision of the Norwegian Constitution, Section 112, enshrines the right to a healthy and biodiverse environment, and the principle of comprehensive management of natural resources, for the benefit of future generations as well (first paragraph). To such ends, Section 112 provides for a right to information in environmental matters (second paragraph), and the obligation for state’s authorities to implement the principles laid down in Section 112 through “measures” (third paragraph).5 The principle of Environmental Impact Assessment (‘EIA’) can be derived from Section 112, while more detailed rules on EIAs are found in the Planning and Building Act and EIA Regulation,6 implementing the EIA Directive7 and Strategic  EEA Agreement. This and further references synthetically refer to legal documents whose reference can be found in full in the literature list. 3  CO2 Tax Act; Petroleum Act; Pollution Control Act; GGETA. See also Bugge (2011), pp. 103ff. 4  Norway: An Emissions Trading Case Study (2015). 5  The Norwegian Constitution (1814) §112. 6  Planning and Building Act. EIA Regulation. 7  See EIA Directive. See Bugge (2011), pp. 46–50. 2

Climate Change and the Individual: A Norwegian Perspective

93

Environmental Assessment (‘SEA’) Directive.8 The EIA Directive has also been amended in light of the Espoo Convention on the EIA in a transboundary context.9 The Petroleum Act and related regulations govern EIAs and SEAs for offshore activities.10 SEAs are normally carried out by municipalities within Master Plans, whereas EIAs are carried out within Local Development Plans. The Master Plans concern a vaster area and are less detailed than Local Development Plans.11 A non-­ mandatory regional plan is carried out by the county council.12 State entities participate in plans conducted by municipalities and counties.13 Norway’s EIA legislation sets forth both procedural rights on public participation in decision-making (first prong) and obligations on how to carry out EIAs (second prong). On the first prong, Norway is Party to the Aarhus Convention,14 according to which it is not compulsory for the relevant authority to require an EIA in all environmental permit procedures. When the assessment is performed, however, it should fulfill the public participation standards set forth in the Aarhus Convention.15 In case of non-compliance, individuals and NGOs shall be granted access to justice under Article 9(2) of the Aarhus Convention. On the second prong, for the purpose of this work, it appears relevant to note that the Planning and Building Act as well as the EIA Regulation have been amended in light of Norway’s EEA obligations and currently contain an explicit obligation to encompass climate change effects within the scope of SEAs and EIAs.16 Turning from national regulation to international regulation, I here focus on the Paris Agreement.17 Norway submitted its Intended Nationally Determined Contribution (‘INDC’) on 26 March 201518 and did not make any new submissions. Its INDC has thus automatically become its first Nationally Determined Contribution (‘NDC’), to be pursued by 2025. Norway’s NDC sets forth two commitments. Firstly, it commits to a target of at least 40% reduction of GHG emissions by 2030 compared to 1990 levels. Secondly, Norway commits to becoming a low-emission society by 2050.19 Both commitments are presently enshrined in the Climate Change Law (‘CCL’), which came into effect on 1 January 2018.

 SEA Directive.  EIA Directive, Preamble, §15. Planning and Building Act §14(4) and EIA Regulation, Chapter 8. 10  Petroleum Act and Petroleum Regulations. Bugge (2011), p. 50. 11  Bugge (2011), pp. 273–279. 12  ibid. 279–280. 13  ibid. 281–282. 14  Aarhus Convention. Norway signed the Aarhus Convention on 25 June 1998 and ratified it on 2 May 2003. 15  Jendrośka (2011), p. 101. 16  Planning and Building Act §3-1(g). EIA Regulation §10(3)(g); §19(1)(d) and §21(1). 17  Paris Agreement, ratified on 20 June 2016. 18  Norway’s INDC, p. 1. 19  Norway’s INDC, p. 5. 8 9

94

E. Colombo

The CCL does not exactly reproduce Norway’s NDC. While the NDC sets forth the commitment of an emissions budget covering the period 2021–2030, the CCL implies a longer time span, 2020–2050. Moreover, it provides for two obligations for the Government to fulfill each year, which are not mentioned in the NDC. The first obligation concerns the explanation as to how Norway can achieve the CCL targets within the annual budget proposal for year 2019 and subsequent budget proposals.20 The second obligation rests with the government’s yearly account of the climate change effects predicted based on the proposed budget.21 The preparatory works to the CCL demonstrate the lack of an established methodology in this regard.22 Norway’s NDC lays down the intention to fulfill Norway’s commitment through “collective delivery with the EU and its Member States”.23 Differently, the CCL solely mentions that it shall not prevent the achievement jointly with the EU for climate targets laid down in or pursuant to the CCL.24 As a further point of difference, the NDC puts forward some criteria for achieving the 40% emissions reduction target by 2030. The NDC appears to exclude the land-use, land-use change and forestry (‘LULUCF’) sectors from accounting for the target.25 Conversely, the CCL is silent on the LULUCF approach, but incorporates one of the provisions in the Paris Agreement. In fact, the CCL asserts that a low-emission society means a society where GHG emissions are reduced to counteract the harmful effects of global warming, as described under Article 2(1)(a) of the Paris Agreement, on the basis of best scientific evidence, the global emissions trend and national circumstances.26 Notwithstanding such differences, it does not appear that the CCL is incompatible with the NDC. Rather, it follows the NDC and postpones specific measures until the 2019 budget proposal. Considering adaptation regulation, the main instrument is the White Paper adopted by Parliament in 2013,27 which is not binding. The White Paper maintains that everyone is responsible for climate change adaptation—individuals, businesses, industry, and authorities.28 In adaptation matters, Norway’s environmental regulation is applicable, in particular the legal framework on spatial planning29 and natural disaster law.30 The question that springs is whether the existing framework is actually applied to take into account and regulate climate change effects. Current debate is limited to some topics, such as agriculture matters.31

 CCL §6(1)(a).  CCL §6(1)(b). 22  Prop. 77 L (2016–2017), p. 47. 23  Norway’s INDC, p. 1. See also NOU 2015:16. 24  CCL §1(3). 25  Norway’s INDC, pp. 3–4. 26  CCL §4(1). 27  White Paper on Adaptation to Climate Change. 28  ibid. 5. 29  Bugge (2011), pp. 269ff. 30  See Act on Natural Damage. 31  Fjeld and Fermariello (2018). See the limits shown in Hanssen et al. (2015), p. 243. 20 21

Climate Change and the Individual: A Norwegian Perspective

95

3 Climate Change Litigation in Norway 3.1 Introduction In the following sections, I consider the opportunities and challenges that individuals face when lodging complaints in climate change matters with courts in Norway. It appears appropriate to here pin down two features of climate change litigation that concern all clusters under analysis. Firstly, there exists no separate court system for administrative matters. When administrative appeals bodies are mentioned, such bodies are governmental:32 court review in general courts can be chosen as an alternate or further avenue of review. Secondly, standing requirements before general courts and administrative appeals bodies are very similar. The Public Administration Act, §28, requires the existence of a legal interest to the appeal. Throughout time, the legal interest to the appeal under the Public Administration Act has come to equal the genuine need to have the claim settled under the Dispute Act, §1(3).33 Further, an abstract question of law on the compliance of public bodies’ decisions with the Norwegian Constitution would be stricken down.34 After gauging claims against the Government, grounded in either international climate change obligations or the right to a healthy environment (Sect. 3.2), I turn to claims against public bodies’ decisions, on procedural and substantive grounds in consideration of both mitigation and adaptation purposes (Sect. 3.3), and claims against private actors (Sect. 3.4). Given the wide range of private actors, for the last section, I consider businesses operating in carbon-intensive sectors and pension funds.

3.2 Claims Against the Government Concerning Climate Change Obligations and the Right to a Healthy Environment 3.2.1 Claims Grounded on International Climate Change Obligations The question is whether individuals can bring a case in Norwegian courts against the Norwegian government for allegedly not complying with its international climate change obligations. I firstly consider challenges against the CCL and secondly, challenges against other acts.

 Fauchald (2010), p. 51. By governmental, I mean superior administrative bodies.  Public Administration Act §28. Bugge (2011), p. 319, reporting that the Dispute Act’s requirement has been relaxed in some administrative appeals. See also Dispute Act, §1(3), demanding three conditions: the existence of a legal claim for which the claimant must show a genuine need to have the claim settled; a legally uncertain situation between the parties; and the parties’ ‘connection’ to the claim. 34  See the lower threshold permitted in human rights matters: Rt 2003 p. 301, para 46 and Ot.prp. nr.51 (2004–2005), pp. 154–155. 32 33

96

E. Colombo

With reference to the CCL, the latter generally matches Norway’s NDC and is not liable to be challenged. Given some lingering doubts on the capability of Norway to attain its NDC targets,35 the question is whether individuals may challenge laws, policies and decisions allegedly insufficient to attain the NDC targets, so-called private enforcement of legal rules.36 Even though it may be interesting to note that Norway is a dualist legal order in terms of the relationship between national law and international law,37 the following does not consider the direct application of international law in national courts. Rather, some analytical points will be made on the consistent interpretation of national law with international law (indirect effect), where the dualist character of the legal order is inconsequential. With reference to the procedural obligations articulated in the CCL (supra Sect. 2), individuals cannot bring a lawsuit in order to challenge the relevant sections of the yearly budget in case the obligations are not complied with, or the climate goals are ultimately not achieved. Since the budget process is left to the legislature, individuals cannot attack it in court. They may, however, turn to a nonjudicial body, the Parliamentary Ombudsman, to request a control over the application of the CCL on the part of the government.38 Three challenges appear here notable. Firstly, the Parliamentary Ombudsman mainly deals with individual, rather than general, cases.39 Secondly, he/she does not make decisions, and solely presents shortcomings in the application of the laws, if found, to the relevant authorities.40 Given the lack of an established methodology on the mode to comply with the CCL procedural obligations, it can be difficult for the Parliamentary Ombudsman to scrutinize the government on how it reports to Parliament. The same limitations apply if individuals turn to the Parliamentary Ombudsman for scrutiny on the targets set forth by the CCL. As held in the sole climate change lawsuit ever filed in Norway, “inadequate target attainment has not resulted in nor will result in sanctions”,41 namely formal recognition and legal responses upon the government’s failure to attain mitigation targets. Thirdly, proceedings before the Parliamentary Ombudsman may lack a timely and expeditious character.42

 Hermwille and Gornik (2017), pp. 5–6.  In this context, private enforcement concerns legal actions initiated by private parties. The term is usually understood in contrast to public enforcement, namely the activities undertaken by law enforcement bodies, see Glover (2012). 37  Ulfstein (2016), p. 116. 38  Bugge (2011), pp. 321ff. 39  ibid. 321. 40  ibid. 321–322. 41  Greenpeace Nordic Ass’n and Nature & Youth v. Norway Ministry of Petroleum and Energy (Oslo District Court, complaint filed 18 October 2016) (the ‘Case’), p. 21. 16-166674TVI-OTIR/06 (‘Decision of the Case by the District Court’). 18-060499ASD-BORG/03 (‘Appeals Decision of the Case’). 42   See the findings in Findings and Recommendations with regard to communication ACCC/C/2013/93 concerning compliance by Norway (adopted by the Compliance Committee on 19 June 2017) https://www.unece.org/fileadmin/DAM/env/pp/compliance/CC-58/ece.mp.pp.c.1. 2017.16.e.pdf, para 94. 35 36

Climate Change and the Individual: A Norwegian Perspective

97

Acts different from the CCL may in principle be challenged on the ground that they do not comply with the CCL. In fact, albeit national taxation on some GHG emissions,43 Norway’s current policies to meet its NDC have been evaluated as insufficient.44 The possibility to privately enforce the CCL, and indirectly the NDC, through litigation is particularly interesting. It should be noted that the preparatory works to the CCL, which rank as legal sources in Norway,45 on the one hand highlight the lack of justiciability of the CCL; on the other hand, they underline the availability of other legislation and specific measures to take into account rights and duties. They further state that the CCL will not change access to legal trial under other legislation.46 The answer to the question of whether individuals can privately enforce the CCL is thus that this possibility can be envisaged in the context of other legislation and more specific measures. Before the CCL came into force, the NDC was invoked in the only climate lawsuit ever filed in Norway, the ‘Case’,47 in order to claim that the Norwegian government was departing from its international commitments, besides from national law. The Case was brought by two environmental NGOs, supported by an intervener, against the Norwegian government upon the grant of ten oil and gas (‘petroleum’) licenses for deep-sea extraction in parts of the Barents Sea. The licenses were awarded through an order of the Council of Ministers, dating 10 June 2016 (the ‘Decision’), 10 days before the Paris Agreement was ratified in Norway (20 June 2016). Plaintiffs referred to Norway’s INDC in order to emphasize the hiatus between the climate targets set by the government and the tools hitherto deployed to attain such targets,48 and asked for a declaration of invalidity of the decision based on either the Constitution or procedural errors. The court concluded that the Paris Agreement was not relevant for gauging the Decision’s invalidity, not even in terms of the consistent interpretation of national law with international law,49 and that the Decision was not invalid.50 The Oslo District Court allowed wide governmental discretion because the Parliament was involved in the decision-making process,51

 See supra Sect. 2.  https://climateactiontracker.org/countries/norway/. 45  On sources see Øyrehagen Sunde (2014), p. 48. 46  Prop. 77 L (2016–2017), p. 34. 47  The Case. 48  ibid. 22. 49  Decision of the Case by the District Court, p. 27. It is interesting to note that the relevant judge did not base such dismissal on the dualist character of the Norwegian legal system. In fact, it appears that plaintiff’s argument was based on the indirect application, rather than the direct effect, of the Paris Agreement. The Case, p. 36. On the indirect application of international law in dualist legal orders, see Nollkaemper (2011), p. 143. See Decision of the Case by the District Court, p. 27 on the further dismissal of arguments based on international legal principles, in particular the precautionary principle. 50  Decision of the Case by the District Court, p. 45. 51  ibid. 20. 43 44

98

E. Colombo

allegedly allowing for a “democratic basis” for the decision.52 Deference materialized when the court pondered whether CO2 emissions would substantially increase due to the Decision, but concluded that the increase would be marginal. Such conclusion was reached on the assumption that the “high scenario” of CO2 emissions will not materialize.53 The court did not motivate why the “high scenario” will not materialize, but heavily relied on a message sent by the Government to Parliament on the matter in 2012–2013.54 Whether a different result would have been obtained had the CCL, rather than the INDC, been invoked is difficult to tell. 3.2.2 Claims Grounded on the Right to a Healthy Environment: Norway’s Constitution The Norwegian Constitution includes a provision, Section 112, enshrining the right to a healthy environment. The question is whether individuals can bring a climate change case against the Government on this ground. The Case reviewed supra Sect. 3.2.1 confirms such a possibility. There the court maintained the justiciability of Section 112,55 yet it made the threshold for such review very high and rejected plaintiffs’ request as to the declaration of invalidity of the Decision and the reimbursement of legal expenses. The court ordered plaintiffs to cover the government’s expenses amounting to 580,000 NOK, roughly 69,400 US$ at the time.56 In January 2020, the Oslo District Court’s decision was for the most upheld by the Oslo Court of Appeals, with notable exceptions. For instance, the appeals court maintained the responsibility of each party for her own expenses due to the novelty and importance of the issues raised. On the ground of Section 112, no case has been filed in adaptation matters, but it can be hypothesized. Section 112 refers to the productivity and diversity of the natural environment, as well as to the principle of natural resource management on the basis of comprehensive long-term considerations. Further support for the right to a healthy environment can be found by construing Section 112 in light of the case law of the ECtHR on the procedural and substantive obligations under natural disasters,57 including disasters beyond human control.58

 ibid. 21 (translation by author).  ibid. 22 (translation by author). 54  ibid. 55  ibid. 13–17. 56  ibid. 45. Leave of appeal to the Supreme Court was rejected under Dispute Act §30-2. See also Appeals Decision of the Case, para 6. 57  European Convention on Human Rights. Council of Europe (2012), p. 138. 58  ibid. 37. On the primacy of ECHR law and case-law in the Norwegian legal order, see, inter alia, Rt. 2000 p. 996, Rt. 2002 p. 557, Rt. 2005 p. 833, Rt. 2008 p. 1409, Rt. 2015 p. 421, HR-2016-304-S p. 47 and HR-2016-2195-S p. 104. 52 53

Climate Change and the Individual: A Norwegian Perspective

99

3.3 Claims Against Public Bodies Decisions 3.3.1 Challenges Against Decisions Made by Public Bodies Grounds for review of decisions made by public bodies, can be procedural and/or substantive. Under procedural grounds, if an EIA is mandatory, individuals in the interested community can lament the lack of/insufficient involvement within the EIA.59 A decision can also be challenged on the ground of deficiencies of the EIA, for example, whenever climate change considerations have not been duly incorporated in the decision.60 No case has been retrieved on the lack of climate change considerations within SEAs and EIAs in major infrastructure authorizations.61 Individuals can lodge either an administrative appeal or a lawsuit with courts. An administrative appeal is mandatory only when the public body in charge of the decision has specified that a prior administrative appeal is necessary,62 and the review bodies should bestow ample discretion onto municipalities.63 In court, the act can be challenged on substantive grounds, notably the lawfulness of the decision including the proceedings, personal and procedural competence, the facts, interpretation, and subsumption.64 Within subsumption lies a control over reasonableness,65 if plaintiff(s) can prove that the project allowed by the decision cannot meet the purpose of the act.66 Norwegian courts generally restrain themselves both in terms of lawfulness control67 and reasonableness control.68 Individuals can in principle challenge the act also by referring to the Norwegian Constitution,  EIA Regulation Chapter 6.  ibid. Appendix IV(b). 61  Projects have been contested on other grounds, for example the outright lack of an EIA. See Rt 2009 p. 661, which is not a climate change-related case. 62  Public Administration Act §27(b). 63  Public Administration Act §34. Such discretion is dependent upon the types of cases, see BragdøEllenes (2014), p. 284. On the three types of administrative review, see Bragdø-Ellenes (2014), pp. 121–122. On the review bodies, ibid. 123 and Public Administration Act §28(2). On the fairly open type of review, Bragdø-Ellenes (2014), p. 132. 64  Bragdø-Ellenes (2014), p. 287. The act of subsuming can be reviewed solely when the relevant authority has no discretion in wielding public power, when power is exercised arbitrarily (with regard to subject and objectives), when the process/decision is discriminatory, when discretion is exercised in a capriciously or grossly unreasonable way. Bragdø-Ellenes (2014), pp. 287–288. On the difference between formal and material errors, see Bragdø-Ellenes (2014), p. 288. Guidance on lawfulness control cannot be found in the Public Administration Act alone, but rather in practice and doctrine, see Bragdø-Ellenes (2014), pp. 287 and 328. On special rules concerning court cases for the review of administrative decisions on coercive measures in the health and social services, see Dispute Act, §36. On lawfulness control on the part of the central government of some decisions handed down by democratically-elected organs, municipalities and counties, see Law on Municipalities and Counties, §§59-60. On lawfulness control in the government’s bill for the new Law on Municipalities and Counties, Prop. 46 L (2017–2018), pp. 365, 374, 380, 414ff, 451, 456. 65  Alleged unreasonableness need to be gross, Bragdø-Ellenes (2014), p. 290. 66  Harbo (2015), p. 191. 67  See, inter alia, Rt. 1979 p. 1179, p. 1181. 68  Harbo (2015), p. 192. 59 60

100

E. Colombo

and specifically Section 112. Plaintiffs may argue that decisions of public bodies do not mirror comprehensive long-term considerations, nor do they safeguard the right to environment for future generations, as required by Section 112. Judicial review based on constitutional grounds has been put forward before69 and also encompasses Section 112, as the Case showed.70 Even though Norway is featured by a quite centralized executive power, municipalities play an important role in climate change matters in consideration that they are in charge of both emissions reduction plans and an increased environmentally-­ friendly energy production. In both areas, the central government has laid down guidelines.71 Municipalities have competence in terms of adaptation policies in spatial planning and building permit processes,72 including the construction of floods, landslide and avalanche protection.73 Yet, it appears that adaptation has not comprehensively been on the municipal planning agenda.74 Claims in Mitigation Matters: The Case of Major Infrastructure Developments The question is whether, in case of major infrastructure developments—such as a new airport/runway—individuals can challenge the decision on either procedural (participation in decision-making or lack of/deficient environmental assessment) or substantive (alleged increase of GHG emissions) grounds. No such case appears to have materialized in Norway. This may be explained by either the difficulty of detecting such cases, which are not generally available in the online database of official documents (‘lovdata’), or the fact that public actors, rather than individuals, raise such issues. Claims in Adaptation Matters: The Case of Major Flood Resilience Developments The question is whether individuals may attack a decision to further develop flood resilience infrastructure and amend Municipality coastal policies on either procedural (participation in decision-making or lack of/deficient environmental assessment) or substantive (flood resilience infrastructure and new coastal policies allegedly not sufficient for adapting to climate change) grounds.

 See, inter alia, Rt 1976 p. 1.  See supra Sect. 3.2.1. 71  State Planning Guidelines for Climate and Energy Planning. 72  White Paper on Adaptation to Climate Change, p. 6. The Government stated that it intended to draw guidelines in this area as well, ibid., which does not appear accomplished yet. 73  Hovelsrud et al. (2015), p. 198. 74  ibid. 203. See also Ødegård et al. (2013), p. 392. 69 70

Climate Change and the Individual: A Norwegian Perspective

101

Cases have concerned actions for damages when stormwater control has proved ineffective75; the inadequate maintenance of the sewage system76; and the inadequate maintenance of the draining system.77 Further cases may have materialized, but the caveats portrayed before still hold, cases may be inaccessible and public actors rather than individuals may have raised the issues, either formally or informally. Coastal policies fall within Master Plans and Local Development Plans.78 Counties are in charge of regional plans.79 The general public has the right to participate in the drafting process of Master Plans.80 The general public participates also in the drafting of Local Development Plans, which may be initiated by any citizen intending to build or develop on his/her land.81 While the Master Plan cannot be challenged before administrative bodies, it can be challenged in courts. Local Development Plans may be subject to administrative appeal by the landowner, other right-holders, or other parties with ‘legal interest’ in the matter,82 and possibly challenged in court as well.

3.4 Claims Against Private Actors 3.4.1 Claims Against Carbon-Intensive Sectors in Mitigation Matters: The Case of the Aluminum Industry The question is whether a business operating in a carbon-intensive sector, such as the aluminum industry in Norway, can be challenged in court upon alleged violations of the right to health and increased GHG emissions. The situation described in the scenario is plausible, with some caveats. Norway features a successful aluminum sector. Plants located in Norway are, however, mainly run with hydropower and are not carbon-intensive. Successful arguments in the courtroom would probably not wield climate change considerations, but rather the effects on health brought about by the aluminum production.  Rt. 2007, p. 431, which was not successful for plaintiff. The decision does not mention either the climate or climate adaptation. 76  Rt. 2011, p. 1304, which was successful for plaintiff. The decision does not mention either the climate or climate adaptation. On force majeure, see Taubøll (2016), pp. 103 and 110. 77  Rt. 2012, p. 820, which was successful for plaintiff. The decision does not mention either the climate or climate adaptation. Inadequate road signals may also be a ground for damages. On the narrower discretion in this field, see Rt. 2000, p. 260, but see also ibid., p. 261. See other circumstances in Taubøll (2016), passim. 78  Bugge (2011), pp. 273–279. 79  ibid. 279–280. 80  Planning and Building Act §4-1(2) and §5. 81  Bugge (2011), p. 277. 82  Planning and Building Act §28. On objections raised by another municipality, a county, or a State authority, see Bugge (2011), p. 272. On the wide discretion of local bodies in these matters, see Bragdø-Ellenes (2014), p. 284. 75

102

E. Colombo

Emissions related to the production of aluminum are regulated with permits issued under the Pollution Control Act,83 complemented by the Regulation on Pollution Control and other regulations that are not relevant here. The main authorities responsible for the implementation of the Regulation on Pollution Control are the municipalities,84 but the aluminum industry and the Norwegian government have concluded one, rather controversial, voluntary agreement on CO2 emissions reduction.85 No such case based on the right to health and increased GHG emissions appears to have materialized in Norway. The possibility for individuals in Norway to challenge these industrial activities could emerge on three avenues. Firstly, as a challenge against the permit before administrative authorities, possibly leading to cases before courts, or as outright challenges in civil courts short of administrative appeals. Secondly, as an action against industrial operators entailing injunctive reliefs and/or damages claims before courts. Thirdly, as a report to the prosecuting authority in order to have the case decided in courts within criminal proceedings. I examine each avenue in turn. Challenges Against the Permit With reference to the first avenue, the challenge would be against the permitting authority, and effects on the company would be indirect. Individuals may resort to administrative remedies before the administrative authority. Challenging the permit may be attained on a number of grounds, either procedural or substantive, as explained supra Sect. 3.3.1. In addition, the Pollution Control Act provides for the alteration or withdrawal of the permit upon evidence that “the damage or nuisance caused by the pollution proves to be significantly greater than or different from that anticipated when the permit was issued;” that “the damage or nuisance can be reduced without unreasonable cost to the polluter;” that “new technology makes substantial reduction of the pollution possible;” that “the conditions laid down in the permit are not necessary for the purpose of counteracting pollution;” that “the advantages to the polluter or others of relaxing or rescinding conditions will be substantially greater than the damage or nuisance to the environment that will result;” or that “rules for reversing decision” would nevertheless permit such alteration or withdrawal.86 Individuals may request an alteration or withdrawal of the permit even in the absence of the foregoing circumstances if the permit were issued more than 10 years before the requested withdrawal or alteration.87 If the permit is

 Pollution Control Act §11.  Bugge (2011), p. 106. Regulation on Pollution Control. 85  ibid. 113. 86  Pollution Control Act §18. 87  ibid. 83 84

Climate Change and the Individual: A Norwegian Perspective

103

not revised or annulled, plaintiffs may pursue the case in courts,88 even though public authorities enjoy a wide discretion. An administrative appeal is mandatory only when the relevant public body specifies that a prior administrative appeal is necessary.89 As mentioned, climate change considerations are not likely to feature in such types of cases due to the fact that the aluminum industry located in Norway is not carbon-intensive. Health considerations may be put forward in light of ECtHR case law on industrial installations.90 Such latter argumentative strategy, however, does not appear current in Norway.91 Request for Injunctive Reliefs and/or Damages Claims in Civil Courts The Neighboring Properties Act allows lawsuits before courts when damage or nuisance on a neighboring property is unreasonable or unnecessary.92 The standard of the unnecessary character of the damage or nuisance is entwined with “what is technically or economically feasible to prevent or limit the damage or nuisance,” taking into consideration also the “local nature diversity”.93 The standard of unreasonableness also encompasses “what may be expected, having regard to the local conditions, and to whether it differs from the usual ways activities are carried out locally”.94 The Act clarifies that “[e]ven if something can be expected, or is usual [..], it may be regarded as unreasonable if it results in considerable worsening of the user conditions of a limited number of people”.95 In the posture of the case, emissions from the plant can be expected, but scientific assessments may show that emissions result in the considerable worsening of the health conditions of the neighborhood members. Norwegian courts construe the concept of neighboring property quite liberally as to encompass the neighborhood in general.96 Individuals should have property links with the neighborhood where the industrial installation operates. A violation of the rule can give rise to the right to request injunctions,97 or compensation pursuant to a

 Under some circumstances, individuals cannot appeal the administrative decision that rejected the appeal, Public Administration Act §28(3). 89  Public Administration Act §27(b). Under certain circumstances, it is possible to nonetheless avoid the administrative appeal if six months have elapsed from when the claim was put forward. ibid. 90  Council of Europe (2012), pp. 38ff. 91  See, however, Rt 2009 p. 1237. 92  Neighboring Properties Act §2. 93  Neighboring Properties Act §2 as in Bugge (2011), p. 288. 94  ibid. 95  ibid. 96  Bugge (2011), p. 289. 97  Neighboring Properties Act §10. Bugge (2011), p. 289. 88

104

E. Colombo

strict liability standard.98 Injunctions are impermissible in the case at hand, assuming that the permit was formally approved under the Pollution Control Act.99 The right to request injunctions is pre-empted whereas the right to compensation applies.100 In principle, compensation only covers economic loss,101 but the preparatory works to the Pollution Control Act and a specification of the case law may in principle allow for compensation besides economic loss.102 In Norway, damages against private actors—or against the State for falling short of its positive obligations under the ECHR to regulate private activities—have surfaced on human rights grounds with reference to the right to health.103 Report to the Prosecuting Authority Individuals may bring the issue of industrial emissions from the aluminum installations to the attention of the prosecuting authority in order to have the case decided in criminal proceedings.104 This type of action has several shortcomings. Institutions for the control and enforcement of environmental law, such as the State Nature Inspection and Økokrim, would not normally start investigation if the permit is not breached.105 The problem posed by climate change is in fact that emissions contributing to climate change are usually ‘lawful’, namely allowed pursuant to a permit. Notwithstanding, the Criminal Code provision on environmental crimes would apply if intentional or negligent conduct results in significant pollution, which is punished with imprisonment up to 15 years. Imprisonment for up to 6 years is provided for intentional or grossly negligent conduct reducing the natural stock of protected organisms that are endangered by national or international threat, or inflicting considerable damage on protected areas.106 The threshold required for the application of this provision appears demanding.  Neighboring Properties Act §9. Bugge (2011), p. 289.  Neighboring Properties Act §10. Bugge (2011), p. 292. 100  Pollution Control Act §10. 101  Bugge (2011), p. 288. 102  See also ibid. See NOU 1982:19, pp. 134ff and Ot.prp no. 33 (1988-89), p. 45 (explaining, inter alia, the logic of the polluter-pays principle) and p. 74 (on compensation for lawful pollution). Before case law is developed specifically on compensation for damages incurred due to climate change, both Rt. 1996 p. 1473, p. 1476 and Rt. 2013 p. 116, para 50, may be applied by analogy and lead to compensation of the “value evaluations generally accepted in the society at large” (“allmenne verdioppfatninger i samfunnet”). I owe the elaboration and translation to Prof. Bjarte Askeland. 103  Rt 2009 p. 1237, para 132 on State’s obligations in matters of industrial risks and dangerous activities, pursuant to the ECtHR’s case law. The holding of this decision was not favorable to claimant. 104  Criminal Procedure Act §224. 105  Bugge (2011), p. 314. Økokrim can also initiate prosecution of economic and environmental crimes, ibid. 106  Criminal Procedure Act §240. 98 99

Climate Change and the Individual: A Norwegian Perspective

105

3.4.2 Claims Against Pension Funds in Mitigation and Adaptation Matters The question is whether an individual in Norway can bring a case in Norwegian courts against a pension fund, or a similar entity, whose actions contribute to a global rise in GHG emissions and/or increased need for adaptation. No such case has hitherto materialized in Norway. I restrain the analysis to Norway’s major pension fund, and specifically the branch called Government Pension Fund—Global (the ‘Oil Fund’ due to its being constituted with revenues from state petroleum activities), and a smaller pension fund, the Kommunal Landspensjonskasse (‘KLP’). From the first transfer of oil revenues in 1996, the Oil Fund has become the largest sovereign fund worldwide, hitting $1 trillion in assets. Part of the Oil Fund’s investments are in the oil and gas sector,107 some of which contributed the most to the fund’s return in 2016.108 The Oil Fund’s management follows Ethical Guidelines and counts on the Council on Ethics for recommendations on the observation or exclusion of companies from the fund.109 The Ethical Guidelines require divestment in case of “unacceptable risk of contributing to unethical behavior”.110 The Oil Fund has assessed selected companies exposed to climate risk since 2010.111 Upon environmental, social and governance-related risk factors, the fund divested from 23 companies in 2016.112 In the last 5  years, it divested from 210 companies.113 Turning to KLP, in 2017 a divestment campaign was mounted and resulted in KLP’s divestment from the Dakota Access Pipeline in the United States. KLP grounded its decision on a number of international law instruments and the KLP Investment Guidelines, which are aligned with the Recommendations from the Council on Ethics for the Government Pension Fund—Global.114 It is important to focus on the specific stance of the Oil Fund and KLP on climate change issues, which is governed for both by the Fund’s Ethical Guidelines. The latter underline the salience of international obligations, among which those set in the international climate change regime, for financial investment decisions,115 but view emissions regulations as part of national prerogatives,116 relatively free from international influence. The sole exception to such national discretion is the Montreal  Norges Bank Investment Management (‘NBIM’), Government Pension Fund Global – Annual Report 2016, 37, Table 12-13. 108  ibid. 36. 109  Ethical Guidelines. 110  Nagell (2011), p. 89. 111  ibid. 31. 112  http://www.norges-bank.no/en/Published/News-archive/2017/2017-03-07-gpfg/(7 March 2017). 113  ibid. See also NBIM (2016). 114  KLP (2017), p. 12. 115  Ethical Guidelines, pp. 51 and 98–101. 116  ibid.100. 107

106

E. Colombo

Protocol on ozone depleting substances.117 The stance taken in the Ethical Guidelines with reference to coal-powered energy production may be at odds with current international agreements and economic research as the Ethical Guidelines assert that there is no basis for divesting from companies producing coal.118 All in all, the Ethical Guidelines provide no clear ground for pleading disinvestment and/or damages in the courtrooms of Norway. Climate change has been the object of a 2014 report commissioned by the Norwegian Ministry of Finance.119 Criticism was raised as the report did not consistently state whether climate change should be taken into account in investment decisions and the extent to which investments can address climate change threats.120 Furthermore, it does not appear that the report has been used by the Oil Fund. A further study has been financed by the Fund on potential climate risks in the financial markets.121 In the Oil Fund’s annual report, climate change is mentioned only once in respect to the three aspects of sustainability that the Fund focuses on: “children’s rights, climate change and water management.”122 With regard to KLP alone, it regularly publishes an analysis of its investments’ carbon footprint, which has steeply decreased.123 In a recent rating on climate-­ related financial risk, KLP outperformed the Norwegian Pension Fund, both Global and Norway. It ranked no. 7 worldwide124 and no. 1 in Scandinavia.125 By and large, it emerges that pension funds in Norway are increasingly incorporating climate change information and, at times, assessments. The Oil Fund’s investments largely cover GHG-intensive sectors. Lawsuits against the Oil Fund have not occurred yet, probably due to the fact that the fund performed very well, but the matter is presently debated in the media.126 A recent development lies in the recommendations issued to the Finance Minister by the unit of the Norwegian Central Bank managing the Oil Fund. Due to the instability of oil and gas prices, the unit recommends the removal of oil and gas stocks from the benchmark index of the Oil Fund. If this recommendation were followed, the vulnerability of the fund to lawsuits would dramatically decrease.127 Given KLP’s low climate-related financial risk, a lawsuit would be even less successful than for the Oil Fund.

 ibid. 141.  ibid. 157. 119  Skancke (2014). 120  Longstreth (2015). 121  Hjort (2016), p. 24. 122  NBIM, Government Pension Fund Global – Annual Report 2016, p. 61. 123  KLP (2016). 124  AODP (2018), p. 12. 125  ibid. 63. 126   Kvåle et  al. (2018) and Øyrehagen Sunde and Colombo (2017). Contra Angell and Magnus (2017). 127  NBIM, Investment Strategy for The Government Pension Fund Global (2017). 117 118

Climate Change and the Individual: A Norwegian Perspective

107

Lawsuits may hypothetically be brought by Norwegian citizens on the basis of the fiduciary duty owed by either the Government (in the management of the Oil Fund), or policyholders (in the management of KLP). With regard to the Oil Fund, its primary fiduciary duty used to assert that the Fund “should be managed with a view to achieving the highest possible financial return for the benefit of present and future Norwegians.”128 This formulation might have allowed individuals to bring lawsuits by grounding them on emerging case law and scholarship on the principle of inter-­generational equity—but not on the public trust doctrine, which does not belong to the Norwegian legal culture. Reference to future generations is not retrievable anymore.129 By no means does this signify that the principle of inter-generational equity cannot be deployed in a prospective climate change lawsuit as it is enshrined in Section 112 of the Constitution. Because climate change is one of the aspects of sustainability that the Oil Fund focuses on, individuals may still plead on inter-generational grounds. With regard to KLP, it was not possible to retrieve its memorandum and articles of incorporation that may illuminate its fiduciary duty toward policyholders.130

4 Effective Litigation in Norway: The Way Forward It is a somewhat general idea that litigation should be conducted efficiently and justly. In order to prioritize efficiency, a court would ensure that the case is managed expeditiously and allotted the appropriate share of resources, with opportunities for mediation and Alternative Dispute Resolution.131 With a view to the procedural and substantive justice of the case, dealing with a case justly entails a legally and financially feasible access to courts, a fair trial, effective remedies as well as a consistent enforcement of rules and sanctions.132 These are just some of the overriding objectives that may be grouped under the heading ‘effective litigation,’ yet they already help determine some of the existing hurdles to effective litigation, and the most pivotal legal and non-legal aspects contributing to effective climate change litigation in Norway.

 Nagell (2011), p. 87.  https://www.nbim.no/en/the-fund/governance-model/management-mandate/. See Norges Bank’s Executive Board to the Chief Executive Officer of NBIM, Investment Mandate  – Government Pension Fund Global (last amended 21 June 2017). See the reference to future generations in the 2010 document of the Norwegian Ministry of Finance, GPFG Responsible Investment (2010). 130  KLP was contacted and did not reply. 131  Blake (2009), p. 13. 132  ibid. pp. 12–13. 128 129

108

E. Colombo

With regard to efficiency, it does not appear that litigation in Norwegian courts is plagued with delays, or that proceedings are of an unreasonable duration,133 even though some voices have been raised against cuts of courts’ resources in recent years.134 With a view to the procedural and substantive justice of each lawsuit, access to courts appears de jure broadly available to individuals and NGOs,135 but de facto expensive.136 In the first instance, the court order for the losing party of the Case to cover the government’s expenses was especially criticized.137 Besides costs, Norwegian courts try to refrain from annulling decisions on invalidity grounds, as the Case stands to testify.138 Turning to the legal and non-legal aspects that may enhance effective litigation in Norway, there appears to be no remedy to the high costs of accessing courts. Lawyers’ fees are already freely negotiated,139 which is one of the elements contributing to lower costs in access to courts,140 but they nonetheless constitute the lion’s share of litigation costs.141 There is no current debate on eliminating cost-shifting. In terms of the wide latitude that the political branches are allowed, the Case testifies to the fact the such latitude is perceived all the more legitimate when governmental decisions are approved by the Government as well as the Parliament.142 Even in EIA proceedings, which concern less discretionary matters, the Case testifies that the relevant court dodged the question of whether the EIA had duly taken

 https://www.domstol.no/globalassets/upload/da/internett/domstol.no/domstoladministrasjonen/ statistikk/statistikk-2018/arsstatistikk%2D%2Dforsteinstans-2017.pdf, p. 4 (first instance); https:// www.domstol.no/globalassets/upload/da/internett/domstol.no/domstoladministrasjonen/statistikk/statistikk-2018/arsstatistikk%2D%2Dandreinstans-2017.pdf, passim (second instance); https://www.domstol.no/globalassets/upload/da/internett/domstol.no/domstoladministrasjonen/ statistikk/statistikk-2018/forretningsstatistikk-for-hoyesterett-2017.pdf, p.  4 (Supreme Court). See, however, Urke (2017). On the reasonable duration requirement set forth in Article 6 ECHR and the Norwegian legal order, see Aall (2018), pp. 474ff. 134  Budget cuts on the court system has amounted to 34.6 million NOK in the course of 2016–2017, approximately 4.148 million USD. See Urke (2017). 135  Nilsson and Tegner Anker (2010), p. 116. On access to NGOs, in particular, see the Supreme Court’s judgments Rt 1980 p. 569; Rt 1992 p. 1618 and Rt 2003 p. 833. Beyond Article 6 ECHR, access to courts is guaranteed also through §§ 95–96 of the Norwegian Constitution. See Aall (2018), pp. 423 and 443. 136  Nilsson and Tegner Anker (2010), p. 116; Ervo (2014), p. 2. 137  Ursin (2018). See cases of exemption of cost-shift under the Dispute Act §20-2(3). 138  Fauchald (2010), p. 61; Fauchald (2018), pp. 162 and 167; Nilsson and Tegner Anker (2010), pp. 114–115; Harbo (2015), p. 192. 139  Palumbo et al. (2013), Judicial Performance and Its Determinants: A Cross-County Perspective, https://www.oecd-ilibrary.org/docserver/5k44x00md5g8-en.pdf?expires=1535016292&id=id&ac cname=guest&checksum=34197D9F1DB128631DD542B2761DC6F9, p. 32. 140   OECD (2013), What Makes Civil Justice Effective?, https://www.oecd.org/eco/growth/ Civil%20Justice%20Policy%20Note.pdf, p. 8. 141  https://www.domstol.no/globalassets/upload/da/internett/domstol.no/domstoladministrasjonen/ statistikk/statistikk-2018/utvikling-regelstyrte-og-driftsramme-2009-2017.pdf. 142  Decision of the Case by the District Court, p. 21. 133

Climate Change and the Individual: A Norwegian Perspective

109

into account the effects of future developments and operations in the especially fragile Arctic ecosystems. The court agreed with the government that such further evaluations may be carried out in the future.143 Specialized courts in the Nordic countries usually allow for less discretion than general courts,144 but a reform of the Norwegian court system for the creation of specialized environmental courts is not under discussion at this time. A possible enhancer of courts’ engagement with the underlying issues of each lawsuit may consist of further judicial training in environmental matters, as well as an enhanced role for scientific experts in the courtrooms. The main responsibility of conveying clear statements of law and science to judges rests, however, on plaintiffs’ lawyers, who are in the position to streamline existing law, including environmental principles, for tackling the new challenges posed by climate change. The interest for mediation and/or ADR in Norway may provide an effective hinge, especially in lawsuits against businesses. Mediation and ADR, albeit promising, are though extremely rare in climate change litigation.145 Effective actions against businesses can be initiated by prosecuting authorities as, in the past, environmental criminal cases have outnumbered environmental civil cases146; yet doubts linger on whether a criminal law approach is suited to climate change liability. An interesting point of the Case, which captured media attention and may materialize again in litigation, is whether the assessment of climate change impacts should cover downstream emissions,147 which the Oslo District Court denied and the Oslo Appeals Court upheld.148 Some other themes of climate change litigation have not been unearthed, notwithstanding their promising character. In particular, a host of rights—such as the right to health (§112), children’s rights (§104), and future generations’ rights (§112)—are protected in the Constitution and can aptly be tried in court cases on air quality, mitigation or adaptation matters. A shift of focus from oil and gas to other climate-related issues may render climate change litigation less controversial in such a country as Norway, which hosts the biggest hydrocarbon reserves in Europe, making it the fifth largest exporter of crude oil in the world.149

 ibid. 34. See also Appeals Decision of the Case, paras 3.2 and 3.5.  Nilsson and Tegner Anker (2010), pp. 114–115. Specifically on Norway, see Bragdø-Ellenes (2014), p. 289. 145  Levine (2018). 146  Fauchald (2010), p. 54. 147  Byers et al. (2017), p. 311. 148  Decision of the Case by the District Court, pp. 18 and 42. See the possibility that the Supreme Court of Norway takes a different approach in Fauchald (2018), p.  169. See, in fact, Appeals Decision of the Case, para 5.3, where downstream emissions were found relevant for determining the lawfulness of the Decision; the recognition was not carried out in the evaluation of the specific Decision, though. 149  Fauchald (2010), p. 57 on the low number of cases filed on natural resources, which were in majority criminal cases, ibid. 58. 143 144

110

E. Colombo

Besides the effectiveness objective that each single trial is set for, effectiveness of litigation may be more broadly construed as the impact of litigation on the understanding of facts and science in context, and the ultimate objective of a more protective legislation.150 Moreover, litigation may also show the need for more coordination between the different levels of government.151 The onus on the Parliament and Government is enormous, yet it should not be understood in isolation. Rather, the promise of the power-sharing principle is that judicial protection provides checks and is complementary to the efforts and strides of the political branches in a constitutional democracy.

5 Conclusion Climate change litigation is at an inception stage in Norway, where only one lawsuit has been filed. Albeit a partial loss for the promoters and supportive civil society, the action was effective in catalyzing public attention on fossil fuel policies and the role of courts.152 Considering the three clusters of cases under analysis, only claims against the Government, grounded on both international law and the right to a healthy environment, have been tried. Claims in the second cluster, namely against public bodies in mitigation and adaptation matters, appear feasible on both procedural and substantive grounds. As a third cluster, claims against operators in carbon-intensive sectors are more promising on health protection, rather than climate change grounds, whereas claims against pension funds can be hypothesized on either ground. Adaptation matters do not appear prominent in the agenda of individuals in Norway, notwithstanding some exceptions. Some legal challenges are, however, outstanding. There appear to be difficulties in affecting the political process, such as the one involved in the implementation of the Climate Change Law. Additionally, courts may offer a bulwark to legal actions against public bodies as the threshold for judicial review is particularly high, especially on invalidity grounds. As a further challenge, there is a general perception that the costs for accessing courts in Norway are high,153 also in consideration of cost-shifting provisions.

 On the democratic legitimacy of judicial decisions as a point often raised in climate change lawsuits, see UNEP-Sabin Center for Climate Change, p. 30. On the legitimacy of the political branches, rather than courts, in the Case, see Decision of the Case by the District Court, p. 28. 151  See the critique levelled by the Ombudsman against the government upon the government’s approval of a municipal plan that had been objected against by the relevant county in S.O.M. 28.8.2018 (2018/1219). 152  Øyrehagen Sunde (2017) and Fauchald (2018). 153  Ervo (2014), p. 2. 150

Climate Change and the Individual: A Norwegian Perspective

111

Acknowledgements  The author would like to express her deepest gratitude to Prof. Sigrid Eskeland Schütz, Prof. Magne Strandberg, Prof. Jørn Øyrehagen Sunde, Prof. Ole Kristian Fauchald, Prof. Ingunn Elise Myklebust and Prof. Bjarte Askeland for their encouragement and comments on an earlier version of this work. Heartfelt thanks go to PhD candidate and Lecturer Marie Holm for sharing her expertise and wisdom on some aspects of Norwegian procedural law. Gratitude is also expressed to the participants of the workshop on Climate Change and the Individual, held at Strathclyde University on 3 July 2018. The author extends her sincere thanks to Prof. Francesco Sindico and Prof. Makane Moïse Mbengue for their guidance and the opportunity to contribute to this inspiring project.

References Regulation (Chronological Order) The Norwegian Constitution (1814) https://www.stortinget.no/globalassets/pdf/english/constitutionenglish.pdf. Accessed 24 Aug 2018 European Convention on Human Rights. European Convention on Human Rights (1950) ETS 5; 213 UNTS 221 Neighboring Properties Act. Act of 16 June 1961 No. 15 relating to the legal relationship between neighboring properties. https://lovdata.no/dokument/NL/lov/1961-06-16-15. Accessed 24 Aug 2018 Public Administration Act. Act of 10 February 1967 relating to procedure in cases concerning the public administration. https://lovdata.no/dokument/NL/lov/1967-02-10. Accessed 24 Aug 2018 Compensation Act. Act of 13 June 1969 No. 26 relating to compensation in certain circumstances. https://lovdata.no/dokument/NL/lov/1969-06-13-26. Accessed 24 Aug 2018 Pollution Control Act. Act of 13 March 1981 No. 6 Concerning Protection Against Pollution and Concerning Waste. https://www.regjeringen.no/en/dokumenter/pollution-control-act/ id171893/. Accessed 24 Aug 2018 Criminal Procedure Act. Act of 22 May 1981 relating to legal procedure in criminal cases. https:// lovdata.no/dokument/NL/lov/1981-05-22-25/KAPITTEL_5-1#KAPITTEL_5-1. Accessed 24 Aug 2018 Act on Natural Damage. Act of 16 June 1989 No. 70 on natural damage. https://lovdata.no/dokument/NL/lov/1989-06-16-70. Accessed 24 Aug 2018 CO2 Tax Act. Act of 21 December 1990 No. 72 relating to tax on discharge of CO2 in the petroleum activities on the continental shelf, last amended by Act 27 June 2008 No. 58. http://www. npd.no/en/Regulations/Acts/CO2-discharge-tax/. Accessed 24 Aug 2018 Law on Municipalities and Counties. Act of 25 September 1992 No. 107 on Municipalities and Counties, last amended by Act 19 December 2017 No. 115. https://lovdata.no/dokument/NL/ lov/1992-09-25-107. Accessed 17 Sept 2018 EEA Agreement. Agreement on the European Economic Area (date of signature: 2 May 1992; date of entry into force: 1 January 1994) L1, 3 January 1994, 3 Petroleum Act. Act of 29 November 1996 No. 72 relating to petroleum activities, last amended by Act 24 June 2011 No. 38. http://www.npd.no/en/Regulations/Acts/Petroleum-activities-act/. Accessed 24 Aug 2018 Petroleum Regulations. Regulations to Act relating to petroleum activities laid down by Royal Decree 27 June 1997 pursuant to Act 29 November 1996 No. 72 relating to petroleum activities, §§10-18 and Act 10 February 1967 relating to procedure in cases concerning the public administration, §13(c)(3) and §19(3), last amended by Royal Decree 2 July 2012 No. 729. http://www.npd.no/en/Regulations/Regulations/Petroleum-activities. Accessed 24 Aug 2018

112

E. Colombo

Aarhus Convention. Convention on Access to Information, Public Participation in Decision-­ Making and Access to Justice in Environmental Matters 2161 UNTS 447; 38 ILM 517 (1999) SEA Directive. Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programs on the environment (text with EEA relevance) EIA Directive. Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (text with EEA relevance) (the ‘EIA directive’), as amended by Directive 2014/52/ EU of the European Parliament and of the Council of 16 April 2014 (text with EEA relevance) Regulation on Pollution Control. Regulation of 1 June 2004 on Pollution Control. https://lovdata. no/dokument/SF/forskrift/2004-06-01-931. Accessed 24 Aug 2018 GGETA.  Act of 17 December 2004 No. 99 Relating to Greenhouse Gas Emission Allowance Trading and the Duty to Surrender Emission Allowances. https://www.regjeringen.no/en/dokumenter/greenhouse-gas-emission-trading-act/id172242/. Accessed 24 Aug 2018 Dispute Act. Act of 17 June 2005 relating to mediation and procedure in civil disputes. https:// lovdata.no/dokument/NLE/lov/2005-06-17-90/∗#∗. Accessed 24 Aug 2018 Planning and Building Act. Act of 27 June 2008 No. 71 relating to Planning and the Processing of Building Applications. https://www.regjeringen.no/en/dokumenter/planning-building-act/ id570450/. Accessed 24 Aug 2018 State Planning Guidelines for Climate and Energy Planning. Statlig planretningslinje for klimaog energiplanlegging i kommunene, fastsatt ved Kronprinsreg.res. 4. september 2009 med hjemmel i lov 27. juni 2008 nr. 71 om planlegging og byggesaksbehandling (plan- og bygningsloven) § 6-2 første ledd. Fremmet av Miljøverndepartementet (no English translation available). Accessed 15 Sept 2018 Paris Agreement. 1/CP.21 Adoption of the Paris Agreement (FCCC/CP/2015/10/Add.1) CCL.  Act of 16 June 2017 No. 790 on Climate Targets. https://lovdata.no/dokument/NL/ lov/2017-06-16-60. Accessed 24 Aug 2018 EIA Regulation. EIA Regulation on Environmental Impact Assessment by Royal Decree of 22 August 2017. https://lovdata.no/dokument/LTI/forskrift/2017-06-21-854. Accessed 24 Aug 2018

Reports (Chronological Order) Council of Europe (2012) Manual on human rights and the environment, 2nd edn. Council of Europe Publishing, Strasbourg Cedex Skancke (2014) Expert group appointed by the Norwegian Ministry of Finance, Fossil-fuel investments in the Norwegian Government Pension Fund Global: addressing climate issues through exclusion and active ownership (M. Skancke et al., 3 December 2014). https://www. regjeringen.no/contentassets/d1d5b995b88e4b3281b4cc027b80f64b/expertgroup_report.pdf. Accessed 24 Aug 2018 Norway: An Emissions Trading Case Study (2015) CDC, Climate Research, EDF and IETA. https:// www.edf.org/sites/default/files/norway-case-study-may2015.pdf. Accessed 24 Aug 2018 NBIM (2016) NBIM, Responsible investment. Government Pension Fund Global (No. 3/2016). https://www.nbim.no/contentassets/2c3377d07c5a4c4fbd442b345e7cfd67/government-pension-fund-global%2D%2D-responsible-investment-2016.pdf. Accessed 24 Aug 2018 NBIM, Government Pension Fund Global – Annual Report 2016. https://www.nbim.no/conten tassets/41460fa6a42b4bd4a758429b90f80da2/government-pension-fund-global%2D%2Dannual-report-2016.pdf. Accessed 24 Aug 2018 Hjort I (2016) Potential climate risks in financial markets: a literature overview (Memorandum No. 01/2016). http://www.sv.uio.no/econ/english/research/unpublished-works/working-papers/ pdf-files/2016/memo-01-2016.pdf. Accessed 24 Aug 2018

Climate Change and the Individual: A Norwegian Perspective

113

KLP (2016) KLP, The KLP funds’ carbon footprints. http://english.klp.no/polopoly_ fs/1.34453.1472801095!/menu/standard/file/2016%20KLP%20funds’%20carbon%20footprint%20August2016.pdf. Accessed 24 Aug 2018 Hermwille L, Gornik M (2017) Steps towards carbon neutrality. An overview of strategies and the role of offsetting. JIKO, Policy Brief No. 02/2017. http://www.carbon-mechanisms.de/fileadmin/media/dokumente/Publikationen/Policy_Brief/PB_2017_02_Carbon_Neutrality_bf.pdf. Accessed 24 Aug 2018 UNEP-Sabin Center for Climate Change. The Status of Climate Change Litigation. A Global Review, UNEP-Sabin Center for Climate Change (May 2017). http://columbiaclimatelaw.com/ files/2017/05/Burger-Gundlach-2017-05-UN-Envt-CC-Litigation.pdf. Accessed 24 Aug 2018 AODP (2018). AODP, Global climate index 2017. Rating the World’s Investors on Climate Related Financial Risk (2018). http://aodproject.net/wp-content/uploads/2017/04/AODP-GLOBALINDEX-REPORT-2017_FINAL_VIEW.pdf. Accessed 24 Aug 2018

Soft Law (Chronological Order) NOU 1982:19 Generelle lovregler om erstatning for forurensningsskade. https://lovdata.no/ pro/#document/NOU/forarbeid/nou-1982-19. Accessed 20 Sept 2018 Ot.prp no. 33 (1988-89) om lov om endringer i lov 13 mars 1981 nr 6 om vern mot forurensninger og om avfall (forurensningsloven) m.v (Erstatningsansvar ved forurensningsskade). https://lovdata.no/pro/#document/PROP/forarbeid/otprp-33-198889. Accessed 20 Sept 2018 Ethical Guidelines. Committee appointed by Royal Decree of 18 October 2002, Forvaltning for fremtiden. Forslag til etiske retningslinjer for Statens petroleumsfond (Issued to the Ministry of Finance, 25 June 2003). https://www.regjeringen.no/contentassets/d8124659de12416dbe2a942b5461be93/no/pdfs/nou200320030022000dddpdfs.pdf. Accessed 24 Aug 2018 Ot.prp.nr.51 (2004-2005) om lov om mekling og rettergang i sivile tvister. https://www.regjeringen.no/no/dokumenter/otprp-nr-51-2004-2005-/id397198/. Accessed 24 Aug 2018 GPFG responsible Investment. Norwegian Ministry of Finance, GPFG responsible Investment (2010). https://www.regjeringen.no/globalassets/upload/fin/brosjyre/2010/spu/english_2010/ spu_hefte_eng_ebook.pdf. Accessed 24 Aug 2018 White Paper on Adaptation to Climate Change. Melding til Stortinget, Klimatilpasning i Norge (White Paper, St. 33, 2012–2013). https://www.regjeringen.no/contentassets/ e5e7872303544ae38bdbdc82aa0446d8/no/pdfs/stm201220130033000dddpdfs.pdf. Accessed 24 Aug 2018 Norway’s INDC. Submission by Norway to the Ad Hoc Working Group on the Durban Platform for Enhanced Action, Norway’s Intended Nationally Determined Contribution (26 March 2015). http://www4.unfccc.int/submissions/INDC/Published%20Documents/Norway/1/Norway%20 INDC%2026MAR2015.pdf. Accessed 24 Aug 2018 NOU 2015:16 Overvann i byer og tettsteder. Som problem og ressurs (12 February 2015). https:// lovdata.no/pro/#document/NOU/forarbeid/nou-2015-16?searchResultContext=1269&rowNu mber=1&totalHits=12. Accessed 17 Sept 2018 Prop. 46 L (2017–2018). Proposisjon til Stortinget. Lov om kommuner og fylkeskommuner (kommuneloven). https://www.regjeringen.no/contentassets/f0964c05be1d4fefb54267e9255bb921/ no/pdfs/prp201720180046000dddpdfs.pdf. Accessed 17 Sept 2018 Prop. 77 L (2016 –2017). Proposisjon til Stortinget. Lov om klimamål (klimaloven). https:// www.regjeringen.no/contentassets/717cac3854ec4c618bfedb54ac3845d4/no/pdfs/ prp201620170077000dddpdfs.pdf. Accessed 24 Aug 2018 KLP (2017) Decision to exclude Energy Transfer Partners, Phillips 66, Enbridge Inc., and Marathon Petroleum Corporation. http://english.klp.no/polopoly_fs/1.35747.1489391754!/ menu/standard/file/Decision%20to%20exclude%20ETP%20Phillips%2066%20Enbridge%20 and%20Marathon%20Petroleum.pdf. Accessed 24 Aug 2018

114

E. Colombo

NBIM, Investment Strategy for the Government Pension Fund Global (Letter to the Ministry of Finance, 16 November 2017). https://www.nbim.no/en/transparency/submissions-toministry/2017/investment-strategy-for-the-government-pension-fund-global/. Accessed 24 Aug 2018 Norges Bank’s Executive Board to the Chief Executive Officer of NBIM, Investment Mandate – Government Pension Fund Global (last amended 21 June 2017). https://www.nbim.no/conte ntassets/43615da4359c4a47a60ee55e03511589/nbim-ceo-investment-mandate.pdf. Accessed 24 Aug 2018 Guide on Article 6 of the European Convention on Human Rights. Guide on Article 6 of the European Convention on Human Rights, Right to a fair trial (civil limb). Updated to 30 April 2018. https://www.echr.coe.int/Documents/Guide_Art_6_ENG.pdf. Accessed 24 Aug 2018

Books (Alphabetical Order) Aall J (2018) Rettsstat og menneskerettigheter. Fagbokforlaget, Bergen Blake S (2009) A practical approach to effective litigation. Oxford University Press, Oxford Bragdø-Ellenes SC (2014) Overprøving av forvaltningsvedtak i Norge, Sverige og Frankrike. Universitetsforlaget, Oslo Bugge HC (2011) Environmental law in Norway. Kluwer, Alphen aan den Rijn Harbo T-I (2015) The function of proportionality analysis in European Law. Brill/Nijhoff, Leiden Nollkaemper A (2011) National courts and the international rule of law. Oxford University Press, Oxford Ulfstein G (2016) Hva er folkerett. Universitetsforlaget, Oslo

Book Contributions (Alphabetical Order) Ervo L (2014) Introduction. In: Ervo L, Nylund A (eds) Access to courts and court-annexed mediation in the Nordic Countries. Springer, Heidelberg, pp 1–6 Hovelsrud GK, West JJ, Dannevig H (2015) Exploring vulnerability and adaptation narratives among fishers, farmers, and municipal planners in Northern Norway. In: The adaptive challenge of climate change. Cambridge University Press, Cambridge, pp 194–212 Jendrośka J (2011) Public participation in environmental decision-making. Interactions between the convention and EU law and other key legal issues in its implementation in the light of the opinions of the Aarhus Convention Compliance Committee. In: Pallemaerts M (ed) The Aarhus convention at ten. Europa, New York, pp 93–147 Øyrehagen Sunde J (2014) The legal cultural dependency of the Norwegian legal method - and its future. In: Nordic and Germanic legal methods, contribution to a dialogue between different legal cultures, with a main focus on Norway and Germany. Mohr Siebeck, Heidelberg, pp 44–70

Articles (Alphabetical Order) Byers M, Franks K, Gage A (2017) The internationalization of climate damages litigation. Wash J Environ Law Policy 7:264–319 Fauchald OK (2010) Environmental justice in courts - a case study from Norway. Nordic Environ Law J 1:49–68

Climate Change and the Individual: A Norwegian Perspective

115

Fauchald OK (2018) Klimarettssaken og “amerikanisering” av norske domstoler. Lov og rett 57:158–169 Glover MJ (2012) The structural role of private enforcement mechanism in public law. William Mary Law Rev 53:1137–1217 Hanssen GS, Barkved LJ, Holen S, Klausen JE (2015) Hvordan er klimaendringer integrert i arbeidet med vannforvaltningsplaner i Norge? Kart og Plan 3:227–248 Levine J (2018) Adopting and adapting arbitration for climate change related disputes. The experience of the permanent court of arbitration. TDM 1. https://www.transnational-dispute-management.com/article.asp?key=2536 Nagell HW (2011) Investor responsibility and Norway’s Government Pension Fund  – global. Nordic J Appl Ethics 5:79–96 Nilsson A, Tegner Anker H (2010) The role of courts in environmental law – Nordic perspectives. J Connecticut Innov 3:111–120 Taubøll S (2016) Erstatningsansvaret ved svikt i anlegg for overvannshåndtering – hvilken ansvarsmodell bør velges? Kart og Plan 2:99–112 Ødegård IM, Clewing CS, Halvorsen Thoré K (2013) Urban overflatevannhåndtering. Erfaringer fra Institutt for landskapsplanlegging. Kart og Plan 5:382–392 Øyrehagen Sunde J (2017) Klimasøksmål og demokrati. Nytt Norsk Tidsskrift 34:354–365

Cases (Chronological Order) Rt. 1976 p. 1 Rt. 1979 p. 1179 Rt. 1980 p. 569 Rt. 1992 p. 1618 Rt. 1996 p. 1473 Rt. 2000 p. 260 Rt. 2000 p. 996 Rt. 2002 p. 557 Rt. 2003 p. 301 Rt. 2003 p. 833 Rt. 2005 p. 833 Rt. 2007 p. 431 Rt. 2008 p. 1409 Rt. 2009 p. 661 Rt. 2009 p. 1237 Rt. 2011 p. 1304 Rt. 2012 p. 820 Rt. 2013 p. 116 Rt. 2015 p. 421 HR-2016-304-S p. 47 HR-2016-2195-S p. 104 The Case. Greenpeace Nordic Ass’n and Nature & Youth v. Norway Ministry of Petroleum and Energy (Oslo District Court, complaint filed 18 October 2016). http://climatecasechart.com/ non-us-case/greenpeace-nordic-assn-and-nature-youth-v-norway-ministry-of-petroleum-andenergy/. Accessed 24 Aug 2018 Decision of the Case by the District Court. 16-166674TVI-OTIR/06 (4 January 2018 Oslo Tingrett) Appeals Decision of the Case. 18-060499ASD-BORG/03 (23 January 2020 Borgarting Lagmannsrett) S.O.M. 28.8.2018 (2018/1219). Sivil Ombudsman Manglende vurdering av naturmangfoldloven i plansak, 28.8.2018 (2018/1219)

116

E. Colombo

Websites https://www.unece.org/fileadmin/DAM/env/pp/compliance/CC-58/ece.mp.pp.c.1.2017.16.e.pdf https://climateactiontracker.org/countries/norway/ http://www.norges-bank.no/en/Published/News-archive/2017/2017-03-07-gpfg/ https://www.nbim.no/en/the-fund/governance-model/management-mandate/ https://www.domstol.no/globalassets/upload/da/internett/domstol.no/domstoladministrasjonen/ statistikk/statistikk-2018/arsstatistikk%2D%2Dforsteinstans-2017.pdf https://www.domstol.no/globalassets/upload/da/internett/domstol.no/domstoladministrasjonen/ statistikk/statistikk-2018/arsstatistikk%2D%2Dandreinstans-2017.pdf https://www.domstol.no/globalassets/upload/da/internett/domstol.no/domstoladministrasjonen/ statistikk/statistikk-2018/forretningsstatistikk-for-hoyesterett-2017.pdf https://www.oecd-ilibrary.org/docserver/5k44x00md5g8-en.pdf?expires=1535016292&id=id&ac cname=guest&checksum=34197D9F1DB128631DD542B2761DC6F9 https://www.oecd.org/eco/growth/Civil%20Justice%20Policy%20Note.pdf https://www.domstol.no/globalassets/upload/da/internett/domstol.no/domstoladministrasjonen/ statistikk/statistikk-2018/utvikling-regelstyrte-og-driftsramme-2009-2017.pdf

Newspapers (Alphabetical Order) Angell E, Magnus PC (4 October 2017) Oljesøksmål mot Noreg kan truge oljefondet. NRK. https:// www.nrk.no/hordaland/oljesoksmal-mot-noreg-kan-truge-oljefondet-1.13718052. Accessed 24 Aug 2018 Fjeld IE, Fermariello U (8 August 2018) Bøndene får ikke krisehjelp av staten. NRK. https://www. nrk.no/norge/bondene-far-ikke-krisehjelp-av-staten-1.14157265. Accessed 24 Aug 2018 Kvåle G, Seip HM, Høiback S (30 May 2018) Statens pensjonsfond utland bør brukes som et viktig virkemiddel i klimapolitikken. Energi og Klima. https://energiogklima.no/kommentar/statens-pensjonsfond-utland-bor-brukes-som-et-viktig-virkemiddel-i-klimapolitikken/. Accessed 24 Aug 2018 Longstreth B (2 January 2015) Norway’s Government pension fund global: vast potential for global influence. Energi og Klima. https://energiogklima.no/kommentar/norways-governmentpension-fund-global-vast-potential-for-global-influence/#comments-heading. Accessed 24 Aug 2018 Urke SM (12 November 2017) Lang ventetid i den tredje statsmakt. Aftenposten. https://www.aftenposten.no/meninger/debatt/i/GvVGx/Lang-ventetid-i-den-tredje-statsmakt%2D%2DSvenMarius-Urke. Accessed 24 Aug 2018 Ursin L (5 January 2018) Ekspertintervjuet: Ikkje imponert over klimadommen. Energi og Klima. https://energiogklima.no/nyhet/ekspertintervjuet-ikkje-imponert-over-klimadommen/. Accessed 24 Aug 2018 Øyrehagen Sunde J, Colombo E (2017) Look to Norway – Klimasøksmål i klimaendringane sin tidsperiode. Energi og Klima (26 September 2017). https://energiogklima.no/kommentar/lookto-norway/. Accessed 24 Aug 2018 Esmeralda Colombo  is an affiliate at the Centre for Climate and Energy Transformation at the University of Bergen, Norway, where she wrote her PhD dissertation on access to justice in climate change matters. Her current projects deal with climate risk. She received her law degree specializing in international law from the Catholic University of Milan, Italy; her LL.M. in European legal studies from the College of Europe in Bruges, Belgium; and her LL.M. from Columbia University, United States, where she was a Fulbright Scholar, Harlan Fiske Stone Scholar, and recipient of the Parker School Certificate in International and Comparative Law. She is now completing the Certificate on Financing and Deploying Clean Energy offered by Yale University.

Climate Change and the Individual: A Norwegian Perspective

117

She was a law clerk at the Tribunal of Milan, and is admitted to practice in Italy and New York State. She interned at the Columbia Center on Sustainable Investment and worked as a Research Assistant to Prof. Michael B.  Gerrard. Her publishing activity spans from international law to environmental and energy law, Norwegian law, deep ecology, comparative law, and the Italian legal culture. She has been a Legal Fellow at the CISDL—Peace, Justice and Governance Program—in Montreal since December 2016. @ColomEsmeralda

Climate Change and Individuals’ Rights in Switzerland Ursula Brunner and Cordelia C. Bähr

Abstract  Although Switzerland has ratified the Paris Agreement, national climate legislation is clearly insufficient. Drawing strongly on human rights the association KlimaSeniorinnen Schweiz filed a request to the government to rectify omissions in climate protection. KlimaSeniorinnen argue that the effects of increasing heat waves threaten their right to life (Art. 2 ECHR) as they, as older women, are most affected by heat with regard to mortality. Also, it is the government’s obligation to protect them from heat-related impacts that adversely affect their health, physical integrity, and well-being (Art. 8 ECHR). They use international law, the precautionary principle, and scientific evidence to interpret the state’s human rights duties to prevent dangerous climate change. The authorities and the courts did not enter into the matter. Swiss climate legislation relies heavily on economic instruments (e.g. emissions trading). Without command and control regulations there is no basis for a case of individuals and qualified NGOs against plans for private or public installations. Protection against natural hazards is not part of climate change legislation, but state liability can be invoked if damage is incurred. Claims on the basis of tort law against private companies emitting large amounts of GHG face several hurdles and have not yet been seen. The nature of Swiss climate legislation creates a challenge to establishing a breach of due care. A sufficiently strong causal link between a specific firm’s emissions and alleged damage is hard to prove. Thanks to a guarantee fund, damage to Swiss pension funds from investments in GHG-intensive assets will not affect individuals, who therefore cannot sue.

The authors thank Sandra H. Lustig, Hamburg, for editorial support and especially her valuable comments and suggestions. U. Brunner (*) ettlersuter Rechtsanwälte, Zürich, Switzerland C. C. Bähr bähr ettwein rechtsanwälte, Zürich, Switzerland e-mail: [email protected] © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_6

119

120

U. Brunner and C. C. Bähr

1 Introduction: Climate Change Legislation and Moving Forward the International Agenda in General Climate change impacts are already clearly visible in Switzerland, yet its current policies are insufficient. Switzerland as a party to the United Nations Framework Convention on Climate Change (UNFCCC) has recognized the 2 °C target based on the Cancun Conference of the Parties (COP) decision of 2010 and implemented it in Article (Art.) 1(1) of its 2011 CO2 Act.1 It has also recognized the need to reduce emissions by 25–40% below 1990 levels by 2020 to reach the 2 °C target, but has not implemented these reductions there.2 In June 2017 the Swiss parliament approved the Paris Agreement and thus the target of reducing greenhouse gas (GHG) emissions to ‘well below 2°C’.3 Yet in November 2017 the government presented its draft for post-2020 climate legislation to parliament4 setting only a ‘below 2°C’ target, stipulating a 50% reduction in emissions below 1990 levels by 2030 and allowing for up to 20% to be achieved— i.e. purchased—abroad.5 Considering undisputed scientific findings this proposal is incompatible with the ultimate goal to prevent dangerous climate change, i.e. to reach the ‘well below 2°C’ target. Accordingly, the Climate Action Tracker rates Switzerland’s Nationally Determined Contributions (NDC) as ‘insufficient’.6 Like the current CO2 Act, Swiss post-2020 legislation will not be directly subject to judicial review. For Art. 190 of the Constitution (Const.)7 declares international law and legislation passed by parliament binding on the Federal Supreme Court (FSC), thus emphasizing the separation of powers between legislature and judiciary. Therefore, individuals cannot appeal such legislation even in the case of a violation of the constitution. Nor can they directly invoke international climate law. Litigation in Switzerland is hence generally confined to whether the constitution or laws are applied correctly. Climate cases brought before Swiss courts have so far concerned the CO2 tax and the allocation of emission allowances free of charge.8

 Federal Act on the Reduction of CO2 Emissions (CO2 Act) (2011) (SR [Classified Compilation of Federal Legislation] 641.71). 2  See Art. 3(1) CO2 Act. For an in-depth assessment of the constitutionality of the current Swiss CO2 legislation see Bähr and Brunner (2016), p. 1219. 3  https://www.parlament.ch/en/ratsbetrieb/suche-curia-vista#k=(PdAffairId%3A16.083%20 OR%20PdAffairIdFormatted%3A16.083). All websites mentioned in this article were accessed in December 2017. 4  See Federal Gazette (BBl) 2018 373 and 229 for the draft (‘Projet’) and comments (‘Message’). 5  See Art. 3(1) and (2) of the draft (fn 5). 6  http://climateactiontracker.org/countries/switzerland.html. 7  Federal Constitution of the Swiss Confederation (1999) (SR 101). 8  See e.g. Federal Administrative Court (FAC) A-1919/2014 or BVGE 2016/24; FSC 2C_1065/2015 or 143 II 87. 1

Climate Change and Individuals’ Rights in Switzerland

121

A novel approach was taken recently by a large group of older women (the association KlimaSeniorinnen Schweiz9) who filed a legal request claiming that the authorities are failing to fulfil their duty to protect their human rights positions considering the increased intensity and frequency of heatwaves.

2 Using Human Rights to Move Forward the International Climate Change Agenda10 Since Switzerland is party to the European Convention of Human Rights (ECHR11) and because the European Court of Human Rights (ECtHR) can hear disputes regarding human rights violations by Swiss authorities, Swiss climate legislation is arguably subject to judicial scrutiny inasmuch as it concerns human rights, based on Art. 6(1) and 13 ECHR, despite Art. 190 Const. (Sect. 1). In order to fight for their human rights KlimaSeniorinnen Schweiz and four individual women, all represented by the authors, jointly filed a request12 to rectify omissions in climate protection pursuant to Art. 25a Administrative Procedure Act (APA)13 and Art. 6 Para. 1 and 13 ECHR as procedural legal bases. The authorities responded by declining to enter into the matter, arguing that since the request was brought in the public rather than the applicants’ interest, the matter was to be handled by the Parliament. The Court of First Instance (A-2992/2017, 27/11/2018) dismissed the appeal on 27 November 2018. It adjudicated that the applicants were affected comparably to the general public (described with “animals and plants,” “population groups,” “forestry, agriculture,” “winter tourism”) and that therefore, Art. 25a APA was not applicable as they were not particularly affected. It also rejected claims to effective legal protection derived from the ECHR. The Federal Supreme Court (BGer 1C_37/2019, 05/05/2020) dismissed the appeal on 5 May 2020. The court found that the applicants—“like the rest of the population”—are not threatened by the respondent’s alleged omissions at the present time “with sufficient intensity” in their right to life (Article 10 Const., Article 2 ECHR) and their private and family life and their home in terms of Art. 8 ECHR and Article 13 Cst. According to the court, global warming will reach 1.5 °C around the year 2040, and the limit of “well below 2 °C” would be reached at a later time and not in the near future. Consequently, there is still some time available to prevent global warming exceeding this limit. Therefore, according to the court, Art. 25a APA was not applicable, and the applicants had no arguable

 http://klimaseniorinnen.ch/ or http://ainees-climat.ch/.  For an in-depth discussion of this approach see Baehr et al. (2018). 11  http://www.echr.coe.int/Documents/Convention_ENG.pdf. 12  See for the (unofficial) English translation http://klimaseniorinnen.ch/wp-content/uploads/ 2017/05/request_KlimaSeniorinnen.pdf. 13  APA (1968) (SR 172.021). 9

10

122

U. Brunner and C. C. Bähr

claim of a violation of Article 2 and 8 ECHR in terms of Article 6 and 13 ECHR. The case will be brought before the ECtHR. The applicants claimed that Switzerland’s climate policy violates the right to life in Art. 10(1) Const. as well as their human rights as guaranteed in Art. 2 and 8 ECHR.  This claim  was based on numerous studies examining the links between climate change, the recent hot summers and health impacts, especially premature deaths.14 These deaths were not distributed randomly among the population, the applicants argued, but were disproportionately frequent among older persons aged 75–85; women were affected more than men,15 and older women with respiratory diseases suffered the most.16 KlimaSeniorinnen were using international law, the precautionary principle and scientific evidence to help interpret the state’s human rights duties under national law and the ECHR. They claimed that neither current nor proposed climate legislation are ambitious enough to prevent dangerous climate change. Internationally, Switzerland has recognized the 2 °C target and the target of ‘well below 2°C’ in order to prevent ‘dangerous climate change’ (Art. 2 UNFCCC). Both targets are arguably legally binding17 because according to Art. 18(a) of the Vienna Convention on the Law of Treaties18 states are required ‘to perform in good faith treaties to which they are a party’. This obligation, as well as the customary international law principle of no harm, requires states to ensure that activities within their jurisdiction do not cause environmental harm to other states.19 The ‘well below 2°C’ target is possibly the standard of care required today.20 The precautionary principle is a fundamental principle of national and international environmental law.21 But there is no requirement to avoid all conceivable risks. Considering the proportionality principle of Art. 5(2) Const.22 and applying the FSC’s decision on the Mühleberg nuclear power station23 to the climate sector, the following three-step system emerges: (1) If the precautionary principle and scientific evidence are both taken into account, risks are to be considered ‘absolutely inadmissible’ if they do not comply with the global ‘well below 2°C’ target. (2) The risks continuing to exist must be limited through a precautionary approach provided such measures are proportionate. (3) Insofar as the remaining risks cannot be

 Vicedo-Cabrera et al. (2016); for an overview see Krummenauer and Walther (2017); see also FOEN (2017a), p. 32. 15  FOEN (2017c), pp. 82–86; Thommen Dombois and Braun-Fahrländer (2004), p. 33. 16  D’Ippoliti et al. (2010). 17  See discussion in e.g. Bähr and Brunner (2016), p. 1222. 18  https://treaties.un.org/doc/publication/unts/volume%201155/volume-1155-i-18232-english.pdf. 19  Percival (2013), p. 684; the no-harm rule can be attributed to Trail Smelter Arbitration. 20  Verheyen (2005), p. 191, assuming that she would refer to the Paris Agreement today. 21  Griffel (2015), p. 32. 22  FSC 131 II 431, 4.1. 23  FSC 139 II 185, 11.3. 14

Climate Change and Individuals’ Rights in Switzerland

123

limited by proportionate means, they must be dealt with through adaptation measures taken simultaneously. Art. 10(1) Const. guarantees the right to life, covering both the deprivation of and threats to life, i.e. protection also in situations in which life is at risk long-term (e.g. increased mortality due to heatwaves). Switzerland’s obligation to protect, which applies both in situations of concrete impairment of fundamental rights (i.e. at least a risk to life) and at least a reasonable probability of such impairment,24 requires the state to install indispensable protective measures e.g. adequate environmental legislation. In this respect, the minimum target of keeping the temperature rise to ‘well below 2°C’ is non-negotiable, and there is no margin of appreciation. The obligation of the state to protect ‘most vulnerable groups’ such as senior women from the threats to life by natural disasters is no less powerful than its duty to apply the precautionary principle, according to which the state must protect ‘the people’ (i.e. every person) preventively in their natural environment. In that regard it is particularly significant that the ECtHR regularly considers international environmental standards and principles such as the no-harm rule, the precautionary principle and United Nations reports when determining the obligation to protect.25 The right to life in terms of Art. 2 ECHR is similar to Art. 10(1) Const. According to ECtHR case law, the right to life obligates the parties to the convention to contribute positively to the protection of life,26 if necessary by imposing obligations upon third parties.27 The state must take all proportionate measures to protect the lives of those within its jurisdiction.28 The ECtHR also has decided various cases under Art. 8 ECHR (right to respect for private and family life)29 and explicitly found a positive state obligation to protect derived from this guarantee.30 Although Art. 8(1) ECHR does not expressly guarantee the right to a clean environment, the obligation to protect includes protection against environmental damage31 that adversely affects health, physical integrity or private and family life and also well-being.32 While Art. 2 ECHR does not allow for any restrictions, justifications for states not fulfilling their obligation to protect must be considered when applying Art. 8 ECHR and Art. 10 Const. When weighing interests, one should consider that almost everyone will belong to the group of elderly people severely impacted by the consequences of global warming. It follows that a residual risk can be accepted only  Waldmann (2015), p. 43.  Borysiewicz v Poland 53; Tătar v Romania 95, 120. See also Council of Europe (2012), p. 149. 26  Council of Europe (2012), p. 18; LCB v the United Kingdom 36; Paul and Audrey Edwards v the United Kingdom 54; Öneryildiz v Turkey [GC] 71; Budayeva and Others v Russia, 128. 27  Osman v the United Kingdom 115–116; Council of Europe (2012), p. 18. 28  Council of Europe (2012), p. 18. 29  M Özel and Others v Turkey. 30  See references to case law in Swiss Senior Women for Climate Protection v Swiss Federal Council et  al., filed 25 October 2016, English translation, 169 http://klimaseniorinnen.ch/wp-content/ uploads/2017/05/request_KlimaSeniorinnen.pdf. 31  López Ostra v Spain. 32  Fadeyeva v Russia 68; Kyrtatos v Greece 52; Dubetska and Others v Ukraine, 105. 24 25

124

U. Brunner and C. C. Bähr

insofar as global warming remains ‘well below 2°C’. Also, the Swiss measures are not reasonable considering the evidence,33 especially taking into account that the protection of human health is of great legal34 importance and arguably outweighs economic interests. Switzerland’s failures are not justified by other countries’ potentially inadequate climate policies. They do not qualify as force majeure, nor does Swiss companies’ or citizens’ behaviour. Switzerland has every opportunity to make its contribution to the ‘well below 2°C’ target. The fact that Switzerland is a small country carries little weight because the reduction levels calculated by the Intergovernmental Panel on Climate Change (IPCC) can lead to compliance with the 2 °C or ‘well-below 2°C’ targets only if all concerned parties meet them. If all governments act like Switzerland, global warming will clearly exceed 2°C.35 Furthermore, regardless where it is emitted, each tonne of CO2 warms up the climate. All countries must therefore take measures to reduce GHG emissions to the greatest possible extent. Switzerland must fulfil its responsibility to ‘take the lead by undertaking economy-wide absolute emission reduction targets’ (Art. 4.4 Paris Agreement). In environmental matters, the ECtHR normally gives states a wide margin of appreciation due to their proximity to the specific environmental problems.36 Because of the global nature of climate change, room for such proximity is limited. KlimaSeniorinnen argue that a state is not acting within its margin of appreciation when its emission target does not meet the ‘well below 2°C’ or at the very least the 2°C target. Only the choices concerning more stringent emission targets and the types of measures fall within a state’s margin of appreciation.

3 Individuals and Public or Private Projects Leading to a Large Rise in GHG Emissions Individuals can bring a case against authorities ruling on the planning, construction or modification of an installation that allegedly does not comply with environmental legislation. They can e.g. request that technical improvements be made to an installation to comply with current anti-pollution legislation.37 They must however show that the ruling (Art. 5 APA) questioned affects them ‘specifically’ in terms of Art.  See Dubetska 105; Fadeyeva 88-89, 92.  Braig (2013), p. 249. 35  Climate Action Tracker, Climate pledges will bring 2.7 °C of warming, potential for more action, 8 December 2015, http://climateactiontracker.org/news/253/Climate-pledges-will-bring-2.7C-ofwarming-potential-for-more-action.html. 36  Council of Europe (2012), p. 31. 37  See Art. 16 EPA, 1983 (SR 814.01); legislation differentiates this general rule to respect constitutional principles, see for details of the requirements and procedures Petitpierre (2015), pp. 106–107. 33 34

Climate Change and Individuals’ Rights in Switzerland

125

48(1)(b) APA, which means they must establish they are ‘affected more strongly than the general public’ and with ‘a special, noteworthy, close connection to the matter in dispute’.38 In many cases it is difficult to demonstrate this prerequisite for standing—imagine a large, remote quarry: only few neighbours will live sufficiently close to the project. For ‘installations that could cause substantial pollution to environmental areas’ according to Art. 10a Federal Act on the Protection of the Environment (EPA) an environmental impact assessment is necessary prior to any decision on their planning and construction in order to ensure compliance with legislation on environmental protection.39 This applies also to the substantial adaptation of such installations, including adaptations necessary for an installation to comply with current legislation. Though ‘climate’ is mentioned neither in the act itself nor in the ordinance40 regulating the details it is indisputable that such installations must also comply with climate legislation.41 This applies to projects promoted both by private and public actors; Swiss courts have dealt with many such projects and contributed to ensuring high standards. In order to take financial pressure from individuals, as a substitute in situations where no neighbour has standing, and even more in order to facilitate ‘moving forward’ the public interest in environmental protection, Art. 55 EPA introduced the right of certain organisations to appeal against rulings on installations subject to an environmental impact assessment.42 The crux for individuals and organisations appealing rulings relating to such installations: appeals are permissible only on the grounds of non-compliance with command and control regulations. Such regulations on emission reductions are numerous for air pollutants.43 Swiss climate legislation however relies heavily on economic instruments such as emissions trading and compensation or a CO2 levy. Current law contains specific emission reduction provisions only for fossil thermal power plants44—and the proposed climate legislation45 contains no provisions which could provide the basis for an appeal.

 Translation by authors of the standard case law wording, e.g. FSC 139 II 279, 2.2.  See Petitpierre (2015), pp. 94–98 for details. 40  Ordinance on Environmental Impact Assessment (OEIA) (1988) (SR 814.011). 41  See e.g. FOEN (2009), p. 3.1. 42  See Petitpierre (2015), pp. 395–396 for details. 43  See Ordinance on Air Pollution Control (OAPC) (1985) (SR 814.318.142.1) appendix 2. 44  Subject to an environmental impact assessment in terms of annex OIEA number 21.2. 45  See fn 5. 38 39

126

U. Brunner and C. C. Bähr

4 Legal Remedies for Public Authorities’ Failures in Adaptation In Switzerland, it is expected that climate change will manifest itself particularly in temperature rise and change of precipitation, increasing the risk and magnitude of flooding and debris flows. An individual could bring a case against a public actor for failing to comply with national obligations in these legal areas. Regarding temperature rise in general see the KlimaSeniorinnen human rights claim (Sect. 2). Only one provision in Swiss climate change law concerns adaptation measures. Art. 8(1) CO2 Act states that the Confederation coordinates the measures to avoid or manage harm to persons or damage to property of substantial value that may be caused by the increased GHG concentration in the atmosphere. To that end, the Confederation coordinates different sectors’ and stakeholders’ adaption measures. The Federal Council’s strategy to adapt to climate change is an act of planning and does not have the character of a legal rule establishing rights and obligations of private persons.46 Thus, nobody has standing to sue.47 Accordingly, there are no court cases concerning specific climate legislation or referring specifically to adaptation to climate change. However, there are legal rules outside specific climate change legislation aiming to protect against natural hazards,48 including floods and erosion caused by climate change. Cantons must ensure flood protection through maintenance of water bodies as well as regional development measures, and if necessary, containment, correction and construction measures. Provided they have standing, individuals can bring a case against a public actor for failures in flood protection.49 The claim could be asserted within a construction permit procedure or, in case of failure to act, a ruling on real acts pursuant to Art. 25a APA could be requested. In A. et  al. vs. Linthwerk50 the applicants claimed that the project ‘Flood Protection Linth 2000’ does not provide sufficient protection of their agricultural land and requested additional measures. The FSC rejected the claim, explaining that the project would provide the surrounding landowners with flood protection far above the Swiss standard. The project aimed to secure the entire plain of the Linth river, including the complainants’ agricultural plots, against a 100-year flood; in the short term the project corresponded to protection against a 300-year flood. If damage through flooding or other natural disasters such as debris flows has already occurred, a damaged individual can initiate legal proceedings regarding state liability. If damage from such causes has occurred in relation to public roads,  Burkhard et al. (2016), p. 9.  See Art. 5, 6, 25 and 25a APA. 48  Federal Act on Hydraulic Engineering (HEA) (1991) (SR 721.100), see especially Art. 1-3. 49  See Art. 5, 6, 25, 25a and 48 APA. 50  FSC 1C_148/2008. 46 47

Climate Change and Individuals’ Rights in Switzerland

127

the public authority owning the road can also be held liable in terms of civil liability if it did not take all technically possible and proportional measures to prevent foreseeable damages.51

5 Responsibility of Companies for Climate Induced Damage In Switzerland claims on the basis of tort law52 against companies emitting large amounts of GHG face several hurdles. As mentioned in Sect. 3, Swiss climate law includes hardly any command and control legislation. In the absence of a violation of such a provision, establishing a breach of due care by the company’s actions is one of the hurdles. Moreover, it would be difficult to demonstrate a sufficiently strong causal link between the specific firm’s GHG emissions and the damage alleged—a link that must demonstrate considerable co-responsibility of the company in question. An alternative to be considered is challenging the officials of companies about investments in climate-relevant activities, whether intentional or negligent, that result in a negative impact on the company or shareholders’ rights.53 So far no case has been lodged alleging damage caused to a company or to shareholders through climate-relevant activities.

6 Legal Remedies Against Pension Funds with GHG-Intensive Investments No individual in Switzerland has ever brought a case against a pension fund whose actions contribute to climate change. Yet the issue is of topical interest. In the absence of specific regulation, in 2017, the government initiated pilot tests to analyse the climate alignment of financial portfolios. All Swiss pension funds and insurance companies could voluntarily have their portfolios of stocks and corporate bonds tested, anonymously and free of charge, for their compatibility with the 2 °C target.54 Although pension funds are free to decide how to finance their payments provided they act in accordance with the Federal Law on the occupational old-age,

 See Art. 58 CO (Code of Obligations, 1911) (SR 220).  See Art. 41(1) CO for the main provision. 53  Art. 754(1) CO; see Art. 756 CO for the individual shareholders’ rights and Art. 758 CO for formal prerequisites. 54  FOEN (2017b). The tool is available at http://www.transitionmonitor.com/en/home/. 51 52

128

U. Brunner and C. C. Bähr

survivors and disability benefit plan (Art. 49(1) LOB55), they must always be able to provide assurance that they can meet their obligations (Art. 65(1) LOB). To that end, the way they manage their assets must ensure the security of and sufficient return on their investments and the appropriate distribution of risks (Art. 71(1) LOB). Here is where the issue of climate change comes in: it is arguable whether investments in GHG-intensive assets can still be qualified as ‘secure’ today. In principle, it is the supervisory authority that must ensure that the pension funds comply with the statutory provisions (Art. 62(1) LOB). Whether the issue is justiciable for individuals is questionable. It certainly seems practically impossible for individuals to show that a certain pension fund portfolio is not compatible with the 2 °C target as the results of the portfolio test are not made public. Furthermore, all persons entrusted with managing the pension fund as well as professional pension consultants are responsible for the damage they wilfully or negligently inflict on it (Art. 52(1) LOB). A strict liability standard is applicable in cases of negligence. Persons concerned can be held liable if they do not act with due care, i.e. due care that a conscientious and knowledgeable person in a comparable situation would apply.56 It is imaginable that in the medium term, investments in GHG-intensive assets might be qualified as negligent and, if damage to the pension fund occurs, could increase liability of the responsible persons. However, thanks to the LOB guarantee fund, damage to the pension fund will not affect individuals (Art. 56-59 LOB). This means that based on LOB, individuals will not have the capacity to sue.

7 Concluding Observations Switzerland’s current and proposed legislation is unfit to meet the challenges of climate change: existing and proposed emission reduction targets are not stringent enough, and reduction measures are insufficient. However the constitution does not permit the Swiss CO2 Act to be taken to court. For in Switzerland legislation primarily undergoes democratic scrutiny because acts passed by parliament are subject to a referendum if so demanded by 50,000 voters. Threatening to call a referendum will play an important part in the parliamentary debates about post-2020 climate law that started in 2018—on both sides: those fighting for more emission reductions but also those seeking to avoid them. These institutional peculiarities may explain the lack of academic legal discussion on how to move forward the international agenda despite some fundamental critique of Swiss climate legislation: incompatible with constitutional law57 and not

 Federal Law on the occupational old-age, survivors and disability benefit plan (LOB) (1982) (SR 83140). 56  FSC 128 V 124, 4e. 57  The position of Bähr and Brunner (2016) has not been challenged in the academic literature. 55

Climate Change and Individuals’ Rights in Switzerland

129

ambitious and coherent enough to prevent dangerous climate change.58 Instead the focus lies on policy debates not represented in legal journals.59 Yet Swiss climate legislation is arguably subject to judicial scrutiny inasmuch as it concerns human rights as reported in Sect. 2. If a court requires the government to actually examine the KlimaSeniorinnen request Switzerland’s future climate policy will quite certainly be strengthened and become more ambitious. In Switzerland a case against authorities ruling on the planning, construction or modification of a private or public installation that allegedly does not comply with environmental legislation can by brought by individuals with standing or by certain environmental organisations with regard to installations subject to an environmental impact assessment. Because only non-compliance with command and control regulations can be criticized and Swiss climate legislation relies heavily on economic instruments there are no such cases so far. At present an individual cannot bring a case against a public actor for allegedly failing to comply with national climate adaptation obligations. For the single provision concerning such measures in the CO2 Act regulates only the cantons’ responsibilities and therefore cannot serve as a basis for claims of individuals. However legislation that aims to protect in general against natural hazards could very well be utilized similarly as in Linthwerk60 by individuals alleging damage e.g. from flooding in the wake of rising temperatures. Claims on the basis of tort law against companies emitting large amounts of GHGs as well as claims due to damage caused to a company or to shareholders through climate-relevant company activities could become an issue for litigation in the future. So far however no such case has been lodged. It is arguable whether investments in GHG-intensive assets can still be qualified as ‘secure’ today and therefore be considered in compliance with the rules for pension funds. Pension funds’ customers do not have the capacity to sue negligent pension fund officials as thanks to the LOB guarantee fund, their pension is likely not to be damaged. Pressure for climate-compatible investments will therefore have to come from best practice discussions within the pension fund organisations and public debates, possibly fuelled by tests as mentioned in Sect. 6. The question remains open as to whether and how far pension funds must respect human rights in terms of Art. 35(2) Const.

 Bähr and Brunner (2016); Dupuis et al. (2016), pp. 42–44; Griffel (2015), pp. 13, 47.  See e.g. https://www.bafu.admin.ch/bafu/fr/home/themes/climat/droit/totalrevision-co2-gesetz. html for the government’s presentation of post-2020 legislation, https://www.parlament.ch/en/ratsbetrieb/suche-curia-vista#k= for the parliament’s discussion of post-2020 climate legislation and http://www.alliance-climatique.ch/#positions for positions of the climate alliance (70 NGOs) or https://www.economiesuisse.ch/fr/focus/klimapolitik the federation of the business community. 60  See fn 51. 58 59

130

U. Brunner and C. C. Bähr

References Literature Bähr CC, Brunner U (2016) Ist das Schweizer Klimaziel verfassungskonform? Aktuelle Juristische Praxis (AJP) 25(9):1219 Baehr CC, Brunner U, Casper K, Lustig SH (2018) KlimaSeniorinnen: lessons from the Swiss senior women’s case for future climate litigation. J Human Rights Environ 9(2):194–221 Braig K (2013) Umweltschutz durch die Europäische Menschenrechtskonvention. Helbing, Basel Burkhard A, Bally J, Nägeli B (2016) Art. 8 CO2 Act N 4. In: Kratz B, Merker M, Tami R, Rechsteiner S, Föhse K (eds) Kommentar zum Energierecht. Editions Weblaw, Berne Council of Europe (2012) Manual on human rights and the environment. Council of Europe, Strasbourg D’Ippoliti D, Michelozzi P, Marino C, de Donato F, Menne B, Katsouyanni K, Kirchmayer U, Analitis A, Medina-Ramón M, Paldy A, Atkinson R, Kovats S, Bisanti L, Schneider A, Lefranc A, Iñiguez C, Perucci CA (2010) The impact of heat waves on mortality in 9 European cities: results from the EuroHEAT project. Environ Health 9:37. https://ehjournal.biomedcentral.com/ articles/10.1186/1476-069X-9-37 Dupuis J, Knoepfel P, Schweizer R, Marchesini M, Du Pontavice M, Walter L (2016) La politique suisse de réduction des émissions de gaz à effet de serre: une analyse de la mise en oeuvre. Rapport à l'intention de l'Office fédéral de l'environnement (OFEV) Berne. https://www.admin.ch/ch/f/ gg/pc/documents/2801/Politique-climatique-de-la-Suisse-post-2020_Rapport-expl_fr.pdf Federal Office of the Environment (FOEN) (ed) (2009) Manuel EIE.  Berne. https://www.bafu. admin.ch/bafu/fr/home/themes/eie/publications/manuel-eie.html FOEN (ed) (2017a) Impulsions pour une adaptation de la Suisse aux changement climatiques. Berne. https://www.bafu.admin.ch/bafu/fr/home/themes/climat/publications-etudes/publications/impulsions-pour-une-adaptation-de-la-Suisse-aux-changements-climatiques.html FOEN (ed) (2017b) Berne. https://www.bafu.admin.ch/bafu/en/home/topics/climate/info-specialists/climate-and-financial-markets.html, tool available at http://www.transitionmonitor.com/ en/home/ FOEN (ed) (2017c) La canicule et la sécheresse de l’été 2015. Berne. https://www.bafu.admin. ch/bafu/fr/home/themes/climat/publications-etudes/publications/Hitze-und-Trockenheit-imSommer-2015.html Griffel A (2015) Art. 74. In: Waldmann B, Belser EM, Epiney A (eds) Bundesverfassung. Helbing, Basel Krummenauer L, Walther C (2017) Klimawandelbedingte Zunahme von Hitzeereignissen und deren Folgen für die Gesundheit in der Schweiz und in Europa. http://klimaseniorinnen.ch/ wp-content/uploads/2017/12/Studie_2017_HitzeSchweiz.pdf Percival RV (2013) International responsibility and liability. In: Alam S, Hossain Bhuiyan MJ, Chowdury MT, Techera EJ (eds) Routledge handbook of international environmental law. Routledge, Abingdon Petitpierre A (2015) Environmental law in Switzerland. Stämpfli/Wolters Kluwer, Alphen aan den Rijn Thommen Dombois O, Braun-Fahrländer C (2004) Gesundheitliche Auswirkungen der Klimaänderung mit Relevanz für die Schweiz, Literaturstudie im Auftrag der Bundesämter für Umwelt. Wald und Landschaft (BUWAL) und für Gesundheit (BAG), Basel Verheyen R (2005) Climate change damage and international law: prevention duties and state responsibility. Brill, Leyden Vicedo-Cabrera AM, Ragettli MS, Schindler C, Röösli M (2016) Excess mortality during the warm summer of 2015 in Switzerland. Swiss Med Wkly 146:w14379 Waldmann B (2015) Art. 35. In: Waldmann B, Belser EM, Epiney A (eds) Bundesverfassung. Helbing, Basel

Climate Change and Individuals’ Rights in Switzerland

131

Cases

Switzerland

Federal Administrative Court (FAC) https://www.bvger.ch/bvger/en/home/judgments/entscheiddatenbank-bvger.html BVGE 2016/24, 21/10/2015 FAC A-1919/2014, 26/03/2015

Federal Supreme Court (FSC) Officially published cases. https://www.bger.ch/ext/eurospider/live/fr/php/clir/http/index. php?lang=fr 24 V 124, 14/05/2002 25 II 431, 07/04/2005 26 II 305, 11/04/2006 27 II 185, 28/03/2013 139 II 279, 09/05/2013 140 II 315, 11/04/2014 143 II 87, 17/10/2016 Other Cases. https://www.bger.ch/ext/eurospider/live/fr/php/aza/http/index.php?lang=fr 1C_148/2008, 11/12/ 2008 2C_1065/2015, 15/09/2016

Pending Case KlimaSeniorinnen v Federal Council et al. (25 November 2016) http://klimaseniorinnen.ch/wpcontent/uploads/2017/11/170526-09-Beschwerde-ans-UVEK.pdf; (unofficial) English translation http://klimaseniorinnen.ch/wp-content/uploads/2017/05/request_KlimaSeniorinnen.pdf; see http://klimaseniorinnen.ch/dokumente/ for additional information in French and English

ECtHR https://hudoc.echr.coe.int/eng#{"documentcollectionid2":["GRANDCHAMBER"," CHAMBER"]} Borysiewicz v Poland, no 71146/01, 01/07/2008 Budayeva and Others v Russia, nos 15339/02 and others, 20/03/2008 Dubetska and Others v Ukraine, no 30499/03, 10/02/2011

132

U. Brunner and C. C. Bähr

Paul and Audrey Edwards v the United Kingdom, no 46477/99, 14/03/2002 Fadeyeva v Russia, no 55723/00, 09/06/2005 Kyrtatos v Greece, no 41666/98, 22/05/2003 LCB v the United Kingdom, no 23413/94, 09/06/1998 López Ostra v Spain, no 16798/90, 09/12/1994 Öneryildiz v Turkey [GC], no 48939/99, 30/11/2004 Osman v the United Kingdom, no 23452/94, 28/10/1998 M Özel and Others v Turkey, no 14350/05, 17/11/2015 Tătar v Romania, no 67021/01, 27/01/2009

International Arbitration Trail Smelter Arbitration (United States v. Canada, 04/16/1938 and 03/11/1941) 1C_37/2019, 05/05/2020 Liam Donnison, (2017) Three questions for new headteachers. SecEd 2017 (27):11–11 Ursula Brunner  Dr. iur., was an environmental lawyer, researcher, and activist, and has also served on committees reviewing interdisciplinary environmental research. She was a founding partner of ettlersuter Rechtsanwälte in Zurich, Switzerland. In her legal practice, she represented private and public interest clients, provided counsel to public administrators, and published regularly. She was awarded an honorary doctorate from the University of Zurich for her contributions to environmental law and policy in 2008. Ursula Brunner passed away on July 17, 2019, after a short, serious illness. Cordelia C. Bähr  ([email protected]) is a partner of bähr ettwein rechtsanwälte in Zurich. She advises her clients principally in public law, human rights law, and environmental law, and publishes regularly. Her interest in fundamental rights and environmental issues led her to complete an LL.M. degree at the London School of Economics and Political Science (LSE) with a focus on human rights and the environment. Also, as an environmental lawyer at the Federal Office for the Environment (FOEN), Cordelia Bähr assisted with the revision of the CO2 Ordinance.

Climate Change and the Individual in the United Kingdom Kim Bouwer

Abstract  This chapter discusses the potential for climate change litigation to be brought by individuals, in the context of the law of the United Kingdom. Responding to specific queries concerning the potential for particular ‘types’ of cases, it provides an overview of the field in public and private law, with a particular focus on individual actions, and also examines how access to justice considerations might impact on climate litigation in this context. It concludes that there is very little scope for genuinely individual action in relation to the ‘types’ of cases it examines, but questions both whether these cases will be brought by NGO’s NGOs, and whether the role of the individual in climate change might not be seen in smaller, more mundane litigation that impacts on climate policy.

1 Introduction 1.1 Purpose and Definitions Climate change litigation in the United Kingdom is largely constituted by public law challenges in a variety of policy areas.1 The field is dominated by challenges This chapter is based on a report prepared for the project ‘Climate Change and the Individual’, for the 2018 International Academy of Comparative Law Conference in Fukuoka, Japan. It was discussed at the Climate Change and the Individual Workshop, hosted by the Strathclyde Centre for Environmental Law and Governance, in Glasgow on 3 July 2018. It reflects the law as it was in August 2018. I am grateful to Emily Barritt, Danielle Lawson, Gillian Lobo, Sam Hunter Jones and Jonathan Church for their helpful comments on an earlier draft.  Here, climate change litigation includes overt climate change cases or any action that might be reframed as such, for instance if the claimant sought relief for other harms but the case interfaced with climate policy. This is the approach taken by Hilson (2010). 1

K. Bouwer (*) Law School, University of Exeter, Exeter, UK e-mail: [email protected] © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_7

133

134

K. Bouwer

arising from the grant or refusal of permission in relation to renewable energy projects or major emissions sources such as airports and incinerators, a few planning decisions relating to urban expansion (in particular, flood risk), various kinds of cases arising in the context of the EU ETS, and some criminal proceedings and human rights claims.2 Most large-scale, direct climate actions are deliberate and formulated, underpinned by scholarly analysis, institutional support and carefully-­ thought-­through strategy. They are expensive and require considerable resources. As such, most climate change litigation as commonly conceived of,3 is by necessity a group endeavour. Of course, as I examine elsewhere, there are other arenas of small-scale litigation that touch on climate change issues, which could create greater scope for action by individuals or small organisations. In other words, there is a role for climate change and the individual, which takes place in multiple subtle ways, and is both deliberate and inadvertent. Although there could be some overlap, as I touch on below, individual action is more likely outside of the more conventional range of cases covered by the questionnaire. This chapter tackles various specific questions, considering the potential for individuals (or groups of individuals) to take direct legal action in response to climate change in the UK.4 While these questions are set out in more detail earlier in this collection,5 in brief it is asked whether an individual could bring the following kinds of cases: • a challenge to a government for failure to meet its international climate change obligations; • an action in human rights against a public or private body, for failure to meet its international climate change obligations; • an action against a public actor charged to authorise major climate change infrastructure that would increase greenhouse gas emissions; • any action against a public body that does not take steps leading to a failure to adapt to climate change; • a case against a private actor whose conduct leads to an increase in greenhouse gas emissions; and • any action against a pension fund for conduct which leads to an increase in greenhouse gas emissions.  See http://climatecasechart.com/non-us-jurisdiction/united-kingdom/ (last accessed 25 April 2018)—although this is by no means a comprehensive database of all UK climate change cases. 3  See Hilson (2010) or more formally, Markell and Ruhl (2012). 4  The UK encompasses four separate jurisdictions with diverging yet frequently similar rules and principles. I have approached the problem reflecting on the law in England and Wales. On occasion I shall make passing reference to case law or legislation from one of the devolved territories, but I shall not comprehensively comment on events there. This is not to say they are not important, because they are, but space does not permit a full review of all four jurisdictions. The Republic of Ireland is of course, a separate country. 5  I refer to the IACL ‘Climate Change and the Individual’ Project of which my original report formed part. I have sought to organise my thoughts around the substantive law, but I explain my answers to the questions throughout. 2

Climate Change and the Individual in the UK

135

I have taken a fairly broad approach, commenting on situations where individuals could, in theory, take action. I do not aim comprehensively to document climate litigation across the UK, or provide a deep analysis as to the prospects of any such action, but rather simply to comment on the possibilities and challenges that might arise in this context.6 Litigation in the context of climate change is beset with challenges, which may be doctrinal/substantive (such as the narrow grounds for judicial review, or constraints on the duty of care in negligence), procedural (such as restrictions on standing and short limitation dates), or access to justice issues (including those related to costs and funding). Litigation costs are of particular significance for this chapter because of the emphasis on the individual. I discuss these in the next section. I then tackle the specific questions set in two substantive sections dealing with public, then private, law.

1.2 Litigation Costs Litigation in the UK is adversarial, time-intensive and expensive. This weighs on claimant litigants both in the upfront and ongoing expense of pursuing an action (which includes the fees of their legal representatives, but also fast-rising court fees, and expert costs). In addition, as soon as proceedings are issued the claimant is exposed to the risk of having to pay all of some of their opponents’ costs if they lose on some or all of the issues, which can be a considerable deterrent.7 Traditionally claimants could meet many of these challenges through a combination of legal aid, before-theevent insurance or conditional fee agreements combined with after-the-­event litigation insurance; and in this context the prospect of recovery of inter-­partes costs—including risk-based success fees —provided sufficient incentive for claimants to proceed, and for claimant lawyers to accept instructions, in more ‘risky’ cases. However most of these alternatives have been eroded in the last few decades of costs ‘reforms’. The UK is a member of the Aarhus Convention and various amendments have been enacted to the Civil Procedure Rules to comply with its provisions, in particular Art 9(4), which includes the requirement that the costs of bringing environmental cases must not be ‘prohibitively expensive’.8 In public law cases, the risk of costs exposure is relieved significantly by ‘costs capping’, which limits exposure for claimants who are members of the public, or individuals, previously to £5,000 for each person, now to a variable cap.9 This requires the claimant make available details of his (or of those ‘who stand behind him’) financial resources, although this

 I have also focused overwhelmingly on the common law, and core statutes, but this is not to say that other forms of statutory or administrative proceedings may not play a similar role in some instances. 7  See generally Stech et al. (2009). 8  UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, adopted on 25th June 1998 at Aarhus. 9  CPR 45.44 and RSPB, Friends of the Earth & ClientEarth v Secretary of State for Justice [2017] EWHC 2309 (Admin). 6

136

K. Bouwer

is now to be done in private. He would also not be able to anticipate his exposure to costs risk before he issued proceedings.10 Conversely, defendants are subject to a £35,000 costs cap which means that successful claimants could not expect to recover their full inter-partes costs in the event of success.11 It has been argued that these factors are more likely to discourage individuals from pursing environmental claims in the public interest.12 The new rules also require that claimants declare when filing the claim, that they consider the Aarhus Convention to be applicable; while this may be less significant in climate cases as I allude to above, this still would potentially exclude less sophisticated and certainly unrepresented claimants. Finally, contentious though the partial costs protection available in judicial review cases may be, there is no Aarhus protection for costs in private law claims, despite this seemingly being required by Article 9(3).13 This means that claimants in private law environmental cases bear full costs risk.

2 Public Law As explained above, the rest of this chapter discusses the possibilities for individuals to bring various kinds of cases in the UK context. I have started with public law, in which the usual vehicle would be an application for judicial review.14 This is a narrow and discretionary remedy; in the main it is used to tackle unlawful decision-­ making processes, and the scope for challenging a decision or point of policy directly on its merits is extremely limited.15 In addition, there are limits on standing which require that a ‘sufficient interest’ be demonstrated16; and short limitation periods which can present particular challenges given the complex and technical nature of environmental disputes.17

 Lobo (2017).  CPR 45.43(c). 12  Bell (2017), pp. 344–345. 13  CPR 45.41, Morgan and Baker v Hinton Organics [2009] EWCA Civ 107, Austin v Miller Argent [2014] EWCA Civ 1012. 14  There are cases in other jurisdictions where claimants seek to do this in private law, seeking to obtain a broad order in terms of the ‘open standard’ in negligence, see Cox (2016). I discuss private law cases below. 15  See for e.g. Macrory (2009). 16  Section 31 (3) Senior Courts Act 1981, although see Walton v Scottish Ministers [2012] UKSC 44 [90] – [94] and [152], [153]. 17  Part 54.5 Civil Procedure Rules (CPR) and Fisher et al. (2013), pp. 263–264. 10 11

Climate Change and the Individual in the UK

137

2.1 The Climate Change Act and Challenges to Policy A domestic action challenging a failure to meet international obligations presents overwhelming difficulty. Challenges to policy failure or lack of ambition are more likely to be brought in the context of domestic legislation, specifically the Climate Change Act 2008 (the Act). The Act seeks to reduce the UK net carbon account through successively stringent budgets, towards the achievement of a global target. It imposes an overarching duty on the Secretary of State to reduce the UK carbon account by at least 80% relative to 1990 (the baseline year) levels, by 205018; a target which she is empowered to amend under certain circumstances.19 Additional duties relate to the setting and meeting of carbon budgets,20 annual and periodic reporting to Parliament,21 a duty to prepare and report on ‘proposals and policies’ for meeting the carbon budgets.22 The nature or content of the proposals or policies is not prescribed,23 however the Secretary of State is also required to provide an explanation and modifying policy plan if the specified targets are not met.24 The Committee on Climate Change (CCC) advises the Secretary of State and Parliament on the setting and achievement of budgets and targets, including the 2050 target,25 and reports to Parliament concerning progress made towards specific budgets and targets, including reference to whether these are likely to be met.26 It is hardly surprising that questions would be raised concerning the nature and enforceability of the powers and duties under the Act.27 It is widely argued that the Act’s substantive obligations (meeting carbon targets or budgets) are primarily of normative significance, given the difficulties that would be involved in meaningfully enforcing those duties.28 However, even if the duties in the Act to achieve

 Section 1(1) Climate Change Act 2008.  Section 2: “(1) The Secretary of State may by order amend [the carbon targets specified in section 1]. The power in subsection (1)(a) may only be exercised (a) if it appears to the Secretary of State that there have been significant developments in (i) scientific knowledge about climate change, or (ii) European or international law or policy, that make it appropriate to do so…” Section 6 contains similar provisions in relation to the amendment of the level of the carbon budgets in section 5. 20  Section 4(1). Save for the 2020 budget, which is to be 26% lower than the 1990 baseline (section 5(1)(a)). The Secretary of State has a power to set ranges for later years (section 5(1)(c)), and he must also set indicative annual budget ranges for each year (section 12 (1)). 21  Sections 16, 18(1) and 20(1) and (2). 22  Sections 13 and 14. 23  Stallworthy (2009). 24  Section 18(8) and 19(1), and 20(6) in relation to the 2050 target. 25  Sections 3(1)(a) 2050 target or baseline year; section (7)(1)(a) amending target percentages; section 9(1)(a) and 34 consulting on carbon budgets and s22(1)(a) on the alteration of carbon budgets; 17(4)(c) on carrying amounts between budgetary periods; section 33(1), 34(1)(a) and (b). 26  Section 36(1)(a)–(c). 27  Stallworthy (2009), p. 243, also see Reid (2012). McMaster (2008) and Church (2015). 28  McHarg (2011) particularly 477–9. 18 19

138

K. Bouwer

emissions targets were not susceptible to review, the procedural obligations in the Act are probably enforceable. There is also increasing attention on the decisions and actions taken by the Secretary of State further to her other duties and powers under the Act.29 A recent attempt sought to challenge the failure of the Secretary of State to exercise her power to increase the ambition of the emissions reduction target,30 in accordance with developments in scientific understanding as well as increased global ambition under the Paris Agreement.31 The claimants are an NGO ‘Plan B Earth’ and a small group of individuals, who brought a crowdfunding campaign to finance the litigation. They argued that the Secretary of State’s failure to exercise her power was irrational and inconsistent with the claimants’ human rights and the public sector equality duty.32 The claimants did not obtain permission to proceed to a full hearing, as their action was not deemed arguable.33 The decision has been appealed. This is not to say that differently framed challenges might not succeed in time. The more recent reports of the CCC do not recommend increased emissions reduction ambition, the core reason for which is that more work needs to be done in the design and implementation of policies to achieve the existing, less ambitious targets.34 Current trajectories are not consistent with the reductions necessary to meet the fourth carbon budget and the past few governments have been characterised by degrees of chaos in climate and energy policy delivery.35 The recent publication of the government’s Clean Growth Strategy does not appear to have allayed concerns, and the CCC has stressed that detailed and achievable policies and measures must be enacted as a matter of urgency, in order to reach the extant targets.36 As the Secretary of State is under a duty both to prepare and report on policies to support the achievement of targets under the Act,37 it may well be a matter of time before further challenges arise in response to her failure to act in accordance with those duties.  Church (2015), Section B.2.  Section 2(1)(a). 31  Paris Agreement Article 2(1)(a). which the claimants said prescribed a global temperature goal of ‘well below 2 degrees’. 32  Under Section 2(2)(a). The claimant’s particulars of claim and pre-action correspondence may be found here: http://www.planb.earth/plan-b-v-uk.html. 33  R (Plan B Earth and others) v SoS for BEIS [2018] EWHC 1892 (Admin). 34  Committee on Climate Change (2016a). ‘Current policy in the UK is not enough to deliver the existing carbon budgets that Parliament has set. The Committee’s assessment in our 2016 Progress Report was that current policies would at best deliver around half of the emissions reductions required to 2030, with no current policies to address the other half. This carbon policy gap must be closed to meet the existing carbon budgets, and to prepare for the 2050 target and net zero emissions in the longer term.’ at 12. Also Committee on Climate Change (2017). Discussed in R (Plan B Earth and others) from p. 21. 35  Lockwood (2013). Also ClientEarth (2016) highlights similar issues, and makes a series of recommendations (in Section 6), none of which have been followed. 36  Committee on Climate Change (2018) especially pp. 39–43. 37  Section 13(1) and 14(1). 29 30

Climate Change and the Individual in the UK

139

2.2 Climate Change Infrastructure I have also been asked whether it is possible to bring actions against state entities in relation to infrastructure that affects climate change. There is certainly more traction in public law cases that challenge specific projects rather than broad challenges to the very political decisions made in framing climate change strategy. In most instances these arise as challenges to a local administrative or national planning decision either granting or refusing permission for the construction of the desired infrastructure.38 In many instances such actions are actually brought by individuals or groups of individuals, sometimes jointly with an NGO such as Friends of the Earth. Space and the purpose of this chapter do not permit an indepth review of all such actions and proposed actions, although as before, each action would be brought within the public law grounds for a challenge to the public authority decision, not as a broad climate change challenge per se.39 Specific actions include challenges in relation to airport expansion,40 and arising from permission to construct cement factories,41 and to commence exploratory works to assess the viability of gas streams for hydraulic fracturing.42 At the time of writing a barrage of challenges have been brought to the proposed construction of a third runway at Heathrow Airport in London. One includes several local authorities, the NGO Greenpeace and the Mayor of London, Sadiq Khan, as claimants.43 In addition of course, individuals bring challenges in relation to infrastructure that is designed to support a low-carbon transition, typically renewable energy projects. There are a wealth of cases challenging both the granting and refusal of permission in such circumstances, although significantly individuals are more likely to bring challenges to the granting of permission for such projects, on the basis of local interests.44 This could include local economic interests, but individuals could also raise concerns about the local environment, or landscape and heritage concerns. As

 Fisher et al. (2013), pp. 807–836 explain these processes.  Hilson (2010) discusses how the climate change ‘grievance’ in each case is introduced in distinct ways. It should also be noted that such decisions may also be contested via statutory appeal processes, not only judicial review—see Fisher et al. (2013), pp. 837–844. 40  R (London Borough of Hillingdon) v Secretary of State for Transport [2010] EWHC 626 (Admin). 41  R (Littlewoood) v Bassetlaw District Council [2008] EWCA Civ 1611. 42  Frackman v Secretary of State CLG [2017] EWHC 808. 43  See http://stopheathrowexpansion.co.uk/news/2018/8/7/judicial-review-launched-against-thirdrunway. Another is brought by NGO Plan B (see https://planb.earth/ plan-b-launches-legal-challenge-to-heathrow-expansion/). 44  An interesting discussion of how these interests are balanced can be found in Jones (2016). A few examples: Pugh v. Secretary of State for Communities and Local Government [2015] EWHC 3 (the claimant argued that the protection of heritage assets outweighed the climate benefits of the proposed wind farm); Wildland Ltd. and the Welbeck Estates v. Scottish Ministers [2017] CSOH 113 (petitioners argued that the planning authorities reasons were inadequate given the impact of a windfarm on the region’s distinct character and wilderness areas). 38 39

140

K. Bouwer

I discuss elsewhere, in this way individuals are involved in climate change litigation without this necessarily being their focus or intention.45 Litigation about wind farms is broadly accepted as climate change litigation, irrespective of the motives of and arguments made by the litigants. This and other more ‘under the radar’ kinds of litigation, that could impact climate change policy, reflect the variety of less obvious climate litigation where individuals could make a ‘contribution’.46

2.3 Human Rights I am asked whether it would be possible for individuals to bring a case against a government agency on the basis that inaction has infringed their human rights. The literature on human rights and climate change is vast.47 Osofsky and Peel argue that human rights claims represent a new generation of litigation, endorsed by their explicit linkage in the Paris Agreement.48 They argue that, in ‘…parallel with these policy and legal developments at the international level, rights claims in climate change litigation seek to direct public and political attention to the detrimental human consequences of climate change, arguments that ultimately may be more persuasive in motivating action to address the problem.’49 While this framing does bring a strong normative component to climate change issues, in terms of crystallising the immediacy of the impacts (particularly in relation to public health), more is needed to bring or indeed succeed in a human rights action.50 The UK has incorporated the European Convention on Human Rights into domestic law by means of the Human Rights Act 1998. The Act creates a remedy for violation of Convention Rights.51 In addition, the Act requires courts to develop the common law in such a way as to ensure coherency and consistency with the provisions of the Act.52 But this does not mean open season on rights claims. For instance, at present a series of ‘civil rights’ cases based on governmental failure to

 Bouwer (2018).  Bouwer (2018). 47  Knox (2018). 48  Paris Agreement (FCCC/CP/2015/L9/Rev1), Preambular paragraph 11. 49  Peel and Osofsky (2018), p. 4. 50  If brought in public law, any individual claimant would encounter the same procedural challenges as outlined above. He would also have to establish standing, demonstrate that the right was engaged: the claimant would have to establish the infringement of the right was direct and serious, whether any limitations were justifiable and the kind of obligations (positive or negative) imposed on the defendant by virtue of these. See Clayton and Tomlinson (2009). This, of course, is in addition to the scientific or evidentiary problems that a climate change action inevitably involves—Peel and Osofsky (2018), p. 10. 51  Section 7 and 8. 52  Section 6(3)(a). 45 46

Climate Change and the Individual in the UK

141

protect the ‘atmospheric trust’, causing climate change,53 are currently before several US courts. The claimants are predominantly children, but it should be noted that these cases could not be considered to be brought by individuals: they are part of a ‘co-ordinated litigation campaign’.54 The public trust cases are rooted in academic work that establishes both the concept of an ‘atmospheric trust’,55 as well as the scientific basis for the claim and the structured relief sought.56 The prospects of atmospheric trust litigation in the UK have been considered, and there are mixed views as to the prospects.57 It seems unlikely however that the UK courts would entertain freestanding civil rights cases of this nature. The recent Plan B Earth litigation was based in part on human rights arguments, arguing that the Secretary of State’s failure to increase the relevant targets infringed their rights to life, home and family life and not to be unfairly deprived of property.58 The claimants also made arguments based on non-discrimination, on the basis that persons with protected characteristics would suffer disproportionately due to climate change.59 Of course, these issues were deemed unarguable.60 Having said that, up to half of environmental law cases include a human rights component,61 so it is clear that human rights have contributed to environmental law litigation in the UK,62 and may contribute to any litigation about climate change. For instance, in litigation concerning the termination of subsidies for solar installations the claimants were successful in their arguments that the termination of the scheme infringed their rights to possession of property.63 These actions were not brought by individuals as such, but are a good example of the less dramatic, under the radar litigation referred to above. Rather than using human rights arguments to tackle the whole of climate change, these cases challenged a change to a modest aspect of

 Juliana v. United States, Case No. 6:15-cv-01517-TC, 2016 WL 6661146 (D.  Or. Nov. 10, 2016) [1]. 54  Juliana [57]. Actions have been brought in several US states and actions are contemplated in other jurisdictions: see https://www.ourchildrenstrust.org/global-legal-actions. 55  This wave is underpinned by theoretical writing about the significance of the ‘public trust’ as a tool of natural resources governance: Wood (2014). 56  Hansen (2013). James Hansen is also a party to the proceedings. 57  Freedman and Shirley (2014) or less optimistically: Goldberg and Lord (2011), p. 478. See however Juliana [24]. 58  Art 2, Art 8, A1P1—see Claimants’ Statement of Facts and Grounds, available at http://www. planb.earth/plan-b-v-uk.html. 59  Art 14 and under s 149 of Equality Act 2010 (the public sector equality duty). 60  R (Plan B Earth and others). 61  Bell (2017), p. 344. For instance, the Plan B litigation includes a human rights head of claim, under Articles 2, 8, A1P1 and Art 14 —see Claimants Statement of Facts and Grounds from p. 66. 62  See also e.g. Clayton and Tomlinson (2009), Chapters 13 and 18. 63  Under Article 1 Protocol 1 of the Human Rights Act 1998—see R (Homesun Holdings Ltd) v Secretary of State [2012] EWCA Civ 28 and Breyer Group plc and others v Department of Energy and Climate Change [2015] EWCA Civ 408 (the latter case sought damages). 53

142

K. Bouwer

climate change and energy policy (in this case, the dismantling of a renewable energy feed-in tariff).64

3 Private Law 3.1 ‘Holy Grail’ Cases I am asked whether individual claimants could bring an action against private bodies for climate change harms. Large-scale private law cases for climate harms against major emitters, were first considered when scholars turned their attention to the topic of ‘climate change litigation’.65 The ‘sexiness’ of such proposed actions makes them interesting to scholars and something of the ‘holy grail’ for practitioners,66 however private law doctrine does not accommodate climate change well in this kind of context.67 Despite the extensive writing on these kinds of cases and these doctrinal incompatibilities, these issues have not been litigated, as all previous attempts have been dismissed as non-justiciable in the early stages.68 Considerable academic work has been done to seek to overcome the evidentiary barriers to hold large corporations to account for climate change. In particular, progressive scientific work has sought to identify the source of most historical global emissions,69 their historical insight into the likely future consequences of these activities,70 and the extent to which specific events might be said to be caused by (attributed to) climate change.71 This work has generated a new generation of private law cases—the so-called ‘carbon majors’ litigation.72 There are too many different sets of proceedings to detail each action in full, and while there are some variations, most are brought on the basis that the defendants’ production and promotion of fossil fuels constitutes a public nuisance. All these actions are still at a  Later cases making similar arguments in relation to the renewables obligation were not so fortunate: Solar Century Holdings v Secretary of State [2016] EWCA Civ 117. 65  E.g. Grossman (2003) and Penalver (1998). 66  Bouwer (2018), Section 2.1. 67  Kaminskaite-Salters (2011) and Goldberg and Lord (2011). Examples in the US include: Hunter and Salzman (2007) and Kysar (2011)—a lengthy list of articles discussing this issue may be found at Kysar’s note 3. Also Brunnee et al. (2011) and Weinbaum (2011). 68  Native Village of Kivalina v. ExxonMobile Corp 9th Cir., No. 09-17490 (September 21, 2012); Comer v. Murphy Oil USA, 585 F.3d 855, 880 (5th Cir. 2009); Comer v Murphy Oil USA, Inc 839 F.  Supp. 2d 849, 855-62 (S.D.  Miss. 2012). Also the new carbon majors decisions, referred to below. 69  Heede (2014) and Ekwurzel et al. (2017). 70  Frumhoff et al. (2015) and Shue (2017). 71  Marjanac and Patton (2018). 72  Burger and Gundlach (2017), pp. 21–22. 64

Climate Change and the Individual in the UK

143

fairly messy and contentious early stage as the parties seek to establish the appropriate forum and deal with preliminary procedural issues.73 At the time of writing, the defendants have succeeded in early motions to dismiss in relation to two sets of proceedings: City of Oakland v BP plc74 and City of New York v BP plc.75 It is perhaps too early to comment comprehensively on the outcome of these cases, as the campaign of litigation is far from over, but the dismissal hearings struck a depressingly familiar tone: the field is occupied by statute,76 and the broad scope of the proceedings requires a political solution.77 Many of the high-emitting ‘carbon majors’ are registered or have interests in the UK.78 On the face of it, this would suggest new possibilities to bring climate change tort cases in the UK courts. This is not the place for an indepth discussion as to the likely prospects of success or multiple challenges of large climate change tort cases, however I shall make a few passing observations. Any claimant in an action in negligence would still have to establish that the defendant owed him a duty of care. He would also have to establish on a balance of probabilities that the defendant’s emissions caused his harm. Nothing in the attribution studies has or could resolve the first problem, or indeed, has met any test currently accepted by the UK courts for causation in tort law. Quite famously the UK courts have found creative ways to get around evidentiary difficulties in the face of pressing socio-political problems, specifically in relation to illness caused by exposure to asbestos, but it can not be assumed that this would be replicated in climate tort cases.79 An action based on deceit may be more successful, but such actions may encounter other doctrinal difficulties.80 There remains the theoretical possibility of an action in private law against governments, seeking increased climate ambition or other relief. The hallmark action for this kind of case is Urgenda Foundation v the Kingdom of the Netherlands81 in which the claimants (an NGO and group of citizens) sought an injunction in tort law

 A fairly recent (at time of writing) summary and overview of these cases is available at Burger (2018). 74  City of Oakland v BP plc 3:17-cv-06011 (2018). 75  City of New York v BP plcc (2018) 18 Civ. 182. 76  Applying Native Villiage of Kivalina—the claimants had sought relief for the ‘production and sale’ of fossil fuels, but the courts would not accept that their claims were based on emissions. 77  Distinguished from Massachusetts v EPA 549 US 497 (2007) on the basis that EPA only sought to regulate six local coal fired electricity plants, not a broader section of the industry, including international activities. 78  Heede (2014), p. 237. 79  Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22., but see Hoffmann Lord (2013) and comments in Sienkiewicz v Grief (UK) Ltd [2009] EWCA Civ 1159. 80  For instance, to succeed in an action for deceit the claimant would have to show that he relied on the deception and that his damage flowed from the deceit. 81  ECLI:NL:RBDHA:2015:7196. De Graaf and Jans (2015). 73

144

K. Bouwer

requiring increased climate ambition from the Dutch government.82 It is probably unlikely that a similar action would succeed in the UK, as the very specific framings of duty and harm present a significant jurisprudential hurdle in English tort law.83 Courts do not like to impose tort duties on public authorities—where they do these are narrowly formulated and tend only to be found in very specific situations.84 Moreover, it is likely that an action of this nature would be subject to stringent arguments about justiciability, and it is difficult to conceive of a case like Urgenda even being brought, let alone surviving a strike-out.85

3.2 Local Authority/Adaptation Cases I am also asked whether there is a possibility for an individual to bring proceedings against a public body arising from failures to take proper steps concerning adaptation. There has not been much in the way of climate change adaptation litigation in the UK.86 There remains, of course, theoretical potential for high-level action that seeks to challenge the failure of central government or associated agencies properly to design and implement policies for risk resilience and adaptation to climate change.87 However, it might be argued that steps to adapt to climate change and prevent harm are more appropriately and effectively dealt with at national or local government level.88 The most obvious actions for adaptation failures are in tort and/ or human rights.89 Similarly to the above, the role of human rights in private law

 Peel and Osofsky (2018) particularly Section 3.1. argue that although cases like Urgenda doctrinally are pleaded as tort actions, they more closely resemble human rights reasoning. It is perhaps more accurate to say that the state’s obligations in international and human rights law helped the court to articulate the tort duty. 83  Van Zeben (2015), pp. 349–352. Also see Goldberg and Lord (2011), pp. 457–475. 84  Lunney et al. (2017), pp. 541–554. 85  Lunney et al. (2017), pp. 512–540. 86  There are a few recent cases, although in public law: Wigan Metropolitan Borough Council v. Secretary of State for the Environment Transport and Regions [2001] EWHC Admin 587 and Goldfinch (Projects) Limited v. National Assembly for Wales [2002] EWHC 1275 challenge the refusal or grant of planning permission on account of local flood risk. 87  While this shall not be explored in any depth here, the Climate Change Act 2008 does require the Secretary of State both to develop programs on (section 58) and report on risk in relation to (section 56) climate change adaptation. These are of course specific duties, and very little work has been done concerning their force and effect. See however my comments concerning legal action arising from the Climate Change Act in Sect. 2.1. 88  See e.g. Ruhl (2014) or more specifically Gill (2007). 89  For instance Ashgar Leghari v. Federation of Pakistan (W.P. No. 25501/2015), although as Peel and Osofsky (2018) observe, this decision was driven by a uniquely activist judiciary: see n 100 and references therein. Also Carnwath and Lord (2016), p. 9. 82

Climate Change and the Individual in the UK

145

cases is complex and nuanced, and freestanding human rights actions are the exception in private law,90 so the following refers predominantly to tort. Tort actions seeking compensation for damage would be brought in circumstances where climate risks materialise and the impacts are inadequately managed. Given the risk profile of the UK such actions are most likely to arise from winter flood events.91 Depending on the damage caused—whether this was to a claimant’s residence, or to farmland—this is the kind of case that lends itself more easily to individual action, although it is more likely that any such action would be a subrogated claim brought by an insurance company.92 There is no actionable duty under statute,93 and actions under the common law would be brought either in negligence or in nuisance. Liability in nuisance is limited,94 and as before, establishing public authority duties of care is a notoriously difficult and complex area of the law of negligence. There is some precedent for holding local authorities liable in circumstances where their conduct worsened or prolonged a flooding event.95 As before, small localised cases in response to specific events are more likely both to be brought by individuals, than a larger case seeking to tackle all of UK adaptation policy. This is one area where individual climate change action is likely to increase in future, but probably not as envisaged in the questions.

3.3 Pension Funds/Financial Institutions Finally, I am asked whether an action is likely or possible against pension funds, or other financial institutions, on grounds that their activities in any way contributed to climate change. A similar action brought in the US unsuccessfully proposed a new tort of ‘intentional investment in abnormally dangerous activities’.96 For now, it is difficult to imagine precisely how such an action might be formulated, and for similar reasons to those stated above, an action based in a failure to divest as causative

 Although the courts will use human rights to fill gaps if necessary, as in most recently: Commissioner of Police of the Metropolis v DSD and another [2018] UKSC 11. 91  Committee on Climate Change (2016b), pp. 32–33. Other high risk areas include extreme heat and problems with water supply—space does not permit a discussion of other issues. 92  Merkin and Steele (2013). 93  Flood and Water Management Act 2010; Land Drainage Act 1991. 94  Marcic v Thames Water Utilities Ltd [2003] UKHL 66; [2004] 2 AC 42. 95  East Suffolk Rivers Catchment Board v Kent [1941] AC 74. In general, a duty of care does not arise in relation to omissions by public authorities, although they may be found liable if their conduct has made a situation worse. See Capital Countries v Hampshire County Council [1977] QB 1004 and Lunney et al. (2017) Chapter Nine. 96  See Harvard Climate Justice Coalition v President & Fellows of Harvard College (2016) 90 Mass. App. Ct. 444 in which the claimants alleged a breach of fiduciary duty and proposed a new tort of ‘intentional investment in abnormally dangerous activities’ but failed to establish standing for either. 90

146

K. Bouwer

of climate change, is unlikely.97 In 2009, a group of NGOs sought to challenge the UK Treasury on account of its management of the investments of the Royal Bank of Scotland, a bank brought into public ownership subsequent to the financial crisis.98 The claimants did not allege that the defendants conduct was in any way causative of climate harms; the application was brought on the basis that HM Treasury had not complied with various environmental and human rights commitments, in respect of which the claimant had a legitimate expectation. Permission was refused; in essence the court did not think that RBS’s ownership profile created any additional duties in relation to social or environmental considerations.99 Perhaps more likely is litigation arising from the personal interests of investors and overexposure to risk brought about by a failings on the part of pension fund trustees or other investment bodies.100 While it is probably premature to bring such proceedings now, there have, for several years, been questions about the way in which the financial services industry has understood and communicated the risks that climate change posed to investments.101 At the time of writing, in part due to a proactive approach to risk by relevant regulators, and in part due to a sustained campaign by the NGO ClientEarth,102 amendments to relevant legislation have been proposed. These amendments would require policies on climate risk (where these present a material financial risk) to be included in the statement of investment principles produced by trust-based occupational pension schemes.103 It remains to be seen how effective these new provisions will be, both in encouraging climate-­ conscious investing by pension schemes, and increasing engagement from scheme members; in any event the same campaign has established that pension fund trustees who fail to consider climate risk may not properly have fulfilled their common law fiduciary duty.104 But should the occasion arise, again it is likely that any related

 For indeed, the Harvard case relied on an argument that the investment in the fossil fuel industry as the first step in a chain of causation that culminated in climate harms, see discussion in Franta (2017). 98  R (People & Planet) v HM Treasury [2009] EWHC 3020 (Admin). This was a public law challenge that I am considering here because of the financial theme. 99  The claimant’s three grounds based in legitimate expectations, irrelevant considerations and human rights, were all found to be unarguable. 100  Richardson (2017), Section II. See e.g. Lynn and Gonzalez v Peabody Energy 2015 4:15CV00916 AGF. in which the claimants (Peabody employees) sought relief for a breach of fiduciary duty in the administration of their pension fund, which they alleged should have divested from Peabody holdings due known financial risks. The claims were dismissed for lack of standing. 101  Specifically, the extent to which fund trustees and managers appreciated the distinction between climate change as an ethical or social issue, and climate change as a material financial risk to investments—see Law Commission (2014). 102  See details on https://www.clientearth.org/pensions/. 103  ClientEarth (2018); Department for Work and Pensions, ‘Consultation on Clarifying and Strengthening Trustees’ Investment Duties’ (2018); The Occupational Pension Schemes (Investment and Disclosure) (Amendment) Regulations 2018. 104  Such duties might include a failure properly to consider the impact of climate risk on the scheme investments, or having considered it, act to mitigate losses to the scheme, see: Bryant and Rickards 97

Climate Change and the Individual in the UK

147

proceedings would be brought by a group of claimants—presumably those with inadequate retirement provision or poorly performing investments—as losses of this nature are unlikely to affect isolated individuals.

4 Conclusion This chapter has examined the possibilities for individuals to take direct action through the courts in response to climate change. I have taken this to include groups of individuals, although as is well established, climate change litigation presents particular challenges which may present barriers to litigation by individuals (rather than, say, corporates, groups of individuals or NGOs). As I explain above, in relation to most of the questions raised, the prospects for any kind of successful litigation in the UK are fairly limited. Claimants are presented with a host of challenges and barriers, chief amongst them, the incompatibility of our doctrinal law with the problems presented by climate change. Specifically, in the UK, claimants are also met with high and uncertain litigation costs, and a legal culture of conservatism that makes the extensive litigation seen in other jurisdictions, extremely unlikely.105 However, as I mention in a few places in this chapter and elsewhere,106 there is and stands to be considerable litigation that bears on climate change, that at present is passing under the radar because of a continuing preoccupation with specific kinds of cases. These kinds of actions are likely to have some impact in the context of the broader governance of climate change, and it is in relation to these kinds of cases— litigating to block wind farm development, suing a financial advisor due to a retirement fund deficient—that individuals are most likely to take climate change issues to the courts.

References Barker S et al (2016) Climate change and the fiduciary duties of pension fund trustees – lessons from the Australian law. J Sustain Finance Invest 6:211 Bell S et al (2017) Environmental law. Oxford University Press, Oxford Bouwer K (2018) The unsexy future of climate change litigation. J Environ Law 30:483 Brunnee J et al (2011) Overview of legal issues relevant to climate change. In: Lord RQC et al (eds) Climate change liability: transnational law and practice. Cambridge University Press, Cambridge

(2016). From other jurisdictions see Richardson (n 98), Section II; Barker et al. (2016). 105  In particular, Australia and the US, the most active sites for climate change litigation—see Peel and Osofsky (2015) for just some examples. 106  Bouwer (2018).

148

K. Bouwer

Bryant QCK, Rickards J (2016) QC opinion: the legal duties of pension fund trustees in relation to climate change Burger M (2018) Update: upcoming hearings on motions to dismiss climate change nuisance cases in California and New York. http://blogs.law.columbia.edu/climatechange/2018/05/23/updateupcoming-hearings-on-motions-to-dismiss-climate-change-nuisance-cases-in-california-andnew-york/. Accessed 23 July 2018 Burger M, Gundlach J (2017) The status of climate change litigation: a global review. UN Environment Program and Sabin. Center for Climate Change Law Carnwath R, Lord JSC (2016) Climate change adjudication after Paris: a reflection. J Environ Law 28:5 Church J (2015) Enforcing the climate change act. UCL J Law Jurisprud 4:109 Clayton R, Tomlinson H (2009) The law of human rights. Oxford University Press, Oxford ClientEarth (2016) Mind the gap: reviving the climate change act ClientEarth (2018) “Lightbulb Moment” as climate risk hits the mainstream for UK pensions industry Committee on Climate Change (2016a) UK climate action following the Paris agreement Committee on Climate Change (2016b) UK climate change risk assessment 2017 Committee on Climate Change (2017) Meeting carbon budgets: closing the policy gap 2017 report to parliament Committee on Climate Change (2018) An independent assessment of the UK’s clean growth strategy: from ambition to action Cox R (2016) A climate change litigation precedent: Urgenda Foundation v The State of the Netherlands. J Energy Nat Resour Law 34:143 De Graaf KJ, Jans JF (2015) The Urgenda decision: Netherlands liable for role in causing dangerous global climate change. J Environ Law 27:517 Department for Work and Pensions (2018) Consultation on clarifying and strengthening trustees’ investment duties. The occupational pension schemes (Investment and Disclosure) (Amendment) regulations 2018 Ekwurzel B et al (2017) The rise in global atmospheric CO2, surface temperature, and sea level from emissions traced to major carbon producers. Clim Change 144:579 Fisher E, Lange B, Scotford E (2013) Environmental law: text, cases, & materials. Oxford University Press, Oxford Franta B (2017) Litigation in the fossil fuel divestment movement. Law Policy 39:393 Freedman B, Shirley E (2014) England and the public trust doctrine. J Plan Environ Law 8:839 Frumhoff PC, Heede R, Oreskes N (2015) The climate responsibilities of industrial carbon producers. Clim Change 132:157 Gill S et al (2007) Adapting cities for climate change: the role of the green infrastructure. Built Environ 33:115 Goldberg S, Lord RQC (2011) England. In: Lord RQC et al (eds) Climate change liability: transnational law and practice. Cambridge University Press, Cambridge Grossman DA (2003) Warming up to a not-so-radical idea: tort-based climate change litigation. Columb J Environ Law 28:1 Hansen J et al (2013) Assessing “Dangerous Climate Change”: required reduction of carbon emissions to protect young people, future generations and nature. PLoS One 8:e81648 Heede R (2014) Tracing anthropogenic carbon dioxide and methane emissions to fossil fuel and cement producers, 1854–2010. Clim Change 122:229 Hilson C (2010) Climate change litigation in the UK: an explanatory approach (or, Bringing the Grievance Back In). In: Fracchia F, Occhiena M (eds) Climate change: La Riposta del Diritto. Editorale Scientifica, Naples Hoffmann Lord L (2013) Fairchild and after. In: Burrows A, Johnston AQC, Zimmermann R (eds) Judge and jurist: essays in memory of Lord Rodger of Earlsferry. Oxford University Press, Oxford

Climate Change and the Individual in the UK

149

Hunter D, Salzman J (2007) Negligence in the air: the duty of care in climate change litigation. Univ Pa Law Rev 155(6):1741–1794 Jones N (2016) Wind energy and adverse visual-impact litigation: a balance of global and local interests? Climate Law 6:336–352 Kaminskaite-Salters G (2011) Climate change litigation in the UK: it’s feasibility and prospects. In: Faure M, Peeters M (eds) Climate change liability. Edward Elgar Publishing Limited, Cheltenham Knox J (2018) Report of the special rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (UN General Assembly 2018) A/HRC/37/59 Kysar D (2011) What climate change can do about tort law. Environ Law 41:1–71 Law Commission (2014) Fiduciary duties of investment intermediaries Lobo G (2017) Access to justice: cold freeze ahead for environmental claims. e-law May/June 2017 Lockwood M (2013) The political sustainability of climate policy: the case of the UK Climate Change Act. Global Environ Change 23:1339 Lunney M, Nolan D, Oliphant K (2017) Tort law: text and materials. Oxford University Press, Oxford Macrory R (2009) The courts and the environment. In: Macrory R (ed) Regulation, enforcement and governance in environmental law. Hart, Oxford Marjanac S, Patton L (2018) Extreme weather event attribution science and climate change litigation: an essential step in the causal chain? J Energy Nat Resour Law 36(3):265–298. 1 Markell D, Ruhl JB (2012) An empirical assessment of climate change in the courts: a new jurisprudence or business as usual. Fla Law Rev 64:15 McHarg A (2011) Climate change constitutionalism? Lessons from the United Kingdom. Climate Law 2:469 McMaster P (2008) Climate change—statutory duty or Pious hope? J Environ Law 20:115 Merkin R, Steele J (2013) Subrogation. In: Merkin R, Steele J (eds) Insurance and the law of obligations. Oxford University Press, Oxford Peel J, Osofsky HM (2015) Climate change litigation. Cambridge University Press, Cambridge Peel J, Osofsky HM (2018) A rights turn in climate change litigation? Transnational Environ Law 7:37 Penalver EM (1998) Acts of god or toxic torts – applying tort principles to the problem of climate change. Nat Resour J 38:563 Reid C (2012) A new sort of duty?: The significance of “Outcome” duties in the climate change and child poverty acts. Public Law:749 Richardson BJ (2017) Divesting from climate change: the road to influence. Law Policy 39:325 Ruhl JB (2014) Climate adaptation law. In: Gerrard MB, Freeman J (eds) Global climate change and law. ABA Press, Chicago Shue H (2017) Responsible for what? Carbon producer CO2 contributions and the energy transition. Clim Change 144:591 Stallworthy M (2009) Legislating against climate change: a UK perspective on a Sisyphean challenge. Modern Law Rev 72:412 Stech R, Tripley D, Lee R (2009) Costs barriers to environmental justice. Environmental Law Foundation, Worcestershire Van Zeben J (2015) Establishing a governmental duty of care for climate change mitigation: will Urgenda turn the tide? Transnational Environ Law 4:339 Weinbaum A (2011) Unjust enrichment: an alternative to tort law and human rights in the climate change context. Pacific Rim Law Policy J 20:429 Wood MC (2014) Nature’s trust: environmental law for a new ecological age. Cambridge University Press, Cambridge

150

K. Bouwer

Cases Ashgar Leghari v. Federation of Pakistan (W.P. No. 25501/2015) Austin v Miller Argent [2014] EWCA Civ 1012 Breyer Group plc and others v Department of Energy and Climate Change [2015] EWCA Civ 408 Capital Countries v Hampshire County Council [1977] QB 1004 City of New York v BP p.l.c (2018) 18 Civ. 182 City of Oakland v BP plc 3:17-cv-06011 (2018) Comer v. Murphy Oil USA, 585 F.3d 855, 880 (5th Cir. 2009) Comer v Murphy Oil USA, Inc 839 F. Supp. 2d 849, 855-62 (S.D. Miss. 2012) Commissioner of Police of the Metropolis v DSD and another [2018] UKSC 11 East Suffolk Rivers Catchment Board v Kent [1941] AC 74 Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 Frackman v Secretary of State CLG [2017] EWHC 808 Goldfinch (Projects) Limited v. National Assembly for Wales [2002] EWHC 1275 Harvard Climate Justice Coalition v President & Fellows of Harvard College (2016) 90 Mass. App. Ct. 444 Juliana v United States, Case No. 6:15-cv-01517-TC, 2016 WL 6661146 (D. Or. Nov. 10, 2016) Lynn and Gonzalez v Peabody Energy 2015 4:15CV00916 AGF Marcic v Thames Water Utilities Ltd [2003] UKHL 66; [2004] 2 AC 42 Massachusetts v EPA 549 US 497 (2007) Morgan and Baker v Hinton Organics [2009] EWCA Civ 107 Native Village of Kivalina v Exxonmobil Corp 696 F.3d 849 (9th Cir. 2012) Pugh v Secretary of State for Communities and Local Government [2015] EWHC 3 R (Homesun Holdings Ltd) v Secretary of State [2012] EWCA Civ 28 R (Littlewoood) v Bassetlaw District Council [2008] EWCA Civ 1611 R (London Borough of Hillingdon) v Secretary of State for Transport [2010] EWHC 626 (Admin) R (People & Planet) v HM Treasury [2009] EWHC 3020 (Admin) R (Plan B Earth and others) v SoS for BEIS [2018] EWHC 1892 (Admin) Royal Society for Protection of Birds, Friends of the Earth & ClientEarth v Secretary of State for Justice [2017] EWHC 2309 (Admin) Sienkiewicz v Grief (UK) Ltd [2009] EWCA Civ 1159 Solar Century Holdings v Secretary of State [2016] EWCA Civ 117 Urgenda Foundation v the Kingdom of the Netherlands ECLI:NL:RBDHA:2015:719 Walton v Scottish Ministers [2012] UKSC 44 Wigan Metropolitan Borough Council v. Secretary of State for the Environment Transport and Regions [2001] EWHC Admin 587 Wildland Ltd and the Welbeck Estates v Scottish Ministers [2017] CSOH 113

Legislation and Treaties Climate Change Act 2008 Equality Act 2010 Flood and Water Management Act 2010 Human Rights Act 1998 Land Drainage Act 1991 Paris Agreement 2015 Senior Courts Act 1981 Aarhus Convention 1995

Climate Change and the Individual in the UK

151

Kim Bouwer  is a Lecturer in Law at the University of Exeter. She was previously a Max Weber Fellow at the European University Institute (Florence), a Lecturer at the University of Strathclyde (Glasgow), and a Teaching Fellow at UCL (London and Adelaide). Kim is also qualified as a lawyer and has experience of practice in London and Johannesburg. Kim’s research interests include multilevel climate law—with a particular interest in climate litigation—energy and environmental law, law and decolonisation, and private law. She is currently working on a monograph about climate litigation, under contract with Cambridge University Press.

Climate Change Litigation in Canada Catherine Choquette, Dustin Klaudt, and Laura Shay Lynes

Abstract  This chapter explores how Canada’s bijural legal system, constitutional human rights, international commitments on climate change, and its relationship with its Indigenous Peoples present both obstacles and opportunities for individual Canadians when it comes to climate change litigation. Canada is culturally and geographically diverse, with a population of 37,894,799 (“Q1 2020”, “Population estimates, quarterly”, Statistics Canada, online: https:// www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=1710000901) and total area of 9,984,670 km (second largest in the world) (“Geography”, Statistics Canada, online: https://www150.statcan.gc.ca/n1/pub/11-402-x/2011000/chap/geo/geo-eng.htm). Canada is also a major contributor to global greenhouse gas emissions, ranking high in historical emissions and current overall and per capita emissions (11th globally for overall emissions) (“Global greenhouse gas emissions”, Government of Canada (15 April 2020), online: https://www.canada.ca/en/environment-climate-change/ services/environmental-indicators/global-greenhouse-gas-emissions.html). Canadians face varied climate change impacts. They have already experienced extreme weather including costly wildfires, droughts, and floods. Several Canadian sub-populations, including its Indigenous Peoples (amongst them Arctic-dwellers), are particularly vulnerable, facing potentially cataclysmic destruction of their traditional homelands, traditions, and culture.

This chapter reflects legislative and jurisprudential developments and academic literature in September 2018. Further developments that have taken place since then are not reflected in the chapter. C. Choquette Université de Sherbrooke, Sherbrooke, QC, Canada e-mail: [email protected] D. Klaudt Robert Fleming Lawyers, Vancouver, BC, Canada L. Shay Lynes (*) The Resilience Institute for Climate Adaptation, Canmore, AB, Canada e-mail: [email protected] © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_8

153

154

C. Choquette et al.

There are no current environmental protection rights in Canada’s Constitution, however, there are national and sub-national climate plans and legislation seeking climate change mitigation and adaptation. Canada’s federalism system, with a division of powers between its national and provincial governments, complicates the ability to comprehensively tackle climate change, and has led to historical and current lags in Canada’s response to climate change. Despite these legal obstacles, there remains several climate litigation avenues that individual Canadians might take up, potentially using constitutional, international, common, or civil law to accomplish necessary greenhouse gas emission reductions domestically in Canada.

1 Introduction Unlike many countries, there is no form of environmental protection expressly listed in Canada’s Constitution, including in its bill of rights—the Canadian Charter of Rights and Freedoms.1 As a federation, the Canadian Constitution provides for the division of powers between the federal Parliament and the ten provincial legislatures,2 yet there is no express delineation of authority over the “environment” to either the federal or provincial governments. Instead regulation over the environment is based on numerous listed powers. There are some powers that directly reference geographic features or natural resources that are used to enable environmental regulation, however, most often, general powers such as the federal power over the criminal law and the provincial power over “property and civil rights” are used.3 This has resulted in concurrent federal and provincial

 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 [“Canadian Charter”]. 2  The division of powers is under sections 91 and 92 of the Constitution Act, 1867 (formerly called the British North America Act, 1867, 30–31 Vict., c. 3 (U.K)). 3  Federal powers that may touch on the environment include powers in section 91 over “the regulation of trade and commerce”, “the raising of money by any mode or system of taxation”, “navigation and shipping”, “sea coast and inland fisheries”, “ferries”, “Indians, and lands reserved for the Indians”, the “criminal law”, and “laws for the peace, order, and good government of Canada”, in relation to all unenumerated powers (section 91 preamble). Provincial powers in section 92 include “direct taxation within the province in order to [raise] revenue for provincial purposes”, “the management and sale of public lands belonging to the province and the timber and wood thereon”, “local works and undertakings”, “property and civil rights in the province”, “all matters of a merely local or private nature in the province”, “exploration for non-renewable natural resources in the province” (section 92A(1)(a)), and the “development, conservation and management” of “nonrenewable natural resources and forestry resources in the province” and “sites and facilities…for the generation and production of electrical energy” (section 92A(1)(b)-(c)). For reference to the roles of the federal “criminal law” and provincial “property and civil rights” powers, see R v Hydro-Québec, [1997] 3 SCR 213, 1997 CanLII 318 (SCC) at para. 154. One appellate court found that “GHGs are harmful to both health and the environment and as such, constitute an evil that justifies the exercise of the criminal law power”, see Syncrude Canada Ltd v Canada (Attorney General), 2016 FCA 160 [“Syncrude”] at para. 62. See Bélanger (2011) for more details. 1

Climate Change Litigation in Canada

155

jurisdiction regulating the environment. Coupled with a high degree of uncertainty about specific regulatory authority, there is a lacunae in regulating many environmental areas, which includes regulation of greenhouse gases (GHGs).4 There is the potential for further litigation to clarify the future scope of federal and provincial authority to regulate GHGs.5 Canada shares multiple legal systems. The province of Quebec has a civil law system inherited from France for provincial laws, whereas the rest of the Canadian provinces share the English common law. Individuals in Quebec, however, like all other Canadians, remain subject to federal laws and provincial administrative laws which follow a more British tradition.6 Canada has a dark and complicated history regarding its relationship with its Indigenous Peoples.7 Since contact between the colonial powers and Canada’s Indigenous Peoples, oppression and indignity have occurred, the remnants of which are still pervasive in Canada today8 though recently there have been efforts by the federal and provincial governments towards reconciliation.9 One outcome of these efforts is that the Canadian Constitution now recognizes “existing aboriginal and treaty rights of the aboriginal peoples of Canada”.10 A Truth and Reconciliation Commission was also established, whose findings now act as a guide for Canadians 4  GHGs include carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), halocarbons (including hydrofluorocarbons (HFCs) and perfluorocarbons (PFCs)), sulfur hexafluoride (SF6), ozone (O3), and water vapour. See “Definition of Terms Used Within the DDC Pages”, Intergovernmental Panel on Climate Change, online: https://www.ipcc-data.org/guidelines/pages/glossary/glossary_ fg.html. 5  There is an ongoing dispute between the federal and provincial governments of Saskatchewan and Ontario over federal authority to implement a national carbon price that has led to a constitutional reference case, currently before the Saskatchewan Court of Appeal, to clarify the division of powers in relation to carbon pricing. 6  Brun et al. (2014), p. 1666. 7  The term “Indigenous” is broadly used to classify people in international treaties such as the United Nations General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, A/RES/61/295 (2007) [“UNDRIP”] and the Paris Agreement, CP Dec 1/CP.21, 21st Sess (2016) FCCC/CP/2015/10/Add.1 (entered into force 4 November 2016) [“Paris Agreement”] despite not having consistent meaning internationally. In Canada, it refers to all First Peoples – First Nations, Metis, and the Inuit. 8  Indigenous Peoples were banned from practicing their culture, speaking their language, living on the land they had occupied for thousands of years, and their children were removed and sent to residential schools. The damages caused from being placed in residential schools resulted in Canada’s largest class action settlement. Galloway, Gloria, “Court approves class-action lawsuit for Indigenous students who say they were abused at day schools”, The Globe and Mail, (8 July 2018), online: https://www.theglobeandmail.com/canada/article-court-approves-class-action-lawsuit-for-indigenous-students-stripped. 9  In Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12 [“Daniels”] at para. 37: “The constitutional changes, the apologies for historic wrongs, a growing appreciation that Aboriginal and non-Aboriginal people are partners in Confederation, the Report of the Royal Commission on Aboriginal Peoples, and the Final Report of the Truth and Reconciliation Commission of Canada, all indicate that reconciliation with all of Canada’s Aboriginal peoples is Parliament’s goal”. 10  See section 35 of the Constitution Act, 1982.

156

C. Choquette et al.

Table 1  GHG emissions (provincial CO2 equivalent emissions per capita—2015)a

British Columbia Alberta Saskatchewan Manitoba Ontario Quebec Newfoundland and Labrador New Brunswick Nova Scotia Prince Edward Island Yukon Northwest Territories Nunavut Canadian total

Emissions 61 274 75 21 166 80 10.3

Emissions per capita 13.03 65.29 66.16 16.24 12.04 9.68 19.52

753871 943002 146447

14 16 1.8

18.57 16.97 12.29

1.94% 2.22% 0.25%

37428 44088

0.3 1.4

8.02 31.75

0.04% 0.19%

0.6 721.4

16.25 20.12

0.08% 100.00%

Population 4683139 4196457 1133637 1293378 13792052 8263600 527756

36919 35851774

Percentage of Canadian emissions 8.46% 37.98% 10.40% 2.91% 23.01% 11.09% 1.43%

“Table 1.1-1: Annual population estimates, July 1, national perspective - Population”, Statistics Canada (27 November 2015), online: https://www150.statcan.gc.ca/n1/pub/91-215-x/2015000/ t002-eng.htm. “National inventory submissions 2017  - Canada”, UN Climate (13 April 2017), online: http://unfccc.int/national_reports/annex_i_ghg_inventories/national_inventories_submissions/items/10116.php, p. 27

a

in reconciliation within Aboriginal families, and between Aboriginal peoples and non-Aboriginal communities, churches, governments, and Canadians generally”.11 Future reconciliation could involve the recognition of Indigenous cultural rights, customary law, and self-governance. Within this legal and cultural context, there are both opportunities and challenges for Canada to effectively respond to the global problem of climate change. In terms of its international scale of emissions, Canada is ranked 11th in 2016 for emitting nations globally, contributing approximately 1.5% of global emissions.12 Canada also ranks high globally in per capita emissions.13 Table  1 represents Canadian GHG emissions for each province and territory.  Truth and Reconciliation Commission of Canada, online: http://www.trc.cahttp://www.trc.ca.  See Canada, Environment and Climate Change & Environment and Climate Change Canada. “Global greenhouse gas emissions” (15 April 2020), online: https://www.canada.ca/en/environment-climate-change/services/environmental-indicators/global-greenhouse-gas-emissions.html. 13  In 2014, according to the World Bank, Canadian per capita emissions of 15.1 tons of CO2 carbon equivalent ranked Canada 16th in per capita emissions. See “CO2 emissions (metric tons per capita)”, The World Bank, online: https://data.worldbank.org/indicator/EN.ATM.CO2E.PC?year_high_desc= true. 11 12

Climate Change Litigation in Canada

157

This chapter will explore the paths available to individuals to promote positive climate outcomes through domestic legal mechanisms. It will describe the viability of actions against state agents and other private entities. It will also consider a variety of substantive legal areas and their relationship to climate change, including international law, constitutional and human rights law, judicial review using administrative law, and private law actions. Throughout each area of analysis, attention will be given to considerations unique to the English majority regions of Canada, the province of Quebec, and for Canada’s Indigenous Peoples.

2 Canada and the International Climate Change Agenda Canada’s commitment to international treaties aimed at addressing climate change has been inconsistent. In 2002, Canada committed, through the Kyoto Protocol,14 to cutting its total emissions of GHGs by an average of 6% below 1990 levels by 2012,15 but in December 2011 the federal government officially notified the United Nations Framework Convention on Climate Change (UNFCCC) body that Canada would exercise its legal right to withdraw from the Kyoto Protocol.16 Then, in 2016 a new federal government ratified the Paris Agreement and with that committed to undertake GHG reductions of 30% below 2005 levels by 2030—which represents a 291Mt reduction.17 The federal government has also ratified multiple other important environmental protection treaties…, which indirectly contribute to the reduction… or memoranda of understanding (MOU) all contributing to the reduction of GHGs.18 Following the Paris Agreement, Canada, Mexico, and the United States (US), in a MOU, signaled

 United Nations Framework Convention on Climate Change, 9 May 1992, 1771 UNTS 107, 31 ILM 849 (entered into force 21 March 1994) [UNFCCC]/Kyoto Protocol to the United Nations Framework Convention on Climate Change, 11 December 1997, 2303 UNTS 148, 37 ILM 22 (entered into force 16 February 2005) [Kyoto Protocol] 15  “A Climate Change Plan for the Purposes of the Kyoto Protocol Implementation Act”, Government of Canada, (May 2009), online: https://www.ec.gc.ca/doc/ed-es/KPIA2009/s1_ eng.htm. 16  Turp v Canada, 2012 FC 893 [“Turp”] at para. 11 17  Canada’s Fourth Biennial Report on Climate Change, Government of Canada, (2019), online: https://unfccc.int/sites/default/files/resource/br4_final_en.pdf, pp. 6 and 28–29. 18  These include the 1985 Vienna Convention for the Protection of the Ozone Layer, 22 March 1985, 1513 UNTS 293 (entered into force 22 September 1988 for the Protection of the Ozone Layer and its 1987 Montreal Protocol o n Substances that Deplete the Ozone layer, 16 September 1987, 16 I.L.M. 1541, which aim to control ozone-depleting substances, namely halocarbons, such as HFCs, as well as chlorofluorocarbons (CFCs), halons, methyl bromine, and hydrochlorofluorocarbons (HCFCs). See “About Montreal Protocol”, United Nations Environment, online: https:// www.unenvironment.org/ozonaction/who-we-are/about-montreal-protocol. 14

158

C. Choquette et al.

their intent to reduce methane emissions from the oil and gas sector by 40 to 45% below 2012 levels by 2025.19

2.1 Action Against Government for Non-compliance with International Law The international instruments cited above do not include any direct enforcement mechanisms for individuals to hold Canadian governments accountable for its commitments. Moreover, as with most Commonwealth countries, Canada is a dualist state where international treaties are not directly installed in national law by ratification of international instruments20. There must be actions taken to incorporate international treaties within Canadian laws.21 Except for international customary law, Canadian courts are not allowed to apply international law without its direct enactment domestically.22 As international climate change obligations are ultimately implemented through federal or provincial legislation or regulations, individuals claiming violations of international treaties must challenge the implementing legislation, regulations, policies, or enforcement actions of the regulating governments or their agents.

2.2 Case Law Involving International Law Obligations Two judicial reviews attempted to force the federal government to fulfill its international obligations under the Kyoto Protocol. A law implementing the Kyoto Protocol, the Kyoto Protocol Implementation Act,23 was enacted by a minority Parliament seeking to compel the federal government to honor its international emissions reduction commitments. In 2010, Friends of the Earth launched a lawsuit

 “MOU among the Department of Energy of the USA and the Department of Natural Resources of Canada and the Ministry of Energy of the United Mexican States concerning climate and energy collaboration”, Government of Canada, (ratified 12 February 2016), online: https://www.nrcan. gc.ca/energy/international/nacei/18102. The MOU’s s. 7 states that it does not impose any legally binding obligations. 20  Kazemi Estate v Islamic Republic of Iran, 2014 SCC 62 (Kazemi) at para. 149. 21  Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 1999 CanLII 699 (SCC) [“Baker”] at para. 69. 22  It should be noted, however, that legislation is presumed to conform with international law (treaties and custom), unless that international law is expressly rebutted by legislation, see Kazemi at para. 60. International human rights law also informs the minimum protection under the Canadian Charter, see Kazemiat para. 150. 23  Kyoto Protocol Implementation Act, S.C. 2007, c. 30 [“KPIA”]. 19

Climate Change Litigation in Canada

159

against the federal government, alleging a violation of the KPIA.24 The KPIA mandated that the Minister of the Environment “shall” prepare a Climate Change Plan that includes measures to be taken “to ensure” that Canada meets its obligations under the Kyoto Protocol.25 The Federal Court concluded that a court could enforce clear mandatory elements of the KPIA, such as the procedural element of delivering a Climate Change Plan, but the term to “ensure” used in the provisions regarding meeting Kyoto Protocol obligations did not give rise to a justiciable mandatory duty to act but rather created “a comprehensive system of public and Parliamentary accountability as a substitute for judicial review”.26 But more importantly, the court also declared that, in any case, the federal government could not unilaterally ensure Kyoto Protocol compliance and that it had no control over provincial cooperation.27 In 2012, Daniel Turp, a professor of law, applied for judicial review of the decision made by the federal government to withdraw from the Kyoto Protocol in pursuant to its article 27.28 As explained by the Federal Court: “under the royal prerogative, the conduct of foreign affairs and international relations, including the decision to conclude or withdraw from a treaty, falls exclusively under the executive branch of government”.29 The Court held that “the KPIA does not expressly alter the royal prerogative and that no provision or condition of the Act does so by necessary implication”.30 Further, the Court held that the withdrawal from the Kyoto Protocol did not violate the separation of powers because the executive branch had maintained its prerogative to withdraw from the Kyoto Protocol, and “this application of the prerogative is not justiciable (…) nor are issues regarding compliance with the Kyoto Protocol”.31 The KPIA was later repealed by the federal Parliament.32 Finally, the Federal Court also concluded that the withdrawal from the Kyoto Protocol did not violate the democratic principle, because the federal government was not bound to consult the House of Commons before withdrawing from the Kyoto Protocol.33 These two cases demonstrate that although within our legal system an individual could bring a case against the government for allegedly not complying with its international climate change obligations, the issue would be linked to the terms of the implementing domestic legal enactments and subject to the considerations of the  Friends of the Earth v Canada, 2008 FC 1183 [“FOE”].  FOE at para. 32. 26  ibid at paras. 34 and 44. 27  ibid at paras. 35 and 45. The Federal Court of Appeal later affirmed this decision, in Friends of the Earth v Canada (Environment), 2009 FCA 297, and the Supreme Court of Canada denied leave to appeal, Friends of the Earth - Les Ami(e)s de la Terre v Minister of the Environment and Governor in Council, 2010 CanLII 14720 (SCC). 28  Turp at paras. 10–11. 29  ibid at para. 18. 30  ibid at para. 26. 31  ibid at para. 28. 32  ibid. 33  ibid at para. 31. 24 25

160

C. Choquette et al.

justiciability of policy decisions around climate change and the royal prerogative of the federal government in international treaty-making.

3 Human Rights in Canada and the International Climate Change Agenda The prime source of human rights obligations in Canada is the Canadian Charter. Enacted in 1982, the Canadian Charter forms the first part of the Canada’s Constitution Act, 1982 (Constitution). It applies to all levels of government.34 Previously, in 1976, a quasi-constitutional law was enacted, in the province of Quebec called the Quebec Charter of Human Rights and Freedoms (Quebec Charter).35 The Quebec Charter cannot contradict the Canadian Charter, but its provisions take precedence over all other Quebec laws unless clearly specified otherwise.36 While the application of the Canadian Charter is limited to legislation and actions involving the state, the Quebec Charter applies to the public and private sectors.37 It is notable that Canada has ratified many international human rights treaties, however, the obligations in those treaties are not directly applied, but rather implemented by Courts through the Canadian Charter’s and other human rights legislation’s interpretation.38

3.1 Action Against Public or Private Entities for Non-­compliance with Human Rights Obligations in International Law To date, there does not appear to be any successful actions against either a public or private party under human rights obligations found in international law. The attempt to hold Canada accountable for climate change harms in international fora has not

 The Canadian Charter section 32 states that it applies to “the Parliament and government of Canada in respect of all matters within the authority of Parliament…and…to the legislature and government of each province in respect of all matters within the authority of the legislature of each province”. Local governments are bound by the Canadian Charter as they derive their authority from provincial legislation. 35  Quebec Charter of Human Rights and Freedoms, C.Q.L.R. c. C-12. See Samson and Brunelle (2011). 36  Quebec Charter, art. 52 and 53. 37  Quebec Charter, art. 54, 134 and 135. Only the Quebec Charter equality rights (ss. 10–19 and 48) apply to the private sector. 38  “Human rights treaties”, Government of Canada, (25 January 2019), online: https://www.canada. ca/en/canadian-heritage/services/canada-united-nations-system/treaties.html. For the role of international law in the interpretation of the scope of rights in the Canadian Charter, see Kazemi at para. 150. 34

Climate Change Litigation in Canada

161

succeeded as shown by the Arctic Athabaskan peoples petition to the Inter-American Commission on Human Rights.39 Recently, however, claims for civil damages resulting from a corporation’s alleged breaches of customary international law and jus cogens, survived a procedural motion to strike. In Araya, an appellate court affirmed that arguments based on corporate actors’ violations of customary international law were not “bound to fail” and should proceed in the trial process.40 If climate change human rights violations reach customary international law or jus cogens status, then potentially a new line of civil actions might arise.

3.2 Action Against Public or Private Entities for Non-­compliance with Domestic Human Rights Law There have been no successful actions using the Canadian Charter or Quebec Charter that specifically deal with government climate change policies. Further, there have been no direct challenges brought seeking to utilize human rights obligations to compel further government action.41 The Turp decision notably alluded to the potential of Canadian Charter arguments being raised in the climate change policy context.42 There are multiple different human rights grounds found in the Canadian Charter, Constitution, and Quebec Charter that could potentially find application in Canadian litigation to redress climate change. 3.2.1 Human Rights Directly Protecting the Environment Quebec Charter, Article 46.1: Right to a Healthful Environment That Preserves Biodiversity Environment protection is not a right recognized by the Canadian Charter, but it is in Article 46.1 of the Quebec Charter, which since 2006 specifically addresses the subject of the environment:  “Petition to the Inter-American Commission on Human Rights Seeking Relief From Violations of the Rights of Arctic Athabaskan Peoples Resulting From Rapid Arctic Warming and Melting Caused By Emissions of Black Carbon by Canada”, Inter-American Commission on Human Rights, (23 April 2013), online: https://earthjustice.org/sites/default/files/AAC_ PETITION_13-04-23a.pdf. 40  Araya v Nevsun Resources Ltd, 2017 BCCA 401 [“Araya”] at para. 197. 41  The authors note that since finalization of this chapter several actions have been filed in Canada utilizing these obligations. Please review the Columbia University Law School Sabin Center for Climate Change Law’s Climate Change Litigation Database for Canada for more on these actions. See “Canada”, Sabin Center for Climate Change Law, online: http://climatecasechart.com/non-usjurisdiction/canada/?cn-reloaded=1. 42  Turp at para. 18. 39

162

C. Choquette et al.

Every person has a right to live in a healthful environment in which biodiversity is preserved, to the extent and according to the standards provided by the law.

Despite the recognition of a right to a “healthful environment”, the implementation remains limited because the provision includes the limitation of “to the extent and according to the standards provided by the law”. Further, the “right to a healthful environment” must be read in conjunction with the Quebec Charter’s article 52, which ensures the primacy of certain rights and freedoms. The “right to a healthful environment” is not included among those prioritized rights, as it is included in the “economic and social rights” section of the Quebec Charter. Therefore, the “right to a healthful environment” is not recognized as a fundamental right, which would be superior in its application to other provincial laws. However, article 46.1 has been used as a normative principle to interpret the application of Quebec laws and regulations in favor of the protection of the environment.43 Certain provinces and territories have legislation protecting procedural rights related to environmental decision-making.44 Though these rights do not rise to the level of substantive rights to a health environment, as if found in the Quebec Charter’s article 52, they nevertheless provide important rights that could help guide government policy on climate change. There is recent climate change litigation filed by Greenpeace Canada and Ecojustice Canada against the Ontario government seeking to enforce the procedural rights under the Ontario Environmental Bill of Rights.45 The new Progressive Conservative government under populist Premier Doug Ford has passed a regulation to end Ontario’s cap and trade program, which is said to violate the consultation rights owed to every person in that province. The lawsuit seeks, amongst other remedies, to quash the regulation as ultra vires the purpose of the Ontario Environmental Bill of Rights. 3.2.2 Other Human Rights Indirectly Protecting the Environment Canadian Charter, Section 7; Quebec Charter, Article 1: Life, Liberty and Security of the Person Section 7 of the Canadian Charter states: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. Article 1 of the Quebec Charter echoes  SM Construction inc. c Directeur des poursuites criminelles et pénales, 2016 QCCS 4350 at paras. 33–34. See also Gourde (2010). 44  See the Ontario Environmental Bill of Rights, 1993, S.O. 1993, c. 28, the Northwest Territories Environmental Rights Act, S.N.W.T. 2019, c. 19, the Nunavut Environmental Rights Act, R.S.N.W.T. (Nu.) 1988, c. 83, and the Yukon Environment Act, R.S.Y. 2002, c. 76. See also Boyd (2012), p. 61. 45  See Cornwell, Steve, “Greenpeace takes Ontario to court for unlawfully cancelling cap and trade program”, Greenpeace Canada, (11 September 2018), online: https://www.greenpeace.org/canada/ en/press-release/4414/greenpeace-takes-ontario-to-court-for-unlawfully-cancellingcap-and-trade-program/. 43

Climate Change Litigation in Canada

163

this protection by stating: “Every human being has a right to life, and to personal security, inviolability and freedom”. It is conceivable that future litigation could establish that environmental protections, and specifically climate change mitigation and adaptation, are necessary to prevent the loss of life, liberty, and human well-­ being. In Canada, litigation seeking to recognize this class of rights has been brought unsuccessfully in various contexts, including nuclear energy, wind energy, noise pollution, waste incineration, and oil and gas extraction.46 Pending actions before Canadian courts are attempting to establish section 7 claims relating to mercury pollution on the Grassy Narrows First Nation, air pollution in the Aamjiwnaang First Nation due to neighbouring chemical refineries in what is known as the “Chemical Valley”, and potential for increased exposure to toxic industrial sulphur dioxide emissions in an ongoing environmental approval for a industrial project in Kitimat, British Columbia.47 Many scholars consider section 7 to be a particularly viable route to the recognition of environmental rights in Canada.48 Recent case law in Quebec, suggests that a person’s rights to life, personal security and inviolability should also generate an obligation for the state to implement measures that actively ensure the protection of such rights.49 Canadian Charter, Section 15; Quebec Charter, Article 10: Equality Rights Sub-section 15(1) of the Canadian Charter states: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”.  Energy Probe v Canada (Attorney General) (1989), 68 O.R. (2d) 449, 57 D.L.R. (4th) 513 (Ont. C.A.); “Dixon v Director, Ministry of the Environment, 2014 ONSC 7404; Dingeldein v Ontario (Ministry of Environment and Climate Change), [2015] O.E.R.T.D. No. 32 (Ont. Env. Rev. Trib.); 2015 CanLII 51502 (ON ERT); Mothers Against Wind Turbines Inc. v Ontario (Ministry of the Environment and Climate Change), [2015] O.E.R.T.D. No. 19; Robillard c Écoservices Tria inc., 2016 QCCS 6267; Coalition of Citizens for a Charter Challenge c Metropolitan Authority, [1993] 122 NSR (2d) 1 (SC), 1993 CanLII 4582 (NSSC); Manicom et al v County of Oxford et al, [1985] 52 OR (2d) 137 (SC), 1985 CanLII 2110 (ONSC)”; Domke v Alberta (Energy Resources Conservation Board), 2008 ABCA 232; Kelly v Alberta (Energy and Utilities Board), 2008 ABCA 52, appeal rejected 2009 ABCA 161. 47  See “Grassy Narrows sues Ontario over mercury health threat from clearcut logging”, Canadian Environmental Law Association, (14 September 2015), online: https://cela.ca/grassy-narrowssues-ontario-over-mercury-health-threat-from-clearcut-logging/. On Aamjiwnaang, see Lockridge v Ontario (Director, Ministry of the Environment), 2012, ONSC 2316 [“Lockridge”]. On the Kitimat approval, see Mesec, Daniel, “The fight for clean air in B.C.’s Kitimat Valley”, The Discourse, (18 July 2018), online: https://thediscourse.ca/uncategorized/ the-fight-for-clean-air-in-b-c-s-kitimat-valley?utm_source=CELL+Mailing+List&utm_ campaign=f21a9ccb78-CELL_e_Newsletter_2018_01_09_draft_COPY_01&utm_ medium=email&utm_term=0_5fdbc5a596-f21a9ccb78-108631625. 48  See Klaudt (2018), p. 232; Collins (2015), p. 529; Jefferies (2015), p. 1402; Nanda (2012), p. 110. 49  Thériault and Robitaille (2011), p. 211. 46

164

C. Choquette et al.

Article 10 of the Quebec Charter states: “Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, gender identity or expression, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap”. Building on principles from the environmental justice movement, namely that the distribution of environmental harms and benefits is unequal for certain disadvantaged social groups,50 equality rights might present a viable climate litigation basis. To do so would require evidence that the negative impact of government failures, that contribute to environmental harm and climate change, specifically effects certain disadvantaged groups. These negative effects will have some connection with the vulnerable groups’ status within a listed or analogous ground that is protected from discrimination. It will be necessary for litigants to show that government (in)action, around climate change mitigation or adaptation, has created some distinction that is based on one of the prohibited grounds of discrimination and that has the discriminatory impact of conveying or exacerbating a disadvantage for the group discriminated against.51 There are multiple grounds of discrimination that might lead to the creation or exacerbation of disadvantage caused by climate change. These include namely race, colour, ethnic or national origin, or social condition, as negative environmental burdens are generally inequitably distributed according to these markers. Another set of grounds are age and sex as negative environmental burdens are generally experienced with greater intensity depending on these markers. The inequalities themselves might take various forms such as different exposure to environmental burdens due to geographic location or proximity, different access to measures of environmental protection, different body burdens or effects from chronic pollution or climate harms exposure, and different capabilities to engage with environmental decision-making processes and prevent negative exposures.52 The Aamjiwnaang First Nation has sought environmental protection with section 15 in the past, however, there remains no Canadian court decisions where section 15 equality rights have been successfully used for environmental protection.53 Some other examples of potential litigants that may be well placed to bring an action include the Inuit, who could argue that inaction to mitigate GHGs conveys profound disadvantages on them as their Arctic homelands and cultural traditions disappear with the melting ice. Canadian youth might argue that inaction conveys greater disadvantages to them.

 See Chalifour (2015), pp. 94–95; Collins (2015), p. 529; Klaudt (2018), p. 221; Boyd (2011), pp. 110–117; Chalifour (2013), p. 183; Collins (2009), pp. 43–44; Thériault and Robitaille (2011), pp. 253–255. 51  Quebec (Attorney General) v Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17. 52  See Chalifour (2015), pp. 97–103 at para. 25; Klaudt (2018), pp. 222–227. 53  Lockridge at para. 6. 50

Climate Change Litigation in Canada

165

Finally, elderly Canadians might argue that they face increased challenges to their equitable access to good health with rising temperatures from climate change. The same reasoning applies with the Quebec Charter, once the conditions for the application of article 46.1 are met, article 10 equality rights could be used to challenge the prejudicial and inequitable effects of climate change on vulnerable groups. The scope of relief in the Quebec Charter may even be greater as it includes social condition, whereas the Canadian Charter does not, and those with socio-economic disadvantage are more likely to suffer climate change induced consequences.54 Quebec Charter, Article 6: Property Rights Unlike the Canadian Charter, the Quebec Charter, Article 6 provides that “every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by the law”. Environmental pollution can infringe upon this right. For example, this may be the case when environmental degradation leads to the loss of value in real estate or other personal property. The right to the peaceful enjoyment of one’s property has been successfully argued in Quebec courts to sanction illegally dumping of waste material on private land by a company,55 toxic substance pollution,56 and noise pollution.57 Canadian Charter, Section 2; Quebec Charter, Article 3: Freedoms of Expression and Religion The Canadian Charter and Quebec Charter contain in section 2 and article 3, respectively, freedoms of both expression and religion.58 Though neither freedoms have directly been argued in a climate change case, both remain potential avenues for a challenge, particularly given recent cases seeking to invoke their application in environmental matters. In the recent decision in Ernst, the Supreme Court of Canada rejected arguments that Canadian Charter damages must be protected from statutory exclusion, in the context of an individual seeking damages for breach of section 2(b) freedom of expression, alleged to have occurred when an energy regulator  Chalifour (2015), p. 93.  Consortium Delta inc. v Aménagement et drainage Vincent inc., 2012 QCCQ 6977. 56  Regroupement des citoyens du quartier St-Georges inc. c Alcoa Canada ltée, 2007 QCCS 2691; Spieser c Canada (Procureur général), 2007 QCCS 1207; Spieser c Canada (Procureur général), 2012 QCCS 2801 at paras. 700–711. 57  Voir Belmamoun c Ville de Brossard, 2017 QCCA 102; Carrier c Québec (Procureur général), 2011 QCCA 1231. 58  Section 2: “Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association”. Article 3: “Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association”. 54 55

166

C. Choquette et al.

barred complaints.59 In Ktunaxa, the Supreme Court of Canada rejected arguments that the approval of a ski resort by a government Minister violated Indigenous Peoples’ freedom of religion, where the land the ski resort was to be developed on was a site of religious significance.60 Though both claims failed they signal potential areas that may be relitigated and interesting rights based tensions that could similarly arise relating to climate change.61 There is a considerable degree of protest and civil disobedience emerging in Canada over planned new pipeline projects. There have been arrests of protestors seeking to block development of these pipeline projects as such conduct is often contemptuous of court injunctions to prevent such disruptions.62 A host of arguments might be raised that such arrests thwarting protest and civil disobedience might violate expressive freedoms. In an era where the climate crisis is so severe, courts may place greater future weight on exercises of expressive freedoms purporting to promote climate positive outcomes. This could give rise to some interesting necessity defenses being raised to criminal charges brought against climate protestors.63 The negative impacts of climate change could also arguably affect lands and other natural features to such a great extent as to interfere with genuine religious practice by Indigenous Peoples. This could be especially true for the northern Indigenous Peoples, such as the Inuit, whose culture and traditions are under jeopardy due to a rapidly changing landscape.64 Government authorizations that further contribute to climate change could infringe religious freedom much in the same way as was argued in Ktunaxa. Freedom of expression has also arisen as a value for consideration in the context of defamation claims brought by a prominent climate scientist and politician against climate skeptics. Freedom of expression as a Canadian Charter value must be weighed against the “sense of self-worth, as an aspect of personality, [which] is

 Ernst v Alberta Energy Regulator, 2017 SCC 1 [“Ernst”] at paras. 3 and 6.  Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations) 2017 SCC 54 at para. 8. 61  In Ernst the majority ruled on a narrow issue that one particular remedy for a Charter breach, Charter damages, was not necessary where an alternative remedy of judicial review was sufficient to uphold constitutional rights, see Ernst at para. 49. 62  Recently, there have been a high volume of arrests of protestors seeking to block development work on the Kinder Morgan Trans Mountain pipeline. See The Canadian Press, “More than 150 protesters arrested so far at Kinder Morgan terminals in Burnaby, B.C.”, The Globe and Mail (25 March 2018), online: https://www.theglobeandmail.com/canada/british-columbia/ article-more-than-150-protesters-arrested-so-far-at-kinder-morgan-terminals-in/. 63  For example, the recent necessity defense successfully raised in Massachusetts court by pipeline protesters. See Buncombe, Andrew “Protesters found not guilty because ‘climate change crisis’ made it ‘legally necessary’ for them to commit civil disobedience”, The Independent (27 March 2018), online: http://www.independent.co.uk/news/world/americas/pipeline-protesters-bostonprotest-not-guilty-climate-change-karenna-gore-mary-ann-driscoll-a8276851.html. 64  See Watts, Jonathan. “Arctic warming: scientists alarmed by ‘crazy’ temperature rises”, The Guardian, Mail (27 February 2018), online: http://www.theguardian.com/environment/2018/ feb/27/arctic-warming-scientists-alarmed-by-crazy-temperature-rises. 59 60

Climate Change Litigation in Canada

167

related to the innate worthiness and dignity of [an] individual” which a good reputation fosters.65 Defamation’s core function is to protect and vindicate that good reputation from unjustified harm.66 Where society increasingly recognizes the severity of the climate crisis, the expressive value of climate skepticism is likely to diminish and the likelihood of a successful defamation claim being brought against climate change detractors increases, when those detractors unjustifiably challenge climate science. The Quebec Charter’s religious and expressive freedoms could also be used in similar ways to promote climate positive outcomes in Quebec in similar situations of climate protest, protection of religious practices tied to nature, and protection of climate scientists’ reputations (and arguably the underlying climate science itself) from defamation. Constitution Act, 1982, Section 35: Aboriginal and Treaty Rights Within the Canadian Constitution, but outside the Canadian Charter, exist section 35 rights uniquely held by Canada’s Indigenous Peoples.67 Sub-section 35(1) states that “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”. These constitutionally protected rights of Indigenous Peoples take three forms. First, “Aboriginal rights” are recognized as those “practices, traditions and customs central to the aboriginal societies that existed in North America prior to contact with Europeans”.68 Examples of these judicially recognized “Aboriginal rights” have included the right to fish, hunt and trap.69 Second, treaty rights are defined by sub-section 35(3) to “include rights that now exist by way of land claims agreements or may be so acquired”. These are rights acquired through negotiation of agreements and can take on various forms, depending on the specific terms of an agreement.70 The third form of rights are those housed with “Aboriginal title”. Aboriginal title is a cluster of rights and obligations

 Weaver v Corcoran, 2017 BCCA 160 at para. 62. See also Weaver v Ball, 2018 BCSC 205 at para. 34. 66  ibid. 67  One practical significance of section 35 lying outside the Canadian Charter is that Canadian Charter rights under this section are subject to a distinct justification test that differs from the justification test for Canadian Charter rights found in section 1. For the section 35 justification test, see R v Sparrow, [1990] 1 SCR 1075, 1990 CanLII 104 (SCC) at paras. 71–83. For the section 1 justification test, see R v Oakes, [1986] 1 SCR 103, 1986 CanLII 46 (SCC) in [“Oakes”] at paras. 69–70. 68  R v Van der Peet, [1996] 2 SCR 507, 1996 CanLII 216 (SCC) at para. 44. 69  R. v Côté, [1996] 3 SCR 139, 1996 CanLII 170 (SCC) at para. 95; R. v Adams, [1996] 3 SCR 101, 1996 CanLII 169 (SCC) at para. 50. 70  There are multiple historic treaties negotiated prior to the enactment of section 35 as part of Canada’s constitutional repatriation project, and governments have since continued to negotiate new agreements with various Indigenous groups. For example, see First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58. 65

168

C. Choquette et al.

inuring to Indigenous Peoples around lands held in “‘occupation’ prior to assertion of European sovereignty”.71 Flowing from these rights, Canadian governments are honour-bound by important duties when exercising their powers. Where a government has “actual or constructive knowledge of a potential Aboriginal claim or Aboriginal or treaty rights that might be adversely affected by [government] conduct” the “duty to consult” is triggered.72 The contexts in which concerns over the duty to consult often arise involve government or regulatory agency approvals of projects impacting on Indigenous lands and resources. The Supreme Court of Canada recently clarified that this duty does not extend to situations where a government adopts legislation that has effects impacting on Indigenous rights.73 The second duty involved is the fiduciary duty of government “to act in the best interests of Aboriginal people in certain specific circumstances”.74 Those circumstances include where the government “exercise[es] discretionary control over specific Aboriginal interest[s]”.75 The substance of this duty requires “duties of loyalty, good faith and full disclosure” and a “standard of care…of a man of ordinary prudence in managing his own affairs”.76 Several authors have also stated that Indigenous rights contain elements of direct environmental protection rights.77 These potential environmental protections could be applied to the climate change crisis, where substantial impacts to lands and resources housed within Indigenous rights, occur due to climate change. A failure to consider concerns raised by Indigenous Peoples about climate changes effects on their interests, could trigger a violation of the duty to consult. If Canada’s climate  Tsilhqot’in Nation v British Columbia, 2014 SCC 44 at para. 25. A multi-factor test for establishing this form of right was established based on the presence of three characteristics: sufficiency, continuity, and exclusivity of the occupation. 72  Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 4 at para. 25. The duty to consult seeks to protect these rights while also furthering reconciliation between Indigenous Peoples and governments. The source of the obligation is government assumption of sovereignty over lands and resources formerly held by Indigenous Peoples (see para. 19). The content of the duty ranges from limited to deep consultation, depending on the strength of the Indigenous Peoples claim and the seriousness of the potential impact on their rights (see para. 20). 73  Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40. 74  Sniderman and Shedletzky (2014), pp. 8–9. 75  Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para. 18. 76  Williams Lake Indian Band v Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4 at para. 46. The government’s honour-bound fiduciary duty bears some resemblance to the “public trust doctrine” found in the US and other foreign jurisdictions. 77  Collins (2015), p. 526 “the existence of Aboriginal environmental rights in section 35… is now beyond dispute”, those rights are “meaningless without the environment that has supported them since time immemorial” and that the application of environmental values by the Supreme Court of Canada such as the precautionary principle in Haida and intergenerational equity in Tsilhqot’in may “encompass a relatively broad right to environmental quality”. Sniderman and Shedletzky argue that “Aboriginal peoples are among Canada’s most vulnerable to climate change and are owed stringent duties from the federal government, which suggests courts are more likely to recognize climate change as a threat to rights with respect to Aboriginal litigants”, see Sniderman and Shedletzky, at 1. 71

Climate Change Litigation in Canada

169

failures are found to negatively contribute to the realization of an Indigenous right, government failure to respond to concerns raised with adequate mitigation or adaptation measures could lead to a constitutional violation and a potential judicial review. In the recent Clyde River decision, the Supreme Court of Canada found there was defective consultation in the approval of seismic testing in waters adjacent to areas where the Inuit had treaty rights to harvest marine mammals.78 The Court found that the consultation process was “significantly flawed…[h]ad the appellants had the resources to submit their own scientific evidence, and the opportunity to test the evidence of the proponents, the result of the environmental assessment could have been very different…[n]or were the Inuit given meaningful responses to their questions regarding the impact of the testing on marine life”.79 The failure of the process to adequately assess the scientific impact on marine mammals was a critical flaw in the approval. Though the connection between harms to marine mammals and climate change is less localized than the understanding of the harm caused to the mammals by seismic testing, with time and scientific improvement, a case building on Clyde River might be made that climate change impacts on marine mammals must be considered where Indigenous hunting rights could be compromised. Similarly, in the recent Tsleil-Waututh Nation decision, the Federal Court of Appeal found that the federal government had violated the duty to consult in multiple ways regarding its approval of the controversial Trans Mountain pipeline.80 The consultation framework selected was “reasonable and sufficient”,81 however, in its execution it was “missing…a genuine and sustained effort to pursue meaningful, two-way dialogue”.82 The federal government failed to “discuss and consider possible flaws” in the environmental assessment process and in “held an erroneous view that it could not supplement or impose additional conditions on Trans Mountain”.83 The multiple First Nations involved in the consultation had “quite specific and focused” concerns that would have been “quite easy to discuss, grapple with and respond to”.84 These specific and focused concerns related to the potential for oil spills from the pipeline and inadequate mitigation measures to respond.85 In particular, the environmental assessment agencies’ failure to factor in potential risks related to project-­ related shipping of diluted bitumen was a valid concern.86  Clyde River at paras. 4 and 7.  Ibid at para. 52. 80  Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 153 at paras. 753–763. 81  ibid at para 753. 82  ibid at para. 756. 83  ibid at para. 760. 84  ibid at para. 763. 85  ibid at para. 649. 86  ibid at paras. 650–651 and 468–473. In addition to finding a violation of the duty to consult, the Federal Court of Appeal found that the exclusion of project-related marine shipping, as required by the Canadian Environmental Assessment Act, 2012, S.C 2012, c. 19 was an unjustifiable error, and lead to a failure to consider the Species At Risk Act, S.C. 2002, c. 29 and the likelihood of 78 79

170

C. Choquette et al.

Extending the principles from this decision, it may be possible to argue that where Indigenous Peoples raise concerns about the specific climate effects of a pipeline (or other large project) the government must engage in a meaningful two-way dialogue and consider potential climate mitigation options. The frequency of Indigenous Peoples raising these concerns will likely increase in the future given both their heightened susceptibility to negative climate impacts and the likely inclusion of climate change considerations as a factor in Canada’s revised environmental impact assessment legislation.87 These are only two of many possible scenarios where climate change manifests damage to resources protected by Indigenous rights which now arguably warrant heightened consultation and mitigation and adaptation efforts by the federal government. Another form of action that has arisen recently in Canada for the protection of Indigenous rights is cumulative impact claims. The arguments allege that the cumulative impacts of resource development, on lands where Indigenous rights are present, have “impaired the ability” “to meaningfully exercise Treaty rights”.88 This line of argument is novel and presently raised in the context of a challenge based on the duty to consult. The idea of cumulative impacts compromising the ability to exercise Indigenous rights, if recognized, could be applied more widely to secure environmental and climate positive outcomes. Where a government can be said to have permitted cumulative impacts that infringe on rights, it may be arguable that the core of the rights themselves are compromised and that government’s fiduciary duty is triggered. Once a direct factual link is established between government actions permitting emissions leading to climate change and infringements on the Aboriginal rights, courts might apply novel remedies to ensure governments are honoring their fiduciary duties and protecting Indigenous interests in the lands and resources that the governments hold stewardship over. There remains an open question to what extent Indigenous rights in the Constitution protect other notions beyond proprietary rights. It is arguable that to protect the “practices, traditions and customs central to the aboriginal societies”, it will require further protections for cultural or self-governance practices of Indigenous Peoples. In many Indigenous cultures, eco-centric paradigms and respect for the rights of non-human entities are utilized. Reconciliation with Indigenous Peoples may require legislative or judicial recognition of these novel modes of legal thinking. significant adverse effects on the endangered Southern resident killer whale. This second example of effects related to whales forming the basis of successful court challenges could be indicative that a challenge related to failures to mitigate climate change impacts on whales might be a viable route. 87  Bill C-69, Impact Assessment Act, 1st Sess, 42nd Parl. 2018 (third reading 20 June 2018) (“IAA”) proposes to add as a factor for consideration in impact assessment and public interest assessment, “the extent to which the effects of the designated project hinder or contribute to the Government of Canada’s ability to meet its environmental obligations and its commitment in respect of climate change”. 88  Blueberry River First Nation v British Columbia (Natural Gas Development), 2017 BCSC 540 [“Blueberry River First Nation”] at paras. 28 and 38.

Climate Change Litigation in Canada

171

A recent decision by the federal government to introduce new legislation that will give Indigenous Peoples in Canada more control over resolving disputes,89 may impact the legal landscape. This proposed legislation follows the federal governments’ earlier commitment to follow the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the enshrinement of UNDRIP into federal legislation in 2018. Other international law, such as the Paris Agreement might also provide ammunition for Indigenous Peoples to hold governments legally responsible for ensuring their voices are heard and that their rights are legally honored. Article 7.5 requires that “knowledge of [I]ndigenous [P]eoples and local knowledge systems” should guide adaptation efforts.90 Recognition of “the rights of Indigenous Peoples”, has led to the creation of the International Indigenous Peoples’ Forum on Climate Change (IIPFCC) and the newly adopted Local Communities and Indigenous Peoples’ Platform (LCIPP)91 under the Paris Agreement, which could further provide international fora for Canada’s Indigenous Peoples to voice their concerns about climate change. Remedies Available Under the Canadian Charter and the Quebec Charter A provision that violates the Canadian Charter, without justification, will be unconstitutional.92 The Canadian Charter, sections 24 and 52 permit judges to use various remedies for unconstitutional rights violations, including declarations of constitutional invalidity, severance, reading in or reading down to cure offending legislation, prohibitive or mandatory injunctions, or damages. The most common remedy for a constitutional violation is a suspended declaration of invalidity, that will delay the striking out of unconstitutional legislation for a period of time allowing governments to legislate constitutional solutions. As climate change is a problem often requiring positive action, a declaration’s utility is limited. Canadian litigants seeking relief will need to request remedies such as mandatory or structural injunctions to target specific changes and force governments to take action.93 Due to the likely complexity of a climate change action relying on human rights, it could be

 “Government of Canada to create Recognition and Implementation of Rights Framework”, Prime Minister of Canada, (14 February 2018), online: https://pm.gc.ca/en/news/newsreleases/2018/02/14/government-canada-create-recognition-and-implementation-rights. 90  Decision 1/CP.21, Adoption of the Paris Agreement. 2015. Article 7.5. 91  Decision CP.23, Local Communities and Indigenous Peoples’ Platform. 2017. 92  Oakes, at paras. 65–67 and 80. 93  These remedies have been used in some instances where constitutional rights are of a more positive nature, such as the rights to minority language education under section 23 of the Canadian Charter or section 35 Aboriginal rights and title under the Constitution. See for example the structural injunction granted at trial in the recent minority language rights matter of Conseil-scolaire francophone de la Colombie-Britannique v British Columbia (Education), 2016 BCSC 1764 at para. 6836. See also the structural injunction sought in Blueberry River First Nation at para. 41. 89

172

C. Choquette et al.

necessary for litigants to request that courts retain supervisory jurisdiction, so that government failures to implement court orders can be effectively monitored.94 Finally, the Canadian Charter and the Quebec Charter article 49 also allow damages.95 Where governments fail to mitigate or adapt to GHGs, damages might present a viable recourse both to compensate those whose rights are violated but also to add pressure for positive policy changes. The Quebec Charter which also applies to private parties, allows for similar remedies, however, it also leaves open the possibility of punitive damages, which are not available under the Canadian Charter,96 that could be used against polluters or heavy emitters.97 In Quebec, a recently authorized class action against Volkswagen Canada, concerning the diesel motor gas emission fraud scandal, is seeking punitive damages.98

4 Actions Against Private Entities to Promote the Climate Change Agenda There has only been one action in Canada directly against a private entity on the ground of climate change, Volkswagen, even though many other lawsuits might be indirectly related to climate change GHG mitigation or adaptation. Individual remedies against private entities rest mainly on common law, civil, and statutory law actions.

4.1 General Common Law and Civil Actions 4.1.1 Standing To bring a common law or civil action forward in Canada, an individual must have the required interest or standing. In Quebec, this means a sufficient legal interest which is usually very restrictive such as requiring a direct, personal, existing and actual interest in the dispute.99

94  For examples of judge’s retaining supervisory jurisdiction, see Doucet- Boudreau v Nova Scotia, 2003 SCC 62 at para. 88 and L’Association des parents de l’École Rose-des-vents v Conseil scolaire francophone de la Colombie-Britannique, 2012 BCSC 1614 at para. 161. 95  Vancouver (City) v Ward, 2010 SCC 27 paras. 19–20. 96  Ward at para. 56. 97  Quebec Charter, art. 49: “Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom. In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages”. 98  Association québécoise de lutte contre la pollution atmosphérique c Volkswagen Group Canada Inc., 2018 QCCS 174 [Volkswagen] at para. 5. 99  Renno (2017); Noël c Société d’énergie de la Baie James, 2001 SCC 39; Quebec Code of Civil Procedure, C.Q.L.R., c. C-25.01 (“CCP”), art. 85.

Climate Change Litigation in Canada

173

4.1.2 Injunctions An injunction is a court order that allows governments or individuals to prohibit a public or private actor from acting in a way or to mandate the performance of a specified act.100 The applicants must demonstrate the need for an injunction to prevent an action or operation that violates or potentially violates the exercise of a right and to prevent serious or irreparable prejudice.101 4.1.3 Quebec Civil Liability In Quebec, individuals may use extra-contractual liability or sometimes contractual liability actions against private actors. Extra-contractual liability is defined as “every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to cause injury to another”.102 This liability rests on the proof of fault. A plaintiff would have to prove that the private actor has acted not in accordance with the normal behavior of a “prudent and diligent actor placed in the same circumstances”.103 Fault could be, for example, the default by an industry of buying, maintaining, and inspecting the necessary equipment to reduce air pollution, noise, and smells,104 or the default for a municipality to maintain a dam.105 A fault could also rest on an abuse of rights. According to the Quebec Civil Code, “no right may be exercised with the intent of injuring another or in an excessive and unreasonable manner, and therefore contrary to the requirements of good faith”.106 In a climate change case, a plaintiff could raise various arguments including that GHG emitters have manipulated the scientific information, have spread false information or misleading advice, have voluntarily delayed green technologies, have put undue pressure on governments, or have abused their rights to pollute. When many actors contribute to air pollution, including the victims themselves (as car users, for example), it is a difficult task for a judge to allocate each actors percentage or portion of the liability. Once fault is established, a plaintiff then must prove damage. The actual and future damage must be certain and assessable.107 Based on the words “injury to another”, the Quebec Civil Code recognizes environmental damage when it is linked to the plaintiff or their property, such as contamination, inundation, or erosion. It does not explicitly recognize ecological damage like the disequilibrium of an  For example, see CCP art. 509.  ibid art. 511. 102  ibid art. 1457. 103  Baudoin et al. (2014) at, paras. 1–164. 104  Comité d’environnement de Ville-Émard (CEVE) v Domfer Poudres métalliques ltée, 2006 QCCA 1394. 105  Drouin v Sainte-Agathe-des-Monts, 2009 QCCS 603. 106  Civil Code of Quebec, C.Q.L.R., c. CCQ-1991:[“QCC”], art.7. 107  QCC art. 1611. 100 101

174

C. Choquette et al.

e­ cosystem, the change in water quality,108 or alterations of the climate unless direct personal repercussions are shown. Those damages are also generally not easily assessable. However, in Quebec and some common law provinces (Alberta and Ontario), the jurisprudence recognizes moral damages and allocates compensation for the sorrow and grief of survivors which are not as easy to assess. The last component to prove, on the balance of probabilities, is the causal link between the fault and the damage. In a climate change case, it is without doubt the biggest pitfall. The plaintiff must prove that the GHG emitters are not only significant contributors to climate change but also that the plaintiff’s damage is a result of climate change. Contractual liability might also be invoked, particularly in cases where climate change adaptation is needed. For instance, there are in Canada many inundation servitudes that were signed in relation to the operation of dams. The non-respect of the negotiated water levels by dam-owners opens the way for potential judicial recourse.109 4.1.4 Common Law Liability Outside Quebec: Tort Law Similar to the Quebec civil law system, the common law in the rest of Canada allows for tort law which also provides compensation for individuals who have been injured or whose property has been damaged by the wrongdoing of others. Most tort law is judicially created through the common law, but it can also originate in statutes which vary by province. Tort law covers intentional harms and negligence. In negligence, one important concept is that fault is based on the standard of the “reasonable person” and the biggest challenge facing a climate litigant is also the question of causation, as in civil law. The tort of public nuisance could also be invoked in a climate change case. Even if actions involving public rights are usually brought by the Attorney General or a designated representative of the patriae role,110 it can also be brought by an individual who has suffered “special harm”,111 which has traditionally been defined as a “particular, direct and substantial damage over and above that sustained by the public at large”.112 This raises the question of standing which has been criticized113 and might need to be expanded in some environmental cases.114 The “special harm” in a future climate change negligence case might be met by  Yergeau and Cattaneo (2005), p. 303; Olsen v Quebec, 2009 QCCS 2167 at para. 109.  Choquette et al. (2010), p. 827. 110  British Columbia v Canadian Forest Products Ltd., 2004 SCC 38 at paras. 108 and 111; Trachsler (2006), p. 14. 111  Gage (2013), p. 257. 112  Overseas Tankship (U.K.) Ltd. v Miller Steamship Co., [1967] 1 A.C. 617 (P.C.) at 635; Hickey et al v Electric Reduction Co. of Canada Ltd., [1970] 21 D.L.R. (3d) 368 (NL SC); 1970 CanLII 907 (NL SC) at 372. 113  Elgie and Lintner (2005), p. 223. 114  Gage (2008), pp. 47–51. 108 109

Climate Change Litigation in Canada

175

widespread property damage, the loss of life, or the damage to indigenous livelihoods or cultural practice. Proof of the causal link remains problematic in any event.

4.2 Special Statutory Remedies 4.2.1 Standing Some environmental laws have enlarged the concept of court standing to favor environmental protection. For instance, the interest required to bring proceedings under the Quebec Environment Quality Act rests on “any natural person domiciled in Quebec frequenting a place or the immediate vicinity of a place in respect of which a contravention is alleged”.115 Under this article, the Quebec Superior Court has recognized standing for an individual cycling regularly in the vicinity of a metal recycling facility.116 The Ontario Environmental Bill of Rights has also relaxed public nuisance standing to allow an individual to bring a public nuisance claim for economic loss even if the loss is not different from the loss suffered by the public at large.117 Under specific conditions (see below), the Canadian Environmental Protection Act will allow any resident in Canada above age 18 to take action regarding any offence under that Act.118 4.2.2 Injunctions An injunction may be permitted by statute. The Quebec Environment Quality Act states that “a judge of the Superior Court may grant an injunction to prohibit any act or operation which interferes or might interfere with the exercise of a right conferred by section 19.1”,119 which is mainly the “right to a healthy environment and to its protection, and to the protection of the living species inhabiting it” to the extent provided by the law.120 In 2014, an individual and environmental groups demanded an injunction against TransCanada Pipelines and Energy East regarding a drilling project in the Cacouna Bay in the St-Lawrence river.121 More specifically, they requested the stoppage of drilling and the suspension or cancellation of the certificate delivered by the Quebec Ministry of the Environment, which authorized  Quebec Environment Quality Act, C.Q.L.R., c. Q-2 (“EQA”), art. 19.3.  Association québécoise de lutte contre la pollution atmosphérique c Compagnie américaine de fer et métaux, 2006 QCCS 3949. 117  Ontario Environmental Bill of Rights, S.O. 1993, c. 28, s. 103. 118  Canadian Environmental Protection Act, 1999, S.C. 1999, c.33 (“CEPA”), s.17. 119  EQA, art. 19.2. 120  ibid art. 19.1. 121  Centre québécois du droit de l’environnement c Oléoduc Énergie Est ltée, 2014 QCCS 439: [“Oléoduc”]. 115

116

176

C. Choquette et al.

the exploratory activity for a future pipeline and harbor project in the Cacouna Bay.122 The petitioners argued that an injunction should be applied, because the sounds from the exploratory work done by TransCanada in the bay would have serious impacts on the local beluga whale population.123 The Quebec Superior Court granted an interlocutory injunction to temporary halt the drilling activity conducted by TransCanada based on the Minister’s unreasonable authorization.124 This type of injunction may be sought for a challenge to any regulations adopted under the Quebec Environment Quality Act such as the Regulation respecting greenhouse gas emissions from motor vehicles125 which prescribes maximum emission standards. In the instance of a failure to comply with such regulations, a person might bring an injunction against “the vehicle manufacturer or to the person who is entitled to use, in Quebec, the trademark, name or distinctive sign that identifies or is used to market the type of motor vehicle concerned” and demand a prohibition on selling the polluting cars in order to respect the norms.126 At the federal level, an individual who has suffered, or is about to suffer, loss or from a violation of the Canadian Environmental Protection Act, or its regulations, may seek an injunction.127 Many regulations are related to climate mitigation and adaptation under this legislation. 4.2.3 Liability In January 2018, a class action suit against Volkswagen Canada was certified by the Quebec Superior Court on behalf of all citizens of the province of Quebec under the Quebec Environment Quality Act and the Quebec Charter.128 According to the Court, there was no “appearance of right” for compensatory damages because the damage was either inexistent or hypothetical for non-owners of a diesel car.129 However, since Volkswagen admitted intentional fault for exceeding regulated standards, punitive damages could be granted under the Quebec Charter, available for the general population.130 It will be a notable and potentially precedent-setting case to follow. Water management is a very important issue directly related to climate change adaptation. In Canada, there is an impressive number of rivers, lakes, and reservoirs created by dams. Provincial laws usually provide for individuals to claim propriety damages from dam-owners when management faults are proven or even without

 ibid at paras. 11 and 28.  ibid at para. 38. 124  ibid at para. 115. 125  Regulation respecting greenhouse gas emissions from motor vehicles, C.Q.L.R., c. Q-2, r. 17. 126  ibid at s. 11. 127  CEPA, s. 39. 128  Volkswagen at paras. 85–86. 129  ibid at para. 38. 130  ibid at paras. 5 and 60. A sum of $35 per citizen living in Quebec between January 2009 and September 2015 is requested. 122 123

Climate Change Litigation in Canada

177

proven fault. In the Quebec Watercourses Act, “the owner or operator of any work constructed in a watercourse…is liable for any damage resulting therefrom to any person, whether by excessive elevation of the flood-gates or otherwise…The damage shall be assessed and the damages shall be determined by the Administrative Tribunal of Quebec”.131 This law forces dam-owners to adapt water levels to the new reality of climate change. Very few laws allow for the compensation of ecological damages. The Quebec Act to affirm the collective nature of water resources and to promote better governance of water and associated environments recognizes water damages but only the Attorney General can use the statutory remedy, it is unavailable for individuals seeking recovery.132 At the federal level, an individual who has suffered loss or damage from misconduct contemplated in the Canadian Environmental Protection Act, or its regulations, may also bring a civil action against the responsible person to obtain compensatory damages.133 4.2.4 Special Actions A very interesting type of action is the environmental protection action under the Canadian Environmental Protection Act.134 Any Canadian resident of age, who has applied for a government investigation concerning an alleged offence under the Canadian Environmental Protection Act may bring an environmental protection action if “the Minister failed to conduct an investigation and report within a reasonable time; or the Minister’s response to the investigation was unreasonable […] The action may be brought in any court of competent jurisdiction against a person who committed an offence under this Act that was alleged in the application for the investigation; and caused significant harm to the environment”.135 The action may seek: an interlocutory order; a declaratory order; an order to negotiate a plan to correct or mitigate the harm to the environment or to human, animal or plant life or health, and to report to the court on the negotiations; an order preventing continuation of an offence; or other appropriate relief, including the costs of the action, but not including damages.136 Many regulations taken under the Canadian Environmental Protection Act touch climate change mitigation and adaptation. Anti-competitive conduct may also be used in climate change cases. For example, in December 2015, Ecojustice, a Canadian non-profit organization promoting environmental protection, submitted a complaint to the Commissioner of

 Quebec Watercourses Act, C.Q.L.R., c. R-13, art.13. See Choquette et al. (2010), p. 827.  Act to affirm the collective nature of water resources and to promote better governance of water and associated environments, C.Q.L.R., c. C-62, art. 8. See Choquette (2012) for more details. 133  CEPA s. 40. 134  ibid at s. 22. 135  ibid at s. 22. 136  ibid at s. 22. 131 132

178

C. Choquette et al.

Competition requesting an inquiry under section 9(1) of the federal Competition Act.137 The complaint relied on civil and criminal prohibitions under sub-sections 52(1) and 74.01 of the Competition Act concerning false and misleading representations. According to the complainants, climate denial groups were using billboards, websites, and videos to disseminate misleading information about human-induced climate change to the Canadian population. The groups in question, Friends of Science Society, International Climate Science Coalition and Heartland Institute, are funded in part by companies in the oil and gas industry. The complaint described how this misleading information sows doubt in the public climate change discourse and reduces competition for carbon-intensive economic activities.138 In June 2017, the Commissioner discontinued the inquiry based, notably, on the available evidence and limited resources but was still “receptive to receiving any additional information” proving the anti-competitive conduct.139

5 Actions Against Public Entities to Promote the Climate Change Agenda There are few actions in Canada against a public entity on the ground of climate change, even though many lawsuits are indirectly related to climate change GHG mitigation or adaptation. Individual remedies against public entities, however, are available using administrative law, statutory law, and civil actions.

5.1 Administrative Law Remedies 5.1.1 Judicial Review For most projects with environmental risks in Canada, a provincial and/or a federal authorization must be issued either by the government or by the responsible minister depending on the importance or type of project.140 Since March 2018, when

 Competition Act, R.S.C., 1985, c. C-34.  See letter from Charles Hatt, “Re: False and misleading representations about the reality, causes and consequences of global warming and climate change, in contravention of the Competition Act”, Ecojustice (3 December 2015), online: https://ecojustice.ca/wp-content/ uploads/2015/12/2015-12-03-Application-to-Commissioner-of-Competition-re-Climate-science-misrepresentations-updated.pdf. 139  See letter from Josephine Palumbo, “Re: Discontinuance of an inquiry relating to Friends of Science Society, International Climate Science Coalition and Heartland Institute”, Competition Bureau Canada (29 June 2017) online: https://www.ecojustice.ca/wp-content/uploads/2017/08/201706-29-Ltr-from-Comp-Bureau-re-Inquiry-discontinued.pdf. 140  For example, see the Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19 (“CEAA”) ss. 52 and 54; EQA art. 22 and 31.1. 137

138

Climate Change Litigation in Canada

179

authorizing a project, the Minister of the Environment in Quebec, for example, must take into consideration, in prescribed cases, the emission of GHGs attributable to a project as well as the mitigation measures that a project might need.141 The Minister may also consider the anticipated risks and impacts of climate change on a project and the surrounding environment, the reduction measures that the project may need and the province’s GHG reduction target commitment.142 At the federal level, the new Bill C-69, the Impact Assessment Act specifies the impact assessment factors that must be taken into account which include: the extent to which the effects of the designated project hinder or contribute to the Government of Canada’s ability to meet its environmental obligations and its commitments in respect of climate change.143

When these requirements are not met, administrative law remedies could be pursued by individuals. For instance, they may seek in a court of general jurisdiction,144 judicial review of a decision authorizing a project or an action.145 Even though courts are generally deferential to the discretion of a governmental or ministerial decision authorizing a project, they will nevertheless examine the legality of the decision to certify that the decision is reasonable. Reasonableness has been defined as: the existence of justification, transparency and intelligibility within the decision-making process. It is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.146

In 2014, the judge in Oléoduc concluded that the petitioners gave sufficient evidence that the Quebec Environment Minister granted an unreasonable drilling authorization based on a lack of adequate information on potential impacts on the beluga whale population of the Saint Lawrence River. The Minister failed to explain in a reasonable way how and why the decision was reached.147 This pipeline project to transport the Alberta oil to the Atlantic Ocean was later abandoned. In Voters Taking Action on Climate Change v British Columbia (Energy and Mines), a case involving the authorization of an increase of coal storage, the British Columbia Supreme Court held that: “it does not engage the broader issue that the petitioner pursues: urging governments to take meaningful action to address

 EQA art. 24.  ibid.; Quebec GHG reduction targets are: −20% of the 1990 level for 2020, −37.5% of the 1990 level for 2030 and −80% to −95% of the 1990 level for 2050. See Engagements du Québec : Nos cibles de réduction d’émissions des GES, Développement durable, Environnement et Lutte contre les changements climatiques, online: http://www.mddelcc.gouv.qc.ca/changementsclimatiques/ engagement-quebec.asp. 143  IAA ss. 22 and 63. 144  For example, the Superior Court in Quebec, see CCP art. 528. 145  ibid art. 529(2). 146  Dunsmuir v New Brunswick, 2008 SCC 9 at para. 47. 147  Oléoduc at para. 109. 141 142

180

C. Choquette et al.

climate change”.148 The judged decided the applicants lacked standing to review the decision and did not apply the reasonableness test based on climate considerations of the project that the applicants had proposed. In Canada there is no specialist environmental court so courts are often lacking the direct expertise to assess scientific evidence of environmental harms. At the federal level, under the Canadian Environmental Assessment Act, a review panel must “prepare a report with respect to the environmental assessment that sets out (i) the review panel’s rationale, conclusions and recommendations, including any mitigation measures and follow-up program”.149 In 2008, the Federal Court in Pembina Institute for Appropriate Development v Attorney General of Canada concluded that the Joint Review Panel, of both the federal and Alberta governments, erred in law by failing to provide an explanation or a rationale for its recommendation, which formed the basis for a later authorization by the Minister of Fisheries and Oceans, to approve Imperial Oil’s Kearl Oil Sands project. According to the judge: “the Panel dismissed as insignificant the greenhouse gas emissions without any rationale as to why the intensity-based mitigation would be effective to reduce the greenhouse gas emissions, equivalent to 800,000 passenger vehicles, to a level of insignificance. Without this vital link, the clear and cogent articulation of the reasons behind the Panel’s conclusion, the deference accorded to its expertise is not triggered”.150 In 2017, the Quebec Superior Court may have given individuals a new argument for judicial review of government authorization. In Ressources Strateco inc v Attorney General of Quebec, the judge decided to invalidate a government authorization concerning a uranium mine project, that underwent an environmental impact assessment, due to the lack of “social acceptability” of the project within the surrounding communities (the Cree First Nations), even though that factor is not specified in Quebec law.151 This important jurisprudential development could mean that any project related to climate change mitigation or adaptation might be rejected by a court if that project is not “accepted” by the local population or at least part of it. It is notable that some provinces in Canada, such as Newfoundland and Labrador and Nova Scotia, already have among their environmental impact assessment legislation, the factors for consideration of “public acceptability”152 or “concerns expressed by the public and aboriginal people”153 but to our knowledge no project has been rejected on this basis.  Voters Taking Action on Climate Change v British Columbia (Energy and Mines), 2015 BCSC 471 at para. 65. 149  CEAA s. 43. (equivalent to the IAA s. 51). 150  Pembina Institute for Appropriate Development v Canada (Attorney General), 2008 FC 302 at para. 78. 151  Ressources Strateco inc v Attorney General of Quebec, 2017 QCCS 2679 at paras. 3, 435, and 469. 152  Newfoundland and Labrador Environmental Assessment Regulations, 2003, N.L.R. 54/03, s. 25(2)(a). 153  Nova Scotia Environmental Assessment Regulations, N.S. Reg. 26/95, s. 12(c). 148

Climate Change Litigation in Canada

181

In other cases, individuals may also seek judicial review to “direct a person holding an office within a public body” to perform an act which they are by law required to perform.154 For example, the Quebec government “sets” an overall GHG reduction target for the province for each period it determines, using 1990 emissions as the baseline,155 and water withdrawal “must” be exercised so as to ensure the protection of water resources, particularly by fostering sustainable, equitable, and efficient management of the resources in light of the precautionary principle and the effects of climate change”.156 If these obligations have not been performed, the court can order the government to comply. However, many environmental laws in Canada give an important discretionary power to public authorities and most statutory considerations of climate change appear to be discretionary, reducing the possibilities for individuals to challenge their actions. For example, the British Columbia Water Sustainability Act stipulates that: “the decision maker “may” review the terms and conditions of a licence taking into account … d) the effects of climate change”.157

5.2 Civil Actions 5.2.1 Standing In Quebec, “the interest of a plaintiff who intends to raise a public interest issue is assessed on the basis of whether the interest is genuine, whether the issue is a serious one that can be validly resolved by the court and whether there is no other effective way to bring the issue before the court”.158 The individual standing requirements are similar in all Canadian jurisdictions. Moreover, the sufficient interest in public law is more flexible than in private law. 5.2.2 Injunctions An injunction could also be brought also against a public actor.159 The same conditions, described in Sect. 4.1.2 relating to injunctions against private actors, will then be applied.

 CCP art. 529(3).  EQA art. 46.4. 156  Ibid arts. 31.76 and 31.102. 157  Water Sustainability Act, S.B.C. 2014, c. 15. 158  CCP art. 85 al. 2. 159  For example, CCP art. 509. 154 155

182

C. Choquette et al.

5.2.3 Law of Torts and Quebec Civil Liability Public liability might also be engaged in a climate change case. At the federal level, the Crown Liability and Proceeding Act establishes the foundation of such liability.160 At the provincial level, the Quebec Civil Code defines the province’s extra-­ contractual liability as: “A subordinate of the State or of a legal person established in the public interest does not cease to act in the performance of his duties by the mere fact that he performs an act that is illegal, beyond his authority or unauthorized, or by the fact that he is acting as a peace officer”.161 In common law provinces, public liability claims against governments may be based on negligence and provincial Crown liability statutes.162 Courts are reluctant to hold governments liable for their decisions as compared to their acts or omissions. Multiple court decisions have held that policy choices benefit from political discretion and lack justiciability and should be left to elected officials.163 So, in the absence of bad faith, irrationality or generally “lack or excess of jurisdiction”, policy decisions as to whether or not to prosecute or regulate a particular polluter will likely remain immune from civil liability given the high degree of deference accorded by judges or by legislation.164 It is important to make the distinction between a policy decision which is mostly immune and an operational decision (the execution of the policy decision) which has no immunity: the fact that a municipal corporation makes a policy decision or refuses to do so does not entail its civil liability. If, however, the municipal corporation exercises its powers, discretionary or otherwise, so as to make its decision operational, subject to public law, it can be held liable for any damage caused to another through its fault, or through that of its employees in the course of their duties, unless the enabling legislation expressly excludes such liability or authorizes the municipal corporation to exonerate itself from liability.165

 Crown Liability and Proceeding Act, R.S.C., 1985, c. C-50, s. 3: “The Crown is liable for the damages for which, if it were a person, it would be liable (a) in the Province of Quebec, in respect of (i) the damage caused by the fault of a servant of the Crown, or (ii) the damage resulting from the act of a thing in the custody of or owned by the Crown or by the fault of the Crown as custodian or owner; and (b) in any other province, in respect of (i) a tort committed by a servant of the Crown, or (ii) a breach of duty attaching to the ownership, occupation, possession or control of property”. 161  QCC art. 1464. See also art. 1376: “The rules set forth in this Book apply to the State and its bodies, and to all other legal persons established in the public interest, subject to any other rules of law which may be applicable to them”. 162  See the Ontario Proceedings Against the Crown Act, R.S.O 1990, c. P. 27. 163  Reference re Canada Assistance Plan (B.C.),[1991] 2 S.C.R. 525, 1991 CanLII 74 (SCC) at p. 545; Reference re Secession of Quebec, [1998] 2 SCR 217, 1998 CanLII 793 (SCC) at para. 26. 164  CCP art. 81: “The courts cannot order a provisional measure or a sanction against, or exercise the power of judicial review over, the Government or a minister of the Government or any person, whether or not a public servant, acting under their authority or on their instructions in a matter relating to the exercise of a function or the authority conferred on them by law. An exception to this rule may be made if it is shown to the court that there was a lack or excess of jurisdiction”. 165  Laurentide Motels Ltd. v Beauport [1989] 1 SCR 705; 1989 CanLII 81 (SCC) at p. 836; See also Canadian Food Inspection Agency v Professional Institute of the Public Service of Canada, 2010 SCC 66 at para. 27: “The fact that the federal Crown is subject to Quebec’s rules of extracontrac160

Climate Change Litigation in Canada

183

Since 2011, the distinction has been clarified in R v Imperial Tobacco Canada: I conclude that “core policy” government decisions protected from suit are decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors, provided they are neither irrational nor taken in bad faith. This approach is consistent with the basic thrust of Canadian cases on the issue, although it emphasizes positive features of policy decisions, instead of relying exclusively on the quality of being ‘non-operational’.166

Negligence (and to a certain extent extra-contractual liability) includes the elements of duty of care, breach of the relevant standard of care, factual causation, proximate causation, and actual loss. The elements of causation and actual loss are similar in government negligence actions to suits involving private actors. Generally, in assessing whether there is a duty of care, a judge will first determine whether there is a prima facie duty owed by the government to the plaintiff based on the criteria of foreseeability of harm and proximity, and second, whether such duty should be negated or limited due to policy considerations.167 Given the consistent view in the Canadian jurisprudence not to interfere with policy issues, a climate change action based on the negligence of public actors has limited chance of succeeding.168 5.2.4 Public Trust Doctrine In the face of concerning government inaction and wrongdoing damaging the environment and natural resources, the public trust doctrine offers an interesting possibility to hold governments accountable for their inaction and/or inappropriate actions concerning climate change mitigation and adaptation. According to this doctrine, the government, or the Crown, holds environmental resources, including the air and water, in trust for public uses. Even if not commonly used, the public trust doctrine has gradually become more integrated in Canadian federal and provincial statutory law.169 When laws and regulations clearly state the elements of the public trust doctrine that must be protected such as, the guaranteed access to shorelines, navigable water, or fishing, courts become less reluctant to intervene in the process of any given agency.170 With trust-like statutory language,171 Canadian tual civil liability where damage allegedly caused by the fault of its agents is concerned does not preclude it from invoking its immunity. For example, it remains open to the federal Crown to argue that a particular decision was made by its agents acting in a policy rather than an operational capacity, which would not normally attract liability”. 166  R. v Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 90. 167  See the Anns/Kamloops test based on Anns v Merton London Borough Council, [1978] A.C. 728 (U.K.H.L.); Kamloops (City of) v Nielsen, [1984] 2 S.C.R. 2. See also Cooper v Hobart, 2001 SCC 79. 168  Trachsler (2006), p. 12. 169  Laitos et al. (2012), pp. 5–6. 170  ibid. 339. 171  Lund (2012), p. 125.

184

C. Choquette et al.

judges will be empowered with stronger legislative interpretation tools to enforce the application of the public trust doctrine, and ensure government “accountability through decision-making that creates a fiduciary duty in law regarding the management of resources”.172 Although, “some of the most dynamic developments in Canadian public trust law have resulted from legislative action”,173 Canadian courts do have the opportunity to delve deeper into the application of this doctrine, especially since the Charter has more recently changed the role of the judiciary in supervising the exercise of legislative and regulatory power. Canadian courts have long applied the public trust doctrine rather strictly174 and even denied its existence in relation to environmental protection: the defendants cannot be subject to obligations under a public trust because no such trust exists in Canadian law…no court in Canada has recognized a public trust which requires the Crown to protect the environment.175

Such application of the classical trust law to the public trust claim was fairly criticized “for failing to take into account the uniqueness of the relationship between the Crown and the public, ‘as it relates to public resources.’”176 Could the Canadian government be held liable for failing to protect the atmosphere? Even if public trust litigation remains in its preliminary steps in Canada, some decisions do suggest an opportunity for breaking new ground.177 In 2004, the Supreme Court of Canada in British Columbia v Canadian Forest Products178 acknowledged, in obiter, that public rights in the environment were vested in the Crown179 but recognized that along with this assertion came questions about the Crown’s potential liability for inactivity in the face of threats to the environment, the existence or non-existence of enforceable fiduciary duties owed to the public by the Crown in that regard, the limits to the role and function and remedies available to governments taking action on account of activity harmful to public enjoyment of public resources, and the spectre of imposing on private interests an indeterminate liability for an indeterminate amount of money for ecological or environmental damage.180

 Hendriks (2010), p. 23.  Lund (2012), p. 125. 174  For an example, see Green v Ontario, 34 D.L.R. (3d) 20, 1972 Carswell Ont 438 (H.C.). 175  Burns Bog Conservation Society v Canada (Attorney General), 2012 FC 1024 at para. 39. 176  Lund (2012), p. 127. See also Wood (2009, 2012, 2017). 177  DeMarco et al. (2005), p. 252. 178  British Columbia v Canadian Forest Products Ltd., 2004 SCC 38. The Canadian government was suing a private logging company for damages done by a fire that destroyed 1491 hectares of public forests. 179  ibid at para. 76: “Since the time of de Bracton it has been the case that public rights and jurisdiction over these cannot be separated from the Crown. This notion of the Crown as holder of inalienable “public rights” in the environment and certain common resources was accompanied by the procedural right of the Attorney General to sue for their protection representing the Crown as parens patriae. This is an important jurisdiction that should not be attenuated by a narrow judicial construction”. See also Matthews Glenn (2010). 180  ibid at para. 81. 172 173

Climate Change Litigation in Canada

185

Unfortunately, the court did not answer those questions and many authors are skeptical of a radical change in courts’ attitudes toward their deference to the principle of legislative immunity.181 Even though we did not find any law concerning air protection that directly integrated the principles of the public trust doctrine, some laws concerning other resources could be used in relation with climate change adaptation actions. Among those statutory laws is the British Columbia Islands Trust Act182 which identifies “lands vulnerable to development pressure and provides that land use planning and decision making must be done in a manner that ‘preserves and protects’ the resource”.183 In Quebec, there is no public trust doctrine. However, water management legislation stipulates: “As the State, as custodian of the interests of the nation in water resources, must be vested with the powers required to protect and manage those resources”.184 Since analogies can be drawn amongst the common law parens patriae theory, the public trust doctrine, and this legislation, a public duty of care could exist in favor of water protection and with it, an implicit corollary right (an expectation of protection) in favor of the beneficiaries of the ‘collective resource’ and its ‘common heritage’,185 that is, for the benefit of the citizens of Quebec.186 Climate change could be affecting water through chemical and physical modifications leading to salinity, temperature, and acidity increases.187 Although actions against regulators for public liability may prove difficult, climate change cases should still be considered, particularly where regulators are both failing to protect environmental quality and affirmatively authorizing harmful pollution.188 But even if the duty of care is met and damages are proven, further evidence will need to link the unreasonable conduct of the State with the resulting harm on a balance of probabilities which may be highly difficult to demonstrate if the specific government action or policy is large-scale or general in nature.

 Trachsler (2006), p. 12; Kidd (2006), p. 187.  Islands Trust Act, RSBC 1996, c. 239, s. 33. 183  Brandes and Christensen (2010), p. 4. 184  Preamble of the Act to affirm the collective nature of water resources and to promote better governance of water and associated environments, C.Q.L.R., c. C-6.2. See also, art. 8: “If damage to water resources, including impairment of their physical, chemical or biological properties, ecological functions or quantitative status, is caused by a person or through a person’s fault or illegal act, the Attorney General may institute an action against that person, in the name of the State as custodian of the interests of the nation in water resources, with a view to obtaining one or more of the following…” 185  ibid art. 1 and the preamble. 186  Choquette and Gilles (2016), p. 27. 187  Synthèse des connaissances sur les changements climatiques au Québec, OURANOS, 2015, online: https://www.ouranos.ca/synthese-2015/. 188  Heelan Powell and Yam (2015), p. 7. 181 182

186

C. Choquette et al.

5.3 Special Statutory Remedies As seen above, dam-owners are responsible for damages due to water level mismanagement. In Canada, local and provincial governments own most dams. In 2016, a class action was launched, claiming significant property damages resulting from the Ontario government’s failure to adequately manage the water levels of the Muskoka lakes. The plaintiffs argue that the province had to implement the Muskoka River Water Management Plan to prevent flooding but failed to follow the standards established by the Plan and its duty of care toward the affected population which constitute a breach of its statutory duty.189 Some laws offer individuals specific remedies that can be useful to prompt better adaptation measures to climate change. For example, the British Columbia Water Sustainability Act allows a decision-maker to review the conditions and terms of a water licence in order to take into account the effects of climate change.190 At the same time, it also allows riparian owners to appeal the decision to an appeal board.191

6 Actions Against Public Pension Funds Managers with Climate Change Unfriendly Portfolios Canada is among the five largest oil producers in the world.192 Finding public pension funds whose shareholdings do not include firms that produce emissions may prove difficult. For instance, the Caisse de dépôt et placement du Québec (CDPQ) which manages most public funds in Quebec may according to the law “acquire and hold any or all of the shares or other securities of a legal person a) whose principal activity consists in acquiring, holding or investing in mineral, oil or gas resources, in administering such resources and in developing them through third persons”.193 In 2016, 6.2% of its global portfolio was composed of shares in oil, natural gas, and coal.194 Recently, the CDPQ announced its investment strategy to address climate change which includes a 50% increase in low carbon investments by 2020 and a

 Burgess v Ontario, Statement of Claim, Ontario Superior Court of Justice, September 14, 2016. This action was recently discontinued, see MNR Class Action Discontinued, Oatley Vigmond, August 7, 2018, online: https://oatleyvigmond.com/mnr-class-action-discontinued/. 190  Water Sustainability Act, S.B.C. 2014, c. 15, s. 23. 191  ibid at s. 105. 192  The World’s Top Oil Producers of 2017, Investopedia, 2018, online: https://www.investopedia. com/investing/worlds-top-oil-producers/. 193  Act respecting the Caisse de dépôt et placement du Québec, C.Q.L.R., c. C-2, art. 37.1. 194  Shields, Alexandre, Les énergies fossiles séduisent la Caisse de dépôt, Le Devoir, 25 mai 2017. 189

Climate Change Litigation in Canada

187

reduction of 25% in GHG emissions per dollar invested by 2025.195 The CDPQ has also committed itself in signing the Montreal Carbon Pledge to measure and disclose the carbon footprint of their investment portfolios in an annual report to the PRI196 as well as in the CDPQ annual report concerning its responsible investment.197 There is, however, no binding legal obligation to reach the CDPQ targets nor other environmental or social objectives so far. At the federal level, the Public Sector Pension Investment Board (PSP Investments) have the mandate of managing the federal pension funds.198 Even though PSP Investments report annually on their responsible investments, there is no specific climate change strategy involving low-­ carbon objectives. There are however engagements such as monitoring portfolios in respect of climate change and performing climate change risk assessments.199 Moreover, PSP Investments are a signatory to the CDP Program,200 seeking appropriate disclosure on environmental, social and governance (ESG) issues from the entities they invest in.201 Here again, individual actions to force divestment from high-carbon shares seem unlikely. As stated by the Pension Investment Association of Canada, “when PIAC members invest in the financial sector (banks, funds, etc.), the focus is generally not on a company’s carbon footprint, but rather on a) its processes to identify, mitigate and manage climate-related financial risks and b) the level of transparency regarding emissions disclosures within portfolios”.202

7 Conclusion Climate change mitigation and adaptation poses tremendous challenges at both individual and state levels. Economic, legal, political, and social incentives are now coalescing globally into the movement to reduce GHGs and to adapt to climate  Our investment strategy to address climate change, Caisse de dépôt et placement du Québec, 2017, online: https://www.cdpq.com/sites/default/files/medias/pdf/en/investment_strategy_climate_change.pdf. 196  The Montréal Carbon Pledge, PRI/ Montreal Pledge, online: http://montrealpledge.org. 197  Politique  – Investissement responsable, CDPQ, online: https://www.cdpq.com/sites/default/ files/medias/pdf/fr/politique_investissement_responsable_fr.pdf. 198  We are PSP: Global institutional investors on the cutting edge, PSP, online: http://www. investpsp.com/en/index.html. 199  2017 Annual Report, PSP Investment Report at p. 21, online: https://www.investpsp.com/media/ filer_public/03-our-performance/01-reports/content-2/PSP-AR-2017-complete.pdf [“2017 PSP Report”]. 200  About Us, CDP Disclosure Insight Action, online: https://www.cdp.net/en. 201  2017 PSP Report at pp. 20–21. 202  Comments with regard to the public consultation on Draft Recommendations from the Financial Stability Board’s Task Force on Climate-Related Financial Disclosures released on December 14, 2016, at p. 2, Pension Investment Association of Canada (10 February 2017), online: https://www. piacweb.org/public-statements.html. 195

188

C. Choquette et al.

change, but, Canada remains a laggard with inconsistent climate action. There are multiple developing trends that could embolden individuals to litigate to ensure that reluctant emitters keep GHGs on a necessary downward trend. Though Canada has committed to the international scheme in the Paris Agreement and has set a nationally determined contribution, certain domestic political developments threaten the achievement of actual GHG reductions. The retrenchment from the Paris Agreement and GHG reductions by the US under President Donald Trump, have led to delays and adjustments to Canada’s own reduction goals out of fear of losses of competitive advantage. The federal government presses forward with plans for a mandatory carbon tax while several provinces backtrack on their own commitments and seek to challenge federal constitutional authority to do so.203 The federal government is similarly guilty of inconsistency, committing internationally to reduce GHGs all the while approving new major oil and gas projects, including the controversial Kinder Morgan Trans Mountain pipeline expansion, that appear certain to thwart the achievement of those commitments.204 At the same time the heavy polluting Canadian energy industry, long a staple of the Canadian economy, continues to profit while some of Canada’s most vulnerable suffer from heightened negative consequences and adaptation costs of climate change. All the while, Canada in striving to seek reconciliation with its Indigenous Peoples and must recognize both their unique vulnerabilities to climate change and their traditional knowledge’s potential for solutions to climate change. Their views, long absent from Canadian policy, must now be invited into the climate change discourse. Canada lies at a critical juncture in its climate change life cycle, where it could continue with the global efforts to reduce emissions, or pivot once again on climate policy and remain out of step with the rest of the world and the dire reality of climate change. The conditions are in place for climate change litigation to heat up in the future, where individuals may turn to the judiciary to ensure that Canadian governments, industry, and individuals keep Canada on the path towards assisting with  The Pan Canadian Framework on Clean Growth and Climate Change, Government of Canada, September 26, 2018, online: https://www.canada.ca/en/services/environment/weather/climatechange/pan-canadian-framework.html and Part 5 of Bill C-74, Budget Implementation Act, 2018, No. 1, 1st Session, 42nd Parl, 2018 (assented to 21 June 2018). Despite carbon pricing once enjoying the support of nine of ten provinces, now only two appear willing to maintain their own price. See The Canadian Press, “Canadians voted for a carbon tax, Trudeau says as provincial blowback grows”, JWN, October 9, 2018, online: https://www.jwnenergy.com/article/2018/10/canadiansvoted-carbon-tax-trudeau-says-provincial-blowback-grows/. This back-tracking by the provinces is likely due to the election of several new populist politicians skeptical of climate change, chief amongst them new Ontario Premier Doug Ford. 204  The pipeline is projected to range between 13 and 15 mega-tonnes of carbon dioxide equivalent per year. See Trans Mountain Pipeline ULC  – Trans Mountain Expansion Project: Review of Related Upstream Greenhouse Gas Emissions Estimates, Environment and Climate Change Canada, November 2016, online: https://www.ceaa.gc.ca/050/documents/p80061/116524E.pdf at p. 5. That is approximately the entire annual provincial emissions of Nova Scotia, a province of 941,500 people (Canada’s 7th largest in population). See Table 1: GHG Emissions (provincial CO2 equivalent emissions per capita—2015 at p. 5 of this chapter). 203

Climate Change Litigation in Canada

189

the global fight to halt catastrophic climate change, which appears increasingly likely as GHG reductions fail to materialize. Acknowledgements  We would like to thank Éric Guay, Kayla Brinda, Marie Dallaire and Maïli D. Hamelin for their precious help.

References Treaties Memorandum of understanding among the Department of Energy of the USA and the Department of Natural Resources of Canada and the Ministry of Energy of the United Mexican States United Nations / Kyoto Protocol to the United Nations Framework Convention on Climate Change, UN Doc FCCC/CP/1997/7/Add.1, Dec. 10, 1997; 37 ILM 22 (1998) United Nations / Vienna Convention for the Protection of the Ozone Layer (1985) The Montreal Protocol on Substance that Deplete the Ozone Layer (1987) United Nations / Framework Convention on Climate Change (2015) Adoption of the Paris Agreement, 21st Conference of the Parties, Paris: United Nations

Legislation Federal Legislation Bill C-69, Impact Assessment Act, 1st Sess, 42nd Parl. 2018 (third reading 20 June 2018) Bill C-74, Budget Implementation Act, 2018, No. 1, 1st Sess, 42nd Parl, 2018 (assented to 21 June 2018) Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19 Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33 Competition Act, R.S.C., 1985, c. C-34 Constitution Act, 1867 (formerly called the British North America Act, 1867, 30–31 Vict., c. 3 (U.K) Crown Liability and Proceeding Act, R.S.C., 1985, c. C-50 Kyoto Protocol Implementation Act, S.C. 2007, c. 30 Species At Risk Act, S.C. 2002, c. 29

Provincial and Territorial Legislation British Columbia Energy Efficiency Act Environmental Management Act

190

C. Choquette et al.

Clean Energy Act Greenhouse Gas Reduction Targets Act (GGRTA) Islands Trust Act, R.S.B.C. 1996, c. 239 Local Government (Green Communities) Statutes Amendment Act Water Sustainability Act, S.B.C. 2014, c. 15

Ontario Environmental Bill of Rights, S.O. 1993, c. 28 Proceedings Against the Crown Act, R S O 1990 c P 27

Newfoundland and Labrador Environmental Protection Act, S.N.L. 2002, c. E-14.2 Environmental Assessment Regulations, 2003, N.L.R. 54/03

North West Territories Environmental Rights Act, R.S.N.W.T. 1988a, c. 83

Nunavut Environmental Rights Act, R.S.N.W.T. (Nu.) 1988b, c. 83

Nova Scotia Environment Act, S.N.S. 1994-95, c. 1 Environmental Assessment Regulations, N.S. Reg. 26/95

Quebec Act to affirm the collective nature of water resources and to promote better governance of water and associated environments, C.Q.L.R., c. C-6.2 Act to increase the number of zero-emission motor vehicles in Quebec in order to reduce greenhouse gas and other pollutant emissions, C.Q.L.R., c. 33.02 Act respecting the Caisse de depôt et placement du Quebec, C.Q.L.R., c. C-2

Climate Change Litigation in Canada

191

Civil Code of Quebec, C.Q.L.R., c. CCQ-1991 Environment Quality Act, C.Q.L.R., c. Q-2 Regulation respecting greenhouse gas emissions from motor vehicles, C.Q.L.R., c. Q-2, r. 17 Charter of Human Rights and Freedoms, C.Q.L.R., c. Q-2 Code of Civil Procedure, C.Q.L.R., c. C-25.01 Watercourses Act, C.Q.L.R., c. R-13

Yukon Environment Act, R.S.Y. 2002, c. 76

Jurisprudence Anns v Merton London Borough Council, [1978] A.C. 728 (U.K. H.L.) Araya v Nevsun Resources Ltd., 2017 BCCA 401 Association québécoise de lutte contre la pollution atmosphérique c Compagnie américaine de fer et métaux, 2006 QCCS 3949 Association québécoise de lutte contre la pollution atmosphérique c Volkswagen Group Canada Inc., 2018 QCCS 174 Belmamoun c Ville de Brossard, 2017 QCCA 102 Blueberry River First Nations v British Columbia (Natural Gas Development), 2017 BCSC 540 Burgess v Ontario, Statement of Claim, Ontario Superior Court of Justice, September 14, 2016 Burns Bog Conservation Society v Canada (Attorney General), 2012 FC 1024 British Columbia v Canadian Forest Products Ltd., 2004 SCC 38 Canadian Food Inspection Agency v Professional Institute of the Public Service of Canada, 2010 SCC 66 Carrier c Québec (Procureur général), 2011 QCCA 1231 Centre québécois du droit de l’environnement c Oléoduc Énergie Est ltée, 2014 QCCS 4398 Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 4 Coalition of Citizens for a Charter Challenge v Metropolitan Authority, 103 D.L.R. (4th) 409,[1993] N.S.J. No. 182 Comité d’environnement de Ville-Émard (CEVE) v Domfer Poudres métalliques ltée, 2006 QCCA 1394 Commission scolaire St-Jean-sur-Richelieu c Commission des droits de la personne du Québec, [1994] RJQ 1227 Conseil-scolaire francophone de la Colombie-Britannique v British Columbia (Education), 2016 BCSC 1764 Consortium Delta inc. v Aménagement et drainage Vincent inc., 2012 QCCQ 6977 Cooper v Hobart, 2001 SCC 79 Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12 Dingeldein v Ontario (Ministry of Environment and Climate Change), [2015] O.E.R.T.D. No. 32 (Ont. Env. Rev. Trib.) Dixon v Director, Ministry of the Environment, 2014 ONSC 7404 Domke v Alberta, 2008 ABCA 232 Doucet- Boudreau v Nova Scotia, 2003 SCC 62 Drouin v Sainte-Agathe-des-Monts, 2009 QCCS 603 Dunsmuir v New Brunswick, 2008 SCC 9 Energy Probe v Canada (PG), (1994) 17 OR (3e) 717 (Div. Gén. Ont.)

192

C. Choquette et al.

Energy Probe v Canada (Attorney General) (1989), 68 O.R. (2d) 449, 57 D.L.R. (4th) 513, 1989 CarswellOnt 390 (Ont. C.A.) Ernst v Alberta Energy Regulator, 2017 SCC 1 Fairfield v Ontario (Ministry of the Environment), [2014] O.E.R.T.D. No. 71 First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58 Friends of the Earth v Canada, 2008 FC 893 Friends of the Earth v Canada (Environment), 2009 FCA 297 Gillespie v Ontario (Ministry of the Environment and Climate Change), [2015] O.E.R.T.D. No. 3 Gosselin v Québec (Attorney General), 2002 4 R.C.S. 429 Green v Ontario, 34 D.L.R. (3d) 20, 1972 Carswell Ont 438 (H.C.) Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 Hickey et al v Electric Reduction Co. of Canada Ltd., [1970] 21 D.L.R. (3d) 368 (NL SC); 1970 CanLII 907 (NL SC) at 372 Iredale v Mont-Tremblant (Ville de), 2011 QCCS 760 Iredale v Mont-Tremblant (Ville de), 2013 QCCA 1348 Kamloops (City of) v Nielsen, [1984] 2 S.C.R. 2 Kazemi Estate v Islamic Republic of Iran, 2014 SCC 62 (Kazemi) at para. 149 Kelly v Alberta, 2009 ABCA 161 Kroeplin v Ontario (Ministry of the Environment), [2014] O.E.R.T.D. No. 24 Kuczerpa v R., (1993) 48 FTR 274 (F.C.T.D.) L’Association des parents de l’École Rose-des-vents v Conseil scolaire francophone de la Colombie-Britannique, 2012 BCSC 1614 Laurentide Motels Ltd. v Beauport, [1989] 1 SCR 705 Locke v Calgary (City), 147 A.R. 367, 15 Alta. L.R. (3d) 70 (Q.B.) Lockridge v Ontario (Director, Ministry of the Environment), 2012 ONSC 2316 Manicom et al v County of Oxford et al, (1985), 52 OR (2d) 137 (Ont. Div. Ct.) Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40 Millership v Kamloops (City), 2003 BCSC 82 Mothers Against Wind Turbines Inc. v Ontario (Ministry of the Environment and Climate Change), [2015] O.E.R.T.D. No. 19 Noël c Société d’énergie de la Baie James, 2001 SCC 39 Olsen v Quebec, 2009 QCCS 2167 Overseas Tankship (U.K.) Ltd. v Miller Steamship Co., [1967] 1 A.C. 617 Pearson v Inco (2002), 115 ACWS (3d) 564 Pembina Institute for Appropriate Development v Canada (Attorney General), 2008 FC 302 Poulin v Fleury, 2014 QCCS 6165 Quebec (Attorney General) v Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, 1991 CanLII 74 (SCC) at p. 545 Reference re Secession of Quebec, [1998] 2 SCR 217, 1998 CanLII 793 (SCC) at para. 26 R. v Adams, [1996] 3 SCR 101, 1996 CanLII 169 (SCC) at para. 50 R. v Côté, [1996] 3 SCR 139, 1996 CanLII 170 (SCC) at para. 95 R v Hydro-Québec, [1997] 3 SCR 213, 1997 CanLII 318 (SCC) R v Imperial Tobacco Canada Ltd, 2011 SCC 42 R v Oakes, [1986] 1 SCR 103, 1986 CanLII 46 (SCC) at paras. 69–70. R v Sparrow, [1990] 1 SCR 1075, 1990 CanLII 104 (SCC) at paras. 71–83 R. v Syncrude Canada Ltd., 2010 ABPC 229 R v Van der Peet, [1996] 2 SCR 507, 1996 CanLII 216 (SCC) at para. 44 Regroupement des citoyens du quartier St-Georges inc. c Alcoa Canada ltée, 2007 QCCS 2691 Ressources Strateco inc v Attorney General of Quebec, 2017 QCCS 2679 Robillard v Écoservices Tria inc., 2016 QCCS 6267 SM Construction inc. v Directeur des poursuites criminelles et pénales, 2016 QCCS 4350 Spieser c Canada (Procureur général), 2007 QCCS 1207

Climate Change Litigation in Canada

193

Spieser v Canada (General Attorney), 2012 QCCS 2801 Syncrude Canada Ltd v Canada (Attorney General), 2016 FCA 160 Tsilhqot’in Nation v British Columbia, 2014 SCC 44 Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 153 at paras. 753-763 Turp v Canada (Justice), 2012 FC 893 Vancouver (City) v Ward, 2010 SCC 27 Voters Taking Action on Climate Change v British Columbia (Ministry of Energy and Mines) 2015 2015 BCSC 471 Williams Lake Indian Band v Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4

Books and Papers Baudoin J-L, Deslauriers P, Moore B (2014) La responsabilité civile, 8e éd. Éditions Yvon Blais, Cowansville Bélanger A (2011) Canadian federalism in the context of combating climate change. Constitutional Forum constitutionnel 20:21 Boyd DR (2011) No taps, no toilets: first nations and the constitutional right to water in Canada. R.D. McGill 57(1):81 Boyd DR (2012) The right to a healthy environment. UBC Press, Vancouver Brandes OM, Christensen R (2010) The public trust and a modern BC water act, POLIS Water Sustainability Project- the future of water law and governance series at 4. http://poliswaterproject.org/sites/default/files/public_trust_brief_2010-1.pdf Brun H, Tremblay G, Brouillet E (2014) Droit constitutionnel, 6e edition. Éditions Yvon Blais, Cowansville, p 166 Caisse de dépôt et placement du Québec (2017) Our investment strategy to address climate change, p  14. https://www.cdpq.com/sites/default/files/medias/pdf/en/investment_strategy_climate_ change.pdf Canada, Environment and Climate Change & Environment and Climate Change Canada. Global greenhouse gas emissions, (16 March 2012), online: https://www.canada.ca/en/environmentclimate-change/services/environmental-indicators/global-greenhouse-gas-emissions.html Chalifour N (2013) Environmental discrimination and the charter’s equality guarantee: the case of drinking water for first nations living on reserves. R.G.D. 43:183 Chalifour N (2015) Environmental Justice and the Charter: do environmental injustices infringe sections 7 and 15 of the Charter? J Environ Law Pract 28:89 Choquette C (2012) L’État québécois est-il vraiment un ‘gardien’ pour notre patrimoine hydrique? In: Haley P, Sotousek J (eds) L’environnement, un patrimoine commun et son État gardien Aspects juridiques nationaux, transnationaux et internationaux. Éditions Yvon Blais, Montréal Choquette C, Gilles D (2016) Loi affirmant le caractère collectif des ressources en eau et visant à renforcer leur protection. Jurisclasseur, Fascicule 18 Choquette C, Guilhermont E, Goyette-Noël M-P (2010) La gestion du niveau d’eau des barrages-­ réservoirs au Québec: Aspects juridiques et environnementaux. Les Cahiers de Droit 51:827 Collins L (2009) An ecologically literate reading of the Canadian Charter of Rights and Freedoms. Windsor Rev Leg Soc Issues 26:7, online: https://www.researchgate.net/publication/228203357_An_Ecologically_Literate_Reading_of_the_Canadian_Charter_of_Rights_ and_Freedoms Collins L (2015) Safeguarding the Longue Durée: environmental rights in the Canadian Constitution. Supreme Court Law Rev 71:1, online: http://digitalcommons.osgoode.yorku.ca/ sclr/vol71/iss1/20

194

C. Choquette et al.

DeMarco JV, Valiante M, Bowden M-A (2005) Opening the door for common law environmental protection in Canada: the decision in British Columbia v Canadian Forest Products Ltd. J Environ Law Pract 15:233 Elgie SAG, Lintner AM (2005) The Supreme Court’s Canfor Decision: losing the battle but winning the war for environmental damages. UBC Law Rev 98:22 Gage A (2008) Three arguments for first nations public nuisance standing. IJL 17(1):39 Gage A (2013) Climate change litigation and the public right to a healthy atmosphere. J Environ Law Pract 24:257 Gourde K (2010) Le droit à un environnement de qualité au Québec: une réponse aux problèmes de pollution diffuse? Université de Montréal, Mémoire présenté à la Faculté de droit en vue de l’obtention du grade de Maîtrise en droit Government of Canada, A Climate Change Plan for the Purposes of the Kyoto Protocol Implementation Act- May 2010, July 6, 2010, online: http://www.climatechange.gc.ca/default. asp?lang=En&n=4D57AF05-1 Heelan Powell B, Yam J (2015) Judicial notice of climate change. Symposium on Environment in the Courtroom. University of Calgary, 6–7 March 2015 Hendriks E (2010) Common law – implementing the public trust doctrine in British Columbia. Water Canada 23:23 Jefferies C (2015) Filling the gaps in Canada’s climate change strategy: all litigation, all the time. Fordham Int Law J 38:1371, 1404 Kidd S (2006) Keeping public resources in public hands: advancing the public trust doctrine in Canada. J Environ Law Pract 16:187 Klaudt DW (2018) Can Canada’s ‘living tree’ constitution and lessons from foreign climate litigation seed climate justice and remedy climate change? J Environ Law Pract 31:185 Laitos JG, Zellmer SB, Wood MC (2012) Natural resources law 326, 2nd edn. West Publishing Lund A (2012) Canadian approaches to America’s public trust doctrine: classic trusts, fiduciary duties & substantive review. J Environ Law Pract 23:135 Matthews Glenn J (2010) Crown ownership of water in situ in Common Law Canada: public trusts, classical trusts and fiduciary duties. Les Cahiers de Droit 51(3–4):493–519, online: https:// www.erudit.org/fr/revues/cd1/2010-v51-n3-4-cd4010/045721ar/ Nanda A (2012) Heavy oil processing in Peace River, Alberta: a case study on the scope of Section 7 of the Charter in the Environmental Realm. J Environ Law Pract 27:109 Pan-Canadian Framework on Clean Growth and Climate Change. Canada’s Plan to Address Climate Change and Growth in the Economy. http://publications.gc.ca/collections/collection_2017/eccc/En4-294-2016-eng.pdf Renno K (2017). Fascicule 11- Audiences, délais, intérêt pour agir, représentation devant les tribunaux et certaines conditions pour agir. Dans : Pierre-Claude LAFOND (dir.) Jurisclasseur du Québec, Droit civil- Procédure civile I, 2e éd., Montréal, LexisNexis Samson M, Brunelle C (2011) Nature et portée des droits économiques, sociaux et culturels dans la Charte québécoise : Ceinture législative et bretelles judiciaires. Dans: Pierre Bosset et Lucie Lamarche (dir.) Droit de cité pour les droits économiques, sociaux et culturels : La Charte québécoise en chantier. Yvon Blais, Cowansville (Qc) Sniderman AS, Shedletzky A (2014) Aboriginal peoples and legal challenges to Canadian climate change policy. West J Leg Stud 4:1 Thériault S, Robitaille D (2011) Les droits fondamentaux dans la Charte des droits et libertés de la personne du Québec: Pistes de réflexion. McGill Law J 57(2):211 Trachsler T (2006) Litigating climate change in Canada. Emissions Trading & Climate Change Bulletin. McMillan Binch Mendelsohn Truth and Reconciliation Commission of Canada. http://www.trc.ca Wood MC (2009) Advancing the sovereign trust of government to safeguard the environment for present and future generations (Part I): ecological realism and the need for a paradigm shift. Environ Law 39:43, 89 S. V.B.

Climate Change Litigation in Canada

195

Wood MC (2012) Atmospheric trust litigation across the world. In: Coghill K, Sampford C, Smith T (eds) Fiduciary duty and the atmospheric trust. Ashgate Publishing Wood MC (2017) Atmospheric trust litigation: defining sovereign obligations in climate recovery. The Fletcher Forum of World Affairs. online: http://www.fletcherforum.org/home/2016/8/22/ atmospheric-trust-litigation-defining-sovereign-obligations-in-climate-recovery Yergeau M, Cattaneo N (2005) Les préjudices écologiques. R.J.T. 39:303

Online Resources 2017 Annual Report, PSP Investment Report at p. 21, online: https://www.investpsp.com/media/ filer_public/03-our-performance/01-reports/content-2/PSP-AR-2017-complete.pdf About Us, CDP Disclosure Insight Action, online: https://www.cdp.net/en Buncombe, Andrew “Protesters found not guilty because ‘climate change crisis’ made it ‘legally necessary’ for them to commit civil disobedience”, The Independent (27 March 2018), online: http://www.independent.co.uk/news/world/americas/pipeline-protesters-boston-protest-notguilty-climate-change-karenna-gore-mary-ann-driscoll-a8276851.html Comments with regard to the public consultation on Draft Recommendations from the Financial Stability Board’s Task Force on Climate-Related Financial Disclosures released on December 14, 2016, at p.  2, Pension Investment Association of Canada (10 February 2017), online: https://www.piacweb.org/public-statements.html Cornwell, Steven, “Greenpeace takes Ontario to court for unlawfully cancelling cap and trade program”, Greenpeace Canada (11 September 2018), online: https://www. greenpeace.org/canada/en/press-release/4414/greenpeace-takes-ontario-to-court-forunlawfully-cancelling-cap-and-trade-program/ Engagements du Québec: Nos cibles de réduction d’émissions des GES, Développement durable, Environnement et Lutte contre les changements climatiques, online: http://www.mddelcc.gouv. qc.ca/changementsclimatiques/engagement-quebec.asp Galloway, Gloria, “Court approves class-action lawsuit for Indigenous students who say they were abused at day schools”, The Globe and Mail (8 July 2018), online: https://www.theglobeandmail.com/canada/article-court-approves-class-action-lawsuit-for-indigenous-students-stripped “Grassy Narrows sues Ontario over mercury health threat from clearcut logging”, Canadian Environmental Law Association, online: http://www.cela.ca/newsevents/media-release/ grassy-narrows-sues-ontario-over-mercury-health-threat-clearcut-logging Hatt, Charles, “Re: False and misleading representations about the reality, causes and consequences of global warming and climate change, in contravention of the Competition Act”, Ecojustice (3 December 2015), online: https://ecojustice.ca/wp-content/uploads/2015/12/2015-12-03-Application-to-Commissioner-of-Competition-re-Climate-science-misrepresentations-updated.pdf Intergovernmental Panel on Climate Change. online: https://www.ipcc-data.org/guidelines/pages/ glossary/glossary_fg.html MNR Class Action Discontinued, Oatley Vigmond (7 August 2018), online: https://oatleyvigmond.com/mnr-class-action-discontinued/ Our investment strategy to address climate change, Caisse de dépôt et placement du Québec, 2017, online: https://www.cdpq.com/sites/default/files/medias/pdf/en/investment_strategy_climate_change.pdf Palumbo, Josephine, “Re: Discontinuance of an inquiry relating to Friends of Science Society, International Climate Science Coalition and Heartland Institute”, Competition Bureau Canada (29 June 2017), online: https://www.ecojustice.ca/wp-content/uploads/2017/08/201706-29-Ltr-from-Comp-Bureau-re-Inquiry-discontinued.pdf Politique – Investissement responsable, CDPQ, online: https://www.cdpq.com/sites/default/files/ medias/pdf/fr/politique_investissement_responsable_fr.pdf

196

C. Choquette et al.

Shields, Alexandre, Les énergies fossiles séduisent la Caisse de dépôt, Le Devoir (25 mai 2017) Synthèse des connaissances sur les changements climatiques au Québec, OURANOS, 2015, online: https://www.ouranos.ca/synthese-2015/ The Montréal Carbon Pledge, PRI/ Montreal Pledge, online: http://montrealpledge.org. The Pan Canadian Framework on Clean Growth and Climate Change, Government of Canada (26 September 2018), online: https://www.canada.ca/en/services/environment/weather/climatechange/pan-canadian-framework.html The Canadian Press, “Canadians voted for a carbon tax, Trudeau says as provincial blowback grows”, JWN (9 October 2018), online: https://www.jwnenergy.com/article/2018/10/ canadians-voted-carbon-tax-trudeau-says-provincial-blowback-grows/ The Canadian Press, “More than 150 protesters arrested so far at Kinder Morgan terminals in Burnaby, B.C.”, The Globe and Mail (25 March 2018), online: https://www. theglobeandmail.com/canada/british-columbia/article-more-than-150-protesters-arrestedso-far-at-kinder-morgan-terminals-in/ “The fight for clean air in B.C.’s Kitimat Valley”, the Discourse, online: https:// www.thediscourse.ca/uncategorized/the-fight-for-clean-air-in-b-c-s-kitimatvalley?utm_source=CELL+Mailing+List&utm_campaign=f21a9ccb78-CELL_e_ Newsletter_2018_01_09_draft_COPY_01&utm_medium=email&utm_term=0_5fdbc5a596f21a9ccb78-108631625 The World’s Top Oil Producers of 2017, Investopedia, 2018, online: https://www.investopedia. com/investing/worlds-top-oil-producers/ Trans Mountain Pipeline ULC – Trans Mountain Expansion Project: Review of Related Upstream Greenhouse Gas Emissions Estimates, Environment and Climate Change Canada (November 2016), online: https://www.ceaa.gc.ca/050/documents/p80061/116524E.pdf Watts, Jonathan. “Arctic warming: scientists alarmed by ‘crazy’ temperature rises”, The Guardian (27 February 2018), online: http://www.theguardian.com/environment/2018/feb/27/ arctic-warming-scientists-alarmed-by-crazy-temperature-rises We are PSP: Global institutional investors on the cutting edge, PSP, online: http://www.investpsp. com/en/index.html. Catherine Choquette  is a full professor of law at the University of Sherbrooke. She holds a doctorate in law from the University of Chicago and a master in biology from McGill University. She is a lawyer called to the bar of the Province of Quebec. She is the director of the research group on strategies and governance actors in environment (SAGE) and the co-director of the research center on regulation and the law of governance (CrRDG). She is currently working on collaborative governance, mediation and climate change adaptation. She can be reached at [email protected]. Dustin Klaudt  is a lawyer practicing in Vancouver, British Columbia, Canada. His focuses include aboriginal, administrative, constitutional, commercial, environmental, human rights, and international law. He has appeared at all levels of court in British Columbia and before the Supreme Court of Canada. He is concurrently studying towards a Master of Laws degree at Osgoode Hall Law School, with an emphasis on the interplay of constitutional law, human rights, and climate change. His past research on Canadian and international climate litigation was awarded the Colin B. Picker Prize in Comparative Law by the American Society of Comparative Law, for excellence in graduate student research and was published in Canada’s Journal of Environmental Law and Practice. He has past experience working and studying law abroad, including clerking for justices at the Constitutional Court of South Africa. He received a Juris Doctor degree from the University of British Columbia Allard School of Law and a Bachelor of Commerce degree from the University of Alberta.

Climate Change Litigation in Canada

197

Laura S. Lynes  is the co-founder and president of The Resilience Institute (TRI). She holds a master of law with distinction in climate change law & policy and a master degree in intercultural and international communications. Formerly she was the director of government relations and head of applied research at a specialized post-secondary institute in Alberta, Canada. She is a graduate of the Oxford Adaptation Academy and a Focal Point of the UNFCCC Nairobi Work Programme. Laura recently received the Dean’s Excellence Award at Strathclyde University Law School and prior to that, the American Sociological Association’s Jane Goodall Fellowship for her work on perceptions on inclusion of large carnivores in communities.

Climate Change and the Individual in the United States Margaret Rosso Grossman

Abstract  In the United States, no comprehensive climate change legislation exists, and recent developments have diluted federal efforts to mitigate and adapt to the effects of climate change. Litigation may help to force government regulatory action and provide remedies for harm from greenhouse gas emissions. This Chapter focuses on lawsuits filed by individual plaintiffs and environmental organizations against public and private actors. Plaintiffs have based cases on federal statutes and regulations, common-law causes of action, and public trust. Proof of causation may be a barrier to recovery, and other issues (for example, standing and displacement) pose obstacles. Claims against public actors, for example, have asserted an obligation to protect the atmosphere as a public trust, an obligation to promulgate regulations that address greenhouse gas emissions, and a statutory obligation for agencies to consider the impact of greenhouse gas emissions and climate change in decision making. Litigation against governments and public bodies has sometimes resulted in stricter regulation of greenhouse gas emissions and more careful consideration of the effects of government actions on climate. Claims against private actors for damages, which raise issues of causation and apportionment, have rarely been successful. Individual plaintiffs seldom have the financial ability to bring lawsuits to mitigate or adapt to climate change; environmental and other non-governmental organizations are more likely to have resources to pursue climate change litigation.

This chapter is based on work supported by USDA, National Institute of Food and Agriculture, Hatch Project No ILLU-470-348. It relies on my article, Grossman (2018). This chapter was submitted 1 October 2018; a few updates date from April 2019. M. R. Grossman (*) University of Illinois, Urbana, IL, USA e-mail: [email protected] © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_9

199

200

M. R. Grossman

1 Introduction ‘Climate change, once considered an issue for a distant future, has moved firmly into the present.’1 Atmospheric and ocean temperatures are rising, ‘[p]recipitation patterns are changing, sea level is rising, the oceans are becoming more acidic, and the frequency and intensity of some extreme weather events are increasing.’2 In the continental United States, for example, 2017 was the third warmest year on record, after 2012 and 2016, with higher than average precipitation and 16 climate-related disasters causing losses of more than $1 billion—severe storms, drought, wildfires, and floods.3 Climate change, which triggers heat waves, also poses a threat to human health.4 The emission of greenhouses gases (GHGs), which move about in the atmosphere, is a major cause of global climate change. Although some GHGs occur naturally, human activities produce additional quantities of these gases and affect atmospheric concentrations.5 Indeed, the 2017 Climate Science Special Report concludes that ‘it is extremely likely that human influence has been the dominant cause of the observed warming since the mid-20th century. For the warming over the last century, there is no convincing alternative explanation.’6 Although a number of US statutes govern human activities related to climate change, no comprehensive climate change legislation exists.7 Federal programs (including the Obama administration Climate Action Plan8), as well as regional, state, and local initiatives, promised to mitigate and adapt to the effects of climate change. Recent developments, however, have diluted federal efforts.9 For example, President Trump revoked significant Obama-administration climate change policies, including the Climate Action Plan and related strategies.10 This revocation and others that followed will result in increased emissions and failure to meet climate targets.

 US Global Change Research Program (2014), p. 2. For impacts of climate changes in the US, see US Global Change Research Program (2018). 2  US Global Change Research Program (2014), p. 2. 3  Blunden et al. (2018), pp. S195–S196. 4  Forzieri et al. (2017), p. e2000. 5  Significant GHGs include water vapor (H2O), carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), ozone (O3), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulphur hexafluoride (SF6), as well as other substances. US EPA (2018), pp. 1–3 to 1–8. 6  Wuebbles et al. (2017), p. 12. 7  For US laws, see Nachmany et al. (2014), pp. 606–617; Grantham Research Institute (n.d.). 8  Obama (2013). 9  See Mehling (2017), p. 3; Zevin (2017), p. 162. 10  Trump (2017). 1

Climate Change and the Individual in the United States

201

Significantly, the United States announced withdrawal from the Paris Agreement,11 a decision that triggered international condemnation, as well as criticism from state and local governments and large corporations in the United States. In August 2017, the United States notified the United Nations of its intent to withdraw from the Paris Agreement unless it ‘identifies suitable terms for reengagement.’12 The US intent to withdraw led to characterization of US climate policies as critically and highly insufficient. The United States will rely on the efforts of cities, states, and businesses committed to support climate action.13 The global crisis of climate change has affected the practice of law.14 Indeed, in recent years, climate change has engendered ‘a rapidly building wave of litigation’ in the United States.15 Although the judiciary is ‘a latecomer to the crisis that has worsened in the hands of the legislative and executive branches,’16 litigation can play a role in forcing government regulatory action and perhaps in providing remedies for harm from GHG emissions. This chapter focuses on lawsuits filed by individual plaintiffs against public and private actors to achieve mitigation of climate change or adaptation to its effects.17 Of the hundreds of climate change cases filed in the United States, only a small number involve individual plaintiffs. Other cases involve environmental organizations that sue on behalf of their members, demanding mitigation or adaptation and sometimes damages for injury. This chapter first outlines possible causes of action to remedy climate change and several difficult issues faced by plaintiffs in climate change litigation. It then reviews a number of cases against the government, public bodies, and private actors.

 UN Framework Convention on Climate Change (2015). The Paris Agreement, which entered into force 4 November 2016, includes nationally determined contributions, that is, voluntary pledges to mitigate GHG emissions. It does not establish enforceable GHG limits or causes of action. US ratification in September 2016 promised a reduction of net GHG emissions by 2025 to 26–28 percent below 2005 levels. 12  Haley (2017). The United States is eligible to withdraw 4 November 2019, three years after the Agreement entered force, but will continue to provide GHG emissions data to the UN, as required by the UN Framework Convention on Climate Change (1992). 13  Climate Action Tracker (2018). 14  See Dundon (2017), p. 23. 15  Markell and Ruhl (2012), p. 21. 16  Wood and Woodward (2016), p. 643. 17  This chapter is guided by the questionnaire prepared for the XXth General Congress of the International Academy of Comparative Law, Fukuoka, Japan, 22–28 July 2018. 11

202

M. R. Grossman

2 Climate Change Causes of Action and Issues Climate change litigation is ‘any piece of federal, state, tribal, or local administrative or judicial litigation in which the party filings or tribunal decisions directly and expressly raise an issue of fact or law regarding the substance or policy of climate change causes and impacts.’18 Many cases have focused on government agency responsibility to restrict GHG emissions by rule or permit or have demanded government compliance with statutory requirements for environmental impact assessment in decisions to approve GHG sources. Climate change litigation often asks courts to decide ‘whether and how administrative agencies must take climate change into account in decisionmaking under existing statutes.’19 By April 2019, a database of US climate change litigation, updated monthly, listed 1015 ‘cases’ and collected more than 4600 documents, including court cases, administrative actions, petitions for rulemaking, and other matters related to climate change. Claims represented in these cases arose under federal and state statutes, the Constitution, common law, public trust, securities and financial regulation, and trade agreements; a few cases involved climate change protesters and scientists.20 Although some scholars urge judicial restraint to limit climate change litigation,21 litigants have turned to the courts for relief from harm caused by GHG emissions.

2.1 Causes of Action 2.1.1 Regulatory Litigation A significant number of US climate change cases are based on federal statutes and regulations, and many seek judicial review of administrative decisions. Industry cases often challenge government regulatory environmental standards. Suits by environmentalists often seek more stringent regulation for mitigation or adaptation under the Clean Air Act or challenge agency decisions for failure to consider climate change under the National Environmental Policy Act and other federal laws. Some lawsuits have led to stricter regulation—for example, EPA regulation of greenhouse gas emissions after Massachusetts v EPA.22 State-law claims challenge administrative decisions, seek stronger regulation, challenge permits, allege

 Markell and Ruhl (2012), p. 27.  ibid p. 25 (collecting matters up to 2010). 20  Sabin Center for Climate Change Law (numbers from 24 April 2019). This general summary of climate change cases is guided by the Sabin Center Database. For a recent analysis of decisions collected by the Sabin Center, see McCormick et al. (2018). 21  E.g., Gifford (2010), pp. 240–257. 22  Massachusetts v EPA, 549 US 497 (2007). 18 19

Climate Change and the Individual in the United States

203

inadequate consideration of GHG emissions under state environmental impact laws, or challenge ineffective adaptation measures under state or local law. 2.1.2 Common Law A few plaintiffs have brought common-law causes of action, primarily tort claims for damages, albeit with little success.23 Nuisance and negligence offer some possibility for success, with trespass and civil conspiracy considered less helpful. Strict liability is another possible remedy,24 and some cases rely on public trust. Nuisance law may be effective for some climate change claims.25 Public nuisance lawsuits are appropriate to abate ‘an unreasonable interference with a right common to the general public.’26 Many federal common-law public nuisance claims are displaced by statute—for example, by ‘the Clean Air Act and the EPA actions it authorizes.’27 State common-law nuisance claims may continue to be viable.28 Relatively few plaintiffs have sued in negligence, and typical requirements for a prima facie case in negligence—duty, breach of duty, proximate cause, and damages—raise significant problems of proof. Negligence may be more successful in adaptation cases against local governments or property developers, but proving that the defendant’s alleged negligence, rather than an extreme precipitation event, was proximate cause of plaintiff’s harm may be difficult.29 Despite the existence of some climate change tort cases, tort law—intended to solve private and local disputes, rather than big societal problems—may not be an effective means to mitigate or adapt to climate change. Legislatures, instead of courts, have ‘the authority and the capacity to consider and develop responses to [climate change], and only after a regulatory architecture has been established can judges and juries properly (and constitutionally) play a role.’30

 See generally Hammond and Markell (2014), p. 239.  See Weisbach (2012), pp. 521–527. 25  See Hammond and Markell (2014) (focusing on nuisance and public trust). 26  Restatement (Second) of Torts § 821B (1979). A private nuisance is ‘a nontrespassory invasion of another’s interest in the private use and enjoyment of land.’ ibid § 821D. 27  American Elec Power Co v Connecticut, 564 US 410, 424 (2011). 28  See Burkett (2012), p.  11,144 (noting judicial ‘skepticism and fatigue with complex climate litigation’). 29  ibid pp. 11,149-11,150. E.g., Wohl v City of New York, 45 Misc 3d 1217(A) (NY Sup Ct 2014). 30  Buente et al. (2012), p. 10,751. 23 24

204

M. R. Grossman

2.1.3 Public Trust Some lawsuits and administrative petitions rely, at least in part, on the public trust doctrine,31 often as part of the global Atmospheric Trust Litigation campaign connected with Our Children’s Trust.32 Public trust, with roots in Roman and English law, requires governments to protect certain natural resources for present and future generations. Although the precise source of public trust in US law is hard to identify, the doctrine is an ancient attribute of federal and state sovereignty with constitutional force.33 Plaintiffs in recent public trust litigation insist that the government owes a fiduciary obligation to its citizen beneficiaries to protect public trust assets, including the atmosphere and water bodies affected by GHG emissions. State public trust law is evolving and may help to address climate change. A few courts have recognized the atmosphere as a public trust asset, and a few decisions have resulted in a court-­ ordered state GHG rulemaking.34 Adaptation to climate change could ‘become an official state duty, geared to protecting as much of the public interest in and rights to natural resources and ecosystems as possible in light of climate change impacts.’35

2.2 Significant Issues Courts, in general, accept the science of climate change36 and the evidence that anthropogenic emissions of GHGs are a major cause of climate change.37 Despite this judicial acceptance, however, climate change litigation raises a number of issues. Some arise in nearly all climate change litigation; others depend on the cause of action and parties. The following discussion focuses on major issues common to cases brought to mitigate or abate the effects of climate change.38

 Cases are collected at Sabin Center for Climate Change (updated monthly).  See Our Children’s Trust (2019). 33  Wood and Woodward (2016), pp. 650–653. 34  E.g., Foster v Wash Dep’t of Ecology, No. 14-2-25295-1 SEA (Wash Super Ct, 19 Nov 2015), discussed in Wood and Woodward (2016). 35  Craig (2014), pp. 8–10 (quotation at p. 9). 36  Gerrard (2013). See, e.g., Massachusetts (2007). 37  Banda and Fulton (2017), p. 10,130. 38  For a lengthy list of tactical questions and issues in climate change litigation see Gerrard (2011), p. 135. 31 32

Climate Change and the Individual in the United States

205

2.2.1 Standing The US Constitution39 limits federal judicial authority to cases and controversies, so plaintiffs must have standing to sue. State courts also require standing. The doctrine of standing helps to ensure that the plaintiff has a personal stake in the controversy and that issues will be resolved in a ‘proper adversarial presentation.’40 The US Supreme Court articulated the elements of standing in an environmental law decision: [A] plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.41

Non-governmental and other organizations that bring climate change lawsuits on behalf of their members have standing if members themselves would have had standing and other requirements are met. Numerous court decisions have applied these standing requirements. Several elements of standing pose difficulties for plaintiffs in climate change litigation. For example, plaintiff’s harms may be generalized grievances rather than particularized injuries.42 Plaintiffs are unlikely to identify a direct causal connection that makes injury fairly traceable to defendant’s source of emissions.43 Moreover, a favorable decision is unlikely to eliminate climate change; nonetheless, reduced global warming could redress plaintiff’s harm.44 Two types of climate change cases illustrate issues of standing. One involves a challenge to government failure to consider the impacts of climate change in making decisions under the National Environmental Policy Act (NEPA)45 or other statutes. NEPA requires the government to assess the environmental impacts of certain major federal actions. Some courts denied standing to petitioners who challenged government failure to consider climate change in environmental assessments, in part because the effects of a proposed project were remote, rather than actual and imminent, and because their alleged harm (increased global temperature) was not particularized.46 A few decisions have granted standing to plaintiffs whose injury

 US Const, art III, § 2.  Massachusetts (2007), p. 517. 41  Friends of the Earth, Inc v Laidlaw Environmental Services (TOC), Inc, 528 US 167, 180-81 (2000), citing Lujan v Defenders of Wildlife, 504 US 555, 560-61 (1992). 42  But see Massachusetts (2007), p. 522. 43  But ‘a substantial likelihood of causal contribution [could satisfy] the test of traceability.’ Ewing and Kysar (2011), p. 392. 44  Massachusetts (2007), p. 525. 45  NEPA, 42 USC §§ 4321-4370f. 46  E.g., Center for Biological Diversity v Department of Interior, 563 F 3d 466, 478 (DC Cir 2009). 39 40

206

M. R. Grossman

was not climate based, but when ‘consideration of climate change would have impacted the decision that allegedly harms them.’47 Other standing cases involve claims that pollution control statutes require the government to take more regulatory action to mitigate climate change.48 Standing was a threshold issue in Massachusetts v EPA, in which states, local governments, and private organizations alleged that the US Environmental Protection Agency had ‘abdicated its responsibility under the Clean Air Act to regulate the emissions of four greenhouse gases, including carbon dioxide’ from new motor vehicles.49 The Court recognized that GHG emissions caused widespread harm but held that Massachusetts, as landowner and parens patriae for its citizens, satisfied the constitutional requirements for standing. 2.2.2 The Political Question Doctrine The political question doctrine holds that certain types of issues are ‘committed to an elected branch of government and thus should not be heard in federal court.’50 The Supreme Court articulated attributes of a nonjusticiable political question,51 but indicated that cases that involve political actions or issues are not normally nonjusticiable political questions. Few Supreme Court cases have been found to present political questions. In the context of climate change, courts considered the attributes of nonjusticiable political questions in cases involving public nuisance52 and violation of constitutional and public trust rights,53 but their decisions held that plaintiffs’ claims did not involve political questions. 2.2.3 Displacement The doctrine of displacement, a separation of powers issue between the judicial and legislative branches, precludes climate change cases based on federal common law. The test for displacement of federal common law is ‘whether the statute “speak[s] directly to [the] question” at issue.’54 American Electric Power Co. v Connecticut, a federal common-law public nuisance claim for injunctive relief, alleged that GHG emissions from power companies contributed to global warming. Because  Kellman (2016a), p. 10,118. E.g., WildEarth Guardians v Jewell, 738 F 3d 298 (DC Cir 2013).  Kellman (2016a), p. 10,118. 49  Massachusetts (2007), p. 505; Clean Air Act, 42 USC §§ 7401-7671q. 50  May (2011), p. 127. 51  Baker v Carr, 369 US 186, 217 (1962). 52  Connecticut v American Elec Power Co, 582 F 3d 309, 321 (2d Cir 2009), rev’d on displacement grounds, American Elec Power Co v Connecticut (2011). 53  Juliana v United States, 217 F Supp 3d 1224, 1235-42 (D Ore 2016). 54  American Electric Power Co. (2011), p.  424 (citations omitted). The Supreme Court did not reach plaintiff’s state-law claims. 47 48

Climate Change and the Individual in the United States

207

Massachusetts v EPA had held that the Clean Air Act authorized federal regulation of GHG emissions, and the EPA had begun the regulatory process, the Supreme Court held ‘that the Clean Air Act and the EPA actions it authorizes displace any federal common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants,’55 even before the EPA promulgated regulations. Displacement does not depend on the type of remedy, and the doctrine has been applied to a federal public nuisance claim for money damages.56 So far, the displacement doctrine has not been applied to public trust claims, which may be unique because the government obligation to protect the trust property ‘cannot be legislated away.’57 2.2.4 Proof of Causation Proof of causation may be a significant barrier to recovery, particularly in tort cases claiming damages for injuries caused by climate change. Plaintiffs must generally prove the connection between the defendant’s GHG emissions and plaintiff’s harm, as well as the extent of defendant’s contribution to that harm. The nature of climate change—related to GHGs from many sources—raises significant evidentiary problems because plaintiffs must prove ‘that emissions from a particular site, or group of sites, actually made their way into the atmosphere, and once there contributed to climate change, which then caused a specific event … , and that provable damages ensued.’58 Plaintiffs face the additional burden of proving that defendant’s GHG emissions were a substantial factor in their particularized damages. Some tort causes of action (negligence, negligent nuisance) require proof that the defendant’s actions were unreasonable. Defendants who operated under a valid government permit or whose GHG emissions were not regulated may have acted reasonably. Moreover, in negligence cases, plaintiffs may not meet the requirement of proximate cause if, for example, flood damage was caused by extreme rainfall rather than defendant’s breach of duty. Intentional torts (intentional nuisance, trespass) require proof that the defendant knew of the resulting harm or was substantially certain that harm would result from the defendant’s actions. When plaintiffs claim damages from climate change, difficulties in proving causation and other issues and in collecting a substantial portion of damages mean that the ‘financial viability of these cases from a plaintiff’s perspective in many instances is highly questionable.’59 Problems of proof faced by climate change plaintiffs are often due to ‘gaps or uncertainties in relevant climate science,’ in part because scientific studies have

 ibid.  Native Village of Kivalina v ExxonMobil, 696 F 3d 849 (9th Cir. 2012), cert denied, 569 US 1000 (2013). 57  Juliana (2016), p. 1260. 58  Peresich (2016), p. 32. 59  Gaynor et al. (2010), p. 10,857. 55 56

208

M. R. Grossman

focused on large-scale effects, rather than more local impacts.60 Advances in scientific research may make proof of causation easier, allowing plaintiffs to identify defendants and to apportion their responsibility more accurately.61

3 The Individual as Plaintiff in Climate Change Litigation In the United States, individuals have the right to comment on regulatory proposals and participate in administrative agency proceedings. Moreover, many statutes have citizen suit provisions that allow individuals and others affected by statutory or regulatory violations to sue for violations, generally after meeting threshold requirements discussed above. Few individuals, however, have the resources for costly, protracted litigation against governments or private actors.62 Instead, plaintiffs in climate change litigation tend to be environmental organizations and associations. The following discussion therefore includes some cases brought by environmental organizations.

3.1 Claims Against the Government: Human Rights and Public Trust Despite threats to health and welfare from climate change, few climate change cases in the United States have focused on human rights. In 2005, the Inuit community in Alaska petitioned the Inter-American Commission on Human Rights, claiming that US failure to control GHGs had violated Inuit human rights. The Commission did not decide the case, but the Inuit petition helped to highlight ‘the human rights implications of climate change.’63 In recent years, public trust litigation, often in state courts, has raised human rights claims with assertions that the public trust requires government action on climate change. Using petitions for rulemaking as well as lawsuits, public trust cases form ‘a full-scale, coordinated campaign with multiple suits pending and others teed up in different forums, all connected by a common template of science and law.’64 Most petitions and lawsuits have been unsuccessful, but a few have led to regulatory action. Successful atmospheric trust litigation requires the court to recognize its judicial responsibility to enforce public trust obligations, identify

 Peel (2011), p. 19.  Banda and Fulton (2017), p. 10,130. 62  Class action lawsuits are not prominent in climate change litigation. Sabin Center for Climate Change Law (updated monthly). 63  Burger and Wentz (2015), p. 12. 64  Wood and Woodward (2016), p. 648. 60 61

Climate Change and the Individual in the United States

209

government obligations to protect the atmosphere as a public trust asset, and craft remedies that will ‘ensure that the political branches fulfill their trust obligation.’65 A prominent federal case in Oregon illustrates. Plaintiffs in Juliana v United States66 sued the United States, the President, and executive agencies, alleging that defendants knew for decades that burning fossil fuels destabilized the climate system, but nonetheless enabled exploitation and use of fossil fuels, allowing CO2 concentrations in the atmosphere to escalate. They alleged that defendants’ actions ‘violate their substantive due process rights to life, liberty, and property, and that defendants have violated their obligation to hold certain natural resources in trust for the people and for future generations.’67 Plaintiffs sought a declaration that their rights had been violated and an order enjoining continued violation and requiring preparation of a plan to reduce emissions of CO2. The judge identified the questions at issue: ‘whether defendants are responsible for some of the harm caused by climate change, whether plaintiffs may challenge defendants’ climate change policy in court, and whether this Court can direct defendants to change their policy without running afoul of the separation of powers doctrine.’68 In a thoughtful decision, the judge rejected challenges based on the political question doctrine and standing. The court evaluated plaintiffs’ due process and public trust claims, noting that ‘the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.’69 The court held that ‘where a complaint alleges governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet’s ecosystem, it states a claim for a due process violation.’70 The court considered plaintiffs’ claim of harm to public trust assets and held that the doctrine applies to the federal government.71 Perhaps recognizing the novelty of her decision, the judge commented that ‘[f]ederal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it.’72 Among numerous other motions, defendants petitioned the US Court of Appeals for the Ninth Circuit for a writ of mandamus, seeking dismissal or a stay of discovery and trial. The Ninth Circuit twice denied the government’s mandamus

 ibid pp. 656–669 (quotation at p. 668). Young plaintiffs continue to bring these cases. See, e.g., Reynolds v Florida, No. 37 2018 CA 000819 (Fl Cir Ct, filed 16 Apr 2018). 66  Juliana v United States, 217 F Supp 3d 1224 (D Ore 2016). For more information see Details of Proceedings, linked from Our Children’s Trust (2019); Sabin Center for Climate Change Law (updated monthly). 67  Juliana (2016), p. 1233. 68  ibid p. 1234. 69  ibid p. 1250. 70  ibid. 71  ibid pp. 1255–1261. Public trust claims, unlike federal common-law nuisance, are not displaced. 72  ibid p. 1262. 65

210

M. R. Grossman

petitions.73 In July 2018, the US Supreme Court denied the federal government’s application for a stay as premature. The Court noted, however, the striking breadth of Juliana’s claims, and the ‘substantial grounds for difference of opinion’ on their justiciability: ‘The District Court should take these concerns into account in assessing the burdens of discovery and trial.’74 In a lengthy October 2018 opinion, the trial judge decided defendants’ pending motions for judgment on the pleadings and summary judgment, granting both motions in part (e.g., dismissing the US President as defendant), but denying both judgment on the pleadings and summary judgment. The judge also denied defendant’s request for certification of the trial court’s opinion and order for interlocutory appeal to the Ninth Circuit.75 Although Juliana was scheduled for an October 2018 trial in Oregon, further proceedings delayed trial. The US Supreme Court stayed discovery and trial briefly in October 2018, but vacated the stay of proceedings in November 2018, reasoning that relief to the government could be available in the Ninth Circuit.76 A few days later, federal defendants petitioned the Ninth Circuit for an emergency stay, and that court stayed trial pending its consideration of the defendant’s petition. In the same order, the Ninth Circuit suggested that the District Court reconsider its denial of interlocutory review of its earlier orders.77 The District Judge then issued an order that certified the case for interlocutory appeal and stayed the case until the Ninth Circuit decided the appeal. In January 2020, the Ninth Circuit dismissed Juliana’s case against the federal government on standing grounds, holding that plaintiffs’ claims are not redressable because it is beyond the court’s power to provide a remedy for plaintiffs’ injury.78 Although the District Court’s opinions in Juliana are unique in recognizing the role of public trust in climate change litigation against federal defendants, it is unlikely that plaintiffs will ultimately prevail.79 Indeed, the DC Circuit affirmed the dismissal of a suit against federal defendants because public trust was a matter of state law.80 Similarly, public trust cases in state courts may be unsuccessful. For example, an Oregon appellate court found no state duty to act affirmatively ‘to protect public-trust resources from the effects of climate change.’81 In a case alleging  In re United States, 884 F 3d 830 (9th Cir 2018); In re United States, 895 F 3d 1101 (9th Cir 2018). 74  United States v US District Court for the District of Oregon, 139 S Ct 1 (30 July 2018). 75  Juliana v United States, 339 Fed Supp 3d 1062, 1105 (D Ore 2018). 76  In re United States, 139 S Ct 16 (mem) (2018); 139 S Ct 452 (2018) (denying government motion for stay pending disposition of writ of mandamus). 77  United States v US District Court for the District of Oregon, Order, Case 18-73014 (9th Cir, 8 Nov 2018). 78  Juliana v United States, Order, 2018 WL 6303774 (D Ore, 21 Nov 2018); Juliana v. United States, Case 18-36082 (9th Cir, 17 Jan 2020). In March 2020, plaintiffs petitioned for rehearing en banc. 79  See generally Blumm and Wood (2017). 80  Alec L v Jackson, 863 F Supp 2d 11 (D DC 2012), aff’d sub nom Alec L v McCarthy, 561 Fed Appx 7 (Mem) (DC Cir 2014), cert denied, 135 S Ct 774 (2014). 81  Chernaik v Brown, 436 P 3d 26, 35 (Or App 2019). 73

Climate Change and the Individual in the United States

211

that the public trust obligated the government to regulate GHG emissions, the New Mexico Court of Appeals held that the state constitution includes a public trust duty to protect natural resources, including the atmosphere, but that public trust arguments ‘must be raised within the existing constitutional and statutory framework’ (that is, under the state air pollution law) rather than in a common-law action.82

3.2 Claims Against Public Actors 3.2.1 Mitigation Many federal and state cases seek mitigation of climate change. Some (for example, Massachusetts) demand regulatory action; others demand consideration of GHG emissions and climate change in governmental decision-making.83 Industry cases against public actors often challenge regulatory measures to mitigate climate change.84 Two state-court cases brought by youth plaintiffs as part of Atmospheric Trust Litigation illustrate individual plaintiff lawsuits against public actors for mitigation. In both, plaintiffs sought review of environmental agency denials of petitions for rulemaking. In one, the court required GHG regulations; in the other, the trial court required regulations and recognized plaintiff’s public trust and constitutional rights, but its order was reversed on appeal. In Kain v Department of Environmental Protection, individual state residents and two associations sued to require the Department to regulate GHG emissions as prescribed by Massachusetts law. On appeal of a trial court dismissal, the state Supreme Judicial Court concluded that the Department had not complied with statutory requirements. The court required the Department ‘to promulgate regulations that address multiple sources or categories of sources of greenhouse gas emissions, impose a limit on emissions that may be released, limit the aggregate emissions released from each group of regulated resources or categories of sources, set emission limits for each year, and set limits that decline on an annual basis.’85 Foster v Washington Department of Ecology86 was a public trust challenge to the Washington Department of Ecology’s denial of a 2014 petition for a rule to propose science-based GHG emission limits to the legislature. Court decisions in 2015 emphasized the significance of climate change and the state duty to protect public

 Sanders-Reed v Martinez, 350 P 3d 1221, 1225 (Ct App NM 2015). Plaintiffs were an individual and a conservation organization. 83  Federal common-law tort suits filed before 2011 focused on mitigation. Burkett (2012), p. 11,145. 84  Industry lawsuits, many challenging CAA regulations, are collected at Sabin Center for Climate Change Law (updated monthly). E.g., Utility Air Regulatory Group v EPA, 134 S Ct 2427 (2014) (regulation of stationary sources under the Clean Air Act). 85  Kain v Department of Envtl Prot, 49 NE 3d 1124, 1142 (Mass 2016). 86  Foster v Wash Dep’t of Ecology, No. 14-2-25295-1 (Wash Super Ct, 19 Nov 2015). Numerous trial court orders are collected in Sabin Center Database. For a detailed discussion of Foster, see Wood and Woodward (2016), pp. 669–672. 82

212

M. R. Grossman

trust. The DOE started its rulemaking, but in May 2016, after rulemaking lagged, the judge ordered the DOE to finalize its rule and make recommendations for GHG emission reductions to the legislature87; the DOE appealed, but issued its GHG rule. After further trial court orders that focused on constitutional and public trust rights, in September 2017, the Washington Court of Appeals reversed the trial court’s May 2016 order as an abuse of discretion.88 The trial court’s approach in Foster is significant because of its recognition of the crisis of climate change, its declaration of public trust protection of the atmosphere, and its emphasis on the importance of science for rulemaking. In Foster, the judge ‘declared an atmospheric public trust responsibility of constitutional magnitude in a context framed by urgency, severe danger to humanity, and agency recalcitrance.’89 3.2.2 Environmental Impact Assessment Federal Law A significant number of US cases focus on agency responsibility to consider the impact of GHG emissions and climate change in decision making. Federal cases rely on NEPA, the Endangered Species Act,90 and other statutes; state cases rely on state impact assessment laws. Many NEPA claims have been unsuccessful, but some more recent cases have found treatment of climate change in environmental impact statements (EISs) inadequate.91 Although a 2017 Executive Order required the Council on Environmental Quality to withdraw its 2016 guidance for federal agency consideration of GHG emissions and climate change,92 NEPA will continue to require consideration of climate change in environmental assessments and EISs. Plaintiffs in NEPA cases—often environmental advocacy groups acting on behalf of their members—have sued to force analysis of climate change by federal agencies or to challenge the sufficiency of analysis in an EIS.  A few decisions have  Foster, Order, 2016 WL 11359472 (16 May 2016), following a 29 Apr 2016 ruling from the bench (recognizing ‘extraordinary circumstances’). 88  Foster, 200 Wash App 1035, 2017 WL 3868481 (Ct App Wash 2017) (unpublished opinion). The trial court had not met the requirements for granting relief under the relevant provision of Washington law. 89  Wood and Woodward (2016), pp. 673–683 (quotation at p. 673). See also Martinez v Colorado Oil & Gas Cons. Comm’n, 434 P 3d 689 (Colo App 2017), a rulemaking petition by young plaintiffs who relied in part on public trust and constitutional rights. The Colorado Supreme Court reversed the appellate court’s decision, holding that the Commission committed no abuse of discretion in declining to engage in rulemaking. Colorado Oil & Gas Cons. Comm’n v Martinez, 433 P 3d 22, 33 (2019). 90  The Endangered Species Act, 42 USC §§ 1531–1544, requires consideration of climate change. E.g., Natural Resources Defense Council v Kempthorne, 506 F Supp 2d 322 (ED Cal 2007). 91  Up until 2010, no court had found an agency analysis of climate change in an EIS to be inadequate. Markell and Ruhl (2012), pp. 61–62, For a recent analysis, see Burger and Wentz (2017). 92  Council on Environmental Quality (2016); Trump (2017), p. 16,094. 87

Climate Change and the Individual in the United States

213

required consideration of climate change in impact assessments.93 Many others have evaluated agencies’ climate change analysis under a deferential standard of review and found the agency’s analysis adequate.94 Moreover, some plaintiffs seeking mitigation of climate change under NEPA and other statutes failed to satisfy threshold requirements, including standing.95 For example, environmental advocacy organizations, suing on behalf of their individual members, challenged US Forest Service approvals of coal leases, alleging violations of NEPA and other statutes.96 The trial court affirmed the agency decisions, noting that the EIS prepared by the Forest Service and Bureau of Land Management ‘did not ignore the effects of coal combustion, GHGs and climate change,’ considered risk of harm, and was not arbitrary and capricious.97 This decision, however, has been criticized as ‘an interpretation of NEPA shorn of its capacity to compel agencies to consider how their decisions impact the energy infrastructure that is at the heart of climate change.’98 State Impact Assessment Of the many state-law impact assessment cases, few have named individual plaintiffs. More typical are cases with associations as plaintiffs. State claims, especially under the California Environmental Quality Act, have been more successful than cases under NEPA.99 Some individual plaintiffs challenged consideration of climate change in assessments of local projects, with mixed success. For example, individual plaintiffs challenged their county’s failure to prepare an environmental impact report (EIR) that considered (among other effects) GHG emissions for a subdivision intended for agro-industrial development. The appellate court held that county approval of the subdivision required preparation of an EIR (instead of a less detailed statement)  E.g., Center for Biological Diversity v National Highway Traffic Safety Admin, 538 F 3d 1172 (9th Cir 2008) (requiring agency to consider cumulative impact GHG implications). See Weiland et al. (2014), pp. 160–164 (analyzing case law). 94  Weiland et al. (2014), p. 161. See, e.g., WildEarth Guardians (2013) (upholding a BLM decision to lease tracts for coal mining; EIS discussed climate change, but not its global impacts, and followed CEQ guidance). For more detail, see Kellman (2016b), pp. 10,382–10,383. 95  E.g., Amigos Bravos v US Bureau of Land Mgmt, 816 F Supp 2d 1118 (D NM 2011) (citizen plaintiffs failed to show injury in fact or that harms were fairly traceable to BLM approval of gas leases). 96  WildEarth Guardians v US Forest Serv, 120 F Supp 3d 1237 (D Wyo 2015). 97  ibid p. 1273. 98  Kellman (2016b), p. 10,384. See also Wentz (2017), p. 10,233 & n 28 (stating that courts defer to agency decisions about the scope of climate change review). 99  Cal Pub Res §§ 21,000-21,189.3; Markell and Ruhl (2012), p. 63 (cases to 2010). E.g., Center for Biological Diversity v City of Desert Hot Springs, 2008 WL 3996186 (Cal Sup Riverside Cnty 2008) (holding that failure to consider effects of GHGs made environmental impact report in adequate). 93

214

M. R. Grossman

because of impact on traffic, rather than because analysis of climate change was deficient.100 In another case, an individual and two associations challenged a 2000-­ page EIR on San Francisco’s 2005 Bicycle Plan. The appellate court rejected arguments (among others) that the EIR, which considered GHG emissions, did not adequately consider climate change and other environmental effects of the Bicycle Plan. The court required revision of the EIR to provide specific findings of infeasibility, because the city did not adopt measures that might mitigate significant effects on the environment.101 3.2.3 Adaptation Climate change policy and litigation in the United States has emphasized mitigation, with less focus on adaptation. More recently, however, adaptation has received more attention, both in policy and litigation. State and local law have been particularly important, especially in the context of climate effects on coastal and other communities.102 A few cases demand injunctions to require adaptation measures; others seek compensation for property damage.103 Federal Law Cases filed after Hurricane Katrina, though not strictly adaptation cases, sought damages for failure of the Army Corps of Engineers to adapt to the effects of climate change. The Army Corps’ action in widening the Mississippi River Gulf Outlet shipping channel and moving it closer to levees increased storm surge and the risk of flooding. Claims alleging negligence and temporary taking were ultimately unsuccessful. In re Katrina Canal Breaches Litigation addressed tort claims from plaintiffs (some of the more than 400 individuals) who alleged that the Army Corps’ negligent design and failure to maintain the Mississippi River Gulf Outlet contributed to damage from Hurricane Katrina. The district court concluded that the Corps’ failure led to severe flooding and that the discretionary function exception to the federal Tort Claims Act did not apply.104 In an opinion, later withdrawn, the Fifth Circuit affirmed most of the district court’s legal conclusions.105 On rehearing, however, the same  Rominger v County of Colusa, 229 Cal App 4th 690 (Cal App 2014).  Anderson v City and Cnty of San Francisco, 2013 WL 144915 (Cal App 2013) (not reported). 102  Peel and Osofsky (2015), pp.  2178–2179, 2192. Little adaptation litigation occurred before 2012, although ESA and tort cases had implications for adaptation. ibid p. 2192. 103  Burger and Grundlach (2017), p. 22. 104  In re Katrina Canal Breaches Litig, 647 F Supp 2d 644, 679–698 (ED La 2009). A number of opinions decided claims of various plaintiffs. See Federal Tort Claims Act, 28 USC §§ 2674, 2680(a). 105  In re Katrina Canal Breaches Litig, 673 F 3d 381, 399 (5th Cir 2012) (withdrawn). 100 101

Climate Change and the Individual in the United States

215

panel held the government was immune from liability under the discretionary function exception to the Tort Claims Act.106 In other litigation, St. Bernard Parish and individual property owners filed a takings claim against the United States, alleging that the increased storm surge and flooding after Hurricane Katrina and subsequent hurricanes had resulted in temporary taking of their property. The Court of Claims relied on factual determinations in Katrina Canal Breaches, which found that the Army Corps’ failure was a substantial cause of the flooding. St. Bernard Parish Government held that plaintiffs had protected property interests with reasonable investment-backed expectations, and that the severe and foreseeable flooding constituted a temporary taking.107 In 2016, after failure of the parties to settle or mediate, the Court of Claims calculated just compensation for the plaintiffs’ damages.108 In April 2018, however, the Fifth Circuit reversed the Court of Claims, concluding that ‘the allegations of government inaction do not state a takings claim, and that plaintiffs have not established that the construction or operation of the [Mississippi River Gulf Outlet] caused their injury.’109 As these federal court decisions suggest, ‘[c]urrent tort doctrine shields the government in most cases from negligence suits related to climate change adaptation.’110 Moreover, as the Fifth Circuit indicated, takings claims against government defendants require affirmative action, rather than failure to act. In ‘the traditional paradigm of the Takings Clause, … the government is held liable for directly causing a loss of property that otherwise would not have happened’; government actions should be ‘both the but-for and the proximate cause of property loss.’111 State Law Individual and other plaintiffs can bring adaptation cases against states and local governments; negligence, takings, and fraud are possible causes of action. Some experts argue that tort law is appropriate for ‘adaptation liability,’ particularly if plaintiffs can prove that defendants’ actions were unreasonable ‘in light of the

 In re Katrina Canal Breaches Litig, 696 F 3d 436, 454 (5th Cir 2012), cert denied sub nom Lattimore v US, 133 S Ct 2855 (2013). The Fifth Circuit also held that the government was immune from liability under the Flood Control Act of 1928, 33 USC § 702c. 107  St. Bernard Parish Gov’t v United States, 121 Fed Cl 687 (2015). 108  St. Bernard Parish Gov’t v United States, 126 Fed Cl 707 (2016). 109  St Bernard Parish Gov’t v United States, 887 F 3d 1354, 1368 (5th Cir. 2018), cert denied, 139 S Ct 796 (2019). The court noted that government failure to maintain may state a tort claim, but not a takings claim, which requires affirmative acts. ibid p. 1360. 110  Dana (2016), pp. 287–288, n 29. 111  ibid p. 286. In some instances, however, government failure to prevent property losses—that is, ‘passive takings’—could lead to liability. ibid pp. 289–290; Serkin (2014), pp. 389–401. 106

216

M. R. Grossman

well-­established science of climate change’ and the expectation that governments will provide adaptive infrastructure.112 Sovereign immunity poses obstacles for state-law cases, particularly for fraud and some negligence claims, but is less likely to bar takings claims.113 Although government tort claims acts waive sovereign immunity in some situations (dangerous conditions or failure to maintain public property), state and local governments may be immune from liability for actions involving discretionary functions, nonstructural measures, failure to adopt regulations, or failure to provide benefits that states have no duty to provide. But ‘when governments act as landowners they are subject to liability for impacts from their construction and operation of structural measures.’114 Few state adaptation cases involve individual plaintiffs. In a recent case, after severe storms in 2011 overwhelmed the sewer system, plaintiffs who sustained water damage to their homes sued New  York City and its Department of Environmental Protection in negligence for failure to maintain sewer lines to prevent flooding. The city owed no special duty to plaintiffs, nor did plaintiffs prove negligence; the ‘sole proximate cause’ of flooding was precipitation. Therefore the court granted summary judgment to the city.115 Similarly, in Illinois, plaintiffs sued to recover for flooding of their homes after heavy rainfall. In consolidated cases, the court dismissed claims against Cook County and other government defendants under the Public Duty Rule, which applies to provision of government services owed to the public at large, rather than to individual plaintiffs.116

3.3 Climate Change Cases Against Private Actors Relatively few individual climate change plaintiffs have sued private actors. Owners of private facilities are not protected by sovereign immunity, but the Clean Air Act displaces some federal common-law claims. State tort law claims may remain viable, and some argue that tort claims are particularly appropriate, in part because ‘the

 Burkett (2012), pp. 11,145, 11,147. Proof of causation may be difficult.  Klein (2015). 114  Burkett (2012), pp. 11,153–11,154. See also Burkett (2013). 115  Wohl (2014). 116  Tzakis v Berger Excavating Contractors, Inc, 09 CH 6159 (Cir Ct Cook Cnty 2009). In May 2014, Illinois Farmers Insurance Co. brought 9 class action lawsuits against municipalities and counties in the Chicago area, after 600 insured homes suffered flood damage in heavy April 2013 storms. The suits alleged that defendants were aware of the effects of climate change, but did not prepare for the heavy rains and floods caused by higher global temperatures. The company withdrew the suits in June 2014. E.g., Illinois Farmers Insurance Co v Metropolitan Water Reclamation District of Greater Chicago, No 2014CH06608 (Cir Ct Cook Cnty, filed 16 April 2014, dismissed 4 June 2014). 112 113

Climate Change and the Individual in the United States

217

primary goals of tort law [are] … its ability to resolve disputes between individuals while galvanizing changed behavior amongst communities.’117 Nonetheless, tort cases against private actors have not been particularly successful.118 Impediments to recovery for property damage include proving a breach of duty by past emitters and a causal connection between emissions and harms, as well as the complexity of tort cases. Claims against property developers, or perhaps engineers and architects, who should recognize climate change vulnerability of land that they sell or develop, may be less difficult, but other issues—for example, foreseeability of harm from climate change—may pose obstacles to recovery.119 Comer v Murphy Oil USA was a putative class action lawsuit against a number of energy corporations brought by a dozen individuals who owned coastal property destroyed by Hurricane Katrina. Plaintiffs sued for damages under Mississippi common-­law claims of public and private nuisance, trespass, and negligence, as well as other claims.120 The Fifth Circuit held that landowners had standing for the tort actions, but not the other claims, and that the tort claims were not barred as a nonjusticiable political question. The opinion was vacated when the court granted rehearing en banc,121 but judicial recusals led to a lack of quorum for the rehearing, and the court did not reinstate the vacated opinion.122 More recently, a pending citizen suit brought by Conservation Law Foundation on behalf of its individual members seeks declarative and injunctive relief and civil penalties. Plaintiffs allege that ExxonMobil’s storage terminal (with toxic and hazardous chemicals) poses a risk to public health and the environment, in part because ExxonMobil failed to adapt to effects of climate change, so a storm surge, sea level rise, or extreme rain could flood the facility. In September 2017, the federal district court denied defendant’s motion to dismiss claims for short-term damages, but held that plaintiffs lacked standing for claims for damages not likely to occur until 2050 or 2100.123 Private actors may also be defendants in suits by governmental units. In July 2017, three local governments in California sued private oil, gas, and coal companies alleged to be responsible for 20 percent of pollution from CO2 and methane

 Burkett (2012), pp. 11,147.  E.g., Pietrangelo v S&E Customize It Auto Corp, SCR 100/13, 39 Misc 3d 1239(A) (NY Civ Ct 2013) (unreported disposition). Court dismissed suit against auto bailee for damage after Hurricane Sandy; bailee had no obligation to have insurance, and an ‘act of God’ defense barred negligence claim. 119  Burkett (2012), pp. 11,150, 11,155–11,156. 120  Comer v Murphy Oil, 585 F 3d 855, 859–860 (5th Cir 2009) (later vacated). Other claims were unjust enrichment, fraudulent misrepresentation, and civil conspiracy. 121  Comer v Murphy Oil, 598 F 3d 208 (5th Cir 2010). 122  Comer v Murphy Oil, 607 F 3d 1049, 1055 (5th Cir 2010). 123  Conservation Law Foundation v ExxonMobil Corp, Case No. 1:16-cv-11950, Order (D Mass, 13 Sept. 2017). 117 118

218

M. R. Grossman

from 1965 to 2015.124 Causes of action in the complaints include public nuisance, private nuisance, negligence, trespass, and strict liability for failure to warn and design defect. Quoting industry documents showing that since the 1960s defendants knew, but concealed their knowledge, that GHG pollution from fossil fuels affected climate and sea levels, plaintiffs alleged that defendants’ conduct led to continued sea level rise that injured plaintiffs and their citizens. Plaintiffs’ claims for relief include compensatory and punitive damages, abatement of nuisances, disgorgement of profits, and other costs.125 Individual plaintiffs have claimed climate change fraud, alleging that energy companies have misled investors and the public about the risks of climate change from their activities. For example, a case filed in Texas on behalf of pension fund investors alleged that ExxonMobil had committed securities fraud by failure to disclose climate-related risks. In August 2018, the federal district court denied most of defendants’ motions to dismiss.126 Fraud may become more significant in climate change cases. The Securities and Exchange Commission advised companies ‘to consider climate change and its consequences,’ including physical impacts and extreme weather conditions, in disclosure documents.127 Moreover, the SEC and others are investigating misleading statements from energy companies,128 and an environmental organization petitioned for ExxonMobil’s suspension as a government contractor because of its deceptive behavior and ‘campaign of misinformation’ on climate change.129 Recent research concluded that energy companies knew the risks of climate change, had the opportunity to reduce those risks, but instead acted to misinform the public.130

4 Conclusion As the discussion above indicates, climate change litigation raises complex issues, especially for private plaintiffs. Plaintiffs have raised regulatory challenges as well as common-law and public trust claims, but few plaintiffs have been successful.

 E.g., County of San Mateo v Chevron Corp, No. 17CIV03222 (San Mateo Cnty Sup Ct, filed 17 July 2017). Other plaintiffs were Marin County and Imperial Beach. In August 2017, defendants removed the cases to federal court, but in March 2018, the federal district court remanded the cases to state court, reasoning that federal common law had been displaced, but that plaintiffs are not precluded from asserting state law claims. County of San Mateo v Chevron Corp., 294 F Supp 3d 934 (ND Cal 2018). The remand is on appeal to the Ninth Circuit, Case 18-15503 (27 Mar 2018). 125  On the accountability of fossil fuel companies for their effect on climate change, see generally Burger and Wentz (2018) (reviewing court decisions and challenges to government plaintiffs). 126  Ramirez v ExxonMobil Corp, 334 F Supp 3d 832 (ND Tex 2018). 127  US SEC (2010), p. 6297; see also US SEC (2016). 128  Banda and Fulton (2017), p. 10,134. 129  Waterkeeper Alliance (2016). 130  Center for International Environmental Law (2017). See also Anderson et al. (2017). 124

Climate Change and the Individual in the United States

219

Threshold issues, including standing and displacement, have posed obstacles. Individual and other plaintiffs also face difficulties in proving causation and apportioning responsibility among sources of GHGs. Litigation against governments and public bodies has sometimes resulted in stricter regulation of GHG emissions and more careful consideration of the climate change effects of government actions. In contrast, few claims for damages have been successful. Although US ‘courts to date have been unwilling to impose civil liability on private entities,’ science may help ‘address some of the causation and apportionment hurdles that have made these cases challenging.’131 Even so, individual plaintiffs may conclude that lawsuits to mitigate or adapt to climate change are not financially viable. Environmental and other non-governmental organizations, rather than individual plaintiffs, are more likely to have resources to pursue climate change litigation.

References Anderson D et  al (2017) Utilities knew. Documenting electric utilities’ early knowledge and ongoing deception on climate change from 1968–2017. Energy and Policy Institute. Available at https://www.energyandpolicy.org/utilities-knew-about-climate-change/. Accessed 20 Sept 2018 Banda ML, Fulton S (2017) Litigating climate change in national courts: recent trends and developments in global climate law. Environ Law Rep (Environ Law Inst) 47:10,121–10,134 Blumm MC, Wood MC (2017) “No Ordinary Lawsuit”: climate change, due process, and the Public Trust Doctrine. Am Univ Law Rev 67:1–87 Blunden J et al (eds) (2018) State of the climate in 2017. Bull Am Meteorol Soc 99(8):Si-S332. https://doi.org/10.1175/2018BAMSStateoftheClimate Buente DT et al (2012) A response to what climate change can do about tort law. Environ Law Rep (Environ Law Inst) 42:10,749–10,751 Burger M, Grundlach G (2017) The status of climate change litigation: a global review. United Nations Environment Programme, Nairobi Burger M, Wentz J (2015) Climate change and human rights. United Nations Environment Programme, Nairobi Burger M, Wentz J (2017) Downstream and upstream greenhouse gas emissions: the proper scope of NEPA review. Harv Environ Law Rev 41:109–187 Burger M, Wentz J (2018) Holding fossil fuel companies accountable for their contribution to climate change: where does the law stand? Bull Atomic Sci 74(6):397–403. https://doi.org/1 0.1080/00963402.2018.1533217 Burkett M (2012) Litigating climate change adaptation: theory, practice, and corrective (climate) justice. Environ Law Rep (Environ Law Inst) 42:11,144–11,156 Burkett M (2013) Duty and breach in an era of uncertainty: local government liability for failure to adapt to climate change. Geo Mason Law Rev 20(3):775–802 California Environmental Quality Act, Cal Pub Res §§ 21,000-21,189.3 Center for International Environmental Law (2017) Smoke & Fumes: The Legal and Evidentiary Basis for Holding Big Oil Accountable for the Climate Crisis. Available at https://www.ciel. org/reports/smoke-and-fumes/. Accessed 29 Apr 2019

 Banda and Fulton (2017), p. 10,134.

131

220

M. R. Grossman

Clean Air Act, 42 USC §§ 7401-7671q Climate Action Tracker (2018) Overview. https://climateactiontracker.org/countries/usa. Updated 29 Nov Council on Environmental Quality (2016) Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews. Announced at 81 Federal Register 51,866-51,867 (5 Aug) Craig RK (2014) Climate Change, State Public Trust Doctrines, and PPL Montana. https://ssrn. com/abstract=2380754 Dana D (2016) Incentivizing municipalities to adapt to climate change: takings liability and FEMA reform as possible solutions. Environ Affairs 43:281–317 Dundon LA (2017) Climate science for lawyers. Nat Resour Environ 31(4):20–23 Endangered Species Act, 42 USC §§ 1531-1544 Ewing B, Kysar DA (2011) Prods and pleas: limited government in an era of unlimited harm. Yale Law J 121:350–424 Federal Tort Claims Act, 28 USC §§ 2674, 2680(a) Flood Control Act of 1928, 33 USC § 702c Forzieri G et al (2017) Increasing risk over time of weather-related hazards to the European population: a data-driven prognostic study. Lancet Planet Health 1:e200–e208 Gaynor KA et al (2010) Challenges plaintiffs face in litigating federal common-law climate change claims. Environ Law Rep (Environ Law Inst) 40:10,845–10,857 Gerrard MB (2011) What litigation of a climate nuisance suit might look like. Yale Law J Online 121:135–142 Gerrard MB (2013) Court rulings accept climate science. 250 N Y Law J No. 52 (12 Sept) Gifford DG (2010) Climate change and the public law model of torts: reinvigorating judicial restraint doctrines. South Carolina Law Rev 62:201–259 Grantham Research Institute (n.d.) Climate Change Laws of the World. http://www.lse.ac.uk/ GranthamInstitute/climate-change-laws-of-the-world. Accessed 27 Sept 2018 Grossman MR (2018) Climate change and the individual. Am J Comp Law 66(supp):345–378 Haley N (2017) Letter to U.N. Secretary General António Guterres (4 Aug) Hammond E, Markell DL (2014) Civil remedies. In: Gerrard MB, Freeman J (eds) Global climate change and U.S. law, 2nd edn. ABA Press, Chicago, pp 239–270 Kellman B (2016a) Standing to challenge climate change decisions. Environ Law Rep (Environ Law Inst) 46:10,116–10,122 Kellman B (2016b) NEPA review of climate change. Environ Law Rep (Environ Law Inst) 46:10,378–10,385 Klein J (2015) Potential liability of governments for failure to prepare for climate change. Sabin center for climate change law. Columbia University, New York Markell D, Ruhl JB (2012) An empirical assessment of climate change in the courts: a new jurisprudence or business as usual? Florida Law Rev 64:15–86 May JR (2011) AEP v Connecticut and the future of the political question doctrine. Yale Law J Online 121:127–133 McCormick S et al (2018) Strategies in and outcomes of climate change litigation in the United States. Nat Clim Change 8:829–833. https://doi.org/10.1038/s41558-018-0240-8 Mehling M (2017) A new direction for US climate policy. Carbon Clim Law Rev 11(1):3–24 Nachmany M et al (2014) The GLOBE climate legislation study, 4th edn. GLOBE International and Grantham Research Institute, London. Available at http://www.lse.ac.uk/GranthamInstitute/ wp-content/uploads/2014/03/Globe2014.pdf National Environmental Policy Act, 42 USC §§ 4321-4370f Obama BH (2013) The President’s climate action plan. Executive Office of the President, Washington DC Our Children’s Trust (2019) Securing the Legal Right to a Safe Climate. https://www.ourchildrenstrust.org/. Accessed 24 Apr 2019 Peel J (2011) Issues in climate change litigation. Carbon Clim Law Rev 5(1):15–24 Peel J, Osofsky HM (2015) Sue to adapt? Minn Law Rev 99:2177–2252

Climate Change and the Individual in the United States

221

Peresich RG (2016) Climate change litigation. The Brief (ABA) 45(4):28–33 Sabin Center for Climate Change Law (updated monthly) U.S. Climate Change Litigation. https:// climatecasechart.com/us-climate-change-litigation/. Accessed 24 Apr 2019 Serkin C (2014) Passive takings: the state’s affirmative duty to protect property. Mich Law Rev 113:345–404 Trump DJ (2017) Executive Order No 13,783, promoting energy independence and economic growth. Fed Reg 82:16,093–16,097 (31 Mar) UN Framework Convention on Climate Change (1992) UN Doc. A/AC.237/18 (Part II)/Add.1 UN Framework Convention on Climate Change (2015) Decision 1/CP.21, Adoption of the Paris Agreement. UN Doc FCCC/CP/2015/10/Add.1 (29 Jan 2016)

US Constitution US EPA (2018) Inventory of U.S. Greenhouse Gas Emissions and Sinks 1990–2016 (EPA 430-­ R-­18-003). US EPA, Washington DC US Global Change Research Program (2014) Climate Change Impacts in the United States: Highlights. US Government Printing Office, Washington DC US Global Change Research Program (2018) Fourth National Climate Assessment, vol 2: Impacts, Risks, and Adaptation in the United States. US Government Printing Office, Washington DC US Securities and Exchange Commission (2010) Commission guidance regarding disclosure related to climate change. Fed Reg 75:6290 (8 Feb) US Securities and Exchange Commission (2016) Concept Release. Fed Reg 81:23,916 (22 Apr) Waterkeeper Alliance, Inc (2016) Petition for Suspension or Debarment (14 December 2016). http://climatecasechart.com/case/waterkeeper-alliance-inc-petition-for-exxon-suspension-ordisbarment/. Accessed 27 Sept 2018 Weiland P et  al (2014) Environmental impact review. In: Gerrard MB, Freeman J (eds) Global Climate Change and U.S. Law, 2nd edn. ABA Press, Chicago, pp 153–182 Weisbach D (2012) Negligence, strict liability, and responsibility for climate change. Iowa Law Rev 97:521–565 Wentz J (2017) Planning for the effects of climate change on natural resources. Environ Law Rep (Environ Law Inst) 47:10,220–10,244 Wood MC, Woodward CW (2016) Atmospheric trust litigation and the constitutional right to a healthy climate system: judicial recognition at last. Wash J Environ Law Policy 6:634–684 Wuebbles DJ et al (2017) Climate Science Special Report: Fourth National Climate Assessment, vol 1: Executive Summary. US Global Change Research Program, Washington DC. Available at https://science2017.globalchange.gov/ Zevin A (2017) United States. Carbon Clim Law Rev 11(2):162–165

Court Decisions Alec L v Jackson, 863 F Supp 2d 11 (D DC 2012), aff’d sub nom Alec L v McCarthy, 561 Fed Appx 7 (Mem) (DC Cir 2014), cert denied, 135 S Ct 774 (2014) American Elec Power Co v Connecticut, 564 US 410 (2011) Amigos Bravos v US Bureau of Land Mgmt, 816 F Supp 2d 1118 (D NM 2011) Anderson v City and Cnty of San Francisco, 2013 WL 144915 (Cal App 2013) (not reported) Baker v Carr, 369 US 186 (1962) Center for Biological Diversity v City of Desert Hot Springs, 2008 WL 3996186 (Cal Sup Riverside Cnty 2008)

222

M. R. Grossman

Center for Biological Diversity v Department of Interior, 563 F 3d 466 (DC Cir 2009) Center for Biological Diversity v National Highway Traffic Safety Admin, 538 F 3d 1172 (9th Cir 2008) Chernaik v Brown, 436 P 3d 26 (Or App 2019) Colorado Oil & Gas Conservation Comm’n v Martinez, 433 P 3d 22 (2019) Comer v Murphy Oil, 585 F 3d 855, 859-60 (5th Cir 2009) (later vacated) Comer v Murphy Oil, 598 F 3d 208 (5th Cir 2010) Comer v Murphy Oil, 607 F 3d 1049 (5th Cir 2010) Connecticut v American Elec Power Co, 582 F 3d 309 (2d Cir 2009), rev’d on displacement grounds, American Elec Power Co v Connecticut, 564 US 410 (2011) Conservation Law Foundation v ExxonMobil Corp, Case No. 1:16-cv-11950, Order (D Mass, 13 Sept 2017) County of San Mateo v Chevron Corp, No. 17CIV03222 (San Mateo Cnty Sup Ct, filed 17 July 2017) County of San Mateo v Chevron Corp., 294 F Supp 3d 934 (ND Cal 2018), appeal filed, Case 18-15503 (9th Cir, 27 Mar. 2018) Foster v Wash Dep’t of Ecology, No. 14-2-25295-1 (Wash Super Ct, 19 Nov 2015) Foster v Wash Dep’t of Ecology, Order on Petitioners’ Motion for Relief, 2016 WL 11359472 (16 May 2016) Foster v Wash Dep’t of Ecology, 200 Wash App 1035, 2017 WL 3868481 (Ct App Wash 2017) (unpublished opinion) Friends of the Earth, Inc v Laidlaw Environmental Services (TOC), Inc, 528 US 167 (2000) Illinois Farmers Insurance Co v Metropolitan Water Reclamation District of Greater Chicago, No 2014CH06608 (Cir Ct Cook Cnty, filed 16 Apr 2014, dismissed 4 June 2014) In re Katrina Canal Breaches Litig, 647 F Supp 2d 644 (ED La 2009) In re Katrina Canal Breaches Litig, 673 F 3d 381 (5th Cir 2012) (withdrawn) In re Katrina Canal Breaches Litig, 696 F 3d 436 (5th Cir 2012), cert denied sub nom Lattimore v US, 133 S Ct 2855 (2013) In re United States (Juliana), 884 F 3d 830 (9th Cir 2018) In re United States (Juliana), 895 F 3d 1101 (9th Cir 2018) In re United States (Juliana), 139 S Ct 16 (mem) (2018) In re United States (Juliana), 139 S Ct 452 (2018) Juliana v United States, 217 F Supp 3d 1224 (D Ore 2016) Juliana v United States, 339 Fed Supp 3d 1062 (D Ore 2018) Juliana v United States, Order, 2018 WL 6303774 (D Ore, 21 Nov 2018) Juliana v United States, Case 18-36082 (9th Cir, 17 Jan 2020) Kain v Department of Envtl Prot, 49 NE 3d 1124 (Mass 2016) Lujan v Defenders of Wildlife, 504 US 555 (1992) Martinez v Colorado Oil & Gas Conservation Comm’n, 434 P 3d 689 (Colo App 2017, rev’d, 433 P 3d 22 (Colo 2019) Massachusetts v EPA, 549 US 497 (2007) Native Village of Kivalina v ExxonMobil, 696 F 3d 849 (9th Cir 2012), cert denied, 569 US 1000 (2013) Natural Resources Defense Council v Kempthorne, 506 F Supp 2d 322 (ED Cal 2007) Pietrangelo v S&E Customize It Auto Corp, SCR 100/13, 39 Misc 3d 1239(A) (NY Civ Ct 2013) (unreported disposition) Ramirez v ExxonMobil Corp, 334 F Supp 3d 832 (ND Tex 2018) Restatement (Second) of Torts (1979) Reynolds v Florida, No. 37 2018 CA 000819 (Fl Cir Ct, filed 16 Apr 2018) Rominger v County of Colusa, 229 Cal App 4th 690 (Cal App 2014) Sanders-Reed v Martinez, 350 P3d 1221 (Ct App NM 2015) St. Bernard Parish Gov’t v United States, 121 Fed Cl 687 (2015) St. Bernard Parish Gov’t v United States, 126 Fed Cl 707 (2016)

Climate Change and the Individual in the United States

223

St Bernard Parish Gov’t v United States, 887 F 3d 1354 (5th Cir 2018), cert denied, 139 S Ct 796 (2019) Tzakis v Berger Excavating Contractors, Inc, 09 CH 6159 (Cir Ct Cook Cnty 2009) United States v US District Court for the District of Oregon (Juliana), 139 S Ct 1 (30 July 2018) United States v US District Court for the District of Oregon (Juliana), Order, Case 18-73014 (9th Cir, 8 Nov 2018) Utility Air Regulatory Group v EPA, 134 S Ct 2427 (2014) WildEarth Guardians v Jewell, 738 F 3d 298 (DC Cir 2013) WildEarth Guardians v US Forest Serv, 120 F Supp 3d 1237 (D Wyo 2015) Wohl v City of New York, 45 Misc 3d 1217(A) (NY Sup Ct 2014) Margaret (Peggy) Rosso Grossman  , Ph.D., J.D. (University of Illinois), is Bock Chair Emerita and Professor of Agricultural Law Emerita in the Department of Agricultural and Consumer Economics, University of Illinois (USA). Her research focuses on agricultural and environmental law in the United States and Europe. Grossman is the author of more than 130 law review articles and book chapters published in the United States, United Kingdom, Canada, Australia, The Netherlands, Germany, Denmark, Italy, Spain, and Slovakia. She is author or editor of books published in Europe and the United States, and she has presented papers and lectures in numerous European countries as well as in Australia, China, Taiwan, and Costa Rica. Professor Grossman received three Fulbright Senior Scholar Awards and a German Marshall Fund Research Fellowship. The American Agricultural Law Association awarded her the Distinguished Service Award, the Professional Scholarship Award (twice), and the Excellence in Agricultural Law Award. She received the Silver Medal of the European Council for Agricultural Law. She is a fellow of the Wageningen School of Social Sciences, Wageningen University, The Netherlands.

Climate Change Litigation in New Zealand Caroline Foster

Abstract  The most notable climate change litigation in New Zealand to date is the case of Thomson v Minister for Climate Change Issues. Law student Ellen Thomson filed proceedings in the High Court in 2015, receiving in 2017 a ruling that the Government had been obliged to consider whether its previous greenhouse gas emissions reduction target needed resetting in light of the release of the IPCC’s Fifth Assessment Report. Further climate change litigation of importance and interest includes the Wai 2607 claim brought before the Waitangi Tribunal by the Mataatua Māori District Council. The claim asserts that in the light of the potential effects of climate change on Māori the Government must take action to fulfil its responsibilities to Māori under the Treaty of Waitangi. A change of government in New Zealand in the 2017 Parliamentary elections looks set to result in greater action on climate change than previously, changing the landscape for potential future climate change litigation.

1 Introduction New Zealand is a constitutional monarchy of just under 5,000,000 people, with a unicameral Westminster Parliamentary system and an unwritten constitution. Although the population is small, New Zealand is thought to be responsible for approximately 0.15–0.2% of global greenhouse gas emissions. New Zealand emissions are among the highest level of greenhouse gas emissions per person worldwide.1 With thanks for their assistance to Eleonora Paci, Hannah Reid and Professor Bruce Harris.  New Zealand Productivity Commission (2018). https://www.productivity.govt.nz/.

1

C. Foster (*) Faculty of Law, University of Auckland, Auckland, New Zealand e-mail: [email protected] © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_10

225

226

C. Foster

Challenges for advancing the climate change mitigation agenda as a matter of New Zealand government policy have included the high relative costs of emissions abatement. Successive targets have been set using 1990 as a baseline. New Zealand has historically relied largely on renewable energy resources, particularly hydroelectric power, and because of this there has been reduced scope compared with other countries for emissions reductions through switches to renewable energy post 1990.2 Further, for a developed country, New Zealand’s emissions profile is distinctive. Half of New Zealand’s greenhouse gas emissions derive from gases emitted by farm animals and agricultural activity (methane and nitrous oxide), making it difficult to set targets while sustaining the vital agricultural sector.3 At the same time, in the base year of 1990, New Zealand pastoral farming was the most carbon efficient of all major agricultural producers, according to standard United Nations (UN) Food and Agriculture Organisation research based on output per unit of carbon – such as kilograms of meat or milk solids.4 From 2008 to late 2017 the National (conservative) party was in power in New Zealand. Although the National-led Government remained convinced that “climate change is a global issue that needs to be addressed seriously and promptly by all states”,5 the National-led Government had built its approach to climate change on the view that parties’ Nationally Determined Contributions (NDCs) under the Paris Agreement were to be understood as only the start of a process that will build on ongoing investment in innovation and technology, allowing greater levels of emissions reduction as time goes by.6 Consistent with this thinking, New Zealand’s 2015 NDC set a target (a reduction of greenhouse gas emissions to just over 10% below 1990 levels by 2030, or 30% below 2005 levels by 2030) which was in fact less ambitious than the domestic target it had set back in 2011 (a reduction of 50% below 1990 levels by 2050).7 New Zealand experienced a change in government in national elections in late 2017. The new coalition Government is led by the Labour party, and relies on support from the Green party. In 2018 the Government tasked the Ministry for the Environment with carrying out a national consultation process, centring on the Government’s proposal to introduce a Zero Carbon Bill aiming for carbon neutrality by 2050.8 The strategies envisaged for achieving carbon neutrality include not only investment in new technologies but also increased renewable energy generation and tree-planting, electrification of transportation, greater investment in public transport and continuing New Zealand’s world leading research on emissions reduction in farming. Transitioning to a low emissions economy will likely be a challenging

 ibid. 18.  Thomson v Minister for Climate Change Issues [2017] NZHC 733, Affirmation of Hon Timothy John Groser, former Minister for Climate Change Issues, 13 June 2016, 19–20. 4  ibid. 20. 5  ibid. 7. 6  ibid. 12. 7  Thomson v Minister for Climate Change Issues (n 3) 170, 175–176. 8  Discussing this initiative, Ballinger and Day (2018). 2 3

Climate Change Litigation in New Zealand

227

process, but it is recognised that the sooner this begins to take place the less costly the process will be. The New Zealand Emissions Trading Scheme, operating under the Climate Change Response Act 2002, will remain in place, and will be subject to renovation and adjustment.

2 Climate Change Litigation Highlights in New Zealand Challenges to government action in the New Zealand Courts frequently take the form of proceedings seeking the judicial review of decisions by the executive branch of government, based on established common law grounds as seen in 2017  in Thomson v Minister for Climate Change Issues.9 Difficulties in this context include centrally the doctrine of non-justiciability, excluding the Courts from looking into public policy matters that the executive branch of government is uniquely placed to address. However plaintiffs’ successes establishing the justiciability of climate change matters in other jurisdictions, within limits, may ease the way for judicial consideration of certain aspects of a case, as seen in Thomson, discussed further below. Readers may also be interested to know of the claim brought before the Waitangi Tribunal by the Mataatua District Māori Council, seeking a declaration that the Crown has breached obligations to Māori by failing to employ policies addressing climate change, as well as a number of planning cases as discussed below.

2.1 The Thomson Case In 2015 law student Sarah Thomson, age 26, filed proceedings in the High Court of New Zealand in Wellington against the Minister for Climate Change Issues under the Judicature Amendment 1972.10 The case was heard by Mallon J. The judgment was delivered in 2017. The Court held that the Minister had breached the Climate Change Response Act 2002 by failing to review New Zealand’s 2011 target of a 50% reduction in greenhouse gas emissions by 2050 following the release in 2015 of the Fifth Assessment Report (AR5) of the Intergovernmental Panel on Climate Change (IPCC). The case will help to ensure patterns of engagement, attentiveness and strategy-setting that successive governments have themselves been aware are exactly what will be needed to deal with climate change policy with agility and credibility. Further, Justice Jillian Mallon’s diligent engagement in the substantive scientific and policy issues arising in the case represents an assumption of the judicial responsibility to play an appropriate part within the overall apparatus of government in dealing with climate change.

 Thomson v Minister for Climate Change Issues (n 3).  Since repealed. See now Judicial Review Procedure Act 2016.

9

10

228

C. Foster

Thomson’s case focused around four causes of action. The first cause of action, alluded to just above, asserted that the Minister had breached the Climate Change Response Act 2002 by failing to review New Zealand’s 2011 target of a 50% reduction in greenhouse gas emissions by 2050 following the release in 2015 of AR5, and/or set an appropriate new target. Thomson was successful in making out this claim. However in the circumstances the Court declined to make a declaration of illegality or to consider whether to direct the Government now to review the target, taking into account that the newly elected Labour-led Government had already announced its intentions to set a new target for 2050.11 Thomson’s remaining three causes of action, discussed further below, challenged New Zealand’s NDC, set under the Paris Agreement in the exercise of the Crown’s prerogative powers.12 In dealing with the first cause of action the Court found that the Minister had a discretionary power to review climate change targets like this one, set by the Minister under s 224 of the Climate Change Response Act.13 This contrasted with targets set by regulation under s 225, where the statutory obligation to review a target was clear.14 The Court observed that such a power was to be exercised in accordance with its purpose and where possible interpreted in accordance with New Zealand’s international obligations, including the Paris Agreement and the United Nations Framework Convention on Climate Change (UNFCCC).15 The UNFCCC included a recognition that measures to address climate change would be most effective if “based on relevant scientific, technical and economic considerations” and “continually re-evaluated in the light of new findings in these areas”.16 Its guiding principles included that parties take “precautionary measures to anticipate, prevent or minimise the causes of climate change and mitigate its adverse effects”,17 and there was a commitment for each party to “regularly update national programmes”18 and “periodically review its own policies and practices which encourage activities that lead to greater levels of anthropogenic emissions”.19 The international instruments did not expressly require the review of a domestic New Zealand target at the point when a new IPCC report was issued,20 but they were relevant together with the consideration that a target might require revision in the

 Thomson v Minister for Climate Change Issues (n 3) 98 and 178.  Thomson v Minister for Climate Change Issues, Defendant’s Synopsis of Submissions, 23 June 2017, 124. 13  The text of the Climate Change Response Act 2002 is available at http://www.legislation. govt.nz/. 14  ibid. 84. 15  ibid. 88. 16  United Nations Framework Convention on Climate Change, 31 ILM (1992) 851, Preamble (hereafter United Nations Framework Convention on Climate Change). 17  ibid. Art. 3(3). 18  ibid. Art. 4(1)(b). 19  ibid. Art. 4(2)(e)(ii); Thomson v Minister for Climate Change Issues (n 3) 89. 20  Thomson v Minister for Climate Change Issues (n 3) 91. 11 12

Climate Change Litigation in New Zealand

229

light of the best available scientific information,21 and the Government accepted that the IPCC reports provided the most up-to-date scientific consensus on climate change.22 Long term certainty for taxpayers, business, industry and farmers was a relevant consideration,23 but needed to be balanced with other factors. Justice Mallon considered the publication of a new IPCC report required the Minister to consider whether a s 224 target should be reviewed; the publication of a new report was a mandatory relevant consideration when a Minister determined whether or not to review an existing target.24 Accordingly, the Minister had to consider whether an IPCC report contained information materially altering the situation, and if so a review of the target had to be undertaken. This might or might not lead to a change in the target.25 The Court observed that in broad brush terms the AR5 report required less severe global emissions cuts (35–55% below 1990 levels) in order to remain below the global 2 °C ceiling than the AR4 report of 2007 (requiring cuts of 50–85% below 1990 levels).26 However there might have been other matters in the AR5 causing the Minister to seek a more ambitious target for 205027 and the fact remained that the Minister, as he freely admitted, had not considered whether the 2050 target needed to be reviewed in light of the AR528 (although the Crown had argued unsuccessfully that the substantial policy process undertaken by the Government in formulating New Zealand’s Intended Nationally Determined Contribution (INDC) for the Paris negotiations constituted such a review).29 The Court might have sought further submissions on whether to direct the Minister to review the 2050 target in light of the AR5 had the new Government not announced its intentions to change the target.30 As stated, Thomson’s remaining three causes of action challenged New Zealand’s NDC as set under the Paris Agreement in the exercise of the Crown’s prerogative powers.31 The second cause of action argued that the decision to set the NDC at the level chosen was unlawful on the grounds that the Government had failed to take into account relevant considerations including: the costs of dealing with climate change, the adverse effects of climate change on the inhabitants of the dependent Pacific Island territory of Tokelau and of other developing country parties especially vulnerable to the effects of climate change; and the scientific consensus that the

 ibid. 93.  ibid. 94. 23  ibid. 92. 24  ibid. 94. 25  ibid. 26  ibid. 96. 27  ibid. 97. 28  ibid. 95. 29  ibid. 87. 30  ibid. 97-98. 31  Thomson v Minister for Climate Change Issues, Defendant’s Synopsis of Submissions, 23 June 2017, 124. 21 22

230

C. Foster

combined INDCs of the Parties to the Paris Agreement fell short of the extent and speed of reductions needed to stabilise greenhouse gas emissions concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. The Court found that the Government had taken these matters into account. The third cause of action argued that the decision to set the NDC at the level chosen was unlawful on the basis that it was unreasonable or irrational because there was no rational basis for the belief the NDC would strengthen the global response to the climate change threat and because global scientific consensus showed the NDC to fall short of the targets needed to stabilise greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. The Court observed that there was scope to set higher NDCs over time and declined to find the Government’s decision irrational. Thomson sought in relation to both the second and third causes of action a declaration of the illegality of the Government’s decision and an order quashing the NDC decision and requiring that the decision be remade.32 The fourth cause of action was for a writ of mandamus, should the second and third causes of action be successful. This writ would have required the Minister to set the NDC at a level that would achieve the desired and necessary outcomes. The second and third causes of action failed,33 and therefore the fourth action cause of action did not come into play. 2.1.1 Justiciability The Court considered the question of justiciability at the outset of its consideration of the second cause of action. The Crown argued that the setting of an NDC involved questions of socio-economic and financial policy requiring the balancing of many factors not susceptible of determination by legal yardstick and was a decision appropriately made by elected representatives of the community.34 The Court recognised the constitutional concern “that the Courts perform the functions which are properly within their domain”, as well as “the practical point that the Courts are not equipped to balance competing policy factors, and are unlikely to have sufficient information about them to do so in the context of a legal dispute”.35 However the Court reasoned that it could be appropriate for domestic Courts to play a role in government decision-­making about climate change policy and Courts elsewhere had declined to view the entire subject matter as a “no go” area by virtue of its social, economic and political dimensions, its scientific complexity, or its international legal character or the global nature of the climate change problem. Rather they had recognised the significance of the issue for the planet and that there was a proper role for the

 Thomson v Minister for Climate Change Issues (n 3) 100 and 163.  ibid. 179. 34  ibid. 102(b). 35  ibid. 103. 32 33

Climate Change Litigation in New Zealand

231

Courts to play, subject to constitutional limits.36 Justice Mallon observed that “[t]he importance of the matter for all and each of us warrants some scrutiny of the public power in addition to accountability through parliament and the general elections”.37 The Court reached this view following an eleven page review of climate change cases that had arisen before domestic Courts in other jurisdictions.38 In light of the considerations it had set out in relation to justiciability, the Court went on to consider the grounds for review under the second cause of action. The extent to which the Court engaged substantively with scientific and policy issues in the course of the ensuing analysis is notable. 2.1.2 The Court’s Engagement in Scientific and Policy Issues First, the Court addressed the plaintiff’s assertion regarding the way in which the Government’s economic modelling of emissions reduction costs compared the economic costs of alternative emissions reduction targets against a scenario where no action was taken in relation to climate change on a “business as usual basis” without factoring in the subsequent costs of dealing with dangerous levels of emissions. The Court was not convinced by the evidence for the Crown that modelling such subsequent costs would involve too much difficulty and uncertainty39 but reasoned that the Minister had presumably taken into account concerns about the modelling given that he had been alerted to these.40 Second, the Court considered the plaintiff’s arguments concerning the risk that sea level rise could completely inundate the three atolls comprising Tokelau, standing at only some 3–5 m above sea level.41 New Zealand’s participation in the Paris Agreement applied to Tokelau as a non-self-governing territory of New Zealand in regard to which New Zealand may enter into international obligations. New Zealand had consulted with Tokelau prior to ratification and Tokelau had advised that it wished New Zealand’s ratification to extend to Tokelau.42 The plaintiff bolstered her arguments concerning the need for the New Zealand Government to consider the

 ibid. 133.  ibid. 134. 38  ibid. 105-132, reviewing Massachusetts v Environmental Protection Agency 549 US 497 (2007), 127 S CT 1438 (2007), Juliana v United States No 6:15-CV-1517-TC (DC Or, 8 April 2016) upheld on review in Juliana v United States 217 F Supp 3d 1224 (DC Or, 10 November 2016) (hereafter Juliana v United States), Friends of the Earth v Canada [2009] 3 FCR 201, R (on the application of ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28 [ClientEarth (second SC decision)], Urgenda Foundation v The Netherlands (Ministry of Infrastructure and the Environment) Hague DC C/09/456689/HA 2A 13-1396 Chamber for Commercial Affairs, 24 June 2015. 39  Thomson v Minister for Climate Change Issues (n 3) 138. 40  ibid. 139. 41  ibid. 142. 42  ibid. 151. 36 37

232

C. Foster

risks to Tokelau in setting its NDC with “reference to UNFCCC requirements for parties to give “full consideration” to “[t]he specific needs and circumstances of developing [countries]” especially “small island countries…”.43 In her view, this should have led the Minister to pursue efforts for a global ceiling of a 1.5° increase in emissions.44 Justice Mallon noted that it was clear New Zealand had Tokelau in mind when deciding on ratification of the Paris Agreement, and also that New Zealand intended assisting Tokelau with mitigation costs and the challenges of adaptation.45 Further Her Honour accepted that New Zealand’s NDC was set in light of correct temperature objectives with the aim of holding the increase in global temperatures to well below 2  °C while pursuing efforts to limit their increase to 1.5 °C. These objectives recognised the temperature goal that had been advanced by Pacific Island countries.46 The new IPCC special report expected in 2018 which would deal with the feasibility of limiting global temperature increase to 1.5  °C above pre-industrial levels was to be considered by parties in updating their NDCs by 2020.47 In summary, the Court considered the impact on Tokelauans was a mandatory relevant consideration in the consideration of New Zealand’s responses to climate change but was not persuaded that New Zealand’s NDC was likely to have been any different if the specific circumstances of Tokelau had been considered.48 Third, the Court addressed the plaintiff’s claims that in setting New Zealand’s NDC the Minister had failed to take into account that the combined NDCs of the parties to the Paris Agreement were insufficiently ambitious to deal with the threats posed by climate change. The Court did not consider that this question of ambition was a mandatory relevant consideration. The Paris process would involve an ongoing facilitative dialogue in which the parties to the Paris Agreement would be continuing to address this issue.49 A differently constituted New Zealand government might have balanced matters differently but this Government had been concerned about imposing burdensome costs on the economy especially when there was no ‘easy’ solution to lowering our emissions from a switch to renewable energy and a large proportion of our emissions arose in the agriculture sector”.50

The Government had considered that the passage of time was needed for the development of solutions to lower New Zealand emissions, and the policy it had chosen was to show progression over time as it determined ways to “bend the curve”.51

 Article 3(2), United Nations Framework Convention on Climate Change (n 17).  Thomson v Minister for Climate Change Issues (n 3) 145. 45  ibid. 152. 46  ibid. 153. 47  ibid. 154. 48  ibid. 157. 49  ibid. 159. 50  ibid. 160. 51  ibid. 43 44

Climate Change Litigation in New Zealand

233

The Court found that even if the Paris parties’ combined NDCs were an insufficient response to the dangerous risks of climate change this did not mean that the NDC was outside the proper bounds of the Minister’s power. Turning to the third cause of action, Justice Mallon reiterated that she was not persuaded the Minister had the wrong global temperature aim in mind when setting the NDC.52 The Court rejected arguments that New Zealand’s NDC was aiming simply to “shuffle along with the crowd” rather than to do the most we could, drawing here on evidence from Crown witness Professor David Frame, affiliated with Victoria University of Wellington’s School of Geography, Environment and Earth Sciences and Crown witness. Professor Frame’s evidence compared the New Zealand target with those of other countries.53 Based also on the evidence, the Court was not persuaded that New Zealand was over-relying on “star trek” technology that was yet to be developed54 or an intention to meet emissions targets by the purchase of carbon credits overseas, though carbon pricing could be expected to determine the extent to which this would take place.55 Her Honour was also unpersuaded of arguments that New Zealand’s NDC was unreasonable because of the higher costs of mitigation that would be associated with delay in setting more stringent targets. The balancing of costs was properly for the Executive.56 Evidence from expert for the plaintiff, Professor James Renwick, also affiliated with Victoria University of Wellington’s School of Geography, Environment and Earth Sciences, supported that submission, and Her Honour noted he had said that the consequence of delay is that it will require substantially higher rates of emissions reductions from 2030 to 2050; a much more rapid scale-up of low carbon energy over this period; a larger reliance on CO2 removal in the long term; and higher transitional and long term economic needs”.57

She also observed that New Zealand’s NDC was not set in stone until 2030 and reviews were envisaged. Her Honour went on to observe, though, that delay might indeed increase the costs to New Zealand of reducing emissions over time58 and reiterated that a new Climate Change Minister might not take the same view about the appropriate level of ambition for New Zealand. New Zealand remained free to review its NDC.59 As the new Minister had indicated, an amendment to the NDC might follow from an amendment to New Zealand’s domestic target for 2050.60

 ibid. 164.  ibid. 165-166. 54  ibid. 167. 55  ibid. 56  ibid. 168. 57  ibid. 169. 58  ibid. 176. 59  ibid. 179. 60  ibid. 176. 52 53

234

C. Foster

2.1.3 Expert Evidence The availability of high-quality expert evidence is clearly an advantage in climate change litigation in New Zealand. To the extent that matters are justiciable, this places a Court well to address them. As we have seen, in the Thomson case, the High Court relied on evidence from both Professor James Renwick and Professor David Frame. The claimants in Waitangi Tribunal Claim Wai 2607 have also signalled that they would intend to rely on evidence from Professor Renwick.61 In Thomson the High Court also received evidence for the plaintiff from Dr. James Hansen of the Earth Institute at Columbia University, who appears to have been one of the claimants in the Juliana v United States case.62 Professor Frame’s evidence is of particular interest as he disagreed with the affidavits of the other two experts regarding the adequacy of New Zealand’s NDC. Professor Frame’s evidence demonstrated that New Zealand’s NDC together with the New Zealand Government’s target of a 50% reduction in emissions against 1990 levels by 2050 was consistent with the aim of meeting the international target agreed in Paris of a global 2° ceiling on temperature increase above pre-industrial levels, and he considered that if every country matched the New Zealand policy the world would broadly be on course for the necessary 40–70% global reduction on 2010 emissions.63 He also rejected certain assumptions about how the global burden of emissions reduction should be shared between countries.64 The Environment Court has likewise been assisted by evidence from parties’ experts in past cases.65

2.2 Waitangi Tribunal Claim Wai 2607 Although the Waitangi Tribunal is a permanent Commission of Inquiry rather than a Court, and its powers are only recommendatory, the Wai 2607 claim brought by representatives of Mataatua District Māori Council should be included in this chapter. Established under the Treaty of Waitangi Act 1975, the Tribunal hears claims concerning actions by the Crown in breach of promises made to Māori in the 1840  Wai 2607, Memorandum of Counsel for the Applicant in support of Urgency Application, 4 July 2017, at 100(d) and 100(f) (hereafter Wai 2607, Memorandum of Counsel for the Applicant in support of Urgency Application). 62  Thomson v Minister for Climate Change Issues (n 3) at [112]; Juliana v United States (n 39). 63  Thomson v Minister for Climate Change Issues, Affirmation of David John Frame, 14 April 2016, Conclusion, and see 175(c) of Judgment. 64  ibid. 65  Environmental Defence Society v. Auckland Regional Council & Contact Energy Ltd [2002] II NZRMA 492 (hereafter Environmental Defence Society v Auckland Regional Council & Contact Energy). In Carter Holt Harvey the five experts on coastal hazards involved in the case prepared an agreed statement which was much appreciated by the Court. Carter Holt Harvey HBU Ltd v Tasman District Council [2013] NZRMA 143, at 24-26, (hereafter Carter Holt Harvey HBU Ltd v Tasman District Council). 61

Climate Change Litigation in New Zealand

235

Treaty of Waitangi—te Tiriti o Waitangi. The claimants have sought a declaration that the Government has breached its obligations under te Tiriti by failing to implement policies to address climate change. They have sought recommendations for a stricter emissions reduction target, new policies on mitigation including restructuring or replacing New Zealand’s Emissions Trading Scheme, and the adaptation of policies facilitating adaptation to climate change in ways specific to locations and resources relied upon by Māori. Maanu Paul, the Council Chair and first named claimant, explains that Māori community and business interests likely to be affected by climate change include horticulture, fisheries and forestry, with rising seas also affecting cultural sites.66 There will also be effects on natural eco-systems over which Māori exercise kaitiakitanga (guardianship).67 The claim comes under Article II of te Tiriti, in which the Crown guarantees to Māori: The full exclusive and undisturbed possession of their lands and estates, forests, fisheries and other properties which they may collectively or individually possess as long as it is their wish and desire to retain the same in their possession.

The claimants note that Article II’s reference to “other properties” as translated in Māori “taonga katoa” has been understood to refer to all things highly prized, such as Māori customs and culture.68 For instance, the Crown has been found in breach of Treaty obligations where it has allowed the pollution of local lakes and streams contrary to past understandings.69 A requirement for vigorous action may apply where a taonga is in a vulnerable state, as has been the case with the Māori language.70 The claim invokes an obligation of active protection on the part of the Crown,71 and the claimants draw an analogy between the Crown obligation of active protection and the public trust doctrine recognised in the United States (US) in the Juliana case.72 The Waitangi Tribunal claimants filed an application for an urgent hearing of their claim in July 2017. The change of government in New Zealand may have affected the Tribunal’s response.73

 Wai 2607, Memorandum of Counsel for the Applicant in support of Urgency Application (n 62) 16-20; Macfie (2017), http://www.noted.co.nz/currently/environment/the-man-behind-a-maoribid-to-tackle-climate-change/. 67  ibid. 68  Wai 2607, Memorandum of Counsel for the Applicant in support of Urgency Application (n 62) 57. 69  Waitangi Tribunal Horowhenua, Muaupoko Priority Report (Wai 2200, 2017), 585-87. 70  New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513 Broadcasting Assets (PC) 517. 71  Wai 2607, Memorandum of Counsel for the Applicant in support of Urgency Application (n 62) 40 and 55 citing New Zealand Maori Council v Attorney General [1987] 1 NZLR 641, 664 at line 38 per Cooke P. 72  Juliana v United States (n 39); Wai 2607, Memorandum of Counsel for the Applicant in support of Urgency Application (n 62) paras 69–72. 73  For further details of the claim, see Smith (2018), 7–10. 66

236

C. Foster

3 Further Comments The New Zealand cases canvassed above are distinct from those envisaged by the organisers of this research project as forming the subject of the chapters in this volume. 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, we would expect to see similar types of argument to those in the Thomson case. Plaintiffs would encounter similar obstacles, including the doctrine of non-justiciability—but it might be hoped that similar advantages would prevail, including the availability of counsel and experts. In one case decided on April 2003 the New Zealand Climate Science Education Trust sought judicial review of a decision by a Crown Institute, the National Institute of Water and Atmosphere Research (NIWA), to publish certain data. The NIWA analysis tended to indicate that New Zealand had, over a period of 100 years, experienced a warming trend.74 The Trust argued that NIWA had breached alleged statutory duties with respect to the quality of its science, failed to take into account mandatory relevant considerations, acted unreasonably and acted on a mistake of fact. The Court dismissed the application for judicial review. Consistent with established practice, the Court was cautious about interfering with a decision “made by a specialised body acting within its own sphere of expertise”75 and, further, where it was “not in a position to definitively adjudicate on scientific opinions”.76 The Court was satisfied that NIWA had applied credible scientific methodology and had not breached any statutory duty which it may have had to pursue excellence,77 or failed to consider relevant mandatory considerations,78 or fallen into factual error.79 Neither had NIWA’s action been unreasonable.80 As to litigation drawing on human rights considerations, it needs to be understood that under New Zealand’s constitutional system compliance with both domestic and international human rights law would be most likely to be raised only within the context of judicial review—or possibly if relevant by a private actor as a defence to a prosecution. Human rights concerns could generate mandatory relevant considerations for administrative decision-makers, and under the New Zealand Bill of Rights Act 1990 could require the interpretation of climate change or other legislation and regulations consistently with the civil and political rights protected in the Act. There could potentially be circumstances giving rise to claims of discrimination under the Bill of Rights Act or the Human Rights Act 1993, again most likely  New Zealand Climate Science Education Trust v National Institute of Water and Atmospheric Research Ltd. [2013] 1 NZLR 75. 75  ibid. 41 and 45. 76  ibid. 41-47. 77  ibid. 180. 78  ibid. 181. 79  ibid. 182. 80  ibid. 183. For a critical review of this case see Hardcastle (2014). 74

Climate Change Litigation in New Zealand

237

to come before the Courts in the context of judicial review. A Bill of Rights argument concerning the right of ethnic minorities to enjoy their culture was referred to but not pleaded in the Thomson case in relation to the situation of the people of Tokelau.81 The Judge noted that the application of the Bill of Rights Act in Tokelau was an open question and took the view that in any event the argument would not have added greatly to the plaintiff’s argument.82 Governmental non-compliance with procedural obligations applying to its decision-­making processes would, similarly, to the extent it might be addressed in the Courts, be most likely to be raised in the course of judicial review proceedings. This would be the case whether relevant decisions were taken by a local body or by central government. A local body’s failure to regulate effectively for the protection of communities against flooding or similar other harm could lead to judicial review of the exercise or non-exercise of the local body’s delegated law-making power against the statute under which this power had been delegated and more broadly on grounds such as irrationality and unreasonableness or failure to take into account relevant considerations. Speculation is more difficult in relation to potential legal action against private actors for actions leading to a large rise in greenhouse gas emissions, and calls for pension funds to move towards more climate-friendly investment portfolios. It is doubtful that tort law would cater effectively to the scenarios envisaged, including because of the requirement for causation. In passing it may be worth noting that for any claims in tort against the Crown restrictions apply under the Crown Proceedings Act 1950, allowing proceedings only in respect of acts committed by the Crown’s servants or agents, or by the Crown as an employer or as a property owner or occupant.83 Environmental actors have mounted challenges to local bodies’ decisions to grant consent for activities involving the discharge of greenhouse gases in a number of instances. However, since 2004 New Zealand’s legislation has specified that Councils must exclude from consideration the effects of such discharges on climate change except where use or development of renewable energy enables a reduction in discharges.84 The Supreme Court has twice examined the legislation, making similar findings to this effect in both instances.85 The Government has preferred to deal with emissions sectorally at the national level. In an earlier case prior to 2004, Environmental Defence Society v Auckland Regional Council & Contact Energy Ltd, the Environment Court found it would be of questionable efficacy for the  Thomson v Minister for Climate Change Issues (n 3) 148.  ibid. 83  Crown Proceedings Act 1950 38 R.S. p. 441, ss 3(2)(b) and 6(1). 84  Resource Management Act 1991, s 104E. 85  West Coast Ent. Incorporated v Buller Coal Limited [2013] NZSC 87; Greenpeace New Zealand Inc v Genesis Power Ltd; Genesis Power Ltd v Greenpeace New Zealand Inc [2008] 1 NZLR 803, overturning Greenpeace New Zealand v Northland Regional Council and Mighty River Power Ltd [2007] NZRMA 7. For further detail, Nolan (2018), 1111–1115; for a critique of Greenpeace New Zealand Inc v Genesis Power Ltd see Willis (2010). 81 82

238

C. Foster

Council to impose conditions requiring mitigation of the 1.2 m ton of carbon dioxide emissions that would unavoidably be generated annually by a new gas-fuelled power station.86 The Court therefore dismissed an Environmental Defence Society appeal requesting a declaration that Contact Energy be required to offset the emissions through a forestry programme. However, also in the planning law context, the Environment Court has on at least one occasion 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—and to be half consumed by the 100 year mark.87

4 Conclusion Media attention, to the Thomson case in particular, has raised public and Government awareness of climate change issues. New Zealand has difficult choices to make. The emissions reduction targets that will be set by the new Labour Government will be far-reaching, potentially including the proposed 2050 carbon neutrality goal. Reaching this goal does not look possible without reducing animal numbers.88 As of 2016 New Zealand’s per capita emissions of carbon dioxide were 8.3 ton per person, but when all greenhouse gases were included reached 17.2  ton per person, though still below US (24.0) and Australian (20.4) levels.89 New Zealand recognises that agricultural emissions are a major contributor to global emissions, estimated at around 14%.90 New Zealand took a lead in launching the Global Research Alliance on Agriculture Emissions in 2010, which has successfully identified new practices and technologies for reducing agricultural emissions,91 and continues work domestically. Technologies and practices that will help New Zealand move towards its targets include new feeds and feeding regimes, nitrogen and methane inhibiting vaccines, reduced fertilizer use, low emission technology, increased reliance on renewable energy and use of electric vehicles. Potential climate change litigants will be watching with interest to see the progression of the Zero Carbon Bill and the changes that take place in New Zealand during the 2018–2020 electoral period and thereafter.

 Environmental Defence Society v Auckland Regional Council & Contact Energy Ltd (n 66) 88.  Carter Holt Harvey HBU Ltd v Tasman District Council (n 66). 88  Iles (2017), https://www.stuff.co.nz/business/90672231/crossparty-report-says-nz-must-reduceanimal-numbers-to-hit-emissions-goal discussing a report from UK-based Vivid Economics commissioned by 35 New Zealand MPs. Report and further details available at https://www.parliament. nz/en/get-involved/features/mps-collaborate-across-party-lines-in-response-to-climate-change/. 89  Affirmation of Hon Timothy John Groser (n 4) 24. 90  ibid. 21. 91  For further information discussing the problem of agricultural emissions in global context, Nolan (2018), 1099–1102. 86 87

Climate Change Litigation in New Zealand

239

References Ballinger D, Day J (2018) Why set greenhouse gas reduction targets in legislation? New Zealand Law J:78–81 Hardcastle L (2014) Can’t see the science for the solicitors: judicial review of scientific research in light of NIWA’s case. New Zealand J Public Int Law 12:291–320 Iles J (21 March 2017) Cross-party report says NZ must reduce animal numbers to hit emissions goal, Business Day, https://www.stuff.co.nz/business/90672231/crossparty-report-says-nzmust-reduce-animal-numbers-to-hit-emissions-goal Macfie R (19 August 2017) The man behind a Maori Bid to tackle climate change, http://www. noted.co.nz/currently/environment/the-man-behind-a-maori-bid-to-tackle-climate-change/ New Zealand Productivity Commission (August 2018) Low-emissions economy, Final Report, https://www.productivity.govt.nz/ Nolan D (ed) (2018) Environmental and resource management law. LexixNexis, Wellington Smith N (2018) Climate change disputes and the rights of affected populations: a global stocktake and a review of the New Zealand approach. Paper submitted for The AMINZ ICCA International Arbitration Day, Queenstown, New Zealand, 19 April 2018 Willis E (2010) The interpretation of environmental legislation in New Zealand. New Zealand J Environ Law 14:135–160 Dr Caroline Foster’s  current book project investigates the development of global regulatory standards in international disputes with a focus on disputes relating to the environment and human health. The project is supported by a grant from the Royal Society of New Zealand and will be published in 2021. Dr. Foster’s previous monograph Science, Proof and Precaution in International Courts and Tribunals: Expert Evidence, Burden of Proof and Finality (Cambridge University Press, 2011/2013) was cited by Judges Simma and Al-Khasawneh in the International Court of Justice in the Case Concerning Pulp Mills (Argentina v Uruguay) and by Japan in Whaling in the Antarctic (Australia v Japan). Her wider research interests include international environmental law and harm to shared resources; oceans issues; trade and environment; science and international law; public interests and private actors in international law; international dispute settlement and public international law in general. Dr. Foster took her PhD from the University of Cambridge in 2003. Prior to this she worked as a legal and policy advisor with the New Zealand Ministry of Foreign Affairs, having graduated from the Andres Bello Diplomatic Academy of Chile as a foreign diplomat in 1993.

Climate Change and the Individual: Case Study of the Philippines Jolene Lin

Abstract  This chapter provides a concise overview of the potential pathways for climate litigation and the emerging climate caselaw in the Philippines.

1 Introduction This introductory section provides some context about the Philippine ratification of the Paris Agreement and the treaty’s legal significance in the domestic courts. It also briefly introduces the National Climate Act of 2009.

1.1 The Paris Agreement and the Philippines President Rodrigo Duterte signed the Instrument of Accession for the Paris Agreement on 6 March 2017, which officially entered into force on 22 April 2017.1 In this instrument, the Philippines government states that it will submit its first

I am deeply grateful to Carol Yuen Ai Zhen for superb research assistance. The usual disclaimers apply.  Declaration of the Government of the Republic of the Phillipines, online: http://unfccc.int/files/ focus/application/pdf/philippines-signed_declaration_to_accompany_instrument_of_accession. pdf (accessed on 1 December 2017).

1

J. Lin (*) National University of Singapore, Faculty of Law, Singapore, Singapore e-mail: [email protected] © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_11

241

242

J. Lin

Nationally Determined Contribution (NDC) before 2020.2 At the time of writing, the government is still in the process of finalizing its NDC.3 While member states have been invited to communicate their first NDC no later than when they submit their instruments of ratification or accession of the Paris Agreement, a member state that has communicated an Intended Nationally Determined Contribution (INDC) will be deemed to have satisfied this requirement unless it decides otherwise.4 As such, in the case of the Philippines, between the time of writing and the submission of its first NDC, its international climate change obligations are to be found in its INDC submitted to the UNFCCC Secretariat on 1 October 2015 as well as the general provisions of the Paris Agreement.5 The Philippines has a dualist legal system. International law has to be transposed into domestic law to have effect within the Philippines legal system. The Constitution provides two methods for international law to “enter” the domestic legal system. Article II(2), known as the incorporation clause, states that the Philippines “adopts the generally accepted principles of international law as part of the law of the land…” Article VII(21) states that “[n]o treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.”6 It is therefore by constitutional prescription that rules and norms of international law, including treaties, are made part of Philippine law.7 Once it is part of domestic law, international law has the same status as domestic law and the courts have the power to review the constitutionality or validity of any treaty, international agreement or executive agreement.8 Thus, even though this falls outside the scenario under present consideration, it should be noted that in the Philippines, the Paris Agreement can be subject to constitutional review. An individual who thinks that the NDC that is subsequently submitted by the Philippine government fails to protect his/her constitutional rights can therefore pursue judicial/constitutional review.

 ibid.  Office of the President of the Philippines, Climate Change Commission, Nationally Determined Contributions, online: http://climate.gov.ph/advocacy/nationally-determined-contributions (accessed on 7 December 2017). 4  Decision 1/CP.21, paragraph 22. 5  http://www4.unfccc.int/submissions/indc/Submission%20Pages/submissions.aspx. 6  Affirmed in Guerrero’s Transport Services, Inc v Blaylock Employees Association-Kilusan 71 SCRA 621 (1976). 7  Magallona (2010), p. 3. 8  See discussion in Magallona (2010), ibid. 2 3

Climate Change and the Individual: Case Study of the Philippines

243

1.2 The Philippines’ Intended Nationally Determined Contribution Briefly, the Philippines INDC is premised on the fundamental basis of pursuing climate change mitigation as a “function of adaptation”.9 The Philippines intends to reduce its GHG emissions by about 70% by 2030 relative to its business-as-usual scenario of 2000–2030. It is stated that this mitigation “is conditioned on the extent of financial resources, including technology development and transfer, and capacity building, that will be made available to the Philippines.”10 It is, in my view, very difficult for an individual to enforce the Philippines’ commitments under the Paris Agreement. The Paris Agreement and the Philippines INDC do not confer any private rights (i.e. rights that accrues to an individual such as property rights) or a private right of action (i.e. allowing an individual to seek a remedy from a court for violation of a private right provided by a treaty). Nothing in the INDC or the Paris Agreement gives individuals the right to hold their government accountable in international tribunals or domestic courts. It is also suggested that the phrasing of its commitment gives the Philippine government considerable leeway. It can make the argument that the national climate change policies do not fulfill the mitigation targets as declared in the NDC because of the lack of financial resources and technology transfer that ought to have been made available to the Philippines in accordance with the principle of common but differentiated responsibilities and respective capabilities (CBDR-RC).

1.3 The National Climate Change Act of 2009 The National Climate Change Act of 2009 (Climate Change Act) creates a framework for integrating climate change considerations in the work of all government agencies, the promulgation of a national framework for climate action and sets out the responsibilities of respective ministries and regulatory agencies. It also establishes the Climate Change Commission as the sole policy-making body that is responsible for coordinating and implementing the national climate change policies. Section 11 of the Climate Change Act requires the Commission to formulate a Framework Strategy on Climate Change. The Framework Strategy “shall be formulated…in accordance with the international agreements” and include a component on compliance with international commitments. The Framework Strategy identifies key sectors that have significant mitigation potential and sets out broad goals, but does not include quantitative targets. A case challenging the level of ambition in the   Preamble, Philippines INDC, http://www4.unfccc.int/Submissions/INDC/Published%20 Documents/Philippines/1/Philippines%20-%20Final%20INDC%20submission.pdf. The National Framework Strategy on Climate Change, which serves as the country’s roadmap for climate mitigation and adaptation, identified adaptation as its foundational strategy. 10  ibid, p. 4. 9

244

J. Lin

Framework Strategy can arguably be made on the grounds that the strategy is not sufficiently “formulated…in accordance with international agreements”, particularly the 2 °C commitment in the Paris Agreement and the Philippines’ NDC.

2 Climate Litigation Pathways 2.1 Right to Environment Article II (Section 16) of the Philippine 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 innovative procedural rules to facilitate protection of the people’s constitutionally enshrined rights to life and a healthy environment.11 The Rules of Procedure for Environmental Cases went into effect on 29 April 2010. The Rules govern procedure in civil and criminal cases in the first and second level courts that involve alleged violations of environmental laws, rules and regulations. What is particularly notable about these Rules is the introduction of the Writ of Kalikasan or Writ of Nature. Petititoners can apply for a Writ of Kalikasan to be issued when the alleged environmental damage is of such magnitude that it adversely affects 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 accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity…” (emphasis mine)12 Under the Rules, hearings will take place and the court will render judgment within 60 days of the day on which the writ is filed.13

2.2 Writ of Kalikasan in the Case of a Public Actor Global Legal Action on Climate Change v the Philippine Government was the first climate change-related lawsuit filed using the Writ of Kalikasan.14 The action was brought against a number of government departments—including the Climate

 This was the result of an initiative led by Chief Justice Puno of the Philippines Supreme Court to promote public interest litigation in the quest for environmental justice. A copy of these Rules can be found at: http://www.lawphil.net/courts/supreme/am/am_09-6-8-sc_2010.html. For discussion, see Ramos (2011). 12  Rule 7, section 1. 13  Rule 7, section 15. 14  The author is grateful to the principal petitioner in this case, Antonio A. Oposa, Jr. for sharing information about this landmark case. The case is unreported because it was eventually settled by 11

Climate Change and the Individual: Case Study of the Philippines

245

Change Commission, the Department of Public Works and Highways and the Department of Interior and Local Government—to compel the government to perform its duty under Republic Act 6716 to construct rainwater collectors in every barangay (village) throughout the country “in such number as may be needed and feasible” to ensure that the population enjoys a sustained supply of freshwater and is safe from flooding which occurs frequently because of the absence of a proper rainwater collection system.15 Republic Act 6716 went into effect in March 1989 but had never been implemented.16 The petition was therefore advocating for effective climate change adaptation by seeking enforcement of an existing law. Eventually, a work plan was submitted to the Supreme Court and the defendant government departments signed a Memorandum of Understanding undertaking to carry out the construction works.17 The implementation of the work plan was to be subject to monitoring by the Supreme Court as was the case for the remediation of Manila Bay.18 Victoria Segovia et  al v Climate Change Commission et  al is an illuminating recent decision by the Supreme Court.19 Potential litigants and their counsels should read this judgment carefully to avoid the pitfalls that led to the justices denying the petition. The facts are briefly as follows: The “Road Sharing Principle” was first articulated in Executive Order 774 (Reorganizing the Presidential Task Force on Climate Change) and subsequently finds its expression in the Framework Strategy on Climate Change and the Environmentally Sustainable Transport Strategy. The principle is that “Those who have less in wheels must have more in road”. The Petitioners include those who refer to themselves as Carless People of the Philippines, parents, children, and children of the future. They allege, inter alia, that the failure of the Department of Transportation and Communications (DOTC) and the Department of Public Works and Highways (DPWH) to implement the Road Sharing Principle has resulted in the continued degradation of air quality, particularly in Metro Manila. This is in violation of the petitioners’ constitutional right to a balanced and healthful ecology. The Respondents sought to dismiss the petition on the following grounds: First, the petitioners did not have standing. Secondly, the petitioners failed to adhere to the the signing of a Memorandum of Understanding. This test case of the Writ of Kalikasan is also discussed in Davide (2012) (The author is retired Chief Justice of the Philippines (1998–2005)). 15  Paras. 13.1, 14 of the Global Legal Action on Climate Change v the Philippine Government petition (on file with author). 16  Davide (2012), p. 598. 17  Email correspondence with Antonio A. Oposa, Jr. (on file with author). 18  In Metro Manila Development Authority v Concerned Citizens of Manila Bay, GR 171947-48 (S.C.  Dec 18, 2008), a group of citizens succeeded in compelling the government to clean up Manila Bay after nearly 10 years of litigation. The Supreme Court adopted a procedure that has been incorporated in the Rules of Procedure for Environmental Cases as the Writ of Mandamus. This Writ is an extensive and continuing order by the court. To ensure that there is implementation of its environmental remediation orders, the court requires the defendant government departments to submit written progress reports every ninety orders till the court is satisfied that its orders have been compiled with. 19  Victoria Segovia et al v Climate Change Commission et al, GR 211010 (S.C. March 7, 2017), online: http://sc.judiciary.gov.ph/jurisprudence/2017/toc/march.php. I discussed this case (“The Road-Sharing Case”) in Lin (2014) when the petition was first filed.

246

J. Lin

doctrine of hierarchy of courts. Thirdly, the petitioners are not entitled to the Writ of Kalikasan because they have failed to show that the respondents are guilty of an unlawful act or omission, failed to state clearly the environmental laws that have been violated, and failed to demonstrate that the non-implementation of the Road Sharing Principle caused environmental damage of such magnitude as to prejudice the life, health and property of inhabitants or two or more cities or provinces.20 On standing, the court ruled in favour of the petitioners. The court reiterated that the Rules of Procedure for Environmental Cases had liberalized the standing rules. Nonetheless, there is a difference between a petition for the issuance of a writ of kalikasan and a petition for the writ of continuing mandamus. For the former, it is sufficient that the petitioner represents the inhabitants prejudiced by the environmental harm that is the subject of the writ. The writ of mandamus, in contrast, is only available to one who is personally aggrieved by the unlawful act or omission.21 On the point of hierarchy of courts, the court similarly ruled in favour of the petitioners. It is clear that the Rules of Procedure for Environmental Cases allow direct resort to the Supreme Court to accord stronger protection for environmental rights and it is ultimately within the Supreme Court’s discretion whether to accept petitions brought directly before it.22 It was on the third ground that the petition failed. The court found that the petitioners failed to establish the requirements for the Writ of Kalikasan. In brief, the petitioners failed to show that the defendants were guilty of any unlawful act or violation of environmental laws that constitutes a violation of their right to a balanced and healthful ecology.23 In deciding that the Writ of Mandamus was also not available to the petitioners, the court emphasized that the petitioners were not seeking to compel the performance of an executive act but to implement a policy principle in accordance with their preferences (i.e. the bifurcation of traffic lanes into all-weather sidewalks, bicycle lanes and roads for Filipino-made transport vehicles). The court went on to state that “…the petitioners cannot supplant the executive department’s discretion with their own through this petition”. This sentence encapsulates a key lesson for future potential litigants. A petition for the Writ of Kalikasan cannot merely contain “repeated invocation of the constitutional right to health” and “bare allegations that their right was violated”.24 The petition must clearly state the specific environmental laws, rules and regulations that have allegedly been violated or failure to comply. It is through establishing the breach of these laws, rules and regulations that the court can rule that the petitioner’s environmental right has been violated and therefore qualifies for the issuance of the Writ of Kalikasan. It is recommended that an individual that wants to bring a case against a public actor for allegedly failing to comply with climate change obligations should focus on enforcing, inter alia, quantitative targets such as those found in the NDC (Paris Agreement)

 ibid, p. 4.  ibid, p. 6, reiterating Rule 8 (III) of the Rules of Procedure for Environmental Cases. 22  ibid, p. 7. 23  ibid. 24  Ibid. 20 21

Climate Change and the Individual: Case Study of the Philippines

247

instead of the broad policy strategies laid out in the Framework Strategy and related climate action plans.

2.3 Writ of Kalikasan in the Case of a Private Actor West Tower Condominium v. FPIC25  The West Tower Condominium Corporation petitioned for the issue of a Writ of Kalikasan on behalf of the residents of West Tower Condominium, the Barangay Bangkal area and others, including minors and generations yet unborn, against the First Philippine Industrial Corporation (FPIC), First Gen Corporation (FGC) and their respective board of directors and officers. The White Oil Pipeline (WOPL) System owned by FPIC had leaked in West Tower’s basement, resulting in the shutting down of the sump pit of the condominium to prevent contaminated water from being discharged into the drainage system of Barangay Bangkal. The fumes eventually forced the residents of West Tower to abandon their units when the condominium’s power was shut down. The Supreme Court ruled as follows: First, the petitioners who are affected residents of West Tower and Barangay Bangkal have the requisite concern to pursue the petition as real parties-in-interest, as they were affected by the oil leak and hence stand to be benefited or injured by the judgement in the suit. The West Tower Corp. represents the common interest of its unit owners and residents and is empowered to pursue actions on behalf of its members. Secondly, the Court required FPIC to comply with an action plan set out in a letter submitted by the Department of Energy (DOE). This action plan was finalized after a dialogue between the concerned government agencies and FPIC had taken place. The court ruled that resumption of the commercial operations of the WOPL was conditional upon compliance with the action plan. The DOE would oversee implementation and determine if it is satisfied to allow resumption of operations. Thirdly, the Court denied the petitioner’s prayer for the creation of a trust fund to address similar future contingencies. It ruled that it is a claim for damages that the Court cannot grant.26 It also lies outside the limited purpose of the special trust fund mechanism that the Rules of Procedure for Environmental Cases27 provides for, which is rehabilitation of environmental damage that has already occurred. Finally, the Court did not rule on the alleged liability on the part of the FPIC and FGC officials because the Rules of Procedure for Environmental Cases28 do not provide a legal basis for the Court to award damages to individual petitioners. An individual petitioner will have to file a separate civil suit to seek compensation. Liability can also be determined through criminal proceedings.  West Tower Condominium v. FPIC, et al. G.R. No. 194239, 16 June 2015.  Section15(e), Rule 7 of the Rules of Procedure for Environmental Cases. 27  ibid, Section 1, Rule 5. 28  ibid, Section 15(e), Rule 7. 25 26

248

J. Lin

2.4 Filing a Complaint to the Human Rights Commission Carbon Majors Case29  This is the first climate change-related complaint submitted to a national human rights institution. It is also the first to be accepted by a human rights commission and the first to implicate private actors in alleged human rights abuses. On 22 September 2015, Greenpeace and the Philippine Rural Reconstruction Movement, other non-profit groups and typhoon survivors petitioned the Philippines’ Commission on Human Rights (PCHR) to investigate the responsibility of the ‘Carbon Majors’ for human rights violations or threats of violations resulting from the impacts of climate change.30 The Carbon Majors are 47 coal, oil, gas and cement transnational corporations, including Chevron, Exxon, Shell and BHP Billiton. They are amongst the 90 firms that have been identified as being responsible for nearly two-thirds of global greenhouse gas emissions since the start of the industrial age. For ease of reference, I have set out the PCHR’s powers and functions as stated in the Constitution31: 1) Investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights; 2) Adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court; 3) Provide appropriate legal measures for the protection of human rights of all persons within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection; 4) Exercise visitorial powers over jails, prisons, or detention facilities; 5) Establish a continuing program of research, education, and information to enhance respect for the primacy of human rights; 6) Recommend to Congress effective measures to promote human rights and to provide for compensation to victims of violations of human rights, or their families; 7) Monitor the Philippine Government’s compliance with international treaty obligations on human rights;

 For discussion, see Savaresi and Hartmann (2018).  Specifically, the petition calls for the Carbon Majors to account for breaches of the rights to life, food, water, sanitation, adequate housing, and self-determination. It also alleges that the Carbon Majors have breached the right of Filipinos to development, particularly marginalized and disadvantaged groups that are especially vulnerable to the effects of climate change; Petition Requesting for Investigation of the Responsibility of the Carbon Majors for Human Rights Violations or Threats of Violations Resulting from the Impacts of Climate Change, p. 58. 31  Section 18, Article XIII, The 1987 Constitution of the Republic of the Philippines. 29 30

Climate Change and the Individual: Case Study of the Philippines

249

8) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority; 9) Request the assistance of any department, bureau, office, or agency in the performance of its functions; 10) Appoint its officers and employees in accordance with law; and 11) Perform such other duties and functions as may be provided by law. The petitioners invited the PCHR to do the following: 1 ) Issue a finding of responsibility; 2) Recommend to policy makers to develop and adopt a standard for corporate reporting of human rights issues in the climate change context; 3) Recommend the establishment of an accountability mechanism accessible by those whose rights have been breached by carbon emitters; 4) Request Carbon Majors to submit plans on how to remedy and prevent human rights infringements in the context of climate change; 5) Recommend that the governments of the Philippines and countries where the Carbon Majors are domiciled fulfil the international duty of cooperation to ensure that the Carbon Majors take steps to address the human rights implications of climate change; and 6) Monitor the impacts of climate change on vulnerable communities.32 The Petition advanced the following arguments, broadly speaking: 1) The PCHR can take administrative notice of authoritative statements on climate change and human rights issued by bodies such as the Office of the High Commissioner of Human Rights (OHCHR) as well as the Paris Agreement. 2) The Petitioners argue that although it is not possible to establish causation by a single carbon major, there is substantial probability that climate impacts in the Philippines are significantly worsened by the carbon majors’ past and current activities.33 In this regard, the petitioners draw the PCHR’s attention to various theories on the apportionment of liability in tort law. 3) The Carbon Majors have failed to heed the UN Guiding Principles on Business and Human Rights. The petition cites recent reports by, inter alia, the New York Times and the Center for International Environmental Law that Exxon was aware of the risks of climate change decades ago, which would suggest that the company carried out a disinformation campaign aimed at confusing the public about the risks posed by climate change.34

 Petition Requesting for Investigation of the Responsibility of the Carbon Majors for Human Rights Violations or Threats of Violations Resulting from the Impacts of Climate Change, pp. 59–60. 33  Ages (2016). 34  ibid. 32

250

J. Lin

4) The Carbon Majors Study35 makes it feasible to assign collective or individual responsibility. 5) The precautionary principle and the principles of no-harm, intergenerational responsibility and polluter pays apply as confirmed by the Oslo Principles. The Respondents’ main arguments are: 1) The PCHR lacks personal and subject matter jurisdiction. For example, ConocoPhillips does not have operations in the Philippines.36 2) The PCHR’s authority is limited to investigations involving violations of political and civil rights. In response to the respondent’s first argument, the petitioners counter that the PCHR is not a court of law that needs to acquire, in its technical sense, jurisdiction before it can hear and decide a controversy. They point to the PCHR’s constitutionally enshrined mandate and powers. As to the second argument, the petitioners contend that the human rights enumerated in the petition, including environmental rights, are the very essence of the right to life. In the alternative, even if the rights invoked in the Petition—with the exception of the right to life—are purely economic, social, and cultural rights, the PCHR still has authority to conduct the investigation pursuant to the Constitution and Section 2, Rule 2 of the PCHR Omnibus Rules, which provides that the commission can investigate and monitor all economic, social, and cultural rights violations and abuses, as well as threats of violations thereof. In the first phase of the inquiry (January to March 2016), the PCHR conducted a consultative process, after which an amended Petition was filed in May 2016 to reflect political, legal and other developments. In July 2016, the PCHR called for the Carbon Majors to submit their responses to the Petition within 45 days and confirmed that it will proceed with the inquiry in December 2016. In February 2017, the Petitioners submitted their Consolidated Reply in response to the answers filed by 21 respondent Carbon Majors. From July 2017 onwards, the PCHR conducted data-­ gathering, interviews, focus group discussions, and community dialogues in selected climate change-affected communities. It plans to hold a pre-hearing conference with petitioners and respondents in December 2017 and start public hearings in the first quarter of 2018.37  Carbon Majors Study, online: http://carbonmajors.org/download-the-study/ (accessed on 4 December 2017). 36  Ping Manongdo, ‘Landmark human rights case against world’s biggest fossil fuel firms pushes on’ (Eco-Business, 13 December 2016), online at: http://www.eco-business.com/news/landmarkhuman-rights-case-against-worlds-biggest-fossil-fuel-firms-pushes-on/ (accessed on 17 December 2017). 37  Republic of the Philippines, Commission on Human Rights, “National Inquiry of the Impacts of Climate Change on the Human Rights of the Filipino People” (Press Release), online at: http:// blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2017/20171212_Case-No.-CHR-NI-2016-0001_press-release-1.pdf (accessed on 17 December 2017). 35

Climate Change and the Individual: Case Study of the Philippines

251

This inquiry will potentially contribute to the development of international and regional human rights law. Adverse findings could provide grounds for civil claims in the Philippines by individuals adversely affected by climate change.38 As the PCHR is not a court, it does not have the power to compel companies to reduce emissions or to penalise them. The PCHR can make recommendations to the government and will potentially add to global pressure on shareholders to divest from significant carbon emitters.39 It has been argued that the PCHR can recommend that tougher environmental laws be introduced or that the Philippines government works with the governments of countries where the fossil fuel companies are headquartered to reduce the human rights impact of climate change.40 I would argue that it is not necessary to introduce more stringent environmental laws. Instead, the focus should be on compliance and enforcement of existing laws. There should also be more resources devoted to implementing the Philippines’ climate change national framework and actions plans.

3 Challenging a Public Actor for Approving a Project That Allegedly Does Not Comply with the Law There are two possible routes to consider. The first, which has been discussed, is for the individual to petition for a Writ of Kalikasan. The second is judicial review, which I will elaborate on in this section. The power of judicial review is derived from the Constitution. The Philippine 1987 Constitution defines judicial power as “the duty of the courts of justices to settle actual controversies involving rights which are legally demandable and enforceable” and the duty “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”41 It is noteworthy that the courts have the “duty” to settle disputes before it and may not abstain from deciding controversial issues. Further, the “grave abuse of discretion” standard, which applied solely to the review of judicial decisions before the 1987 constitutional amendments, now encompasses non-judicial decisions by “any branch or instrumentality of the Government.”42 Adjudication can commence only when the following conditions are present. First, an actual and justiciable controversy must exist. This requirement can be  Ages (2016).  John Vidal, ‘World’s largest carbon producers face landmark human rights case’, (The Guardian, 27 July, 2016), online at: https://www.theguardian.com/environment/2016/jul/27/worlds-largestcarbon-producers-face-landmark-human-rights-case (accessed on 17 December 2017). 40  Ucilia Wang, ‘Philippines Climate Case Could Find Fossil Fuel Companies Violate Human Rights’ (Climate Liability News, 5 October 2017), online at: https://www.climateliabilitynews. org/2017/10/05/philippines-climate-change-human-rights/ (accessed on 17 December 2017). 41  Section 1, Article VIII, Philippine Constitution. 42  Pangalangan (2008), p. 318. 38 39

252

J. Lin

satisfied in either of two ways: (1) that there is an alleged contestation between the parties’ legal rights or (2) when the act has had a direct adverse effect on the individual challenging it and the issue is hence “ripe” for adjudication. There are two perquisites for “ripeness”: (1) a branch of government has carried out an act before a court may intervene; and (2) the act has allegedly resulted in an “immediate or threatened injury” to the petitioner.43 Secondly, the petitioners must have standing. They must have sustained or are in immediate danger of sustaining an injury as a result of the act complained of. Citizens can be said to have standing when their grievances are “of transcendental importance, of overreaching significance to society, or of paramount public interest.”44 Thirdly, the question of constitutionality must be raised at the earliest opportunity. Fourthly, the issue of constitutionality must be necessary to the determination of the case itself.45

4 Environmental Impact Assessment The Philippines has a good EIA system that can provide ‘hooks’ for litigation against a public authority for allegedly not complying with its obligations under the EIA law thereby leading to a failure to adapt to climate change. There are no reported cases to the best of my knowledge at the time of writing. Briefly, the Environmental Impact Statement (EIS) System is project-based. It covers environmentally critical projects and projects located in environmentally critical areas. Projects are classified into four categories: Category A projects are environmentally critical projects; Category B are those that are considered non-environmentally critical projects but are located in environmentally critical areas, while Category C and D are projects that are not covered by the EIS System. Each category requires different environmental assessment tools and documentation commensurate with the potential impacts of the project in question. The Department of Energy and Natural Resources’s Environmental Management Bureau (DENR-EMB) is in charge of implementing the EIS System.46 The DENREMB central office provides policy direction, oversight and overall guidance on EIA matters. It also reviews Category A projects. The DENR-EMB regional offices are responsible for Category B, C and D projects.47 The DENR-EMB has promulgated Environmental Impact Assessment (EIA) Technical Guidelines Incorporating Disaster Risk Reduction and Climate Change  Belgica et. al. vs. Executive Secretary, G.R. No. 208566 (November 2013) p. 25.  Belgica et. al. vs. Executive Secretary, G.R. No. 208566 (November 2013) p. 30. 45  Senate of the Philippines v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1, p. 35. 46   Philippines: The Philippine Environmental Impact Statement System: Framework, Implementation, Performance and Challenges (The World Bank Group, Asian Development Bank, June 2007), p. 2. 47  ibid. 43 44

Climate Change and the Individual: Case Study of the Philippines

253

Adaptation Concerns for the conduct of EIA and preparation of EIA reports. The guidelines aim to promote climate change adaptation and disaster risk reduction at the project level.48 For example, when ‘scoping’ the parameters of the EIA, the project developer is required to take into consideration natural hazards and climate change risks.49

5 Challenging a Private Actor Whose Acts Lead to a Large Rise in Emissions The causation issue is the lynchpin in such cases. The lawsuit against Filminera Resources Corporation offers some interesting insights on how a case can be built against a private actor whose acts lead to a large rise in GHG emissions. On 21 June 2016, the Philippine Supreme Court issued a Writ of Kalikasan against five mining companies after petititioners alleged that the mining operations caused water, air and soil pollution. There had been heavy laterite siltation of river systems, coasts, farmlands, fishponds and residential areas. Rampant deforestation had led to serious soil erosion in the lands that they lived on and exacerbated flood problems during typhoons and heavy rains. The destruction of the irrigation system also adversely affected the petititoners’ farming output.50 However, on 8 March 2017, the Philippine Court of Appeals denied a petition by NGO Ang Aroroy ay Alagaan, Inc. and certain individuals for the issuance of a writ of kalikasan against Filminera Resources Corporation (and its directors and officers) because the petitioners failed to establish the causal link between the environmental damage and Filminera’s operations.51 Tests on water samples that confirmed the presence of high levels of mercury failed to establish causation as these tests were conducted before Filminera commenced its gold mining operations. This lack of reliable evidence put forward by the petitioners stands in stark contrast to the evidence that Filminera’s legal team introduced. The latter’s body of evidence introduced into the proceedings convinced the judge that the mining corporation was a responsible corporate citizen that had consistently complied with the relevant environmental laws. This case reflects the realities of a David and Goliath legal battle in which the petitioners did not have the resources to conduct sophisticated environmental quality tests and relied on outdated test results while the mining corporation was represented by a leading law firm that had the resources to mount a strong defense. Putting that aside,  ibid.  ibid, p. 5. 50  Keith A. Calayag, “SC issues Writ of Kalikasan vs 5 mining firms”, SunStar Manila, 21 June 2016, online at: http://www.sunstar.com.ph/manila/local-news/2016/09/29/sc-issues-writkalikasan-vs-5-mining-firms-480726 (accessed on 19 December 2017). 51  Sycip Salazar Hernandez & Gatmaitan, “Client Bulletin: Philippine Court of Appeals Denies Issuance of Environmental Protec on Order Against Mining Company” online at: http://www. syciplaw.com/news/articles/lr/171#.WkyAsBTt6-8 (accessed on 19 December 2017). 48 49

254

J. Lin

the salient point for present purposes is the importance of having a good ‘test case’ that is backed by reliable science that can sufficiently convince the court of the causative link between climate change impacts and the acts of the corporation. This is certainly a tall order, as seen in many cases in the Australian and US climate change docket, although it has also been persuasively argued that tracing the causal connections between particular emissions and resulting harms will become less difficult as scientific knowledge improves.52 In the alternative, it is recommended that litigants focus on establishing the corporation’s non-compliance with environmental laws. This is a ‘low-hanging fruit’ in jurisdictions where enforcement of environmental laws is poor. In the Philippines, it has been reported that nearly half of the companies that have mining operations in the country frequently violate environmental regulations.53

6 Fossil Fuel Divestment Ahead of Pope Francis’ visit to the Philippines in January 2015, climate justice advocates called on the Vatican to divest its fossil fuel investments.54 The Philippine Movement for Climate Justice claims that the Norwegian pension fund provides financing for 50–70% of Philippine coal plants (as of May 2015).55 The fund also directly finances the Semirara Mining and Power Corporation, which operates the oldest and largest coal mine in the Philippines. There have therefore been calls on Norway to divest its fossil fuel investments in the Philippines. However, to the best of my knowledge, there are no reported cases of litigation against private or public actors in pursuit of fossil fuel divestment. This is not surprising. The hurdles that the petititioners would face in bringing a suit against a foreign investor/institutional shareholder are extremely difficult to overcome, for example, the issues surrounding conflict of laws.

 UN General Assembly, “Report of the Special Rapportuer on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment” (A/ HRC/31/52), paras. 36-37, online: https://undocs.org/A/HRC/31/52 (accessed on 19 December 2017). 53  “Philippine regulator: Half of 44 metal mines frequently violate environmental rules” (Reuters, 6 June 2016), online at: https://www.reuters.com/article/us-philippines-politics-mining/philippine-regulator-half-of-44-metal-mines-frequently-violate-environmental-rules-idUSKCN0YS0C1 (accessed on 19 December 2017). 54  Philippine Movement for Climate Justice, “Joint Statement from Church Advocacy Arm and Civil Society Organizations on Climate Change on the Occasion of the Visit of Pope Francis to the Philippines”, online: http://climatejustice.ph/main/1396-2/ (accessed on 30 December 2017). 55  Philippine Movement for Climate Justice, “Divest Norway”, online: http://climatejustice.ph/ main/divest-norway/ (accessed on 30 December 2017). 52

Climate Change and the Individual: Case Study of the Philippines

255

7 Conclusion This report seeks to provide an overview of the opportunities as well as obstacles for climate litigation in the Philippines. From the perspective of the individual, the legal obstacles are numerous and difficult to overcome, namely, the costs of litigation and the extensive resources that is required to mount a good case against a major corporation or the government. However, compared to other jurisdictions in Asia (with the exception of India), the Philippines will be considered a climate litigation frontrunner. With a fairly vibrant civil society, relatively high levels of environmental consciousness and a Supreme Court that is keen to encourage public interest litigation, the Filipino individual finds herself in an enviable position in comparison to her counterparts elsewhere in Asia. The Writ of Kalikasan offers a promising platform for civil actions against private actors for their contribution to climate change as well as judicial review of governmental decisions that fail to adequately promote climate adaptation. It will be interesting to follow the developments in the Carbon Majors petition to the Human Rights Commission. The findings of the Commission are likely to have domestic as well as transnational implications for the individual’s quest for climate justice.

References Ages N et al (2016) Climate change litigation—Philippines investigates carbon majors’ responsibility for human rights breaches. LexisPSL. https://www.greenpeace.org/seasia/ph/ PageFiles/695346/Climate%20change%20litigation%E2%80%94Philippines%20investigates%20carbon%20majors%E2%80%99%20responsibility%20for%20human%20rights%20 breaches.pdf Davide HG Jr (2012) The environment as life sources and the Writ of Kalikasan in the Philippines. Pace Environ Law Rev 29(2):592, Article 9 Lin J (2014) Litigating climate change in Asia. Climate Law 4:140 Magallona MM (2010) The Supreme Court and international law: problems and approaches in Philippine practice. Philippine Law J 85:1 Pangalangan RC (2008) “Government by judiciary” in the Philippines: ideological and doctrinal framework. In: Ginsburg T, Chen HYA (eds) Administrative law and Governance in Asia: comparative perspectives. Routledge, Abingdon Ramos GE (2011) Innovative procedural rules on environmental cases in the Philippines: ushering in a golden era for environmental rights protection. IUCN Acad Environ Law e-J 1:182–191. http://www.iucnael.org/en/e-journal/previous-issues/157-issue-20111.html. Accessed on 21 Nov 2017 Savaresi A, Hartmann J (2018) Using human rights law to address the impacts of climate change: early reflections on the carbon majors inquiry. In: Lin J, Kysar DA (eds) Climate litigation in the Asia Pacific. Cambridge University Press, Cambridge Jolene Lin  is an Associate Professor at the National University of Singapore’s Faculty of Law (NUS). She is also Director of the Asia-Pacific Centre for Environmental Law. Jolene’s research focuses on four broad issues: Climate Litigation as a Strategic Tool to Advance Climate Policy

256

J. Lin

Goals; Global Climate Change Law and Policy; Environmental Law in Asia; and Transnational Environmental Legal Ordering. Jolene has published extensively on these topics in peer-reviewed journals including Journal of Environmental Law, the European Journal of International Law and the American Journal of International Law. She regularly conducts seminars and provides consultancy services to government agencies, judicial bodies, companies and non-governmental organizations. At NUS, Jolene teaches tort law and climate change law. She received the faculty’s teaching award in 2020 in recognition of her passionate commitment to teaching.

Part II

Climate Change Litigation: Going Beyond the Usual Suspects

Litigating Climate Change in Bolivian National Courts Paola Villavicencio Calzadilla

Abstract  Bolivia is strongly affected by the impacts of climate change. In the light of the urgent need to enhance climate action in order to reduce the vulnerability of the country and increase its resilience, this chapter explores the opportunities and challenges of taking climate change cases before national courts. Based on the analysis of the country’s international commitments on climate change and constitutional and legal provisions, this study discusses the potential avenues for bringing climate cases against the government and both public and private actors. The analysis demonstrates that there are valuable opportunities for promoting climate litigation in Bolivia, especially by using rights arguments as legal foundation of constitutional claims. However, to achieve formal success, individuals in Bolivia will need to overcome different legal, social and political challenges. Yet, momentous cases in other jurisdictions may inspire individuals to bring climate-related cases before national courts, hence raising the profile and awareness on climate change issues in the Andean country.

1 Introduction The Plurinational State of Bolivia, located in the center-west of South America, is highly vulnerable to climate change due to its particular geographical, environmental, economic and social conditions. In fact, Bolivia is the second most vulnerable country in the region and is among the least prepared to deal with the impacts of

P. Villavicencio Calzadilla (*) Faculty of Law, Universitat Rovira i Virgili, Tarragona, Spain Faculty of Law, Groningen Centre of Energy Law and Sustainability GCELS, University of Groningen, Groningen, The Netherlands © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_12

259

260

P. Villavicencio Calzadilla

climate change.1 Despite its limited historical contribution to the problem,2 different regions of the country already experience the impacts of climate change. Actually, it has been noted that “[c]limate-related disasters in Bolivia are frequent, severe, and manifold and affect large parts of the population, economy, and ecosystems”.3 While temperatures in Bolivia are projected to increase by up to 3° to 6  °C, the threat to water supplies—affecting rural and urban areas—and the risk of devastating glacier floods have increased as the country has already lost almost half of the glacier surface during the past 50 years.4 Due to severe cycles of the El Niño and La Niña weather phenomena and significant changes in weather patterns, Bolivia is also suffering and will continue to suffer from more frequent droughts, floods, landslides and other extreme events, affecting thousands of people, especially the poorest and most marginalized communities in both rural and urban areas, worsening their life conditions.5 In addition, as one of the most biodiverse countries in the world and home to the world’s most biologically diverse protected area—the Madidi National Park6—a wide variety of the country’s ecosystems are also vulnerable to climate change.7 The recent disappearance of the country’s second largest lake—the Lake Poopo—attributed to, inter alia, climate change, exemplifies the significant effect of climate change on Bolivia, especially on its fragile ecosystems and poor indigenous communities.8 Bolivia addressed the climate crisis by signing and ratifying international agreements on climate change, as well as through the adoption of related policy and regulatory frameworks and institutional development. Moreover, with the aim of protecting people and the environment, the country also constitutionalized the population’s right to a healthy environment and granted nature or Mother Earth legal rights, all of which can be adversely affected by climate change. However, while on the international stage Bolivia achieved a significant elevation of its popularity and political profile as a key player in the international climate justice movement, at national level it appears that the contradictions and discrepancies between development plans and environmental policies adopted by the government hinder an  See ND-GAIN Country Index https://gain.nd.edu/our-work/country-index/rankings/. Accessed 15 Dec 2017. 2  However, deforestation rates in Bolivia have recently increased due to, inter alia, expansion of the agricultural frontier, development of road infrastructures and population growth in forest areas, resulting in a surge in CO2 emissions over the last decades (Andersen et al. 2016; Leguía Aliaga et al. 2011). 3  Seiler et al. (2013a), p. 130. 4  Seiler et al. (2013b) and Cook et al. (2016). 5  Oxfam (2009), Winters (2012) and Brandt et al. (2016). 6  See https://newsroom.wcs.org/News-Releases/articleType/ArticleView/articleId/11294/Twoand-a-Half-Year-Identidad-Madidi-Expedition-Ends-After-Visiting-15-Remote-Sites-in-BoliviasMadidi-National-Park.aspx. 7  Oxfam (2009), p. 10. 8   Casey N and Haner J, ‘Climate Change Claims a Lake, and an Identity’. The New York Times (07 July 2016). https://www.nytimes.com/interactive/2016/07/07/world/americas/bolivia-climatechange-lake-poopo.html. Accessed 18 Dec 2017. 1

Litigating Climate Change in Bolivian National Courts

261

effective national response to climate change, increasing environmental degradation and, therefore, the population’s vulnerability to its effects.9 In this context, considering that climate litigation can “shape large and small-­ scale governmental decision-making, pressure corporations to take action, and reconfigure the public discourse” on climate change issues,10 this chapter analyses the opportunities and challenges to take climate change cases before Bolivian national courts. The chapter begins by examining existing climate change-related policy and regulatory frameworks in Bolivia. Based on the analysis of the country’s international commitments under the United Nations Framework Convention on Climate Change (UNFCCC), constitutional provisions and statutory law, Sect. 3 explores the possible avenues for bringing climate cases against the Bolivian government, as well as against both public and private actors. Having presented the opportunities for climate litigation in Bolivia, Sect. 4 identifies and addresses several political and legal challenges that individuals could face when filing a climate lawsuit in the country. Finally, some concluding remarks are made in Sect. 5.

2 Climate Change-Related Policy and Regulatory Frameworks in Bolivia At the international level, Bolivia signed and ratified the UNFCCC11 and its Kyoto Protocol.12 Yet, as a non-Annex I country under the Convention, it has no specific obligation to reduce its greenhouse gases (GHG) emissions. More recently, Bolivia submitted its first Nationally Determined Contribution (NDC)13 to the UNFCCC Secretariat and became party to the Paris Agreement on climate change.14 The country has not accepted a national GHG emission reduction target within its NDC; instead, the government has made a commitment to undertake ambitious efforts to address the impacts of climate change. In concrete terms, Bolivia proposes a national contribution to climate change structured in two dimensions: one related to structural solutions and the other linked to national actions and results within the country’s framework for an holistic development. The first dimension on structural solutions is related to the promotion of a new model of civilization, contrary to the current capitalist model, and based on the concept of Living Well (Vivir Bien) in

 See Aguirre and Cooper (2010) and Villavicencio Calzadilla and Kotzé (2018).  Osofsky (2010), p. 5. 11  Law No. 1576, 25 July 1994. 12  Law No. 1988, 22 July 1999. 13  See Intended Nationally Determined Contribution from the Plurinational State of Bolivia (2015) http://www4.unfccc.int/ndcregistry/PublishedDocuments/Bolivia%20(Plurinational%20State%20 of)%20First/INDC-Bolivia-english.pdf. Accessed 8 Nov 2017. 14  Law No. 835, 17 Sept 2016. 9

10

262

P. Villavicencio Calzadilla

harmony with Mother Earth.15 Thus, the Bolivian contribution to the climate crisis calls for, inter alia, the defense of universal common goods, including the atmospheric space, and the protection of Mother Earth’s rights, to which I will refer later.16 The second dimension of Bolivia’s contribution—the most relevant for the purpose of this study—covers a series of national mitigation and adaptation actions in areas of water, energy, forest and agricultural policy, aimed at achieving living well in the context of climate change. Among the several goals outlined with regard to these areas are the pledges to increase the share of renewable energy in electricity generation from 39% in 2010 to 79% by 2030, to reach zero illegal deforestation by 2020, and to increase the surface of forested and reforested areas to 4.5 million hectares by 2030.17 At the national level, though no specific climate law has been passed by the Bolivian government so far, the vulnerability of the country to climate change has been addressed by the adoption of constitutional and legal provisions—specially focused on environmental issues—which help to deal with its adverse impacts.18 The Environmental Law (Ley de Medio Ambiente),19 adopted in 1992, establishes, inter alia, the duty of the State and society “to maintain the atmosphere in such conditions that allow life and its optimal and healthy development”.20 Although this environmental regulation seeks to protect the environment in Bolivia, it is quite general and it does not specifically address the issue of climate change. In 2009, Bolivia elevated the environmental protection from statutory level to constitutional level. Indeed, the Bolivian Constitution21 recognises the right of every person to a healthy environment, which might be compromised by the impacts of climate change on the country. Namely, article 33 reads as follows [e]veryone has the right to a healthy, protected and balanced environment. The exercise of this right must be granted to individuals and collectives of present and future generations, as well as to other living things, so they may develop in a normal and permanent way.

This provision is complemented by article 34 stating that [a]ny person, in his own right or on behalf of a collective, is authorized to take legal action in defense of environmental rights, without prejudice to the obligation of public institutions to act on their own in the face of attacks on the environment.  On the Mother Earth concept, see Villavicencio Calzadilla and Kotzé (2018), pp. 17–18.  Bolivia’s NDC, p. 6. 17  ibid. p. 10. 18  However, there are important shortcomings and contradictions in the country’s laws relating to environmental protection that might have implications on the national approach to climate change. See Villavicencio Calzadilla and Kotzé (2018). 19  The environmental general regulations in Bolivia, applicable to all activities that might have an impact over the environment are the Environmental Law No. 1333 of 23 March 1992 and the Supreme Decree No. 24176 of 8 December 1995, containing 6 regulations to the Law 1333: Environmental Management, Environmental Prevention and Control, Atmospheric Pollution, Hydro Pollution, Hazardous Substances, and Solid Waste. 20  Environmental Law No. 1333, Art. 40. 21  Constitution of the Plurinational State of Bolivia, 7 Feb 2009. 15 16

Litigating Climate Change in Bolivian National Courts

263

As rights usually have corresponding duties, according to article 108(16) of the Constitution, the environmental right creates the duty on every Bolivian to protect and defend a suitable environment for the development of living beings. This obligation is reiterated and completed in article 342, providing that [i]t is the duty of the State and the population to conserve, protect and use natural resources and the biodiversity in a sustainable manner, as well as to maintain the equilibrium of the environment.

In addition, article 312(III) stipulates that all forms of community, state, private and public cooperative economic organizations recognized in the supreme law have the obligation to protect the environment. Following the constitutionalisation of the environmental right that extends its protection to “other living things, so they may develop in a normal and permanent way”,22 in 2010 the government adopted the Law of the Rights of Mother Earth (Ley de la Madre Tierra),23 the world’s first statutory law granting Mother Earth equal rights to humans. This law enumerates specific rights to which Mother Earth is entitled, including the right to continue vital cycles and processes free from human alteration; the right to pure water and clean air; the right to balance; the right not to be polluted; and the right not to have cellular structure modified or genetically altered.24 Likewise, the law also states obligations and duties of the state and society to ensure respect for those rights.25 In the context of climate change, the recognition of the rights of nature is relevant not only because, at least on paper, it could help reducing the GHG emissions and pollution of the country, for example by limiting the development of mega-infrastructures and extractivist projects that affect the balance of Mother Earth and have implications on climate change, but also because it can ensure the protection of nature’s components, like forests, that have by themselves the potential to mitigate climate change.26 Aiming to operationalise the rights of Mother Earth recognized in 2010, in October 2012 the Bolivian government adopted the Framework Law of Mother Earth and Integral Development for Living Well (Ley Marco de la Madre Tierra y Desarrollo Integral para Vivir Bien),27 which includes several provisions focused on climate change issues. For example, it refers to the State’s commitment to develop policies, strategies and legal techniques related to the mitigation of and adaptation to climate change.28 It also creates three climate mechanisms: the Joint Mitigation and Adaptation Mechanism for Integral and Sustainable Management of Forests and Mother Earth (Mecanismo conjunto de mitigación y adaptación para el manejo  Constitution of the Plurinational State of Bolivia, Art. 33.  Law No. 071 of the Rights of Mother Earth, 21 Dec 2010. 24  ibid. Art. 7. 25  ibid. Arts. 8-9. 26  Griscom et al. (2017). 27  Framework Law No. 300 of Mother Earth and Integral Development for Living Well, 15 Oct 2012. 28  ibid. Art. 32. 22 23

264

P. Villavicencio Calzadilla

integral y sustentable de los bosques y la Madre Tierra), and the Mitigation and Adaptation Mechanisms for Living Well (Mecanismo de Mitigacion y Mecanismo de Adaptación para Vivir Bien).29 Moreover, it creates new climate change institutions, including the Plurinational Authority of Mother Earth (Autoridad Plurinacional de la Madre Tierra) that is responsible for the formulation and supervision of climate change policies, and the Plurinational Fund for Mother Earth (Fondo Plurinacional de la Madre Tierra) aimed at obtaining, managing and assigning financial resources to the aforementioned climate mechanisms.30 It should be noted, however, that while this law seeks to promote actions to reduce the vulnerability of the country and Mother Earth to the impacts of climate change, it also includes provisions related to the promotion of strategic sectors—such as agriculture, livestock, mining and hydrocarbons—with important climate change implications.31 Finally, a recent legislative development took place in November 2014, when the government adopted the Law of Risk Management (Ley de Gestión de Riesgos)32 in order to promote the necessary legal and institutional changes in the country to manage natural disasters and climate risks and adaptation comprehensively.

3 Climate Change Litigation in Bolivia At the time this chapter was written, in contrast with other countries of the continent—such as Colombia—there was no experience of climate change litigation in Bolivia. So far, no case where climate change was the core or central issue had been filed in national courts. Yet, there has been some cases (especially constitutional claims) that, while not explicitly tied to specific climate change issues and arguments, if won, could have had clear implications for climate change in the country.33 Based on the analysis of the country’s international commitments under the UNFCCC (especially those in its NDC), constitutional provisions and statutory laws, in the following sections I will discuss some of the potential opportunities that individuals in Bolivia could have for bringing climate change claims before national courts. Prior to that, it is worth mentioning that Bolivia’s legal system is based on Civil Law tradition and therefore, the sources recognized as authoritative in the country are principally legislation.

 ibid. Arts. 54-56.  ibid. Arts. 53 and 57. 31  For a more in depth analysis, see Villavicencio Calzadilla and Kotzé (2018). 32  Law No. 602 of Risk Management, 14 Nov 2014. Supreme Decree No. 2342 of 2015 regulates this law. 33  See Sect. 3.2 below. 29 30

Litigating Climate Change in Bolivian National Courts

265

3.1 Claims Against the Government As noted before, Bolivia has no specific obligation under the UNFCCC to reduce its GHG emissions. No national GHG emissions reduction target was incorporated in the country’s NDC either. In this context, no climate change-related lawsuit against the Bolivian government could be filed on the basis of not complying with a specific GHG emission reduction target (as it does not exist). However, the commitments stated in the NDC and those incorporated into the regulation—described in the previous section— together with the State’s constitutional duty to “maintain the equilibrium of the environment”,34 could be used as core elements to bring a climate case against the government before a national court. Moreover, the lack of or delay in effective governmental action that not only increases the vulnerability of the population but also undermines their right “to a healthy, protected and balanced environment”,35 could be used by individuals as foundations for filing a rights-based claim against the government in order to enhance mitigation and adaptation actions and protect the rights of the population. Indeed, arguments related to the constitutional right of present and future generations to a healthy environment as well as the duty of the State to maintain the equilibrium of the environment could be used as legal foundation for a climate lawsuit against the government for its failure, delay and lethargy in implementing effective (mitigation and adaptation) actions and responses to comply, for example, with its national pledges included in its NDC as well as those stated in the Framework Law No. 300 or Law No. 602 of Risk Management, giving rise to the violation of such right. For example, the country’s NDC includes, inter alia, a pledge to eradicate illegal deforestation by 2020. Nevertheless, while Bolivia committed to protect its forest through the Constitution and the Law of Mother Earth, deforestation in the country continues and rates have recently increased. In fact, it has been estimated that Bolivia lost around 350,000 hectares of forests annually by deforestation (legal and illegal) and that deforestation is responsible for more than 80% of the country’s total CO2 emissions.36 These numbers reveal that despite the efforts made,37 the government has not undertaken significant and effective actions to reach its zero deforestation pledge. On the contrary, the Bolivian government decided to implement an agricultural development plan that includes the expansion of the agro-­industrial  Constitution of the Plurinational State of Bolivia, Art. 342.  ibid. Art. 33. 36  Tabuchi H, Rigby C, White J, ‘Amazon Deforestation, Once Tamed, Comes Roaring Back’. The New  York Times (24 Feb 2017) https://www.nytimes.com/2017/02/24/business/energy-environment/deforestation-brazil-bolivia-south-america.html. Accessed 15 Nov 2017. 37  For example, in 2016 the government adopted two Supreme Decrees (No. 2912 and No. 2914) that (1) declare the National Forestation and Reforestation Program (PNFR) as strategic and national priority; and (2) create the Program for Monitoring and Control of Deforestation and Degradation of Forest (Nuestros Bosques). 34 35

266

P. Villavicencio Calzadilla

frontier (by one million hectares per year until 2020) as well as free export of certain products—such as soy and meat—which could lead to more deforestation, including illegal deforestation.38 On this basis, a constitutional rights-based claim could be brought against the government for failing to fulfil its zero deforestation pledge as well as its duty to protect the environment, threatening the constitutional environmental right of the population. Similarly, environmental rights could be used as a legal foundation to bring a claim against the government for its failure to take adequate adaptation measures to safeguard the population from the impacts of climate change and thus infringing constitutionally protected rights. As the current adaptation commitments of the Bolivian government included in its NDC (i.e. expanding the agro-industrial frontier to ensure food sovereignty and building hydroelectric mega dams to reduce the hydric vulnerability of the country) seem to be inadequate to reduce the vulnerability to climate changes and, on the contrary, threaten the right to a healthy environment (and the climate balance), a rights-based claim could also be filed challenging the adequacy of those adaptation strategies. Another possibility could be to bring a case against the government for promoting the investment of pension funds, whose management is in the hands of a State-­ owned company (the Public Management Body for Long-term Social Security or Gestora Pública de la Seguridad Social de Largo Plazo),39 in strategic sectors such as mining and hydrocarbons.40 While there are no legal provisions prohibiting investments of pension funds in the fossil fuel industry, impeding climate cases to be brought on this basis, as fossil fuel extraction largely contributes to climate change and causes environmental harm, any person could file a case against the government on the basis of constitutional environmental rights for helping financing fossil fuels industry’s activities. Thus, considering the State’s purpose and function of “preserving the environment for the welfare of present and future generations”,41 by connecting the investment in fossil fuels with the creation of environmental harm that could adversely affect the enjoyment of the environmental right, such case could be filed to protect the environmental right of present and future generations 38  Heridia H, ‘Gobierno se abre a construir la agenda del millón de ha’. El Deber (29 Oct 2014) http://cambioclimatico.org.bo/website/index.php/content-layouts/discusion-sobre-economiaverde/110-gobierno-se-abre-a-construir-la-agenda-del-millon-de-ha. Accessed 17 Nov 2017; Ellerbeck A, ‘Bolivia’s aggressive agricultural development plans threaten forests’. Mongabay (8 June 2015) https://news.mongabay.com/2015/06/bolivias-aggressive-agricultural-developmentplans-threaten-forests/. Accessed 17 Nov 2017. 39  Pension Law No. 065, 10 Dec 2010, arts. 147 ss. 40  El País, ‘El Gobierno trabaja propuesta para mejorar la rentabilidad de las AFP’ (22 Sept 2017) http://www.elpaisonline.com/index.php/component/k2/item/268155-el-gobierno-trabaja-propuesta-para-mejorar-la-rentabilidad-de-las-afp. Accessed 10 Jan 2018. The promotion of investments in these strategic sectors from State-owned companies is already supported Law No. 516 on Investment Promotion (Ley de promoción de inversiones), adopted on April 2014, and Law No. 767 of Dec 2015 aimed at promoting investments in exploration and exploitation of hydrocarbons in the country. 41  Constitution of the Plurinational State of Bolivia, Art. 9(6).

Litigating Climate Change in Bolivian National Courts

267

which could be affected by the negative consequences of burning fossil fuels and the subsequent GHG emissions.42 For constitutional rights-based claims, the Bolivian Constitution provides a mechanism called “popular action” (Acción Popular) to protect and defend rights and collective interests, including those embraced by the right to the environment. As stated in article 135, a popular action shall proceed against any act or omission by the authorities or individuals or collectives that violates or threatens to violate rights and collective interests related to public patrimony, space, security and health, the environment and other rights of a similar nature that are recognised by this Constitution.

Thus, in accordance with article 34 of the Constitution stating that “[a]ny person […] is authorized to take legal action in defense of environmental rights”, a popular action could be filed by any person (in her/his name or on behalf of a collective) against the Bolivian government for the defense and enforcement of the environmental right. Importantly, this action can be filed during the period in which the violation or threat to this right continues and it is not necessary to exhaust the judicial or administrative processes that might exist.43 While this constitutional claim could seek the enforcement of environmental rights recognized by the Bolivian Constitution,44 it ultimately could challenge government mitigation or adaptation failures and force greater climate action in order to safeguard these rights. This constitutional defense action is regulated by the Code of Constitutional Procedures (Código Procesal Constitucional)45 and the Law No. 027 on the Plurinational Constitutional Tribunal (Ley del Tribunal Constitucional Plurinacional).46

3.2 Claims Against Public Bodies’ Decisions Considering the existing constitutional and legislative frameworks related to the environment, a climate change claim could also be filed against public actors’ decisions impacting national commitments and approaches to climate change mitigation and adaptation. For example, a case could focus on a public body’ decision linked to a project—in oil, mining, energy, agriculture or infrastructure sectors—that would lead to a rise in GHG emissions.  However, in order to gain support, any action of this kind would need to be accompanied by serious and realistic proposals for reinvesting pension funds in (environmentally sustainable) projects that may have better returns than fossil fuels stocks and bonds. 43  Constitution of the Plurinational State of Bolivia, Art. 136.I. 44  See, e.g., Paniagua et al. v. Gobernador del Dpto. de Santa Cruz et al, Plurinational Constitutional Court, Judgment 1082/2013-L, 30 Aug 2013. Available at: https://buscador.tcpbolivia.bo/_buscador/(S(rz1kan15iojvyior0uoonfuh))/WfrJurisprudencia1.aspx. 45  Code of Constitutional Procedures, 5 Jul 2012, Arts. 68-71. 46  Law No. 027 on the Plurinational Constitutional Tribunal, 6 July 2010, Arts.94-100. 42

268

P. Villavicencio Calzadilla

According to the national environmental legislation (Law 1333 and its regulations),47 any actor intending to develop a project, work or activity in Bolivia that could potentially have a negative impact on the environment, is required to obtain an environmental permit prior to the commencement of the activities.48 This administrative resolution allowing the project’s operation is granted by the competent environmental authority when the project or activity has fulfilled all the necessary requirements of prevention and environmental control.49 Precisely, in order to obtain the environmental permit, the applicant is required to assess and report any potential impact that the proposed project could cause on the environment as well as formulate possible mitigation measures addressing its negative impacts.50 The information provided should help determine the characteristics of the project, as well as the kind of EIA that needs to be undertaken before to grant an environmental authorisation. In Bolivia, the EIA regulation does not include an explicit requirement for mandatory consideration of climate change impacts (or to undertake a climate change impact assessment). However, it requires that an assessment of the environmental impacts should contain the relevant information related to all the impacts of the proposed activity (including its nature, duration, degree of reversibility, among other things).51 Therefore, considering the constitutional right of every person to a healthy environment as well as the duty of the State and the society to protect the environment and maintain the atmosphere in such conditions that allow life and its optimal and healthy development,52 it could be argued that the EIA for an emissions-­ intensive project which may lead to a rise in GHG emissions should also consider its climate change impacts. In addition, the environmental regulation states that the applicant needs to carry out a consultation process to publicise the characteristics of the projects, its potential impacts and the mitigation measures that would be adopted in order to consider the comments, suggestions and recommendations made by the project-affected people.53 Such procedural obligation is consistent with the Bolivian Constitution stating that [t]he population has the right to participate in environmental management, and to be consulted and informed prior to decisions that could affect the quality of the environment.54

 The Framework Law 300 was supposed to replace this environmental regulation. Yet, it is still in force. 48  See also Art. 345 of the Bolivian Constitution y Art. 11 of the Framework Law 300. 49  Environmental Law 1333, Art. 26 and General Regulation on Environmental Management, Arts. 59-65. 50  The Regulation on Prevention and Environmental Control under Law 1333 sets the Environmental Impact Assessment and environmental quality control regulatory framework. 51  Regulation on Prevention and Environmental Control, Arts. 23-29. 52  Environmental Law 1333, Art. 40, Regulation on atmospheric pollution, Art. 2. 53  Regulation on Prevention and Environmental Control, Arts. 160-166. 54  Constitution of the Plurinational State of Bolivia, Art. 343. 47

Litigating Climate Change in Bolivian National Courts

269

Similarly, the Constitution stipulates that indigenous people have, among others, the right [t]o be consulted by appropriate procedures, in particular through their institutions, each time legislative or administrative measures may be foreseen to affect them. In this framework, the right to prior obligatory consultation by the State with respect to the exploitation of non-renewable natural resources in the territory they inhabit shall be respected and guaranteed, in good faith and upon agreement.55

Considering the above, if the competent environmental authority decided to grant a permit to a project that does not meet the requirements stated in the environmental legislation (i.e. EIA, public participation, etc.) threatening rights and creating risks for the environment and the population, any person could bring a claim against such public actor before the competent administrative authority or judicial body demanding responsibility for its acts.56 Indeed, public servants in Bolivia are accountable for the performance of their functions, duties and attributes and four classes of responsibility relating to the exercise of public office could arise: administrative, executive, civil and criminal responsibility.57 Thus, depending on the type of liability that may arise as a result of the breach of environmental regulation, the sanctions could be admonishments, fines, suspension or dismissal, and even imprisonment of the public servant. Moreover, rights arguments could also be raised by individuals for bringing a climate case before national courts challenging a decision of the public actor in order to ensure the protection of rights, while fighting against climate change. For instance, collective rights (such as environmental rights and indigenous peoples’ participatory rights) could be used as legal foundations to bring a Popular Action against an agreement and permit granted by a public authority that infringes these constitutional rights.58 If granted, this defense action could lead to the annulment of the decision that threatens or violates the mentioned collective rights and, while having a preventive and not punitive nature; it could also give rise to the liability— civil and criminal—of the authority.59 For example, in October 2012, a group of Bolivian citizens brought a Popular Action against a government’s decision to build a highway through the Isiboro Sécure National Park and Indigenous Territory (Territorio Indígena y Parque Nacional Isiboro Sécure—TIPNIS), a natural protected area particularly rich in flora and fauna, without consulting its indigenous inhabitants (as prescribed by the  ibid. Arts. 30.II(15) and 403.  Regulation on Prevention and Environmental Control, Art. 171. 57  Law No. 1178 on Government Administration and Control (Ley de Administración y Control Gubernamentales), 20 July 1990, Art. 28 and Supreme Decree No. 233184, 13 Nov 1992. 58  Regarding the protection of Indigenous people’s right to be consulted through a Popular Action see e.g., Lucio Ayala Siripi p/ la Central Indigena de Pueblos Originarios CIPOAP v. Heriberto Larrea G., Director de la ABT Reg. Pando, Plurinational Constitutional Court, Judgment 0645/2012, 23 July 2012. Available at: https://buscador.tcpbolivia.bo/ (S(iogv5k3dfapcdjrxb2gflqdu))/WfrResoluciones.aspx. 59  Law No. 027 on the Plurinational Constitutional Tribunal, Art. 100. 55 56

270

P. Villavicencio Calzadilla

Constitution).60 The applicants argued that, while compromising fragile ecosystems and the survival of indigenous groups, the project violated several rights enshrined in the Bolivian Constitution such as the environmental rights and the right of indigenous peoples to prior consultation. Thus, they alleged that the national government had failed to comply with the constitution and with its obligations under international agreements such as the ILO Convention No. 169, the UNFCCC and the Convention on Biological Diversity. The applicants then requested the Court, inter alia, to order the suspension of any action related to the construction of the highway and to declare the illegality of the decision to build it through the TIPNIS and the cancellation of the related contract. Although the purpose of this action was the protection of collective rights that were being affected by the construction of the highway, it could have had important climate change implications. Basically, if granted, it could have prevented the side-effects of the proposed project, such as deforestation and hydrocarbon and mineral exploitation in areas of the national park as well as GHG emissions resulting from such activities. However, the action was rejected.61 While the goverment  contends that the contested project was suspended, indigenous inhabitants argue that it is still under implementation.62

3.3 Claims Against Private Actors As for public actors, individuals in Bolivia can also bring a climate case against a private actor whose acts lead to a large rise of GHG emissions. As indicated earlier, the Bolivian Constitution states that all forms of the country’s economic organization, including private, have the obligation to protect the environment.63 In addition, according to article 347 [t]he State and the society shall promote the mitigation of harmful effects on the environment and of the environmental contamination and damage that affect the country (…)

 See, Loyola Guzmán Lara y otros v. José Antonio Zamora, Ministro de Medio Ambiente y Agua y otros, Plurinational Constitutional Court, Judgment 0762/2014, 15 Apr 2014. Available at: https://buscador.tcpbolivia.bo/(S(llw0ste033skurtllcppymer))/WfrResoluciones.aspx. Regarding the TIPNIS conflict see Delgado (2017) and Villavicencio Calzadilla and Kotzé (2018). 61  A similar constitutional claim was brought against a government’s decision to build an hydroelectric project (named Rositas) that, as has been denounced, threatens indigenous people and the environment in Bolivia. However, the action was also rejected. ANF, ‘Rositas: tercer juez rechaza acción popular de guaraníes y dice “no se vulneró consulta previa”’ (17 May 2018) https://www. noticiasfides.com/economia/rositas-tercer-juez-rechaza-accion-popular-de-guaranies-y-estosanuncian-ir-a-la-cidh%2D%2D388103. Accessed 20 Aug 2018. 62  See, Erbol, ‘La dirigencia cree que carretera por TIPNIS sigue en pie’ (19 Feb 2019) https:// correodelsur.com/politica/20190219_la-dirigencia-cree-que-carretera-por-tipnis-sigue-en-pie. html. Accessed 30 May 2020 63  Constitution of the Plurinational State of Bolivia, Art. 312. II. 60

Litigating Climate Change in Bolivian National Courts

271

Those who carry out activities that impact the environment must, at all stages of production, avoid, minimize, mitigate, remediate, repair and make compensation for the harms caused to the environment and the health of persons, and shall establish the security measures necessary to neutralize the possible effects of environmental contamination and damage.64

In Bolivia any natural or legal person, whether public or private, who develops activities (industrial, commercial, agricultural, etc.) causing air pollution is obligated to meet the requirements stated in the environmental regulation, including IEA and public participation. In addition, the Regulation on atmospheric pollution sets the maximum permissible limits for atmospheric emissions resulting from installations or activities. According to this regulation, the atmospheric emissions from any project developed by private actors must not exceed the established limits.65 Developers are also expected to meet different obligations, such as monitoring of emissions from their activities, annual submission of an inventory of those emissions, and written record of operations and maintenance activities. In this sense, if there is a breach of the environmental regulation and aforementioned obligations leading to a rise in GHG emissions, individuals in Bolivia could file a claim (before an administrative or judicial body) against a private actor alleging non-compliance with the statutory requirements. The non-compliance with the environmental regulation could give rise to administrative, civil and criminal responsibilities, depending on the seriousness of the breach, and could result in administrative sanctions (i.e. fines, stoppage of activities or withdrawal of authorization until the requirements are met), reparation and compensation for environmental damages, and even imprisonment of the legal representatives of the operator.66 Importantly, article 347.I of the Constitution provides that “[l]iability will be declared for historic environmental damages, and liability for environmental crimes shall not lapse”. However, it might be the case that the project causing air pollution operates within the limits permitted by the environmental regulation and has all the corresponding authorizations to develop its activities. In such a case, according to the constitutional right of every person to a healthy environment and the duty of private economic organizations to protect the environment,67 a Popular Action (discussed above) could also be filed by any person against a private actor whose acts led to a large rise in GHG emissions, thus affecting environmental rights.

 See also Framework Law No. 300, Art. 11.  Regulation on atmospheric pollution, Art. 21. 66  Regulation on Environmental Management, Arts. 94 ss.; Regulation on Environmental Prevention and Control, Arts. 169-170. 67  Constitution of the Plurinational State of Bolivia, Art. 312.III. 64 65

272

P. Villavicencio Calzadilla

4 Effective Climate Change Litigation in Bolivia: Challenges and the Way Forward In the light of the aforementioned, although no lawsuit in which climate change was the core focus has been filed in national courts in Bolivia so far, there are opportunities to bring such climate cases against public and private actors with the aim of exerting pressure on them to act on climate change and protect people’s rights. Especially, the potential of and opportunities to bring constitutional rights claims (particularly on the basis of the constitutional right to a healthy environment) are worth being taken into consideration by individuals. Moreover, one additional opportunity to take climate change before national courts must be mentioned. On the basis of Bolivia’s legal regime providing for the rights of nature, individuals could also file (at least in theory) climate change-related lawsuits. As mentioned earlier, Bolivia passed two laws granting rights to Mother Earth: Law No. 071 of the Rights of Mother Earth and Framework Law No. 300. The Law 071 enunciates a number of duties that rest on the State and society, including the obligation of any person to report any act that violates the rights of Mother Earth, living systems and/or their components.68 In addition, to promote the protection and guarantee of the rights of Mother Earth, the Framework Law No. 300 sets out individual and collective responsibility to report rights violations to the competent administrative or jurisdictional authorities.69 Thus, lawsuits could be filed against public or private actors when their actions or omissions infringe Mother Earth’s rights. According to article 39 of Framework Law No. 300 allowing citizens (among others actors) to sue on behalf (and as part of) Mother Earth, a case could be brought against a public or private actor for failing to tackle climate change—due to its lack of (or inadequate) action—and therefore for offending Mother Earth’s rights, especially her right to adapt naturally to climate change, which needs to be safeguarded. However, the law stipulates that such a case should be brought only by individuals or groups directly affected by the violation of the rights of Mother Earth.70 This provision is nevertheless in conflict with the actio popularis procedure established in the Constitution with regard to the defense and enforcement of the environmental right. Although so far, no case has been brought up and litigated in Bolivian national courts to enforce the rights of Mother Earth, this can be also a possibility worth exploring. However, to achieve formal success, individuals in Bolivia will need to overcome different legal and political challenges when bringing climate lawsuits in national courts. Some of them are described below. Any claim made by individuals against public or private actors challenging (environmentally destructive) projects in strategic sectors such as mining,  Law No. 071 of the Rights of Mother Earth, Arts. 8-9.  Framework Law No. 300 of Mother Earth and Integral Development for Living Well, Art. 39. 70  ibid. Art. 39.II. 68 69

Litigating Climate Change in Bolivian National Courts

273

hydrocarbons, energy and transport (that increase GHG emissions) will have to face a development model still persisting in Bolivia that relies on the exploitation of natural sources. Bolivia’s former president Evo Morales adopted policies and regulations that, in contradiction with the ones promoting the protection of the environment and Mother Earth, foster this kind of projects and give little consideration to climate change issues, especially mitigation of GHG emissions.71 The country’s interim government seems to follow the same approach.72 Therefore, petitions seeking an ambitious climate action or the stoppage/cancellation of projects that may lead to a large rise in GHG emissions—such as extractive projects (e.g., oil and gas), construction of highways or mega dams in tropical forest, or the expansion of the agribusiness—could receive a negative response from the government and aligned groups, which may describe such claims as opposed to law and as barriers to the development and economic growth of the country. This has already been the case for two major projects (TIPNIS’s highway and Bala-Chepete dams) which, despite forceful opposition of indigenous people, social movements and NGOs for their environmental and climate change implications, were  strongly supported  by  Morales’ government.73 In addition, the government may argue (as it repeatedly happened in the past) that the responsibility to address climate change rests exclusively on developed countries for their historically disproportionate control of atmospheric space. Thus, referring to the equitable sharing of atmospheric space, it could claim that when developing these projects Bolivia is making use of its atmospheric space to pursue the priorities of economic and social development, as well as to provide for the needs of the country’s population, especially the poorest.74 Additionally, alongside the lack of awareness and specialized expertise of judges (and practitioners) in an issue like climate change, individuals will need to face the reality of the country’s judiciary that, as has been denounced, is deeply stricken by widespread corruption and lack of independence.75 Indeed, corruption endures within the judiciary and there is no guaranteed standard for judicial procedure or reliable process. Although the Bolivian Constitution establishes that “[t]he organization of the State is based on the independence, separation, coordination and  For example, Law No. 516 on Investment Promotion and Supreme Decree No. 2366 enacted in May 2015 that legalises drilling for exploration purposes in Bolivia’s protected areas and national parks. 72  See, Mamani L, ‘Fracking en Bolivia: comunidades indígenas y reserva natural en peligro’. Mongabay (3 March 2020) https://es.mongabay.com/2020/03/fracking-bolivia-pueblos-indigenasreserva-natural/. Accessed 30 May 2020. 73  Villavicencio Calzadilla and Kotzé (2018); Achtenberg E, ‘The Growing Resistance to Megadams in Bolivia’. Nacla (14 Feb 2017). https://nacla.org/blog/2017/02/20/growing-resistance-megadams-bolivia. Accessed 10 Jan 2018. 74  See, inter alia, Bolivia’s NDC (2015). 75  Sabah D, ‘Bolivia’s top court ignores referendum results, allows Morales to run for 4th term’. Daily Sabah Americas (29 Nov 2017). https://www.dailysabah.com/americas/2017/11/29/bolivias-top-court-ignores-referendum-results-allows-morales-to-run-for-4th-term. Accessed 10 Jan 2018. 71

274

P. Villavicencio Calzadilla

cooperation among these [Legislative, Executive, Judicial and Electoral] bodies”,76 the former president dismissed separation of powers considering the judicial independence as a “doctrine of the United States that is at the service of the American empire” and suggested that the judicial branch should not be independent.77 As the executive branch imposed its will upon other bodies, it was argued that the judiciary in Bolivia “reflects Morales’ will”.78 Finally, in  a context of convoluted relationship between the Government and (rural and urban) social movements, civil society organizations (especially human rights and environmental NGOs) could also face a complicated political and legal scenario to bring climate cases, especially against the Bolivian government. Indeed, the ability of NGOs to work independently in Bolivia has been undermined by the former goverment, which adopted a law and a decree that have increased their political vulnerability.79 Such regulation provides the executive branch with broad powers to dissolve civil society organizations without a judicial process (or without giving reasons) and to exert control over their mission and finances. Although in December 2015 the Bolivian Constitutional Court ruled the Law and decree constitutional, such developments have not only been criticized for creating risks for democracy, but also for generating […] a hostile environment for researchers and intellectuals in Bolivia, creating a chilling effect on knowledge-production and stifling public debate about Bolivia’s development model.80

Furthermore, individuals could also face an atmosphere of abuse of power, harassment, threats and intimidation to their work and security—in particular by government and business representatives—as certain recent experiences have already demonstrated.81 Yet, despite this complex scenario, the emergence of a “new environmental movement” that is taking place in Bolivia as a result of the increased number of social conflicts related to the environment and natural sources, which is

 Constitution of the Plurinational State of Bolivia, Art. 12.  Vivanco JM and Pappier J, ‘The Hypocrisy of Evo Morales’. The New York Times (20 Nov 2017). https://www.nytimes.com/2017/11/20/opinion/eva-morales-bolivia.html. Accessed 10 Jan 2018. 78  Ipotnews, ‘Bolivian court gives Morales green light to run again’ (29 Nov 2017). https://www. indopremier.com/ipotnews/newsDetail.php?jdl=Bolivian_court_gives_Morales_green_light_to_ run_again&news_id=1335816&group_news=ALLNEWS&taging_ subtype=SPAIN&name=&search=y_general&q=SPAIN,%20&halaman=1. Accessed 10 Jan 2018. 79  Law No. 351 on Legal Entities (Ley de otorgación de personalidades Jurídicas), 19 Mar 2013; Supreme Decree No. 1597 (Reglamento parcial a la Ley de otorgación de personalidades jurídicas), 5 June 2013. 80  Achtenberg E, ‘What’s Behind the Bolivian Government’s Attack on NGOs?’. Nacla (9 Mar 2015). https://nacla.org/blog/2015/09/03/what%27s-behind-bolivian-government%27s-attackngos. Accessed 12 Jan 2018. 81  ibid.; Frontline Defenders, ‘Intimidation of lawyer Nelson La Madrid as judge rules popular action against Rositas Hydroelectric Project inadmissible’ (23 May 2018). https://www.frontlinedefenders.org/en/case/nelson-la-madrid-continues-receive-death-threats. Accessed 12 June 2018. 76 77

Litigating Climate Change in Bolivian National Courts

275

challenging local and national works and policies in defense of human rights and the environment, gives a glimmer of hope for climate litigation in the country.82

5 Conclusion In the light of the urgent need to address climate change in Bolivia, this chapter has explored the opportunities and challenges of taking climate change cases before Bolivian national courts. When this chapter was written, no case where climate change was the core issue had been brought before national courts. However, based on the analysis of the country’s international commitments on climate change as well as constitutional and statutory law provisions, this chapter highlighted some of the existing avenues for promoting climate litigation against both public and private actors in Bolivia. Especially, the potential of and opportunities to bring constitutional rights claims for enhancing climate action (mitigation and adaptation) have been underlined. However, litigating climate change in Bolivian national courts does not appear to be an easy task. When filing a climate lawsuit, and in order to be successful in such a claim, individuals will have to overcome diverse and complex legal and political challenges confronting them. Yet, although such challenges could render climate change litigation difficult in Bolivia, there are opportunities (some of those have been described in this chapter) and momentous cases in other jurisdictions that may inspire individuals to bring climate cases before national courts. After all, winning or losing climate cases can help raising the profile of and awareness on climate change and the urgency of addressing its effects in the Andean country. Acknowledgments  The author wishes to acknowledge funding from the North-West University (Potchefstroom, South Africa), for the preparation and submission of this chapter during her postdoctoral research fellowship at its Faculty of Law.

References Aguirre C, Cooper E (2010) Climate change, and the paradoxes of a social-movement presidency. LAT 37(4):238–244 Andersen LE, Doyle AS, del Granado S, Ledezma JC, Medinaceli A, Valdivia M, Weinhold D (2016) Net carbon emissions from deforestation in Bolivia during 1990–2000 and 2000–2010: results from a carbon bookkeeping model. PLoS One 11(3):e0151241. https://doi.org/10.1371/ journal.pone.01512412016

 Gandarillas MA, ‘Ocaso del branding pachamamista y emergencia de un nuevo movimiento ambiental pos-TIPNIS’. Página Siete (26 Aug 2018). https://www.paginasiete.bo/ideas/2018/8/26/ ocaso-del-branding-pachamamista-emergencia-de-un-nuevo-movimiento-ambiental-pos-tipnis-191603.html#. Accessed 12 June 2018. 82

276

P. Villavicencio Calzadilla

Brandt R, Kaenzig R, Lachmuth S (2016) Migration as a risk management strategy in the context of climate change: evidence from the Bolivian Andes. In: Milan A, Schraven B, Warner K, Cascone N (eds) Migration, risk management and climate change: evidence and policy responses, vol 6. Springer, Cham, pp 43–61 Cook JS, Kougkoulos I, Edwards L, Dortch J, Hoffmann D (2016) Glacier change and glacial lake outburst flood risk in the Bolivian Andes. The Cryosphere 10(5):2399–2413. https://doi. org/10.5194/tc-10-2399-2016 Casey N and Haner J, ‘Climate Change Claims a Lake, and an Identity’. The New York Times (07 July 2016). https://www.nytimes.com/interactive/2016/07/07/world/americas/bolivia-climatechange-lake-poopo.html. Accessed 18 Dec 2017 Delgado AC (2017) The TIPNIS conflict in Bolivia. Cont Int 39(2):373–391 Griscom BW et al (2017) Natural climate solutions. Proc Natl Acad Sci 114:11645–11650. Oct 16. Available at http://www.pnas.org/content/early/2017/10/11/1710465114 Leguía Aliaga JD, Villegas Quino H, Aliaga Lordemann J (2011) Deforestación en Bolivia: una aproximación espacial. LAJED 15:7–44 Osofsky H (2010) The continuing importance of climate change litigation. Climate Law 1(1):3–29 Oxfam International (2009) Bolivia: climate change, poverty and adaptation. Available at: https:// www.oxfam.org/sites/www.oxfam.org/files/bolivia-climate-change-adaptation-0911.pdf Seiler CH, Hutjes R, Kabat P (2013a) Climate variability and trends in Bolivia. J Appl Meteorol Climatol 52(1):130–146 Seiler C, Hutjes R, Kabat P (2013b) Likely ranges of climate change in Bolivia. J Appl Meteorol Climatol 52(6):1303–1317 Villavicencio Calzadilla P, Kotzé L (2018) Living in harmony with nature? A critical appraisal of the rights of Mother Earth in Bolivia. Transnational Environ Law 7:397–424. https://doi. org/10.1017/S2047102518000201. Published online 16 Aug 2018 Winters C (2012) Impact of climate change on the poor in Bolivia. Global Majority E-J 3(1):33–43 Paola Villavicencio Calzadilla  is a postdoctoral researcher at the Faculty of Law and the Tarragona Center for Environmental Law Studies (CEDAT) of the University Rovira i Virgili (URV), Spain. She received her PhD in Law, specialty in climate change law (2013) and her Master’s Degree on Environmental Law (2010), both from the URV. After completing her PhD, she undertook a 3-year postdoctoral research fellowship at the Faculty of Law of the North-West University (South Africa). Over the course of her career, she has been involved in several research projects and has collaborated with research centers, including the IUCN Environmental Law Centre—ELC (Germany) and the Groningen Centre of Energy Law and Sustainability of the University of Groningen (the Netherlands). She worked as an attorney for public and private institutions and supported grassroots organizations and NGOs from Spain, Ecuador and Bolivia. She is a member of the IUCN World Commission on Environmental Law (WCEL) and of the Climate Reality Leadership Corps. Her main areas of interest include climate change law and governance, human rights and climate change, climate justice and energy justice, sustainable development goals and the ecocentric rights paradigm. She authored and co-authored several academic publications on these themes.

Climate Change and the Individual in Mexico Rodolfo Godínez Rosales

Abstract Mexico has a solid legal and policy framework on climate change. However, and despite a weak implementation, there are no records of individuals bringing a case before courts on climate change grounds. In this regard, no cases have been brought against the Mexican government for allegedly not complying with its international or national climate change obligations. Similarly, no companies have been sued for failing to reduce their greenhouse gases or to get them to pay for damages resulting from global warming. As a result, the Mexican judiciary has not been exposed to any climate change arguments and there are no cases in which climate change is a relevant factor. Most cases have been framed in broader environmental terms, for instance against fossil fuel-related projects, airports and road infrastructure. As a way forward, climate litigation in Mexico could be developed by placing human rights as the central argument of future claims.

1 Introduction Mexico, an upper middle-income country, generates about 1.4% of global emissions of greenhouse gases, occupying the fourteenth place worldwide and the second in Latin America after Brazil.1 Mexico has designed its domestic policies in accordance with the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol and the I would like to thank my wife, María Teresa González, for her kind research support.  Ministry of Environment and Natural Resources, National Institute of Ecology and Climate Change (2015), p. 3. 1

R. Godínez Rosales (*) International Affairs Unit, Ministry of Environment and Natural Resources, Mexico City, Mexico © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_13

277

278

R. Godínez Rosales

Paris Agreement. The country has played an active role in climate change negotiations, hosting COP 16 in December 2010 and steering the process towards the adoption of the Cancun Agreements. In 2015 Mexico put forward its Nationally Determined Contribution (NDC) under the Paris Agreement comprising a double folded approach: Unconditional Reduction. Mexico is committed to reduce unconditionally 25% of its Greenhouse Gases and Short Lived Climate Pollutants emissions (below BAU)2 for the year 2030. This commitment implies a reduction of 22% of GHG and a reduction of 51% of Black Carbon. This commitment implies a net emissions peak starting from 2026, decoupling GHG emissions from economic growth: emissions intensity per unit of GDP will reduce by around 40% from 2013 to 2030. Conditional Reduction. The 25% reduction commitment expressed above could increase up to a 40% in a conditional manner, subject to a global agreement addressing important topics including international carbon price, carbon border adjustments, technical cooperation, access to low-cost financial resources and technology transfer, all at a scale commensurate to the challenge of global climate change. Within the same conditions, GHG reductions could increase up to 36%, and Black Carbon reductions to 70% in 2030.3

Besides the Paris Agreement (ratified on 21/09/2016), Mexico is also working on the implementation of the UN’s Sustainable Development Goals (SDGs), including SDG 7 (affordable and clean energy) and SDG 13 (combatting climate change). Having in mind the SDGs transversal and multidimensional nature, Mexico established an office at Presidential level aimed at coordinating efforts among governmental actors and providing for synergies with stakeholders.

2 Climate Change Law in Mexico Mexico has passed climate change-specific regulation, the General Law of Climate Change (2012), that comprises both mitigation (reducing emissions) and adaptation (climate resilience).4 Further institutional arrangements and by-laws have been put in place gradually: the Climate Change Fund (2012), the National Institute of Ecology and Climate Change—INECC—(2013), the Inter-ministerial Commission on Climate Change (2013), the National Emissions Registry (2014), the National Inventory of Emissions (2014), the Climate Change Council (2013), the National System of Climate Change (2014), and the Coordination Office to Evaluate the National Policy on Climate Change (2015).5

 Business As Usual scenario of emission projections based on economic growth in the absence of climate change policies, starting from 2013 (year in which the General Law of Climate Change entered into force). 3  Mexico’s Intended Nationally Determined Contribution (March 2015). 4  International Development Law Organization (2012). 5  National Institute of Ecology and Climate Change (2017) Fact Sheet 2017-3. Mexico. 2

Climate Change and the Individual in Mexico

279

Besides, climate change is incorporated into general environmental regulation, as well as into energy and forestry legislation, including: the General Law of Ecological Balance and Protection of the Environment (1987), the Law for Bioenergy Promotion and Development (2007), the Energy Reform Package (2013/2014), the Energy Transition Law (2015), and the General Law for Sustainable Forest Development (2018). Mexico also relies on strategic policy documents that compel, support or facilitate climate mitigation or adaptation, among them the National Climate Change Strategy, 10–20–40 years (2013), the Special Climate Change Program 2014–2018 (2014), the National Emissions and Emissions Reductions Registry (2014), the Carbon tax policies (2014), the Voluntary carbon markets guidelines (2014), and the Climate Change Mid-Century Strategy (2016). In addition to climate action at the national level, there are plenty of sub-national initiatives at the state and municipal levels working actively in shaping national climate policy outcomes.

3 Absence of Climate Change Litigation in Mexico In Mexico there are no claims against the government or public bodies decisions based on climate change grounds. However, individuals could bring a case against the government for allegedly not complying with its international or national climate change obligations. Key legislation to bring a case into the court includes the Federal Code of Civil Procedures (1943), the Amparo Law (2013), the Federal Environmental Liability Law (2013), and the General Law on Transparency and Access to Public Information (2015). These laws can be used to challenge specific projects or activities, call for new policies or halt existing ones, as well as interpret or enforce domestic legislation and international treaties such as the Paris Agreement. The Amparo Law includes the so-called juicio de amparo, a trial that can be used as a remedy for the protection of constitutional rights, including violations of human rights. It may be invoked by any person who believes that any of his/her rights, implicitly or explicitly protected by the Constitution, another law, or international treaties, is being violated.6 The Federal Code of Civil Procedures and the Federal Environmental Liability Law provide tools to file lawsuits dealing with personal property damage or injury caused by climate change-related events, and in project-based cases where plaintiffs might question the greenhouse gas emissions that result from the licensing of a particular activity or project. The General Law on Transparency and Access to Public Information regulates the procedure to request information from federal or

 Cossío and Montes de Oca (2012), pp. 134–136.

6

280

R. Godínez Rosales

local governments (emitting sources, air quality data, chemicals release, etc.), or claims for misleading or incomplete information. In Mexico no companies have been sued for failing to reduce their greenhouse gases or to get them to pay for damages resulting from global warming. Similarly, no cases have been brought against pension funds investing in climate change unfriendly portfolios. On the other side, Mexican corporations have not used litigation to oppose or weaken climate regulation. An individual could bring a case against these private actors based on the above-mentioned Federal Code of Civil Procedures and Federal Environmental Liability Law. Despite a solid legal and policy framework, in Mexico the judiciary has not been exposed to any climate change arguments. Indeed, and after a careful search in the judiciary databases, there are no cases in which climate change is a relevant factor. For many years cases have been framed in broader environmental terms, for instance against fossil fuel-related projects, airports and road infrastructure. In this regard, courts have produced environmental jurisprudence and criteria on Natural Protected Areas, air pollution, mining, forestry, etc.,7 with only a couple of cases referring to climate change, as shown in Table 1.

Table 1  Mexico’s collegiate tribunals Case file number Grounds of the case 1. 238/2014a Amparo trial (appeal stage).—Request to analyze whether car’s restrictions to circulate should be based on environmental criteria or on car’s registration year 2. 140/2016b Amparo trial.- Request to analyze the refusal to allow a person the get access to the Mexico City Subway System with a folding bicycle

Collegiate tribunal Third Collegiate Tribunal (Administrative) First Circuit

Third Collegiate Tribunal (Administrative) First Circuit

Outcome The Tribunal ruled that car’s restrictions to circulate in Mexico City should be based on environmental criteria, quoting explicitly the prevention and precautionary principles, as well as UNFCCC’s articles 3 and 4 The Tribunal ruled that allowing bicycles into the Mexico City Subway System would reduce GHG emissions and would help to fulfill the objectives of international treaties, such as the UNFCCC

Mexico’s Collegiate Circuit Courts. Semanario Judicial de la Federación. April 2016. Criteria I.3o.A.18 A (10a.), p. 2509 b Mexico’s Collegiate Circuit Courts. Semanario Judicial de la Federación. May 2017. Criteria: I.3o.A.29 A (10a.), p. 2140 Criteria that includes specific references to climate change (2014–2016) (Mexico’s Supreme Court of Justice. Semanario Judicial de la Federación. http://sjf.scjn.gob.mx/SJFSem/Paginas/ SemanarioIndex.aspx. Accessed 22 Jan 2018.) a

 Gutiérrez Nájera and Álvarez Gutiérrez (2012), pp. 165–168.

7

Climate Change and the Individual in Mexico

281

4 Effective Climate Change Litigation in Mexico: The Way Forward Climate litigation in Mexico could be developed by placing human rights as the central argument in future claims.8 The judiciary has already been exposed to cases where plaintiffs alleged violations to the human right to a healthy environment, however, its resolutions does not include specific references to climate change, as shown in Table 2. The Mexican Constitution has been subject of several amendments aimed at strengthening the promotion and defense of human rights. In 1999 Article 4 was amended to include for the first time a recognition of environmental rights: “Everyone has the right to an adequate environment for their development and well-­ being”.9 In 2012 a far-reaching wording was incorporated into Article 4, expanding environmental rights as follows: Everyone has the right to a healthy environment for their development and well-being. The State will guarantee respect for that right. Damage and environmental deterioration will generate responsibility for those who cause it in terms of the provisions of the law.10

In broader terms, a milestone constitutional reform changed substantially Article 1, strengthening the pro persona principle and adopting the diffuse control of constitutionality and conventionality. The reform, passed in 2011, also reaffirmed that all authorities have the obligation to promote, respect, protect and guarantee human rights in accordance with the principles of universality, interdependence, indivisibility and progressivity. In 2018 the National Commission for Human Rights released the General Recommendation 32/2018,11 highlighting the violations to the human rights caused by urban atmospheric pollution. The Recommendation addresses climate change as collateral issue, hence, plaintiffs may find useful some arguments to bring a case before courts. A good practice stemming from Mexico is a legislative proposal aimed at embedding climate change considerations into the Constitution and the following 18 sectoral laws: (1) National Security Law, (2) General Law of Climate Change, (3) General Law of Ecological Balance and Protection of the Environment, (4) General Law of Highways, (5) Immigration Law, (6) General Law of Health, (7) General Law of Education, (8) Energy Transition Law, (9) Organic Law of the Federal Public Administration, (10) Hydrocarbons Law, (11) Planning Law, (12) Law of the Electrical Industry, (13) General Law of Human Settlements, Territorial Management and Urban Development, (14) Biosecurity Law of Genetically Modified Organisms,

 Godínez Rosales (2010), pp. 46–47.  Political Constitution of the United Mexican States. http://www.diputados.gob.mx/LeyesBiblio/ htm/1.htm. Accessed 11 Dec 2017. 10  González Márquez (2017), pp. 168–170. 11  National Commission for Human Rights (2018). 8 9

282

R. Godínez Rosales

Table 2  Mexico’s Supreme Court of Justice (SCJN) Case file number 1. 34/2013a

2. 779/2014b

3. 1/2015c

4. 3/2015d

5. 225/2015e

6. 987/2015f

7. 499/2015g

8. 540/2015h

9. 566/2015i

10. 956/2015j

Grounds of the case Amparo trial.—Request to analyze whether the plaintiff has standing to challenge a decision from the Municipal Sewer Board of Mazatlan, Sinaloa, which sewage treatment system pollutes sea waters Amparo trial (appeal stage).—Request to analyze whether the plaintiff has standing to challenge the Decree of September 26, 2013, that modifies the status of the “Nevado de Toluca National Park” Amparo trial.—Request to analyze whether the authorization granted by the Council of the Federal Judiciary to a civil association recognizes its standing in an environmental case grounded in collective interests Review of the decision to delay a ruling.— Strike a balance between the human right to a healthy environment and the public utility of the project El Zapotillo Dam and El Zapotillo-­ Los Altos Aqueduct in Jalisco and Guanajuato Request to the Supreme Court to hear a case.—Opposition to an environmental impact permit granted to use water from the Sabinos river in the construction, operation and maintenance of a road in Guadalajara, Jalisco Request to the Supreme Court to hear a case.—Opposition to the environmental impact permit granted to the Project: “Aqueduct Independence” in Sonora

SCJN chamber First Chamber

Outcome 15/01/2014 The request was dismissed

Second Chamber

24/02/2016 The appeal was dismissed

First Chamber

06/04/2016 The Supreme Court ruled in favor of the plaintiffs 25/11/2015 The decision was revoked

Second Chamber

Second Chamber

05/08/2015 The request was dismissed

First Chamber

06/06/2018 The Supreme Court ruled in favor of the plaintiffs 27/01/2016 The request was dismissed 30/03/2016 The request was dismissed

Request to the Supreme Court to hear a case.—Demolition of a public park located in low-income communities in Zapopan, Jalisco Request to the Supreme Court to hear a case.—Strike a balance between the human right to a healthy environment and the public utility of the project El Zapotillo Dam and El Zapotillo-Los Altos Aqueduct in Jalisco and Guanajuato Amparo trial (appeal stage).—Request to analyze the scope of collective interests

Second Chamber

Amparo trial (appeal stage).—Request to analyze whether the plaintiff has standing to challenge the Project: “Strategic Plan for Storm Drainage in Tampico, Tamaulipas”

Second Chamber

Second Chamber

First Chamber

15/02/2017 The request was dismissed 17/02/2016 The Supreme Court ruled in favor of the plaintiffs (continued)

Climate Change and the Individual in Mexico

283

Table 2 (continued) Case file number 11. 8/2016k

12. 30/2016l

13. 49/2016m

14. 51/2016n

15. 201/2016o

16. 211/2016p

17. 307/2016q

Grounds of the case Amparo trial.—Request to analyze whether the environmental responsibility established by the Federal Environmental Liability Law is different to the diffuse collective actions regulated by the Federal Code of Civil Procedures Request to the Supreme Court to hear a case.—Opposition to the construction of the El Zapotillo Dam in Jalisco Request to the Supreme Court to reconsider its decision on dismissing a case, related to the legality of a Regulation on Environmental Impact and Risk issued by the Mexico City Major Request to the Supreme Court to hear a case.—Analyze the lack of an environmental impact assessment in a project approved by the Council of Guadalajara, Jalisco Amparo trial (appeal stage).—Request to analyze the pollution of the Salado and Atoyac rivers in Oaxaca Amparo trial (appeal stage).—Opposition to the Decree of September 26, 2013, that modifies the status of the “Nevado de Toluca National Park” Amparo trial.—Opposition to the project “Ecological Thematic Park Laguna del Carpintero”, in an area of municipal public domain ruled by a trusteeship in Tamaulipas

SCJN chamber First Chamber

Second Chamber Second Chamber

Second Chamber

Second Chamber Second Chamber

First Chamber

18. 335/2016r

Appeal trial.—Opposition to the ruling by which a Collegiate Court declared an amparo sentence fulfilled

First Chamber

19. 680/2016s

Amparo trial (appeal stage).—Opposition to the project “Ecological Thematic Park Laguna del Carpintero”, in an area of municipal public domain ruled by a trusteeship in Tamaulipas Amparo trial.—Request to analyze the pollution of the Bacanuchi and Sonora rivers in Sonora

Second Chamber

20. 5091/2016t

First Chamber

Outcome 06/07/2016 The Supreme Court ruled in favor of the plaintiffs 20/04/2016 The request was dismissed 09/11/2016 The Supreme Court accepted to reconsider the case There is no public outcome

14/06/2017 The appeal was dismissed 29/06/2016 The appeal was dismissed 14/11/2018 The Supreme Court ruled in favor of the plaintiffs 10/08/2016 The appeal was declared groundless 22/02/2017 The appeal was dismissed 25/01/2017 The request was dismissed

http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=153780. Accessed 10 June 2019 b http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=180595. Accessed 10 June 2019 c http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=175598. Accessed 10 June 2019 (continued) a

284

R. Godínez Rosales

Table 2 (continued) d http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=183501. Accessed 10 June 2019 e http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=182201. Accessed 10 June 2019 f http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=185630. Accessed 10 June 2019 g http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=190717. Accessed 10 June 2019 h http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=191771. Accessed 10 June 2019 i http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=181069. Accessed 10 June 2019 j http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=185145. Accessed 10 June 2019 k http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=194530. Accessed 10 June 2019 l http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=192931. Accessed 10 June 2019 m http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=199258. Accessed 12 June 2019 n http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=193355. Accessed 12 June 2019 o http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=194795. Accessed 12 June 2019 p http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=194976. Accessed 12 June 2019 q http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=195934. Accessed 12 June 2019 r http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=195325. Accessed 12 June 2019 s http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=200308. Accessed 12 June 2019 t http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=203618. Accessed 12 June 2019 Cases for allegedly not protecting the human right to a healthy environment based on a legitimate or collective interest (2012—March 2017) (Mexico’s Supreme Court of Justice. Semanario Judicial de la Federación. http://sjf.scjn.gob.mx/SJFSem/Paginas/SemanarioIndex.aspx. Accessed 11 Dec 2017.)

(15) General Law of Sustainable Fisheries and Aquaculture, (16) General Law of Wildlife, (17) Law of National Waters, and (18) Law of Sustainable Rural Development.12 The proposal is framed around the concept of “climate security” and stresses that climate change needs to be integrated better into mainstream development strategies and that meaningful decarbonisation requires reforms across the entire economy, ensuring a transition to a low-carbon, climate-resilient society. It will be further analyzed by Senators in upcoming sessions, as well as by the Inter-ministerial

12

 Mexican Senate (2017).

Climate Change and the Individual in Mexico

285

Commission on Climate Change. If approved, it could foster climate change action in Mexico and be used as basis to bring cases into the court.

5 Conclusions Mexico has the legal basis on which further action can build. Overall, the legislative and regulatory response to climate change has been adequate. However, extensive cutbacks to environmental agencies prevail. Among the agencies hit hardest by expenditure cuts are the ones with substantial responsibilities for climate change: the Ministry of Environment and Natural Resources (SEMARNAT), and the National Institute of Ecology and Climate Change (INECC). There is potential for climate litigation to raise issues before courts in terms of responsibility for mitigation and adaptation, liability for climate-related harms, liability for failure to adapt, accountability for resource extraction, etc. An individual can also bring a case against a public or private actor that allegedly does not comply with climate change obligations (national or international), on human rights grounds. In this regard, climate lawsuits would also ensure that Mexico stays on track to fulfill its commitments under the Paris Agreement and the ratcheting up of the Mexican Nationally Determined Contribution, enabling greater transformational change.

References Cossío JR, Montes de Oca R (2012) Retos de la Procuraduría Federal de Protección al Ambiente frente a la legislación en materia de acciones colectivas. In: 20 años de procuración de justicia ambiental en México. Instituto de Investigaciones Jurídicas, Procuraduría Federal de Protección al Ambiente, Mexico Godínez Rosales R (2010) “Cambio climático y derechos humanos”. Derechos humanos y medio ambiente. Instituto de Investigaciones Jurídicas, Secretaría de Medio Ambiente y Recursos Naturales, Mexico González Márquez JJ (2017) Tratado de derecho ambiental mexicano. Las instituciones fundamentales del derecho ambiental. Universidad Autónoma Metropolitana Azcapotzalco, Mexico Gutiérrez Nájera R, Álvarez Gutiérrez I (2012) “Acciones colectivas en México en el contexto del litigio ambiental”. Acciones colectivas. Un paso hacia la justicia ambiental. Editorial Porrúa, Universidad Michoacana, Asociación de Jueces y Magistrados de Distrito del Poder Judicial de la Federación, Mexico International Development Law Organization (2012) A legal working brief on the new general law of climate change in Mexico. International Development Law Organization, Rome Mexican Senate (2017) Proposal to reform the Political Constitution of the United Mexican States and Sectoral Legislation on issues related to Climate Security. Mexican Senate, Mexico Mexico’s Collegiate Circuit Courts. Semanario Judicial de la Federación. April 2016. Criteria I.3o.A.18 A (10a.)

286

R. Godínez Rosales

Mexico’s Collegiate Circuit Courts. Semanario Judicial de la Federación. May 2017. Criteria: I.3o.A.29 A (10a.) Mexico’s Supreme Court of Justice. Semanario Judicial de la Federación. http://sjf.scjn.gob.mx/ SJFSem/Paginas/SemanarioIndex.aspx. Accessed 11 Dec 2017 Mexico’s Supreme Court of Justice. Semanario Judicial de la Federación. http://sjf.scjn.gob.mx/ SJFSem/Paginas/SemanarioIndex.aspx. Accessed 22 Jan 2018 Ministry of Environment and Natural Resources, National Institute of Ecology and Climate Change (2015) First biennial update report to the United Nations framework convention on climate change. Ministry of Environment and Natural Resources, National Institute of Ecology and Climate Change, Mexico National Commission for Human Rights (2018) General recommendation 32/2018. Violations to the human rights to health, an adequate standard of living, a healthy environment and public information caused by urban atmospheric pollution. National Commission for Human Rights, Mexico National Institute of Ecology and Climate Change (2017) Fact sheet 2017-3. National Institute of Ecology and Climate Change, Mexico Political Constitution of the United Mexican States. http://www.diputados.gob.mx/LeyesBiblio/ htm/1.htm. Accessed 11 Dec 2017 Rodolfo Godínez-Rosales  holds a PhD in Environmental Law from the National Autonomous University of Mexico, a Master of Laws from the University of London, Queen Mary College, and specialization courses at The Hague Academy of International Law, the United Nations Institute for Training and Research and the University of Eastern Finland. Over his career, he has worked in the Mexican Ministries of Energy; Environment and Natural Resources; and Foreign Affairs, participating extensively in climate change negotiations. He also has served as senior lawyer in the National Commission for Human Rights, the Chamber of Deputies and the Senate. He has been lecturer at several Mexican Universities and authored articles on environmental law, climate change and human rights. He can be reached at [email protected].

Climate Change Litigation in Chile: Between the Constitutional and the Environmental Jurisdiction Path Pilar Moraga Sariego

Abstract  Climate change litigation in Chile represents the minority in climate-­ related cases analyzed by comparative literature. Effectively, the topic is more linked to the issue of adaptation than to mitigation, and the objective of the parties bringing forth legal actions and remedies is more related to making governmental agencies become aware of the deficiencies in their actions, in the new global context, marked by the impact and effects of climate change. This is where two jurisdictional intervention avenues stand out: the constitutional protection remedy and the environmental reparation remedy, related to the environmental liability set forth in Law No. 19,300. A comparative analysis of the regime of constitutional protection and that of environmental liability shows the suitability of the former and the limitations of the latter, in the context of a changing climate, especially in a country that is vulnerable and exposed to extreme climatic events (fires, algal blooms in the ocean, drought, and floods).

1 Introduction The development of international law on climate change has had an impact on defining the country’s governance of climate change with a view to responding to its international commitments. This has meant, for example, after the signing of the Paris Agreement, bringing to the fore the discussion of enacting a Climate Change Act, with the aim of strengthening the legal and institutional framework in this field

This study received financial support from CONICYT (Chile) through the Center for Climate and Resilience Research (ANID/FONDAP 15110009) and Solar Energy Research Center (ANID/ FONDAP 15110019). P. Moraga Sariego (*) Environmental Law Centre, Law School, University of Chile, Santiago, Chile e-mail: [email protected] © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_14

287

288

P. Moraga Sariego

and increasing resilience within the national territory, particularly in connection with protecting the health of persons by applying the preventive and precautionary principle. This approach is justified by the high vulnerability of the country as indicated by the United Nations Framework Convention on Climate Change (UNFCCC).1 Effectively, estimates of the environmental, social and economic losses caused by climate change could reach 1.1% of GDP per year by 2100.2 As for climate litigation, this entails a novel concept, as-of-yet undealt with in specialized national literature, despite the fact that it is already possible to identify within case law cases that are linked to the impact and effects caused by the phenomenon of climate change on people. These cases mainly involved extreme climatic events that have caused material and human losses, environmental damage or generated risks. In the same vein, this chapter intends to first carry out a brief analysis of climate change governance in Chile, in relation to international negotiations (1), and then later delve into the content and characteristics of climate litigation, the different avenues of jurisdictional intervention, and the motives and reasons of the parties (2).

2 Climate Change Governance in Chile3 and International Negotiations The governance of climate change in Chile has been developed in response to the obligations and commitments undertaken in international law, whereby the country has taken a leading role in the need to link this global phenomenon to the protection of human rights.

 “Recognizing further that low-lying and other small island countries, countries with low-lying coastal, arid and semi-arid areas or areas liable to floods, drought and desertification, and developing countries with fragile mountainous ecosystems are particularly vulnerable to the adverse effects of climate change”. Art. 4 10. The Parties shall, in accordance with Article 10, take into consideration in the implementation of the commitments of the Convention the situation of Parties, particularly developing country Parties, with economies that are vulnerable to the adverse effects of the implementation of measures to respond to climate change. This applies notably to Parties with economies that are highly dependent on income generated from the production, processing and export, and/or consumption of fossil fuels and associated energy-intensive products and/or the use of fossil fuels for which such Parties have serious difficulties in switching to alternatives. 2  Ministry of the Environment (2017), p. 16. 3  Arriagada et al. (2018), p. 68. 1

Climate Change Litigation in Chile: Between the Constitutional…

289

2.1 Climate Change Governance The definition of climate governance is been one on dispute in the last decade among scholars coming from different disciplines. A minimal definition of governance could be ‘the interactions between public and/or private actors ultimately aimed at addressing collective issues’.4 Climate change law scholars such as Peel, consider that climate-related law making presents manifestations of multi-level governance, characterised by two main features, namely, ‘an interest in decision-­ making taking place at a range of territorial levels of scales and a recognition of the role played by non-state actors in governance, alongside governments’.5 However, the legalist tradition of Chile and the limitations of the decentralization within the country could suggest that climate governance is broadly understood rather as ‘the institutions through which citizens and groups articulate their interests, exercise their legal rights, meet their legal obligations, and mediate their differences (…) [where] fundamental components (…) are laws, regulations, and policies of government’.6 Chile signed the United Nations Framework Convention on Climate Change (UNFCCC) in 1992,7 the Kyoto Protocol (KP) in 1998,8 and the Paris Agreement (PA) in 2016.9 Each of these milestones has entailed the creation of institutional frameworks for the nationwide implementation of the commitments adopted under international negotiations. The signing of the UNFCCC and its entry into force coincided with the enactment of the Law on General Environmental Bases in 1994 (Law No. 19,300), which created the environmental institutional framework in the country, which in turn assumed the commitments arising from the international legal framework for climate change, despite the fact that it was only in 2010 that the legislator granted it with explicit legal powers with respect to this subject matter. In fact, when Law 19,300 was amended by Law 20,417, spurred on by the OECD in 2005,10 the first legal definition of climate change was enshrined: a climate change attributed directly or indirectly to human activity that a) alters the composition of the global atmosphere and that adds to the natural variability of the climate observed over comparable periods of time. (Article a ter) of Law 19,300)

At the same time, the Ministry of the Environment was created, with explicit powers in this area, specifically:  Termeer et al. (2016), pp. 11–19.  Peel et al. (2012), pp. 245–280. 6  Hurlbert and Gupta (2016), pp. 339–356. 7  Decree No. 123 of the Ministry of Foreign Affairs (MINREL) enacted and ordered its publication in the Official Gazette, which took place on April 13, 1995. 8  Chile signed the Kyoto Protocol on June 17, 1998 and the Congress ratified it on August 26, 2002, but it was enacted in 2005, through Supreme Decree No. 349 of 2005. 9  Enacted through the Decree of the Ministry of Foreign Affairs No. 30 of February 17, 2017. 10  Comisión Económica para América Latina y el Caribe (CEPAL) (2005). 4 5

290

P. Moraga Sariego

[To] propose policies and formulate plans, programs and action plans on climate change. In the exercise of this authority, it shall collaborate with the various State Administration bodies at the national, regional and local levels in order to be able to determine their effects, as well as the establishment of the necessary adaptation and mitigation measures” (Art. 70, h) of Law 19,300)

Accordingly, the Ministry of the Environment is responsible for developing public policies and implementing measures to mitigate and adapt to climate change; however, it must do so in collaboration with the ministries of each sector and other levels of government. In this regard, the legislator overlooks the role of civil society. This Ministry began operating in 2010, when the first Climate Change Action Plan 2008-2012 was in force, which was replaced by the 2017–2022 Plan. It later promoted the enactment of the National Adaptation Plan in 2014 and the Sectoral Adaptation Plans in: agriculture (2013), biodiversity (2014), fishing and aquaculture (2015), health (2016), infrastructure (2017), cities and energy (2018). Chile’s Environmental Performance Report prepared by the OECD in 2016 highlights that while the legal mandate to develop policies on climate change falls under the responsibility of the Ministry of the Environment, most of the relevant responsibilities related to the implementation of the policy on the subject matter rest with other Ministries, whose level of involvement with this task will depend on their will and capabilities.11 On the other hand, it is important to mention that coordination with other levels of government (regional and local) during the process of developing public policies on climate change has been weak. This becomes evident if we look at the actors that participate in the public consultation processes for these plans, which includes some municipalities, making the absence of this government level more noticeable in other formal stages of involvement. Finally, once the public consultation process is over, the Ministry of the Environment shall submit the plan in question for approval by the Council of Ministers for Sustainability and Climate Change, a collegiate body of sectoral ministries. In addition to the aforementioned climate change plans, the nationally determined contribution (NDC) is an instrument of climate change policy. It addresses the scope of mitigation, adaptation and capacity building. Under the former, the country pledged to cut its emissions by 30% by 2030 compared to 2007 levels, if the economic growth rate remains at current levels, and up to 45% if it receives adequate international financial assistance. This is the supplement to the 2009 voluntary commitment to cut GHG emissions by 20% by 2020. Said instrument highlights a relevant aspect for climate litigation, such as the links between the phenomenon of global warming and human rights, particularly in vulnerable countries.

11

 Comisión Económica para América Latina y el Caribe (CEPAL) (2016), p. 42.

Climate Change Litigation in Chile: Between the Constitutional…

291

2.2 International Negotiations: The Human Rights Approach and Vulnerability As part of the international negotiations process for the signing of the Paris Agreement, Chile was part of the Independent Association of Latin America and the Caribbean (AILAC), underlining the importance of linking human rights and climate change.12,13 In this vein, the need for the Paris Agreement to recognize the connection between climate change and human rights (the right to food, health, a healthy environment, drinking water, etc.) and to establish a commitment to work together to implement concrete actions for the international protection of these rights, was supported. The concern was especially focused on the protection of the human rights of vulnerable populations due to geography, ethnicity, poverty, gender and age, which are the most affected groups and the least able to cope properly with climatic events (drought, floods, hurricanes, rising sea levels, among others). This was consistent with the country’s situation, which has seven out of nine vulnerability characteristics as defined in the UNFCCC and a high level of exposure to floods, lower water availability, lower agricultural yield and impact on biodiversity.14 Finally, the Paris Agreement responded partly to this concern by recognizing climate change as a problem for all humanity in its preamble, in which [the] Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity.15

On the other hand, in keeping with the country’s role in international negotiations, Chile includes in its Nationally Determined Contributions (NDCs) the need to reduce the effects of environmental and climate degradation on the most vulnerable groups of the population, for which it proposes to include a human rights perspective: The social consequences of Climate Change are crucial for establishing goals to face this phenomenon, and require a joint effort by the Government, the private sector and civil society. Environmental degradation, and climate change in particular, takes its deepest toll on the most vulnerable sectors of the population and is, thus, a factor which enhances social inequality. Therefore, it is important to adopt perspectives which allow to counteract such effects, including the protection and promotion of all the human rights potentially undermined by this phenomenon.16

 Submission of Chile on behalf of AILAC in the ADP on Human Right and Climate Change.  Decisions: 1/CP.16; 5/CP.17; 3/CP.18; 18/CP.20; 3/CP.17; REDD+ safeguards. 14  Comisión Económica para América Latina y el Caribe (CEPAL) (2016), p. 20. 15  Preamble to the Paris Agreement, paragraph 12. 16  Intended Nationally Determined Contribution (INDC) of Chile towards the Paris Agreement 2015. 12 13

292

P. Moraga Sariego

The human rights approach vis-à-vis climate change is present in the comparative case law on environment and climate change.17 Chile is no exception, since the possible violation of such rights in the face of extreme weather events has been the subject of discussion in local courts. In fact, the constitutional protection remedy for certain rights enshrined in the Constitution pursuant to its Article 20, seems to be the most effective route for claimants, as the comparative law,18 in contrast to other jurisdictional intervention channels that seek, for instance, to determine liability for environmental damages. In this sense, some authors19 have identified the complexity of substantiating the claims in this field via the tort law, with a strong economical focus within the framework of complex issues that bring together economic, social and environmental aspects.

3 Climate Litigation in the Chilean Context of Extreme Weather In order to understand the contents of climate litigation in Chile, it is necessary to first explain it in relation to the place of climate change within the legal dispute, as well as to define the objective pursued by the parties and the content of the dispute, linked to either mitigation or adaptation. Regarding this matter, literature emphasizes that climate litigation in general does not address climate change as the main issue of the dispute: In fact, in over three-quarters of the cases (77 per cent) climate change is only at the periphery of the argument. On the one hand, this suggests that the majority of the cases classified as climate litigation today are not core climate change cases, but cases that acknowledge climate change as a relevant factor. On the other, even if climate change is a peripheral issue, the judiciary is increasing exposed to climate change arguments in cases where, until recently, the environmental argument would not have been framed in those terms.”20

The Chilean experience confirms this approach, since case law of climate change does not place climate change itself as a central topic. Then, with regard to the objective of climatic causes, literature distinguishes “cases concerning administration, information/disclosure, legislation/policies, and protection/loss and damage (…) although the overwhelming majority were concerned with administrative issues in specific projects.”21 In the case of Chilean jurisprudence, this relates to damages and losses caused by extreme climatic events, exacerbated by human action or activity and/or omission on the part of the State. The objective to be pursued by the claimant shall be reestablishing the rule of law,  Kotzé (2014), p. 254.  Le Clerq (2011), p. 385. 19  Kysar (2011), p. 18. 20  Nachmany et al. (2017), p. 13. 21  Ibid. 14. 17 18

Climate Change Litigation in Chile: Between the Constitutional…

293

the restoration of the environment and/or the compensation of damages, depending on the legal action pursued. Finally, it should be noted that while literature shows that most of the case law regarding this this field relates to mitigation (78%),22 Chilean case law is much more linked to issues of adaptation, as these relate to the impacts of climate change and deficiencies in response capacity. Against this backdrop, the Chilean legal framework offers several avenues for jurisdictional intervention. This chapter proposes to analyze two of them: the constitutional protection remedy in relation to Chile’s international position on human rights and climate change, and the environmental reparation remedy, in order to demonstrate the limits of both.

3.1 The Contribution of the Constitutional Protection Regime The analysis of case law developed by the country’s Higher Courts (Courts of Appeals and Supreme Court) shows that the cases submitted through the constitutional protection remedy in connection with the phenomenon of climate change are brought as a consequence of the eventual violation of rights caused by the impacts of climate change, in particular by the occurrence of extreme climatic events, such as: algal blooms in the ocean, floods and fires. While these are recurrent phenomena in the history of the country, the increase in the global temperature of the planet caused by human activity seems to exacerbate their effects on the population. For example, during the austral summer (January-February) of 2016, the increase in ocean temperature caused the harmful algae bloom (HAB) in western Patagonia23 (the Strait of Reloncaví, Chiloé Island), triggering a major environmental emergency when large amounts of fish were suffocated by the excess of seaweed. As a result, the maritime authority authorized the dumping of nine thousand tons of advance-stage decomposing fish into the sea. The following summer (January-February 2017) saw a heat wave that took place during a ten-year drought, causing multiple fires in the south-central part of the country and threatening the lives and health of neighboring populations. As a reference, during this period the city of Santiago experienced an increase of 3 °C, of which 2 °C corresponded to natural variability and 1 °C to climate change.24 At the same time, the country’s Andean foothills experienced extreme rains that caused alluviums and, as a result, material and human losses. This issue is covered in literature as follows: Traditionally a temperate and hyper-humid region, western Patagonia experienced its most severe drought during the summer and fall of 2016. Along with precipitation deficits larger

 Ibid. 15.  Garreaud (2018). 24  Ibid. 22 23

294

P. Moraga Sariego

than 50% there was a similar reduction in river discharge into coastal waters, a decline in vegetation productivity, excessive solar radiation at the surface, and frequent upwelling-­ favorable wind events offshore. The combination of these regional-scale anomalies seems to have set the stage for environmental disturbances that, although not new in western Patagonia, occurred with unprecedented magnitude, including severe urban air pollution episodes, large forest fires, and the worst ever recorded harmful algae bloom (HAB).25

The origin of these climatic phenomena seems to be a combination of natural variability and human-induced factors of climate change, which “may result in a higher frequency of extreme droughts and environmental disruptions like those observed in 2016.”26 In turn, the constitutional protection remedy is brought 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, with the aim of immediately adopting 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. Protection remedies brought before the courts of justice in the context of extreme weather events recurrently point to the violation of the right to live in a pollution-­ free environment enshrined in the article of the constitution: “The right to live in a pollution-free environment. It is the duty of the State to ensure that this right is not affected and to protect the preservation of nature.” In this regard, it should be noted that beyond the literal wording of said provision, national case law has evolved in the sense of understanding that such a guarantee is not limited exclusively to pollution, but that it also includes effects on the elements of the environment or ecosystems, as observed in the following whereas clause: The transcript is clear enough to understand that the judges widely considered that there was a significant damage to the environment, of significant magnitude, with severe damage, mainly to soil, water and vegetation, even affecting water for human consumption, which is in violation of the applicable regulations.27

Now, from the perspective of human beings, the interpretation of the constitutional text by the Higher Courts of Justice has evolved in the sense of guaranteeing the right to live well.28 Accordingly, in this case, the protection remedy shall be applicable only when there is an illegal act or omission attributable to a specific authority or person and not against an arbitrary act or omission, as is the case in the other guarantees subject to protection. Claimants can also base a remedy brought before a venue with jurisdiction on the grounds of the violation of the right to life and the physical and psychological integrity of the person (Art. 19 no. 1), the right to develop any economic activity (Art. 19

 Ibid. 217.  Ibid. 27  Supreme Court Ruling No. 10884-2011, April 4, 2012, whereas third. 28  Supreme Court Decision No. 4,777, 2011, October 6, 2011. 25 26

Climate Change Litigation in Chile: Between the Constitutional…

295

no. 21), arbitrary non-discrimination (Art. 19 no. 22), the freedom to acquire all kinds of goods (Art. 19 no. 23), and the right to property (Art.19 no. 24). The decision of the Higher Courts of justice attest to the suitability and certain effectiveness of the remedy with respect to the claims of claimants. Indeed, on the one hand, legal standing is rarely questioned and, on the other, the argumentative development of the judgments accounts for the judges’ understanding of the consequences of the impacts of external climatic events in an unprecedented context, such as global warming. The inclusion of uncertainty in the understanding of legal disputes and their resolution, which requires public authorities to anticipate the occurrence of damages and thus reduce risks, should be particularly noted in this regard. 3.1.1  Locus Standi and Constitutional Protection Within the context of Chilean jurisprudence linked to the phenomenon of climate change and, in particular, to the impacts caused by extreme events, the party with legal standing to bring a claim is usually a community or group of people, who act against an authority. There are, however, particular features related to the type of climate event prompting the remedy. For example, in the case of the dumping of decomposed salmon into the ocean during the algal bloom experienced in the Chiloé Island area, the constitutional protection remedy was presented by a group of small-scale fishermen against the maritime authority (DIRECTEMAR), the fishing authority (SERNAPESCA), and the environmental authority (Ministry of the Environment and the Superintendency).29 In the case of other extreme climatic events such as alluviums, the protection remedy is exercised by individuals against the authority (Municipalities)30 or Municipalities against private parties (companies carrying out an economic activity)31 or by one individual against another who carried out an activity that aggravated the situation.32 In terms of fires, in all identified cases related to the heat wave experienced in the country during the austral summer of 2017,33 protection remedies were lodged by individuals against forestry companies. In this regard, the Supreme Court maintained that the former are considered as parties with legal standing due to the fact that the plantations perceived as threatened by the appellants were close to their homes. On the other hand, the Court of Appeals of Concepción considered that the companies involved in these cases had the legal capacity to be sued due to the fact that their forestry activities were carried out on the lands that caused the risk to the

 Supreme Court Decision No. 34,594-2018.  Supreme Court Decision No. 37,834-2017. 31  Supreme Court Decision No. 1,439-2012. 32  Judgment by the Court of Appeals of Copiapó No. 522-2015. 33  Supreme Court Decisions No. 21,781-2017, No. 34,181-2017, No. 35,293-2017. 29 30

296

P. Moraga Sariego

population, which may violate the rights sought to be protected through the protection remedy.34 3.1.2 Judicial Contribution in Relation to the State’s Duty to Prevent the Violation of the Human Right to a Healthy Environment The effects of climate change have empowered society to engage the State’s liability to preserve constitutional rights to a stable climate as well as the human right to healthy environment.35 For example, the development of both the European36 and the Inter American37 Court of Human Rights case law in environmental issues has shown that the exercise of certain fundamental rights enshrined in the Convention can be threaten by the existence of environmental harm or risks.38 In several of the situations described in the previous section, the State authorities were blamed for not taking preventive action. For example, in the case of the dumping of decomposing salmon, the main criticisms raised against the authorities (maritime, fisheries, health and environmental) relate to the lack of technical grounds for authorizing such action in the face of a complex environmental and climatic context. That meant, according to the complainants, a breach of their legal and regulatory obligations to control polluting activities and risks to human and animal health, and to the environment. The Supreme Court accepted this remedy and maintained that the actions of the defendants deviated from environmental and health regulations, thereby breaching the constitutional guarantee of Article 19 No. 8, which enshrines the right to live in a pollution-free environment, while also acknowledging that the authority did not act preventively. In this regard, the administration’s lack of action was criticized, because in the Court’s opinion, since January 2016, the Court had been aware of an increase in the ocean’s temperature in the Strait of Reloncaví, as well as of the climatic conditions giving rise to the excessive production of the Chatonella microalgae, which caused the asphyxiation of the salmons. Despite this, the authority did nothing to reduce the mortality rate of salmonids by taking preventive measures. On the contrary, the authority only acted and handled the health emergency after it had occurred and for the sole purpose of disposing of the dead fish.  Judgment by the Court of Appeals of Concepción, No. 35,293-2017, whereas 6.  Knox and Pejan (2018). 36  López Ostra v. Spain, Judgement 9 December 1994, 16798/90; Guerra et al. v. Italy, Judgement 19 February 1998, 116/1996/735/932; Tatar v. Romania, Judgement 27 January 2009, 67021/01. 37  Case Comunidad Indígena Yakye Axa vs. Paragua, Judgement 17 June 2005, Series C, no. 125; Case Comunidad Mayagna (Sumo) Awas Tingni vs. Nicaragua, Judgement 31 August 2001, Series C, no. 79; Case Pueblo Indígena Kichwa de Sarayaku vs. Ecuador, Judgement 27 June 2013, Series C, No. 245; Advisory Opinion OC-23/17 of November 15, 2017 requested by the Republic of Colombia. 38  Tigroudja (2015). 34 35

Climate Change Litigation in Chile: Between the Constitutional…

297

According to the Court, the relevant institutions failed to carry out any activities that would lessen the effects that this climatic condition, which was known in advance, could have on aquaculture crops, as it indeed happened, and to such a great extent.39 The Court also notes that the health and environmental emergency may even require the authority to take measures that do not affect life, human and animal health, or the environment, in the light of the precautionary principle, thus raising the standard of prevention.40 With respect to the Ministry of the Environment’s particular action, it maintains that despite the latter’s assertion that it lacks the power to intervene, the Court reminded it of the duty imposed by Article 70 of Law No. 19,300 on the General Environmental Bases, to ensure compliance with the international environmental treaties signed by Chile, as is the case in this situation. In consequence, that it cannot excuse itself from lacking the power to preventively understand situations of this nature, as it has a legal obligation to do so.41 Against this backdrop, the Supreme Court orders the adoption of preventive, corrective and coordination measures of the procedures under which each one must be governed, within a period of two months, with the aim of achieving a timely and effective reaction to avoid risks to the health of the population and damage to the environment, which will be reported to the Court, while continuing the scientific and administrative research that contributes to the establishment of measures to prevent the recurrence of the events.42

With regard to the fires, the appellants contended that the defendants (forestry companies) “have a social responsibility with their adjacent environment, namely to install and consider the necessary prevention and protection measures, such as maintaining a buffer zone that establishes a transition between housing and forest crops,”43 also claiming there was a “failure to establish protection and prevention measures between the houses and the company’s plantations, with no buffer zone free of fuel elements.”44 Notwithstanding the foregoing, in both cases the protection remedy was rejected, as the Court did not find any urgent caution to be provided by means of a constitutional remedy exercised within a context in which the appellants were unable to provide the information to prove the reported threat in terms of specifying at least the precise location and boundaries of the defendant’s property with respect to the sectors they stated as their addresses. As for the request to design and implement extensive protection and buffer zones between their homes and the forest plantations of the defendants, this was dismissed by the Court of Appeals of Concepción and the Supreme Court, because in their opinion the measures should be implemented on land not belonging to the defendant, and the owner thereof is not obliged by law to do so. Therefore, that would

 Supreme Court Decision No. 34,594-2018, whereas eighth.  Supreme Court Decision No. 34,594-2018, whereas thirteenth. 41  Supreme Court Decision No. 34,594-2018, whereas eleventh. 42  Supreme Court Decision No. 34,594-2018, whereas fourteenth. 43  Supreme Court Decision No. 2,181-2017. 44  Supreme Court Decision No. 35,293-2017. 39 40

298

P. Moraga Sariego

entail a measure to be implemented only for the sake of coexistence between good neighbors, established through an agreement between the parties or territorial planning instruments. In this regard, the defendant maintained that the property where the fire broke (Playa Negra) had management plans approved by the National Forestry Corporation (CONAF) and firewalls in areas that interface with populated sectors. Consequently, we can therefore trace out the limits of the legal framework vis-à-vis climate change effects (fires), in particular in the case of land planning, and its impact on the ineffective protection of the population. At the same time, this judicial resolution demonstrates that Chilean climate change policy is insufficient to create new obligations for the key actors that would allow for improving the communities’ resilience. In terms of alluviums, the question also arises regarding the authority’s obligation to take coordinated action to prevent risk to the population, even if this is potential and the need to consider prevention as a factor for assessment: That in this sense, the presence of a threat or risk to the safety of individuals, even if it is only probable or potential, must be prevented in a coordinated manner by the authority.45

At the same time, the Court points out that in the absence of studies on future climatic conditions to define new zones exposed to alluvial risks, the only viable and reasonable alternative to avoid damage resulting from a risk that in 1991 cost the lives of a hundred people, is for the authority to act in a forward-looking and precautionary manner, based on the experience acquired, that is, to adopt and maintain preventive measures in relation to a risk in the absence of certainties.46

Thus, the Supreme Court reinforces the idea that in the event of lack of certainty and in the face of a potential risk, the authority must adopt precautionary measures, adding three criteria to define them: it must be proportional to the protection, non-­ discriminatory in its implementation and consistent with other similar measures that have been adopted previously.47 According to the foregoing, the constitutional protection remedy presents itself as a fairly suitable means of jurisdictional intervention for people whose rights could eventually be affected by the impact of climate change. Nevertheless, it is worth recognizing that the existing lacunas or gaps in legislation or the lack of adequacy thereof, could run counter to the protection of fundamental rights, as demonstrated by the case law on fires. This requires adapting existing legal frameworks, particularly in an area as sensitive to extreme weather events as land-use planning.

 Supreme Court Decision No. 37,834, whereas ninth.  Ibid. 47  Ibid. whereas tenth. 45 46

Climate Change Litigation in Chile: Between the Constitutional…

299

3.2 Limits of the Environmental Liability Regime Law 20,600, which created the Environmental Courts in 2012, established that among the powers of the new specialized justice is that of hearing claims that seek the reparation and remediation of the damaged environment (Article 17 (2) of Law 19,300). These are brought with the environmental damage reparation remedy provided for in Article 53 of Law 19,300 on General Environmental Bases. In this regard, it should first be noted that the legislator understands reparation as: the act of restoring the environment or one or more of its components to a condition similar to the one that existed before the damage was inflicted or, if this is not possible, restoring its basic properties. (Article 2s of Law 19,300).

Environmental damage is subsequently defined as: “Any significant loss, reduction, detriment or impairment inflicted on the environment or on one or more of its components” (Article 2 e), Law 19,300). “Anyone who negligently or maliciously causes environmental damage” is liable for environmental damage (Article 51 of Law 19,300), therefore it is not an objective liability regime. In this respect, there are two judgments of the Environmental Courts related to global warming that are noteworthy. The first is the claim for environmental damage caused by the dumping of salmon into the ocean and the claim for environmental damage caused by the Pascua Lama mining project to the glaciers in the north of the country. This also prompted a claim against the resolution of the Superintendence of the Environment (SMA), which established a series of sanctions, under Article 17 No. 3 of Law 20,600,48 as well as the request under Article 17 No.4 of Law 20,600 regarding the sanctions applied by the SMA.49 Although the latter are not related to liability for environmental damage, they are linked to the same project that prompted the filing of a lawsuit for environmental damage on behalf of civil society against the Pascua Lama project as a result of the damage caused to the glaciers located near the project activities and, in particular, to the existing concerns regarding the protection of the glaciers. 3.2.1  Locus Standi and Environmental Damage Another controversial and novel issue addressed in climate litigation is linked to the definition of legitimacy, either active or passive. The former is closely connected to the active legitimation to represent future generations and minors, that while it has

48 49

 Judgment of the Second Environmental Court of Santiago, R-6-2013.  Judgment of the First Environmental Court of Antofagasta, S-5-2018.

300

P. Moraga Sariego

been admitted on several occasions (in the Netherlands,50 Pakistan51 and the US52), it remains a delicate and controversial issue, especially in our region.53 As regards to passive legitimation, many issues are still pending about the passive subject in climate litigation, due to the multiplicity of actors responsible for greenhouse gas emissions originating the problem, which involve both the State and private companies. The most emblematic cases in this field are the Dutch and the Pakistani cases, in which civil society sued their respective States on the grounds of their responsibility to formulate and implement climate policies. In Latin America, the very first case of climate litigation have been recently reported, involving a Peruvian farmer seeking compensation from a German electric corporation, in front of a German court, on the basis of a report identifying the company as responsible for 0.47% of the greenhouse gas emissions of the industrial age.54 Likewise, literature has highlighted the possibility for the States to sue over individuals for their contribution to climate change.55 Indeed, greenhouse gases emissions are the result of a number of simultaneous decisions that take place within the multiple levels of government, many of which are profoundly connected to the dynamics regulating energy production and consumption. Moreover, it is necessary to recognize that companies navigate within deficient legal frameworks in terms of climate change, which is determinant in both the disputes and the resulting environmental and social degradation.56 The parties that are entitled to exercise the aforementioned environmental remedy, and with the sole purpose of seeking the reparation and remediation of the damaged environment, are individuals (natural persons) or legal entities, public or private, that have suffered damage or harm, the municipalities, for the events that have taken place in their respective districts, and the State, through the State Defense Council (Article 54 of Law 19.300). In this regard, legislation states that once a complaint has been filed by one of the aforementioned entitled parties, the remaining parties cannot file such a complaint, which in any case does not preclude their right to act as third parties. Any person may ask the municipality in which the activities that cause damage to the environment are developed to lodge the respective environmental remedy on their behalf and based on the background that the complainant must provide.  Urgenda Foundation v. The State of the Netherlands, 24 June 2015 (District Court, The Hague, Case C/09/456689/ HA ZA 13 – 1396). 51  Ashgar Leghari v Federation of Pakistan, Lahore High Court Green Bench (Pakistan), 25 September de 2015, W.P. No. 25501/2015. 52  Zoe and Stella Foster et al.v Washington Department of Ecology, 19 November 2015, Superior Court of the State of Washington for King County, no. 14-2-25295-1. 53  Supreme Court of Justice of Colombia, Tutela 76115, Radicación no. 76115, 2014. 54  According to a study elaborated by the geographer Richard Heede, Available on: http://www. sciencemag.org/news/2016/08/just-90-companies-are-blame-most-climate-change-carbonaccountant-says (Accessed: 30 August 2016). 55  Engel (2011). 56  Osofsky (2005). 50

Climate Change Litigation in Chile: Between the Constitutional…

301

In the specific case of dumping dead and decaying salmon in the ocean amidst an algal bloom scenario, the remedy was brought forward by the Municipality of Ancud against the maritime authority, the fishing authority and the environmental authority (Ministry of the Environment). The locus standi in this case was challenged by the fact that the dumping took place more than 100 km from the territorial boundary of the Municipality of Ancud and that, therefore, the claimant was not directly affected by the facts constituting the alleged damage. The third Environmental Court of Valdivia decided to uphold the existing case law on the matter, that is, to consider the party with locus standi to exercise the reparation remedy as the one found at the place where the damage occurred or where it manifested. In the case of environmental damage to glaciers, the lawsuit for environmental damage was filed by community members and an affected NGO against the holder of the Pascua Lama Mining Project. In this case, there was also a discussion about the legal standing of the claimants, in which the Second Environmental Court of Santiago developed an interesting argument regarding the possibility of individuals and legal entities to take legal action. In the case of the former, it considered that the condition of direct affectation required by the law is met when the claimant is in the vicinity of the place where the damage occurred. In the case of legal entities, the Court considered that their legal standing shall be deemed effective insofar as their bylaws have established the environmental legal good affected by the eventual damage as a protected object. 3.2.2 Causation in the Specialized Justice for Environmental Damage Claims Within the literature on climate change litigation, the question of causation arises in respect of the need to prove a causal link between the event giving rise to the damage and the damage and/or affectation, in a context of uncertainty, that can hardly be compared to many other areas of human life. Within this framework, the method chosen by the judge for evaluating scientific evidence—by means of the Intergovernmental Panel on Climate change (IPCC) reports or Environmental Impacts Assessments (EIAs) and independent experts’ results—becomes a crucial issue.57 In this regard, it is observed that some of them attach determinant importance to IPCC reports,58 while others refuse.59 This question is central considering the fact that the outcome of the cases relies on the level of scientific evidence.60

 Alabi (2012), Duffy (2009), Reevest (2009) and Harper (2006).  Urgenda Foundation v The State of the Netherlands (2015). 59  Supreme Court of Justice of Colombia, Tutela 76115, Radicación no. 76115, 2014. 60  Alabi (2012), pp. 209–220. 57 58

302

P. Moraga Sariego

With regard to the second issue discussed above, it seems appropriate to question the role of the specialized judiciary that hears claims for environmental damages caused by extreme weather or other activities linked to climate change impacts. In that regard, we can mention the case of the dumping of dead fish into the Strait of Reloncaví caused by harmful algae bloom (HAB). Indeed, in a decision dated December 20, 2017,61 the claim for environmental damage filed by the Municipality of Ancud before the Third Environmental Court of Valdivia, was dismissed for not having provided sufficient evidence of the existence or likelihood of the existence of environmental damage on the coasts of Ancud, resulting from the flowering of harmful algae, also known as “red tide”. This analysis is interesting because of the divergence between the arguments of the specialized justice system and the Supreme Court regarding compliance or non-compliance with the London Protocol, since they both reached completely opposite conclusions. The matter is relevant because the application of the presumption of liability for environmental damage provided for in Article 52 of Law 19,300 depended upon it, which is applicable in the case of breaches of environmental regulations (such as the Convention on the Prevention of Marine Pollution), or otherwise, raises the need to prove its existence. In fact, to some, the application of the presumption of liability transforms liability for environmental damages into objective liability,62 and according to the Second Environmental Court of Santiago, this could be applied to both the presumption of liability and to causation. However, the Third Environmental Court of Valdivia, which heard the case, did not share this opinion.63 In that regard, the Environmental Court of Valdivia, after weighing the evidence, pointed out that with respect to the authority’s actions in relation to the international obligations deriving from the “Convention on the Prevention of Marine Pollution”, there are “indications” that the IMO had been consulted, as required by Art. 8, no. 2 of the London Protocol, regarding polluting discharges in emergency situations.

Yet the Court did not delve—as the Supreme Court did—into the quality of the submitted information, which in the latter’s view was insufficient to make the decision to dump the dead fish, in accordance with the requirement of the London Protocol. The Court thus defined the standard of analysis required in order to confirm compliance with international treaties by the State bodies. The latter challenged the specialized judiciary to improve its argumentative technique in the light of the observance of the right to live in a pollution-free environment of Article 19 No. 8 of the Political Constitution of the Republic, and to ensure the protection of the protected legal asset: the environment. Finally, the ruling on the dumping of dead fish in the Strait of Reloncaví and the violation of the constitutional guarantee of living in a pollution-free environment made it clear that forced climactic conditions, such as the blooming of algae, are a  Moraga Sariego (2018).  Bermúdez (2016), p. 395. 63  See Arévalo and Mozo (2018). 61 62

Climate Change Litigation in Chile: Between the Constitutional…

303

context that must be taken into account by the authority when making decisions that could jeopardize environmental balance. To this end, they must be based on available scientific knowledge and adopted in accordance with the precautionary principle. This was held by the Supreme Court and omitted by the Environmental Court based on testimonial evidence from the Red Tide Commission’s Report, which maintained, for example, that there had been no evidence from the Chiloé sector until mid-April, as opposed to the conclusions of the Supreme Court, which stated that the authority had been aware of the issue since February 2016 at the very least. The report underlying the Third Environmental Court’s decision was prepared by a committee of scientific experts, summoned by the Ministry of Economy after the event triggered demonstrations and transportation blockages between the island of Chiloé and the mainland. Although this group was unable to establish a causal relationship between the dumping and the events of massive microalgae blooms in early autumn on the western coasts of Chiloé Island, it did provide arguments that these discharges do have an environmental impact and that it is not a recommended practice under any circumstances. Indeed, it is well-known that algal blooms (toxic and non-toxic) are natural phenomena that increase with certain conditions linked to climate change, such as, for example, an increase in water temperature, greater solar radiation, an increase in winds favorable to coastal outcrops, among others. In addition to these climatic factors, there are also man-made causes such as the well-­ known eutrophication of channels and fjords in Patagonia due to the sustained increase—for decades—of salmon farming, which entails the appearance of vast amounts of organic matter and nutrients that seem to be exceeding the carrying capacity of these systems. A second noteworthy case of environmental damage linked to the impacts of climate change is the one initiated through the environmental claim brought before the Second Environmental Court of Santiago against the mining project Pascua Lama.64 The claim was lodged by small-scale agricultural and livestock farmers of the borough of Alto del Carmen and its surroundings, and by an NGO, the Observatorio Latinoamericano de Conflictos Ambientales (OLCA), arguing that the project would “[cause] an alleged significant impact or impairment only with respect to the Toro 1, Toro 2 and Esperanza glaciers and, by extension, the basin of the El Toro river into which the runoff of those glaciers’ waters flows.” However, the Court held that there is a multiplicity of evidentiary background and pieces of evidence that are consistent with one another, assessed in accordance with the rules of sound judgment (…), that allow for confirming that the historical trend of the loss of the ice bodies’ mass in the Project’s area of influence has not been altered.65

Based on this, it is clear that the Second Environmental Court of Santiago could not establish the causal link between the mining activity and the impact on the  Judgment of the Second Environmental Court of Santiago, D-2-2013.  Judgment of the Second Environmental Court of Santiago, D-2-2013, whereas one hundred fifty-seventh. 64 65

304

P. Moraga Sariego

glacier, notwithstanding that it acknowledged a loss of surface attributable to climatic conditions, whether due to variability or of an anthropogenic origin, as indicated by the defendant. Based on that opinion, the reduction of the surface area of the previously mentioned glaciers could not be considered as a result of human activity (mining activity), rather as a consequence of global warming. In light of that argument and in view of the opinion that there was no significant damage attributable to the mining activity in question, the Second Environmental Court of Santiago decided to reject the claim for environmental damages filed by civil society against the Pascua Lama mining project for eventual environmental damages caused by that project, which had been environmentally approved by way of the environmental qualification resolution (RCA) of 2006.

4 Conclusions The analysis of Chilean case law in relation to the impact and effects of climate change, focusing mainly on problems of adaptation, has led the courts to issue decisions on the duty that government bodies have to incorporate a preventive approach into their actions. At the same time, the violation of the right to live in a pollution-­ free environment, enshrined in Article 19 No. 8 of the Constitution, has been acknowledged as a result of the State’s unlawful actions and/or omissions in the context of extreme climatic events. Nevertheless, reparation remedies for environmental damage, lodged in relation to the same type of phenomena, seems to be a much less suitable way, in spite of the fact that they are heard by a jurisdiction specializing in environmental matters. The foregoing shines a light on the human rights system, and the mechanism for protecting constitutional guarantees is positioned in the country as a jurisdictional channel to encourage understanding of the phenomenon of global warming and specialized justice.

References Journals and Articles Alabi SA (2012) Using litigation to enforce climate obligations under domestic and international laws. Carbon Clim Law Rev 6:209–220 Arévalo F, Mozo M (2018) Alcance e interpretación de la Presunción del artículo 52 de la Ley N° 19.300, a la luz de la jurisprudencia de los Tribunales Ambientales ¿Presunción de responsabilidad o de culpabilidad? Revista de Derecho Ambiental, 118–133

Climate Change Litigation in Chile: Between the Constitutional…

305

Arriagada R, Aldunce P, Blanco G, Ibarra C, Moraga P, Nahuelhual L, Gallardo L (2018) Climate change governance in the Anthropocene: emergence of polycentrism in Chile. Elem Sci Anth 6(1):68 Duffy M (2009) Climate change causation: harmonizing tort law and scientific probability. Temple J Sci Technol Environ Law 28:186–230 Engel K (2010–2011) State standing in climate change lawsuit J. Land Use & Envtl. L. 217 20:217–237 Garreaud RD (2018) Record-breaking climate anomalies lead to severe drought and environmental disruption in western Patagonia in 2016. Clim Res 74:217–229 Harper B (2006) Climate change litigation: the federal common law of interstate nuisance and federalism concerns. Georgia Law Rev 40:663–698 Hurlbert M, Gupta J (2016) Adaptive governance, uncertainty, and risk: policy framing and responses to climate change, drought, and flood. Risk Anal 36(2):339–356 Kotzé L (2014) Human rights and the environment in the Anthropocene. Anthropocene Rev 1:252–275 Kysar DA (2011) What climate change can do about tort law. Environ Law 1(41):3–73 Osofsky H (2005) The geography of climate change litigation: implications for transnational regulatory governance. Wash Univ Law Q 83(6):1789–1855 Peel J, Godden L, Keenan RJ (2012) Climate change law in an era of multi-level governance. Transnl Environ Law 1(2):245–280 Reevest CR (2009) Climate change on trial: making the case for causation. Am J Trial Advocacy 32(495):495–524 Termeer C et al (2016) Coping with the wicked problem of climate adaptation across scales: the Five R Governance capabilities. Landscape Urban Plann 154:11–19 Tigroudja H (2015) The right to a healthy environment in the European Court of Human Rights case law. Revista de Derecho Ambiental 3:155–167

Books and Chapters Bermúdez J (2016) Fundamentos del Derecho Ambiental. Ediciones Universitarias de Valparaíso, Valparaíso Knox J, Pejan R (eds) (2018) The human right to a healthy environment. Cambridge University Press, Cambridge Le Clerq JA (2011) Las consecuencias del cambio climático, la responsabilidad del daño y la protección de los Derechos Humanos, una relación problemática. In: Abreu Sacramento JP, Le Clercq JA (eds) La Reforma Humanista. Derechos Humanos y Cambio Constitucional, Miguel Ángel Porruá, México D.F, pp 383–409

Online Publications Centro de la Ciencia del Clima y la Resiliencia (2015) La Megasequía 2010-2015: Una lección para el futuro. http://www.cr2.cl/wp-content/uploads/2015/11/informe-megasequia-cr21.pdf. Accessed 15 July 2017 Comisión Económica para América Latina y el Caribe (CEPAL) & Organización para la Cooperación y el Desarrollo Económicos (OCDE) (2005) Evaluaciones del desempeño ambiental: Chile. Santiago. https://repositorio.cepal.org/bitstream/handle/11362/1288/1/S0500003_ es.pdf. Accessed 24 Oct 2018 Comisión Económica para América Latina y el Caribe (CEPAL) & Organización para la Cooperación y el Desarrollo Económicos (OCDE) (2016) Evaluaciones del desempeño ambi-

306

P. Moraga Sariego

ental: Chile 2016. Santiago. https://repositorio.cepal.org/bitstream/handle/11362/40308/ S1600413_es.pdf. Accessed 24 Oct 2018 Ministry of The Environment (2017) Plan Nacional de Cambio Climático, 2017-2022, 250, https:// mma.gob.cl/wpcontent/uploads/2017/07/plan_nacional_climatico_2017_2.pdf. Accesed 22 may 2020 Moraga Sariego P (2018) Principio de Prevención y Precaución. Actualidad Jurídica Ambiental. http://www.actualidadjuridicaambiental.com/en/jurisprudencia-al-dia-iberoamerica-chileprincipio-de-prevencion-y-precaucion-vertidos-medio-marino/. Accessed 22 Oct 2018 Nachmany M, Fankhauser S, Setzer J, Averchenkova A (2017) Global trends in climate change legislation and litigation. Grantham Research Institute on Climate Change and the Environment. http://www.lse.ac.uk/GranthamInstitute/wp-content/uploads/2017/04/Global-trends-inclimate-change-legislation-and-litigation-WEB.pdf. Accessed 24 Oct 2018

List of Cases Advisory Opinion of the Inter American Court of Human Rights OC-23/17 of November 15, 2017 requested by the Republic of Colombia Ashgar Leghari v Federation of Pakistan, Lahora High Court Green Bench (Pakistan), 25 September 2015, W.P. No. 25501/2015 Case Comunidad Mayagna (Sumo) Awas Tingni vs. Nicaragua, Judgement 31 August 2001, Inter American Court of Human Rights, Series C, no. 79 Case Comunidad Indígena Yakye Axa vs. Paragua, Judgement 17 June 2005, Inter American Court of Human Rights, Series C, no. 125 Case Pueblo Indígena Kichwa de Sarayaku vs. Ecuador, Judgement 27 June 2013, Inter American Court of Human Rights, Series C, No. 245 Guerra et  al. v. Italy, Judgement 19 February 1998, European Court of Human Rights, 116/1996/735/932 López Ostra v. Spain, Judgement 9 December 1994, European Court of Human Rights, 16798/90 Tatar v. Romania, Judgement 27 January 2009, European Court of Human Rights, 67021/01 Supreme Court Decision No. 10884-2011, April 4, 2012, whereas third Supreme Court Decision No. 4,777, 2011, October 6, 2011 Supreme Court Decision No. 34,594-2018 Supreme Court Decision No. 37,834-2017 Supreme Court Decision No. 1,439-2012 Judgment by the Court of Appeals of Copiapó No. 522-2015 Supreme Court Decisions No. 21,781-2017, No. 34,181-2017, No. 35,293-2017 Judgment by the Court of Appeals of Concepción, No. 35,293-2017, whereas sixth Supreme Court Decision No. 2,181-2017 Supreme Court Decision No. 35,293-2017 Supreme Court Decision No. 37,834, whereas ninth Supreme Court of Justice of Colombia, Tutela 76115, Radicación no. 76115, 2014 Judgment of the Second Environmental Court of Santiago, D-2-2013 Judgment of the Second Environmental Court of Santiago, R-6-2013 Judgment of the First Environmental Court of Antofagasta, S-5-2018 Urgenda Foundation v. The State of the Netherlands, 24 June 2015 (District Court, The Hague, Case C/09/456689/ HA ZA 13 – 1396) Zoe and Stella Foster et al. v Washington Department of Ecology, 19 November 2015, Superior Court of the State of Washington for King County, no. 14-2-25295-1

Climate Change Litigation in Chile: Between the Constitutional…

307

List of Statutes Constitution of Chile, 1980 Law on General Environmental Bases N°19,300, 1994 Environmental Framework Amendment Act, n° 20,417, 2010 Environmental Court Act, n°20,600, 2012 UNFCCC, Decree No. 123 of the Ministry of Foreign Affairs (MINREL). https://treaties.un.org/ Pages/ViewDetailsIII.aspx?src=IND&mtdsg_no=XXVII-7&chapter=27&Temp= mtdsg3&clang=_en . Accessed October 18, 2018 Kyoto Protocol, Supreme Decree No. 349 of 2005. https://treaties.un.org/Pages/ViewDetails. aspx?src=TREATY&mtdsg_no=XXVII-7-a&chapter=27&clang=_en. Accessed October 18, 2018 Paris Agreement, Decree of the Ministry of Foreign Affairs No. 30, February 17, 2017 UNFCCC decisions: 1/CP.16; 5/CP.17; 3/CP.18; 18/CP.20; 3/CP.17 Intended Nationally Determined Contribution (INDC) of Chile Pilar Moraga Sariego  is a Consultant on several projects regarding climate change governance, disasters, and environmental protection for UNISDR, CEPAL, Euroclima, ParlAmericas, among others, and member of the Group of Experts for the Global Pact for Environment. Currently Principal Researcher of Governance and Science Policy Interface at the Center for Climate and Resilience Research (CR)2 and associate researcher at Solar Energy Center SERC-Chile (2013–2022). Main articles authored include: “Climate Change Governance in the Anthropocene: Emergence of Polycentrism in Chile”, in ELEMENTA (2018); “Jurisprudential and Legal Monthly Comments in Energy and Environmental Law”, in Revista de Actualidad Jurídica Ambiental; “Climate Change Damages, Conceptualization of a Legal Notion with Regard to Reparation under International Law”, in Climate Risk Management (2016); “La réparation des atteintes environnementales”, in Revue Juridique de l´environnement, Société Française du Droit de l´Environnement (2015) ; “Environmental Assessment in Solar Energy Cases”, in Economic Administrative Law, Santiago: Pontificia Universidad Católica de Chile (2014); “Le Principe des responsabilités communes mais différenciés dans le régime international du climat”, in Les Cahiers de Droit, Laval: Université de Laval (2014).

Climate Change and the Individual: The Brazilian Perspective José Roberto de Castro Neves and Patricia Klien Vega

Abstract  This chapter offers an overview of environmental litigation in Brazil and, in particular, of the mechanisms to protect both individual and collective rights to an ecologically balanced environment, as set forth by art. 225 of the Brazilian Constitution of 1988. The instruments available in the Brazilian legal system related to the environment and the prevention of climate change include popular, class and individual actions, which can seek to prevent, correct or remedy an act or omission which caused (or threatens to cause) environmental degradation. The defendant of said actions can be the government or other public authority, individuals, a private company or any group which is responsible for the harmful conduct. Liability for environmental damages is, as a rule, joint and several, and the damage must be repaired in full. Moreover, the agent can be held responsible regardless of whether it acted directly, authorized, oversaw, financed or benefited indirectly from the harmful action, being the existence of the environmental damage sufficient to characterize liability.

1 Environmental Law in Brazil Brazil is internationally famous for its beautiful landscapes, from beaches to mountains, fields and jungles. This reputation is justified: Brazil is an extraordinary place, a tropical paradise that houses many of the most diverse ecosystems in the world. Besides the acclaimed Amazon Jungle, Brazil also displays many other biomes, such as the Pantanal Complex, the largest tropical wetland area in the world, in the West-Centre Region; the Atlantic Rainforest, in the Southeast Region (which comprises the Tijuca Rainforest, in Rio de Janeiro, the largest urban jungle in the world); and the Caatinga, in the Northeastern Region, with its dry soil and grassy plants.

J. R. de Castro Neves (*) · P. Klien Vega Ferro, Castro Neves, Daltro & Gomide Advogados (FCDG), Rio de Janeiro, Brazil e-mail: [email protected] © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_15

309

310

J. R. de Castro Neves and P. Klien Vega

The privileged position that Brazil boasts as an ecological mosaic also imbues the country with the important task of preserving the ecosystems it hosts, not only to guarantee national ecological stability, but also to avoid implications on a global scale. This concern was reflected in the many ecological conferences held from the mid-twentieth century onwards, such as the Earth Summit’s Convention on Climate, also known as ECO-92 (1992), and the international commitments undertaken henceforth, namely, the Kyoto Protocol (1997), the Unesco Declaration (2005) and, more recently, the Paris Agreement (2016). On a national level, the Brazilian Federal Constitution, sanctioned in 1988, provides in art. 225 that “all have the right to an ecologically balanced environment, which is an asset of public use and essential to a healthy quality of life”. Art. 225 of the Constitution confers a dual face to environmental rights, as pertaining both to the collectivity as a whole and to every individual separately. It is therefore known as a “transindividual right”, inasmuch as it surpasses the individual and reaches the collectivity. In this sense, considering that it is also an indivisible and undeterminable right, the fundamental right to an ecologically balanced environment has a diffuse nature. Today, it is undisputed that the right to an ecologically balanced environment—a necessary pillar of the right to life, that is, to a healthy life—is a fundamental human right.1 This idea arose for the first time with the Stockholm Declaration of 1972 and was implemented with the sanctioning of the Brazilian Constitution in 1988. However, even before the Federal Constitution was sanctioned, Law n. 6.938, enacted in August 31st 1981, was already in force. This law is a milestone of environmental protection in Brazil: it instituted the National Policy on the Environment, setting the rules for the integrated action between multiple governmental branches involved in environmental regulation and licensing, while also providing for specific rules of liability in case of damages to the environment. Even though this Law does not deal directly and specifically with the issue of climate change, it was the first legal document to regulate the protection and reparation of the environment from any kind of danger or damage, in an all-encompassing manner. The concept of “environment”, as described by art. 3, I, of Law n. 6.938, comprises “the set of conditions, laws, influences and interactions of physical, chemical and biological nature, which permits, houses and regulates life in all of its forms”. Nonetheless, sparse legislation already regulated the protection of some facets of the environment, such as the Water Code (Legal Decree n. 852, of 1938), the Forest Code (Law n. 4.771, of 1965) and the Fishing Code (Legal Decree n. 221, of 1967).

 Writ of Mandamus n. 22.164/SP, Reporting Justice Celso de Mello, judgment of 30 October 1995.

1

Climate Change and the Individual: The Brazilian Perspective

311

2 Climate Change Law in Brazil In specific regard to climate change, Brazil enacted Law n. 12.187, dated December 29th, 2009, which instituted the National Policy for Climate Change.2 Besides setting the guidelines and objectives of this Policy, article 12 of Law n. 12.187 contains the express commitment undertaken by the Brazilian government to reduce greenhouse gas emissions by somewhere between 36.1% and 38.9% until 2020. This Law was further regulated by Executive Order n. 7.390 of 2010, which provides the methods for reducing greenhouse gas emissions in order to achieve the levels aforementioned. As former Supreme Federal Court Justice Sydney Sanches correctly stated in 1988, when commenting the status of environmental protection in Brazil, “we are not lacking constitutional and legal rules”.3 Indeed, Brazil boasts a plethora of legal provisions that confer ample protection to the environment, including the prevention of climate change. What, then, are the instruments available to individuals in order to effect such protection?

3 Procedural Instruments Available In the Brazilian legal system, the most common and effective types of lawsuits used for environmental protection are the popular action and the class action. While preserving a collective right to an ecologically balanced environment, the popular action is an individual demand, since the plaintiff is necessarily a specific individual (or specific individuals). The class action, on the other hand, may protect collective or individual rights and is characterized by its collective nature, as the plaintiff necessarily represents a group of people (such as, for example, an association of fishermen). However, there are situations in which, despite the diffuse nature of the right to an ecologically balanced environment, the redress sought through the Judiciary relates to damages caused to individuals. In these cases, the immediate cause of action is the damage to the individual, while the environmental damage constitutes the remote cause of action. Therefore, environmental damages may give rise not only to collective actions to grant the protection of the diffuse right, but also to lawsuits in the individual sphere.

 For criticisms on the imperfections and abstractions of Law n. 12.187, see Wedy (2016).  Sanches (1988), pp. 88–96.

2 3

312

J. R. de Castro Neves and P. Klien Vega

3.1 Popular Action The Federal Constitution, in its art. 5, LXXIII, establishes the mechanism to be used against acts or omissions by the government regarding the protection of the environment, by conferring citizens the right to bring forward popular actions against illegal or immoral acts of public authorities which represent a threat to the environment. Such mechanism is regulated through Law n. 4.717/65, which sets forth specific requirements for the filing of the popular action. The objective of the popular action is essentially to declare the invalidity of administrative acts, but the public entity can also be ordered to pay damages. It is of the essence of the popular action to enable the active participation of citizens in the protection of the environment and of the cultural and historical heritage. Therefore, through such vehicle, citizens are entitled to supervise the actions of the government towards the public goods, reflecting the democratic nature of the institute. Art. 1st, §3, of Law n. 4.717/65 provides that the standing to file a popular action depends on the proof of Brazilian citizenship through the presentation of the party’s voter ID card or corresponding document. Although the action derives from the occurrence of a harmful act by the government, the defendants in the lawsuit may also be private actors, such as concession holders or public service providers. However, it is important to acknowledge that such private agents may only appear as co-defendants, as the public authority is a necessary party to the popular action. In this sense, considering the broad causality between the act and the possible harm to the environment, the popular action may reach all individuals who may have any direct or indirect relation to the environmental threat. The existence of a harmful act is a core requirement for the filing of a popular action, which has as its cause of action the threat to environmental heritage. The harm may be achieved not only through acts, but also through omissions by public authorities, like, for example, in cases of neglectful environmental inspection by the government. Moreover, pollution is not necessary in order to configure the environmental damage, as the mere non-compliance with environmental regulations is considered harmful in itself. Nevertheless, when pollution or effective damage to the environment is caused, the redress must encompass the remediation of such damage. Finally, it is important to note that it is not up to the Judiciary to promote an analysis of the public authorities’ discretion. On the contrary, the scope of such discretion must be scrutinized by the government itself, remaining to the Judiciary solely the task of stopping illegal acts, which cause damages to the environment. In conclusion, the main requirements to bring forward a popular action on the grounds of environmental protection are: (i) citizenship of the plaintiff, (ii) existence of a harmful act (which can be an omission) and (iii) occurrence (or threat) of environmental damage. Once such standards are met, the individual may use the popular action as a means to ensure the compliance of environmental regulations, prevent environmental damage and, in doing so, exercise democracy.

Climate Change and the Individual: The Brazilian Perspective

313

3.2 Class Action The class action is a mechanism to grant protection of diffuse, collective and homogeneous individual rights, which does not involve the direct participation of citizens. As mentioned above, diffuse rights are indivisible and their holder is a group of undeterminable agents, related to each other by factual circumstances. As for collective rights, although they are also indivisible, their holder is a determinable group of agents, linked through a legal relationship. On the other hand, the object of homogeneous individual rights is divisible; their holders are determinable and linked by a common origin. The purpose of the class action is to attempt to recover the environment as well as prevent the polluter from causing further harm. The redress sought may be either a claim for damages or an injunction in order to compel the defendant (whether a public or private actor) to do or refrain from practicing specific acts. Thus, in relation to the environment, the claim of a class action may be to seek compensation for environmental damages or to compel a governmental authority to observe the international commitments undertaken in a legal document. According to the prevailing understanding of the Superior Court of Justice, collective damages to the environment are not subject to statute of limitations, seen as the right to a balanced environment is considered a fundamental right of the population.4 Art. 5 of Law n. 7.347/85 provides that the only ones with standing to file a class action are: the Public Prosecutor’s Office, the Public Defenders, the Federal Government, the States, the Federal District and the Municipal Districts, government agencies and foundations governed by public law, semi-public corporations and civil associations. These parties, upon the filing of class actions, act as procedural “substitutes”, representing the collectivity and acting in their interest. Before filing the lawsuit, the Public Prosecutor’s Office may carry out a public inquiry to investigate the harmful event and gather evidence. Such procedure constitutes only a preparatory measure and does not involve the active participation of the investigated agent. After having carried out the inquiry, the Public Prosecutor’s Office may proceed with the filing of the class action in case it concludes that there is enough evidence, or may dismiss the inquiry if it considers that there are not enough elements to build a case. The defendant of the lawsuit will necessarily be the individual or entity responsible for causing—directly or indirectly—the environmental harm. In this sense, the direct and indirect responsible agents will have joint liability, as will be explained further. Art. 16 of Law n. 7.347/85 establishes that res judicata in class actions will have erga omnes efficacy in the limits of the jurisdiction of the court that rendered the final decision, except if the action is dismissed due to the lack of proof. Therefore,  Superior Court of Justice, Special Appeal n. 1.120.117/AC, Reporting Justice Eliana Calmon, Second Chamber, judgment of 11 October 2009, published on 19 November 2009. 4

314

J. R. de Castro Neves and P. Klien Vega

individuals who were not parties to the class action have standing to initiate proceedings to enforce the judgment and compliance of the decision rendered in the class action. It is important to point out that in case the class action is filed aiming to protect homogeneous individual rights—that is, when the damage is directly caused to a group of individuals as a result of environmental harm—the procedure requires the issuance of a public notice of the filing of the class action, so that third parties which also have suffered such damages may request to be joined. In this case, when the final decision is rendered there will be a liquidation phase in order to discriminate the extension of the damage suffered by each individual. Such procedure does not apply when the class action concerns the protection of diffuse rights, once they are, as mentioned, indivisible. Another essential difference between class actions in the protection of diffuse and homogeneous individual rights is the destination of the compensation granted in the final award. In the first case, compensation is addressed to a public fund in defense of diffuse rights, as per articles 13 and 20 of Law n. 7.347/85, while in the latter the indemnification is directed to the individuals who have suffered the damage.

3.3 Individual Action When the damage resulting from environmental harm is suffered by an individual, the individual may file an ordinary lawsuit against the polluter. In this case, the person or persons who have suffered the harm will act in their own name, in defense of their own personal interests, and may request the cessation of the harm or compensation for the damages suffered, being the defendant’s right to demonstrate that its activity did not cause such damage. The responsibility of the agent who has caused the damage does not depend on its culpability (that is, one need not prove negligence, for example), but only on the proof of the existence of damage, its quantification and the link between the agent’s actions and the alleged damage. As it is an immanently private action, without the participation of public agents, it is not possible to impose an administrative fine upon the polluter. Moreover, the efficacy of the res judicata will only reach the parties to the proceeding, instead of possessing erga omnes effect.

4 Applicable Substantive Law Having touched upon the procedural instruments available to individuals (or groups of individuals) when deciding whether and how to bring the problem of climate change before national courts, it is also important to further elaborate on some substantive law issues related to environmental liability and the bringing of action

Climate Change and the Individual: The Brazilian Perspective

315

against public and private actors, as well as the limits of jurisdictional control of acts of government.

4.1 Environmental Liability of Public and Private Agents Differently than general tort law, environmental tort law possesses a specific regime, based, primarily, on (i) liability without fault, or strict liability, which derives from the risk associated with the potentially polluting activity; (ii) a broad concept of polluting agent, which can be directly or indirectly responsible for the damage; and (iii) the Principle of Full Reparation, which encompasses not only the immediate damage, but also all of the damages associated with or caused indirectly by the harmful conduct, as well as other guiding principles. Art. 14, §1, of Law n. 6.398, provides a starting point to understand environmental tort law in Brazil. According to this rule, polluting agents are liable for the damages they cause “to the environment and to third parties affected by their activities”. Law n. 6.938 expressly recognizes the dual aspect, both individual and collective, of environmental protection. Thus, when it comes to environmental liability, individuals (“third parties”) have legal standing to bring individual actions against polluting agents, to recover the damages caused to the individuals’ rights (i.e., the individuals’ health, assets or economic activities). On the other hand, damages to the collective environment can be recovered by means of a class action, which ensure protection of collective rights. Any public5 or private actor can face environmental liability charges. That is because the concept of “polluting agent” mentioned by art. 14, §1, is described by art. 3, IV, of Law n. 6.938 as “the physical or legal person, of public or private law, responsible, directly or indirectly, for any activity that causes environmental degradation”. In events where there are more than one polluting agent, all of them will be joint and severally liable for the damages caused, as per the general rule contained in art. 942 of the Brazilian Civil Code.6 Moreover, environmental liability imposes a duty to integrally repair the damages caused, in what is coined the Principle of Full Reparation. Pursuant to this principle, the agent must repair and is liable for all of the damage caused to the quality of the environment as a consequence of the original, harmful act, such as damages caused to related ecosystems and biomes.7 According to art. 14, §1, the polluter can be called upon to either restore the environment to the status quo ante (reparation in natura) or, when that is no longer

 On the liability of the Public Administration, see Mukai (2000), p. 65.  Superior Court of Justice, Special Appeal n. 771.619/RR, Reporting Justice Denise Arruda, First Chamber, judgment of 16 December 2008, published on 11 February 2009. 7  For more on the guiding principles of environmental liability, see Superior Court of Justice, Special Appeal n. 1.145.083/MG, Reporting Justice Herman Benjamin, Second Chamber, judgment of 27 September 2011, published on 4 September 2012. 5

6

316

J. R. de Castro Neves and P. Klien Vega

possible, to compensate the victim(s) of the damage (reparation in pecuniae). The first is always preferred, even if it happens to be more burdensome to the polluter. This is consistent with the general concept that environmental law is more concerned with the preservation of the environment than with punishing the polluter. Art. 14, §1, also provides for strict liability of the polluting agent. This means that the polluter can be held liable for environmental damages regardless of any culpability or misconduct, whether intentional or resulting from negligence. Furthermore, they can be held liable even in cases where the activity is completely licit, or when the government has expressly authorized such activity, being enough to simply prove that the activity has caused environmental degradation. The idea is that the agent must internalize the costs of its polluting activities, in what is known as the Principle of the Polluter-Payer, foreseen in art. 4, VII, of Law n. 6.938. The Brazilian Superior Court of Justice dealt with this issue in Special Appeal n. 1.094.873/SP.8 In this instance, the Public Prosecutor’s Office brought an action against individuals that were burning sugar cane as a method for harvesting crop. Even though the burning of sugar cane can be legal in some cases, Reporting Justice Martins noted that this technique contributes to global warming by releasing CO2 emissions, as well as causes respiratory damages to people, especially farm workers, due to a carcinogenic component found in the smoke. The Court then upheld the ruling of the Court of São Paulo that compelled the defendants to refrain from burning sugar cane and ordered them to pay 4.936 liters of alcohol for each burnt bushel as compensation. A similar understanding can be found in Special Appeal n. 1.000.731/RO, also trialed by the Superior Court of Justice. In this case, the Court upheld a fine imposed by the Brazilian Institute of Environment and Natural Resources (“IBAMA”) upon individuals charged with the unauthorized burning of 600 hectares of pasture for agroindustrial purposes. Reporting Justice Benjamin stated that “fires are incompatible with the purposes of environmental protection established in the Federal Constitution and in the environmental laws. In times of climate changes, any exceptions to this general prohibition, in addition to being expressly provided for in federal law, must be interpreted restrictively”.9 In any event, the greatest difficulty in determining environmental liability lies in proving the nexus of causality between one specific activity and environmental degradation. Given the interrelations that happen between the various chemical, physical and biological agents in nature, it is often hard—and sometimes impossible—to ascertain that a certain adverse natural condition is a consequence of any one particular conduct, so that one or more persons can be charged with that responsibility.

 Superior Court of Justice, Internal Appeal on the Motion for Clarification on Special Appeal n. 1.094.873/SP, Reporting Justice Humberto Martins, Second Chamber, judgment of 04 August 2009, published on 17 August 2009. 9  Superior Court of Justice, Special Appeal n. 1.000.731/RO, Reporting Justice Herman Benjamin, Second Chamber, judgment of 25 August 2009, published on 08 September 2009. 8

Climate Change and the Individual: The Brazilian Perspective

317

In an attempt to overcome this hurdle, the Superior Court of Justice has ruled that, in analyzing the nexus of causality and finding environmental liability, there is no difference between “those who do, those who don’t do when they should do, those who allow others to do, those who don’t mind that others do, those who finance so that others do and those who are benefitted by others doing“.10 This understanding by the highest national court11 is another important step towards environmental protection, since it mitigates one of the biggest problems when taking judicial actions against pollution and climate change—that is, proving the nexus of causality. As mentioned, the concept of “polluting agent” also encompasses those who are indirectly responsible for environmental degradation. This is reinforced by the abovementioned Superior Court of Justice’s comprehensive understanding of the nexus of causality. However, the extension of this indirect responsibility is still disputed among Brazilian scholars and case law. Under the current Brazilian legal and political context, can financial institutions and private investors that provide funds to environmentally degrading activities be held liable, for example? According to the system of environmental liability previously outlined, theoretically, financial institutions that lend money to polluting agents could fit into the concept of indirect polluter, as provided by art. 3, IV, of Law n. 6.938. After all, they are indirectly responsible for the alteration in the conditions of the environment, since the activity would probably not have gone forward had they not supplied the necessary funds. In 2014, Justice Marga Tessler diverged from the Superior Court of Justice’s understanding mentioned above, which allows those who finance environmentally damaging activities to be held liable for damages to the environment caused by the funded activity. Appeal n. 1.433.170/SP dealt with the possible liability of the Inter-­American Development Bank (“IADB”) for the environmental damages caused in a project—financed by the IADB—due to a mistake in the Environmental Impact Studies, under the concept of indirect polluter. Justice Tessler ruled that “there is no nexus of causality between financing the works, which was done by the IADB, and the absence or mistake in the environmental impact studies”.12 Therefore, the Judge denied the preliminary injunction that sought to maintain the IADB as a defendant in the main action, since it could not be recognized as a polluter. Here, there is a clash between the values of environmental protection and social and economic development. Take bank loans, for example: considering that most economic activities cause some impact on the environment, if banks are held  Superior Court of Justice, Special Appeal n° 650.728/SC, Reporting Justice Herman Benjamin, Second Chamber, judgment of 23 October 2007, published in 02 December 2009. 11  The Superior Court of Justice is responsible for trialing appeals pertaining to violations to infraconstitutional norms, while the Supreme Court, also located in Brasilia, trials only constitutional matters. 12  Superior Court of Justice, Interlocutory Appeal n. 1.433.170/SP, Reporting Justice Marga Tessler, sole decision, published in 11 December 2014. 10

318

J. R. de Castro Neves and P. Klien Vega

responsible for damages caused by all the activities financed by these loans, the impact on the national economy could be devastating. Holding investors and financial institutions liable for indirect environmental damage creates a high level of risk that may ward off investments in Brazil and Brazilian companies, generating unwanted consequences to the national economy.13 Such is the importance of conciliating both ideas that it is one of the guidelines of the National Policy on Climate Change (art. 4, I of Law n. 12.187.

4.2 Judicial Control Over Governmental Actions The Brazilian government, in all of its federal spheres, is based on the separation between the Legislative, Executive and Judicial powers. The Federal Constitution states, in art. 2, that these powers are “independent and harmonious among themselves”, ensuring the classic system of checks and balances, in which no branch is superior to the other, but, instead, overseas each other’s activities. It is up to the Executive branch of the government to decide which actions to take or not to take regarding public policies (including those related to environmental protection and climate change prevention). However, actions by the Public Administration are bound by the principles of legality, impersonality, morality, publicity and efficiency. The principle of legality is the most important guideline for the activity of the Public Administration. In simple terms, it has two implications: first, that the Executive power is not above the Law and must obey it; and second, that all administrative actions must be expressly authorized by law. Any act that exceeds legal permission is, as such, illicit. Thus, the Public Administration works on an opposite premise than the individual: while individuals are allowed to do anything but what is forbidden by law, the Public Administration is forbidden to do anything but what is determined by law. This does not mean, however, that the Public Administration is only in charge of carrying out what is previously set forth by the Legislative branch. While, indeed, in some cases, the administrative act is simply the execution of what the law provides for (acts provided by law), there are administrative acts that may be carried out with a certain degree of discretion (“discretionary acts”), always within the limits set forth by law. In these cases, it is up to the Public Administration to analyze the merits of such measures, based on the criteria of convenience and opportunity, in order to best serve the public interest. Within the “checks and balances” system, the Judiciary may exercise some control over government acts, whether provided by law or discretionary. Classically,

 For further comments on this topic see: Leonhardt Danelon and D’Almeida (2015), pp. 259–279; de Bessa Antunes (2015), pp. 19–50. 13

Climate Change and the Individual: The Brazilian Perspective

319

jurisdictional control was not allowed to go any further than the narrow scope of legality, that is, whether the act violates any legal provisions or exceeds legal permission. Nowadays, however, the prevailing understanding has suffered some changes. As the Superior Court of Justice ruled in the Special Appeal n. 429.570/GO, “the analysis by the Judiciary is no longer limited to extrinsic aspects of the administration, but it can analyze the reasons of convenience and opportunity, since these reasons must observe morality and reasonability criteria”.14 The Supreme Federal Court later ruled, on another case, that the Judiciary may analyze whether the means chosen by the Public Administration are appropriate to achieve the intended finality of the act.15 Nonetheless, the analysis of the reasons of convenience and opportunity can never lead to the full review of the merits of such act. These rules and principles also apply to administrative acts related to the environment; they can be both bound by law and discretionary. For example, the Administration is bound by law to require a previous study and report of environmental impacts before licensing (i.e., authorizing) any activity that may cause environmental degradation (art. 225, §1, IV, of the Federal Constitution). On the other hand, the Public Administration may exercise some degree of discretion in deciding which is the best course of action in order to achieve environmental milestones, such as the commitment to reduce greenhouse gas emissions set forth in art. 12 of Law n. 12.187. In this scenario, the Judiciary may declare the nullity of acts that do not comply with the principle of legality. If the public authority authorizes any act without the observance of the requirements established by law, the act is therefore null and void and it is up to the Judiciary to exercise this control. Thus, for example, if the governmental authority licenses some activity without the proper assessment of its environmental impacts, any individual may bring a popular action against the governmental authority to declare such act null and void. This was the case in Appeal of Popular Action n. 0006992-29.2002.4.03.6000, ruled by the 4th Chamber of the 3rd Regional Federal Court. The proceeding dealt with the environmental licensing of the construction of an avenue by the Municipality of Campo Grande, in the State of Mato Grosso do Sul, without previous studies on the environmental impacts of the project. The Court ruled that “the municipality did not prove that it was the case for the dismissal of the Study of Environmental Impacts/Report on Environmental Impacts, neither that the construction of the avenue (…) would cause small environmental impact”.16 It then sustained the 1st instance ruling that the licenses emitted by the municipality were invalid.

 Superior Court of Justice, Special Appeal n. 429.570/GO, Reporting Justice Eliana Calmon, Second Chamber, judgment of 11 November 2003, published on 22 March 2004. 15  Supreme Federal Court, Extraordinary Appeal n. 365.368, Reporting Justice Carlos Velloso, judgment of 29 November 2005, published on 13 December 2005. 16 rd  3 Regional Federal Court, Appeal n. 0006992-29.2002.4.03.6000, Reporting Judge Andre Nabarrete, Fourth Chamber, judgment of 06 September 2009, published on 23 September 2013. 14

320

J. R. de Castro Neves and P. Klien Vega

On the other hand, if the discussion revolves around the merits of a discretionary act—for example, if a measure taken by the government is the sufficient or the most appropriate to reduce environmental degradation or to promote better environmental protection—it is not up to the Judiciary to review the act. Once again, an exhaustive judgment of convenience and opportunity is up to the Administration alone.

5 Opportunities and Challenges in Effecting Climate Change Litigation in Brazil The Federal Constitution, in art. 225, and Laws n. 6.938 and n. 12.187 clamor for public participation in helping to diminish the impacts of human activity on Planet Earth—whether by repressing potentially polluting activities or repairing the damage that inevitably arises from modern life. This is not a job for the government alone. It is not only a collective problem; climate change is an issue that already affects individual aspects of our everyday lives and the failure to act against it can lead to even grimmer, unfathomable consequences. Indeed, Brazil has both the procedural and substantive law instruments to permit individuals to take direct action against climate change, as well as every other form of environmental degradation: from the popular action, to declare the invalidity of government acts that are harmful to the environment, to the class action, to hold those who cause environmental damage liable for the consequences of their activities, whether legal or not. There is even the possibility to bring individual actions to repair the damages suffered by those who have their lives worsened by environmental degradation. The real challenge, therefore, is to promote environmental awareness in order to remind Brazilians that they too can and must act—that they play an instrumental part in repressing, repairing and preserving the right of all to an ecologically balanced environment.

References de Bessa Antunes P (2015) Responsabilidade Civil Ambiental de Instituições Financeira. In: Revista da Procuradora-Geral do Banco Central, pp 19–50 Leonhardt Danelon R, D’Almeida MG (2015) Responsabilidade Ambiental das Instituições Financeiras: Perspectivas à Luz de Normas nos Cenários Nacional e Internacional. In: Revista de Direito Bancário e do Mercado de Capitais, pp 259–279 Mukai T (2000) A administração pública em face da responsabilidade ambiental. In: Revista Trimestral de Direito Público, no. 30, pp 59–76 Sanches S (1988) O Poder Judiciário e a Tutela do Meio Ambiente. In: Revista de Processo, pp 88–96 Supreme Federal Court, Writ of Mandamus n. 22.164/SP, Reporting Justice Celso de Mello, judgment of 30 October 1995

Climate Change and the Individual: The Brazilian Perspective

321

Superior Court of Justice, Special Appeal n. 429.570/GO, Reporting Justice Eliana Calmon, Second Chamber, judgment of 11 November 2003, published on 22 March 2004 Supreme Federal Court, Extraordinary Appeal n. 365.368, Reporting Justice Carlos Velloso, judgment of 29 November 2005, published on 13 December 2005 Superior Court of Justice, Special Appeal n. 771.619/RR, Reporting Justice Denise Arruda, First Chamber, judgment of 16 December 2008, published on 11 February 2009 Superior Court of Justice, Internal Appeal on the Motion for Clarification on Special Appeal n. 1.094.873/SP, Reporting Justice Humberto Martins, Second Chamber, judgment of 04 August 2009, published on 17 August 2009 Superior Court of Justice, Special Appeal n. 1.000.731/RO, Reporting Justice Herman Benjamin, Second Chamber, judgment of 25 August 2009, published on 08 September 2009 Superior Court of Justice, Special Appeal n. 1.120.117/AC, Reporting Justice Eliana Calmon, Second Chamber, judgment of 11 October 2009, published on 19 November 2009 Superior Court of Justice, Special Appeal n° 650.728/SC, Reporting Justice Herman Benjamin, Second Chamber, judgment of 23 October 2007, published in 02 December 2009 Superior Court of Justice, Special Appeal n. 1.145.083/MG, Reporting Justice Herman Benjamin, Second Chamber, judgment of 27 September 2011, published on 4 September 2012 Superior Court of Justice, Interlocutory Appeal n. 1.433.170/SP, Reporting Justice Marga Tessler, sole decision, published in 11 December 2014 Wedy G (2016) Climate Change and Sustainable Development in Brazilian Law’ November 2017: https://web.law.columbia.edu/sites/default/files/microsites/climate-change/files/Publications/ Collaborations-Visiting-Scholars/wedy_-_cc_sustainable_development_in_brazilian_law.pdf 3rd Regional Federal Court, Appeal n. 0006992-29.2002.4.03.6000, Reporting Judge Andre Nabarrete, Fourth Chamber, judgment of 06 September 2009, published on 23 September 2013 José Roberto de Castro Neves  is a Professor of Civil Law at Pontifícia Universidade Católica do Rio de Janeiro (PUC-Rio) and co-founder of FCDG Advogados, a leading civil litigation firm based in Rio de Janeiro, São Paulo and Brasilia. His books include Measure for Measure—The Law in Shakespeare (Edições de Janeiro, Rio, 2016), A Invenção do Direito (Edições de Janeiro, Rio, 2015), Contratos (Ed. GZ, Rio, 2016) and Direito das Obrigações (Ed. GZ, Rio, 2013). He has a PhD in Civil Law from the Universidade do Estado do Rio de Janeiro (UERJ) and a Master’s Degree in Law from Cambridge University. Patricia Klien Vega  is an associate at FCDG Advogados and has bachelor´s degrees in Law from Pontifícia Universidade Católica do Rio de Janeiro (PUC-Rio) and in Journalism and International Relations from Boston University.

Climate Change Litigation in Israel: Trends, Prospects and Challenges Tzipi Iser Itsiq and Tzvi Levinson

Abstract  This Chapter will draw the outline of climate change litigation in Israel. We will focus on prominent legal proceedings involving issues of climate change and briefly run through various issues on this subject. We will start with a brief introduction and thereafter discuss the relevant laws in Israel that deal with climate change aspects, litigation issues including claims against the Government, claims against the decisions of public bodies, claims against private actors/players and thereafter the effect of climate change litigation in Israel, ending with a brief conclusion.

1 Introduction Climate change has negative implications on all areas of life and potential harm to the Israeli public cross sectors—environment, health, economy, agriculture, food, security, national infrastructure and more—from rising sea levels, reducing sandy areas, less rain, increase in the frequency of floods, transporting pollutants, heat waves, desertification, etc.1 Environmental legislation in Israel provides only a partial solution to climate change challenges. At the same time, as will be detailed below, there are several legal proceedings in Israel, some of which are pending, that may contribute in dealing with these challenges. Nevertheless, Israeli courts have in a few cases addressed the issue of climate change in their rulings as part of a general theme that  Israeli Climate Change Information Center.

1

T. Iser Itsiq (*) Lipa Meir & Co., Advocates, Tel-Aviv, Israel e-mail: [email protected] T. Levinson Levinson-Dror Environmental & Safety Law Firm, Haifa, Israel e-mail: [email protected] © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_16

323

324

T. Iser Itsiq and T. Levinson

emphasizes the importance of environmental issues.2 However, the existing court rulings relate to specific environmental issues brought before the judicial decision, such as sea or water pollution, from sewage or hazardous substances, etc., rather than rulings that deal directly with climate change. It is reasonable to assume that, in the coming years, these issues will receive greater attention from the courts in Israel and it is likely that specific rulings on climate change issues will be given in existing and future legal proceedings.

2 Climate Change Law in Israel 2.1 Air Pollution In 2008, the Knesset (the Israeli Parliament) approved as a Private Bill—The Clean Air Law3—drafted and promoted by The Israel Union for Environmental Defense (“IUED”—Adam Teva V’Din—The leading advocacy NGO in the Israeli environmental movement4). The law brings Israel’s historically fragmented air quality protection within a single, coherent administered framework. The Clean Air Law is the most important and influential environmental legislation in Israel for monitoring the reduction of greenhouse gas emissions.5 The Israeli Clean Air Law was enacted with the aim: To bring about an improvement of air quality and to prevent and to reduce air pollution, inter alia by establishing prohibitions and obligations in accordance with the precautionary principle. All in order to protect human life, the health and quality of life of human beings and to protect the environment, including natural resources, ecosystems and biological diversity, for the sake of the public and for future generations, and taking into account their needs.6

Section 3 of the Clean Air Act provides that: ( A) No person shall cause considerable or unreasonable air pollution. (B) Without derogating from the generality of the provisions of subsection (A), air pollution shall be deemed to be considerable or unreasonable, inter alia, in each of the following instances: ( 1) Deviation from environmental values determined under section 6 (a) (2). (2) Emissions of pollutants into the air in violation of the provisions of this law.

The term “pollutant” is defined in section 2 of the Clean Air Law, as any of the following: ( 1) A substance/material listed in the first schedule; (2) A substance/material, including chemical or biological substances/materials, as well as a substance of origin/source material for such substance/material, who’s presence in the air causes or may cause –  Dov Yaacobovitch V. Mei Herzliya Ltd., CA 29117-03-13 (Tel Aviv).  Clean Air Law 5768-2008. 4  Tal et al. (2011). 5  Author’s interpretation. 6  Clean Air Law (n4) s.1. 2 3

Climate Change Litigation in Israel: Trends, Prospects and Challenges

325

(a) Risk or injury to human life, health or quality of life, to property or to the environment, including soil, water, fauna and flora; (b) Change in climate, weather or visibility;

In light of the definition of “air pollutant” in section 2 of the Clean Air Law as a substance/material that causes, inter alia, climate change, then by definition of the law carbon dioxide or methane emitted by combustion is “air pollution”. In addition, section 73 of the Clean Air Law creates a legal presumption regarding the liability for air pollution caused by an act or omission, as follows: If an act or omission in contravention of the provisions of this Law was committed from real estate/land, then the occupant of the real estate or the person who controls or supervises the real estate/land shall be deemed as if he committed the act or omission, unless he proves that he did everything possible to prevent its commission.

Section 80 (a) of the Clean Air Law provides that— Provisions under this Law shall also apply to the State.

Section 70 of the Clean Air Law states that an act or omission in violation of the provisions of the Law is a civil wrong: An act or omission in violation of the provisions of this Law constitutes a civil wrong, and the provisions of the Civil Wrongs Ordinance [New Version] (hereinafter - the Civil Wrongs Ordinance) shall apply to it, subject to the provisions of this Law.

Therefore, the Clean Air Law in Israel enables claims to be filed for damages against actors/players that emit greenhouse gases, as well as criminal proceedings and administrative petitions relating to climate change issues.

2.2 Environmental Transparency The Environmental Protection Law (Emissions/Releases and Transfers to the Environment—Reporting and Registering Obligations) 2012,7 imposes obligations on industries, factories and plants to report their emissions/releases and transfers of polluting substances and waste to the environment. The law creates a public register which is accessible to the public at all times, including information on emissions/ releases and transfers of polluting substances and waste from plants to the environment. The law adopts a definition of “polluting substance” similar to the definition of this phrase in the Clean Air Law, and includes substances/materials whose presence in the environment “causes or may cause climate change”. (Emphasis added) Specifically, it indicates CO2 as one of the polluting substances; the emissions thereof are obliged to be reported under the law. This Law, therefore, enables the management of a national register for greenhouse gas emissions from large industrial sources (subject to the law) and enables the government to adopt a national policy focused on coping with these emissions  Pollutant Release and Transfer Register (2017).

7

326

T. Iser Itsiq and T. Levinson

and reducing their scope in order to meet Israel’s national goals under the Paris Agreement.

2.3 Coastal Environment and Rivers The Law for the Protection of the Coastal Environment, 2004 is the main law dealing with the protection of the coastline and coastal cliffs in Israel, bordering the Red Sea, the Mediterranean Sea and the Sea of Galilee.8 The objectives of the Law are set out in section 1, as follows: (1) To protect the coastal environment, its natural and heritage assets, to restore and conserve them as a resource of unique value, and to prevent and minimize, as far as possible any damage to them; (2) To preserve the coastal environment and the coastal sand for the public’s benefit and enjoyment and for future generations; (3) To establish principles and limitations for the sustainable management, development and use of the coastal environment.

Section 2 of the Law includes a definition of what is regarded as “damage to the coastal environment”, as follows: any human activity in the coastal environment, including each of those detailed in paragraphs (1) through (6) below, that cause a significant change to natural development processes or preservation of the coastal environment: ( 1) Damage to ecosystems in the coastal environment; (2) Damage to abrasion platforms and beach rock, natural caves and cliffs, sand dunes and estuaries (stream mouths) within the coastal environment; (3) Damage or change to the interface between the sea and land; (4) Damage to the natural flow and movement of coastal sand and seawater; (5) Endangering or causing damage to habitats of flora or fauna species and their reproduction in the coastal environment; (6) Damage to heritage and antiquities sites as defined in the Antiquities Law, located in the coastal environment;

The Law can therefore assist and protect the coastal environment as long as there is direct action by an entity (human or corporation), which causes a significant change in the coastal environment. The Law indeed mentions the preservation of the coastal environment for future generations, but, as stated, the protection of future generations in the Law is against an active action of an entity that directly harms the coastal environment and not against the discretion of an authority, that ignores considerations of climate change. Another relevant Law is the Order of Streams and Springs Authorities (Imposition of the Functions of a Stream Authority on Drainage Authorities), 2003.9 Said Law imposes on the Drainage Authority for each river or any source of water within its territory, inter alia, the role of preserving the landscape and natural resources along  Protection of the Coastal Environment Law 5764-2004.  Streams and Springs Authorities Law 5725-1965.

8 9

Climate Change Litigation in Israel: Trends, Prospects and Challenges

327

the river on both banks or around the spring. The Drainage Authority is required to prepare plans for these areas for the purpose of gardens, recreation and sports. The Order of Streams and Springs Authorities states that such a plan will be implemented by the Drainage Authority in a sustainable manner, taking into consideration the functioning of the ecosystems within the area of the plan, the quality of water sources, and the protection of biodiversity. For the purposes of this Law, “in a sustainable manner”—indicates that “the exploitation of natural resources in a manner that enables natural processes to renew what has been used10”. Indeed, the two pieces of legislation as abovementioned do not include any direct reference to climate change. However, the interpretation of the obligation to address the needs of the future generations in a sustainable way, and in a manner that enables natural processes to renew exploited natural resources, might be helpful. Mainly in arguing against a decision of the relevant authority, if it ignores future consequences of climate change or assessments of it, with regard to the protection against floods or erosion of the seashore.11

2.4 Environmental Impact Assessments The Planning and Building Regulations (Environmental Impact Assessment) 2003,12 require environmental impact assessment on certain proposed plans. The regulations require conducting an environmental impact assessment of any proposed infrastructure plan. Although these regulations do not specifically indicate considerations of climate change as relevant considerations, but they refer inter alia to the definition of air pollution in the Clean Air Law. As mentioned above the Clean Air Law defines air pollution also as change in climate. Currently, Israeli legislation does not contain any other direct instruction requiring a local authority, a local planning committee, or another administrative authority to specifically take into account considerations of climate change in the process of decision-making planning. There is additional legislation that, by way of interpretation, allows, as do the examples above, the inclusion of provisions dealing with climate change, but there is no room for elaborating on this for the purposes of this chapter. According to Israeli law, any international customary law is incorporated automatically into Israeli national law13. Unfortunately, there is no such internationally recognized customary law relevant to our chapter.

 ibid , s. 3(b).  See an historical overview of the pathology of a polluted river in Israel as described in Tal (2002), pp. 1–18. 12  Planning and Building Regulations 5763-2003. 13  Custodian of Absentee Assets v. Samara et al. Civil Appeal No. 147/55. 10 11

328

T. Iser Itsiq and T. Levinson

3 Climate Change Litigation in Israel 3.1 Claims Against the Government The Supreme Court in Israel sits as the High Court of Justice (HCJ). As the HCJ, it deals with matters involving issues of justice, which do not fall under the jurisdiction of any other court. The HCJ may issue orders to state authorities, their officials and other bodies that fulfil public functions by law, to perform or refrain from performing an act, while performing their tasks in accordance with the law. Appeals to the HCJ, are made by way of petition. In the first stage of the deliberation, the HCJ judge decides whether there is any prima facie basis for the petition. If his/her decision is positive, the HCJ issues an order nisi, that is a conditional order which is to be confirmed unless something be done, which has been required, by a time specified. After the substantial deliberation on the petition, the HCJ decides whether the order nisi, should be made absolute, or whether the petition should be rejected. Turning the order nisi into an absolute order means that the authority against which the order was issued must comply. A petition to HCJ serves as an effective tool for promoting climate change issues as described below. A good example is The Clean Air Law which imposes an obligation on the Government to prepare a National Pollution Reduction & Prevention Program. According to the Law, the government is authorized to set national greenhouse gas (GHG) emission reduction targets and to submit it to the Parliament (Knesset) for approval. The government failed to meet this obligation. IUED (environmental NGO) filed a petition to HCJ on this issue.14 In 2011, the HCJ accepted IUED’s argument that the government was violating the law by failing to approve the National Pollution Reduction & Prevention Program and ordered the government to complete the process without further delay. Said Supreme Court decision accelerated the governmental process, and during 2012, the Government of Israel has prepared the National Program and submitted it to the Parliament. Unfortunately, IUED still criticizes it, saying that the version approved (after 18 months delay due to budgetary wrangling) is drastically watered-down and underfunded.

3.2 Claims Against the Decisions of Public Bodies In Israel, any individual can bring a case against a public actor/player responsible to authorise a major infrastructure operation that allegedly does not comply with national obligations which leads to a rise in greenhouse gas emissions. That is primarily based on the breach of procedural obligations relating to the development of these major infrastructures e.g. public participation, environmental impact 14

 The Israel Union for Environmental Defense v. The Government of Israel, HCJ No. 1092/12.

Climate Change Litigation in Israel: Trends, Prospects and Challenges

329

assessment, etc.… that may include discussion related to the implications of the infrastructure facility on climate change. Another legal tool, which can serve individuals bringing a case against public actors/players, is the precautionary principle. That principle was explicitly expressed as one of the objectives of few major environmental laws: The Clean Air Law,15 the Non-Ionizing Radiation Law,16 the Environmental Protection Law (Emissions/ Releases and Transfers to the Environment—Reporting and Registering Obligations), etc. The practical application of this principle was lately addressed by the court, in a prominent legal battle over an ammonia storage facility in an industrial area located close to a populated urban area. Although this case does not deal with climate change, it is an important precedent for the application of the precautionary principle, especially because this legal battle ended with the success of the residents and the court’s decision to stop the operation of the ammonia tank due to the environmental risk involved in its operation.17 Based on this legal background, the Israeli legal system includes the right of the public and NGOs (non-governmental organizations) to bring to court cases dealing with the non-action of public entities regarding the mitigation and adaptation of climate change. As of yet, except the above-mentioned Petition, which deals indirectly with climate change (through the demands of the Clean Air Law), there is no existing case of that kind (dealing directly with climate change). However, the challenge that individuals face is to indicate a violation of a procedural obligation or a national legal requirement of the relevant public actor/player. It will not be sufficient to rely on the international declaration of the State. Human rights may serve, as another legal basis for claims against public bodies relating climate change responsibility. Although Israel does not have a single complete constitutional document, it has developed an operative constitution, embodied in a set of written texts that reflect the political system on which the State is based, its social content, and an expanding constitutional tradition. Those texts are called Basic Laws and are recognized as constitutional by Israel’s Supreme Court. In 2002, the Supreme Court was required to discuss the constitutional value of the right to an adequate environment in the context of a law that was legislated and argued to be contrary to this constitutional right. The petition18 raised the claim that a basic human right to an adequate environment derives from the right to dignity, liberty and property. In other words, it was argued that the text of the Basic Law should be construed and determined whether the rights enumerated therein include the right to an adequate environment. The Supreme Court Chief Justice ruled that the right to a proper environment cannot be derived from the right to human dignity and liberty but he recognized the constitutional right to a “minimal environment”. The term was not given any details

 Clean Air Law (n4) s.1.  Non-Ionizing Radiation Law, s.1. 17  Haifa Chemicals Ltd. V. Municipality of Haifa Criminal, Appeal no. 2841/17.. 18  The Israel Union for Environmental Defence V. The Government of Israel, HCJ no. 4128/02. 15 16

330

T. Iser Itsiq and T. Levinson

or methodological definition and was left for a wide interpretation. Following that decision, the courts applied rules of statutory interpretation both to Israeli legislation enacted by the legislature and administrative agency regulations. The Supreme Court ruled that the protection of the environment, expressed in international conventions to which the State of Israel has joined, requires the implementation of a general rule of interpretation that creates the presumption that the laws of the State are consistent with the norms of international environmental law. Another useful legal tool is the class action tool against public actors/players. One example of such litigation is an innovative request for the approval of a class action against the Israel Defense Forces (IDF)—The State of Israel, which deals with emissions of greenhouse gases from large forest fires in nature reserves, due to military training activities.19 As part of its regular activity, IDF has camps and training areas in various locations throughout the country. During the army’s training, there is a built-in risk of creating forest fires. Over the years, a number of major fires have occurred that have destroyed some large nature reserves in Israel, which are the result of IDF training and routine activities. The main claim in said class action is that these fires, caused by IDF’s negligence in preventing fire and refraining from proper steps to extinguish it during its training and routine activities, resulted in emissions of greenhouse gases and damage to the entire population. The lawsuit also claims that the fires caused the emission of carbon dioxide, in a way that leads to global warming and climate change. In addition, forests fires and open spaces reduce the amount of vegetation and the ability to absorb carbon dioxide emitted into the atmosphere from industry and vehicles, and this causes global warming and increased concentrations of carbon dioxide in the atmosphere. These forest fires in Israel, although their global contribution is relatively small, are still accumulating, creating a larger phenomenon and causing damage to the Israeli public. One of the challenges facing this claim is to convince the court to issue a precedential ruling that, as a matter of judicial policy, the State of Israel should have expected damage due to climate change because of the fires. The argument is that the courts must determine normative foreseeable obligations that will address climate change issues. Judicial policy should make it clear that damage caused by climate change is subject to the foreseeability of every factor, and certainly for the State of Israel. Such a ruling would be in line with international and national demands to reduce greenhouse gas emissions as part of the global effort that Israel is part of it to cope with climate change.20 This policy will be consistent with the principles of deterrence that underlie the law of civil wrongs and the implementation of the polluter pays principle, as applied directly in section 63 of the Clean Air Law.

19 20

 Kedoshim v. IDF, Class Action No. 24714-02-16.  Reducing Greenhouse Gases (2015)

Climate Change Litigation in Israel: Trends, Prospects and Challenges

331

The claim is supported by an ecologist expert opinion,21 who surveyed the areas where the fires occurred and calculated the amount of carbon dioxide emitted by the fires. According to said expert opinion, the total carbon dioxide emitted by the fires is estimated at 73,786 tons. In his opinion, the ecologist also referred to the amounts of carbon dioxide, whose absorption in the process of photosynthesis was prevented by the burning of vegetation. Because of the fires, the amount of biomass that absorbs carbon dioxide from the atmosphere was reduced. The damage caused by the fires until vegetation returns to its pre-fire condition can be measured over a period of decades. Nevertheless, the ecologist wrote an opinion based on conservative assumptions of loss of absorption for only 5 years after the fires. According to his opinion, the amount of carbon dioxide that will not be absorbed by vegetation due to fire damage in the next five years (depending on the method of calculation) is between 55,000 and 90,718 tons. Following the ecologist’s opinion, another expert opinion was written by an environmental economist,22 assessing the damage caused by the greenhouse gas emissions in Israel. The economist’s opinion is based on the publication of the Ministry of Environmental Protection, which computes the external cost to the public, due to the emission of each ton of greenhouse gases.23 Based on data from the State of Israel, the Ministry of Environmental Protection— every ton of carbon dioxide emitted in Israel has an external cost that causes the Israeli public damage of NIS 119. This damage is scattered and applies to each of the public units. According to the calculation of the quantities of carbon dioxide, produced by the ecologist and the cost of damage per ton according to the opinion of the environmental economist, the total damage caused to the Israeli public by the external costs of the forest fires due to carbon dioxide emissions and its inability to absorb the factors causing climate change is—NIS 17,561,130 (US dollars 5,017,465). The request in the class action is to represent all the residents of the State of Israel. According to the Central Bureau of Statistics, there were 8,252,000 residents in the State of Israel shortly before the filing of the claim. According to the above data, it appears that the damage to each of the residents, including each of the applicants in the class action suit, is NIS 2.12 (US dollars 0.6). The request to approve the claim as a class action was filed to the District Court in 2016. The hearing is in preliminary stages. There are also a few more class actions against industry producers, claiming damages caused by malfunctions that led to fire incidents or unusual emissions (e.g. class action case 2015 against 11 major industries24 in Haifa bay, claiming NIS 14 billion, about USD 3.5 billion). These claims present the argument that pollutant  Carbon Dioxide and Particulate Emissions as a Result of Forest Fires, Dr. Didi Kaplan, 2016 (n 21). 22  External Costs of Air Pollutants As a Result of Forest Fires, Dr. Ruslana Rachel Palatnik, 2016 (n 21). 23  Assessment of Greenhouse Gas Emission Reduction Potential And Recommended National Target for Israel, Ministry of Environmental Protection, 2015. 24  Klein etc. V. Oil Refineries (Bazan) Ltd. etc., Class Action No. 14087-06-15. 21

332

T. Iser Itsiq and T. Levinson

emissions include greenhouse gas emissions that contribute to climate change. However, in these claims the purpose of this argument is not proving the direct damage. This argument serves to justify, among other arguments, civil wrong claims of infringement of the plaintiffs’ autonomy.

3.3 Claims Against Private Actors/Players At the beginning of December 2017, the Commissioner of the Capital Market, Insurance and Saving in Israel25 published an instruction for pension institutions stating: An institutional body, shall declare in the policy that it publishes, whether it determines the aspects of responsible investments and, if so, responsible investments are investments that take into account social welfare as well as considerations of economic profit, including corporate governance principles that support environmental protection, social justice and the protection of human rights; transparency in environmental, corporate and corporate governance.26

In other words, the Israel Capital Market, Insurance and Saving Authority expects that part of the pension funds will be channelled to social investments, which will not necessarily yield a return to investors. To date, said instruction does not require anything to be done other than to report whether institutional investors’ decisions have also taken into account the social and environmental impacts of the business. Although public reporting has strong power and influence, sometimes even more than a binding and individual directive, a claim cannot be brought against a pension fund that does not support environmental protection, social justice and the protection of human rights. In the long term, the directive will encourage market leadership, differentiation between the investment banking institutes, and will create a gradual and proper implementation process. In the end, it may also have a positive effect on raising trust in investment houses and insurance companies if investors act to show the public how they are concerned with its long-term interests. As of today, the management of the pension funds is done from a completely business approach of the investment manager. In terms of legal duty, what is expected from him is the maximum yield for fund members. Up to now, there is no Israeli example of a clear ruling against a public or a private actor/ player that allegedly does not comply with climate change obligations.

 Capital Market, Insurance and Saving Authority, Ministry of Finance.  Circular of the Commissioner of Capital Market, Insurance and Savings, A Statement of Expected investment Policy in Institutional Bodies, 2017. 25 26

Climate Change Litigation in Israel: Trends, Prospects and Challenges

333

4 Effective Climate Change Litigation in Israel The discovery of natural gas in Israel’s exclusive economic zone in the Mediterranean Sea also presents opportunities and challenges. On the one hand, the natural gas discovery may contribute to the mitigation of greenhouse gases in the Israeli energy market due to the reduction in the use of coal and oil. On the other hand, it challenges the use of renewable energy and meeting the (modest) goals set by the government of Israel.27 The above-mentioned class actions are expected to reach judicial decisions in the coming years. It will be interesting to see if Israeli courts will use innovative tools to advance the agenda of climate change. In light of the Supreme Court’s ruling, it can be assumed that the outcome of legal proceedings based on the right to a proper environment in Israel will depend on the severity of the violation of the right and the nature of the violation. Such legal proceedings are possible and, under certain circumstances, can even succeed. It is possible to examine the reasonability of the decision of the authority in the competent court for administrative matters in the context of national obligations. The State of Israel is committed to the United Nations Framework Convention on Climate Change (UNFCCC) by signing and ratifying it. The State of Israel participated in the 2015 United Nations Climate Change Conference, COP 21 or CMP 11 which was held in Paris in 2015 and signed its concluding decisions. For its implementation, the government convened and ratified the signing of the Government of Israel’s Resolution No. 2041 of 14 November 2016. However, this commitment does not make climate change a binding consideration by the public authorities. The intervention of the Court of Administrative Affairs in a decision of the public authority can be done, only if the decision of the public authority is extremely unreasonable. According to the current legal situation, when a public authority makes a decision on a matter with unclear and uncertain climate change implications, even if the decision is unreasonable, it will be hard to indicate an extreme unreasonableness that can enable the rejection of the decision by the court. It is theoretically possible to file a civil claim based on the general civil wrong law and the civil wrong of negligence and to claim future damage from floods caused by climate change, even before the actual flood and damage occur. Although there are precedents around the world, for example a court ruling in France, relating to Cyclone Xynthia in 2010, where 29 people were killed and hundreds of homes were flooded in the French coast. The homes were built in a forbidden “red zone”. The mayor and 3 others were charged with manslaughter and sentenced to 4 years in prison.28 In Israel no similar case has been heard in courts. There is a built-in difficulty to prove a future causal link between climate change and flooding/injury to the sandy cliff and the local authority decisions. In addition,  In 2011, the Government of Israel set a target of 10% for renewable energy production by 2020. Government Resolution No. 3484 (2011). 28  Wanez (2015) . 27

334

T. Iser Itsiq and T. Levinson

there is a built-in difficulty to prove that a specific factor caused the damage. In the absence of specific legislation, the chances of such a claim are low.

5 Conclusion To conclude, as described in this short chapter above, climate change litigation in Israel, but also the laws, are very much in the teething stage. That being said, progress is and has been made and we are confident that progress will continue to be made, with the hope that litigation in Israel will develop to be an effective, efficient way to ensure environmental protection. It is important to note the significant role of environmental organizations and individuals who are environmental activists and who have developed impressive professional and legal capabilities, including the use of legal tools, to promote coping on a national level with the challenges of climate change. The courts in Israel have an important role to play in a systematic and orderly manner. The continuation of this trend reinforces the belief that the scope of climate change litigation will increase in Israel in the coming years.

References Online Resources Assessment of Greenhouse Gas Emission Reduction Potential and Recommended National Target for Israel. http://www.sviva.gov.il/infoservices/reservoirinfo/doclib2/publications/ p0801-p0900/p0823-a.pdf. Accessed 30 July 2019 Ben Gurion University of the Negev Environmental Report (2011) Israel’s Environmental Movement: Trends, Needs and Potential. http://in.bgu.ac.il/en/SiteAssets/Pages/news/alon_ report/BGU%20Environmental%20Report.pdf. Accessed 30 July 2019 Circular of the Commissioner of Capital Market, Insurance and Savings, A Statement of Expected investment Policy in Institutional Bodies, 2017. https://mof.gov.il/en/PublicationsAndReviews/ Reports/Pages/CMA_PublicationsAndReports.aspx. Accessed 30 July 2019 Clean Air Law 5768-2008. http://www.sviva.gov.il/English/Legislation/Documents/Clean%20 Air%20Laws%20and%20Regulations/CleanAirLaw2008.pdf. Accessed 30 July 2019 Government Resolution No. 3484 (2011) Government of Israel. http://www.sviva.gov.il/English/ env_topics/climatechange/renewable-energy/Pages/Renewable-Energy-Planning-And-Policy. aspx. Accessed 2 August 2019 Israeli Climate Change Information Center. http://www.iccic.org.il/ICCIC/index. asp?DBID=1&LNGID=1. Accessed 30 July 2019 Non-Ionizing Radiation Law 2006. https://www.tnuda.org.il/en/policy-and-legislation/non-ionizing-radiation-law-israel. Accessed 30 July 2019 Planning and Building Regulations (Environmental Impact Statements) 5763-2003. http://www. sviva.gov.il/English/Legislation/Documents/Planning%20and%20Building%20Laws%20 and%20Regulations/PlanningAndBuildingRegulations-EnvironmentalImpactStateme nts-2003.pdf. Accessed 30 July 2019

Climate Change Litigation in Israel: Trends, Prospects and Challenges

335

Pollutant Release and Transfer Register (2017) Israel Ministry of Environmental Protection. http:// www.sviva.gov.il/English/env_topics/IndustryAndBusinessLicensing/PRTR/Pages/default. aspx. Accessed 30 July 2019 Protection of the Coastal Environment Law 5764-2004. http://www.sviva.gov.il/English/ Legislation/Documents/Seas%20and%20Coasts%20Laws%20and%20Regulations/ ProtectionOfCoastalEnvironmentLaw2004.pdf. Accessed 30 July 2019 Reducing Greenhouse Gases: Climate Change Mitigation (2015) Israel Ministry of Environmental Protection. http://www.sviva.gov.il/English/env_topics/climatechange/Mitigation/Pages/ default.aspx. Accessed 30 July 2019 Wanez JA, Government Officials’ Liability after Extreme Weather Events: Recent Developments in Domestic and International Case Law, 2015. https://www.lexisnexis.com/legalnewsroom/ climate-change/b/climate-change-blog/posts/government-officials-liability-after-extremeweather-events-recent-developments-in-domestic-and-international-case-law. Accessed 30 July 2019

Literature Tal A (2002) Pollution in a promised land: an environmental history of Israel. University of California Press, Berkeley Tal A, Zchout SL, Oshri LF, Greenspan I, Akor S (2011) Israel’s environmental movement. Ben-­ Gurion University of the Negev

Case Law Custodian of Absentee Assets V. Samara et al., Civil Appeal No. 147/55 Dov Yaacobovitch V. Mei Herzliya Ltd., CA 29117-03-13 (Tel Aviv) Haifa Chemicals Ltd. V. Municipality of Haifa Criminal, Appeal No. 2841/17 Kedoshim V. IDF, Class Action No. 24714-02-16 Klein etc. V. Oil Refineries (Bazan) Ltd. etc., Class Action No. 14087-06-15 The Israel Union for Environmental Defense V. The Government of Israel, HCJ No. 1092/12 The Israel Union for Environmental Defence V. The Government of Israel, HCJ No. 4128/02 Tzipi Iser Itsiq,  Ph.D. is a partner in Lipa Meir & Co. Law Firm and Director of the Environmental Protection, Cleantech and Clean Energy Department. She has extensive experience in promoting innovative regulatory reforms in the field of environmental protection and in accompanying legal and environmental disputes in her role as CEO and Legal Counsel of the Israel Union for Environmental Defense (Adam Teva Ve’Din). In addition, she serves as a lecturer at Netanya Academic College and teaches courses in environmental regulation, and as the Director of the Center for Environmental Protection at Netanya Academic College. She possesses unique academic and practical expertise in the field of environmental regulation, having authored a doctoral thesis on environmental regulation, and advises on a variety of renewable-energy and notable national infrastructure projects. Consecutively named a leading environmental lawyer by domestic and international rankings, she is frequently invited to take part in government policy drafting forums on legislative and regulatory initiatives. In recent years, she has been involved on behalf of business sector clients in the drafting of several major laws, regulations and guidelines affecting industrial and energy companies. She is also a member of the board of directors ofthe Israel Society of Ecology and Environmental Science (ISEES). She may be reached at: [email protected]

336

T. Iser Itsiq and T. Levinson

Attorney Tzvi Levinson  established and is currently a partner in The Levinson—Dror Environmental and Safety Law Firm, specializing in Israeli and international environmental, energy and safety law. Legal consultation spans all aspects of environmental, energy and safety law, including wastewater, air pollution, hazardous substances, solid waste, recycling, water pollution, seawater pollution, radiation, licensing and designing environmental management systems. In addition, he provides legal-scientific opinions in complicated compliance projects, regarding contamination events, administrative procedures, and insertion of products to global markets. He Lectures on environmental and energy law at the Faculty of Natural Resources and Environmental Management, University of Haifa. He is Constantly ranked as a leading environmental lawyer in Israel by the Practical Law Company, Dun & Bradstreet and BDI. He may be reached at [email protected]

Climate Change Law, Policy and Litigation in Qatar Aaron Richard Harmon and Jon Truby

Abstract  Qatar is itself particularly vulnerable to the impacts of climate change and has consequently implemented various sustainable development policies and environmental protection legislation to mitigate such harm. Despite this, it remains the world’s highest per capita emitter of carbon dioxide emissions and holds vast energy reserves that would further contribute to climate change. Sea level rises, ocean warming, desertification and loss of natural diversity all threaten Qatar’s environment. As the nation seeks to rapidly develop, it faces considerable challenges to achieve its development sustainably. Following an explanation of the laws and policies Qatar has implemented as well as the international conventions it has ratified, the chapter identifies the limitations for a private party wishing to bring climate change litigation in Qatar. Lack of standing, the inability to demonstrate quantifiable damages, the required burden of proof, and the rules of liability all hinder the opportunity to litigate. The chapter demonstrates that effectively top-­ down state action, such as the introduction of regulations, is the only means to achieve further progress on climate change prevention and mitigation. It also shows that this is well within the power of the legislature and executive, given their unfettered ability to introduce regulations and compel compliance. The chapter concludes with a recommendation for a special environmental damage regime and to enhance the jurisdiction of administrative judiciary.

A. R. Harmon · J. Truby (*) Centre for Law and Development, College of Law, Qatar University, Doha, Qatar e-mail: [email protected]; [email protected] © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_17

337

338

A. R. Harmon and J. Truby

1 Introduction A small coastal country surrounded on three sides by water, Qatar is particularly vulnerable to predicted rising sea levels.1 Qatar is among the ten countries that would be most adversely affected by rising sea levels.2 Even a 5-m rise in sea level could lead to an estimated flooding of 18.2% of its land area.3 The impact is magnified by the fact that the waters surrounding Qatar are especially shallow, combined with the fact that as much as 96% of the population is located in coastal areas.4 Additionally, the shallow waters are particularly susceptible to temperature increases.5 With this in mind, Qatar hosted the UN Framework Convention on Climate Change6 COP18 conference in 2012. Qatar has already experienced increased flooding and erosion of coastal habitats,7 and has also experienced biodiversity strains related to record ocean heat in 1996, 1998, and 2002.8 Experts predict that continued ocean warming will lead to mass deaths of turtles and fish, flooding of sea turtle nesting grounds, coral bleaching, as well as a substantial increase in jellyfish and toxic flora.9 Qatar is also a major global energy producer. It has the largest liquefied natural gas operations in the world, harvesting from the third-largest reserve of natural gas.10 It has also diversified into petrochemicals and metallurgy, and utilizes cogeneration facilities to provide desalinated water to its population. As such, Qatar is responsible for a disproportionate amount of greenhouse gas emissions.11 Qatar is largely dependent on desalinated water, and increased temperatures would further deplete its natural water table, leading to loss of natural diversity, increased desertification, and even more dependence on desalinated water.12  Qatar National Development Strategy, General Secretariat for Development Planning, March 2011, p. 215, available at: https://www.mdps.gov.qa/en/nds1/pages/default.aspx. 2  id. at 224. 3  Murthy (2016). 4  Qatar National Development Strategy, note 1 above, at 224. 5  id. 6  18th session of COP 18 (Conference of the Parties) to the UNFCCC and the 8th session of the Meeting of the Parties to the Kyoto Protocol, to review the implementation of the Kyoto Protocol and take decisions to promote its effective implementation, which took place from 26/11/12 to 7/12/12 in Doha, Qatar; http://www.cop18.qa/en-us/aboutcop18cmp8/cop18cmp8.aspx. 7  Qatar National Development Strategy, note 1 above, at 228. 8  id. at 227. 9  id. 10  id. at p. 214, 221. 11  id. at p. 221. 12  Qatar’s Commitment to Sustainable Development: Meeting the Challenges of Climate Change, General Secretariat for Development Planning, available at: https://www.mdps.gov.qa/en/media/ FeaturedArticles/QATAR%E2%80%99S%20COMMITMENT%20TO%20SUSTAINABLE%20 DEVELOPMENT,%20MEETING%20THE%20CHALLENGES%20OF%20CLIMATE%20 CHANGE.pdf. 1

Climate Change Law, Policy and Litigation in Qatar

339

As such, Qatar has a vested interest in reducing carbon dioxide emissions in order to protect its coastlines and its biodiversity.13 As a leader in energy production, it is also in a uniquely effective position to be able to do so. That being said, all possible change will occur through government regulation and enforcement, and not through litigation by private parties. There are currently no litigation mechanisms that enable private parties to participate in the process of reducing climate change emissions.

2 Climate Change Law in Qatar Qatar became a party to the United Nations Framework Convention on Climate Change of 1992 on April 18, 1996.14 The UNFCCC was given the force of law under Article 24 of the Amended Interim Constitution on July 22, 1996.15 Qatar also became a party to the Kyoto Protocol on January 11, 2005.16 The Law on Environment Protection, promulgated on September 29, 2002, provides the enforcement mechanism for all environment-related issues.17 The Law on Environment Protection establishes procedures and guidelines in the areas of air,18 water,19 hazardous waste,20 marine environment,21 and pollution prevention and response.22 It also introduced the requirement for and general procedures related to conducting Environmental Impact Assessments (EIAs). Significantly, however, the phrase “climate change” is only mentioned once, in reference to the UNFCCC accession document.23 Administrative and Judicial Procedures for violations of the law are contained in Articles 62–65. Sanctions, including jail time and fines for various levels of violation, are contained in Articles 66–75. The Executive By-Law No. 4 of 2005 for the Environmental Protection Law was published to provide greater details regarding the procedures associated with the permitting system for all aspects of environmental management.24 It covers the same general protection areas as the Law on Environment Protection, with even

 Truby (2012).  id. 15  Decree No. 47 of 1996 on the Approval of the Accession to United Nations Framework Convention on Climate Change, July 22, 1996, at Article 2. 16  Qatar’s Commitment to Sustainable Development (n.12); Accession Instrument of Qatar of Kyoto Protocol, November 28, 2004. 17  Decree by law No. 30 of 2002 on the Law of Environment Protection, September 29, 2002. 18  id. at Articles 28 to 39. 19  id. at Articles 40 to 41. 20  id. at Articles 24 to 27. 21  id. at Articles 42 to 61. 22  id. at Articles 21 to 23. 23  id. at Preamble. 24  Executive By-Law No. 4 of 2005 for the Environmental Protection Law. 13 14

340

A. R. Harmon and J. Truby

more specific guidance in the Annexes to the By-Law.25 Significantly, again, the phrase “climate change” is not included in either document. In terms of national climate change policy, Qatar National Vision 2030 (QNV 2030) was published July 2008 by the General Secretariat for Development Planning.26 QNV 2030 is intended to provide overarching guidance for the development of Qatari society and infrastructure. The Fourth Pillar of QNV 2030, Environment Development, contains several aspirational statements about supporting international efforts to mitigate the effects of climate change and becoming a leader in mitigation in the Gulf region. However, as this is a general guidance document, no concrete policies are specified. The Qatar National Development Strategy (QNDS) was published in March 2011, also by the General Secretariat for Development Planning.27 Unlike its predecessors, QNDS contains multiple reference to climate change and greenhouse gas emissions, and acknowledges that Qatar (along with other energy-producing nations) contributes substantially to global climate change.28 The Environment and Legislation sections state a national desire to reduce emissions, increase efficiencies, and educate the population. To this end, the Qatar Construction Specifications (QCS) now mandate all new construction to comply with the green building requirements of the Global Sustainability Assessment System (GSAS).29 It has also taken steps to reduce gas flaring, which makes up about 12% of Qatar’s total emissions.30 In 2007, Qatar introduced its first United Nations Framework Convention on Climate Change Clean Development Mechanism, the Al-Shaheen Oil Field Gas Recovery and Utilization Project, which reduced flaring by about 80%. Facilities at the Al-Karkara field, completed in 2012, have been designed to achieve zero gas flaring by injecting excess sour gas back into the reservoir.31 The Climate Change Committee was formed on October 4, 2007, pursuant to a resolution by the Chairman of the Supreme Council for the Environment and Natural Reserves.32 The Supreme Council for the Environment and Natural Reserves was replaced by the Ministry of Environment, which was later merged with the Ministry of Municipality and Urban Planning to form the Ministry of Municipality and

 Annexes of Executive By-Law No. 4 of 2005.  Qatar National Vision 2030, General Secretariat for Development Planning, July 2008, available at: http://portal.www.gov.qa/wps/portal/topics/employment+and+workplace/qatar+national+vision+ 2030/qatarnationalvision2030. 27  Qatar National Development Strategy, note 1 above. 28  id. at p. 21. 29  id. at p. 222. 30  id. at p. 224. 31  id; Qatar’s Commitment to Sustainable Development (n. 12). 32  Supreme Council for the Environment and Natural Reserves Chairman Resolution No. 9 of 2007 On the Formation of the Climate Change Committee, October 4, 2007. 25 26

Climate Change Law, Policy and Litigation in Qatar

341

Environment.33 The Undersecretary for Environmental Affairs currently oversees the Climate Change Department, which houses the National Committee for Climate Change.34

3 Climate Change Litigation in Qatar Qatar has since 2009 operated a constitutional court which presides over decisions governing constitutional interpretations, ensures legislation complies with the constitution and is an appellate court to decide on disputes on constitutional interpretations and legislative interpretations from lower courts. It has jurisdiction over lower courts and can instruct a court to decide on precise issues.35 Qatar is a monarchy, with a very powerful executive branch.36 Although it has ratified a constitution37 and in principle has established three branches of government,38 most positions are appointed by the executive branch and serve at the pleasure of the Emir.39 As such, judges lack both the authority and the independence to review executive or legislative actions.40 Moreover, absent quantifiable damages to their personal interests, private parties in Qatar (natural or corporate) have no standing under the Qatari Civil Code or the Environmental Protection Law to sue other private parties for climate change, social justice, pollution, or other environmental issues.41 Where actual damages can be proven, there may be a cause of action.42 However, general rules of liability under the Civil Code may be complicated in the environmental damage context.43 Issues

 Emiri Decree No. 1 of 2008; “SCH and SEC Disbanded as Emir Reshuffles Cabinet” available at: https://www.thepeninsulaqatar.com/news/qatar/368111/sch-and-sec-disbanded-as-emirreshuffles-cabinet; ministry website available at http://www.mme.gov.qa/cui/index.dox. 34  Ministry for Municipality and Environmental Affairs Website, Organizational Structure, available at: http://www.mme.gov.qa/cui/view.dox?id=1448&contentID=3789&siteID=2. 35   US Library of Congress, http://www.loc.gov/law/foreign-news/article/ qatar-constitutional-court-established/. 36  United Nations Human Rights Council, Report of the Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, March 31, 2015, p. 9, § 3.A.1, available at: www.ohchr. org/EN/HRBodies/HRC/.../A_HRC_29_26_Add_1_ENG.DOCX. 37  id. at p. 5, § 2.A.6. 38   Qatar Constitution, Art. 60, available at: http://portal.www.gov.qa/wps/portal/!ut/p/a0/04_ Sj9CPykssy0xPLMnMz0vMAfGjzOIt_S2cDS0sDNwtQgKcDTyNfAOcLD3cDdw9zfULsh0V AQl92_s!/. 39  id. at p. 9, § 3.A.1. 40  id. 41  Interview with Prof. Abdelnaser Zeyad Hayajneh, (2018). 42  id. 43  id. 33

342

A. R. Harmon and J. Truby

related to burden of proof, methods to assess damages, the restricted compensatory nature of the Civil Code, etc. all present obstacles to recovery.44 Private parties also lack standing to sue the government for climate change or other environmental issues.45 Generally speaking, the challenge and review of administrative decisions is unavailable as a vehicle to initiate a change of policy or of behavior.46

4 Effective Climate Change Litigation in Qatar: The Way Forward As such, currently only the executive and legislative branches have the power to initiate review or prosecution of a private actor for pollution reasons.47 Similarly, the government retains sole discretion with regards to administrative and legislative decisions, without possibility of review.48 Further, conflicts of interest are apparent in terms of enforcement. The body responsible for environmental and climate regulatory enforcement of the petroleum industry is the Health, Safety and Environment Directorate at Qatar Petroleum, the state energy producer.

5 Conclusion As has been demonstrated, Qatar’s legislature have introduced regulatory requirements that are particularly applicable for businesses operating in the state. Meanwhile its executive bodies have endorsed international conventions including the UNFCCC, and have a climate change committee responsible for preparing and evaluating the Nationally Determined Contributions. Its national strategies and policies go some way towards achieving climate change mitigation. The top-down legislative, policy and governance practices described concerning climate change in the State of Qatar is indeed the norm in Gulf Cooperation

 id.  id. 46  id. 47  id. 48  id. 44 45

Climate Change Law, Policy and Litigation in Qatar

343

Council49 countries, who have tended to introduce similar policies.50 The inability of private parties to bring climate change litigation means none occurs, and institutions are not held accountable for breaches of climate change standards. This can change. Going forward, there is a real need to introduce a special environmental damage regime, and to further develop the jurisdiction of administrative judiciary.51

References

State Policies Qatar National Development Strategy, General Secretariat for Development Planning, March 2011, available at: https://www.mdps.gov.qa/en/nds1/pages/default.aspx Qatar’s Commitment to Sustainable Development: Meeting the Challenges of Climate Change, General Secretariat for Development Planning, available at: https://www.mdps.gov.qa/ en/media/FeaturedArticles/QATAR%E2%80%99S%20COMMITMENT%20TO%20 SUSTAINABLE%20DEVELOPMENT,%20MEETING%20THE%20CHALLENGES%20 OF%20CLIMATE%20CHANGE.pdf Qatar National Vision 2030, General Secretariat for Development Planning, July 2008, available at: http://portal.www.gov.qa/wps/portal/topics/employment+and+workplace/ qatar+national+vision+2030/qatarnationalvision2030

Online Documents United Nations Human Rights Council, Report of the Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, March 31, 2015, p. 9, § 3.A.1, available at: www.ohchr. org/EN/HRBodies/HRC/.../A_HRC_29_26_Add_1_ENG.DOCX Murthy A (15 December 2016) Qatar and the Climate Debate. Oryx Publishing. Available at: http://earthjournalism.net/stories/qatar-and-the-climate-debate 18th session of COP 18 (Conference of the Parties) to the UNFCCC and the 8th session of the Meeting of the Parties to the Kyoto Protocol, to review the implementation of the Kyoto Protocol and take decisions to promote its effective implementation, which took place from 26/11/12 to 7/12/12 in Doha, Qatar; http://www.cop18.qa/en-us/aboutcop18cmp8/cop18cmp8.aspx Qatar’s Commitment to Sustainable Development: Meeting the Challenges of Climate Change, General Secretariat for Development Planning, available at: https://www.mdps.gov.qa/ en/media/FeaturedArticles/QATAR%E2%80%99S%20COMMITMENT%20TO%20 SUSTAINABLE%20DEVELOPMENT,%20MEETING%20THE%20CHALLENGES%20 OF%20CLIMATE%20CHANGE.pdf

 Cooperation Council for the Arab States of the Gulf, including Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the UAE. 50  See for example, the United Arab Emirates’ Federal Environment Agency https://www.ead.ae/ en/portal/environmental.laws.aspx, and the Emirati Environmental Research and Wildlife Development Agency, founded pursuant to Law No.4 of 1996. 51  id. 49

344

A. R. Harmon and J. Truby

Ministry for Municipality and Environmental Affairs Website, Organizational Structure, available at: http://www.mme.gov.qa/cui/view.dox?id=1448&contentID=3789&siteID=2 US Library of Congress, http://www.loc.gov/laws/foreign-news/article/qatar-constitutionalcourt-established/ United Arab Emirates’ Federal Environment Agency. https://www.ead.ae/en/portal/environmental. laws.aspx

Journal Article with DOI (and with Page Numbers) Truby J (2012) Fiscal tools for inclusion of GCC states in the global environmental programme: focus upon new vehicle imports. Green Taxation Environ Sustain:144–158. https://doi. org/10.4337/9781781952184.00022

Laws Decree No. 47 of 1996 on the Approval of the Accession to United Nations Framework Convention on Climate Change, July 22, 1996 Accession Instrument of Qatar of Kyoto Protocol, November 28, 2004 Decree by law No. 30 of 2002 on the Law of Environment Protection, September 29, 2002 Executive By-Law No. 4 of 2005 for the Environmental Protection Law Annexes of Executive By-Law No. 4 of 2005 Supreme Council for the Environment and Natural Reserves Chairman Resolution No. 9 of 2007 On the Formation of the Climate Change Committee, October 4, 2007 Emiri Decree No. 1 of 2008; “SCH and SEC Disbanded as Emir Reshuffles Cabinet” available at: https://www.thepeninsulaqatar.com/news/qatar/368111/sch-and-sec-disbanded-as-emirreshuffles-cabinet; ministry website available at http://www.mme.gov.qa/cui/index.dox Qatar Constitution, available at: http://portal.www.gov.qa/wps/portal/!ut/p/a0/04_ Sj9CPykssy0xPLMnMz0vMAfGjzOIt_S2cDS0sDNwtQgKcDTyNfAOcLD3cDdw9zfULsh0 VAQl92_s!/ Emirati Environmental Research and Wildlife Development Agency, founded pursuant to Law No.4 of 1996

Interviews Interview with Prof. Abdelnaser Zeyad Hayajneh, Professor of Civil and Environmental Law, Qatar University College of Law, March 25,(2018). Transcript available by request Aaron Richard Harmon  teaches in the Qatar University College of Law Legal Skills Department. He also manages the College of Law’s moot court programs and coaches the International Negotiation Competition Team. Professor Harmon was one of the first attorneys in the United States to receive the LEED® AP credential (Leadership in Energy and Environmental Design—Accredited Professional) from the United States Green Building Counsel (USGBC). He has given numerous lectures on the intersection between green construction, sustainability, renewable energy, and risk management.

Climate Change Law, Policy and Litigation in Qatar

345

Prior to joining the faculty at Qatar University, Professor Harmon taught legal research, writing, and oral advocacy at the University of North Carolina School of Law in the United States. A specialist in oral advocacy and alternative dispute resolution (with an emphasis on mediation and negotiation), Professor Harmon directed the UNC National Negotiation Competition Team and the UNC Environmental Negotiation Competition Team to several high finishes at tournaments. Aaron Richard Harmon can be reached at [email protected]. Dr. Jon Truby  is Director of the Centre for Law and Development, a legal research and policy centre focused on delivering solutions to the needs of Qatar’s National Development Strategy. Its current research and roundtable agenda focuses upon financial innovation for Qatar’s economic diversification and environmental protection. Dr. Jon Truby runs the undergraduate and postgraduate Environmental Law and Public Policy programmes in the College of Law of Qatar University. His research specialism is niche and interdisciplinary, focusing upon the interaction between technological innovation, the law and sustainable development policy. This inevitably involves synergy with fields including law, economics, climate science, finance and digital innovators. Before joining the College of Law, Dr. Truby taught graduate and undergraduate courses on the LLM and LLB courses at Newcastle Law School (England). His Ph.D from Newcastle Law School at the University of Newcastle upon Tyne (England) was a doctoral study of environmental tax law and its impact upon environmental behaviour including sustainable energy consumption and production. Dr Truby can be reached at [email protected].

Climate Litigation in India Shibani Ghosh

Abstract  India is one of the countries most vulnerable to the impacts of climate change. It is also one of the highest greenhouse gas (GHG) emitters in the world, although its per capita GHG emissions are very low. An active participant in international climate negotiations, India’s Nationally Determined Contribution (NDC) is considered 2 °C compatible, and its current policy framework is likely to support two of the three targets set out in its NDC. While the success of the policy framework will be determined by various social, environmental, economic and political factors, it will also depend on the ability of individuals to hold public and private actors accountable for their actions (and inactions), which aggravate the causes and impacts of climate change. A review of the legal and regulatory landscape in India reveals that the main environment and energy related laws, policies and regulatory processes offer several hooks to bring climate claims to courts. While there have been cases where courts have referred to climate concerns, there is yet to be a judicial decision on the justiciability of climate claims, or one that directs measures specifically for mitigation or adaptation. The jurisdiction of the Supreme Court of India and the High Courts as well as that of the National Green Tribunal is quite broad, and they could potentially decide various types of climate claims. However, one should not be overly optimistic as Indian courts often refrain from interfering in government decisions and policies on infrastructure development and Indian courts are notorious for their overflowing dockets and massive judicial delays.

The present chapter builds, updates and substantially expands on Rajamani and Ghosh (2011). I am grateful to Antara Bordoloi for her research assistance. All errors are mine. S. Ghosh (*) Centre for Policy Research, New Delhi, India e-mail: [email protected] © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_18

347

348

S. Ghosh

1 Introduction India has been an active participant in international negotiations on climate change since the early 1990s. It is party to the United Nations Framework Convention on Climate Change (UNFCCC) 1992, and has ratified the Kyoto Protocol 1997 as well as the Paris Agreement 2015. It has been an influential voice in the Global South, maintaining that developing countries are not historically responsible for causing climate change, that they must be allowed to prioritise their national developmental goals, and that developed countries must not only lead the mitigation actions, but must also provide financial and technological assistance to developing countries to take appropriate mitigation and adaptation actions.1 At the same time, India is extremely vulnerable to the impacts of climate change. It is ranked 130th on the Human Development Index,2 almost 30% percent of its population lives below the poverty line3; it has a 7500 km long coastline, with more than 14% of the population in coastal districts4; 304 million people do not have access to electricity5; and the ecologically sensitive Himalayan range, with over 9000 glaciers, contributes to major river systems that support a significant portion of the Indian population.6 According to India’s (Intended) Nationally Determined Contribution (NDC),7 it is committed to reducing the emissions intensity of its Gross Domestic Product (GDP) by 30–35% from 2005 level by 2030; 40% of its installed electric power capacity will be sourced from non-fossil fuel based energy sources by 2030; and an additional carbon sink of 2.5–3 billion tonnes of CO2eq will be created by 2030 through additional forest cover. In its assessment of India’s policies, the Climate Action Tracker has found that ‘under current policies, India is likely to achieve both its 40% non-fossil target and its emissions intensity target’.8 It has also rated India’s NDC to be ‘2 °C compatible’—i.e. if all countries were to follow India’s approach, warming could be held below 2 °C. By per capita carbon dioxide emissions, India is ranked 127th in the world.9 Although India’s historical emissions are insignificant, its annual GHG emissions are 3202.31 MtCO2eq, making it the third largest emitter in the world.10 In its first Biennial Update Report (BUR), India reported that in 2010 its energy sector accounted for 71% of the emissions, followed by agriculture (18%), industrial  See Sengupta (2012) and Dubash and Rajamani (2015).  United Nations Development Programme (2018). 3  Government of India (2015b), p. 14. 4  Centre for Coastal Zone Management and Coastal Shelter Belt (2019). 5  NITI Aayog (2017), p. 1. 6  Indian Network for Climate Change Assessment (2010), p. 17. 7  Government of India (2015a). 8  Climate Action Tracker (2018). 9  World Bank (2019). 10  Climate Watch (2019). 1 2

Climate Litigation in India

349

p­ rocesses and products use (8%) and waste (3%).11 In terms of its energy mix, in June 2019, 63.7% of India’s installed capacity of 350 GW was thermal (coal contributing more than 54%); 13% hydro, 1.9% nuclear and 21.2% from renewable energy sources.12 In its NDC, India announced a target of 175  GW of installed renewable energy capacity by 2022. By mid-June 2019,  it was estimated that it had achieved 74 GW.13 According to a 2018 government survey report, the total forest and tree cover of the country is 802,088 sq km, which is 24.39% of the geographical area of the country.14 Although there is an increase of 6778 sq km in the forest cover of the country as compared to the previous assessment period, data reveals loss of over 6407 sq km of dense forests. The increase in forest cover has been mainly attributed to plantation growth.15 In the context of this positive assessment of what India’s policies could achieve by 2030, and assuming the adequacy of India’s contribution to combatting climate change, how does one ensure that these policies achieve their targets? No doubt the success of these policies depends on numerous economic, political, social and environmental considerations, across international, national and sub-national levels. But can an individual hold the government accountable for its promises? And can she approach the courts to enforce climate action? Before addressing specific questions on potential for climate litigation in India, the following section provides a brief overview of the landscape of relevant laws, policies and institutions in India.

2 Overview: Relevant Laws, Policies and Institutions 2.1 Laws India has not enacted a comprehensive legislation on climate change.16 But there are other laws which speak to different aspects of climate change—causes and impacts, and these laws could potentially provide triggers for climate claims. These laws may be discussed under three broad categories—constitutional law, environmental laws, and laws governing electricity, sources of energy and energy use.

 Government of India (2015b), p. 57.  Ministry of Power (2019). 13  Ibid. 14  Forest Survey of India (2018), pp. 25 and 89. 15  Mazoomdar (2018). 16  In 2012, a bill on climate change—requiring the government to take steps to mitigate emissions and increase energy efficiency—was introduced in the Parliament but it lapsed without being considered (PTI 2012). In 2014, the Indian Environment Minister announced that India was planning to introduce a comprehensive climate legislation in the Parliament in early 2015. However, till date such a legislation has not been introduced (Goswami 2014). 11 12

350

S. Ghosh

2.1.1 Constitutional Law The Constitution of India 1950 is the foundational document of India’s legal system. Part III of the Constitution enumerates certain rights—termed as ‘fundamental rights’. All laws enacted in India have to be in conformity with these rights, and any law which takes away or abridges a fundamental right is void.17 The Indian judiciary has interpreted these rights, in particular the right to life and liberty,18 liberally, and has extended their protection to a wide spectrum of socio-economic and environmental rights.19 These judicially ‘read-in’ rights include the right to live with human dignity,20 the right against torture or cruel, inhuman and degrading treatment,21 the right to livelihood,22 the right to education,23 the right to health and medical care of workers,24 the right to development25 and the right to privacy.26 In particular and relevant to the present discussion, Indian courts have interpreted the right to life to include many different formulations of the right to environment27 such as the ‘right of enjoyment of pollution-free water and air’,28 the right to ‘live in healthy environment with minimal disturbance of ecological balance and without avoidable hazard to [humans] and to their cattle, homes and agricultural land and undue affectation of air, water and environment’,29 and the right to ‘environmental protection and conservation of natural resources’.30 Indian courts have also recognised rights of the environment.31 A fundamental right violation may be claimed against public actors, and even against private actors but on limited grounds.32 In environmental cases, typically claims are made against both sets of actors: against the public actors for dereliction of regulatory duties (e.g. for not stopping a polluting industry from operating) or for  Constitution of India 1950, art 13.  Ibid, art 21. 19  Setalvad (2000) and Anderson (1998). 20  Francis Coralie Mullin v The Administrator, Union Territory of Delhi (1981) 1 SCC 608. 21  DK Basu v State of West Bengal (1997) 1 SCC 416. 22  Olga Tellis v Bombay Municipal Corporation (1985)3 SCC 545. 23  Mohini Jain v State of Karnataka (1992) 3 SCC 666; Unni Krishnan v State of Andhra Pradesh (1993) 1 SCC 645. Subsequently the Constitution was amended to introduce Article 21A expressly recognising the right to education as a fundamental right. 24  Consumer Education and Research Centre v Union of India (1995) 3 SCC 42. 25  ND Jayal v Union of India (2004) 9 SCC 362. 26  Justice Puttaswamy (Retd) v Union of India 2017 SCC OnLine SC 1462. 27  Rajamani (2007) and Bhullar (2019). 28  Subash Kumar v State of Bihar (1991) 1 SCC 598. See also MC Mehta v Union of India (1992) 3 SCC 256; Virender Gaur v State of Haryana (1995) 2 SCC 577. 29  Rural Litigation and Entitlement Kendra v State of Uttar Pradesh (1985) 2 SCC 431. 30  Intellectuals Forum, Tirupathi v State of Andhra Pradesh (2006) 3 SCC 549. 31  Animal Welfare Board of India v A Nagraja (2014) 7 SCC 547; Lalit Miglani v State of Uttarakhand 2017 SCC OnLine Utt 392. 32  Chugh (2005) and Gardbaum (2016). 17 18

Climate Litigation in India

351

failing to protect the citizen’s constitutionally guaranteed right to environment (e.g. for not issuing regulations necessary for coastal protection), as well as against private actors responsible for violating statutory provisions and infringing the citizen’s right to environment. The Constitution also lays down certain principles—Directive Principles of State Policy—that are meant to be applied by the State while making laws, and that are fundamental to the governance of the country.33 These principles include the duty of the state to raise people’s standard of living and improve public health34; to protect and improve the environment and safeguard forests and wildlife35; to protect monuments and places of national importance36; and to foster respect for international law and treaty obligations.37 Although these principles are not enforceable by any court,38 the Supreme Court has held that these principles have to be read harmoniously with fundamental rights, and both principles and rights constitute ‘the core of our Constitution’.39 The Constitution also imposes certain fundamental duties on every citizen including the duty to protect and improve the natural environment.40 Indian courts have often read Articles 21, 48A and 51A(g) together while defining an environmental right, or determining the violation of an environmental right.41 Parliament has the exclusive jurisdiction to enact a law implementing any international treaty, agreement or convention.42 Although India essentially follows the doctrine of dualism,43 case law analysis reveals that Indian courts have in fact adopted the ‘doctrine of incorporation’ by relying on, or incorporating, international treaty provisions and norms while interpreting statutory obligations.44 The Supreme Court has held that if a municipal law conflicts with international law, the former will prevail.45 But in the absence of such a conflict, Indian courts will endorse international law46 and municipal law will have to be read in a manner which conforms to international conventions.47 In a landmark judgment on sexual harassment at workplaces, the Supreme Court referring to the directive principles under Article

 Constitution of India, art 37. See also, Bhatia (2016), p. 644.  Ibid, art 47. 35  Ibid, art 48A. 36  Ibid, art 49. 37  Ibid, art 51. 38  Ibid, art 37. 39  Minerva Mills v Union of India (1980) 3 SCC 625. 40  Constitution of India, art 51A(g). 41  See for e.g. Virender Gaur (n 28); MC Mehta (Badkhal and Surajkund lakes matter) v Union of India (1997) 3 SCC 715. 42  Constitution of India, art 253. 43  See National Legal Services Authority v Union of India (2014) 5 SCC 438. 44  Hegde (2010), pp. 59–60. 45  Gramophone Company of India Ltd v Birendra Bahadur Pandey (1984) 2 SCC 534. 46  Gramophone Company, ibid. 47  Puttaswamy (n 26). 33 34

352

S. Ghosh

51(c) to foster respect for international law held, ‘[a]ny International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee’.48 Environmental judgments routinely refer to provisions of international environmental treaties (including what is considered ‘soft law’) as a basis for the government’s obligation to protect the environment and people’s right to the environment.49 2.1.2 Environmental Laws and Legal Principles India has enacted several environmental laws covering a wide range of issues.50 For the present discussion, the most relevant laws are the Environment (Protection) Act 1986 [EP Act], the Forest (Conservation) Act 1980 [FC Act], and the Air (Prevention and Control of Pollution) Act 1981 [Air Act]. These laws, along with rules and notifications framed under them, provide potential hooks for climate claims before Indian courts. Environment (Protection) Act 1986 The EP Act gives the Central Government comprehensive powers to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution.51 The Act also gives the Central Government the power to lay down standards for various environmental pollutants, as well as for the quality of environment.52 Exercising its powers under the EP Act, the Central Government has enacted rules and notifications which regulate specific sources of pollution, or processes which may impact the quality of the environment.53 Two such notifications relevant for climate litigation are:

 Vishaka v State of Rajasthan (1997) 6 SCC 241.  Karnataka Industrial Areas Development Board v Sri. C Kenchappa and Ors (2006) 6 SCC 371; TN Godavarman v Union of India (2012) 4 SCC 362; Research Foundation for Science Technology National Resource Policy v Union of India (2012) 7 SCC 769. See also Rajamani (2016), p. 143. 50  For further details see the website of the Ministry of Environment, Forest and Climate Change accessed 16 January 2018. 51  EP Act, s 3(1). 52  Ibid, s 3(2)(iii) and (iv). 53  Environment (Protection) Rules 1986; Plastic Waste (Management & Handling) Rules 2011; E-waste Management and Handling Rules 2011. 48 49

Climate Litigation in India

353

(1) Notification of 14 September 2006, known as the EIA Notification 2006.54 Central to its implementation is the environmental impact assessment (EIA) of proposed projects before they are granted approval—i.e. the ‘environmental clearance’—by the concerned regulatory agency. For many projects which require an environmental clearance, the government has to facilitate public consultation before the final decision is made. Expert Appraisal Committees are appointed to make recommendations to the regulatory agency based on a detailed scrutiny of the project and related documents. (2) Notification dated 18 January 2019, known as CRZ Notification 2019.55 The preamble to the Notification recognizes the need to protect livelihoods of fisherfolk and other communities living in the coastal areas, to conserve the unique ecology of the coasts, and to support sustainable development of the coasts keeping in mind scientific principles, and taking into account dangers of natural hazards and sea-level rise due to global warming. It divides the Indian coastline into different coastal regulatory zones (CRZs) and enumerates the permitted, regulated and prohibited activities and industries in these zones. Projects may require a regulatory approval (‘CRZ clearance’) depending on the nature of activity and proposed location. Regulatory processes under these two notifications could include climate considerations at various stages, and claimants could approach courts on the ground that relevant considerations such as climate concerns were not taken into account by the decision-maker while granting regulatory approvals. Forest (Conservation) Act 1980 The FC Act was enacted to combat large-scale deforestation. The Act prescribes the process by which governments may permit use of forest land for non-forest purposes or de-reserve reserved forests.56 This process, referred to as the forest clearance process, requires several levels of forest bureaucracy, and at times a specially constituted expert body called the Forest Advisory Committee, to comment and approve an application.57 Once a forest clearance is granted, several regulatory conditions are imposed on the project proponent, including payment for compensatory afforestation and catchment area treatment. Funds thus collected are then utilized by the government to undertake afforestation and other conservation schemes.58 The

 See for Notification, subsequent amendments and related documents accessed 16 January 2018. For details on the process, Ghosh (2013). 55   See for Notification  accesssed 5 July 2020. 56  FC Act, s 2. 57  See Forest (Conservation) Rules 2003. 58  See The Compensatory Afforestation Fund Act 2016. 54

354

S. Ghosh

forest clearance process also provides a hook for potential climate litigation, as discussed later. Air (Prevention and Control of Pollution) Act 1981 The Air Act defines an air pollutant as ‘any solid, liquid or gaseous substance including noise present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment’.59 The Central Pollution Control Board and the State Pollution Control Boards, agencies charged with the implementation of the Act, can lay down standards for ‘emission of air pollutants into the atmosphere from industrial plants and automobiles or for the discharge of any air pollutant into the atmosphere from any other source’ (other than ships and aircrafts).60 The definition of air pollutant is sufficiently broad to cover GHG emissions, although this interpretation is yet to be adopted by any Indian court. Environmental Legal Principles The Supreme Court of India has incorporated international and foreign legal principles into Indian environmental law. These include the principles of precaution,61 inter-generational equity,62 sustainable development63 and polluter pays,64 and the public trust doctrine.65 The Supreme Court has also created a rule of liability, termed as absolute liability, which holds enterprises involved in hazardous or inherently dangerous industrial activity strictly and absolutely liable to compensate victims of an accident that may have occurred during the carrying on of such activity.66 The rule of absolute liability does not allow the exceptions available under the Rylands strict liability rule. These principles are valuable tools for climate litigation.

 Air Act, s 2(a).  Ibid, s 16(2)(h) and 17(1)(g). 61  Vellore Citizens’ Welfare Forum v Union of India and Ors (1996) 5 SCC 647. 62  State of Himachal Pradesh v Ganesh Wood Products (1995) 6 SCC 363. 63  Vellore (n 61). 64  Indian Council for Enviro-Legal Action v Union of India (1996) 3 SCC 212. 65  MC Mehta v Kamal Nath (1997) 1 SCC 388. 66  M.C.  Mehta v Union of India (1987) 1 SCC 395. See also Indian Council for Enviro-Legal Action (n 64). 59 60

Climate Litigation in India

355

2.1.3 Laws Governing Electricity, Sources of Energy and Energy Use Electricity Act 2003 The Electricity Act regulates the generation, transmission, distribution, trading and use of electricity in the country. Regulatory commissions constituted under this law have to inter alia promote the generation of electricity from renewable energy sources.67 They also set the electricity tariff and one of the factors they can be guided by is the promotion of electricity generation from renewable sources.68 In 2010, the Central Electricity Regulatory Commission issued regulations requiring certain ‘obligated entities’ to purchase electricity from renewable energy sources.69 Pursuant to this, regulations were issued by different state regulators. This Renewable Purchase Obligations (RPOs) mechanism has been a central feature of the government’s policy to encourage renewable energy sources. Energy Conservation Act 2001 This law was enacted to promote energy conservation and energy efficiency measures. The Act constituted the Bureau of Energy Efficiency which has spearheaded several measures to increase efficiency across energy intensive sectors and has also introduced labelling schemes to induce efficiency in appliances.70 One of the programs initiated by the Bureau is the Perform Achieve and Trade (PAT) Scheme facilitating trade in energy savings certificates between designated consumers in sectors like power, iron and steel, cement and aluminium.71

2.2 Policies and Plans The Central and State governments often prepare plans and policies that are meant to guide their decision making. These documents may be prepared to discharge a specific statutory obligation. They are a crucial reflection of the government’s planning process. Their contents typically do not create binding obligations on the government. However, in some cases the Supreme Court has held that the government’s

 Electricity Act, s 86.  Ibid, s 61(h). 69  Central Electricity Regulatory Commission (Terms and Conditions for recognition and issuance of Renewable Energy Certificate for Renewable Energy Generation) Regulations, 2010. 70  For details about the Bureau of Energy Efficiency and its work accessed 16 January 2018. 71  For details about the PAT scheme accessed 16 January 2018. 67 68

356

S. Ghosh

policy must be read as part of the law and be relied on for the implementation of relevant statutory provisions.72 In the context of climate change, the government released the National Action Plan on Climate Change [NAPCC] in June 2008.73 The NAPCC sets up eight missions focusing on different aspects of the country’s development agenda. Action under these missions is expected to either mitigate India’s emissions or help its vulnerable population adapt to the potential impacts of climate change. The Plan endorses a ‘co-benefits approach’—identifying measures which promote India’s development objectives while simultaneously yielding benefits by addressing climate change effectively. The government has also formulated the National Electricity Policy 2005, the National Electricity Plan 2018, the National Tariff Policy 2016 and the government’s think tank—the NITI Aayog—has released the draft National Energy Policy 2017, building on the Integrated Energy Policy 2006. These documents provide useful insights into the government’s projections for energy and electricity demand and supply, as well as its targets and policy goals. Other policies like the National Forest Policy 1988, the National Environment Policy 2006, the National Wildlife Action Plan, and the Green Highways (Plantation & Maintenance) Policy 2015 deal with issues which have a direct impact on climate change mitigation and adaptation actions in India.

2.3 Institutions 2.3.1 Supreme Court and High Courts Article 32 of the Constitution recognises the fundamental right to approach the Supreme Court directly for the enforcement of fundamental rights, and Article 226 recognises the constitutional right to approach High Courts for the enforcement of fundamental rights or any other legal right. The Supreme Court and High Courts, when approached under Articles 32 and 226 respectively, may issue directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of rights.74 Besides their extensive writ jurisdiction, these Courts enjoy wide original and appellate jurisdiction. The power of judicial review enjoyed by the higher judiciary is considered to be part of the basic structure of the Constitution.75 Judicial review of administrative

 Lafarge Umiam Mining v Union of India (2011) 7 SCC 338; Centre for Environment Law, WWFIndia v Union of India (2013) 8 SCC 234. 73  Prime Minister’s Council on Climate Change (2008). 74  See Subramanium (2016). 75  L Chandra Kumar v Union of India (1997) 3 SCC 261. 72

Climate Litigation in India

357

action can be sought on grounds including: illegality, irrationality, proportionality and procedural impropriety.76 The Indian judiciary has played an active role in environmental conservation for almost four decades. As discussed above, it has liberally interpreted constitutional and statutory provisions, often in reference to international and foreign law, to enshrine environmental rights and legal principles in Indian law. At least a part of this has been possible due to a form of proceedings—termed as public interest litigation (PIL)—fashioned by the Supreme Court and subsequently adopted by the High Courts.77 The original intent of encouraging PIL cases was to lend voice to marginalised and disadvantaged sections of society who would otherwise find the formal processes of the judicial system difficult to navigate. It soon became a vehicle to challenge government inaction as well—to redress public wrong or injury, even though no specific legal injury was caused to an individual or a determinate class of persons.78 The Supreme Court relaxed several procedural norms to ease access to the Court. The Court observed that the traditional rule of locus standi need not be adhered to,79 and emphasised the need to do away with procedural technicalities in such cases. Judgments and orders delivered in PILs have significantly contributed to the development of India’s environmental jurisprudence.80 2.3.2 National Green Tribunal The National Green Tribunal Act 2010 sets up the National Green Tribunal (NGT), a special environmental court, which has exclusive jurisdiction over certain types of environmental cases. The objective of the NGT Act is to provide effective and expeditious disposal of cases relating to the protection of the environment.81 The Tribunal’s members are a mix of persons with a legal/judicial background and those with knowledge and expertise in environmental issues or with administrative experience.82 The NGT has original jurisdiction over all civil cases where a substantial question relating to the environment arising from the implementation of provisions of the six laws listed in the Schedule to the NGT Act.83 These laws include the EP Act and the FC Act discussed above. It exercises appellate jurisdiction over certain orders and directions issued by government agencies—including environmental,

 Tata Cellular v Union of India (1994) 6 SCC 651.  Baxi (1985), Desai and Muralidhar (2000) and Sengar (2003). 78  SP Gupta and Ors v President of India and Ors 1981 Supp SCC 87; Cunningham (1987). 79  Sathe (2015). See also Municipal Council, Ratlam v Vardichand (1980) 4 SCC 162. 80  Faure and Raja (2010); Ghosh (2019), pp. 89–91. 81  NGT Act, preamble. 82  See Centre for Policy Research (2016) and Rosencranz and Sahu (2014). 83  NGT Act, s 14 read with s 2(m) and the Schedule. 76 77

358

S. Ghosh

forest and CRZ clearances.84 An appeal against an order of the NGT lies before the Supreme Court of India.85 According to the NGT Act, an ‘aggrieved person’ can approach the Tribunal. The ‘person’ could be an individual, a company, an association of persons (like an NGO), a local authority or a government body.86 The NGT has liberally interpreted ‘aggrieved person’, noting that a person need not be directly affected by the project or development in question, but could be any person interested in protecting and preserving the environment.87 While adjudicating a case, the Tribunal has to apply the principles of sustainable development, precaution and polluter pays, and in case of an accident, it has to apply the no-fault liability principle.88 It has the power to award environmental compensation to victims of pollution and other environmental damage, and can also direct restitution of damaged environment.89

3 Climate Litigation: Potential, Practice and Possible Strategies 3.1 India’s NDC as a Hook for Climate Litigation As a party to the UNFCCC and the Paris Agreement, India is bound by the provisions of these treaties and must give effect to them in good faith.90 To meet its NDC targets, India has already initiated several measures. According to the Climate Action Tracker assessment, India is likely to meet its first two targets comfortably with its current policy pathway, and the third target—to create an additional carbon sink—is likely to be met in part through the Green India Mission—one of the eight missions under the NAPCC, focused on afforestation measures, as well as through amendments to the National Forest Policy.91 However, the government is permitting clearing of vast tracts of forests through the forest clearance mechanism discussed above, and it is unclear whether on balance sufficient additional carbon sinks will in fact be created.

 Ibid, s 16.  Ibid, s 22. 86  Ibid, s 2(1)(j). 87  Vimal Bhai and Ors v MoEF and Ors, Appeal No. 5/2011, Judgment dated 14 December 2011, NGT (Principal Bench). 88  NGT Act, ss 20 and 17(3). 89  Ibid, s 15. 90  Vienna Convention on the Law of Treaties 1969, art 26. 91  Climate Action Tracker (2018). 84 85

Climate Litigation in India

359

Indian courts are usually reluctant to review government policies.92 The Supreme Court has held ‘[t]he scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. … Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review’.93 Particularly when the policy relates to fiscal or economic issues, courts have advised a high level of restraint.94 Government policies on energy sources, electricity, and industrial emissions are likely to significantly impact the Indian economy. Therefore, courts may not engage in deep judicial scrutiny in cases challenging the compatibility of such policies with India’s NDC. However, in some cases, the Supreme Court has held that if the policy in question impacts the environment and the welfare of the people, the court need not show as much deference to the government.95 If petitioners can establish that a fundamental right has been violated, and that the government policy is likely to harm the environment significantly, the courts may be inclined to review the policy. The NDC could be a useful reference point in litigation relating to forest conservation. Legal challenges to forest clearances may refer to India’s NDC to substantiate the argument that India needs to protect its forest and permit its use or diversion only for a very small set of essential activities. Forest clearances are granted on the condition that compensatory afforestation will be undertaken elsewhere. But compensatory afforestation is often not undertaken, and several other irregularities and illegalities have been found in the process.96 Till date there have been no judicial decisions based on India’s commitments under the Paris Agreement, although the Supreme Court in a 2019 judgment refers to India’s NDC.97 In this case, an environmental clearance granted for the construction of a new airport was suspended by the Court, and while discussing some of the international legal instruments and documents on environmental governance, it refers to the Paris Agreement. However, the judgment did not pronounce on the justiciability of NDC. While there is no specific statutory obligation which requires public or private actors to take climate actions or meet India’s NDC targets, it could be argued that major GHG emitters—such as thermal power plants, and certain activities—such as clearing forests, contribute to the ‘environmental consequence’ of climate change,

 BALCO Employees’ Union (Regd.) v Union of India & Ors. (2002) 2 SCC 333; Peerless General Finance and Investment Co. Ltd. & Anr. v Reserve Bank of India (1992) 2 SCC 343; M/s Prag Ice & Oil Mills v Union of India (1978) 3 SCC 459. 93  Directorate of Film Festivals v Gaurav Ashwin Jain (2007) 4 SCC 737, para 16. 94  Bajaj Hindustan Ltd. v Sir Shadi Lal Enterprises Ltd. (2011) 1 SCC 640; State of MP v Nandlal Jaiswal (1986) 4 SCC 566. 95  Sachidanand Pandey v State of WB (1987) 2 SCC 295; G Sundarrajan v Union of India (2013) 6 SCC 620. 96  Comptroller and Auditor General of India (2013). 97  Hanuman Laxman Aroskar v Union of India 2019 SCC Online SC 441. 92

360

S. Ghosh

thereby establishing the National Green Tribunal’s jurisdiction on climate claims.98 In a case before the NGT, a minor sought directions to the Central and State Governments, as well as to statutory bodies involved in the environmental and forest clearance process, to consider climate-related issues in their decision-making.99 The applicant also sought directions for the preparation of an inventory of all major GHG emitters in the country and formulation of mitigation targets based on a ‘carbon budget’. Referring to India’s NDC with regard to increase in forest cover, the applicant sought directions to ensure successful afforestation in lieu of lost forest cover before further forest land was allowed to be cleared. Unfortunately, the final order of the NGT did not engage with the important issues raised in the application, and instead presumed the existing policies of the government to be sufficient.100

3.2 Human Rights Violation as Grounds in Climate Litigation An Indian court is yet to direct a public or private actor to take mitigation or adaptation measures specifically in furtherance of a human right. However, courts are likely to adopt a sympathetic approach if human rights-based claims are raised before them, as there is a rich Indian jurisprudence on protection of human rights based on constitutionally protected fundamental rights. Climate change could potentially infringe a large number of human rights such as the right to life, right to food, right to water and sanitation, right to health, right to livelihood, right to development etc. Most of these rights, or at least facets of these rights, are guaranteed under Indian law, and Indian courts have actively extended protection to them.101 In particular, as discussed above, several environmental rights have been fashioned out of the fundamental right to life, and at least a sub-set of these rights can form the basis of climate litigation before Indian courts.102 In 2015, NGT acknowledged this when it observed, ‘[k]eeping in view the constitutional mandate, the content in Article 21 read with Article 48A and 51(g), it is the right of a person to claim protection of the environment including the steps that can be taken for avoiding global warming and environment pollutant’.103 The principle of inter-generational equity (IGE) is part of Indian law, and Indian courts have often expressed their concern about future generations and the poor state of the environment they will inherit. Read with environmental rights, and other environmental legal principles like sustainable development principle, polluter pays

 See NGT Act, s 2(m).  Ridhima Pandey v Union of India, Application No. 187/2017, NGT (Principal Bench). 100  Ridhima Pandey v Union of India, ibid, Order dated 15 January 2019. 101  For e.g., ND Jayal v Union of India (2004) 9 SCC 362. 102  Text accompanying n 78–81 in Rajamani (2013). 103  Indian Council for Enviro-legal Action v MoEFCC, Application No. 170/2014, Judgment dated 10 December 2015, NGT (Principal Bench). 98 99

Climate Litigation in India

361

principle, precautionary principle and the public trust doctrine, the IGE principle provides a valuable basis for potential climate litigation.104 A case pending before the Supreme Court on air pollution in Delhi and surrounding areas is particularly instructive on what the court’s approach could be in a litigation involving an array of rights, including those of future generations; the environmental harm being caused by multiple actors over an extended period of time; and attribution of liability being complicated for a variety of reasons.105 In this case, three minors have approached the court seeking its intervention in controlling air pollution that is being caused by a variety of sources—vehicles, firecrackers, construction dust, seasonal crop burning etc. The petition raises various grounds, highlighting that children are particularly vulnerable to air pollution impacts. The Court has passed significant interim orders, including a ban on the bursting of firecrackers during the festival of Diwali.106 In one of its orders, the Court while highlighting the health impacts of air pollution, referred to the range of rights affected: ‘we are not merely referring to the inconvenience caused to people, but to abject deprivation of a range of constitutionally embedded rights that the residents of [National Capital Region] ought to have enjoyed…. the grim situation of air quality adversely affected the right to education, work, health and ultimately, the right to life of the citizens, and this Court is constitutionally bound to address their grave concerns’.107 The Court accepted the contention that air pollution was attributable to several factors besides firecrackers, but found it defensible to focus on the immediate concern, prohibit bursting of firecrackers for a defined time period, and then review the order, if necessary based on scientific assessments of the impact of the ban.108 Separately, the Court recognised the rights of the residents of Delhi and neighbouring areas to breathe unpolluted air, and their right to the protection of their health.109

3.3 Claims Against Private and Public Actors for Inadequate Mitigation Action Even though GHGs are not categorised as air pollutants under the Air Act, Indian courts have been open to regulating GHG emissions because of their environmental impacts. The NGT in particular has passed several orders110: regulating tourism and

 Rajamani and Ghosh (2011), pp. 149–152.  Arjun Gopal v Union of India WP (C) No. 728/2015. 106  Arjun Gopal v Union of India 2017 SCC OnLine SC 1203. 107  Arjun Gopal v Union of India (2017) 1 SCC 412, para 10. 108  Arjun Gopal v Union of India 2017 SCC OnLine SC 1203. 109  Arjun Gopal v Union of India 2017 SCC OnLine SC 1071, para 70. 110  Ghosh (2016). 104 105

362

S. Ghosh

vehicular pollution near Himalayan glaciers,111 directing proper implementation of a government notification setting the maximum ash content in coal used in thermal power plants,112 finding a government notification exempting the construction industry (responsible for 22% India’s annual GHG emission) from the environmental clearance process to be in derogation of India’s commitment under the Paris Agreement and the Rio Declaration113; and allowing specific cases of violation of the NAPCC, its impact and ‘climatic consequences’ to be filed in future.114 The government’s big push towards renewable energy has also found support in the judiciary. In a case before the Supreme Court, certain companies challenged a regulation issued by the State Electricity Regulatory Commission placing an obligation on them to purchase energy generated from renewable sources.115 The Supreme Court upheld the legality of the regulation, and recognised larger public interest in reducing pollution and mitigating GHGs by encouraging renewable energy sources. Regulatory approvals granted to an industry or an activity which is likely to release GHGs can be challenged in Indian courts.116 This could be a statutory appeal in the NGT or a writ of mandamus in the High Court or Supreme Court seeking directions against a public actor, or even against a private actor in certain circumstances. While challenging regulatory approvals, issues relating to compliance of procedural requirements such as conducting public consultation, undertaking EIA studies in accordance with the law, dissemination of EIA studies and other relevant information amongst affected communities, and public notice of grant of approval, may all be raised. For violation of procedural environmental rights, Indian courts have set aside regulatory approvals or put them in abeyance till the illegality is removed.117

 Court on its own Motion v. State of Himachal Pradesh, Application No. 237/2013, Judgment dated 6 February 2014, NGT (Principal Bench). 112  Ratandeep Rangari v. State of Maharashtra, Application No. 19/2014, Judgment dated 15 October 2015, NGT (Western Bench). The Tribunal observed that an ‘important co-benefit of such on initiative would be lesser GHG emissions i.e. lesser carbon footprint in thermal power generation’. 113  Society for Protection of Environment & Biodiversity v Union of India, Application No. 677/2016, Judgment dated 8 December 2017, NGT (Principal Bench). 114  Gaurav Kumar Bansal v Union of India & Others, Application No. 498/2014, Order dated 23 July 2015, NGT (Principal Bench). 115  Hindustan Zinc Ltd. v Rajasthan Electricity Regulatory Commission (2015) 12 SCC 611. 116  For e.g. in Om Dutt Singh v State of Uttar Pradesh, Application No. 521/2014, Judgment dated 7 May 2015, NGT (Principal Bench), the applicants while challenging the construction of a massive irrigation project raised the ground that submergence of large tracts of forest land would lead to methane emissions. 117  See Ghosh (2013), Rajamani and Ghosh (2016) and Ram Mohan and Pabreja (2016). 111

Climate Litigation in India

363

3.4 Claims Against Private and Public Actors for Taking Inadequate Adaptation Measures India, given its geographical characteristics and low and uneven levels of development, is particularly vulnerable to impacts of climate change. Some of the missions under the NAPCC such as those on sustainable habitat, water and sustainable agriculture are designed to promote adaptation actions. Although certain national environmental laws like the CRZ Notification are relevant, legislative and administrative competence to take decisions relating to a majority of adaptation measures—regulation of ground water use and distribution, building and planning laws, sanitation and health—lie with the state governments and the local authorities. India’s rights jurisprudence discussed above provides several hooks for litigation demanding adaptation action or highlighting failure of the government to take appropriate action. Although there have been no decisions by Indian courts specifically discussing adequacy of climate adaptation measures, judgments on the implementation of the CRZ Notification and EIA Notification are instructive on what the judiciary’s approach may be when faced with adaptation claims. In a 1996 judgment, the Supreme Court struck down the government’s amendments to the CRZ Notification diluting the protection afforded to the coastline.118 The Court held that the amendments were against public interest, not in line with existing expert recommendations, and gave the government unchecked discretion (to relax prohibitions on developments on the coasts) that could lead to serious ecological damage. The Court also directed the government to complete the coastal planning exercise in a time-bound manner and ensure the enforcement of legal provisions relating to the coasts. In another case, the Supreme Court observed that the CRZ Notifications have been issued in the interest of the environment and coastal ecology, and violation of such regulations should not be lightly condoned.119 The NGT has considered the impact of large infrastructure projects on the coastline in two cases. Both these cases were filed by fisherfolk, residing on the western coast of India, whose livelihoods were affected by the projects. In the first case, the applicants sought compensation for loss of livelihood due to large-scale destruction of mangroves which significantly affected fish breeding. The infrastructure projects in question included a port and a major gas pipeline. The Tribunal awarded compensation to the fisherfolk for loss of their livelihood and imposed environmental restoration costs, recoverable from the project owners.120 Although in this case the respondent parties were government companies, the NGT’s order would have been the same even against private actors as the NGT Act does not differentiate between those responsible for environmental damage.

 Indian Council for Enviro-legal Action v Union of India (1996) 5 SCC 281; see also Ghosh (2017).  Piedade Filomena Gonsalves v State of Goa (2004) 3 SCC 445. 120  Ramdas Janardan Koli v Secretary, Ministry of Environment and Forests, Application No. 19/2013, Judgment dated 27 February 2015, NGT (Western Bench). 118 119

364

S. Ghosh

In the second case, the applicants challenged the environmental and CRZ clearances granted to a deepwater container port project in an ecologically fragile area.121 One of the grounds taken was that an earlier version of the CRZ Notification (1991) considered areas of outstanding natural beauty, and those likely to be inundated by sea-level rise caused by climate change to fall under a ‘no-development zone’. The port project is coming up in such an area. The 2011 Notification did not include such a criterion, but according to the applicants that criteria should be applied, and should be used to set aside the regulatory approvals. The Tribunal held that while it could judicially review the Notification if necessary, the applicants were seeking judicial law-making, which was impermissible. This case is pertinent as it establishes the Tribunal’s jurisdiction to judicially review a secondary legislation, and a potential ground for such a review could be the inadequacy of envisaged adaptation actions.122 There have been a number of judicial decisions on restricting construction on river flood plains,123 evaluating the impacts of hydro-power projects and other constructions along Himalayan river basins,124 and awarding compensation for loss of life and property due to floods.125 These judgments are relevant for adaptation claims before courts.

4 Conclusion Based on the review of caselaw, laws, policies and judicial practice and procedure, four issues may be identified with regard to individuals potentially bringing climate claims before Indian courts: First, rules of locus standi before the Supreme Court and the High Courts (while exercising their writ jurisdiction), and the NGT, are fairly liberal, and persons aggrieved by an environmental harm—prevailing or imminent—can approach these courts even if they are not directly affected. The judiciary in cases affecting public interest has been amenable to issuing innovative orders, ignoring procedural niceties and ‘encroaching’ in policy making spaces (albeit mostly in response to executive apathy).

 Wilfred J v Ministry of Environment & Forests, Application No. 74/2014, Judgment dated 7 July 2014 and 2 September 2016, NGT (Principal Bench). 122  NGT reviewed a government notification excluding the construction sector from the purview of the EIA Notification in Society for Protection of Environment & Biodiversity (n 113). 123  Manoj Misra v Union of India, Application No. 6/2012, Judgment dated 13 January 2015, NGT (Principal Bench); MC Mehta v Union of India, Application No. 200/2014, Judgment dated 13 July 2017, NGT (Principal Bench). 124  Alaknanda Hydropower Co. Ltd. v Anuj Joshi (2014) 1 SCC 769. 125  Srinagar Bandh Aapda Sangharsh Samiti v Alaknanda Hydro Power Co. Ltd, Application No. 3/2014, Judgment dated 19 August 2016, NGT (Principal Bench). In this case, the NGT accepted that the floods leading to the damage was a fortuitous event, but the impact on the applicants was aggravated due to improper muck disposal by the private power company. 121

Climate Litigation in India

365

Second, Indian courts have typically adopted an expansive interpretation of fundamental rights as well as statutory rights. Claims based on well-recognised human rights such as right to livelihood, right to health and right to water, and relying on well-established environmental legal principles like sustainable development, precautionary principle, public trust doctrine, inter-generational equity and polluter pays principle—are likely to find a sympathetic judicial ear. Third, although Indian courts are known for their pro-environment decisions, on several occasions they have been highly deferential to the government’s development agenda.126 Three arguments that often tilt the balance in favour of decisions with adverse social and environmental consequences are: first, infrastructure development is necessary to provide access to basic necessities to millions, and benefits outweigh environmental costs; second, a huge investment has already been made in the project and stopping the project would lead to unnecessary losses that are not in public interest, leaving the court with a fait accompli situation; and third, imposition of regulatory conditions such as payment for compensatory afforestation, corporate social responsibility (CSR) activities, installation of pollution abatement devices and reporting are sufficient to minimise or justify environmental damage. Given this context, Indian courts may not always prove to be an effective forum to challenge infrastructure projects that are likely to lock India into an emissions-intensive pathway. Fourth, the Indian judiciary is (in)famous for its overflowing docket and the time it takes to finally decide a case. Although in some cases, courts have agreed to pass interim injunctions against projects, it is not the norm. Furthermore, the outcome of cases in India is highly unpredictable. Even though India follows the common law tradition of respecting judicial precedent, in reality case outcomes vary based on various legal and non-legal factors. Non-legal factors include the adjudicatory forum, the adjudicator, the lawyers arguing the case, what is at stake and for whom. Quite apart from the unpredictability of the judicial outcome, there is uncertainty as to whether an environmentally and socially favourable judicial outcome will ever be fully enforced.

References Anderson MR (1998) Individual rights to environmental protection in India. In: Boyle A, Anderson MR (eds) Human rights approaches to environmental protection. Clarendon Press, London, p 199 Baxi U (1985) Taking suffering seriously: social action litigation in the Supreme Court of India. Third World Leg Stud 4:107–132

 See for e.g., Narmada Bachao Andolan v Union of India (2000) 10 SCC 664 (permitting construction of a dam project); Lafarge (n 72) (permitting mining); Pandalaneni Srimannarayana v State of Andhra Pradesh, Application No. 171/2015, Judgment dated 17 November 2017, NGT (Principal Bench) (permitting the development of new capital city in the state of Andhra Pradesh). 126

366

S. Ghosh

Bhatia G (2016) Directive principles of state policy. In: Choudhry S, Khosla M, Mehta PB (eds) The Oxford handbook of the Indian Constitution. Oxford University Press, Oxford, pp 644–661 Bhullar L (2019) The Judiciary and the right to environment in India: Past, present and the future. In: Ghosh S (ed) Indian environmental law: key concepts and principles. Orient BlackSwan, New Delhi, pp 21–54 Centre for Coastal Zone Management and Coastal Shelter Belt (2019) Database on coastal state in India. http://iomenvis.nic.in/index2.aspx?slid=758&sublinkid=119&langid=1&mid=1. Accessed 12 June 2019 Centre for Policy Research (27 July 2016) Understanding the National Green Tribunal: In Conversation with Shibani Ghosh. http://cprindia.org/news/5400. Accessed 12 June 2019 Chugh A (2005) Fundamental rights – vertical or horizontal? (2005) SCC (J) 7:9 Climate Action Tracker (2018) India. http://climateactiontracker.org/countries/india.html. Accessed 29 May 2019 Climate Watch (2019) Historical GHG emissions. https://www.climatewatchdata.org/ghg-emissions. Accessed 14 June 2019 Comptroller and Auditor General of India (2013) Report No. 21 of 2013 - Compliance Audit on Compensatory Afforestation in India. Union Government, Ministry of Environment and Forests Cunningham CD (1987) Public interest litigation in Indian Supreme Court: a study in the light of American experience. J Indian Law Inst 29(4):494–523 Desai AH, Muralidhar S (2000) Public interest litigation: potential and problems. In: Kirpal BN et al (eds) Supreme but not infallible: essays in honour of the Supreme Court of India. Oxford University Press, Oxford, pp 159–192 Dubash N, Rajamani L (2015) Multilateral diplomacy in climate change. In: Malone DM, Raja Mohan C, Raghavan S (eds) The Oxford handbook of Indian foreign policy. Oxford University Press, Oxford, pp 663–677 Faure MG, Raja AV (2010) Effectiveness of environmental public interest litigation in India: determining the key variables. Fordham Environ Law Rev 21(2):239–294 Forest Survey of India (2018) State of Forest Report 2017. Ministry of Environment, Forest and Climate Change Gardbaum S (2016) Horizontal effect. In: Choudhry S, Khosla M, Mehta PB (eds) The Oxford handbook of the Indian Constitution. Oxford University Press, Oxford, pp 600–626 Ghosh S (2013) Demystifying the environmental clearance process. NUJS Law Rev 6(3):433–480 Ghosh S (15 January 2016) Climate litigation in India: gaining traction? The Climate Initiative Blog. https://cprclimateinitiative.wordpress.com/2016/01/15/climate-litigation-in-india/. Accessed 12 June 2019 Ghosh S (16 June 2017) The Supreme Court’s guiding principles for coastal regulation. CPR-­ Namati Environment Justice Program. http://www.cprindia.org/news/6240. Accessed 12 June 2019 Ghosh S (2019) Procedural environmental rights in Indian law. In: Ghosh S (ed) Indian environmental law: key concepts and principles. Orient BlackSwan, New Delhi, pp 55–103 Goswami U (9 December 2014) India to enact new climate legislation: Prakash Javadekar. Economic Times Government of India (2015a) India’s intended nationally determined contribution: working towards Climate Justice. http://www4.unfccc.int/submissions/INDC/Published%20Documents/ India/1/INDIA%20INDC%20TO%20UNFCCC.pdf. Accessed 14 June 2019 Government of India (2015b) India: first biennial update report to the United Nations Framework Convention on Climate Change Hegde VG (2010) Indian courts and international law. Leiden J Int Law 23(1):53–77 Indian Network for Climate Change Assessment (2010) Climate Change and India: A 4X4 Assessment - a sectoral and regional analysis for 2030s. Ministry of Environment & Forests Mazoomdar J (15 February 2018) In fact: why India doesn’t lose forest cover. Indian Express Ministry of Power, GoI (2019) Power sector at a glance: all India. https://powermin.nic.in/en/ content/power-sector-glance-all-india. Accessed 12 June 2019

Climate Litigation in India

367

NITI Aayog, GoI (2017) Draft National Energy Policy. https://niti.gov.in/writereaddata/files/new_ initiatives/NEP-ID_27.06.2017.pdf. Accessed 12 June 2019 Prime Minister’s Council on Climate Change, GoI (2008) National Action Plan on Climate Change PTI (10 April 2012) Private Member’s Bill on Climate Change presented. Economic Times Rajamani L (2007) The right to environmental protection in India: many a slip between the cup and the lip? Rev Eur Community Int Environ Law 16(3):274–286 Rajamani L (2013) Rights based climate litigation in the Indian courts: potential, prospects & potential problems. Centre for Policy Research, New Delhi. Working Paper 2013/1 Rajamani L (2016) International law and the constitutional schema. In: Choudhry S, Khosla M, Mehta PB (eds) The Oxford handbook of the Indian Constitution. Oxford University Press, Oxford, pp 143–159 Rajamani L, Ghosh S (2011) India. In: Rajamani L, Goldberg S, Brunnée J (eds) Climate change liability: transnational law and practice. Cambridge University Press, Cambridge, pp 139–177 Rajamani L, Ghosh S (2016) Public participation in Indian environmental law. In: Barrera-­ Hernandez L et al (eds) Sharing the costs and benefits of energy and resource activity: legal change and impact on communities. Oxford University Press, Oxford, pp 393–409 Ram Mohan MP, Pabreja H (2016) Public hearings in environmental clearance process; review of judicial intervention. Econ Polit Wkly 51(50):68–75 Rosencranz A, Sahu G (2014) Assessing the National Green Tribunal after four years. J Indian Law Soc 5:191–200 Sathe SP (2015) Public participation in judicial process: new trends in law of Locus Standi with special reference to administrative law. In: Narayan S (ed) Selected works of SP Sathe: volume II - judicial power and processes. Oxford University Press, Oxford, pp 408–421 Sengar DS (2003) PIL to ensure that institutions behave lawfully: public access to environmental justice in India. J Indian Law Inst 45(1):62–79 Sengupta S (2012) International climate negotiations and India’s role. In: Dubash N (ed) Handbook of climate change and India. Oxford University Press, Oxford, pp 101–117 Setalvad AM (2000) The Supreme Court on Human Rights and Social Justice: changing perspectives. In: Kirpal BN et al (eds) Supreme but not infallible – essays in honour of the Supreme Court of India. Oxford University Press, Oxford, pp 232–255 Subramanium G (2016) Writs and remedies. In: Choudhry S, Khosla M, Mehta PB (eds) The Oxford handbook of the Indian Constitution. Oxford University Press, Oxford, pp 614–626 United Nations Development Programme (2018) Human Development Reports, New York. http:// hdr.undp.org/en/countries/profiles/IND. Accessed 12 June 2019 World Bank (2019) CO2 emissions (metric tons per capita). https://data.worldbank.org/indicator/ EN.ATM.CO2E.PC. Accessed 24 June 2019 Shibani Ghosh  is a Fellow at the Centre for Policy Research (CPR), a New Delhi-based think tank, and an Advocate-on-Record, Supreme Court of India. She specialises in environmental law, and appears in cases before the Supreme Court and the National Green Tribunal. At CPR, she researches and writes on issues relating to environmental law, regulation and governance. She has authored several articles, chapters and opinion pieces on environmental issues. She has edited a volume titled ‘Indian Environmental Law: Key Concepts and Principles’ (Orient Black Swan, 2019) which provides in-depth case-law based analysis of Indian environmental jurisprudence. Shibani has been a Sustainability Science Fellow at the Harvard Kennedy School (2014–2015), and a visiting faculty at the TERI University, New Delhi, and the RICS School of Built Environment, NOIDA, where she taught environmental law. She is a Rhodes Scholar and holds a Bachelor of Civil Law (BCL) and a Master of Science in Environmental Change and Management (MSc ECM) from the University of Oxford. Her undergraduate degree in law (BA LlB) is from the National University of Juridical Sciences, Kolkata. She can be reached at [email protected].

Climate Change and the Individual: A Perspective of China Tianbao Qin and Meng Zhang

Abstract  As a state where the ruling communist party operates in a central planning mode, the policies of the ruling party and central government exert a great influence on national affairs with a long historical tradition in China, which can be even more obviously illustrated in the issues of climate change. But on the other hand, there is still no specific national climate legislation in China, which is currently the main barrier and challenge in China’s legal system for an individual to bring a case against the government for allegedly not complying with its international climate change obligations. As a concept developing gradually in various countries in recent years, ‘Climate litigation’ is not strictly a term in environmental judicial practice in China. In the long run, to improve the development of climate litigation, China is required to design a climate litigation system within the framework of Environmental Public Litigation, which is tailored specifically to climate change-­related cases.

1 Introduction Climate change is a major challenge for the entire international community in regard to our survival and development in the twenty-first century. It has become the global consensus and trend to proactively address climate change and promote the green and low-carbon development. As the largest developing country with a large population, China has complex and diverse terrain conditions, faces unbalanced,

T. Qin (*) Research Institute of Environmental Law (RIEL), Wuhan University, Wuhan, China China Institute of Boundary and Ocean Studies (CIBOS), Wuhan University, Wuhan, China M. Zhang Centre for Environmental and Energy Law, Ghent University, Ghent, Belgium Wuhan University, Wuhan, China e-mail: [email protected] © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_19

369

370

T. Qin and M. Zhang

uncoordinated and unsustainable problems in the economic development, and is vulnerable to the adverse effects of climate change. An active response to climate change is not only China’s responsibility for extensively participating in global governance and building the common destiny of mankind, but also the inherent requirement to achieve sustainable development. In 2015, China formulated and submitted the Enhanced Actions on Climate Change: China’s Intended Nationally Determined Contributions (INDC) to the UNFCCC, becoming the first developing country to submit such a document, in which it declared that China will achieve the peaking of carbon dioxide emissions around 2030 and making best efforts to peak early, and lower carbon dioxide emissions per unit of GDP by 60 to 65% from the 2005 level, which provides a medium to long-term direction for China’s work in combating climate change.1 China also made active efforts to put the Paris Agreement into effect. In April 2016, Chinese Vice Premier Zhang Gaoli, as the special envoy of Chinese President Xi Jinping, attended the high-level signing ceremony of the Paris Agreement at the United Nations Headquarters in New York,2 and China became the first-batch countries to sign the Paris Agreement. In September 2016, China held a ceremony in Hangzhou to deposit the legal instruments of ratifying the Paris Agreement, where Chinese President Xi Jinping and US former President Barack Obama submitted the respective ratification instruments to the Secretary-General of the United Nations.3 With the active promotion of countries such as China, most signatories to the Paris Agreement accelerated the ratification process, and the Paris Agreement formally entered into force on November 4, 2016. The Chinese Government has always attached great importance to tackling climate change and strengthened the work on low-carbon development and climate change adaptation since the beginning of the 13th Five-Year Plan (FYP) period (2016–2020). As an important part of the 5-year plan for national economic and social development, the Work Plan for Controlling Greenhouse Gas Emissions During the 13th Five-Year Plan Period has been formulated and implemented. Regional governments formulated and decomposed greenhouse gases (GHG) controlling targets, ministries and departments implemented policies and measures, sectors and enterprises took innovative actions, and the public participated actively.4

 Enhanced Actions on Climate Change: China’s Intended Nationally Determined Contributions, Government of China, 2015. 2  See, Zhang Gaoli Attends High-level Signing Ceremony of the Paris Agreement on Climate Change, 23-04-2016, ministry of Foreign Affairs, the People’s Republic of China http://www. fmprc.gov.cn/mfa_eng/zxxx_662805/t1358486.shtml accessed 14 November 2017. 3  See, Xi Jinping, President Barack Obama of US and UN Secretary-General Ban Ki-moon Jointly Attend Deposit of Instruments of Joining the Paris Agreement, 03-09-2016, ministry of Foreign Affairs, the People’s Republic of China http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/ t1358486.shtml accessed 14 November 2017. 4  Work Plan for Controlling Greenhouse Gas Emissions During the 13th Five-Year Plan Period, State Council of the People’s Republic of China, 04-11-2016. 1

Climate Change and the Individual: A Perspective of China

371

In 2016, the carbon intensity decreased by 6.6% from the 2015 level and the proportion of non-fossil energy sources increased to 13.3%.5 The tasks for afforestation and forestry protection were overfulfilled, the capacity for climate change adaptation and disaster prevention and alleviation were further strengthened and the systems and mechanisms for addressing climate change were improved.6 The carbon market construction is underway in an orderly manner and the first phase of national ETS has already been officially launched in December 2017.7 It is worth noting that the 19th National Congress of Communist Party of China (CPC) raised higher requirements for addressing global climate change and promoting low-carbon development from the perspective of China and the world. In the future, we will develop a green, low-carbon and circular economy, build a clean, safe, efficient and low-carbon energy system, advocate a simple, moderate, green and low-carbon lifestyle, accelerate the formation of green low-carbon new growth drivers, promote the improvement of development quality, actively fulfill the mitigation commitment, and achieve the NDC as scheduled.8

2 Legal Basis: Policy and Regulatory Framework In China’s current legal system, the environmental and energy policies and regulatory framework provide the legal basis for individuals to bring a case against governmental, public and private actors concerning the issues of climate change.

2.1 Policies and Plans China is a state where the ruling communist party operates in a central planning mode, thus policies of the ruling party and central government exert a great influence on national affairs with a long historical tradition, which can be even more obviously illustrated in the issues of climate change. In order to accelerate green and low carbon development, ensure the fulfillment of low-carbon development objectives and tasks set in the Outline of the 13th Five-­ Year Plan and promote China’s carbon dioxide emissions to peak by around 2030  China’s Policies and Actions for Addressing Climate Change (2017), National Development and Reform Commission (NDRC), 2017. 6  Ibid. 7  See, China Unveils an Ambitious Plan to Curb Climate Change Emissions, Keith Bradsher, Lisa Friedman, the New York Times https://cn.nytimes.com/china/20171220/china-carbon-market-climate-change-emissions/dual/ accessed 14 November 2017. 8  Report of the 19th National Congress of the Communist Party of China, 18-10-2017, China Daily http://www.chinadaily.com.cn/interface/flipboard/1142846/2017-11-06/cd_34188086.html accessed 14 November 2017. 5

372

T. Qin and M. Zhang

and strive to bring carbon emissions to the peak as soon as possible, the Work Plan for the Control of Greenhouse Gas Emissions during the 13th Five-Year Period was issued by the State Council on October 27, 2016,9 which is the most important policy guideline to address climate change in China during the 13th Five-Year Plan Period (2016–2020). According to the plan, by 2020, the level of carbon dioxide emissions per unit of GDP will be 18 percent lower than in 2015. To do this, a low carbon energy revolution will be carried out across the nation. By 2020, carbon emissions will be restrained as total energy consumption will be kept within five billion tons of standard coal and energy consumption per unit of GDP will be 15% lower than in 2015.10 Another move is to promote energy conservation in industrial, construction, public transport sectors. On-fossil energy will also be developed, including nuclear power, wind power, solar power, geothermal power, and biomass power. Traditional fossil energy consumption will be optimized as total coal consumption in 2020 will be kept at 4.2 billion tons.11 Efforts will also be made to create low carbon industries, and by 2020 carbon dioxide emissions per industrial added value will be 22% lower than in 2015. Initiatives such as zero use of chemical fertilizers will be carried out to promote low carbon agriculture. And to create more carbon sinks, efforts will be made in forestation so that the forest coverage rate across the nation will reach 23.04% by 2020. Urbanization featuring intelligent, green and low carbon development will be underway while the nation promotes a low carbon modern transportation system. Effective recycling and disposal of household wastes and the promotion of a low carbon lifestyle will also contribute to the nation’s growing efforts in promoting low carbon green development.12 The nation will also witness the establishment and development of a carbon emission trading system which will cover eight industrial sectors such as petrochemical, steel, paper making, and aviation industries.13 China, in line with the Plan, will put more efforts on encouraging low carbon technology innovation, formulate related laws, regulations and standard systems, and carry out international cooperation.14

 See, The State Council issues the Work Plan for the Control of Greenhouse Gas Emissions during the 13th Five-Year Period, 04-11-2016, Xinhuanet http://www.xinhuanet.com/politics/201611/04/c_1119853661.htm accessed 14 November 2017. 10  Work Plan for Controlling Greenhouse Gas Emissions During the 13th Five-Year Plan Period, State Council of the People’s Republic of China, 04-11-2016. http://www.gov.cn/zhengce/content/2016-11/04/content_5128619.htm accessed 14 November 2017. 11  ibid. 12  ibid. 13  ibid. 14  ibid. 9

Climate Change and the Individual: A Perspective of China

373

2.2 Laws China does not currently have any climate-specific legislation; therefore, its enforcement models will require further development in order to address many of the critical elements of a climate mitigation/adaptation enforcement regime. Perhaps more positively, the study revealed that, in many instances, China still has a strong foundation of existing environmental and energy law upon which climate-specific regimes may be established. And the current domestic environmental and energy regulatory frameworks such as planning approvals, pollution prevention and environmental impact assessment legislation may all offer a basis for addressing climate change. During the last few decades, China has created a well-established framework of environmental legislation that takes the Constitution of the People’s Republic of China as the foundation and the Environmental Protection Law of the People’s Republic of China as the main body while incorporating two departmental branches of legislation: one to prevent and control pollution and the other to conserve nature and biodiversity. 2.2.1 Climate Change in the Constitution15 In China’s legislation framework, the Constitution is the core. The present Constitution, on the basis of the 1954 Constitution, was adopted at the Fifth Session of the Fifth National People’s Congress (NPC) in 1982 after public discussion. As the fundamental law of the state, the Constitution has supreme legal authority. The concept of ‘environmental protection’ had been introduced earlier, but in the 1982 Constitution, environmental protection became the fundamental duty of the state with pollution prevention and natural resources protection becoming the main realms of environmental law. Article 26 clearly asserts: ‘the state protects and improves the living environment and the ecological environment, and prevents and remedies pollution and other public hazards’.16 Article 9 also states that ‘the state ensures the rational use of natural resources and protects rare animals and plants; the appropriation or damage of natural resources by any organization or individual by whatever means is prohibited’.17 There is no doubt that climate is a very crucial element for the ‘living environment and the ecological environment’. In this way, the Constitution clearly establishes the basic framework for addressing climate change, providing the top-level guidelines for the future climate legislation and a legal basis for current climate mitigation/adaptation.

 This work builds on Qin and Zhang (2017), pp. 17–30.  Constitution of the P.R. China, 1982. 17  Ibid. 15 16

374

T. Qin and M. Zhang

2.2.2 Climate Change in Environmental Protection Law18 The overall framework for China’s environmental legislation is stipulated in the Environmental Protection Law, which was passed provisionally in 1979, amended and enacted in an advanced form in 1989, and then passed in its latest final form in 2014. In order to cope with the challenges arising from increasingly severe pollution and environmental deterioration, a new round of discussions to amend the PRC Environmental Protection Law (1989) was begun in 2011 with the aim of incorporating the results into the current legislative plan. On 24 April 2014, after 3 years of waiting and several reviews, the Chinese authority approved the first amendment to the National Environmental Protection Law in 25 years. The new Environmental Protection Law, a significant milestone, has already been in effect since January 2015. The Environmental Protection Law covers a broad spectrum of environmental issues, ranging from protection against pollutants and control of pollutants to the protection of wildlife, and provides basic principles for both preventive and rehabilitative measures. The regulatory measures of this law address water, air, solid waste and noise pollution, and establish a system for environmental management, monitoring, liability and enforcement. Specifically, this law established and improved legal systems by setting up general requirements for environmental impact assessment, synchronous project design, construction and completion of safety and sanitation facilities, pollution discharge declaration and registration, a pollution discharge fee scheme, elimination or control of pollution within a prescribed period of time, control of levels of pollution and pollution discharge permission, and legal systems concerning the planning, ownership, permission, paid use and energy conservation assessment of natural resources (Law of PRC on Environmental Protection). At the same time, the law also stipulates the scope of the duties and obligations of environmental management authorities.19 Without doubt, the Environmental Protection Law of the People’s Republic of China is the cardinal law for environmental protection in China, laying down the basic principles for the coordinated development of economic construction, social development and environmental protection, while stipulating that governments at all levels, all organizations and all individuals have the right and duty to protect the environment. 2.2.3 Climate Change in Pollution Prevention and Control Legislation20 Since environmental pollution, especially related to air, causes more serious problems than China’s other environmental challenges, the environmental legislation focuses more attention on pollution prevention. This is the focal point of the current

 This work builds on Qin and Zhang (2017), pp. 17–30.  Environmental Protection Law, P.R. China, enacted in 1989, last amended in 2014. 20  See n. 18. 18 19

Climate Change and the Individual: A Perspective of China

375

environmental protection strategy, and the legislation seeks to control the environmental pollutions effectively and to prevent even worse problems from arising. China has become the world’s second-largest economy, but decades of breakneck economic growth have left many of its rivers polluted and its cities perennially shrouded in smog. Indeed, air pollution clearly manifest the effects of the last 30 years of industrialization in China. Of the many potentially dangerous pollutants, air pollution tends to trigger public crises, arousing great concern at both international and national levels. Various factors have contributed to China’s pollution crises in this area, although perhaps most significant is the increasing consumption of fuel triggered by rapid economic development and out-of-date technologies. Thus, the guidelines within China’s anti-pollution legislation regarding air pollution are undergoing major changes. The changes involve a number of shifts: from attempting to control only the resulting pollution to establishing control of the origin and the whole process of pollution as well; from regulating only the concentration of the pollutants to regulating both the concentration and total amount of pollutants; from controlling the source point of pollution to ensuring the comprehensive control of river valleys or entire regions, and from simply addressing the pollution problem of one corporation to adjusting the entire industrial structure by promoting clean production and developing a cyclical economy. As a necessary requirement for these controls, climate change is strongly linked with air pollution prevention and control legislation. the Air Pollution Prevention and Control Law (2000)21 and The Administration Regulations of Ozone Depleting Substances (2010)22 have played a key role in limiting air pollution in China. Originally, the legislation focused on air pollution in workplaces, but over the years, laws have been passed that expand into many aspects of this field. For example, in 2015, after a lengthy period of waiting and debate, the Air Pollution Prevention and Control Law was amended by the NPC standing committee in order to address the new challenges arising from air pollution and to fight the serious smog affecting Chinese cities. However, according to current air pollution prevention and control legislation, Green House Gases are not regarded as pollutants, which is the biggest challenge for the air legislation to effectively regulate the issues of climate change. 2.2.4 Climate Change in Nature and Biodiversity Conservation Legislation23 Apparently, climate change has a significant influence on biodiversity. China is one of the 12 countries with the richest biodiversity in the world. Due to its vast land area, China has various and complicated types of ecosystems, with abundant plant and animal resources. The number of higher plant species in China ranks third in the

 Air Pollution Prevention and Control Law, P.R. China, enacted in 2000, last amended in 2015.  The Administration Regulations of Ozone Depleting Substances, P.R. China, enacted in 2010. 23  See n. 18. 21 22

376

T. Qin and M. Zhang

world, while the total number of vertebrate species in China accounts for 13.7% of the world’s total. Nevertheless, China is also one of the countries facing serious threats to biodiversity. Biodiversity loss can lead to serious consequences, such as worsening health problems, higher food risks, increasing vulnerabilities and fewer development opportunities. Biodiversity conservation is therefore strategically important for China’s long-term socioeconomic development, and the well-being of present and future generations as evidenced in the attempt to build an ecological civilization in China by implementing initiatives such as Beautiful China. In recent years, the Chinese government has established a legal system for the conservation of nature and biodiversity by formulating or amending over 50 related laws and regulations. Related laws include Island Conservation Law,24 Forest Law,25 Wild Fauna Protection Law,26 Marine Environment Protection Law,27 Fisheries Law.28 Related regulations include the Regulation on Nature Reserves,29 Regulation on Wild Plant Conservation,30 Regulation on Protection of New Plant Varieties,31 Regulation on Administration of Import and Export of Endangered Wild Animals and Plants,32 Regulation on Scenic Spots and Historical Sites.33 These laws and regulations constitute the legal frameworks for nature conservation and the sustainable use of biodiversity in China.

2.3 Institutions 2.3.1 Administrative Institutions for Climate Change The National Development and Reform Commission (NDRC)34 is a ministry under the supervision of State Council of the People’s Republic of China (central government), which organizes the formulation of key strategies, plans and policies in addressing climate change, takes the lead with related ministries in attending international negotiations of climate change as well as undertakes relevant work in regard to the fulfillment of the United Nations Framework Convention on Climate Change at national level. And within the institutional structure of NDRC, its  Island Conservation Law, P.R. China, enacted in 2010.  Forest Law, P.R. China, enacted in 1984, last amended in 1998. 26  Wild Fauna Protection Law, P.R. China, enacted in 1998, last amended in 2004. 27  Marine Environment Protection Law, P.R. China, enacted in 1999. 28  Fisheries Law, P.R. China, enacted in 1986, last amended in 2013. 29  Regulation on Nature Reserves, P.R. China, enacted in 1994. 30  Regulation on Wild Plant Conservation, P.R. China, enacted in 1996. 31  Regulation on Protection of New Plant Varieties, P.R. China, enacted in 1997. 32  Regulation on Administration of Import and Export of Endangered Wild Animals and Plants, P.R. China, enacted in 2006. 33  Regulation on Scenic Spots and Historical Sites, P.R. China, enacted in 2006. 34  See, National Development and Reform Commission (NDRC) http://en.ndrc.gov.cn/. 24 25

Climate Change and the Individual: A Perspective of China

377

Department of Climate Change is responsible for comprehensively analyzing the impact of climate change on social-economic development; organizing and coordinating the formulation of key strategies, plans and policies dealing with climate change, taking the lead in the implementation of United Nations Framework of Climate Change Convention, and in collaborating with other relative parties in international climate change negotiations; coordinating and carrying out international cooperation in response to climate change and related capacity building; organizing and implementing the work relating to clean development mechanism (CDM); and undertaking concrete work assigned by the National Leading Group Dealing with Climate Change, Energy Conservation and Emission Reduction. Recently, the National Leading Group to Address Climate Change changed the set up of the Climate Change Department. The personnel composition of the National Climate Change Experts Committee has been further improved to expand its expertise area and coverage so that they can contribute wisdom and suggestions to the work on addressing climate change from various perspectives. In 2012, the NDRC established the National Center for Climate Change Strategy and International Cooperation (NCSC) to provide professional support for the policymaking on climate change. Professional research agencies for climate change and low-carbon development were successively established at the provincial level and hence gradually expanded the research team for climate change. 2.3.2 Judicial Institutions for Climate Change The Constitution of the People’s Republic of China provides that the courts are judicial organs of the State. The State sets up Supreme Court, local courts at different levels and special courts such as military courts. These courts adjudicate civil, criminal and administrative suits concerning climate change affairs in accordance with laws, and carry out judicial activities including the execution of civil and administrative decisions and state compensation.35 The Supreme Court, as the highest judicial organ of the People’s Republic of China, is responsible for adjudicating various cases, including climate change cases, that have material effects nationwide or are subject to its adjudication according to law, formulating judicial interpretations, supervising and guiding the judicial work of local courts at different levels and special courts, and managing certain judicial administration work of the courts nationwide within the scope of its functions and powers as per laws. A court at a higher level supervises the judicial work of the courts at the next lower level. In climate litigious activities, the courts adopt the systems of public trial, collegiate panel, challenge, assessors, defense, and judgment of the second instance as final, etc.36

 Constitution of the P.R. China, 1982.  Organic Law of the People’s Courts of the People’s Republic of China, P.R. China, enacted in 1979, last amended in 1983. 35 36

378

T. Qin and M. Zhang

Local courts at different levels include primary courts, intermediate courts and higher courts. Special courts include military courts, maritime courts, IP courts, environmental courts etc. So far China still has not established special climate change courts yet.

3 Climate Litigation: Practice, Challenges and Future 3.1 China’s NDCs, Individual and Challenges to National Climate Legislation In 2015, the Chinese government submitted to the United Nations (UN) the Enhanced Actions on Climate Change: China’s Intended Nationally Determined Contributions, in which it declared that China will achieve the peaking of carbon dioxide emissions around 2030 and making best efforts to peak early, and lower carbon dioxide emissions per unit of GDP by 60 to 65% from the 2005 level,37 which provides a medium to long-term direction for China’s work in combating climate change. But on the other hand, there is still no specific national climate legislation in China, which is currently the main barrier and challenge in China’s legal system for an individual to bring a case against the government for allegedly not complying with its international climate change obligations. Therefore, there is no legal room for this kind of case to happen in China at current stage. However, based on our observations, China still has a strong foundation of existing environmental and energy law upon which climate-specific regimes may be established step by step. In 2011, a leading group was established for the drafting of Climate Change Law, consisting of the Environment and Resources Protection Committee of the Standing Committee of the National People’s Congress (NPC), the Legislative Affairs Commission of the Standing Committee of the NPC, the Legislative Affairs Office of the State Council and 17 ministries. The NDRC took the lead to conduct the researches and investigations on legislation and the drafting of the law, and solicited opinions widely from stakeholders in this regard. The legislation process for the Climate Change Law and the Regulation on the Management of Carbon Emission Trading was accelerated. The governments of Shanxi, Qinghai, Shijiazhuang and Nanchang launched the legislation on climate change and low-­ carbon development at local level.38 The new progress can be witnessed by the Chinese government’s actions that the Climate Change Law and the Regulations on Carbon Emissions Trading Administration were included in the “Research Projects” and “Preparatory Projects” of the Annual Legislative Program of the State Council

 Enhanced Actions on Climate Change: China’s Intended Nationally Determined Contributions, Government of China (2015). 38  China’s Policies and Actions for Addressing Climate Change (2016), National Development and Reform Commission (NDRC), 2016. 37

Climate Change and the Individual: A Perspective of China

379

2016. In line with the legislation plan and task allocation, the special study on climate change legislation was deepened, the laws drafted, and the views of all stakeholders solicited on the draft of the Regulations on Carbon Emissions Trading Administration. China strengthened international cooperation and exchanges and expand international influence in the field of climate change legislation through bilateral cooperation mechanisms with Germany, France and Britain and the multilateral cooperation platforms with the United Nations and other organizations. Shijiazhuang City and Nanchang City respectively issued the Regulations on Promotion of Low-Carbon Development to accelerate the local legislation process for low-carbon development.39 Furthermore, some local governments in China also enhances the relevant legislations on their respective local levels. Shijiazhuang in Hebei Province sought to promote low-carbon development through legislation. The Regulations of Shijiazhuang City on Promotion of Low-carbon Development was passed at the city people’s congress in January 2016, approved by the provincial people’s congress in May, and put into effect on July 1st, 2016. In Nanchang, Jiangxi Province, the Regulations on the Promotion of Low-carbon Development was examined and adopted at the city people’s congress in April 2016 and took into effect on September 1st, 2016.40 Anyhow, in the long run, acceleration of national climate legislation is required to meet the goals of China’s Intended Nationally Determined Contributions. Legal and regulatory development on climate legislation will remain critical for an individual to bring a case against the government for allegedly not complying with its international climate change obligations in China in the future.

3.2 Human Rights: A Complicated Ground Between Individual and Climate Change Currently China’s legal system still does not allow an individual to bring a case against a public or private actor that allegedly does not comply with climate change obligations (national or international), on human rights grounds. Climate Change has become the most serious threat of human rights facing mankind. Given that the least developed nations and the more vulnerable groups tend to be more sensitive to the harms of climate change, the question of equality, or climate change justice, is an important issue that must be dealt with in fighting against climate change. Against this background, there is an emerging trend to adopt both human rights and climate change perspectives to tackle the climate changeinduced human rights crisis. It is hoped that this dual perspective approach may lead

 China’s Policies and Actions for Addressing Climate Change (2017), National Development and Reform Commission (NDRC), 2017. 40  Ibid. 39

380

T. Qin and M. Zhang

to a win-win result by both protecting human rights and providing innovative ways to tackle climate change.41 Although more and more attention is being paid to the human rights dimension of climate change, little is known as to how to achieve climate change justice for individuals on human rights grounds in China. In China, environmental rights, including climate rights, are considered as an important element for human rights. But at the current stage, environmental rights still have not been recognized by China’s Constitution. In the opinion of some scholars, elevating environmental rights to the level of the Constitution has been a trend for environmental protection legislation in various countries.42 However, contrary to this point of view, other scholars have argued that if environmental rights are considered to be a kind of human right, the 2004 amendment to the 1982 Constitution has already addressed the issue since this requires the state to respect and protect citizens’ human rights. In this way, the Constitution need not expressly confirm the environmental rights.43 The future constitutional role for environmental rights and this vigorous debate on whether environmental rights should be regarded as constitutional rights will have a significant influence for an individual to bring a case against a public or private actor that allegedly does not comply with climate change obligations (national or international), on human rights grounds.

3.3 Environmental Public Litigation: A Mixed Mechanism for Climate Litigation, the Individual and Public/Private Actors (Mitigation/Adaptation) As a concept developing gradually in various countries in recent years, ‘Climate litigation’ is not strictly a term in environmental judicial practice in China. However, the Supreme People’s Court in China takes climate change-related cases as one of the major types of environmental cases, so they are essentially the same as climate litigation. With the specialization of environmental judiciary in China, litigation in the field of climate change will receive more and more attention. In its current phase, environmental public litigation is a mixed mechanism for an individual to bring a case against public/private actors whose actions contribute to a rise in greenhouse gas emissions or difficult adaptation to climate change in China. The significant progress of environmental public litigation is a crucial condition for the potential climate litigation. To promote the establishment of the specialized judicial mechanism for environmental and resource cases, in June 2014, the Supreme People’s Court established the Environmental and Resource Tribunal, and instructed the courts in all regions to enhance the establishment of judicial organs for environmental and resource cases. As of the end of 2016, the people’s courts in all regions  He (2015).  Cai (2012). 43  Qin (2013). 41 42

Climate Change and the Individual: A Perspective of China

381

had established 558 tribunals, collegiate panels and circuit courts for environmental and resource cases in total. 15 higher people’s courts in Guizhou, Fujian, Hainan and other regions have established environmental and resource tribunals and Jiangsu, Chongqing and other regions have established three-level judicial system for environmental and resource cases. In April 2016, the Supreme People’s Court decided to designate the Environmental and Resource Tribunal to be responsible for the administrative cases of second instance and retrial of administrative cases against any environmental protection authorities and supervision and guidance in respect of such cases. The local courts also have been exploring the mode of specialized adjudication of environmental and resource cases, for example, the Jiangsu Higher People’s Court designated 31 grass-roots courts to exercise jurisdiction over trans-regional environmental and resource cases in a centralized manner, and the Hainan Higher People’s Court designated 8 courts to hear and adjudicate civil, administrative and criminal environmental and resource cases in a centralized manner.44 The courts throughout the country tried and closed 18, 900 criminal cases of environments and resources, 84,700 civil cases of environments and resources and 29,100 administrative cases of environments and resources in 2016. The procurator organs throughout the country prosecuted 29,173 persons for the offences of destroying environments and resources. The Supreme People’s Procuratorate carried out the activities of exercising supervision over filing special cases of destroying environments and resources, and suggested the transfer of 2016 cases of committing suspected offences. The Supreme People’s Procuratorate popularized the practices of Fujian, Guizhou, Jiangxi and Chongqing, and explored the ecological procuratorial model of “specialized legal supervision + restorative judicial practice + socialized comprehensive governance” to promote environment protection and ecological restoration. Since the newly revised Environmental Protection Law took effect on January 1, 2015, the courts accepted a total of 112 cases of environmental public interest cases of first instance and 54 cases of second instance, and closed 54 cases of first instance and ten cases of second instance. The court in Dezhou of Shandong Province tried and closed China’s first public interest litigation case of air pollution in the Beijing-Tianjin-Hebei region and their surrounding areas since the new Environmental Protection Law took effect, and sentenced the defendant to a compensation of more than 21.98 million yuan for the restoration of the quality of the air environment in July.45 Environmental public interest litigation has now gained stronger legal grounding. The revision of the Civil Procedure Law in 201346 and the Environmental Protection Law in 201447 granted environmental Non Governmental Organisations  White Paper: Court Reform in China, 14-03-2017, Supreme People’s Court of P.R. China http:// english.court.gov.cn/2017-03/14/content_28552928.htm accessed 14 November 2017. 45  Annual Report on Promoting the Rule of Law in China (2016), 14-06-2017, China Law Society http://legal.people.com.cn/n1/2017/0614/c42510-29339803.html accessed 14 November 2017. 46  Civil Procedure Law, P.R. China, last amended in 2013. 47  Environmental Protection Law, P.R. China, enacted in 1989, last amended in 2014. 44

382

T. Qin and M. Zhang

(NGOs) that have been registered and operating for over 5 years the ability to sue polluters in the public interest. They are supported by a detailed judicial interpretation on civil environmental public interest litigation, issued by China’s Supreme People’s Court in early 2015. So far lawsuits have mainly targeted polluting enterprises, but also some government departments.48 While Chinese NGOs continue to face challenges in filing public interest lawsuits, the capacity for them to take on more major emitters is growing. However, challenges remain for both NGOs and prosecutors bringing environmental public interest cases. A relatively small number of the 700 NGOs in China which are qualified to file public interest environmental lawsuits have so far brought cases to the courts—only six NGOs have brought cases in 2016. And despite clear rules about who can bring cases, last year some NGOs still faced obstacles in having their cases filed in local courts. For example, in the Tengger desert case, the first instance court rejected China Biodiversity Conservation and Green Development Foundation (CBCGDF)’s ability to sue based on a controversial reading of their articles of association (a document which defines the responsibilities of an organisation or its directors), a judgement which was ultimately overruled by the Supreme People’s Court. CBCGDF have since successfully filed eight lawsuits against the culpable polluters.49 Also, for NGOs and prosecutors alike, establishing causation and estimating environmental damages can be difficult, particularly for air pollution cases or in cases where there are multiple polluters. In most cases the burden of proof falls on the plaintiff but in some cases the courts will commission their own assessment. In All-China Environment Federation (ACEF) vs. Zhenhua,50 for instance, the plaintiff attempted to assess air pollution damages based on operating cost, as allowed by the judicial interpretation on environmental public interest litigation.51 However, the court rejected this, opting instead for a ‘treatment cost estimate’ approach, a method that is difficult to apply accurately to damages from climate change. An important milestone for the development of climate litigation in China, in April 2018, Yinchuan Intermediate People’s Court in China, after one year and half waiting, finally accepted and arranged a pre-trial communication meeting52 for a climate change-related case where an environmental NGOs sued State Grid Unit for refusing to purchase clean energy, which can be regarded as the first climate litigation in China. Friends of Nature, one of China’s oldest environmental NGOs, filed  Opinion: The future of public interest litigation in China, Dimitri de Boer, Douglas Whitehead, China Dialogue, 08-11-2016. 49  See, Tengger desert case brought by CBCGDF, 03-01-2017, Supreme People’s Court of P.R. China http://www.court.gov.cn/shenpan-xiangqing-34322.html accessed 14 November 2017. 50   See, ACEF vs. Zhenhua, 29-12-2015, China Court http://www.chinacourt.org/article/ detail/2015/12/id/1777819.shtml accessed 14 November 2017. 51  Opinion: The future of public interest litigation in China, Dimitri de Boer, Douglas Whitehead, China Dialogue, 08-11-2016. 52  This is a three-way meeting, which is common in the Chinese justice system, helps trial judges become familiar with the case and also indicates that a court hearing is imminent. 48

Climate Change and the Individual: A Perspective of China

383

the lawsuit at the Yinchuan Intermediate People’s Court against the local unit of the State Grid Corp., the stated owned monopoly power industry giant, for violating the Renewable Energy Law that forces grid firms to fully purchase renewable electricity from wind or solar generators. This environmental group also demands 310 million yuan ($49 million) from the regional power grid companies as compensation that would be used to address pollution produced from the use of coal and hydropower. To cope with climate change, the Renewable Energy Law is a crucial pillar in the legal framework of climate change in China, which was revised and enacted in 2010, compelling all power transmission companies to “fully acquire” all power generated by renewable sources that meet grid connection standards.53 The law was designed to prevent grid firms from prioritizing cheaper but polluting coal-fired power. However, state-owned grid companies often flout such requirements and use fossil fuels or hydropower facilities instead, leaving power generated at wind and solar farms unused. Because of this negative action from the State Grid Corp., wind and solar companies have to cut back operations, as they are unable to sell electricity to the grid companies. According to China’s National Energy Administration (NEA), China wasted 41.9 billion kilowatt-hours (kWh) of wind power in 2017, down 16% annually but still 12% of total wind generation. Wasted solar amounted to 7.3 billion kWh last year, 6% of total generation. By citing numbers from the NEA as well, Friends of Nature claims that 3.36 billion kilowatt-hours of solar power, or the equivalent of 1.1 million metric tons (1.21 tons) of standard coal, were wasted in Ningxia during an 18-month period leading up to July 2016.54 Poor grid availability—known as “curtailment”—has been one of the biggest challenges facing China’s renewable sector, with regulators struggling to provide sufficient transmission capacity for the vast number of new wind, solar and hydro plants that have gone into operation across the country. Thus, this lawsuit filed by an NGO is not on behalf of any specific wind or solar farm in the region, but rather to address harms that the country as a whole had suffered. But on the other side, state-owned grid companies contended that most of the wind and solar farms are located in remote areas, which are difficult to link up to the power grids, and the use of wind and solar power is also affected by seasonal fluctuations in supply, while grid companies can rely on more stable hydropower facilities and coal-burning power stations. Due to the complexity of this case, a trial date, so far, has not yet been set and it is still unclear whether they would be successful. But no matter what the final result would be, this case has already mobilized more people into paying attention to the issue of making full use of new energy resources. What is more important is that the regulator pledged to improve coordination and build large power storage stations to help remedy this problem, at least we could still see some hopeful light in the dark tunnel. Recent years witness the largely successful experimentation of Environmental Public Litigation in China. And the impacts of environmental public interest

 Renewable Energy Law of P.R. China, 2010.  See, Friends of Nature vs. Ningxia Grid, https://www.thepaper.cn/newsDetail_forward_2069105 accessed 14 October 2018. 53 54

384

T. Qin and M. Zhang

litigation are expected to continue to grow. New legislation and policies are likely to lend further support to NGOs seeking to bring cases. Courts around China are encouraged by the Supreme People’s Court approach to climate change-related cases. NGOs continue to gain experience, as well as confidence, and technical and financial resources to bring to cases. In the long run, to improve the development of climate litigation, China is required to design a climate litigation system within the framework of Environmental Public Litigation, which is tailored specifically to climate change-related cases.

4 Conclusion As a responsible member of the international community in the battle to address climate change, China formulated and submitted its Intended Nationally Determined Contributions (INDC) to the UNFCCC in 2015, becoming the first developing country to submit such a document. The NDCs provides a medium to long-term direction for China’s work in combating climate change. As a state where the ruling communist party operates in a central planning mode, the policies of the ruling party and central government exert a great influence on national affairs with a long historical tradition, which can be even more obviously illustrated in the issues of climate change. But on the other hand, there is still no specific national climate legislation in China, which is currently the main barrier and challenge in China’s legal system for an individual to bring a case against the government for allegedly not complying with its international climate change obligations. As a concept developing gradually in various countries in recent years, ‘Climate litigation’ is not strictly a term in environmental judicial practice in China. However, the Supreme People’s Court in China takes climate change-related cases as one of the major types of environmental cases, so they are essentially the same as climate litigation. In is current phase, environmental public litigation is a mixed mechanism for an individual to bring a case against public/private actors whose actions contribute to a rise in greenhouse gas emissions or difficult adaptation to climate change in China. In the long run, to improve the development of climate litigation, China is required to design a climate litigation system within the framework of Environmental Public Litigation, which is tailored specifically to climate change-related cases. With the specialization of environmental judiciary in China, litigation in the field of climate change will receive more and more attentions and it will have a brilliant future in China.

Climate Change and the Individual: A Perspective of China

385

References Bradsher K, Friedman L (2017) China unveils an ambitious plan to curb climate change emissions. The New  York Times. https://cn.nytimes.com/china/20171220/ china-carbon-market-climate-change-emissions/dual/ Cai S (2012) Huanjing Yu ZiyuanBaohu Fa (environment and nature resource protection law). Higher Education Press, Beijing (only available in Chinese) China Law Society (2017) Annual Report on Promoting the Rule of Law in China 2016 de Boer D, Whitehead D (2016) Opinion: the future of public interest litigation in China. Dialogue, China Government of China (2015) Enhanced Actions on Climate Change: China’s Intended Nationally Determined Contributions He J (2015) Human Rights and Climate Change, Human Rights. http://www.iolaw.org.cn/showArticle.aspx?id=4610. Accessed 14 Nov 2017 National Development and Reform Commission (NDRC) (2016) China’s Policies and Actions for Addressing Climate Change 2016 National Development and Reform Commission (NDRC) (2017) China’s Policies and Actions for Addressing Climate Change 2017 Qin T (ed) (2013) Huanjingfa: Zhidu, Lilu he Anli (environmental law: systems, theories and cases). Wuhan University Press, Wuhan (only available in Chinese) Qin T, Zhang M (2017) Development of China’s environmental legislation. In: Sternfeld E (ed) Routledge handbook China’s environmental policy. Routledge, pp 17–30 State Council of the People’s Republic of China (2016) Work Plan for Controlling Greenhouse Gas Emissions During the 13th Five-Year Plan Period Supreme People’s Court of P.R. China (2017) White Paper: Court Reform in China Prof. Qin Tianbao  is a Changjiang (Cheung Kong) Scholar and Luojia Professor of Law, and serves as the Director of the Research Institute of Environmental Law (RIEL) and the Associate Dean for Research and International Affiliations for the School of Law, Wuhan University; Editorin-Chief of the Chinese Journal of Environmental Law; Member of the Compliance Committee of the Nagoya Protocol on ABS. Meng Zhang  PhD is a Researcher from the Centre for Environmental and Energy Law at Ghent University (Belgium) and PhD. Research Fellow of the Institute for International Studies at Wuhan University (China). His research domain includes environmental law, energy law, climate law and policy. His doctoral study focuses on the legal issues of carbon capture and storage.

Climate Change Litigation in Kenya: Possibilities and Potentiality Lydia A. Omuko-Jung

Abstract  In the backdrop of growing impacts of climate change and increased public awareness, litigation is gaining prominence as a tool to hold governments and private entities liable for inaction or contribution to climate change. The increase of climate cases around the world has brought to light the relevance of individuals and judiciary in the fight against climate change. However, some jurisdictions such as Kenya are yet to have the climate change issue directly litigated upon. This Chapter explores the potential for and possibility of climate litigation within the Kenyan legal framework, specifically whether it is possible to file climate cases and if so, what are the legal channels? The Chapter argues that the Kenyan legal system provides avenues for climate litigation through both public and private law. Under public law, the government can be sued for noncompliance with international climate obligations and it is possible to challenge decisions of public officers for failure to consider climate change in decision-making. Additionally, the Constitution provides an avenue to litigate climate change as a human rights issue. As regards private litigation, the causes of action of negligence, trespass, nuisance and strict liability as commonly used in environmental litigation can be used to sue private entities for climate violations. Despite the legal framework providing avenues, the Chapter concludes that legal, social and financial constraints have hindered climate litigation in Kenya.

1 Introduction With the growing frustrations over the slow pace of action by governments and increased public awareness, litigation is gaining prominence as a strategy to deal with climate change. The roles of individuals in climate action and of the judiciary in formulating new legal approaches have become more relevant in the backdrop of L. A. Omuko-Jung (*) Institute of Public Law and Political Science, University of Graz, Graz, Austria e-mail: [email protected] © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_20

387

388

L. A. Omuko-Jung

growing impacts of greenhouse gas emissions. The recent increase of climate related cases around the world1 has brought to light the relevance of individuals and judiciary in the fight against climate change and the importance of litigation as a tool for individuals to hold governments and entities liable for their omissions and commission of “climate change violations.” Whereas it is gaining prominence in other parts of the world, climate litigation is yet to be explored in Kenya. Climate related claims have not, as at the time of writing this Chapter, been directly litigated upon, though in some cases climate change has been mentioned in passing. The legal system however provides possibilities and avenues for climate litigation. This Chapter discusses whether and how individuals can bring climate cases before Kenyan courts while analyzing the opportunities and legal challenges individuals may face. It will seek to answer the questions: Can individuals file a case against public and private entities for “climate violations” in Kenya? If so, what are the legal avenues? The Chapter first analyses Kenya’s legal framework providing a basis for climate litigation. Secondly, it discusses the potential, possibilities and avenues for climate litigation in Kenya under both public and private law. As regards public law, the discussion centers around three main points: non-compliance with international obligation, climate litigation on human rights grounds and litigation challenging decisions of public actors for failure to consider climate change. While discussing the issues, cases on other areas of the law are analyzed to understand the principles applied by courts and how these principles could be applied to promote the climate agenda. The challenges faced by parties are identified, which challenges are also likely to be faced in climate litigation and possible solutions to the challenges. Finally, the Chapter discusses the possible reasons why climate change has not yet been directly litigated upon despite the existing legal avenues.

2 Kenya’s Climate Change Legal Framework For a long time, the country’s legal framework on climate change was mainly sectorial and fragmented, with different sectors containing their own legislation and climate change related measures incorporated as small provisions within the different sectorial legislation.2 Climate change did not form a prominent part of the legal system. The last ten years has seen a remarkable change, from the promulgation of the Constitution in 2010 which recognizes environmental rights to the enactment of the Climate Change Act in 2016.

 For climate-related cases around the world, see United Nations Environment Program and Sabin Center for Climate Change Law (2017). 2  Omuko (2015), p. 12. 1

Climate Change Litigation in Kenya: Possibilities and Potentiality

389

Currently, the legal regime governing climate change ranges from international, national to subnational law. The Constitution3 provides the backbone of the country's legal system and a basis for climate change governance and litigation. Whereas it does not specifically mention climate change, it places environmental obligations and human rights protection on the government and individuals, which can be extended to include climate change obligations. Environmental management and sustainable development are recognized as core constitutional issues. The preamble acknowledges that the people of Kenya are respectful to the environment and determined to sustain it for the benefit of future generations.4 Sustainable development is one of the principles that bind all persons when interpreting the Constitution and when enacting, applying and implementing legislations and public policies.5 Climate change is an important aspect of sustainable development and mitigation and adaptation actions greatly contribute to sustainable development.6 The right to clean and healthy environment7 and the right to life8 are entrenched in the Bill of Rights and the enjoyment of these rights is not only limited to Kenyan citizens but to any person within the country. Both private persons and the State have an obligation to uphold these rights. The State is also mandated to, among others, ensure sustainable management of the environment, work to achieve and maintain a tree cover of at least 10% and eliminate activities likely to endanger the environment.9 As will be discussed later in this chapter, the Bill of Rights is an important aspect of climate governance. Additionally, the Constitution incorporates general rules of international law and treaties ratified by Kenya as part of Kenyan law.10 The only caveat is that they must be consistent with the Constitution.11 This means that all treaties ratified by Kenya, including UNFCCC and the Paris Agreement, are part of Kenyan law and thus binding on the government. Parliament has enacted various legislations that directly govern climate change. The much-celebrated Climate Change Act12 provides a consolidated legislative framework for addressing climate change. The Act aims at promoting climate resilient low carbon development13 and establishes National Climate Change Council to oversee and coordinate climate actions.14 Both public and private entities have

 Constitution of Kenya.  Ibid., Preamble. 5  Ibid., Article 10. 6  Odote (2013), p. 809, 815. 7  Constitution of Kenya, Article 42. 8  Ibid., Article 26. 9  Ibid., Article 69. 10  Ibid., Article 2(5) and (6). 11  Ibid., Article 2(4). 12  Climate Change Act, 2016. 13  Ibid., sec. 3. 14  Ibid., sec. 5. 3 4

390

L. A. Omuko-Jung

responsibilities towards addressing climate change, with all public entities mandated to integrate climate change responses into their functions and decisions.15 Private entities on the other side may soon be required to report on their emissions and performances once the Council enacts reporting regulations.16 Before 2016, the Environmental Management and Coordination Act (EMCA)17 was considered the substantive legislation on climate change. Despite the passing of the Climate Change Act, EMCA is still useful in climate change response as it prescribes measures to protect and conserve the environment, which measures are important in responding to climate change. These include re-forestation, afforestation,18 protection of forests,19 conservation of wetlands, lakes, seas and rivers,20 protection of the coastal zone21 and promotion of energy conservation and renewable energy.22 In addition, it has provisions on air quality standards23 and emission licensing24 including an obligation on entities to obtain emission licenses. There are also other various sectorial legislations and policies governing aspects of climate change. The Energy Act of 2019 and the Regulations thereunder25 mandate the government to promote development and use of renewable energy technologies26 and to coordinate implementation of energy efficiency and conservation programme.27 The Forest Conservation and Management Act28 provides for the development and sustainable management of forests for, among others, carbon sequestration and promotes sustainable production of wood and other forest products. Other legislations include Agriculture and Food Authority Act, Irrigation Act and Coast Development Authority Act among others. In addition, the executive has developed policies and plans, which provide the government's plan on addressing climate change such as National Climate Response

 Ibid., sec. 3.  Section 16 of the Climate Change Act allows the Council to impose climate change obligations on private entities and make regulations on reporting. 17  Environmental Management and Coordination Act, 1999. 18  Ibid., sec. 46. 19  Ibid., sec. 48. 20  Ibid., sec. 42. 21  Ibid., sec. 55. 22  Ibid., sec. 49. 23  Ibid., sec. 78. 24  Ibid., secs 80–85. 25  Such regulations include The Energy (Solar Water Heating) Regulations which require all premises with hot water requirements capacity exceeding 100  litres per day to install and use solar heating systems; The Energy (Energy Management) Regulations, which require owners or occupiers of industrial, commercial and institutional energy users to conduct energy audits and develop plans for the conservation of energy. These Regulations were issued under the repealed Energy Act of 2006 but continue to apply pursuant to Section 224 of the Energy Act of 2019. 26  Energy Act, 2019, pt. IV. 27  Ibid., pt. VIII. 28  Forest Conservation and Management Act, 2016. 15 16

Climate Change Litigation in Kenya: Possibilities and Potentiality

391

Strategy, National Climate Change Action Plan and National Adaptation Plan among others. It is however important to note that whereas policies are important in climate governance, their applicability in litigation in Kenya is minimal. Courts are not bound to apply policies in decision-making29 and they would only be applicable if translated into legislation. Their role in litigation is limited to being persuasive.

3 Possibility and Potential for Climate Litigation in Kenya Climate litigation is a new concept in Kenyan judicial system and climate-related claims are yet to be litigated upon. The issue is however slowly gaining prominence within the court system, as there are cases where climate change has been referred to, though not directly litigated upon. For instance, in Simion Swakey Ole Kaapei & 89 others v Commissioner of Lands & 7 Others30 the judge on his own motion, noted the relevance of climate change in resource management and stated that: While in the final stages of writing this judgment, I came across … an article – entitled “COMMENT” - “Climate Change Discourse more Relevant Now” … and I fell into the temptation of including excerpts of it in this judgment. It would therefore be prudent for all Kenyans and their government to learn from changes that are happening around us and understand the fact that climate change is here with us and that all planning and implementation of programmes should have adap[ta]tion and a cross cutting theme The conflict as shown in this Petition is [not only] about dwindling resources, land, caused by and large a burgeoning population which has caused human conflict, but also degradation of the environment through encroachment of forest cover and thus enhancing climate change.31

The issue has also notably been used by government to defend their actions in suits. For instance, in Charles Lukeyen Nabori & 9 others vs the Attorney General & 3 others32 the Plaintiffs sued the government for introduction of a noxious weed in the region. One of the reasons given by government for introduction of the weed was climate change mitigation. In an affidavit sworn to oppose the case, the Minister for Environment opined that: [I]t was generally opined by expert scientists and environmentalists globally that global warming was as a result of accumulation of greenhouse gas emissions, mainly carbon dioxide, in the atmosphere, that the reduction of these gases would alleviate the threats posed by  According to Section 3 of the Judicature Act as read with Article 2 of the Constitution, the sources of law in Kenya are Constitution, Acts of Parliament, Specific Acts of Parliament from the UK, English Statutes of General Application in Force in England on 12th August 1897, Substance of Common Law and Doctrines of Equity and Customary Law. 30  Nakuru HC Misc. Civil Application 32 of 2011. 31  ibid, paras 31–33. 32  Nairobi HC Constitutional Petition 446 of 2006. 29

392

L. A. Omuko-Jung

climate change and that increased vegetation cover could reduce these gases from the atmosphere That he is also aware that the development of tree cover in the ASALS will not (only) help in the reduction of global warming generally but will also help the development of more moderate and friendly micro climate locally for the country’s greater agricultural benefit. That there is scientific evidence that the climate and ecology in East Africa is susceptible to rapid change in response to global climatic change. That in order to make a contribution to this noble goal of controlling climate change, consideration had been made by the Government that Kenya might eventually utilize vegetation cover in the arid and semi-arid areas.33

Whereas this was not the main reason for the dismissal of the suit, and climate change was not directly litigated upon, this defense played a persuasive role for the court to find that the government, in allowing the introduction of the weed, was acting in good faith. The above cases show how the issue is gaining prominence within the court system and we may soon start seeing it being directly litigated upon. In addition, the increasing public awareness and the rising number of civil society organizations in Kenya might soon lead to climate-related claims. The question that arises is whether the legal system allows for such claims and if so, what are the legal avenues?

3.1 The Questions of Locus Standi and Causation The issues of locus standi and causation are considered one of the biggest challenges in climate litigation.34 How a legal system deals with these issues have a big impact on the success of any climate litigation. It is therefore relevant to briefly look at how the Kenyan system addresses these issues to assess the possibility and potential of climate litigation. Before  the enactment of EMCA, environmental matters were litigated by the Attorney General and private individuals were allowed to litigate only where they had suffered injury greater than other members of the public or in cases where they had a personal proprietary interest in the matter. This position was expressed in Wangari Maathai vs Times Media Trust,35 where the Plaintiff challenged the government’s decision to allow the Defendant to construct a multi-storey complex in a public recreational park on the grounds that the construction would interfere with the environmental rights of the residents and that the construction was taking place without public consultation. The court dismissed her application for lack of locus

 Ibid, pp. 19–20.  See Peel (2011) and Preston (2009). 35  Nairobi HCCC 5403 of 1989. 33 34

Climate Change Litigation in Kenya: Possibilities and Potentiality

393

standi because she could not demonstrate personal injury. The court held that the Plaintiff [H]as strong views that it would be preferable if the building of the complex never took place in the interests of many people who had not been directly consulted. Of course many buildings are being put up in Nairobi without many people being consulted. Professor Wangari apparently thinks this is a special case. Her personal views are immaterial. The Court finds that the Plaintiff has no right of action against the defendant company and hence she has no locus standi.36

In Kenya Ports Authority (KPA) vs East African Power and Lighting Company37 the Plaintiff had to prove damage to its property to succeed in an environmental protection suit. A government entity managing the port sued the Defendant for causing oil leak thereby polluting seawater. Whereas the court found that there was an oil leak to the sea, the suit failed because the Plaintiff did not suffer any damage to its property since it did not own the seawater. The Plaintiff appealed and the Appellate Court upheld the High Court’s decision to hold that ‘the plaintiff suffered no actual damage to any of its property; to the extent that the water in the port was damaged by pollution, that water was not the property of the plaintiff.’ This was the approach of courts until the enactment of the EMCA in 1999 which allowed individuals to file cases in court for protection of the environment without having to demonstrate personal interest or injury. The Act provides that “every person in Kenya is entitled to a clean and healthy environment and has the duty to safeguard and enhance the environment.”38 However, this relaxed locus standi and causation standard mainly applied to public cases and this meant that for private environmental cases, there was still need to show personal injury as well as the fact that the injury had been caused by the defendant’s acts or omissions. The promulgation of the Constitution in 2010 led to a relaxed approach to the issues of locus standi and causation in environmental litigation. The fact that the right to clean and healthy environment has been included in the Bill of rights means that any person can institute proceedings in Court claiming that the right has been violated or threatened. A person does not need to be specifically or directly affected by the purported violation or threat because the Constitution allows any person acting on behalf of another or in the public interest to institute proceedings.39 Furthermore, in applications seeking to protect the right to clean environment, the applicant does not have to demonstrate that any person has incurred loss or suffered injury.40 The Constitution thus expanded the application of the relaxed locus standi and causation standard to cases against private entities as well. This was expressed in Moffat Kamau & 9 Others vs Aelous Kenya Limited & 9 Others41 where the

 Ibid, p. 4.  Mombasa CoA Civil Appeal 41 of 1981. 38  Environmental Management and Coordination Act, 1999, sec. 3. 39  Constitution of Kenya, Article 22. 40  Ibid., Article 70(3). 41  Nakuru ELC Constitutional Petition 13 of 2015. 36 37

394

L. A. Omuko-Jung

defendant argued that the Petitioners did not have a standing because the challenged project was not situated on their land. In rejecting that argument, the court held that [I]f a person applies that his right to a clean and healthy environment enshrined in Article 42 has been violated or under threat, he does not need to demonstrate any personal loss or injury. The argument that the petitioners have no mandate to file this petition because they do not stand to be affected by the project, for the reason that it is not situated in their parcels of land, is not therefore a valid argument. Any person, even an individual not resident and who owns no land in the Kinangop area, could as well have filed this petition. In the same vein, it is enough that there are petitioners in the matter.42

The relaxed position on locus standi and causation was further cemented by the Climate Change Act of 2016 which allows any person to apply to court for ‘enforcement of rights relating to climate change.’43 The provision allows any person alleging that another person has acted in a manner that has or is likely to adversely affect mitigation and adaptation efforts to apply to court for redress. The applicant does not need to demonstrate that a person has incurred loss or suffered damage; all they need to show is that the actions are likely to affect adaptation and mitigation efforts.

3.2 Climate Litigation Under Public Law 3.2.1 Non-Compliance with International Obligations Kenya has ratified the UNFCCC and the Paris Agreement. As required by the Paris Agreement, the country submitted its NDC and pledged a 30% emission reduction by 2030 relative to the Business as Usual (BAU) scenario of 143 MtCO2eq.44 The country has also committed to enhance resilience by implementing the priority actions set out National Climate Change Action Plan (NCCAP) and the National Adaptation Plan.45 The question that arises is whether a person can sue the government for failure to put in place sufficient measures to comply with international climate change obligations, including achieving the measures in its NDC. The Kenyan legal system provides latitude for individuals to sue the government for implementation of international obligations. The Constitution recognizes the country’s international obligations and has included international law as part of Kenyan law. Prior to 2010, Kenya took a dualist approach to the application of international law and a treaty ratified by Kenya would only apply nationally if Parliament domesticated it by passing legislation. This position changed in 2010 upon promulgation of the Constitution, which provides that treaties and conventions ratified by Kenya as well as general rules of international law form part of Kenyan law.46 This  Ibid., para. 94.  Climate Change Act, 2016, sec. 23. 44  Government of Kenya (2015). 45  Ibid., pt. 2.2. 46  Constitution of Kenya, Article 2. 42 43

Climate Change Litigation in Kenya: Possibilities and Potentiality

395

position has been reaffirmed by courts in a number of cases. For instance, in Kituo cha Sheria & 8 others vs Attorney General,47 the court reiterated that international conventions and treaties formed part of Kenyan law and were thus binding on the government. The court applied, among others, treaties dealing with refugees to find that a directive issued by government requiring refugees in urban centers to return to refugee camps was unconstitutional. The Paris Agreement, having been ratified by Kenya on 28th December 2016,48 is an operative law in the country and therefore binding on the government. Where the government fails to comply with the Agreement or any other international obligations, there is a likelihood that one may successfully sue. There have been cases where the courts have directed the government to undertake measures in compliance with international obligations, and this could as well be applicable to climate change obligations. In Satrose Ayuma and 11 Others vs Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme & 3 Others49 the Respondent, a government cooperation, was in the process of forcefully evicting the Plaintiffs and the Plaintiffs filed a suit based on violation of socio-economic rights, children rights and the right to dignity guaranteed by the Constitution and international treaties. In importing the provisions of ICSECR and UN Basic Principles and Guidelines on Development based Evictions and Displacement, the court directed the Attorney General to develop policies and legal framework on forced evictions and for progressive realization of the right to housing.50 The court further directed the government to develop an eviction program together with the Petitioners in accordance to the UN Guidelines. The above cases and many others provide jurisprudential basis for courts to hold the government liable for failure to comply with international climate obligations. Where the government fails to implement the NDC, one may rely on Article 4 of the Paris Agreement which requires parties to pursue domestic measures to achieve their NDCs. Where questions of whether NDC is legally binding arise, it can be argued that considering the Paris Agreement is part of Kenyan law, Article 4 mandates the government to implement NDCs. However, one will need to prove lack of sufficient measures by the government considering that Kenya’s NDC is subject to international support.

 Nairobi HC Constitutional Petition 19 & 115 of 2013.  Paris Agreement ratification http://unfccc.int/paris_agreement/items/9444.php. 49  Nairobi HC Constitutional Petition 65 of 2010. 50  Ibid., paras 110–111. 47 48

396

L. A. Omuko-Jung

3.2.2 Climate Change Under Human Rights Litigation The guarantee of human rights by the Kenyan constitution provides a legal basis for litigating climate change as a human rights issue. The Constitution guarantees right to life,51 right to clean and healthy environment52 and socio-economic rights, which are arguably threatened by climate change. The right to a clean and healthy environment includes the right to have the environment protected for the present and future generations. In addition to the provision generally providing for enforcement of Bill of Rights, Article 70 specifically provides for enforcement of environmental rights and allows any person to sue for protection of environmental rights without demonstrating that ‘any person has incurred loss or suffered damage.’ With the application of these constitutional provisions, one can arguably sue public and private actors for climate violations on human rights grounds. Kenyan courts have recognized that degradation of the environment is a threat to enjoyment of the right to life and it is arguable that the courts may consider climate change as a threat to right to life. In the case of Peter K. Waweru vs Republic,53 the Applicant and others had been charged with the offence of discharging raw sewage into public water and environment. The Applicant filed a constitutional reference challenging the charges on the grounds of violation of constitutional rights against discrimination because the authorities charged them with unlawful conduct in which all landowners were engaged in. Whereas the court discharged them on the ground of discrimination, the court went at length to discuss the effects of their action on the environment and sustainable development. The court found that their actions were a threat to people’s right to clean and healthy environment and ordered a remedial action to be taken by the government. This case was under the previous Constitution where the right to clean and healthy environment was not a constitutional right but statutory provision. The Court held that the right to life can be threatened by many things including the environment. Following the jurisprudence of the Pakistan case of Shehla Zia v Wapda,54 Judges held that, [I]t is quite evident from perusing the most important international instruments on the environment that the words life and the environment are inseparable and the word life means much more than keeping body and soul together. The orders we make in this case under s 84(1) are clearly intended to secure the right to life in the environmental context”

Although the case was decided under the previous constitutional dispensation, it provides a precedent for considering climate change as a threat to the right to life, right to clean and healthy environment and socio-economic rights. Proof of violations will however require evidence clearly demonstrating how climate related activities impact on the environment, quality of life or aspects of socio-economic rights such as health. Furthermore, the evidence needs to show that the government  Constitution of Kenya, Article 26.  Ibid., Article 42. 53  Nairobi HC Misc. Civil Application 118 of 2014. 54  PLD 1994 SC 693. 51 52

Climate Change Litigation in Kenya: Possibilities and Potentiality

397

is not taking sufficient adaptation and mitigation measures or in case of private entities, that their climate intensive activities are impacting the environment. This is because courts have taken the position that where one alleges violation of constitutional rights, one must not only state the alleged violations but also demonstrate the manner in which they have been violated.55 It has been recognized that climate change is one of the largest and most pervasive threat to enjoyment of these rights.56 There is a lot of literature, scientific evidence as well as experts who could testify to this. Considering that the applicants do not need to show personal injury in enforcing environmental rights, it would arguably be sufficient for the applicant to only prove the negative impacts of climate change on the environment or on the quality of life. Petitions seeking to enforce fundamental rights can also be lodged against private persons. The obligation to protect human rights is not only placed on the state but also on private entities. Article 3(1) of the Constitution mandates every person to respect and uphold the Constitution while Article 20(1) provides that the Bill of Rights binds all State organs and all persons. In Satrose Ayuma case,57 the court reiterated that the Bill of Rights can be enforced against private persons including companies, individuals or any association. In addition, the constitution specifically mandates every person to cooperate with the State to protect and conserve the environment.58 Considering this approach, human rights litigation can be lodged against private entities that are liable for climate violations. 3.2.3 Litigating Climate Change Under Judicial Review Judicial review process in Kenya is used by courts to check the actions of public bodies to ensure that these bodies act within the law. The procedure is used to challenge decisions of public bodies where such bodies act outside the law or fail to perform their functions and courts can issue orders of certiorari to quash decisions, mandamus to compel public bodies to perform its functions and prohibition to stop an unlawful action. Additionally, courts can also grant monetary compensation and issue declarations on legal positions. Judicial review in Kenya has evolved from a common law basis to a constitutional principle.59 The Constitution guarantees a right to fair administrative action  See Anarita Karimi Njeru vs Republic, Nairobi HC Misc. Criminal Application 4 of 1979; Peter Michobo Muiru v Barclays Bank of Kenya Ltd & Another, Nairobi HC Constitutional Petition 254 of 2015. 56  See for instance, UNEP and Sabin Center for Climate Change Law (2015) and International Bar Association (2014). 57  Nairobi HC Constitutional Petition 65 of 2010, paras 52–55. 58  Article 69(2) mandates every person to cooperate with State organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources. 59  For a discussion of evolution of judicial review in Kenya, see Lumumba (2006) and Ochiel (2015). 55

398

L. A. Omuko-Jung

that is lawful, reasonable and procedurally fair.60 In addition, Article 165(6) empowers the High Court to supervise the decisions of public bodies exercising judicial and quasi-judicial authority other than the superior courts. The High Court is also allowed to make orders of judicial review in proceedings relating to enforcement of Bill of Rights.61 To give effect to the right to fair administrative action, the Fair Administrative Action Act62 was passed in 2015 which provides that the grounds for judicial review include where a public actor acts in excess of jurisdiction, fails to follow laid down procedure, fails to take into account relevant considerations and unreasonable decision among others.63 These provisions provide basis for challenging decisions of administrative bodies that act contrary to the law or fail to follow due process, including in climate litigation. Public bodies are required to follow procedures set out in law and where they fail to do so, the courts will intervene. In Moffat Kamau case, the judge reiterated the need for public bodies to follow procedures in protecting the environment and stated: [W]here a procedure for the protection of the environment is provided by law and is not followed, then an assumption ought to be drawn that the project is one that violates the right to a clean and healthy environment, or at the very least, is one that has potential to harm the environment. This presumption can only be rebutted if proper procedure is followed and the end result is that the project has been given a clean bill of health or its benefits are found to far outweigh the adverse effects to the environment.64

It is thus possible to challenge decisions of public actors to approve projects without taking into account the relevant climate mitigation and adaptation considerations. Climate change is now a mandatory consideration in public decision-making in Kenya. The Climate Change Act requires both the national and subnational governments to mainstream climate change responses into planning and decision-making and to build resilience and enhance adaptive capacity.65 In addition, the Paris Agreement, which is part of Kenyan law, requires members to pursue domestic measures to achieve their NDCs.66 Although the achievement of Kenya’s NDC is subject to international support, it is expected that public bodies will implement the actions therein, which will require public bodies to consider climate mitigation and adaptation in decision making. Furthermore, sustainable development is a mandatory guiding principle for decision makers in Kenya67 and considering the effect of

 Constitution of Kenya, Article. 47(1).  Ibid., Article 23(3)(f). 62  Fair Administrative Action Act, 2015. 63  Ibid., sec. 7(2). 64  Nakuru ELC Constitutional Petition 13 of 2015, para. 90. 65  Climate Change Act 2016, sec. 2. 66  Paris Agreement, Article 4 http://unfccc.int/files/essential_background/convention/application/ pdf/english_paris_agreement.pdf. 67  Constitution of Kenya, Article 10. 60 61

Climate Change Litigation in Kenya: Possibilities and Potentiality

399

climate change on sustainable development,68 it can be argued that climate change must therefore be taken into consideration to promote sustainable development. Although there have not been cases challenging decisions of public bodies for failure to consider climate change, there are a lot of cases where courts have quashed decisions of public actors for failure to comply with the law or where courts have mandated public bodies to perform their statutory duties. These provide precedent on how decisions of public actors can be challenged for failure to consider climate change. The court in Republic vs Kenya Forest Service exparte Clement Kariuki & 2Others69 quashed the decision of the Kenya Forest Service to grant concession on state forests and prohibited KFS from granting any further concession on the suit property except in accordance with the law. The decision of the court was based on the grounds that the Respondent had failed to take into consideration constitutional and statutory provisions on public participation and forest management. In Peter Waweru case, the court on its own motion found that the Ministry of Water and the Olkejuado County Council had failed to perform their statutory duties to find a suitable site for sewage treatment and issued an order of mandamus to compel the Ministry and the Council to construct Sewerage Treatment Works.70 The court also directed the relevant authorities to apply the ‘polluter pays’ principle for the property owners to pay the cost of environmental restoration.71 The Climate Change Act has placed specific responsibilities on state departments. These include integrating climate change into legislative and policy functions, reporting on sectorial greenhouse gas emissions, designating a unit with adequate staff and financial resources to coordinate the mainstreaming of climate change actions into sectoral strategies for implementation, monitoring and reviewing the performance of the integrated climate change functions, developing and implementing mechanisms for sustainability in performance of sectoral mandates; and reporting annually on the status and progress of performance and implementation of all assigned climate change duties and functions.72 Where an entity fails to perform these duties, a person can apply to court and like in the Peter Waweru case, the court may compel a public body to perform the said functions, taking into account the relevant circumstances. The Climate Change Act also allows the court to compel public officers to take measures to prevent or discontinue an act or omission that is harmful to the environment.73 The courts have also been willing to quash decisions of public bodies where they fail to take into account environmental principles set out in the Constitution, statutes and international treaties. These include the sustainable development principles of

 For a discussion on impacts of climate change on Kenya’s sustainable development, see Odote (2013), p. 815. 69  Nairobi HC JR 285 of 2012. 70  Nairobi HC Misc. Civil Application 118 of 2014, p. 11. 71  Ibid., p. 12. 72  Climate Change Act, 2016, sec. 15. 73  Ibid, sec. 23(2). 68

400

L. A. Omuko-Jung

public participation, polluter pays and precautionary principle. In the case of Sam Odera and 3 Others vs National Environmental and Management Authority & Another,74 the High Court quashed the decision of the environmental authority to approve installation of a telecommunication base. The court faulted the environmental authority for failing to adopt the precautionary principle in its decision-­ making and held: By overlooking the necessary statutory procedures and Regulations, NEMA has in the view of the Court thrown caution to the wind and in turn justice demands that they undertake the exercise again with a cautionary mind. …. In the view of this court, for NEMA/respondent to demonstrate that it had discharged its mandate or legal obligations under the Act and the regulations as a decision maker it only have to prove that it did actually take all material considerations into account when making its decision. Failure to do so would justify a challenge under the Act and would directly invite judicial review of the decision.75

The UNFCCC, which is binding upon the government by virtue of the Constitution, requires parties to take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. The Constitution, Climate Change Act and EMCA all mandate public entities to mainstream the principle of sustainable development. In mainstreaming sustainable development, precautionary measures need to be taken into account by public bodies to avert the possible effects of climate change. The application of the principle can be two-fold in judicial review cases. The courts can quash decisions of public bodies for failure to take precautionary measures or the courts can take a precautionary approach in decision-making and either stop a project from continuing or compel a public entity to consider climate change while performing its functions.

3.3 Private Civil Litigation Private litigation refers to cases which individuals file against other private persons for private injuries which usually seek monetary compensation for injuries or to stop a continuing injury. In Kenya, private litigation is commonly used to hold entities liable for environmental violations. The causes of action usually include negligence, trespass, nuisance and strict liability as set out in the famous case of Rylands vs Fletcher. As commonly used in environmental litigation, these causes of action can be used to sue private entities for climate violations.

74 75

 Nairobi HC Misc. Civil Application 400 of 2006.  Ibid, p. 6.

Climate Change Litigation in Kenya: Possibilities and Potentiality

401

For instance, in David M.  Ndetei vs Orbit Chemicals Industries Limited76 the Defendant was sued for permitting untreated sewage and other effluent into the Plaintiff’s premises. The Defendant is a manufacturer of industrial chemicals and the Plaintiff alleged that the effluent from the Defendant’s factory damaged soil and water in his land leading to loss of plants and causing offensive odours. While relying on the principles set out in Rylands vs Fletcher, the court found that the Defendant was liable for the escape of hazardous elements from its factory to the Plaintiff’s premises and for causing damage to the land. The court did not confine itself to the strict definition under Ryland vs Fletcher of ‘non-natural use of land’ but found that industrial use of land could be considered as a non-natural use of land. An injunction was issued restraining the Defendant from improperly disposing contaminated water and sewage and directed the Defendant to redirect storm water away from the Plaintiff’s property.77 In addition, the court applied the ‘polluter pays principle’ to grant the Plaintiff damages and the cost of restoration. Just like in the above case, private litigation can play an important role in holding private entities liable for their emissions. However, one of the challenges would be to prove causation. This is because even with the relaxed requirement of causation in environmental matters, Plaintiffs are still required to prove causation in private environmental cases. The Plaintiffs need to not only prove that they have suffered injury or loss but also that the injury is as a result of the Defendants’ actions. In the David Ndetei case, the Plaintiff had to prove first that the Defendant permitted hazardous effluent to flow to his property and secondly that the effluent from the Defendant’s premises caused harm to the Plaintiff. The court stressed the need to show this connection when it stated that: Having found that in deed hazardous elements from the factory escaped from the Defendant’s factory into the Plaintiff’s land, the question that then follows is whether they caused any damage to his land for which the Defendant ought to be held liable.78

Considering the global nature of climate change, plaintiffs will find it difficult to link their injuries to emissions from specific entities, making it difficult to successfully sue emitting companies under the law of tort. It has been suggested that the application of precautionary principle could address this causation challenge.79 The principle may be applied by courts for remedial action where there is inconclusive scientific proof linking the defendant’s actions to the Plaintiff’s harm thus reverse the burden of proof.80 The Kenyan courts have applied this principle not only in public cases but also in private litigation. In Rogers Muema Nzioka & 2 Others vs Tiomin Kenya Limited,81 the defendant, a mining company, had taken up licenses for mining titanium in the coastal region. The Plaintiffs were residents of the region and  Meru HCCC. 147 of 2008.  Ibid, para. 72. 78  Ibid., para. 48. 79  Kameri-Mbote and Odote (2011), p. 315; Omuko (2016), p. 65; Peel (2011). 80  Omuko (2016), p. 65. 81  Mombasa HCCC 97 of 2001. 76 77

402

L. A. Omuko-Jung

filed a suit to stop the defendant from carrying out mining activities on the ground that, among others, they wanted their environment and health secure. The court, while being ‘guided by principles of public participation, cultural and social principles and principles of international co-operation, principles of intergenerational and intragenerational equity, polluter pays principle and precautionary principles,’ issued an interlocutory injunction restraining the defendants from undertaking mining activities in the suit property.82 The application of the Climate Change Act in private cases could also provide a reprieve to Plaintiffs seeking to hold private entities liable for their climate violations. As discussed above, the Act allows any person to sue private or public entities that frustrate mitigation and adaptation efforts. Where the court finds an entity is frustrating such efforts, it may issue orders to ‘prevent, stop or discontinue the act or omission; compel a public officer to take measures to prevent or discontinue the act or omission or provide compensation to a victim of a violation relating to climate change duties’.83 Whereas the orders relating to prohibitory and mandatory injunction may be practically possible without the need to prove personal injury, quantifying compensation may still require one to prove injury. The purpose of compensation in civil litigation is to compensate a claimant for loss suffered as a result of the defendant’s actions or to place the Plaintiff in a position he would have been without the Defendant’s actions.84 Where there is no proof of loss or injury, there would arguably be no basis for quantifying compensation as well as for determining who is entitled to the compensation.

4 But Why No Litigation? 4.1 Legal Technicalities As discussed above, the issues of locus standi and causation were a challenge until enactment of EMCA, Climate Change Act and promulgation of the Constitution which relaxed the requirement of locus standi and proof of causation in climate-­ related cases. Even with the existence of constitutional and legislative provisions relaxing the requirement of locus standi and causation, parties still need to establish a causal link in private environmental cases.85 Considering how difficult it is to establish a causal link in climate litigation, potential Plaintiffs and lawyers shy away from getting into the murky waters.

 Ibid., p. 10.  Climate Change Act, 2016, sec. 23. 84  Kanjama (2010). 85  In David Ndetei case the Plaintiff was required to prove that he had suffered loss which was as a result of the Defendant’s actions. 82 83

Climate Change Litigation in Kenya: Possibilities and Potentiality

403

In addition, there are no clear rules on award of damages for climate related violations. Whereas the Climate Change Act does away with the requirements of locus standi and proof of causation, it is still unclear how climate related damages will be assessed considering the Act allows one to sue without showing any loss or injury. The standard practice in litigation is that damages are assessed and awarded based on the injury or loss suffered by the Plaintiff and the contribution of the Defendant.86 In terms of climate litigation, it is difficult to quantify the damage suffered by the Plaintiff as well as the contribution of the potential defendant to damage suffered. There are also no compensation guidelines for climate related violations that have been established to guide parties in determining climaterelated compensation.

4.2 Financial Constraint Litigation is an expensive affair in Kenya. Lawyers’ fees, court filing fees and the likelihood of paying the cost of litigation where one is unsuccessful hinder climate litigation. Courts usually levy fees for filing pleadings and filing fees differ based on the prayers sought and the value of the subject matter. Whereas the constitution abolished filing fees in matters involving enforcement of the bill of rights,87 fees are still charged on filing civil matters. The filing fees in civil matters are not accessible to a large population in Kenya, making it difficult for individuals who may wish to address climate change under civil litigation. The Civil Procedure Rules allow one to file a suit as a pauper where one is unable to pay the costs related to the suit.88 However, the challenge with this is that an application to determine whether one may sue as a pauper has to be filed and determined first before one can file a suit as a pauper.89 This involves a lot of procedural technicalities and is time consuming which may puts off potential applicants. In terms of costs of litigation, whereas the courts have wide discretion in determining who should bear the costs, the general rule is that costs follow the event unless the court has reasons to order otherwise.90 In practice, the approach taken by courts is different in public and private cases. It is common for the losing party to bear the costs of litigation in private cases unless there is a good reason for court to decide otherwise.91

 David M. Ndetei case, Meru HCCC. 147 of 2008, para. 67.  Constitution of Kenya, Article 22(3). 88  Civil Procedure Rules, 2010, Order 33. 89  Ibid. 90  Civil Procedure Act, [Rev.2012], sec 27. 91  See Stanley Kaunga vs Meru Teachers College & Another, Meru HC Civil Appeal 84 of 2011. 86 87

404

L. A. Omuko-Jung

In public interest litigation, the courts are required to take appropriate measures to ensure that every person has access to court to determine their rights and fundamental freedoms.92 The approach that has been taken by courts is for each party to bear their own costs. In Amoni Thomas Amfry & Another vs Minister for Land &Others93 the court held that: I would follow what was stated in Harun Mwau and Others v Attorney General and Other Nairobi Petition No. 65 of 2011 [2012] eKLR, where the Court stated. “[180] In matters concerning public interest litigation, a litigant who has brought proceedings to advance a legitimate public interest and contributed to a proper understanding of the law in question without private gain should not be deterred from adopting a course that is beneficial to the public for fear of costs being imposed. Costs should therefore not be imposed on a party who has brought a case against the state but lost.”94

In another case, Feisal Hassan & 2 Others Public Service Board of Marsabit County and Another,95 the court was of the view that a petitioner seeking to enforce the constitution should not be punished for losing if the petition meets the public interest criteria.96 The court reasoned that ‘in constitutional litigation, the principle of access to the court must, consistently with the public importance and interest in the observance and enforcement of the Bill of Rights in the Constitution, override the general principle that costs follow the event’. Litigating climate change as a public interest issue is relatively cheaper than in private litigation. Whereas public interest litigation is more accessible, there is still lack of sufficient awareness and the court processes are still perceived by a majority of the population as expensive, inaccessible and time-consuming. In addition, public climate cases are not attractive to individuals as they are not seen to have an immediate or ‘personal’ benefit if one is successful. This could be attributed to lack of proper understanding of the intricacies of climate change and its impacts to the population.

4.3 Lack of Awareness Climate change awareness is relatively low, especially among the vulnerable groups such as those in rural areas who depend on climate sensitive economic sectors. A survey conducted during the preparation of the NCCAP showed that public awareness of climate change in Kenya is low.97 Whereas the population is aware of the increase in temperatures as well as the frequent droughts and flood occurrences,  The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, Rule 26. 93  Nairobi HC Constitutional Petition 6 of 2013. 94  Ibid., para.25. 95  Nairobi HC Constitutional Petition 329 of 2016. 96  Ibid, para.3. 97  Government of Kenya (2012). 92

Climate Change Litigation in Kenya: Possibilities and Potentiality

405

most of the population cannot explain the cause98 nor connect it to the concept of GHG emissions.99 There is also lack of understanding of the government’s role on climate change mitigation and adaptation as well as the contribution by emitting entities. Limited awareness has led to little demand by citizens for climate action from either the government or private sector, which explains the lack of climate litigation in Kenya.

5 Conclusion Kenya has made strides in establishing a legal framework to deal with climate change, including enactment of a climate specific legislation. Even with the strong legal framework, climate litigation has not yet been explored. However, considering the increasing interest in and awareness of climate impacts, the relaxed requirement of locus standi and causation, and the extensive environmental jurisprudence developed over the years, climate related claims are likely to be soon litigated upon in Kenyan courts. For success of climate litigation, there is need for a clear and consistent interpretation of the law on the requirement of proof of causation in private climate litigation. This Chapter has shown that courts still require parties to prove causation in private environmental litigation, which is a challenge likely to be faced by litigants when litigating climate change under private law. The courts will thus need to be innovative in their interpretation and application of the Climate Change Act, the Constitution and other environmental legislations. In addition, there is need for development of compensation guidelines to guide award and assessment of climate-­ related damages.

References CAMCO Advisory Services (K) Limited (2010) Climate change vulnerability and adaptation preparedness in Kenya. Heinrich Böll Stiftung, Nairobi Government of Kenya (2012) National climate change action plan. Ministry of Environment and Mineral Resources, Nairobi. https://cdkn.org/wp-content/uploads/2013/03/Kenya-NationalClimate-Change-Action-Plan.pdf. Accessed 18 Nov 2017 Government of Kenya (2015) Kenya’s Nationally Determined Contribution. http://www4.unfccc. int/ndcregistry/PublishedDocuments/Kenya%20First/Kenya_NDC_20150723.pdf. Accessed 16 Nov 2017 International Bar Association Climate Change and Human Rights Task Force (2014) Achieving Justice and human rights in an era of climate disruption. International Bar Association, London

98 99

 CAMCO Advisory Services (K) Ltd (2010).  Norrington-Davies and Thornton (2011).

406

L. A. Omuko-Jung

Kameri-Mbote P, Odote C (2011) Avenues for climate change litigation in Kenya. In: Lord R, Goldberg S, Rajamani L, Brunee J (eds) Climate change liability: transnational law and practice. Cambridge University Press, London, pp 296–318 Kanjama C (2010) General damages. In: Hot from the Bench. LawAfrica. http://lawafrica.net/ bench.php?hbid=16. Accessed 18 Nov 2017 Lumumba PLO (2006) Judicial review in Kenya. LawAfrica, Nairobi Norrington-Davies G, Thornton N (2011) Climate change financing and aid effectiveness: Kenya case study. http://www.oecd.org/dac/environment-development/48458443.pdf. Accessed 18 Nov 2017 Ochiel JD (2015) The Constitution of Kenya 2010 and judicial review: why the Odumbe case would be decided differently today. Kenya Law. http://kenyalaw.org/kenyalawblog/the-constitution-of-kenya-2010-and-judicial-review-odumbe-case/. Accessed 12 Nov 2017 Odote C (2013) Public interest litigation and climate change  – an example from Kenya. In: Ruppel OC, Roschmann C, Ruppel-Schlichting K (eds) Climate change: international law and global governance: volume I: legal responses and global responsibility, 1st edn. Nomos Verlagsgesellschaft mbH & Co. KG, Baden-Baden, pp 805–830 Omuko L (2015) Climate change governance at sub-national level: key lessons for Kenya’s County Governments. SCELG Working Paper 2/2015. https://www.strath.ac.uk/media/1newwebsite/ departmentsubject/law/strathclydecentreforenvironmentallawandgovernance/pdf/workingpapers/Working_Paper_2.pdf.pagespeed.ce.y9Fa34OfWm.pdf. Accessed 12 Dec 2017 Omuko LA (2016) Applying the precautionary principle to address the “Proof Problem” in climate change litigation. Tilburg Law Rev 21:52–71. https://doi.org/10.1163/22112596-02101003 Peel J (2011) Issues in climate change litigation. Carbon Clim Law Rev 5:15–24. https://doi. org/10.21552/CCLR/2011/1/162 Preston B (2009) Climate change litigation. CCLR 5(3):12–14 The Paris Agreement. https://unfccc.int/sites/default/files/english_paris_agreement.pdf. Accessed 25 Aug 2018 United Nations Environment Program and Sabin Center for Climate Change Law (2015) Climate Change and Human Rights. http://columbiaclimatelaw.com/files/2016/06/Burger-andWentz-2015-12-Climate-Change-and-Human-Rights.pdf. Accessed 15 Nov 2017 United Nations Environment Program and Sabin Center for Climate Change Law (2017) The Status of Climate Change Litigation, a Global Review. http://columbiaclimatelaw.com/files/2017/05/ Burger-Gundlach-2017-05-UN-Envt-CC-Litigation.pdf. Accessed 10 Dec 2017 United Nations Framework Convention on Climate Change. https://unfccc.int/files/essential_ background/background_publications_htmlpdf/application/pdf/conveng.pdf. Accessed 25 Aug 2018

List of Cases Amoni Thomas Amfry & Another vs Minister for Land & Others, Nairobi HC Constitutional Petition 6 of 2013 [2013]eKLR. http://kenyalaw.org/caselaw/cases/view/86280 Accessed on 12 November 2017 Anarita Karimi Njeru vs Republic, Nairobi HC Misc. Criminal Application 4 of 1979 [1979]eKLR. http://kenyalaw.org/caselaw/cases/view/36849/ Accessed on 13 November 2017 Charles Lukeyen Nabori & 9 others vs the Attorney General & 3 Others, Nairobi HC Constitutional Petition 446 of 2006. [2007]eKLR. http://kenyalaw.org/caselaw/cases/view/41234/ Accessed on 16 November 2017 David M.  Ndetei vs Orbit Chemicals Industries Limited, Meru HCCC. 147 of 2008 [2014]eKLR. http://kenyalaw.org/caselaw/cases/view/99244/ Accessed on 12 November 2017 Feisal Hassan & 2 Others vs Public Service Board of Marsabit County & Another, Nairobi HC Constitutional Petition 329 of 2016 [2016]eKLR. http://kenyalaw.org/caselaw/cases/ view/125845/ Accessed on 12 November 2017

Climate Change Litigation in Kenya: Possibilities and Potentiality

407

Kenya Ports Authority vs East African Power and Lightning Company, Mombasa CoA Civil Appeal No.41 of 1981 [1982]eKLR. http://kenyalaw.org/caselaw/cases/view/53095/ Accessed on 12 November 2017 Kituo cha Sheria & 8 Others vs Attorney General, Nairobi HC Constitutional Petition 19 & 115 of 2013 [2013]eKLR. http://kenyalaw.org/caselaw/cases/view/84157 Accessed on 16 November 2017 Moffat Kamau & 9 Others vs Aelous Kenya Limited & 9 Others, Nakuru ELC Constitutional Petition 13 of 2015 [2016]eKLR. http://kenyalaw.org/caselaw/cases/view/125995/ Accessed on 16 November 2017 Peter K.  Waweru vs Republic, Nairobi HC Misc. Civil Application No. 118 of 2014 [2006]eKLR. http://kenyalaw.org/caselaw/cases/view/14988/ Accessed on 16 November 2017 Peter Michobo Muiru v Barclays Bank of Kenya Ltd & Another, Nairobi HC Constitutional Petition 254 of 2015 [2016]eKLR. http://kenyalaw.org/caselaw/cases/view/121452/ Accessed on 13 November 2017 Republic vs Kenya Forest Service exparte Clement Kariuki & 2 Others, Nairobi HC JR 285 of 2012 [2013]eKLR. http://kenyalaw.org/caselaw/cases/view/83362 Accessed on 12 November 2017 Rogers Muema Nzioka & 2 Others vs Tiomin Kenya Limited, Mombasa HCCC 97 of 2001 [2001]eKLR. http://kenyalaw.org/caselaw/cases/view/1357/ Accessed on 12 November 2017 Sam Odera & 3 Others vs National Environmental and Management Authority & Another, Nairobi HC Misc. Civil Application 400 of 2006 [2006]eKLR. http://kenyalaw.org/caselaw/cases/ view/35604 Accessed on 12 November 2017 Satrose Ayuma & 11 Others vs Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme & 3 Others, Nairobi HC Constitutional Petition 65 of 2010 [2013]eKLR. http://kenyalaw.org/caselaw/cases/view/90359/ Accessed on 16 November 2017 Shehla Zia vs Wapda PLD 1994 SC 693 Simion Swakey Ole Kaapei & 89 others v Commissioner of Lands & 7 Others, Nakuru HC Misc. Civil Application 32 of 2011 [2014]eKLR. http://kenyalaw.org/caselaw/cases/view/95193/ Accessed on 16 November 2017 Stanley Kaunga vs Meru Teachers College & Another, Meru HC Civil Appeal 84 of 2011 [2016]eKLR. http://kenyalaw.org/caselaw/cases/view/118890/ Accessed on 12 November 2017 Wangari Maathai vs Times Media Trust, Nairobi, HCCC 5403 of 1989 [1989]eKLR. http://kenyalaw.org/caselaw/cases/view/53011/ Accessed on 16 November 2017

List of Statutes Civil Procedure Act [Rev. 2012], Chapter 21 Laws of Kenya Civil Procedure Rules, Legal Notice No. 151/2010 Climate Change Act, No. 11 of 2016 Laws of Kenya Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, Legal Notice 117/2013 Constitution of Kenya, 2010 Energy (Energy Management) Regulations, Legal Notice No. 102/2012 Energy (Solar Water Heating) Regulations, Legal Notice No. 43/2012 Energy Act, No.1 of 2019 Laws of Kenya Environmental Management and Coordination Act 1999, Chapter 387 Laws of Kenya Fair Administrative Actions Act, No. 4 of 2015 Laws of Kenya Forest Conservation and Management Act, No. 34 of 2016 Judicature Act [Rev. 2016], Chapter 8 Laws of Kenya

408

L. A. Omuko-Jung

Lydia A. Omuko-Jung  is a Research Fellow at the Institute of Public Law and Political Science at University of Graz, where she is also part of ClimLaw: Graz—a research centre for Climate Law. She is also a doctoral candidate within the Doctoral Programme Climate Change at the same University. Her current research focusses on Climate Change Litigation and Legal Aspects of Consumption-based Instruments for Climate Change Mitigation. Lydia is an Advocate of the High Court of Kenya and previously worked as a Litigation Associate in a private law firm in Nairobi litigating in national and regional courts within East Africa on constitutional, judicial review and environmental law cases. She also consulted for subnational governments in Kenya in mainstreaming climate change considerations into sectoral legislations and policies and in formulating climate related policies. She holds an LL.M in Climate Change Law and Policy from University of Strathclyde, a Postgraduate Diploma in Law from Kenya School of Law and an LL.B (Hons) from Moi University in Kenya. She is also the 2015 awardee of the Colin Donald Environmental Law Award. She can be reached at [email protected]

Climate Change Litigation in Nigeria: Challenges and Opportunities Uzuazo Etemire

Abstract  The Intergovernmental Panel on Climate Change is clear on the fact that ‘Africa is one of the most vulnerable continents to climate variability and change.’ True to this fact, Nigeria, whose oil and gas industry contributes massively to the global rise of greenhouse gas emissions through gas flaring, is experiencing the adverse effects of climate change in term of increasing cases of droughts, floods, amongst others. Considering the potential contributions which a national court can make in halting human activities that undermine climate change mitigation and adaptation efforts, this chapter assesses from diverse perspectives, the status and possibility of climate change-related litigation by individuals before national courts in Nigeria. The analysis shows that, though desirable, climate change litigation in Nigeria is, at best, at its infancy, and that a lot needs to be done to more fully and effectively realise its potential in the country. To that effect, ideas on the way forward were provided.

1 Introduction Nigeria is a developing country in Africa. It is also the continent’s largest economy.1 Nigeria’s oil and gas sector is the major source of greenhouse emissions in the country, amongst other sources. Its oil and gas industry is the nation’s economic backbone, providing the bulk of government revenue and foreign exchange earnings, and constituting about forty percent of the country’s GDP.2 Considering this, and the fact that Nigeria is one of the world’s major oil producing countries, the industry has over the years been allowed to run in an environmentally unsustainable manner that  BBC (2014).  Afinotan and Ojakorotu (2009), p. 191.

1 2

U. Etemire (*) Faculty of Law, University of Port Harcourt, Port Harcourt, Nigeria e-mail: [email protected] © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_21

409

410

U. Etemire

contributes enormously to global greenhouse gas emissions. Oil production is usually accompanied with escape of natural gas. While most of this gas can be captured and reinjected into the ground or collected for sale (through a process that may initially be expensive to set up), the oil companies and the government have failed over the years to establish such measures, but have rather permited the cheaper option of flaring the gas.3 It is estimated that Nigeria’s gas flaring—which was responsible for around 48 million tonnes of emissions in 2010 alone4—has contributed more greenhouse gases to the atmosphere than all of sub-Saharan Africa combined.5 Of course, Nigeria is not immune from the effects of global climate change. In fact, the Intergovernmental Panel on Climate Change has concluded that ‘Africa is one of the most vulnerable continents to climate variability and change’.6 The reality of this position is being witnessed in Nigeria which is experiencing increasing cases of droughts, floods, deforestation, loss of biodiversity, acid precipitation and significant rise in sea level, among others.7 In light of the above, given the potential contributions which a national court can make in halting human activities—whether or not related to oil and gas operations—that undermine climate change mitigation and adaptation efforts, this chapter seeks to assess from diverse perspectives, the status and possibility of climate change-related litigation by individuals before national courts in Nigeria, and provides ideas on the way forward in this regard, where necessary. However, in order to create a proper foundation for understanding and unravelling the aforementioned issues, a few words on the legal framework on climate change in Nigeria, is appropriate.

2 Climate Change Law in Nigeria For a country like Nigeria which is not only vulnerable to the negative effects of climate change, but currently experiencing same, one would expect that it would be ‘swamped’ with laws directly addresses this phenomenon that threatens its wellbeing. Yet, in Nigeria, unlike some other countries, there is no legislative instrument specifically focused on climate change, or one that creates a foundation for unified national action with respect to tackling climate change and it myriad of challenges. In this regard, what exists is a Climate Change Bill8 that aims to, amongst others,

 Aaron (2006), pp. 193–215.  Federal Ministry of Environment (2015), p. 13. 5   The Climate Justice Programme & Environmental Rights Action/Friends of the Earth Nigeria (2005). 6  Intergovernmental Panel on Climate Change (2007). 7  Ehiemua (2013), pp. 90–96. 8  On file with author. 3 4

Climate Change Litigation in Nigeria: Challenges and Opportunities

411

create a National Climate Change Commission with statutory powers to take a variety of actions, as well as facilitate coordination and support for multi-level and inter-sectorial responses to climate change. Unfortunately, this Bill has not received the desired attention from the Nigerian federal legislative arm necessary for it to be passed into law.9 Nevertheless, the Federal Executive Council adopted in 2012 the Nigeria Climate Change Policy Response and Strategy. The strategic goal of the Nigeria Climate Change Policy Response and Strategy is to foster low-carbon, high growth economic development and build a climate resilient society through the attainment of objectives that include implementing mitigation and adaption measures. While this policy generally strives to ensure effective climate change action nationally, as a result of its policy nature, its content is merely directional and not enforceable before a court of law in Nigeria. Yet, despite the non-existence of a law specifically on climate change in Nigeria, there are several other laws in the country with possible climate change implications which will be referred to in the subsequent section within the context of the status of climate change litigation in Nigeria.

3 Climate Change Litigation in Nigeria Considering that the causes and effects of climate change attach to both international and national jurisdictions, it is widely accepted that to effectively address climate change issues, action at both levels is required. Particularly, and in accordance with the focus of this work, climate change litigation at the national level by individuals ‘provides an alternative and attractive pathway to encourage mitigation of the causes and adaptation to the effects of climate change’, especially in the absence of effective international treaty and national government response to climate change.10 To be sure, successful climate change litigation has had far reaching implications of altering actions and omissions, and engendering the formulation and revision of government policies; and even where the cases were not successful, it has been argued they have nonetheless served to raise awareness about areas in need of reform or a renewed approach.11 In addition, it provides an avenue for public participation in the climate change regulatory and governance processes, as well as a mechanism for dialogue amongst stakeholders and for raising awareness in an environment where the relevant laws and policies lack what is required to address the problem.12

 In the meantime, there is the Department of Climate Change (under the Federal Ministry of Environment) with limited capabilities to coordinator national climate change action. See climatechange.gov.ng. 10  Onyeabor et al. (2016), pp. 146–147. 11  Preston (2007). 12  Blomquist (2012), p. 1054. 9

412

U. Etemire

It is in light of the above that this section aims to examine, around certain scenarios/queries, the status and possibility of climate change litigation by individuals before Nigerian courts.

3.1 Claims Against the Government Under this subhead, there are two important queries that will be addressed seriatim. The first is whether in Nigeria an individual can bring an action before a national court against the Nigerian government for allegedly not complying with its international climate change obligations. To address that issues, it is vital to note that Nigeria is a dualist country—its domestic law does not automatically incorporate and make nationally enforceable international obligations acquired by the government. Under Section 12 of the extant 1999 Constitution of the Federal Republic of Nigerian (as amended) (Nigerian Constitution),13 international obligations assumed by the Nigerian government have the force of law within the country (and its courts) only to the extent that such obligations have been domesticated or enacted into national law by the Nigerian National Assembly (Parliament). In other words, if the Nigerian government acquires an international obligation that is yet to be specifically enacted into Nigerian law, such an obligation simpliciter, in the event of a ‘breach’, will remain unenforceable against the government before a national court. Whilst Nigeria has been actively involved in international climate law negotiations and is a Party to the UN Framework Convention on Climate Change (UNFCCC),14 the Kyoto Protocol15 and even the Paris Agreement,16 it is yet to effectively domestic the (relevant aspects of the) laws in Nigeria. Also, Nigeria has voluntarily committed to the reduction of greenhouse gases under the Paris Agreement (unconditionally by 20% and conditionally 45% below Business as Usual (BUA) with a target year of 2030).17 However, this particular commitment is not domesticated in accordance with Section 12 of the Nigeria Constitution. Hence, the Nigerian government’s failure to comply with this commitment or, indeed, any of its international climate change obligations under the various treaties is not litigable per se before a national court given the above legal hurdle. Although, the Nigerian National Environmental Standards and Regulations Enforcement Agency (NESREA) is mandated under Section 7(c) of the NESREA Act18 ‘to enforce compliance with the provisions of international agreements… on

 Cap 23, Laws of the Federation of Nigeria, 2004.  (1992) 31 ILM 849. 15  (1998) 37 ILM 22. 16  Entered into force on 4 November 2016. 17  Federal Ministry of Environment (2015), p. 2. 18  Federal Republic of Nigeria Official Gazette No 92, Vol 94 of 31 July, 2007. 13 14

Climate Change Litigation in Nigeria: Challenges and Opportunities

413

the environment, including [on] climate change… as may from time to time come into force’, the agency cannot validly execute this obligation or even be compelled to do so, until the relevant international climate change obligations of the nation are constitutionally domesticated. Little wonder the Nigerian courts are yet to entertain any case bordering on the fulfilment by Nigeria of it international climate change obligations. Giving the above situation, the second concern is an inquiry into whether in Nigeria an individual can bring a case against a public actor (or even a private one) that allegedly does not comply with climate change-related obligations or other relevant requirements, on constitutional or human rights grounds. While environmental protection from harmful human activities has mainly been furthered within the realms of core environmental/climate change law, over the year, there has been a strategic shift towards using constitutional or human rights provisions to secure a healthy environment and address climate change-related issues. In fact, in the last few decades, there has been an increase in the number of national constitutions providing for a justiciable right to a clean/healthy environment, such as those in South Africa,19 Costa Rica,20 Bulgaria,21 etc. In Nigeria, the only similar provision is contained in Section 20 of the Nigerian Constitution, to the effect that: ‘the State shall protect and improve the environment and safeguard the water, air and land, forest and wild life of Nigeria.’ However, this provision, by virtue of Section 6(6)(c) of the Nigerian Constitution, is generally non-justiciable— i.e. unenforceable, and cannot directly be relied on by an aggrieved person in court, being merely an objective of the state, the fulfilment of which is dependent on the priorities of the government at a given time.22 Nonetheless, Article 24 of the African Charter on Human and Peoples’ Rights23— acceded to by Nigeria in 1983 and domesticated via the African Charter on Human and People’s Rights (Ratification and Enforcement) Act24 (African Charter Act)— provides for a legal right to a healthy environment that can be enforced before the Nigerian court. This Article provides that ‘all peoples shall have the right to a general satisfactory environment favourable to their development.’ In line with Section 12 of the Nigerian Constitution (stated earlier), the African Commission on Human and Peoples’ Rights held in the case of Social and Economic Rights Action Centre and Another v. Nigeria,25 that the right to a satisfactory environment under the Charter can be invoked in Nigerian domestic courts since the Charter has been incorporated into Nigerian domestic law. And this view aligns with the decision in

 Constitution of the Republic of South Africa 1996 (Act 108 of 1996), Section 24.  The Political Constitution of the Republic of Costa Rica 1949 (as amended), Article 50. 21  Constitution of the Republic of Bulgaria 1991 (as amended), Article 55. 22  Olawuyi (2015), p. 86. 23  27 June 1981, 1520 UNTS 217. 24  Cap A9, Laws of the Federation of Nigeria, 2004. 25  (2001) AHRLR 60. 19 20

414

U. Etemire

the case of Abacha v Fawehinmi,26 where the Nigerian Supreme Court specifically held that the provisions of the African Charter are enforceable before Nigerian courts. Despite the existence in Nigeria of this enforceable legal right to a healthy environment under the African Charter, it is obvious to many that ‘Nigerian judges usually privileged the economic benefits of the country over environmental protection, particularly in relation to oil operations’.27 Indeed, this ‘pro-economic attitude of the judges [has] led to the failure of many cases relating to environmental damage, particularly those arising from oil operations’28 which is both the main source of government revenue and the major contributor to greenhouse gas emissions is Nigeria. This point is exemplified in the case of Allar Irou v Shell BP Development Company (Nigeria) Ltd.29 In this case, the Plaintiff suffered damage as a result of the Defendant’s oil operations, and sued for compensation and injunction against the latter. While the court awarded the damages, it refused to issue an injunction on the grounds that ‘it will amount to asking the defendants to stop operating in the area… The interest of third persons must be in some cases considered, for example, where the injunction would cause stoppage of trade or throwing out a large number of work people… [and] It is needless to say that mineral oil is the main source of the country’s revenue’.30 It was only in 2005 that a ray of hope appeared in the case of Gbemre v Shell Petroleum Development Company Nigeria Ltd and Nigerian National Petroleum Corporation and Ors.31 It is the first and only case in Nigeria where the court adopted a constitutional human rights approach to environmental protection with respect to climate change unfriendly activities in the oil and gas sector. In this case, coming under a simplified constitutional procedure for enforcing human rights,32 the Appellant, suing for himself and on behalf of his community, alleged that the oil production activities of the Defendants’ (a private and a public company), particularly gas flaring, violated their human rights to life and dignity considering the adverse effect of the Respondents’ activities on their health and immediate environment. Importantly, the Appellant cited, amongst others, the contribution of gas flaring to climate change and its impact on his community as a basis for their constitutional and human rights claims. Upon hearing all Parties to the case, the court held, inter alia, as follows: (1) that the right to life and dignity of the human person guaranteed under Sections 33(1) and 34(1) of the Nigerian Constitution, and reinforced by Articles 4, 16 and 24 of the African Charter Act, ‘inevitably included the right to clean poison-free, pollution-­free and healthy environment’; (2) that the actions of the Respondents in

 (2000) 6 NWLR (pt 668) 228.  Ebeku (2007), p. 316. 28  Ebeku (2003), p. 199. 29  Unreported, Suit No W/89/71, 26 November 1973. 30  Ibid. 31  Unreported, Suit No: FHC/B/CS/53/05, 14 November 2005. 32  Nigerian Constitution, Section 46. 26 27

Climate Change Litigation in Nigeria: Challenges and Opportunities

415

continuing to flare gas in the course of their oil production activities in the Appellant’s community ‘is a violation of their rights to life (including health environment) contained in the aforementioned statutory provisions.33 As a build-up to these declarations, the court’s judgment referenced the Plaintiffs’ assertions in their affidavit that ‘gas flaring leads to the emission of carbon dioxide, the main greenhouse gas’ and ‘contributes to adverse climate change’.34 This arguably but strongly suggests the court’s adoption of the point as a motivation for its final decision. The court’s order ‘restrained [the Respondents] from further flaring of gas in Applicant’s Community’ and ordered them ‘to take immediate steps to stop the further flaring of gas’.35 It also ordered the federal government to take steps to legally, expressly and permanently prohibit gas flaring in Nigeria.36 Being a judgement of a Federal High Court, the Respondents have since filed an appeal against it in the Court of Appeal, which appeal is being delayed as, according to Peter Roderick of the Climate Justice Programme,37 the appeal ‘litigation is mind numbingly procedural [and actually giving the Appellant companies the chance to delay and frustrate the appeal], as if there is too much fear to deal with the substantive issue’.38 Furthermore, in the interim, the judgement of the Federal High Court is supposed to be obeyed by the Respondents and the federal government given that there is no subsisting order for a stay of execution of the Federal High Court judgment.39 Yet, this has not happened, and it has been noted that all efforts by the Appellant counsel to enforce the judgement has failed40—contrary to well established rules—in a manner that suggests the complicity of the judiciary and a reflection of its ‘economy-over-environment’ approach.41 Therefore, until the appellate process is exhausted—with, perhaps, the Nigerian Supreme Court hearing and determining the appeal—the fresh approach taken in the Gbemre case remains a sticky point and different judges may reach different conclusions in a similar case. To be sure, the quality of the judgement of the Federal Hugh Court has been questioned on some technical grounds,42 including its ‘sparseness’ and the fact that ‘it does not explicitly analyze the question of whether and under what circumstances climate change impacts can provide a basis for finding a violation of that right’.43 Nevertheless, it remains a landmark decision in Nigeria

 Gbemre case, 30.  Ibid, 4–5. 35  Ibid, 31. 36  Ibid. 37  A London-based international non-governmental organization. 38  Quoted in Ebeku (2007), p. 319. 39  Ibid. 40  Ibid. 41  Friends of the Earth, Shell Fails to Obey Gas Flaring Court Order (May 2, 2007), available at: http://www.foe.co.uk/resource/press_releases/shell_fails_to_obey_gas_fl_02052007.html. 42  Ebeku (2007), pp. 319–320. 43  Sinden (2008), p. 8. 33 34

416

U. Etemire

and the position taken on the substantive issues is difficult to fault. It is a clear departure from the generally rigid, traditional, economic posture of Nigerian judges in matters of such nature, and accords with the norm across the world of reading environment-related agenda into traditional human right norms.44 Despite the decision in the Gbemre case, the use of constitutional or other human rights approaches to address climate change issues, or hold public and private entities accountable for their actions that (unlawfully) contribute to climate change, before domestic courts in Nigeria, is yet to gain ground.45 This is for a number of reasons, first of which is the fact that the last is yet to be heard on the outcome of the Gbemre case given the stalling at the appellate level and the lack of enforcement of the judgement. Thus, considering the huge economic relevance of the oil and gas sector to Nigeria, coupled with the fact that the government is in corporate partnership with the culpable oil companies,46 potential litigants view as unlikely the execution of such far-reaching court judgements. The second reason, as already alluded to above, is the conservative and restrictive approach to the interpretation of legal norms by the average Nigerian judge when dealing with greenhouse gas emission/ climate change-related cases which is commonly connected to the oil and gas sector,47 coupled with their tendency to weigh economic considerations above environment-­related ones. The third reason has to do with the attitude of potential litigants. Considering the current judicial posture, potential litigants with climate change-related cases are usually reluctant to approach the courts and base their claims on human rights grounds with its far-reaching consequence. Many are content to settle for monetary compensation under remedies for torts. The opinion of a one-time head of the Nigerian judiciary, Chief Justice Mohammed Uwais, lends credence to this point, as he noted that: ‘[t]he greatest deterrent to prosecution of [oil-related] environmental damage in Nigeria today is skepticism with which prosecutors are likely to approach the courts having regard to what is known of the judicial posture’.48 And the last reason why the approach in the Gbemre case to climate change-­ related cases is yet to take root and inspire major followership in Nigeria, is not unconnected with the fact that certain existing laws permit activities that are major sources of greenhouse gas emission and climate change. For example, Section 3 of the Gas Re-injection Act of 197949 gives the Minister of Petroleum wide and unguarded powers to authorize a company to flare gas, which powers the Minister has consistently exercised in favour of gas flaring. Such laws constitute a major  See generally, Ebeku (2007).  There are examples of cases based on the approach in Gbemre case, but nothing has been heard of them, as they are either still pending or were not successful. E.g. Ikechukwu Okpara and 3 Others v Shell Petroleum Development Company of Nigeria Ltd. and 4 Others, Suit No FHC/CS/ PH/518/2005. 46  International Business Publications (2013), pp. 76–77. 47  See, Amechi (2010), p. 324. 48  Uwais (2002). 49  Cap A25 Laws of the Federation of Nigeria, 2004. 44 45

Climate Change Litigation in Nigeria: Challenges and Opportunities

417

psychological hurdle for potential litigants, as well as tie the hands of most Nigerian judges, many of whom have retained a ‘minimalist conception of the role of judges’ that is somewhat similar to ‘the preindependence period [in Nigeria], [when] it was virtually unthinkable that courts would upturn colonial legislation’.50

3.2 Claims Against Public Bodies Decisions What is of concern here is the implication of public bodies decisions for climate change mitigation efforts in Nigeria, and whether individuals can successfully challenge same in a national court. In this regard, two queries will again be addressed seriatim. First, there is the question of whether an individual can successfully bring an action against a public actor in Nigeria charged with authorising major infrastructural projects that allegedly does not comply with national procedural obligations or requirements, leading to a rise in greenhouse gas emissions. In that regard, it is worth noting that procedural environmental requirements, such as public participation in environmental decision-making and environmental impact assessment of proposed projects, characteristically aim to mainstream environment-­related considerations into proposed development projects.51 They are germane to ensuring that proposed activities and projects are not harmful to (inter) national climate change mitigation efforts. This is because such processes have the potential to expose more clearly the likely negative implications to the environment and human wellbeing of proposed projects and, ‘at best’, require or seek for ways by which such effects may be mitigated or avoided and, ‘at worse’, provide justification for the disapproval of a proposed project.52 For proposed private or public projects that will have significant environmental implications, including those that will lead to a rise in greenhouse gas emissions, the Nigerian Environmental Impact Assessment (EIA) Act53 generally requires an EIA study to inform the authority’s decision-making on such projects.54 It mandates that the public be given an opportunity to participate in the process.55 Yet in Nigeria, such projects are frequently being approved by government agencies without the relevant procedural requirements being (properly) followed by the approving body and the developer. For example, there are cases in Nigeria where EIA studies for such major projects have been submitted years after the commencement of the project was approved by the relevant state agency56; companies have been granted licenses by

 Yusuf (2009), p. 664.  Sands (2005), p. 579. 52  Williams (2009), p. 9. 53  Cap E12 Laws of the Federation of Nigeria, 2004. 54  See Section 2. 55  See Section 7. 56  Fagbohun (2012), p. 90. 50 51

418

U. Etemire

government agencies to explore and extract bitumen without any form of public participation in the decision-making process57; and it is routine for gas flaring activities to be permitted by the petroleum ministry without an EIA or public participation.58 One may wonder how the supposed environmentally-protective procedural requirements in the EIA Act can be so ignored by government agencies with little or no legal consequences. For one, the obligation on the relevant public authority to ensure that an EIA and public participation informs its final decision on a proposed project is substantially whittled down by a provision granting the public authority unreasonably wide discretion and unrestrained powers to ignore the entire process without even the need to justify publicly the exercise of this power.59 On this basis, government agencies approve projects that could lead to the rise of greenhouse gas emissions without having to comply with the procedures in the EIA Act, or have its finally decision effectively questioned by the court on the ground that it is exercising its statutory powers.60 Another reason why individuals may not be successful against a public authority who has failed to comply with procedural requirements under the EIA Act, is that the provision for judicial review of the final decisions of such an authority in Section 57 is porous and weak: ‘[a]n application for judicial review in connection with any matter under this Act shall be refused where the sole ground for relief established on the application is a defect in form or a technical irregularity’.61 Considering the connotations of the emphasised words in the provision, individuals arguably can hardly be successful in an action before a Nigerian court against public authorities when the latter has inadequately complied with the procedural requirements of the Act, especially (but not only) as it concerns ensuring meaningful public participation.62 What is more, the possibility of an individual bringing a successful action for breach of procedural requirements under the EIA Act against a public authority in climate change-related matters is further curtailed by the highly restrictive and commonly applied standing rule in environmental cases in Nigeria.63 According to the rule, standing will only be accorded to a plaintiff who shows that his/her ‘civil rights’—narrowly interpretaed by the courts to mean ‘private legal right’—have been or are in danger of being violated or adversely affected by the act complained of.64 Indeed, this standing rule has a ‘court-closing’ effect, and it ‘immunizes from judicial review a substantial aspect of the [non-]exercise of governmental power’.65

 Ojo and Oluwafemi (2004), pp. 71–87.  Gbemre Case, 30–31. 59  See EIA Act, Sections 14, 21(b), 25 (a), and 30. 60  Omorogbe (2002), p. 568. 61  Emphasis added. 62  Etemire (2015), p. 224. 63  Ladan (2007), p. 16. 64  See Adesanya v President of the Federal Republic of Nigeria (1981) 1 All NLR 1; Ejiwunmi v Costain (W.A) Plc. (1998) 12 NWLR 149, 164H; and Frynas (2000), p. 207. 65  Ogowewo (2000), p. 542. 57 58

Climate Change Litigation in Nigeria: Challenges and Opportunities

419

This was shown in the popular case of Oronto Douglas v Shell Petroleum Development Company Nigeria Limited and Ors,66 where the Plaintiff sued the Defendants—several oil companies and the Nigerian federal government—for non-­compliance with the procedural requirements of the EIA Act (as regards the EIA study and public participation) in setting up a Liquefied Natural Gas project. The court struck out the case on the ground that the Plaintiff had no standing to sue. The Federal High Court held that ‘the plaintiff shows no prima facie evidence that his [private] right was affected nor any direct injury caused to him’ by the non-­ compliance with the EIA Act.67 This decision was reached despite the plaintiff’s lawyer’s argument that Douglas had both a private interest in the suit as a native of a village affected by the project, and a public interest as a well-known environmentalist. Although a retrial of the case was latter ordered for other reasons by the Court of Appeal,68 it did not take place because the project had already been completed by the time the Court of Appeal gave its judgement.69 However, Ogowewo rightly posited that even if the retrial had taken place, the same result would still have been reached if the plaintiff failed to show how his private legal right had been violated and that ‘[i]t makes no difference that s. 7 of the [EIA] Act makes provision for public involvement in the decision-making function of the environmental agency, since this does not confer a civil right’ at least going by the courts restrictive jurisprudence on the ‘civil rights’ test.70 In view of these restrictions amongst other, little wonder why, according to Ako, ‘there is yet to emerge a legal decision that posits that public participation is legally enforceable in Nigeria’.71 Moving on, the second query under this subhead borders on whether an individual can bring a case before a Nigerian court against a public actor that allegedly does not comply with national obligations leading to a failure to adapt to climate change. Generally, the law in Nigeria makes provisions for a concerned individual to bring a case before a national court under a writ of mandamus to compel a public officer or authority to comply with an obligation placed on it by a national law.72 There are no national laws in Nigeria specifically directing a public body to take steps towards climate issues. There are however laws with such implications for climate change adaption, and the public bodies responsible for their implementation can possibly be judicially compelled to fulfil their obligations under the law. For example, it is the statutory responsibility of the National Emergency Management

 Unreported Suit No: FHC/L/CS/573/96, 17 February 1997.  ibid, 2. 68  The Court of Appeal’s decision is reported in (1999) 2 NWLR 466. 69  Ako (2010), p. 439. 70  Ogowewo (2000), pp. 541–543. 71  Ako (2006), pp. 13 and 30–31. 72  Malemi (2012), p. 353; and Shitta-Bey v Federal Public Service Commission (1981) 1 SC 80, per Edigbe JSC. 66 67

420

U. Etemire

Agency (NEMA) to perform a host of activities aimed at managing natural disasters, including devising plans and policies for disaster management, collating data to enhance forecasting, planning and field operations in disaster management, ensuring public awareness on disaster prevention and control measures, and coordinating relief and rehabilitation efforts.73 These are all mitigation measures for possible climate change induced disasters like flood or drought, and NEMA’s failure to perform those duties could expose it to legal action. Beyond coming by way of a writ of mandamus, a case of a somewhat similar nature can arguably be brought against a public actor by an individual under Section 24 of Nigeria’s African Charter Act that provides that ‘[a]ll peoples shall have the right to a general satisfactory environment favourable to their development’ (given the inherent positive and negative duties placed on states by this provision74) or, perhaps, the right to life (Section 33) and dignity of the human person (Section 34) under the Nigerian Constitution. The success of such a case will however be dependent, amongst others, on: (1) the ability of the plaintiff to clearly connect the failure to adapt to climate change with the breach of any of his/her human rights; and (2) the willingness of the conservative and minimalist Nigerian judiciary—which is currently more unlikely than likely—to interpret the relevant human rights provision(s) in an extensive and innovative manner so as to adequately address a public actor’s failure to take sufficient steps towards ensuring adaption to climate change in a particular situation where human wellbeing is undermined.

3.3 Claims Against Private Actors Here, the first issue is whether in Nigeria an individual can bring a case before a national court against a private actor whose acts lead to a large rise in greenhouse gas emissions. Indeed, in Nigeria an affected individual can seek remedy from a national court against a private actor whose activities lead to a large rise in greenhouse gas emissions. The widely known cases on this point in Nigeria are in relation to acts of companies in the oil and gas sector given that it is by far the biggest source of greenhouse gas emission in the country. Asides the innovative human rights approach employed in the Gbemre case, legal action in this regard can, and is usually brought under, and governed by, torts law in Nigeria,75 which includes the torts of negligence, nuisance and the rule of strict liability in Rylands v. Fletcher.76 A limitation of these common law devices, though, is that they may only protect  See National Emergency Management Agency (Establishment) Act, Cap N34, Laws of the Federation of Nigeria, 2004, section 6. 74  See Social and Economic Rights Action Centre (SERAC) and another v Nigeria (2001) AHRLR 60, para. 44. 75  Ndukwe (2000), pp. 112–133. 76  (1868) L.R. 3 H.L. 330. 73

Climate Change Litigation in Nigeria: Challenges and Opportunities

421

the environment or guard against greenhouse gas emissions to the extent that is necessary to protect against or remedy a provable and direct injury to a person’s/ community’s wellbeing; they cannot be used directly and solely for the purpose of simply stopping gas flaring. However, many of such legal actions are not successful, and when they are successful, the remedy provided is usually insufficient, especially in terms of leading to the discontinuance of the source of the greenhouse gas emission or providing other effective options for mitigation. The remedies in a claim in tort include compensation for damages and an order of injunction stopping an act that is (part of) the source of the injury. Nevertheless, whilst Nigerian courts may order that the plaintiff be compensated for damages, it is usually very reluctant to grant an order of injunction in oil and gas-related cases. A good example of this is the Allar Irou Case discussed above where compensation was granted, but an injunction against the oil company to discontinue the polluting activity was refused for economic reasons. Also in the case of Chinda v Shell-BP,77 the Plaintiff’s demand for an injunction on the gas flaring activities of the defendant which had contributed in destroying his land, houses and economic trees, was rejected by the court, stating that the demand was an ‘absurdly and needlessly wide demand’. Beyond the common pro-economic stance of the Nigerian court, many of the such cases usually fail for a number of other reasons. In any type of tort, whether negligence, nuisance or strict liability, the key problem for many plaintiffs is their inability to discharge fully the huge burden of proof required to successfully establish the tort in oil and gas-related litigation in Nigeria. Part of the evidence required is usually scientific evidence that establishes the source of the pollution and a causal link between the pollution and the (specific) injury suffered. Apart from the fact that science is not always so certain and precise as to whether, or the extent to which the injury arose from the defendant’s oil activities or third factors, hiring scientists to collect such evidence is as expensive as it is time consuming.78 This is usually beyond the reach of the poor local people who are commonly the direct victims of oil and gas pollution, compared to the oil companies who have the necessary financial might and expertise. For example, this was a primary reason for the total failure of the Plaintiff’s claim in the abovementioned Chinda Case. Another challenge to the success of cases in this regard is the nature of existing statutes of limitation regimes which bars lawsuits against some polluting entities after a designated period of time. Whilst limitation periods may help defendants avoid stale claims and the indefinite threat of a claim, it commonly works hardship especially against victim of the Nigerian oil and gas industry. For example, the Nigerian National Petroleum Corporation (NNPC) Act79 provides that claims against the NNPC must be instituted within a period of twelve months from when

 (1974) 2 RSLR 1.  See Frynas (1999), pp. 130–132. 79  Cap N123, Laws of the Federation of Nigeria, 2004. 77 78

422

U. Etemire

the cause of action arose,80 that is, the time in which the act, omission or default complained of occurred.81 It is problematic that the cause of action accrues from the date of the relevant default of the defendant—and not even the date the injured party became aware of the effects of this default—because consideration is not given to the fact that a significant period of time can pass from the time a pollutant is released into the environment and when its negative impact on the victim becomes apparent.82 Gathering the necessary scientific evidence may also take years, apart from other difficulties with access to court in Nigeria that may delay the institution of an action.83 All these can ‘partly explain why little litigation has arisen against the NNPC for damage arising from oil operations’.84 Hence, some jurisdictions now provide that time runs from the date of victim’s knowledge, or from the earliest date the claimant knew that the damage was of such a nature as to justify an action, that it was caused by the alleged negligence of the defendant, and the latter’s identity.85 The relevant limitation regimes in the country, it has been rightly suggested, should be reviewed in this light to ensure meaningful protection of the rights of individuals to access justice before a court of law in Nigeria.86 Furthermore, the second issue under this subhead is whether an individual in Nigeria can bring a case before a national court against a pension fund (or other similar private investors/actors) to compel the latter to divest from climate change unfriendly investment portfolios—such as fossil fuel—that contribute to a global rise in greenhouse gas emissions or difficult adaptation to climate change. Presently, legal action of this nature is unlikely to succeed in Nigeria, especially as there is hardly an explicit law upon such an action can be based. Moreover, most of the ventures in Nigeria that are major contributors to global greenhouse gas emissions have their operations backed by law as earlier alluded to. Little wonder there is no case of such a nature in Nigeria, successful or otherwise.

4 Effective Climate Change Litigation in Nigeria: The Way Forward The above analysis shows that, though desirable, climate change litigation is at its infancy in Nigeria, if at all, and that a lot needs to be done to more fully and effectively realise its potential in the country as it relates to climate change mitigation  Section 12 (1).  See Horsfall v Shell-BP (1974) 2 RSLR 126. 82  Fagbohun (2012), p. 65. 83  See Frynas (1999), pp. 129–130. 84  ibid, 130. 85  E.g. see Sections 11(4) and 14A and 14B of the UK Limitation Act, 1980. 86  Fagbohun (2012), p. 66. 80 81

Climate Change Litigation in Nigeria: Challenges and Opportunities

423

and adaptation. In this light, and in addition to the suggestions for improvement that may be glimpsed from or were interspersed with the analysis above, some major steps that would drive this process forward are highlighted below. First, the Nigerian government and relevant stakeholders recognise that climate change issues can more effectively be address within the country if its international climate change obligations and commitments are made enforceable by individuals in national courts. So much was revealed in the recommendation by the 2014 Nigerian National Conference for the government to domestic its international commitments.87 Hence, the revised 2016 Nigerian National Policy on the Environment88 includes a policy statement to the effect that: ‘The Government will: … (2) Domesticate the globally-agreed climate change regime of the… (UNFCCC), including but not limited to the implementation of the Nationally Determined Contributions (NDCs) and the Paris Agreement.’89 To realise this policy position, local civil society organisations must play a more active and dynamic role in that regard. Importantly, they could partner with relevant inter-governmental and international non-governmental bodies to internationalise and increase the pressure on the Nigerian government to implement that policy statement. And because such new laws cannot reasonably co-exist with relevant provisions of the Gas Re-Injection Act (and the subsidiary Gas Re-injection (continued flaring of gas) Regulation, 1984) and the likes under which continued massive gas flaring may be permitted, all such laws will require to be amended in a manner that aids the reduction of greenhouse gas emissions. Furthermore, there is the need to improve the viability of the human rights and torts law approaches as means for enforcing climate change-related claims in Nigeria. In this regard, judicial activism and progressive thinking on the Bench in the light of positive global environmental and climate change trends are key. The advice of one-time head of the Nigerian judiciary, Chief Justice Mohammed Uwais, is instructive here; he urged Nigerian judges to ‘assimilate and understand the evidence before them’ and ‘apply “new” principles such as sustainable development and other germane environmental consideration to issues in a way that goes [beyond] an unflinching devotion to the [traditional] principles of nuisance, negligence and trespass’.90 This would also mean that judges must adopt a more balanced view, rather than being largely ‘pro-economy’ in approach, were economic and environmental interests are both at stake. Lawyers and litigants must also be willing and bold enough to continue to ask the courts to rethink their approach to environmental and climate change adjudication. And to bring positive court judgements to fruition and ensure their enforcement, civil society groups in the environmental and human rights field in Nigeria must, again, maintain pressure on government and oil companies to do the right thing.

 National Conference Report (2014), p. 203. On file with author.  2016 Nigerian National Policy on the Environment. On file with author. 89  Ibid, 36. 90  Uwais (2002). 87 88

424

U. Etemire

Another major issue revealed above is that individuals can hardly enforce in court the procedural requirements under the EIA Act which could possibly help to check proposed activities and projects that may contribute significantly to climate change. This situation is not unconnected with the fact that the EIA Act does not have a democratic foundation—having been promulgated under military dictatorship—and has not been amended since its promulgation about twenty-six years ago.91 It is necessary to review and update this legislation if individuals will ever have a good chance at holding public authorities accountably under it. The powers of public authorities to exclude the procedure under the Act should be significantly curtailed and restricted to situations of emergency, for which a public justification must be provided. The judicial review provision should be strengthened and widened to allow for review of all forms of infractions of the Act by public authorities, contrary to the selective approach built into the present provision. Even the hurdle of overly restrictive standing to sue can be handled by expressly creating under the Act a more liberal approach to enforcing its provisions, including allowing public interest suits.

5 Conclusion From the above analysis, it is quite clear that climate change-related litigation by individuals before national courts in Nigeria is, at best, still at its infancy. Whilst a survey of the cases shows some attempts and a low level of success, it leaves much to be desired with respect to ensuring effective climate change mitigation and adaptation. As revealed, this situation is the case for a number of reasons, including: the lack of domestication of international climate change commitments, weak and porous domestic legislation relating to climate change, the predominant conservative and pro-economic attitude of the Nigerian judiciary, issues of unfavourable statutes of limitation and burden of proof requirements, amongst others. Whilst addressing the above issues in line with earlier suggestions will improve the success of climate change litigation and help to more fully and effectively realise its potential in Nigeria, there are wider and more fundamental problems inhibiting public access to courts in Nigeria that would need to be overcome as well. These problems include widespread illiteracy and ignorance of legal rights; high levels of poverty which make people more concerned about daily survival than the more remote problem of climate change; delays in discharging court cases which might means more irreparable harm to the environment in the meantime, amongst others.92 The expectation is that as these issues are gradually addressed, more climate changerelated cases will surface in Nigerian courts, as well as become more fruitful in curbing the domestic factors contributing to climate change or inhibit adaptation to the phenomenon.

91 92

 The EIA Act was formerly known as Decree No. 86 of 1992.  See generally, Frynas (2001).

Climate Change Litigation in Nigeria: Challenges and Opportunities

425

References Aaron KK (2006) Human rights violation and environmental degradation in the Niger Delta. In: Porter E, Offord B (eds) Activating human rights. Peter Lang, Oxford, pp 193–215 Afinotan LA, Ojakorotu V (2009) The Niger Delta crisis: issues, challenges and prospects. Afr J Polit Sci Int Relat 3(5):191–198 Ako RT (2006) Ensuring public participation in environmental impact assessment of development projects in the Niger Delta of Nigeria: a veritable tool for sustainable development. Envirotropica 3(1–2):1–31 Ako RT (2010) The Judicial recognition and enforcement of the right to environment: differing perspectives from Nigeria and India. NUJS Law Rev 3:423–447 Amechi EP (2010) Litigating right to healthy environment in Nigeria: an examination of the impacts of the fundamental rights (enforcement procedure) rules 2009, in ensuring access to justice for victims of environmental degradation. Law Environ Dev J 6(3):320–334 BBC (2014) Nigeria Become Africa’s Biggest Economy. http://www.bbc.com/news/business-26913497. Accessed 20 July 2018 Blomquist RF (2012) Comparative climate change torts. Valparaiso Univ Law Rev 46(4):1053–1075 Ebeku KSA (2003) Judicial attitudes to redress for oil-related environmental damage in Nigeria. Rev Eur Commun Int Environ Law 12(2):199–208 Ebeku KSA (2007) Constitutional right to a healthy environment and human rights approaches to environmental protection in Nigeria: Gbemre v. Shell revisited. Rev Eur Commun Int Environ Law 16(3):312–320 Ehiemua RO (2013) Climate change in Nigeria and the quest for autochthonous solutions: a legal appraisal. J Contemp Law 2:87–101 Etemire U (2015) Law and practice on public participation in environmental matters: the Nigerian example in transnational comparative perspective. Routledge, London Fagbohun O (2012) Mournful remedies, endless conflicts and inconsistencies in Nigeria’s quest for environmental governance: rethinking the legal possibilities for sustainability. Nigerian Institute of Advanced Legal Studies, Lagos Federal Ministry of Environmental. Nigeria’s Intended Nationally Determined Contribution (2015). http://www4.unfccc.int/ndcregistry/PublishedDocuments/Nigeria%20First/Approved%20 Nigeria’s%20INDC_271115.pdf. Accessed 21 July 2018 Friends of the Earth (2007) Shell fails to Obey gas flaring court order. http://www.foe.co.uk/ resource/press_releases/shell_fails_to_obey_gas_fl_02052007.html. Accessed 21 Aug 2018 Frynas JG (1999) Legal change in Africa: evidence from oil-related litigation in Nigeria. J Afr Law 43(2):121–150 Frynas JG (2000) Oil in Nigeria: conflict and litigation between oil companies and village communities. LIT/Transaction, Hamburg Frynas JG (2001) Problems of access to courts in Nigeria: results of a survey of legal practitioners. Soc Leg Stud 10(3):397–419 Intergovernmental Panel on Climate Change (2007) IPCC Special Report on the Regional Impacts of Climate Change: An Assessment of Vulnerability. http://www.grida.no/climate/ipcc/ regional/index.htm. Accessed 21 July 2018 International Business Publications (2013) Nigeria: mineral, mining sector business investment guide – volume 1 – oil and gas industry strategic information and regulations. International Business Publications, Washington, DC Ladan MT (2007) Judicial approach to environmental litigation in Nigeria. Paper presented at the 4–Day Judicial Training Workshop on Environmental Law in Nigeria, Abuja, Nigeria, on 5–9 February 2007 Malemi E (2012) Administrative law, 4th edn. Princeton Publishing, Lagos National Conference Report (2014) Ndukwe OU (2000) Elements of Nigerian environmental laws. University of Calabar Press, Calabar

426

U. Etemire

Ogowewo TI (2000) Wrecking the law: how Article III of the Constitution of the United States led to the discovery of a law of standing to Sue in Nigeria. Brooklyn J Int Law 26:527–589 Ojo GU, Oluwafemi A (eds) (2004) Before the earth bleeds again. Environmental Rights Action/ Friends of the Earth, Benin City Olawuyi DS (2015) The principles of Nigerian environmental law, 2nd edn. Afe Babalola University Press, Ado Ekiti Omorogbe Y (2002) The legal framework for public participation in decision-making on mining and energy development in Nigeria: giving voices to the voiceless. In: Zillman DN, Lucas AR, Pring G (eds) Human rights in national resource development: public participation in the sustainable development of mining and energy resource. Oxford University Press, pp 549–587 Onyeabor O, Agu H, Nwanta NJ (2016) Litigating loss and damage as a Panacea for abatement of climate change. J Econ Sustain Dev 7(2):144–154 Preston BJ (2007) The influence of Climate change litigation on Governments and the Private Sector. http://www.lec.justice.nsw.gov.au/agbbasev7wr/_assets/lec/m420301l721754/preston_ influence%20of%20climate%20change%20litigation.pdf. Accessed 30 July 2018 Sands P (2005) Principles of international environmental law: frameworks, standards and implementation. Manchester University Press, Manchester Sinden A (2008) An emerging human right to security from climate change: the case against gas flaring in Nigeria. Temple University Legal Studies Research Paper Series, Research Paper No. 2008-77 The Climate Justice Programme & Environmental Rights Action/Friends of the Earth Nigeria (2005) Gas Flaring in Nigeria: A Human Rights, Environmental, and Economic Monstrosity. http://www.climatelaw.org/media/gas.flaring/report/gas.flaring.in.nigeria.html. Accessed 21 July 2018 Uwais ML (2002). Recent development in Nigeria strengthening legal and institutional framework. Paper presented at the Global Judges Symposium in Johannesburg, South Africa, 18–20 August 2002. http://www.unep.org/dpdl/symposium/Documents/Country_papers/NIGERIA. doc. Accessed 4 July 2018 Williams PC (2009) The environmental impact assessment act and processes as an environmental and livelihood advocacy tool. In: Obayanju B, Obaseki M (eds) Defending the environment: the role of environmental impact assessment. Environmental Rights Action, Benin City, p 7 Yusuf HO (2009) The judiciary and political change in Africa: developing transnational jurisprudence in Nigeria. Int J Const Law 7(4):654–682 Dr Uzuazo Etemire  is a Senior Lecturer in the Faculty of Law, University of Port Harcourt, Nigeria. He is also the Acting Head of the Faculty’s Department of Jurisprudence and International Law. Dr Etemire holds the LLB, LLM and PhD in Law degrees from the University of Benin (Nigeria), University of Nottingham (England) and University of Strathclyde (Scotland), respectively. Apart from being called to the Nigerian Bar, he is a Fellow of the Higher Education Academy, United Kingdom, and an Alumnus of The Hague Academy of International Law, The Netherlands. In 2017, Dr Etemire was a Visiting Scholar at the Faculty of Law, University of Barcelona, Spain, where he furthered his primary research interest that broadly lies in the field of Environmental Law. He has participated in several research projects, and has published widely in major peer-reviewed journals, including those hosted by renowned press houses like the Oxford University Press and the Cambridge University Press. Dr Etemire is the recipient of several academic scholarships and awards, and is the author of the book: Law and Practice on Public Participation in Environmental Matters: The Nigerian Example in Transnational Comparative Perspective (Routledge, 2015).

Local Liability for Global Consequences? Climate Change Litigation in Belgium Lieselot Marien and Leonie Reins

Abstract  Climate change litigation in Belgium is a rather recent trend. Only one climate change litigation case has been brought before the Belgian courts to date. It is however expected that climate change litigation efforts will increase in the near future. This contribution aims at laying the foundations for future litigation cases to come and will examine several possible scenarios in this regard: 1. A private party acts against the State for failure to enact adequate legislation concerning climate change mitigation and/or adaptation; 2. A private party acts against an allegedly illegal or inadequate administrative decision by a local government or administration; and 3. A private party acts against another private party for the latter’s negative impact on climate change mitigation and/or adaptation.

1 Introduction1 Climate change litigation in Belgium is a rather recent trend. Only one climate change litigation case has been brought before the Belgian courts to date. In December 2014, the Belgian NGO Klimaatzaak initiated legal action against the regions of Flanders, Wallonia, Brussels and the federal State of Belgium.2 It is  This article reflects the state of the art in legislation, jurisprudence and literature in January 2018. Any developments that have taken place since then are not reflected in the article. 2  The writ of summons in the case is publicly available at https://www.klimaatzaak.eu/documents/ dagvaarding_nl.pdf. 1

L. Marien KU Leuven, Leuven, Belgium L. Reins (*) Tilburg Institute for Law, Technology and Society (TILT), Tilburg University, Tilburg, The Netherlands e-mail: [email protected] © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_22

427

428

L. Marien and L. Reins

however expected that climate change litigation efforts will increase in the near future. This contribution aims at laying the foundations for future litigation cases to come and will examine several possible scenarios in this regard: 1. A private party acts against the State for failure to enact adequate legislation concerning climate change mitigation and/or adaptation; 2. A private party acts against an allegedly illegal or inadequate administrative decision by a local government or administration; and 3. A private party acts against another private party for the latter’s negative impact on climate change mitigation and/or adaptation. Under Belgian law, the likelihood of success, as well as the competent courts and the legal bases on which a procedure would be brought, vary greatly between these distinct scenarios. For these reasons, we will discuss these scenarios separately. This contribution will firstly tackle the scenario of private party acts against the State for failure to enact adequate legislation. It will look at existing precedent, state liability for fault of the legislative branch, the nature of damage including standing, the causal link and lastly compensation and the possibility of obtaining an order to legislate. The second scenario examines actions brought by a private party against an administrative decision issued by a public actor. It will discuss the complex maze of the Belgian administrative appeals, before examining admissibility requirements (including standing) and the legal grounds. Lastly, the third scenario will briefly discuss private parties acting against other private parties.

2 Private Party Acts Against the State for Failure to Enact Adequate Legislation 2.1 Introduction: A Field of Open-Ended Questions Two of the scenarios under analysis (non-compliance of the legislator with international obligations and non-compliance of the legislator with the Belgian Constitution) concern the situation in which private parties bring a court case against the Belgian State for failure to enact adequate climate change mitigation legislation. While there is some precedent in Belgium of citizens launching such court proceedings (see, summary description in section 1), not a single case has reached a final verdict. Accordingly, this chapter sets out to present and assess the options and potential stumbling blocks for climate change mitigation cases against the State, without offering any conclusive statements as to the feasibility of such cases under the current state of Belgian law and jurisprudence. Even though claimants initiating this type of procedure in Belgium will most likely encounter a plethora of both procedural and substantive difficulties, these difficulties do not seem to be per se unsurmountable. It remains to be seen which position the Belgian courts will take in relation to these various complex legal questions.

Local Liability for Global Consequences? Climate Change Litigation in Belgium

429

2.2 Precedent Only one climate change litigation case has been brought before the Belgian courts to date. In December 2014, the Belgian NGO Klimaatzaak initiated legal action against the governments of Flanders, Wallonia, Brussels and the federal State of Belgium.3 The Klimaatzaak case is inspired on the Urgenda case in the Netherlands.4 Primarily, the claimants demand that the three Belgian regions and the federal State level be ordered to enact adequate climate change mitigation legislation. More precisely, they demand that these defendants be ordered to take the necessary measures to reduce the greenhouse gas emissions in Belgium to 40% below 1990 levels by 2020 and 87.5% below 1990 levels by 2050. As of January 2018 there is no decision on the merits of the Klimaatzaak case, but only a ruling on a procedural matter (related to the language of the procedure) raised by the Flemish region. In February 2016, the Flemish region’s linguistic argument was overruled by the district court. The Flemish region subsequently appealed the interim decision before the Supreme Court, where the appeal is currently still pending.5 In addition, three air quality cases have been brought to the Belgian courts. In September 2017 an action for negligence has been brought against the government of the Brussels-Capital Region by the NGO Client Earth. In the same month, Greenpeace Belgium has taken legal action against the Flemish and Walloon governments for bad air quality. In January 2018, another air quality case was brought against the Flemish region by a citizens’ collective. While these cases bear a certain resemblance to the Klimaatzaak case, the underlying legal arguments diverge significantly. While the air quality cases heavily rely on EU law, and notably the Air Quality Directive 2008/50/ EC, the Klimaatzaak case, in the absence of a clear legal basis in EU law, builds on a combination of mainly tort law, human rights law and Constitutional law.

2.3 State Liability for Fault of the Legislative Branch While Belgian jurisprudence traditionally subscribed to a theory of general parliamentary irresponsibility, this theory has known a process of gradual erosion. This evolution was driven mainly by the case law of the Belgian Supreme Court,6 but  The writ of summons in the case is publicly available at https://www.klimaatzaak.eu/documents/ dagvaarding_nl.pdf. 4  Discussed in detail the chapter on The Netherlands in this volume. 5  The status of the procedure and the various past and future steps can be consulted on https://www. klimaatzaak.eu/documents/timeline_nl.pdf. 6  The most noteworthy cases are the so-called Flandria, Anca-I and Le Ski cases. In Flandria, the Supreme Court accepted the principle of State liability for faults committed by the executive branch (Cass. 5 November 1920, Pas. 1920, I, p. 193). In Anca-I, the Supreme Court accepted the principle of State liability for faults committed by the judicial branch (Cass. 19 December 1991, Arr. Cass. 1991-92, p. 364). In Le Ski, the Supreme Court concluded that international and supranational norms with direct effect take precedence in case they conflict with a national law (Cass. 27 Mei 1971, Arr. Cass. 1971, p. 959). 3

430

L. Marien and L. Reins

other elements, such as the creation of a Belgian Constitutional Court and the case law of the Court of Justice of the European Union,7 have significantly contributed to the evolution of the issue of parliamentary irresponsibility in Belgium.8 Currently, the principle of State liability for wrongful actions of the legislative branch is accepted by the Belgian Supreme Court, which, in one of two 2006 landmark cases9 on the subject held as follows: A court, which is part of the judicial branch, and which has been seized with a tort claim for damages, caused by the wrongful interference with a right enacted in a superior norm imposing an obligation on the State, is competent to assess whether the legislative branch has adequately executed its legislative task in such a way that the State can meet its obligation, even though the norm which imposes the obligation grants the legislative power the discretion to evaluate which means should be used in order to ensure that the obligation is met.10

Unfortunately, in its two landmark cases, the Supreme Court has not defined the conditions for state liability for faults committed by the legislator.11 However, it has been argued that the traditional conditions of Belgian tort law can be applied, as laid down in Articles 1382 and 1383 of the Belgian Civil Code (“CC”).12 In order for a tort claim to be successful, Article 1382 CC requires that the claimant provides evidence of damage suffered as a consequence of a fault committed by a third party. Article 1383 CC expands this liability to situations of wrongful failure to act. Below, the three constitutive elements of a successful tort claim (notably, fault, damage and causal link) will be further analysed. In so doing, attention will also be dedicated to more procedural aspects related to bringing a damages claim against the State for fault of the legislator (notably, the issue of standing). Finally, we will discuss the potential result of a tort case against the legislator for failure to enact climate change mitigation measures, particularly the questions whether claimants can obtain a court order to legislate.

 In particular, Frankovich (1991), p. 5357 and Factortame (1996), p. 1029.  For further details, please see: Advies “Overheidsaansprakelijkheid voor het optreden van de wetgevende macht” door mrs. J. Verbist en P. Van Ommeslaghe, Parl. St. Kamer 2008-2009, nr. 1627/0001. 9  Cass. 28 September 2006, RW 2007, 1123. The other landmark case is Cass. 1 Juni 2006, NjW 2006, 559. 10  “Een rechtbank van de rechterlijke orde die heeft kennisgenomen van een vordering tot herstel van schade veroorzaakt door een foutieve aantasting van een recht dat is vastgelegd door een hogere norm die de Staat een verplichting oplegt, is bevoegd om na te gaan of de wetgevende macht op passende of toereikende wijze zijn wetgevende opdracht heeft uitgevoerd zodat de Staat die verplichting kan nakomen, ook al verleent de norm die ze oplegt de wetgever de macht om te beoordelen welke middelen moeten worden aangewend om de naleving ervan te verzekeren.” 11  References to the term “legislator” or “legislative branch” should be construed in the generic sense, so as to refer to the legislator at federal level (“laws”), community level (“decrees”) and at regional level (“decrees” or “ordinances”). 12  De Kezel (2009), pp. 130–148. 7 8

Local Liability for Global Consequences? Climate Change Litigation in Belgium

431

2.4 Nature of the Fault Belgian tort law generally distinguishes between two types of fault which can engage one’s liability: the violation of a norm of law which prescribes or prohibits a specific behaviour (“the first type of fault”) and the violation of a general duty of care (“the second type of fault”). The application of both of these types of faults to the legislative branch will be discussed below. We will also briefly discuss the impact of the precautionary principle on the assessment of whether a fault has been committed by the legislative branch.

2.4.1 First Type of Fault The first type of fault was at issue in the above-cited 2006 cases of the Supreme Court. As specified by the Supreme Court, the legislative branch can be held accountable for the violation of “a superior norm imposing an obligation on the State”. It is evident from this dictum that the legislator, when issuing a law, can only be found to be in breach of another law in case the latter law somehow ranks higher in the hierarchy of norms. Accordingly, a legislative fault can result either from the violation of a rule of international or supranational law with direct effect, or from the violation of the constitution.

International or Supranational Norms with Direct Effect Since the so-called Le Ski13 Supreme Court case, the Belgian courts can assess the compliance of national legislation with international norms with direct effect in the internal legal order.14 A judge, seized by a tort claim against the State for wrongful legislation, can thus independently assess whether, by enacting the legislation at issue, the legislator has violated an international norm with direct effect.15 Norms which prescribe a specific action from the government, or which oblige the

 see n. 4.  For violations of European Union law, the European Court of Justice has specifically confirmed the principle of State liability for national legislation which constitutes a sufficiently qualified violation of EU law (see, Joined cases C-46/93 and C-48/93, Brasserie du Pêcheur and Factortame, 5 March 1996, ECLI:EU:C:1996:79). 15  Vuye (2002), p. 535; A. Alen, “De overheidsaansprakelijkehd voor fouten van de wetgever. Over de Cassatiearresten van 1 Juni 2006 en 28 September 2006”. Note that, under specific conditions, national courts may be required under EU law to ask a question for preliminary ruling to the European Court of Justice in order for it to determine whether the national law at issue is compatible with EU law. As this is not a matter that is specifically related to Belgian law, it is not further discussed here. 13 14

432

L. Marien and L. Reins

government to refrain from a specific action, generally have direct effect. In case the legislator would fail to respect such a rule of international law, this would constitute a fault that can engage the State’s liability.16 Constitution With regard to any alleged violations of the Constitution,17 it should be noted that a civil court seized of a tortuous claim against the legislator is not competent to assess whether a certain law is compliant with the Constitution. Under the Special Law of 6 January 1989,18 the competence to assess the legality of laws against certain specific provisions of the Constitution (so-called “reference norms”)19 was vested exclusively in the Belgian Constitutional Court. When faced with a claim for damages ensuing from an allegedly unconstitutional law, a civil court cannot itself pronounce on the constitutionality of the law. To the extent the alleged unconstitutionality relates to one of the reference norms of the Constitutional Court, a civil court seized of a tort claim against the legislator can refer the assessment of the compliance of a specific law with the Constitution to the Constitutional Court for a preliminary ruling. The relationship between the outcome of a ruling by the Constitutional Court and the finding of a fault by a civil court has for some time been the subject of academic debate, until the discussion was settled by the Supreme Court. In a 2010 case,20 the Supreme Court held as follows: The judgment of the Constitutional Court, within the framework of a request for preliminary ruling, that a legal provision violates the Articles 10 and 11 of the Constitution [i.e., the principles of equality and non-discrimination] does not entail the certainty that the ­legislator has acted unlawfully in the sense of Article 1382 of the Civil Code. The liability of the legislator for enacting wrongful legislation requires that the judge who is asked to condemn the state in tort carries out his own review. The mere reference to a judgment of the Constitutional Court which prejudicially finds a contradiction between law and

 Advies “Overheidsaansprakelijkheid voor het optreden van de wetgevende macht» door mrs. J. Verbist en P. Van Ommeslaghe, Parl. St. Kamer 2008–2009, nr. 1627/0001, p. 28. It remains to be seen whether the Constitutional Court’s 2010 decision described in the next section, pursuant to which a violation of a superior norm would only constitute a fault in case the legislator has acted imprudently, would also apply in case of a violation of an international norm with direct effect. 17  A discussion of the relevant Constitutional provision (Article 23) can be found below, under section “the existence of personal damage in relation to the commons”—“Subjective right to the protection of the environment”. 18  Bijzondere wet van 6 januari 1989 op het Grondwettelijk Hof/Loi spéciale du 6 janvier 1989 sur la Cour constitutionnelle, B.S. 7 januari 1989. 19  The reference norms of the Constitutional Court are: the Articles of Title II “The Belgians and their rights” (including Article 23, which lays down the right to a decent and dignified life), Articles 170, 172 and 191, as well as Article 143, §1 of the Constitution. 20  Cass. 10 September 2010, NJW 244, 425. 16

Local Liability for Global Consequences? Climate Change Litigation in Belgium

433

Constitution on the basis of the state of the law at the moment of its judgment, does not suffice in order to constitute an own review.21

In sum, the Supreme Court concluded that not every violation by the legislator of the Constitution ipso facto constitutes a fault in the sense of Article 1382 et seq. CC. While a judgment of the Constitutional Court is indispensable for a civil court to be able to find that the legislative branch has committed a fault by infringing the Constitution, it is not sufficient. Following a Supreme Court judgment, the civil court has to carry out its own review. In particular, it is to assess “whether the State, as a legislator, has acted as can be expected from a normally prudent and cautious legislator”.22 The above-cited 2010 Supreme Court case seems to have moved violations by the law of the Constitution from the sphere of the first type of fault, to the sphere of the second type of fault. 2.4.2 Second Type of Fault As far as the second type of fault is concerned, the criterion commonly used to evaluate respect of the general duty of care, is the so-called prudentman’s principle. Whether someone has committed a fault, is assessed by comparing this person’s behavior to the behavior of a hypothetical, reasonably prudent and diligent person in the same position. This test is arguably difficult to apply to the behavior of the legislator, in view of the latter’s unique constitutionally assigned democratic mission.23 It has therefore been asserted that, when measuring any legislative actions (or the lack thereof) against the prudentman’s standard, judges are to confine themselves to a marginal evaluation of the legislator’s behaviour, in order not to interfere with the legislator’s discretionary power.24 Guidance on the concrete criteria which could define the behaviour of a reasonably diligent legislator can be found in the case law of the Constitutional Court. This body of case law also applies a due diligence test to the legislator in certain cases.25

 “Het oordeel van het Grondwettelijk Hof, in het kader van een prejudiciële vraag, dat een wettelijke bepaling indruist tegen de artikelen 10 en 11 van de Grondwet heeft nog niet tot gevolg dat vaststaat dat de wetgever onrechtmatig heeft gehandeld in de zin van artikel 1382 van het Burgerlijk Wetboek. De aansprakelijkheid van de wetgever voor het nemen van een foutieve wetgeving vraagt een eigen beoordeling door de rechter aan wie gevraagd wordt de Staat te veroordelen op grond van een onrechtmatige daad. De loutere verwijzing naar een arrest van het Grondwettelijk Hof dat prejudicieel een tegenstrijdigheid tussen wet en Grondwet ontwaart op grond van de toestand van het recht op het ogenblik waarop het oordeelt, volstaat niet als een eigen beoordeling.” 22  Ibidem. “Het behoort aan de rechter na te gaan of de Staat als wetgever heeft gehandeld zoals kan verwacht worden van een normaal zorgvuldig en omzichtig wetgever.” 23  Van Ommeslaghe (1993). 24  Maes (2004), p. 400. 25  Popelier (2010), p. 1727. 21

434

L. Marien and L. Reins

When so doing, the Constitutional Court takes into account the preparation process leading to the adoption of the law at issue. Another aspect that might be taken into account by the Belgian courts when assessing whether the legislator has infringed the general duty of care, is the precautionary principle. It has been argued that the precautionary principle could be used to broaden the concept of fault under Articles 1382 and 1383 CC.26 In this respect, it should be noted that the Advocate-General reporting on one of the above-­ mentioned 2006 Supreme Court cases, asserted that the legislator could be held at fault for infringing its general duty of care for “not taking action in a situation where the country is threatened by risks in relation to security, public health, hygiene, environmental damage etc”.27

2.5 Nature of the Damages, Including Issues Related to Standing In order to rely on Article 1382 CC, a claimant needs to demonstrate to have suffered personal damage. This requirement of personal damage entails that Article 1382 CC can only be successfully applied in case of a violation of a subjective right or a legitimate personal interest which relates to the personal integrity or the personal property of the person suffering damage.28 A strong similarity exists between this substantive requirement of personal damage on the one hand, and the procedural requirement that a claimant needs to have a direct and personal interest in bringing a procedure in order to have standing, on the other hand. Both elements and the similarity between them are discussed under the present section. 2.5.1 Standing Requires Personal and Direct Interest Article 17 of the Judicial Code (“JC”) requires that a claimant has the legal capacity and the necessary interest to bring a case. Article 18 JC further specifies that the interest must be acquired and immediate. These conditions have been interpreted by the Supreme Court, such that they imply that a case brought by a natural or legal person cannot be admitted in case the claimant lacks a “personal and direct interest”.29 According to constant case law of the Supreme Court, the requirement of personal and direct interest in turn entails that the claimant has to invoke a

 See, i.a.: De Kezel (2008), p. 593; Schamps (2004), p. 189; Lierman (2001-2002), pp. 865–881.  Conclusie van Eerste advocaat-generaal Jean-François Leclercq bij Cass. 28 September 2006, J.T. 2006, p. 594. 28  Carette (2013), p. 16. 29  Cass. 17 Oktober 1986, Arr. Cass. 1986-87, 217; Pas. 1987, I, 200; R.W. 1986-87, 1033; R.C.J.B. 1988, 327. 26 27

Local Liability for Global Consequences? Climate Change Litigation in Belgium

435

(material) subjective right that is proper to him and that is being violated (or at least severely threatened) by the opposing party.30 Generally averse and unreceptive to public interest litigation, Belgian courts have traditionally given a limitative interpretation to the above standing requirements in cases brought for the protection of elements of the environment which are not privately owned (“the commons”). The underlying question to the debate on whether such cases are admissible, is whether natural and/or legal persons can assert any subjective right which is proper to them on the commons (in this case the environment). In case of a tort claim against the State for failure to enact climate change mitigation legislation, the subjective right at issue would be the right to compensation. As will be explained below, claimants in climate change litigation cases are likely to see their subjective right to compensation on the basis of Article 1382 CC challenged for lack of one of the constitutive elements of this provision, notably, damage.31 A lack of personal damage would, ipso facto, entail a lack of personal interest and, therefore, the inadmissibility of the claim. Even though the procedural and substantive aspects of the analysis are thus closely intertwined, they should nevertheless be distinguished. Within the framework of the admissibility assessment, Belgian courts will merely investigate the possibility that a claimant has suffered personal damage. The factual investigation into the existence and scope of such personal damage in reality, pertains to the subsequent substantive analysis of the case.32 2.5.2 Standing of Environmental Not for Profit Associations in Case of Damage to the Commons The issue of standing in case of damage to the commons has been the object of intense debate in Belgian case law and jurisprudence as far as environmental not for profit associations are concerned. For decades,33 the Supreme Court maintained the point of view that legal persons can only act as claimants when their own material or moral goods are at stake. Under this strand of case law (referenced as the Eickendael doctrine), legal persons were denied standing when their action aimed to safeguard other interests, even in case the preservation of these interest was part of their corporate purpose. In spite of critical jurisprudence34 and in spite of dissenting

 Cass. 25 Oktober 1985, R.W. 1985-86, 2411; Cass. 31 Mei 1990, R.W. 1990-91, 749; Cass. 5 November 1990, R.W. 1990-91, 1431. 31  Carette (1997), pp. 84–86. 32  Cass. AR C.13.0374.N, 29 Oktober 2015; Cass. 23 Februari 2012, AR C.11.0259.N ; Cass. AR C.09.0420.N, 4 Februari 2011; Cass. 16 November 2007, AR C.06.144.F; Cass. 28 September 2007, AR C.06.0180.F ; Cass. 26 Februari 2004; Cass. 2 April 2004 ; Cass. 5 November 1990. 33  I.e., since the Supreme Court cases Eickendael of 1982 (Cass. 19 November 1982, RW 1983-84, 2029) and Neerpede of 1985 (Cass. 25 Oktober 1985, RW 1985-86, 2429). 34  Lemmens (1983), pp. 2002–2026; Dirix (1983), pp. 2025–2030. 30

436

L. Marien and L. Reins

case law by some lower courts,35 the Supreme Court’s position remained unaltered until 2013. In a 2013 landmark case,36 the Supreme Court accepted the admissibility of a claim for damages lodged by an environmental organisation. Referring to Article 9.3 of the Aarhus Convention,37 the Supreme Court found that the admissibility criteria laid down in Belgian law in relation action brought by environmental organisations, cannot be explained so restrictively that they prevent these organisations from having access to justice when they seek to contest actions or omissions by either private persons or public authorities which violate national environmental law.38 Thus, the impairment of an interest, the protection of which is part of the corporate purpose of a not for profit association, was found to constitute a “personal” interest for the association at issue, granting said association standing should it set out to protect this interest in court. 2.5.3 The Existence of Personal Damage in Relation to the Commons The above 2013 Supreme Court case only addresses the issue of standing for legal persons. However, Article 9.3 of the Aarhus Convention, which constituted the basis for the Supreme Court’s landmark ruling, refers to “members of the public” and does not in any way limit the right of access to justice to legal persons. Accordingly, there seem to be valid reasons to assume that the Supreme Court might equally apply a flexible reading of the standing requirements laid down in Articles 17 and 18 JC in relation to natural persons. Nevertheless, in the absence of a “corporate purpose” for natural persons, which would link individual claimants to the commons over which they have no personal title, it remains to be seen how the Supreme Court will apply the personal interest requirement to natural persons acting in defence of the commons. To date, tort claims in which natural persons have acted in defence of the commons are generally declared inadmissible, as their claimants are traditionally considered not to meet the requirement of personal damage.39 As there is no ownership by anyone over the commons, the traditional view is that no personal damage can be said to arise when the commons are being adversely affected. However, this does not entail that natural persons can never successfully rely on Article 1382 CC in order to obtain compensation for damage inflicted upon the commons. Below, we will discuss two approaches which may be open to potential claimants, notably  See the overview in LeFranc (2005), pp. 172–176.  Cass. 11 juni 2013, TMR 2013, 392–397 met noot P. LeFranc, “De Eikendael- doctrine moet wijken voor de Aarhusdoctrine”. 37  And probably under the influence of the European Court of Justices’ so-called Slovak Brown Bear Case (Case C-240/09, Lesoochranárske zoskupenie, 8 March 2011, ECLI:EU:C:2011:125), even though the Supreme Court does not refer to this case. 38  Ibidem, at 4. 39  Bocken (1997), p. 152; Carette (2013), p. 14. 35 36

Local Liability for Global Consequences? Climate Change Litigation in Belgium

437

(i) relying on a subjective right to the protection of the environment, (ii) translating damage to the commons into damage to personal integrity or property. Both approaches are discussed below. For completion’s purposes, it should be noted in relation to standing for individuals, that it is currently not possible under Belgian law for claimants to launch a class action against the State.40 Subjective Right to the Protection of the Environment First, several treaties and legal texts, including the Belgian Constitution, grant citizens a right to the protection of their environment. Article 23 of the Belgian Constitution grants “everyone […] the right to a dignified life”. Article 23, third section of the Constitution lists a number of economic, cultural and social rights which are specifically said to be included in the notion of a dignified life. In particular, the provision mentions “the right to the protection of one’s health” and “the right to the protection of a healthy environment”. Since the insertion of Article 23 into the Belgian Constitution in 1994, various courts have found that Article 23 does not grant any subjective rights to individuals.41 Some courts have based this conclusion on the reasoning that the rights listed in Article 23 of the Constitution do not have direct effect and cannot, therefore, be enforced in court. Others have rather referred to the fact that Article 23, second section of the Constitution requires the legislator to enact measures to guarantee the respect of the economic, social and cultural rights at issue, and to define the conditions governing the exercise thereof. Accordingly, the authorities dispose of a significant margin of appreciation when it comes to shaping the content of the right to a dignified life. These court decisions, which are backed by authoritative jurisprudence,42 do not acknowledge Article 23 of the Constitution as a source of subjective rights for individuals, but rather perceive this provision as a policy declaration, in which the constitutional legislator has committed to a certain political orientation. However, this does not imply that individuals can invoke Article 23 of the Constitution vis-à-vis the legislator in order to force the latter to enact measures which further the protection of the environment. Indeed, the Constitutional Court has specified that Article 23 of the Constitution lays down a stand-still obligation, prohibiting the legislator from significantly reducing the level of protection of the environment, as resulting from the applicable legislation, unless such reduction would be justified by the

 By law of 28 March 2014, the Belgian legislator introduced the option to launch a class action into the Belgian Code of Economic Law. However, the scope of claimants’ right to launch a class action is limited to contractual consumer disputes. For further discussion of the question of class actions and environment-related health damage, see, De Kezel, “Toegang tot het recht bij milieugerelateerde gezondheidsschade,” TMR 2017, bijzonder nummer, 31–42. 41  For an elaborate overview of the case-law, please refer to Funck (2010), pp. 69–161. 42  See, for instance, Mast et al. (2009), p. 429 et seq. 40

438

L. Marien and L. Reins

general interest.43 Not only does Article 23 of the Constitution not require the legislator to further the protection of the environment, if justified by the general interest, the legislator can even reduce the current level of protection of the environment. In spite of the seemingly disappointing foresights offered by the above case-law to claimants wishing to act against the Belgian legislator for failure to enact adequate climate change mitigation legislation, another strand of case-law provides more promising prospects. Various court decisions find a basis for the right to the protection of claimants’ environment or health in the combined reading of Article 23 of the Constitution and another applicable law. For instance, a combination of Article 23 of the Constitution and Article 8 ECHR has been accepted.44 Once a subjective right to the protection of one’s health and/or environment has been identified and accepted by the court, this also clears the individual claimant from the standing perspective. Indeed, claimants invoking their subjective right to the protection of the environment, have been found to have an interest to launch a court procedure.45 For this reason, it has been argued that Article 23 of the Constitution is “the ultimate resort” for judges who find themselves faced with “particularly insufferable situations” for which no recourse can otherwise be found.46 Damage to Personal Integrity or Property Second, a claimant can successfully claim compensation in case damage to the commons in turn results in damage to his/her personal integrity or property. For instance, a claimant’s physical integrity can be affected when the pollution of the commons leads to health issues such as respiratory disorders or growth inhibition.47 In addition, climate change can have an impact on a claimant’s property, as it can reduce agricultural proceeds or lead to flood damage to a claimant’s patrimony. In this respect, it should be noted that Belgian courts only grant compensation for damages pursuant to Article 1382 CC provided that they have been convinced of the existence of “actual damage”. The mere chance that damage will arise or the fear of potential damage constitute insufficient grounds for legal action.48 The requirement to demonstrate actual damage may prove difficult in case of climate change litigation cases, which essentially aim to address future damage. Note that Klimaatzaak refer to both actual and future damage. While the criterion of  See, for instance, GwH, 19 maart 2015, nr. 36/2015 at B.15.3; GwH, 25 juni 2015, nr. 98/2015; GwH, 28 april 2016, nr. 62/2016at B.6.2. 44  Brussel, 17 maart 2005, Res et iura imm. 2005.2, 126; Rb. Brussel, 14 december 2004, Tijdschrift voor Milieurecht 2005, 426. 45  See, for instance, Brussel, 2 November 1989, Amén 1990, 47-51; Brussel 15 Januari 1998, JLMB 1998, 268; Brussel, 5 Oktober 1999, cited in RBDC 1999, 480. 46  Funck (2010), p. 110. 47  Ibid., 113. 48  See, i.a., Dirix (1983), p. 81; De Jongh (2017), p. 16. 43

Local Liability for Global Consequences? Climate Change Litigation in Belgium

439

actual damage does not preclude claimants from obtaining compensation for future damage, it does require that it is sufficiently certain that the future damage will follow from the current situation.49 The standard of certainty imposed by the relevant case law is not absolute, scientific certainty. However, Belgian courts do require a degree of certainty which reasonably rules out any situation in which the alleged fault would not give rise to the damage at issue.50 Accordingly, for a climate change tort claim to be successful on the grounds of damage to personal integrity or property, the court seized of the claim would need to be convinced of the inevitable causal link between the lack of adequate Belgian climate change mitigation legislation on the one hand, and any negative consequences for the claimant’s personal integrity or property on the other hand. The feasibility of this line of argument is thus intricately linked with the Belgian courts’ interpretation of the notion of causality, presented in the following section.

2.6 Causal Link The present section describes the Belgian courts’ interpretation of the notion of causal relationship between fault and damages. It briefly describes the equivalence doctrine applied in Belgian case-law and singles out an associated difficulty in the context of climate change litigation. It concludes by a short discussion of the “loss of a chance” doctrine, which has been put forward in jurisprudence as a way to bypass this difficulty. 2.6.1 The Equivalence Doctrine and the “conditio sine qua non” Requirement In tort cases, Belgian courts apply the so-called equivalence doctrine, meaning that a causal link between fault and damage is only deemed to exist in case the damage would not have arisen in exactly the same way without the wrongful action or omission.51 If a plurality of causes can be said to be at the basis of the damage, the equivalence doctrine considers only faults which constitute essential preconditions (“conditiones sine qua non”) to be causally linked to the damage at issue.52 Once it has been established that a fault is an essential precondition for the damage to arise, the equivalence doctrine does not distinguish between various causes as far as their relative importance is concerned: all causes are deemed to have equally  Cass. 24 Maart 1969, Arr.Cass. 1969, 690; Cass 12 Januari 1950, Arr Cass 1950, 311; Cass 17 Mei 1943, Arr Cass 1943, 109; Dirix (1983), pp. 75–77. 50  Vansweevelt and Weyts (2009), p. 638. 51  Cass. 23 September 2013, C.12.0559.N; Cass. 31 Mei 2013, C.12.0399.N; Cass. 6 December 2013, C.10.0204.F. 52  Cass. 24 maart 2005, Pas. 2005, I, 703. 49

440

L. Marien and L. Reins

contributed to the damages. In this sense, all necessary preconditions are considered as equivalent causes. In practice, the “conditio sine qua non” test implies that, in order to assess the existence of a causal link, Belgian courts will reconstruct the scenario leading to the damages, by replacing the specifically denounced fault by a so-called faultless alternative. In case the hypothetical, alternative scenario would not prevent the damage from occurring in exactly the same way as it did, the causal link between fault and damage will not be accepted by the court.53 As will be demonstrated in the next section, this interpretation of the notion of causality constitutes a potential stumbling block for climate change litigations claims against the Belgian State for failure to enact appropriate legislation. 2.6.2 Application of the “conditio sine qua non” Test to Certain Climate Change Litigation Claims As per the “conditio sine qua non” requirement, climate change litigants against the Belgian State would have to demonstrate that the denounced consequences would not occur in case the Belgian State would not have failed to enact adequate climate change mitigation legislation, but would have rather complied with its obligations under international and national law. This proof may be difficult to supply in cases where claimants invoke damage to the climate, whether they translate this into damage to personal property or integrity, or not. The challenge in terms of causality for such climate change litigation claims does not so much lie in demonstrating the link between anthropogenic emissions of greenhouse gasses and climate change damage. The potential stumbling block rather relates to the question to which extent the emissions that fall under Belgian jurisdiction can be said to have a demonstrable impact on the climate. In other words: in view of the fact that climate change results from the combination of all greenhouse gases emitted into the atmosphere, cutting the Belgian share of these greenhouse gases (estimated around 0.38% of the total global emissions)54 might arguably not realistically impact the global picture to a sufficient extent to meet the threshold imposed under Belgian tort law. On the other hand, once the difficult “conditio sine qua non” threshold would have been passed, there would seem to be little further obstacle in terms of causality for climate change claims against the Belgian State. First, it should be reiterated that, once it would have been established that the alleged climate change damage would not occur if Belgium would have enacted adequate legislation, the relative impact of “Belgian” emissions would not be relevant. As already noted, the equivalence doctrine does not distinguish between various causes as far as their relative importance is concerned, and considers all necessary preconditions as equivalent causes. Even if

53 54

 Auvray (2016), p. 151.  Cf. writ of summons Klimaatzaak case, n. 2 above.

Local Liability for Global Consequences? Climate Change Litigation in Belgium

441

the emissions under Belgian jurisdiction may be relatively minor contributors to global warming, the Belgian State could still be held liable for climate change damages on Belgian territory. Second, the equivalence doctrine also does not distinguish between direct and indirect causes.55 Accordingly, damage to personal integrity or property could be imputed to the Belgian State even if it only indirectly results from the latter’s failure to enact reduction measures. 2.6.3 The “Loss of a Chance” Doctrine It is apparent from the above that claimants wishing to initiate a court case against the Belgian State for failure to put in place adequate climate change mitigation legislation, face a dual difficulty to demonstrate both actual damage and a causal link with a specific fault. It has been argued that the “loss of a chance” doctrine can be relied upon in order to escape these two burdensome requirements stemming from the interpretation of Article 1382 CC.56 Rather than advancing a claim for compensation of specific damage, claimants can rely on this doctrine in order to obtain compensation for having lost the chance to acquire a certain advantage or to avoid a certain disadvantage. The “loss of a chance” doctrine has been the subject of lively academic debate, in which certain authors precisely denounced the fact that it enabled the undue circumvention of the traditional liability criteria of Belgian tort law.57 First, the “loss of a chance” doctrine allows a tort claim in cases where it is not certain that the damages will occur, as it only requires that it is established that some (however small) chance exists that the chance would have materialised. The degree of likelihood of this happening is only relevant in so far as this impacts the quantification of the damages.58 In addition, the “loss of a chance” doctrine can be applied in cases where the causal link between the fault and the final damages has not been established.59 Indeed, the “loss of a chance” doctrine precisely introduces the loss of the chance to acquire a certain advantage or to avoid a certain disadvantage as a separate ground for compensation, independent of any damages which may arise in case the final disadvantage materialises. As a result, the causal link does not need to demonstrated between the fault and the final damages, but rather between the fault and the loss of a chance. In 2008 the Belgian Supreme Court ended the scholarly discussions regarding the “loss of a chance” doctrine and confirmed that the loss of a chance qualifies for

 Vansweevelt and Weyts (2009), p. 791.  See, e.g., Soete and Schoukens (2016), p. 202; Merveille (2014), pp. 15–26. 57  Vansweevelt and Weyts (2009), p. 645. 58  Ibid, 643. 59  See, e.g., Bocken (2006–2007), pp. 271–325. 55 56

442

L. Marien and L. Reins

compensation under Article 1382 CC.60 Accordingly, the doctrine might constitute a useful basis for claimants in climate change litigation cases, who can argue that the lack of action by the Belgian State deprives them of the chance to live in a scenario where climate change would be contained to the so-called 2 °C scenario. This loss of a chance is both actual and causally connected to the alleged fault by the Belgian legislator.

2.7 Outcome: Compensation and Order to Legislate In the Belgian Klimaatzaak case, the claimants primarily request the court to order the Belgian State to enact legislation to reduce the level of Belgian greenhouse gas emissions below a certain percentage in comparison to the year 1990. While such court orders to legislate are not prohibited under Belgian law, they are rare.61 In this respect, it should be noted that the victim of a fault in the sense of Article 1382 et seq. CC is entitled to claim compensation in a specific form, i.e., the form which is most appropriate in view of the specific nature of the damage, provided that such compensation is possible and does not constitute abuse of right. Compensation in a specific form is even preferred over monetary compensation by equivalent, which is only considered once compensation in kind is not possible.62 As early as 1980, the Supreme Court has acknowledged that these principles also apply when compensation is claimed vis-à-vis the authorities and that a court of law can order the authorities to take certain measures in order to terminate an illegal situation.63 Accordingly, in a tort case against the legislator for failure to enact legislation, an order to legislate could, at first sight, be the most appropriate form of compensation. However, the legitimacy of court orders to legislate could been questioned in view of a 2004 Supreme Court case concerning a claim brought by a number of residents of the Brussels Airport area in relation to the geographical distribution of night flights routes.64 The Supreme Court was asked to assess the legal validity of a Court of Appeal judgment in the case, in which the Court of Appeal had found that the authorities had used an impertinent criterion when addressing the issue of noise nuisance of the night flights. In particular, the Court of Appeal had ruled that the authorities could not have reasonably used the criterion of population density of the underlying areas when defining the routes to be followed by aircrafts taking off from Brussels Airport. According to the Court of Appeal, the policy choice to direct a higher number of night flights over the less densely populated northern part of the airport area, could not be reasonably justified, since the fundamental right to the protection of one’s  Cass. 5 juni 2008, Arr.Cass. 2008, afl. 6-7-8, 1462.  Mertens (2012), p. 80; Soete (2016), p. 236. 62  Van Oevelen et al. (2007), p. 978. 63  Cass. 26 juni 1980, Arr.Cass. 1979-80, 1365. 64  Cass. 4 maart 2004, Arr.Cass. 2004, afl. 3, 392. 60 61

Local Liability for Global Consequences? Climate Change Litigation in Belgium

443

health, family life and home does not provide any basis for a distinction according to whether noise nuisance is suffered by a large or a small number of people. As a result, and in spite of the discretion granted to the authorities for setting a policy to address the issue of noise nuisance caused by night flights, the Court of Appeal concluded that the authorities should have applied the criterion of “maximum degree of exposure to nuisance”, rather than the criterion of population density. In addition, the Court of Appeal derived from this, that the only way to respect the subjective rights of the claimants was to equally use all available take-off runways of Brussels Airport and to maximally spread the flight routes over the area immediately following take-off. The Supreme Court did not support the above turn taken by the Court of Appeal and held as follows: The judicial branch is competent to both prevent and compensate the undue interference by the authorities with a subjective right, even when the authorities are exercising a discretionary power. However, in so doing, the judicial branch cannot deprive the authorities of the freedom to enact the policy of their choice, and neither can they substitute their appreciation to the appreciation of the authorities. […]65

Pursuantly, when handling a tort case against the legislator for failure to enact adequate legislation, court will be required to take into account the boundaries of their competence. The principle of the separation of powers prevents them from trespassing onto the terrain of the executive or legislative branches. The demarcation of the terrain of the judicial branch is not a straightforward exercise, especially in the climate change litigation cases under discussion. While the above 2004 Supreme Court case would make it difficult for courts to prescribe the specific content of the climate change mitigation legislation to be adopted (except to the extent that such content would be unambiguously laid down in a higher ranking norm), there would seem to be leeway for courts to order the legislative branch to enact adequate legislation, possible by a specific deadline, the exceeding of which might give rise to penalties.

3 Private Party Acts Against an Administrative Decision Issued by a Public Actor 3.1 Introduction: The Complex Maze of Belgian Administrative Appeals Two of the scenarios under analysis concern situations in which private parties act against administrative decisions with individual bearing (construction of an airport) or against generally applicable regulations (planning of flood resilience

 Free translation of: “Dat de Rechterlijke Macht bevoegd is om een door het bestuur bij de uitoefening van zijn niet-gebonden bevoegdheid begane onrechtmatige aantasting van een subjectief recht zowel te voorkomen als te vergoeden, maar daarbij aan het bestuur zijn beleidsvrijheid niet vermag te ontnemen en niet vermag zich in de plaats van het bestuur te stellen;”. 65

444

L. Marien and L. Reins

infrastructure, coastal policies) issued by local administrations. In principle, annulment proceedings against such decisions and regulations fall within the competence of the Council of State, pursuant to Article 14 of the Coordinated Laws on the Council of State (“CLCS”).66 In view of this general competence of the Council of State in administrative matters, the present report analyses the plausibility of bringing climate activist proceedings against administrative decisions and regulations from the perspective of the rules applicable to procedures before the Council of State. However, it should be emphasised from the outset that this approach makes abstraction of the existence of other fora and procedures which may be relevant in specific situations. First, an important limitation to the general competence of the Council of State is laid down in Article 14 CLGS which withdraws from the Council of State’s jurisdiction disputes which are assigned by law to a different judicial institution. One example of a judicial institution competent to hear actions for annulment against administrative decisions, is the Council for Permit Disputes, which was established by way of Article 4.8.1 of the Flemish Code of Spatial Planning. Following the establishment of this institution, various decisions in relation to permits in the Flemish Region cannot be appealed before the Council of State, as they have been assigned to the Council for Permit Disputes. While these alternative judicial institutions may be relevant for certain of the scenarios under analysis (e.g., permit of the airport), they will not be addressed within the ambit of the present report. Second, it should be noted that an action for annulment before the Council of State often constitutes the final step in a chain of administrative appeals. Claimants who want to bring their action for annulment before the Council of State, are required to first exhaust all organised administrative appeals which are available to them. However, the present contribution will not look into these earlier stages of administrative appeals, which may vary significantly depending on the type of decision and/or the administration which took the decision.

3.2 Admissibility 3.2.1 Standing Requirement for Individuals Pursuant to Article 19 CLCS, only claimants who have interest are entitled to bring an action for annulment before the Council of State. Claimants will be found to have an interest in bringing proceedings only if they have suffered a personal and certain disadvantage which is directly caused by the contested decision or regulation and which would be remedied by the annulment thereof.67 Two aspects of this standing requirement are discussed below.  Gecoordineerde Wetten van 12 januari 1973 op de Raad van State / Lois Coordonnées du 12 janvier 1973 sur le Conseil d’Etat, B.S., 21 maart 1973, as subsequently modified. 67  De Taeye (2003), p. 85. 66

Local Liability for Global Consequences? Climate Change Litigation in Belgium

445

First, the requirement that claimants need to have a personal interest in bringing proceedings presupposes a sufficiently individualised connection between the contested decision and the claimant. In other words: the claimant’s interest needs to differ from the interest of every citizen in having the law respected as such.68 In order to avoid the so-called “actio popularis” (public interest litigation), which would drag the Council of State into political debate, individuals are barred from bringing actions for annulment in the general interest before the Council of State.69 Within the context of the scenarios under analysis, it should be noted that the Council of State has held that, in the absence of a specific link with the infrastructure project at issue, a claimant’s general interest in the protection of the environment, health and safety, does not constitute a personal interest in the sense of Article 19 CLCS.70 Therefore, an action for annulment by a private person against the decision to issue a permit for an airport, will (in principle71) only pass the personal interest admissibility hurdle, in case the person bringing the case can demonstrate to directly suffer detrimental effects of the airport to be constructed, for example as a consequence of the immediate proximity of the airport to the claimant’s domicile.72 Second, in relation to the requirement that claimants need to suffer a disadvantage as a consequence of the contested decision, it should be mentioned that this does not imply that claimants can only act against decisions which are negative to them. Actions for annulment can be brought by claimants who obtain a benefit from the contested decision, provided that it is possible that an even more advantageous decision will be taken following the annulment of the contested decision.73 As such, standing requirements do not prevent that a decision of the local administration in which certain flood resilience architecture is planned, would be brought before the Council of State by a claimant hoping to obtain even stronger measures. 3.2.2 Standing Requirements for Private Legal Persons The aversion of the Council of State against public interest litigation sometimes conflicts with the increasing appetite of environmental organisations to protect their core values by way of court procedures. Nevertheless, traditionally, the Council of State was more lenient than the Supreme Court (with its Eickendael doctrine, discussed above) in granting standing to environmental organisations. In three  Mast et al. (2009), p. 1007 et seq., with further references.  Brewaeys (2001), p. 191. 70  R.v.St., nr. 198.664 van 8 december 2009. 71  Aside from a rare applying a more flexible interpretation of the personal interest requirement, in which the Council of State decided that the mere fact of being an inhabitant of a city suffices as a basis to contest a police regulation issued by the city council which limits the claimant’s constitutional right to free speech. See, R.v.St., nr. 103.730 van 19 Februari 2002. 72  See, for an example of discussions in relation to personal interest of an individual contesting a permit for an airport: R.v.St., nr. 224.252 van 4 Juli 2013. 73  R.v.St., nr. 137.952 van 2 December 2004. 68 69

446

L. Marien and L. Reins

landmark 1981 cases,74 the Council of State accepted that environmental organisations can initiate proceedings for the protection of the environment before the Council of State, provided that they can meet certain specific standing requirements. These requirements and their application were further refined as a consequence of the entry into force of the Aarhus Convention.75 The most relevant ones to the scenarios under consideration are briefly discussed below. A first set of standing requirements for private legal persons relates to their corporate purpose. Private legal persons wishing to initiate an action for annulment before the Council of State need to demonstrate that the bringing of such action falls within their corporate purpose. This corporate purpose needs to be formulated in a way which is sufficiently specific, such that it does not coincide with the general interest and such that it would not encompass any action before any court.76 In addition, the Council of State requires there to be a proportionate relationship between the corporate purpose of the organisation (as described in the articles of association) and the contested decision or regulation, both geographically and substantially.77 This proportionality requirement entails i.a. that administrative acts which only touch upon local interests cannot be contested by organisations covering a much broader terrain. However, it is worth mentioning that the Council of State has declared admissible actions by organisations which were active on a national level in relation to local decisions or regulations the environmental impact of which surpasses the local level.78 The more specific the definition of the corporate purpose of the claimant, the more the Council of State is likely to be flexible with regard to the geographic proportionality.79 Accordingly, in the airport scenario, it is conceivable that an environmental organisation could have standing to bring an action for annulment against a permit decision for a local airport, even when its articles of association state that the organisation is nationally active, provided that the organisation can make a plausible case that the permit decision has environmental repercussions beyond the local level (e.g. greenhouse gas emissions). On the other hand, reference should be made to a 2013 Council of State decision, in which the Council of State denied standing to an environmental organisation which was active on the territory of a number of communes

 R.v. St., nr. 20.882-20.885 van 20  Januari  1981; R.v.St., nr.  21.012 van 10 Maart 1981; R.v.St., nr. 21.384 van 10 Maart 1981. 75  For further reference, see: Schoukens (2008), pp. 291–310; Lust (2002), pp. 336–340; Lefranc (2010), pp. 426–467. 76  R.v.St. nr. 193.593 van 28 Mei 2009. 77  R.v.S nr. 202.309 van 24 Maart 2010. 78  See, R.v.St., nr. 74 635 van 25 juni 1998 and R.v.St., nr. 76 063 van 1 oktober 1998. 79  Vandaele (2014), p. 173. 74

Local Liability for Global Consequences? Climate Change Litigation in Belgium

447

and which was thus barred from acting against an exploitation permit for a small recreational airport situated on the territory of one of these communes.80 A second set of standing requirements for private legal persons concerns the so-­called representativity requirement. An action for annulment initiated by an environmental NGO will only be admissible in case the organisation can demonstrate that it has operated effectively and durably in accordance with its articles of association. Moreover, the organisation will need to demonstrate sufficient support among the members of the group it claims to represent.81 Therefore, the strategy to establish an environmental organisation specifically to fit the purpose of bringing an action for annulment before the Council of State, in order to avoid any standing difficulties encountered by individual claimants, would likely be unsuccessful.

3.3 Legal Grounds Article 14, §1, first section CLCS lays down the grounds on the basis of which the Council of State can annul administrative decisions and regulations. These are: lack of competence of the body which adopted the contested decision or regulation, abuse of power, illegality, and violation of essential procedural requirements. The latter two grounds for annulment merit particular attention within the framework of this report and will be discussed below. In addition, the present section will discuss the limitations related to the need to demonstrate interest in bringing a specific argument as laid down in Article 14, §1, second section CLCS. Indeed, Article 14, §1, second section CLCS restricts the recourse to any of the potential grounds for annulment to situations in which their violation “could have an influence on the scope of the decision taken, would have deprived the parties involved of a guarantee or have repercussions on the competence of the body taking the action at issue”.82 This provision was added to the CLCS in 2014 and lays down the need for claimants to demonstrate interest in the arguments they invoke.83 Indeed, not only are claimants before the Council of State required to demonstrate interest in bringing an action for annulment, in addition, they have to demonstrate

 See, for an example of discussions in relation to personal interest of an individual contesting a permit for an airport: R.v.St., nr. 224.252 van 4 juli 2013. 81  Schoukens (2008), p. 299. 82  “De in het eerste lid bedoelde onregelmatigheden geven slechts aanleiding tot een nietigverklaring als ze, in dit geval, een invloed konden uitoefenen op de draagwijdte van de genomen beslissing, de betrokkenen een waarborg hebben ontnomen of als gevolg hebben de bevoegdheid van de steller van de handeling te beïnvloeden.” / “Les irrégularités visées à l’alinéa 1er ne donnent lieu à une annulation que si elles ont été susceptibles d’exercer, en l’espèce, une influence sur le sens de la décision prise, ont privé les intéressés d’une garantie ou ont pour effet d’affecter la compétence de l’auteur de l’acte.” 83  Parl. St., Senaat, 2012–2013, nr. 5-2277/1, p. 11. 80

448

L. Marien and L. Reins

interest in relation to each of the arguments they bring.84 To this end, claimants are required to comply, in relation to each individual argument they invoke, with the admissibility conditions described in section 3.2 above, including the requirement to demonstrate personal interest.85 The impact of this requirement on the ability of environmental NGOs to bring general interest arguments, as well as on claimants’ ability to invoke certain procedural arguments, will be discussed under the subsections on illegality and on violation of essential procedural requirements respectively. 3.3.1 Illegality Discretionary Power of the Administration and Marginal Control by the Council of State Whether or not a certain administrative decision or regulation is to be considered illegal, can only be assessed by the Council of State in light of the margin of appreciation granted to the administrative body issuing the decision or regulation. In principle, decisions or regulations remaining within the boundaries of the discretion legally granted to the administrative authority at issue, cannot be found to violate the law. Nevertheless, the Council of State can exercise a so-called marginal control on discretionary decisions. Such control would take place on the basis of the principle of reasonableness, which is a principle of good governance and, as such, has constitutional status.86 Pursuantly, in case the Council of State would find that, by enacting the contested decision or regulation, the local administration manifestly used its discretionary power in an unreasonable way, the Council of State may still proceed to the annulment on illegality grounds.87 For instance, in the case of the planning of flood resilience infrastructure or the enactment of coastal policies, the competent local government is likely to have significant discretionary power as to the type of measures to be adopted. Aside from the hypothesis where these measures would fail to meet clear standards imposed by law (in which case this failure would constitute sufficient ground for annulment), the concern that these measures might not be strong enough to face future climate change induced crises, can only be taken into account within the framework of a marginal control by the Council of State. Reference can be made in this respect to a decision in which the Council of State has held that the government is only subject to marginal control when it makes choices as to how it wishes to implement environmental objectives.88

 Note that this requirement does not apply for arguments which touch upon public order. For further information, please see Wirtgen (2004), pp. 63–71 and Mast et al. (2009), p. 993. 85  De Taeye (2003), p. 85. 86  Opdebeek and Van Damme (2006), p. 28. 87  Mast et al. (2009), p. 996 et seq. 88  R.v.St., N.V. Aquafin, nr. 133.925 van 14 juli 2004. 84

Local Liability for Global Consequences? Climate Change Litigation in Belgium

449

Within the framework of this marginal assessment by the Council of State of the legality of the authorities’ decision, claimants may consider invoking the precautionary principle. It should be noted that the Council of State is reluctant to independently apply the precautionary principle.89 However, in the case of the flood resilience architecture, an interesting precedent may be the Mobistar case,90 in which the Council of State founded the precautionary principle on Article 23 of the Constitution, stating that: even if the precautionary principle is not expressly laid down in any legal text issued by the Walloon Region, any risk of infringement of the right to the protection of one’s health or to the right to a healthy environment, protected by Article 23, third section, 2° and 3° of the Constitution, has to be taken into account in the assessment of the compatibility of a project for which a planning permit was requested with the destination of the area in which the project would be realised or with the principle of good neighbourly relations.91

This interpretation, which requires the authorities to take into account “any risk of infringement” of the right to the protection of one’s health or environment, seems to have taken the precautionary principle beyond the boundaries of contingent legal provisions imposing specific obligations on the authorities.92 Interest of NGOs in Raising General Interest Arguments As to the question whether NGOs could argue against decisions by local authorities which provide inadequate protection against future climate change induced floodings, reference can be made to a 2015 Constitutional Court case. In this case, the Court was asked whether the requirement of personal interest in bringing a specific argument, as laid down in the new Article 14, §1, second section CLCS, should be interpreted so as to prevent NGOs from raising arguments related to the general interest, which would not relate to the NGOs’ individual situation. The Constitutional Court responded that the provision at issue “does not entail that legal persons which aim to protect a collective interest can only bring arguments in which they have a personal stake. Much to the contrary, such legal persons can continue to invoke irregularities harming the general interest which they aim to protect”.93  Schamps (2004), p. 184.  R.v.St., nr. 118.214 van 10 april 2003. 91  Translated freely from French: “si le principe de précaution n’est inscrit expressément dans aucun texte juridique émanant de la Région wallonne, tout risque d’atteinte au droit à la protection de la santé ou au droit à un environnement sain, protégés par l’article 23, alinéa 3, 2o et 3o, de la Constitution, doit être pris en compte lors de l’examen de la compatibilité d’un projet, pour lequel un permis d’urbanisme est demandé, avec la destination de la zone où il s’implanterait ou avec le voisinage;” 92  For a detailed commentary, see, M.  Pâques, “Le Conseil d’Etat et le principe de précaution: chronique d’une naissance annoncée,” J.T., 2004/9, 169–179. 93  GW Hof, nr. 103/2015, 16 juli 2015, at B.44.3. “Met name heeft de maatregel niet als gevolg dat een verzoekende vereniging die een collectief belang nastreeft, slechts middelen zou kunnen aanvoeren waarbij de vereniging een persoonlijk belang heeft. Die vereniging kan zich integendeel, zoals vóór de inwerkingtreding van de bestreden bepaling, onverminderd op onregelmatigheden beroepen die nadeel berokkenen aan het collectief belang dat zij nastreeft.” 89 90

450

L. Marien and L. Reins

3.3.2 Violation of Essential Procedural Requirements A second ground on which claimants can obtain the annulment of decisions or regulations by local authorities before the Council of State, is the violation of essential procedural requirements. Indeed, when a certain competence is given to an administrative body, the law granting such competence often subjects this competence to certain procedural requirements, such as the obligation to state reasons, the obligation to seek advice, the obligation to hear the parties involved, etc. In case these obligations are essential, meaning that they are either considered as substantive or that their violation is legally sanctioned by nullity, they can give rise to the annulment of a decision or regulation enacted in disregard of these obligations. The assessment of whether a procedural requirement is substantive or sanctioned by nullity, is an ad hoc assessment, which is generally made on the basis of the law imposing the requirement.94 While the violation of essential procedural requirements could thus constitute a fertile feeding ground for claimants facing difficulty in demonstrating (their personal interest in) the illegality of the contested decision or regulation, it cannot be overlooked that Article 14, §1, second section limits the extent to which claimants can successfully invoke the violation of procedural requirements before the Council of State. Pursuantly, only the violation of procedural requirements which have an impact on the content of the contested decision or regulation can lead to the annulment of the administrative act at issue. In its 2015 interpretation of Article 14, §1, second section CLCS, the Belgian Constitutional Court clarified that said provision does not require claimants to actively demonstrate that the alleged procedural infringement altered the content of the decision or regulation. Rather, the Constitutional Court found that the burden of proof of the lack of impact on the contested administrative act rests with the competent administration. According to the Constitutional Court, precisely this allocation of the burden of proof, accounts for the compliance of Article 14, §1, second section CLCS with EU law concerning environmental impact assessments, as interpreted by the Court of Justice of the European Union.95 In sum, claimants wishing to obtain the annulment of climate change mitigation measures adopted by local authorities, will only be able to rely on procedural requirements related to, for instance, public participation or environmental impact assessments, provided that these procedural requirements cannot be demonstrated to have no bearing on the content of the contested decision or regulation.

 Mast et al. (2009), p. 993 et seq.  HvJ, 7 November 2013, C-72/12, Gemeinde Altrip, as referenced in paragraph B.44.6 of GW Hof, nr. 103/2015, 16 juli 2015. 94 95

Local Liability for Global Consequences? Climate Change Litigation in Belgium

451

4 Private Parties Acting Against Private Parties In the absence of any contractual relationship, private parties intending to bring a case against other private actors whose acts lead—directly or indirectly—to a large rise in greenhouse gas emissions have to rely on Belgian tort law and more precisely on article 1382 CC. A successful tort claim among private parties requires the proof of a fault, a damage and a causal link between these two elements. As explained above, a private party commits a fault when it violates a norm of law which prescribes or prohibits a specific behaviour (“the first type of fault”) or when it fails to observe a general duty of care (“the second type of fault”). The lightest fault is enough to engage one’s liability.96 Private parties will be guilty of the first type of fault when they do, for instance, fail to respect the strict Belgian regulations on greenhouse gas emissions. The second type of fault will require proof of the fact that a private party has violated the previously explained prudentman’s principle and thus the general duty of care that can be expected of a private actor placed in the same circumstances. In a traditional reading, bringing a climate change litigation case against a private party compliant with all its legal and contractual obligations would indubitably be considered as significantly stretching the radius of Belgian tort law. However, arguably, it has not been explicitly crystalized yet under Belgian law whether private actors strongly investing and contributing to climate change and greenhouse gas emissions can be considered to have violated a general duty of care. In the Belgian doctrine, certain authors have vividly argued that article 1382 CC entails such a duty of care of the environment and that failing to respect this duty results in an extra-contractual fault.97 Still, the Belgian courts have not yet rendered any jurisprudence on this point or even given an indication on how strictly they will interpret the prudentman’s standard with regard to private parties in the context of greenhouse gas emissions and climate change. In order to define this open standard, inspiration could be taken from domestic principles such as the precautionary principle98 or from the numerous soft law instruments which have been drafted by international organisations and which establish the standards for responsible business conduct. Belgian judges tend to interpret domestic law provisions, particularly when they are vague and open such as is the case of the prudentman’s principle, in line with internationally accepted standards in order to avoid the responsibility of the Belgian legislator to be engaged.99 An authoritative standard in this respect could be the OECD guidelines for Multinational Enterprises. This soft law instrument provides for a duty for

 Vansweevelt and Weyts (2009), p. 260.  S. Van Meel, Interview Hendrik Schoukens ‘Niemand durft de eerste stap te zetten om het klimaat te redden’, 24 februari 2016; A. Soete en H. Schoukens (2016), 191 and 192. 98  See, above under 2.4.2. 99  Van Eeckhoutte and Vandaele (2002), p. 17; Somers (2016), pp. 188 and 234. 96 97

452

L. Marien and L. Reins

enterprises to take due account of the need to protect the environment100 and to adopt measurable objectives and targets for improved environmental performance.101 The guidelines also provide for a duty to disclose greenhouse gas emissions102 and invest in reducing them.103 Belgium has adhered to these principles and has created a National Contact Point since 2000.104 Other than proof of a fault, the private applicant will have to prove the damage he suffers due to the actions (for instance greenhouse gas emissions) of the other private party. As explained above, these damages need to be certain and personal. Finally, a causal link between the fault and the damage will have to be established. The procedural obstacles with which private parties will be confronted in this respect are similar, and thus apply by analogy, to the ones explained above.

References Auvray F (2016) Over de beoordelingsperikelen van het oorzakelijk verband tussen het gebrek van de zaak en de schade. TBBR/RGDC 2016/3 Bocken H (1997) The compensation of ecological damage in Belgium. In: Wetterstein P (ed) Harm to the environment: the right to compensation and assessment of damages. Clarendon Press, Oxford Bocken H (2006–2007) “Geen kans verloren. Causale onzekerheid en de rechtspraak van het Hof van Cassatie over het verlies van een kans”, X., Aansprakelijkheid, aansprakelijkheidsverzekering en andere schadevergoedingssystemen Brewaeys E (2001) De actio popularis. P&B/R.D.J.P Carette A (1997) Herstel van en vergoedingvoorniet-toegeëigendemilieubestanddelen. Intersentia, Antwerpen, pp 84–86 Carette A (2013) Milieuaansprakelijkheid. In: Dirix E, Van Oevelen A (eds) Bijzondere overeenkomsten: commentaar met overzicht van rechtspraak en rechtsleer, Antwerpen, Kluwer, Boek IV, Commentaar verbintenissenrecht, Titel III, Hfdst. 13, Afd. 4 De Jongh S (2017) Angst en aansprakelijkheidsrecht: Kruit noch lood?. De Juristenkrant, afl. 345 De Kezel E (2008) Blootstelling aan asbest. Civiele vorderingsmogelijkheden van milieuslachtoffers. Tijdschrift voor Milieurecht De Kezel E (2009–2010) Het risico op aansprakelijkheid van de overheid voor fouten van de wetgever. R.W De Taeye S (2003) Procedures voor de Raad van State. Kluwer, Mechelen Dirix E (1983) Het begrip schade. Kluwer, Antwerpen, p 81 Factortame (1996) H.v.J. 5 maart 1996, gevoegdezaken C-46/93 en C-48/93, Brasserie du Pêcheur en Factortame III, Jur.H.v.J., I, p 1029 Frankovich (1991) H.v.J. 19 november 1991, gevoegdezaken C-6/90 en C-9/90, Francovich en Bonifaci, Jur. H.v.J. I, p 5357

 Title VI OECD Guidelines 1976 (2011 version).  Title VI, sections 1 b) and 6 OECD Guidelines 1976 (2011 version). 102  Title III, Commentary on Disclosure, section 33 OECD Guidelines 1976 (2011 version). 103  Title VI, section 6 b) OECD Guidelines 1976 (2011 version). 104  OECD Guidelines, Belgium, National Contact Point http://mneguidelines.oecd.org/ncps/belgium.htm. 100 101

Local Liability for Global Consequences? Climate Change Litigation in Belgium

453

Funck H (2010) L’article 23 de la Constitution à travers la jurisprudence des cours et tribunaux (1994 – 2008): un droit en arrière-fond ou l’ultime recours du juge? In: Rauws W en Stroobant M (eds) Sociale en economische grondrechten. Artikel 23 GW: een stand van zaken na twee decennia, Intersentia, Antwerpen Lefranc P (2005) De toegang tot de rechter van de burgerlijke partij in het milieustrafrecht. In: Larssen C, en Pallemaerts M (eds) Toegang tot de rechter in milieuzaken, Brussel, Bruylant Lefranc P (2010) Over de ontvangst van milieuverenigingen in de Raad van State (overzicht van rechtspraak 1948 – 2010). Tijdschrift voor Milieurecht Lemmens P (1983-84) “Het optreden van verenigingen in rechte ter verdediging van collectieve belangen”, RW 1983-84, kol. 2002-2026; E.  DIRIX, “De aansprakelijkheidsvordering van burgers en verenigingen bij foutieve verstoring van het leefmilieu”, RW Lierman S (2001-2002) Het voorzorgsbeginsel en zijn invloed op gezondheidsbescherming en aansprakelijkheid. RW Lust S (2002) Het belang van eenmilieuverenigingom in rechtetetredenvoor de Raad van State. Een status questionis. TijdschriftvoorMilieurecht, pp 336–340 Maes G (2004) Algemene zorgvuldigheidsnorm en aansprakelijkheid voor de wetgevende macht. NJW Mast A, Dujardin J, Van Damme M, Vande Lanotte J (2009) Overzicht van het Belgisch Administratief Recht. Kluwer, Mechelen Mertens K (2012) Aansprakelijkheid van de overheid voor klimaatverandering. Kan het EVRM een uitweg bieden? Een analyse voor Nederland en België. In: Teesing N (ed) Naar aansprakelijkheid voor (de gevolgen van) klimaatverandering? Boom Juridische Uitgevers, Den Haag Merveille M (2014) La preuve du lien de causalité et le préjudice environnemental individual. Amén, liv. 1 Opdebeek I, Van Damme M (eds) (2006) Beginselen van Behoordlijk Bestuur, Brugge, Die Keure Popelier P (2010–11) De zorgvuldige wetgever en de gekwalificeerde fout: een overvloedig respect voor de beleidsvrijheid van de wetgever. RW Schamps G (2004) Het voorzorgsbeginsel en het aansprakelijkheidsrecht: naar een nieuwe grondslag voor burgerlijke aansprakelijkheid in het Belgisch recht? In: Van Calster G, Vos E (eds) Risico en voorzorg in de rechtsmaaschappij. Intersentia, Antwerpen Schoukens H (2008) De toegang tot de Raad van State voor milieuverenigingenna de inwerkingtreding van het Verdrag van Aarhus: much ado about nothing of een stille revolutie? TROS 52:291–310 Soete A (2016) De scheiding der machten als struikelblok voor de klimaatzaak? In: Hoc A, Willems G, Wattier S (eds) Human rights as basis for reevaluating and reconstructing the Law. Larcier, Brussel Soete A, Schoukens H (2016) Klimaatverandering in de rechtbank. De rechter als scherprechter bij een falend milieubeleid? NJW, nr. 338 Somers S (2016) Aansprakelijkheidsrecht en mensenrechten, Kruisbestuiving in een meergelaagde rechtsorde. Intersentia, Antwerpen Van Eeckhoutte D, Vandaele A (2002) Doorwerking van internationale normen in de Belgische rechtsorde, Katholieke Universiteit Leuven, Instituut voor Internationaal Recht, Working Paper nr. 33, www.law.kuleuven.Be/iir/nl/onderzoek/wp/WP33n.pdf Van Meel S (2016) Interview Hendrik Schoukens ‘Niemand durft de eerste stap te zetten om het klimaat te redden’, 24 februari 2016; A. Soete en H. Schoukens “Klimaatverandering in de rechtbank De rechter als scherprechter bij een falend milieubeleid?”, NJW nr. 338, 16 maart 2016 Van Oevelen A et al (2007) Onrechtmatige daad: schade en schadeloosstelling. Algemene beginselen. TPR Van Ommeslaghe P (1993) La responsabilité des pouvoirs publics en droit interne. In: X., Recht halen uit aansprakelijkheid, Gent, Mys & Breesch Vandaele A (2014) [Collectief belang: een eigen belang versus de actio popularis]. T.Gem. afl. 3

454

L. Marien and L. Reins

Vansweevelt T, Weyts B (2009) Handboek Buitencontractueel Aansprakelijkheidsrecht. Intersentia, Antwerpen Vuye H (2002) Aansprakelijkheid van de Belgische Staat voor het doen en laten van de wetgever. Tijdschrift voor Belgisch Burgerlijk Recht Wirtgen A (2004) De middelen van openbare orde in het beroep tot nietigverklaring voor de Raad van State: enkele aspecten van ontvankelijkheid. CDPK, afl. 1 Lieselot Mariën  studied philosophy and law at KU Leuven. She was a lawyer at the Brussels bar (Van Bael and Bellis) from 2013 until 2017. During this period she was seconded for 1 year to the Belgian offshore windfarm Norther during its project phase. She subsequently became a legal advisor at the European Network of Transmission System Operators for Electricity and a legal counsel at the Belgian Transmission System Operator Elia. The current publication was prepared in her capacity of scientific collaborator to the KU Leuven law faculty. Leonie Reins  is an Assistant Professor at the Tilburg Institute for Law, Technology and Society (“TILT”) at Tilburg University in the Netherlands. Leonie obtained her PhD from KU Leuven, Belgium. The monograph based on her dissertation is entitled “Regulating Shale Gas—The Challenge of Coherent Environmental and Energy Regulation” (Edward Elgar, 2017). Leonie obtained private sector experience whilst working for a Brussels-based environmental law consultancy, providing legal and policy services for public-sector clients such as the European Commission and the European Parliament. Leonie’s research focuses on the intersections of energy and environmental law. She is particularly interested in the regulation of new technologies that are capable of mitigating, or providing means of adaptation to, global problems such as climate change and the associated risks and uncertainty that manifest themselves at the local level. Leonie regularly speaks at international conferences and her works have been published in journals such as Energy Research & Social Science, Environmental Liability and Oil, Gas, Energy Law Intelligence (OGEL).

Climate Change Disputes in the Czech Republic Vojtěch Vomáčka and Ilona Jančářová

Abstract  This chapter is aimed at describing the relationship between individual rights and the climate change agenda in the Czech Republic. Firstly, the authors provide a brief description of the Czech framework policy for climate change adaptation and specific acts dealing with climate change. After that, the means of judicial protection in climate change disputes are analysed, with a particular emphasis on the role of administrative courts. For better understanding, the authors present the most significant decisions of the Czech courts. They conclude that the courts may provide relatively effective protection against both public and private actors. However, climate change is still a new topic with which the applicants have not yet learned to work. In some cases which are primarily concerned with other issues such as air pollution, climate change serves more as a supporting than a stand-alone argument. This is not likely to change any time soon, because the country is not affected by climate change to the degree it would be forced to act and immediate action would be deemed necessary. Moreover, the judicial review of the state policies is not allowed, even though at the governmental level, short-term economic goals are clearly preferred to the environmental agenda.

V. Vomáčka (*) Faculty of Law of Masaryk University, Brno, Czech Republic Supreme Administrative Court of the Czech Republic, Brno, Czech Republic e-mail: [email protected] I. Jančářová Department of Environmental Law and Land Law at the Faculty of Law, Masaryk University, Brno, Czech Republic e-mail: [email protected] © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_23

455

456

V. Vomáčka and I. Jančářová

1 Introduction The Czech Republic (Czechia) was the last EU Member State to ratify the Paris Convention. Pursuant to Art. 10 of the Czech Constitution,1 all international treaties approved by the Parliament become a part of the domestic legal order and take precedence over the law. However, general obligations stemming from international law are usually not considered directly applicable and need to be implemented by the national legislator in order to become effective in practice. At the same time, Czechia is bound by numerous EU regulations and directives which reflect international climate change obligations.2 At the domestic level, however, these obligations are not sufficiently implemented as the politicians prioritise the short-term economic interests of industrial production over the long-term protection of the environment and public health. Recently, ambitious climate protection policies have been adopted but specific implementing instruments are still absent. This does not satisfy the general public. Nevertheless, climate change disputes are estimated to require significant financial and personnel resources which may discourage many potential claimants. Currently, there is a trend of hostility towards environmental NGOs and public participation in general fuelled by the industrial lobby and the politics. Any forthcoming climate change disputes will therefore certainly attain a strong political dimension.

2 Climate Change Law in the Czech Republic 2.1 Framework Policy for Climate Change Adaptation The governmental State Environmental Policy adopted for the 2012–2020 period lists climate mitigation and adaptation among its goals.3 In 2015, a specific Strategy on Adaptation to Climate Change4 introduced the assessment of the climate change impacts and proposals for particular adaptation measures, legislative and partial economic analysis.5 The Adaptation Strategy is implemented by the National Action Plan on Adaptation to Climate Change which was adopted in 2017. The structure of the Action plan reflects the most significant climate change impacts in Czechia: long-term droughts, floods and flash floods, extreme meteorological events (heavy  Act No. 1/1993 Coll., the Constitution of the Czech Republic.  See Židek (2017a), pp. 127–135. 3  Czech State Environmental Policy for 2012–2020: http://www.lse.ac.uk/GranthamInstitute/law/ state-environmental-policy-2012-2020/. Page consulted on October 12, 2017. 4  Strategy on Adaptation to Climate Change in the Czech Republic: http://www.regio-adaptace.cz/ en/novinky/195.ministerstvo-zverejnilo-konecny-text-strategie-prizpusobeni-se-zmene-klimatuv-podminkach-cr/. Page consulted on October 12, 2017. 5  See Švarcová (2017), pp. 47–48. 1 2

Climate Change Disputes in the Czech Republic

457

rainfall, extremely high temperatures; extreme wind) and wildfires. The Action plan sets 33 specific targets and one crosscutting target focused on education and awareness raising. These targets are supposed to be implemented through 52 priority measures, which have 160 priority tasks.6 The Climate Protection Policy (CPP) was adopted by the government in March 2017 for the period of 2017–2030 and outlook until 2050. The first evaluation is scheduled for 2021.7 It identifies the objectives, priorities and specific measures to reduce the greenhouse gas emissions in order to meet the requirements of the international and EU law. It sets primary and indicative emission reduction targets: Primary emission reduction targets: • Greenhouse gas reduction of 32 Mt CO2 eq. compared to 2005 until 2020 • Greenhouse gas reduction of 44 Mt CO2 eq. compared to 2005 until 2030 Indicative emission reduction targets • Indicative level towards 70 Mt CO2 eq. of emitted greenhouse gases in 2040 • Indicative level towards 39 Mt CO2 eq. of emitted greenhouse gases in 2050 Individual measures are proposed in the following key areas: energy, final energy consumption, industry, transport, agriculture and forestry, waste, science, research development and voluntary tools. The Ministry of Environment argues that the CPP will—even without the adoption of anti-fossil law (see below)—contribute to a long-term, gradual transition to a competitive low-emission economy.

2.2 Specific Acts Dealing with Climate Change There is no specific act which would deal with climate change. In 2014, the government confirmed new legislation aimed at reducing the country’s dependence on fossil fuels would become one of the top priorities.8 However, this move turned out to be destined to fail due to the strong industrial lobby behind the government. A specific Act on Reduction of Fossil Fuels Dependence was prepared but in 2016, it became apparent that it was not going to get political approval. A discussion between representatives of the executive and the Economic Committee of the Chamber of

 Strategy on Adaptation to Climate Change in the Czech Republic, Executive Summary: https:// www.mzp.cz/C125750E003B698B/en/strategy_adaptation_climate_change/$FILE/OEOK_ Adaptation_strategy_20171003.pdf. Page consulted on October 30, 2017. 7   The Climate Protection Policy of the Czech Republic, 2017: http://www.lse.ac.uk/ GranthamInstitute/law/national-programme-to-abate-the-climate-change-impacts-governmentresolution-no-187/. Page consulted on October 12, 2017. 8  “Antifosilní zákon by chtěl Brabec od roku 2018, dopadnout má i na dopravu a zemědělství”, ceskatelevize.cz, 10. April 2016: http://www.ceskatelevize.cz/ct24/ekonomika/1751065-antifosilni-zakon-chtel-brabec-od-roku-2018-dopadnout-ma-i-na-dopravu-a. Page consulted on September 4, 2017. 6

458

V. Vomáčka and I. Jančářová

Deputies of the Parliament effectively buried the legislative proposals. The MEPs called on the government not to adopt the ambitious EU targets for the low-carbon energy and mobility which could affect many people and have a significant impact on the domestic industry and thus the economy. Disputes among the Ministries could not be easily settled. Finally, the Minister of Environment Richard Brabec (ANO Party) announced he would not submit the proposals to the government saying it is necessary to discuss their social impacts. His move was accepted with a general political appreciation.9 Instead of adopting specific measures, the Ministry of Environment adopted the ambitious Climate Protection Policy in March 2017. Currently, climate protection is mainly embodied in the general air pollution legislation and emission trading regulation. The legislation on protection against climate change was introduced by the Air Protection Act,10 which was replaced in 2012 by the new Air Protection Act.11 However, it does not provide a comprehensive regulation since only its minor part on biofuels is geared towards reducing greenhouse gas emissions and promoting renewable energy sources. Stipulations on the allowance trading system came in a separate legal document—Act No. 695/2004 Coll., on the Conditions of Trading in Greenhouse Gas Emission Allowances.12 Some issues are further dealt with by Act No. 73/2012 Coll., on Substances that Deplete the Ozone Layer and on Fluorinated Greenhouse Gases. Furthermore, international obligations and requirements of the EU climate law are partially implemented by mitigation and adaptation measures enacted in various legislative acts, in particular in the fields of energy demand and management,13 promotion of low carbon energy including renewables,14 management of fluorinated and other greenhouse gases15 and transportation.16 Land use, land-use change and forestry (LULUCF) activities can provide a relatively cost-effective way of offsetting emissions.17 This is, however, not reflected in the rules on planting and cutting the trees, timber logging and forest management.18  “Brabec: Česko sníží závislost na fosilních palivech i bez zákona”, ekolist.cz, 27 January 2017: http://ekolist.cz/cz/zpravodajstvi/zpravy/brabec-cesko-snizi-zavislost-na-fosilnich-palivech-i-bezzakona. Page consulted on November 11, 2017. 10  Act No. 86/2002 Coll., Air Protection Act. See Jančářová (2010), pp. 51–60. 11  Act No. 201/2012 Coll., Air Protection Act. 12  Later on replaced by the new Act No. 383/2012 Coll. 13  Act No. 406/2000 Coll., on Energy Management, Act No. 458/2000 Coll., on the Conditions for Operating Business and on Performance of State Administration in Energy Sectors. 14  Act No. 165/2012 Coll. on Supported Energy Sources. 15  Act No. 73/2012 Coll., on Ozone Depleting Substances and on Fluorinated Greenhouse Gases, Act No. 85/2012 Coll., on Carbon Dioxide Storage. 16  For example, requirements of minimum biofuel content for transportation fuels in the Air Protection Act (No. 201/2012 Coll.). 17  See United Nations Climate Change. Land Use, Land-Use Change and Forestry (LULUCF): http://unfccc.int/land_use_and_climate_change/lulucf/items/3060.php. Page consulted on September 25, 2017. 18  The rules concerning cutting down the trees and bushes and timber logging are embedded in the Nature Protection Act (Act No. 114/1992 Coll.) and in the Forest Act (Act No. 289/1995 Coll.). 9

Climate Change Disputes in the Czech Republic

459

Pursuant to the regulation on land development and land protection,19 the use of agricultural and forest land for other purposes is possible only after assessment and approval by the authorities prior to the development consent.20

3 Climate Change Litigation in the Czech Republic Concepts of public litigation and actio popularis are very much absent in the Czech legal system, at least when it comes to environmental matters. In contrast, the protective norm theory (Schutznormtheorie) is traditionally applied which means that in order to be allowed to bring a case to the court, the applicant has to show that his individual rights have been affected. In this respect, the character (legal form) of the climate change regulation adopted at the national level is crucial.21 Political documents are generally not considered binding for individuals unless embodied into a legally binding form such as the governmental regulation, ministerial regulation, individual decisions or a specific administrative act in a mixed form called “measure of general nature” (MGN). The MGN relates to specific subject matter and, at the same time, is generally binding on individual persons. For example, the land-use plans are adopted in this form.

3.1 Constitutional Rights and Access to the Constitutional Court The Constitutional Court is empowered to abolish the statutes and implementing legislation which is not in compliance with the Constitution or with the international treaties. 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 the individuals including the NGOs, the access to the Constitutional Court is restricted to the actual cases and violation of their constitutional rights listed in the Charter of Fundamental Rights and Freedoms.22 Of these, 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

 Act No. 183/2006 Coll., the Building Code, Act No. 334/1992 Coll., Act on Agricultural Land Protection, Act No. 289/1995 Coll., the Forest Act. 20  See Jančářová and Židek (2016); Jančářová (2017b), pp. 207–220. 21  See Jemelka et al. (2013), pp. 487–531. 22  Constitutional Act No. 2/1993 Coll., Charter of Fundamental Rights and Freedoms. 19

460

V. Vomáčka and I. Jančářová

scope of regular laws implementing it.23 There is no single act which would deal with this right and its protection in a comprehensive way, or provide the definition thereof. Current, we are witnessing a lively discussion among legal professionals as regards the character of the right.24 In the broad sense, the right to a favourable environment is considered to be reflected in the levels of pollution in water, air and soil protection legislation supported by the procedural framework which provides public participation in decision-making and access to justice. In the narrow sense, the right to a favourable environment is explicitly recognised by the Civil Code within the protection of personality.25 A petition seeking the annulment of a legal regulation is of an accessory nature as regards a constitutional complaint, which means that it shares its fate. Therefore, if the constitutional complaint is denied for any reason, the petition seeking annulment of a legal regulation is thereby automatically denied. It should be emphasized that the Constitutional Court is not positioned above the general courts as the court of final appeal. It reviews “only” constitutionality and not the legality or correctness of judicial decisions. Even if the Constitutional Court decides in favour of the applicant, it cannot, for example, order the legislator or a public authority to adopt specific legal regulation or decision.

3.2 Access to the Civil and Administrative Courts In summary, an individual can bring a case against a public or private actor that allegedly does not comply with its climate change obligations. However, the lack of class action or actio popularis renders any defence against complex pollution and climate change issues very difficult, even though the system of judicial protection is deemed accessible. To a large extent, the civil judiciary is perceived as complementary to the administrative one. The main instruments of civil law protection mostly deal with contractual obligations and liability, nuisance or protection of personal rights. As such, they are not applicable against the state environmental policies, decisions of public authorities or basically any future nuisance or interference. Still, the civil courts may provide effective protection in some situations, for example, if no administrative remedies are available to the public concerned. This could be the case of major industry productions authorised long years ago. At the moment, administrative courts play a pivotal role in environmental protection. The number of environmental cases that reach Czech administrative courts is rather constant and presents minor, but not negligible part of the general caseload. The court disputes concerning urban planning, development of infrastructure and

 See Bahýľová et al. (2010), pp. 1110–1125.  See Müllerová (2016). 25  § 81(2) of the Act No. 89/2012 Sb., Civil Code. 23 24

Climate Change Disputes in the Czech Republic

461

permitting procedures of various industrial applications especially raise public awareness. Nevertheless, climate change is still a new topic. Within the comprehensive framework of various state policies, urban planning or environmental impact assessment, climate change based arguments of both the claimants and the courts rarely play any substantive role and usually serve as the introductory remarks or general observations. It is assumed that the climate change issues are somewhat a vague concept which does not affect the individuals in particular cases concerning their rights or duties.26 Four main types of judicial protection are provided by the administrative courts: action against a decision of an administrative authority, protection against a failure to act, protection against unlawful interference and a judicial review of measures of a general nature. Provided the state climate change policy is implemented in the form of an administrative decision, the individuals and the NGOs may challenge such decision if they meet conditions of access to justice set out in the Czech Administrative Justice Code.27 They must be directly affected by the decision and must exhaust all appropriate remedial actions before the submission of a complaint. Some claimants are allowed to reach judicial protection easily. For example, the owners may rely on their in rem rights, but the tenants are not considered sufficiently concerned, even though they have been tenants for a long period of time. However, some decisions are deemed not to interfere with the rights of other persons than the applicant in the administrative proceedings himself, for example, the authorisations to operate a nuclear facility. As regards measures of general nature, there is no administrative appeal allowed and the only possible legal remedy against the MGN is a judicial review. Once again, the administrative courts deal with the question of impairment of rights because according to § 101a of the Czech Administrative Justice Code, any person who claims infringement of his or her rights by the MGN, is entitled to file an action against it. In this case, there is no previous administrative proceeding with a list of participants, but the courts follow their case law concerning the owners, tenants, NGOs and other subjects. The scope of the review encompasses both procedural and material issues but is restricted to the rights of the plaintiff. In the judicial review of the MGNs, the courts recognise there is a considerable space for political discretion—and the more abstract the MGN gets, the wider this space is. Without a doubt, climate change cases will open questions as regards reviewability of administrative discretion and state policies, proportionality and effectiveness of measures adopted at various levels of state administration. Traditional legal concepts may serve their purpose but will hardly be applied straightforward. But this is yet to be seen. Theoretically, the NGOs or other individuals may opt for protection against unlawful interference. In this case, the court would have to agree that the inability

26 27

 See Franková (2017), pp. 195–204.  Act. No. 150/2002 Coll., Code of Administrative Justice.

462

V. Vomáčka and I. Jančářová

or unwillingness of the state to comply with international climate change obligations would result in such interference. There have been already some cases suggesting this is feasible. On the other hand, the scope of protection against a failure to act 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 an MGN.

4 Effective Climate Change Litigation in the Czech Republic: The Way Forward Czech case law on climate change is limited. So far, there has not been a single case similar to the Dutch Urgenda case or the Austrian Vienna airport case. In some cases which are primarily concerned with other issues, climate change serves more as a supportive than a stand-alone argument. In administrative cases relating to renewable energy, for example, it is often argued that the renewable energy sources should be promoted in the interest of protecting the climate and the environment. The same argument is to be found in several tax cases concerning additional tax imposed on the solar energy producers or obligation to put a minimum amount of biofuels into free circulation for transport purposes. In cases concerning air pollution, obligations arising from the Kyoto Protocol and the Paris Agreement are sometimes put forward but do not have a decisive role in the particular case. Nevertheless, there are several significant court decisions in related fields, especially air quality regulation. One of the cases that did shatter the settled approach to complex air pollution issues and which is likely to have a significant impact on future climate change cases was the case of Ostrava against the State. In 2010, the city of Ostrava filed an action against the Czech government, the Ministry of Environment and the Ministry of Transport. It claimed, in essence, that the inactivity of the defendants contravenes the relevant EU law, rendering Ostrava helpless in dealing with the desperate air quality in the region. The court of the first instance dismissed the case for procedural reasons, concluding that the city does not have any rights to be violated. The Supreme Administrative Court did not share this opinion and concluded that the right to self-government was at stake and Ostrava was also entitled to defend the right to a favourable environment of its citizens. However, according to the court, the city failed to prove a direct relationship between the inactivity of the defendants and the exceeded air pollution limits. The court pointed out that the city itself is one of the authorities responsible for the harmful situation and that there are far more aspects to be addressed, including the transboundary air pollution coming from Poland.28

 See judgment of the Czech Supreme Administrative Court of 14 November 2014, No. 6 As 1/2014–30. All decisions of the Supreme Administrative Court cited in this chapter are available on-line in Czech language at www.nssoud.cz. 28

Climate Change Disputes in the Czech Republic

463

Recently, in a series of similar cases, the individuals aided by the NGOs challenged the air quality management plans adopted for several highly polluted regions—Ústí nad Labem region and agglomerations of Prague, Brno and Ostrava. The courts quashed the plans (or their parts) because they did not provide effective measures, contrary to the EU Directive 2008/50/EC on ambient air quality and cleaner air for Europe, and the Czech Air Protection Act, which both require that the plans reassure the achievement of the legal air pollution limits “in the shortest time possible”. The courts basically held that the plans should contain not only measures contributing to better air quality, but also the timeframe for their implementation, which would assure that the plans meet their goals in a given time. According to the courts, the plans should also contain the methods to evaluate the individual measures and to quantify their contribution to the air quality improvement.29 This indicates that the courts are willing to review the effectiveness of the mitigating measures which is crucial for the climate change agenda.

4.1 Moving Forward the Climate Change Agenda Against Public Actors An individual may bring a case against a public actor charged to authorise for example a major infrastructure if all the procedural requirements are met. Nevertheless, the court will only quash the 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, (2) this fact renders the authorisation illegal. In general, the national climate laws concerning the emission trading scheme and regulation of ozone layer depleting substances (see above) do not constitute a sound basis for judicial action because they do not deal with substantive climate change questions and focus on very limited and mostly administrative issues. The crucial procedures for any effective legal action against a large infrastructure project are the urban planning and environmental impact assessment (SEA and EIA) which, once again, do not deal with climate change in a comprehensive manner. The individuals are entitled to challenge the regional and municipality urban plans and most of the decisions in the subsequent authorisation procedures.30 It is not evident; however, which planning or permitting phase is the most suitable for the climate change arguments concerning a specific project. The urban plans, even though subject to SEA, provide only the basic conditions for the development of the area. The most important arguments regarding the negative impacts of the project on the environment fall within the scope of the land use permitting procedure. For this

 See in particular judgment of the Czech Supreme Administrative Court of 20 December 2017, No. 6 As 288/2016-146. 30  See Jančářová and Židek (2016). 29

464

V. Vomáčka and I. Jančářová

reason, the EIA which takes part prior to this procedure is of major importance.31 It should identify, describe and assess the direct and indirect effects of a project on various factors including climate. Detailed requirements on the assessment of the impact on climate (for example the nature and magnitude of greenhouse gas emissions) and the vulnerability of the project to climate change have been introduced only recently, following the EU Directive 2014/52/EU. Before that—and for a very long time—ignorance of climate change could only hardly constitute the grounds for the illegality of the authorisation. The public and various official authorities can participate in the EIA procedure and submit written comments. Later on, the public concerned including the NGOs may become a participant in the consequent decision-making procedures, submit their comments, appeal the decision and access the court. Furthermore, a transboundary EIA might be initiated by other countries affected by the project. In practice, this option is not used frequently, although it is not restricted to other EU member states. In 2009, most notably, the Federated States of Micronesia had requested the initiation of a transboundary EIA, to examine the expansion and life-­ extension of the Prunéřov power plant in Czechia. Micronesia claimed to be seriously endangered by the impacts of climate change, including the flooding of its entire territory and eventual disappearance of a portion of its land. In other words, a Pacific island state west of the Marshall Islands and east of the Philippines has challenged a project over 6000 km away on the grounds that it could harm its environment. In response to Micronesia’s opinion, the Czech Ministry of Environment asked a Norwegian company Det Norske Veritas for independent expertise of the project regarding the efficiency rate and consequences of emissions. The conclusions presented by Det Norske Veritas supported Micronesia’s concern and concluded that the refurbishment project generally complies with BAT (best available techniques), but deviations were observed on net unit efficiency and on CO emissions.32 Currently, the outcome of the EIA process in Czechia is either a negative result of the screening procedure in the form of an administrative decision or a binding EIA statement. The EIA procedure is not a standard administrative decision-making procedure with participants. It is a process of preparation and adoption of a binding statement which is relevant for the subsequent decision-making procedures such as the development consent, building permit and most of the authorisation procedures for the operation of the projected activity. Beside the EIA statement, competent environmental authorities33 adopt particular decisions or binding statements for the final decision. All of these procedures are governed by common administrative rules, yet differ in their scope, the range of participants and the competent authority. Specific rules for these procedures are spread among a considerable amount of

 See Tomoszková (2015), pp. 457–458; Vomáčka and Strouhal (2017), pp. 209–218.  See Vomáčka and Jančářová (2012). 33  Water Protection Authority, State Forest Administration, Air Protection Authority, Nature Protection Authority and others. 31 32

Climate Change Disputes in the Czech Republic

465

legislative pieces dealing with land use and construction, protection of nature, water management, waste treatment etc.34 The public concerned may participate in a large variety of the permitting proceedings. Nevertheless, this does not mean that there is a coherent regulation of the public participation in the Czech legal system. Quite contrary, we may notice stipulations on public participation in various legal acts.35 As far as the judicial protection is concerned, the plaintiffs including the NGOs and other members of the public have to meet criteria of locus standi. Conditions for legal standing in administrative and judicial proceedings are similar, yet not the same. The administrative courts consider impairment of rights independently on the participation in administrative proceedings, although in theory, both proceedings match each other and form related phases of effective public participation. For a long time, judicial interpretation restricted the NGOs to point at only procedural aspects of the administrative decision because legal entities enjoyed no substantive rights in connection to environmental harm. Under the threat of the European Commission, minor changes have been introduced and the NGOs may now challenge the outcome of the subsequent proceedings in court from both substantive and procedural aspects. Nevertheless, the Constitutional Court stepped into the game in 2014, overturned its settled case law and concluded the NGOs might claim a violation of the right to the favourable environment should they demonstrate a close relationship to the issue at question.36 As a consequence, the administrative courts have developed a set of conditions of impairment of rights, most notably a local activity of the NGO, which is independent on participation in the administrative proceedings and applies to all environmental cases. Needless to say that the limits of pollution (the amount of greenhouse gas emissions) as such are difficult to dispute because Czechia is not threatened by the sea level rise or any visible and harsh impacts. The causal link between the state policy and changes in temperature causing dryer seasons in some parts of Czechia or changes of habitats of wildly living species of plant and animals are tricky to established. The only exception is arguably the agriculture and forest management policy which is evidently responsible for reduced ability of the landscape to retain water. As a consequence, the public may only raise its claims within the limits of environmental protection set by the state. Moreover, according to the Czech case law, welfare of animals and plants is not considered protected by the constitutional right as far as their state is not detrimental to humans. For example, in case that reached the Supreme Administrative Court in 2010,37 a resident of a municipality located in the National Park Šumava claimed that her right to a favourable environment had been infringed by the Visiting Rules of the National Park which allowed water sports in a  See Humlíčková and Vomáčka (2018).  In Act no. 114/1992 Coll. on the Conservation of Nature and Landscape, Act No. 254/2001 Coll. on Water and Amendments to Some Acts (The Water Act), Act No. 76/2002 Coll. on Integrated Pollution Prevention and Control and EIA Act No 100/2001 Coll. 36  Judgment of the Czech Constitutional Court of 30 May 2014, No. I. ÚS 59/14. 37  Judgment of the Czech Supreme Administrative Court of 13 October 2010, No. 6 Ao 5/2010–43. 34 35

466

V. Vomáčka and I. Jančářová

nearby river. This could have a negative impact on the population of critically endangered species of a freshwater pearl mussel (Margaritifera margaritifera). The Court stated that the plaintiff enjoys the right to a favourable environment and may ask for protection from various types of pollution. Nevertheless, according to the Court, it is hard to imagine that the decline of Margaritifera margaritifera population may have a real impact on the life of the plaintiff. Hence her right to a favourable environment was not infringed. The NGOs are considered affected by the loss of biodiversity, but even their claims must be based on the infringement of their rights (the rights of their members). If we take a look at the other members of the public concerned, they are in rather a difficult position. The affected neighbours, for example, have to pay attention to the official boards because if the project is subject to the EIA procedure, the official announcements are not distributed directly to the neighbours affected but merely published on the official board. The neighbours may challenge the land use permit, but cannot appeal the test operation permit because they do not even belong among the participants of the proceedings. However, they may challenge the operation permit at the court as the locus standi is considered separately from the regulation of the proceedings. In some cases, there are only one-level administrative proceeding and no administrative review is possible. And there is also limited standing in some cases. For example, a negative screening conclusion that the project is not subject to the EIA might be challenged only by the investor and the public concerned. It should be evident that there is a very sophisticated and complicated system of the multi-stage decision-making process in Czechia,38 with multiple authorities responsible for particular procedures. Czech administrative courts continuously deal with questions concerning the relationship and hierarchy of certain procedures within a wider chain of building permits. It is therefore not surprising that so far, there has been no case in which the plaintiff would rely solely on climate change issues. Various climate change adaptation measures may raise public concerns since science is frequently showing that climate change will lead to more devastating impacts in the short and especially in the medium and long-term. This problem is usually connected to the regional and local land use planning and development of the flood resilience. In Czechia, the construction of flood resilience infrastructure must be envisaged in the regional and local urban plans. Provided that there is a flaw in the design of the plans, a change may be suggested by any person and initiated by the municipality as the investor of the plan—and adopted in the form of a measure of general nature. The public concerned the may also participate in the process of preparation of the plan. No appeal is possible against the urban plan. If not satisfied, the public concerned (including the NGOs) may opt for the only possible legal remedy against the plan—a judicial review of the MGN.

38

 See Židek (2017b).

Climate Change Disputes in the Czech Republic

467

On the other hand, the regions and the municipalities enjoy a high level of political discretion as regards the choice of particular means and methods they deal with regional or local problems. The courts are careful not to step too far to interfere with such discretion. In case the findings of the SEA are not overly insufficient and the measures proposed by the plan are not exceedingly disproportionate to the goals of the regulation, the court may refuse to revoke the plan.

4.2 Moving Forward the Climate Change Agenda Against Private Actors Disputes between the 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). According to these, the person affected 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. This kind of protection serves only the owners and the tenants, not the public concerned in general.39 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. However, if the emission is the result of the operation of an enterprise or a similar facility which has been officially approved, a neighbour only has the right to compensation for harm in money, even where the harm was caused by circumstances which had not been taken into account during the official proceedings. This does not apply if the operation exceeds the extent to which it has been officially approved. The neighbours can, therefore, bring a case against a private actor whose acts lead to a large rise in greenhouse gas emissions, but can only claim the emissions are disproportionate to the local circumstances. If the activities of the particular factory have been officially approved, the neighbours may only ask for damages. In this respect, there are principally no limitations to the standing of natural or legal persons in proceedings concerning damages claims, including those from other jurisdictions. There is a specific, strict liability established in the Civil Code for the damage caused by a particularly hazardous operation. 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; an operation is particularly hazardous if the possibility of serious damage cannot be reasonably excluded in advance even by exercising due care. Otherwise, the person is released from the duty if he proves that the damage was externally caused by force majeure or that it was caused by the very acts of the victim or unavoidable acts of a third person; if

39

 See Jančářová (2015), pp. 15–19, 155–169.

468

V. Vomáčka and I. Jančářová

other grounds for the release from the duty have been stipulated, they are disregarded.40 However, there is a vast difference between damage sustained more or less directly and damage caused indirectly by the emissions of greenhouse gases. The plaintiff can hardly prove the existence of the causal nexus between droughts or floods and the operation of the particular facility. At the moment, protection of personality in the Civil Code41 offers a plausible way to protect the right to a favourable environment but remains unused in practice. Although explicitly recognised in the Civil Code and in Art. 35 of the Constitution, the right to a favourable environment has been rarely litigated in courts and never matched with climate change matters. In future, however, it may play an important role in filling the gap between protection of traditional rights such as the right to life and health, and protection provided for the ownership rights. Furthermore, it may contribute to the so-called forum shopping in international private law because foreign public concerned may give preference to the Czech legal system and opt for its protection of personal rights to deal with cases with transboundary aspects. However, the concepts of causation are applied rather strictly in the Czech civil law. A major disadvantage of civil law disputes is the length of legal proceedings, which is a long-term and endemic problem in Czechia. The average duration of civil proceedings can take several years in one region, yet only a few months in another. The length of the proceedings in front of the administrative courts also vary, but not to such a large extent.

5 Conclusion Despite legislation aimed at climate change mitigation along with numerous legal instruments that have the potential to contribute to climate change issues (for example land use planning, environmental impact assessment and others described above), it can be disputed that there is sufficient political will in Czechia to effectively address the climate change agenda. The government hesitates to adopt a specific act which would deal with climate change. Besides the state policies, preference is given to adaptation measures to fight with the symptoms of the climate change such as water scarcity. Furthermore, both the overly complicated decision-making process and restricted procedural remedies render any defence against complex pollution and climate change very difficult, even though the system of judicial protection is deemed accessible. At the same time, we are witnessing some evident trends that may in longer run contribute to the growing number of the climate change cases before the Czech courts:

40 41

 § 2925 of the Act No. 89/2012 Sb., Civil Code.  Act No. 89/2012 Sb., Civil Code.

Climate Change Disputes in the Czech Republic

469

1) The civil society represented by the environmental NGOs has gained valuable know-how and has established itself as the main driving force in the court disputes. In the 2012–2016 period, more than 80 environmental NGOs have brought at least one case to the administrative court. This seems to be a very high number in comparison to other EU members. Recently, the NGOs have often stood behind the individuals living in the regions affected by air pollution and challenged the particular decision or measure of a general nature in the name of these individuals. In complementing civil lawsuits, these individuals demand just satisfaction for the immaterial harm that was caused by an illegal action of the regional authority (one such case is pending before the Supreme Court). These cases, should they turn successful for the claimants, will constitute a positive precedent for similar cases and may in effect change the position of the ­government towards class actions and more effective protection of the environment in general. Future climate change cases will, without a doubt, follow the same pattern and the courts will build their conclusions on the air pollution agenda which is currently taking momentum. 2) The judicial branch of administrative courts has been formed rather recently, in 2003. Since then, the claimants (or their attorneys) have mastered all the main types of legal actions and the important environmental cases have evolved from simple actions against decisions to more complex disputes concerning strategic programme or planning documents.42 This is evident in urban planning and also in other areas. These complex cases will play a huge role in the climate change disputes that are yet to come, not only as regards substantial arguments but also considerations upon locus standi. We are not convinced there is an element of good practice in climate change issues stemming from our country. At the governmental level, short-term economic goals are clearly preferred to the environmental agenda. On the other hand, the country is not affected by climate change to the degree it would be forced to act and immediate action would be deemed necessary. Therefore, certain problems in drafting climate change policy are understandable. Currently, this is up to the new government which has taken office only recently.

References Bahýľová L, Filip J, Molek P, Podhrázký M, Suchánek R, Šimíček V, Vyhnánek L (2010) Ústava České republiky. Linde Praha, Prague Franková M (2017) Žaloba ve veřejném zájmu při ochraně životního prostředí. In: Hanák J, Průchová I (eds) Kontrolní mechanismy při prosazování ochrany životního prostředí. Masaryk University, Brno

42

 See Jančářová (2017a).

470

V. Vomáčka and I. Jančářová

Humlíčková P, Vomáčka V (2018) Public participation and EIA in the multi-stage decision making process: the Czech example. In: Jendroska J, Bar M (eds) Procedural environmental rights: principle X in theory and practice. Intersentia, Cambridge Jančářová I (2010) Legal aspects of global warming. Amsterdam Law Forum 2010(2):51–60 Jančářová I (2015) Privilegované imise vs. ústavní a veřejnoprávní základy ochrany životního prostředí. In: Jančářová I, Hanák J, Průchová I (eds) Vlastník a podnikatel při ochraně životního prostředí. Masaryk University, Brno Jančářová I (2017a) Conception documents as a pollution reduction tool – the Czech experience. Ecol Safety 2017(1):24–32 Jančářová I (2017b) Environmental protection law vs. economic activity in the Czech Republic. In: Powalowski A, Vrabko M, Mrkývka P (eds) Selected issues of public economic law in theory, judicature and practice in the Czech Republic, Poland and Slovakia. C.H.Beck, Warszaw Jančářová I, Židek D (2016) Permit procedures for industrial installations and infrastructure projects: assessing integration and speeding up, Czech Republic. Avosetta questionnaire. Available at: http://avosetta.jura.uni-bremen.de/czechrepquest2016.pdf Jemelka L, Podhrázký M, Vetešník P, Zavřelová J, Bohadlo D, Šuránek P (2013) Soudní řád správní. Komentář. C.H.Beck, Prague Müllerová H et  al (2016) Právo na příznivé životní prostředí: Nové interpretační přístupy. The Institute of State and Law of the Academy of Sciences of the Czech Republic, Prague Švarcová K (2017) Odvody za odnětí půdy ze zemědělského půdního fondu  – nepřímý nástroj udržitelného využívání půdy. In: Damohorský M, Franková M, Sobotka M (eds) Půda, voda a krajina. Adaptace na klimatické změny z pohledu práva. Nakladatelství Eva Rozkotová, Beroun Tomoszková V (2015) Implementation of the EU directive on environmental impact assessment in the Czech Republic: how long can the wolf be tricked? Wash Lee J Energy Climate Environ 2015(6):457–458 Vomáčka V, Jančářová I (2012) Transboundary impact assessment from the Central European perspective. In: Bělohlávek JA, Rozehnalová N (eds) Czech yearbook of international law. Juris Publishing, Huntington Vomáčka V, Strouhal J (2017) Conservation of nature and landscape in the process of locating, constructing and operating wind power plants in the Czech Republic. In: Jančářová I, Dudová J (eds) Sustainable developments and conflicts of interests in nature protection in Czechia, Poland and Slovakia. Masaryk University, Brno Židek D (2017a) Adaptace na klimatické změny z pohledu odpovědnosti státu za jeho závazky. Je současný stav udržitelný? In: Damohorský M, Franková M, Sobotka M (eds) Půda, voda a krajina. Adaptace na klimatické změny z pohledu práva. Nakladatelství Eva Rozkotová, Beroun Židek D (2017b) Stavební dozor jako prostředek ochrany životního prostředí. In: Hanák J, Průchová I (eds) Kontrolní mechanismy při prosazování ochrany životního prostředí. Masaryk University, Brno Ilona Jancarova  is an Associate Professor of environmental law at Masaryk University in Brno, Czech Republic, where she is heading the Department of Environmental and Land Law. She has participated in the drafting of the Czech Environmental Code and other environmental acts and has directed and participated in various research groups on environmental law issues, including climate change. Ilona is a member of the Avosetta Group and a member of the Advisory Board of the Czech Minister of the Environment. Vojtech Vomacka  is an assistant professor at the Faculty of Law of Masaryk University and legal advisor at the Supreme Administrative Court of the Czech Republic. He is also an external lecturer for the Czech and Slovak Judicial Academy, The European Judicial Training Network (EJTN), Academy of European Law (ERA) in Trier, and member of the European Commission Expert Group on Access to Justice. In the field of nature protection, he cooperates with nature protection inspectorates, prosecutors and both national and international NGOs. In his research work, he is particularly interested in EU and international environmental law, transboundary environmental impact assessment, biodiversity protection and animal welfare.

The Italian Path to Climate Change: Nothing New Under the Sun Barbara Pozzo

Abstract  This Chapter aims at investigating the Italian path to climate change. Climate change in Italy is unfortunately not (yet) a big concern in civil society. The Italian State policy was until now characterized by low sensitivity to climate change. The position of social society is very fragmentary. Italy, as a Member State of the EU, has implemented all the obligations that derive from the Paris Agreement. Italy’s Greenhouse Gas Emissions in 2014 (419 million tons) have fallen by 20% since 1990 and by 28% since 2005 levels. Although emissions rose by about 3% in 2015, Italy seems on track for reaching its 2020 target (−18% since 2005), as set by the National Energy Strategy (2013) following the 20-20-20 EU package targets. Nonetheless, it would be very difficult for an Italian citizen to bring a case against the Italian government for allegedly not complying with its international climate change obligations. Italy’s Constitution does not include a provision giving its citizens a right to a healthy environment. Therefore,—unfortunately—the possibility for individuals to act on such a provision is not possible. As a matter of fact, there are no cases in Italy of climate change litigation, although in Carvalho and Others v Parliament and Council (Case T-330/18) (2018/C 285/51), one of the parties was Italian, a sign that times are changing.

1 Introduction From a general point of view, it is important to underline that climate changes in Italy are unfortunately not (yet) a big concern in civil society. In Italy, climate change law essentially corresponds to the transposition of EU directives, and there is no “Italian way” to face this problem.1  Caldirola (2009), p. 284.

1

B. Pozzo (*) Department of Law, Economics and Cultures, University of Insubria, Como, Italy e-mail: [email protected] © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_24

471

472

B. Pozzo

The Italian State policy was until now characterized by low sensitivity to climate change. There is no serious debate on this issue at political level and the public opinion is poorly informed. At the academic level, there are few publications. Scientific and legal researches that published on climate change law receive little visibility. The position of the social society is very fragmentary. There is generally little information. Universities that offer training courses on the subject are few.2 Consequently, no background culture can provide the basis for creating mass awareness on climate change issues. The scepticism shown by the Italian Government on the existence of the phenomena of climate change is obviously a major obstacle to creating these bases. On the other hand, there are environmental associations (like e.g. Lega Ambiente, Italia Nostra),3 NGOs (like e.g. Fondazione Lombardia per l’Ambiente, Kyoto Club)4 that promote researches, workshops, conferences in order to divulgate the essential information and try to spread out a different consciousness on climate change. Fondazione ENI Enrico Mattei5 is also very much promoting a more conscious activity on climate change, organizing seminars and workshops on the various problems connected with it.6 Recently, the “Fridays for future” movement launched by Greta Thunberg has gained a certain success in Italy as well. On March 15, 2019, “a climate strike” was organised in Rome with the influx of thousands of students. Even if a different awareness is spreading out, climate change litigation that developed abroad, is not very well known in Italy. This is true for the public, but also for scholars and for people who work in environmental associations. As far as the Academia is concerned, the only initiatives that have taken place on the issue “climate change litigation” are those organized by comparative lawyers. Italian environmental lawyers seem not to have acknowledged the importance of such new strategy and the potential behind the involvement of private citizens in fighting climate changes.

2  For example, the University of Milan has offered in the past a Postgraduate course on “Climate changes, Kyoto Protocol and Energy Policies in the EU and in Italy”. This is—as far as I know—a unique experience in the Italian scenario. 3  See e.g. Kyoto chiama Italia, Fonti rinnovabili, efficienza, risparmio: le proposte di Legambiente per un’altra politica energetica, ed. by Legambiente, 2005. 4  See e.g. Progetto Kyoto Lombardia—Per vincere la sfida dei cambiamenti climatici e del controllo dei gas serra nella regione più industrializzata d’Italia, Milano, 2008. 5  Fondazione ENI Enrico Mattei was founded in 1989, as a non profit, policy-oriented, international research center and a think-tank producing high-quality, innovative, interdisciplinary and scientifically sound research on sustainable development. 6  Already in 2003, ENEA (the Italian National Agency for New Technologies, Energy and Sustainable Economic Development) and the ENI Foundation Enrico Mattei, under the aegis of the Ministry of the Environment and the Protection of the Territory, presented the result of a collaboration, whose purpose was assessment of the costs associated with the increased climate vulnerability in Italy. See Casali (2003), p. 139.

The Italian Path to Climate Change: Nothing New Under the Sun

473

Things are slowly changing. So, in the action brought on 23 May 2018—Carvalho and Others v Parliament and Council (Case T-330/18) (2018/C 285/51), one of the parties is Italian, Mr. Giorgio Elter, an inhabitant of Cogne (Val d’Aosta). The experience of the Italian plaintiff points out that he is witnessing the increase in temperature and explains that exclusive regional herbs and plants at altitudes above 1500 m no longer bloom or bloom too early due to the increase in temperature. Since the seeds and local crops used by the family are very sensitive to the increase in temperature, the family has recorded a drop in production, as well as higher production costs, quantifiable as a loss of between 20 and 30% of revenue. Even their hotel business, which depends on ice climbing, is at risk, because any change in temperature makes ice climbing dangerous. The action, brought by ten families, including the Italian one,7 in the EU General Court was seeking to compel the EU to take more stringent greenhouse gas (GHG) emissions reductions. Plaintiffs alleged that the EU’s existing policies’ targets to reduce domestic GHG emissions by 40% by 2030, as compared to 1990 levels, are insufficient to avoid dangerous climate change and threaten plaintiffs’ fundamental rights of life, health, occupation, and property. In May 2019, anyway, the European General Court dismissed the case on procedural grounds, finding that the plaintiffs could not bring the case since they are not sufficiently and directly affected by the policies challenged by them (“direct and individual concern” criterion).

2 Climate Change, the Individual and Moving Forward the International Climate Change Agenda (Mitigation and Adaptation) Italy, as Member State of the EU, has implemented all obligations that derive from the Paris Agreement. Nonetheless, it would be very difficult for an Italian citizen to bring a case against the Italian government for allegedly not complying with its international climate change obligations.8 The reasons may be summarized as follows. First of all, climate change and more particularly climate change litigation is not an issue on newspapers or in the media. Education in schools and at university level is very poor on these issues. In fact, citizens are not sufficiently informed about the possibility of having individuals working in favour of a better implementation of climate change obligations. The role of citizens was not perceived, until now, as something that could allow concrete action.

 The other families originating were from Portugal, Germany, France, Italy, Romania, Kenya, Fiji. The Swedish Sami Youth Association Sáminuorra participated as well. 8  Carraro (2008). 7

474

B. Pozzo

Consequently, there is too little involvement of civil society, there is too little emphasis on the problem of climate changes in general terms, to develop an interest towards such a case. In other words: from a cultural perspective, there is no social pressure in this sense. Second, if an Italian citizen wants to bring a case against the Italian government for not complying with its international obligation, she/he would have to prove that the non-compliance with the international obligation has resulted in a concrete damage for her/him. In the case of climate change obligations, this is very difficult to prove and—in fact—there has been no case at all. Under these circumstances, citizens would have to prove: • the existence of a damage, • the fact that that damage is the direct consequence of climate changes and • that climate changes that have provoked the damage are the result of the non-­ compliance by the Italian Government of its international obligations. From a legal perspective, the evidence of a concrete injury and of a causal linkage between the damage and the failure to comply with the international obligations would amount to a probatio diabolica.

3 Climate Change, the Individual, Human Rights and Moving Forward the International Climate Change Agenda (Mitigation and Adaptation) Italy’s Constitution does not include a provision giving its citizens a right to a healthy environment. Therefore,—unfortunately—the possibility for individuals to act on such a provision is not possible. The Italian Constitution, which dates 1948, provides at art. 9 the protection of the “landscape”, while the original text did not mention the word “environment”. After the constitutional reform of 2001, aimed at better identifying the competences of a “decentralised State”, the expression “protection of the environment” entered into the constitutional vocabulary, in art. 117, but only in order to determine the division of powers between State and Regions. “Climate changes” and “rights of future generations” are not at all taken into consideration in our Constitution. Even if the “environment” is not a fundamental value in our Constitution,9 the Italian Constitutional Court has ensured a constitutional protection to the environment through its interpretation, based on article 2,10 article 911 and article  Patti (1984).  Art. 2: “The Republic recognises and guarantees the inviolable rights of the person, both as an individual and in the social groups where human personality is expressed. The Republic expects that the fundamental duties of political, economic and social solidarity be fulfilled”. 11  Art. 9: “The Republic promotes the development of culture and of scientific and technical research. It safeguards natural landscape and the historical and artistic heritage of the Nation”. 9

10

The Italian Path to Climate Change: Nothing New Under the Sun

475

32.12 Over time, case law and legal opinion have recognised the “environment as fundamental constitutional concept”.13 The Italian Constitutional Court recognised this new concept for the first time in 1987, in a case concerning the statute on Liability for environmental harm.14 In that case, the Court held that, with regard to Articles 9 and 32 of the Italian Constitution: ‘we must recognize the ongoing efforts to give specific recognition to the protection of the environment as a fundamental human right’.15 In 1990, the Constitutional Court further held that environmental protection must take priority over economic considerations, when acceptable limits for human health are exceeded. Since then, many successful cases have invoked the right to a healthy environment.16 Nonetheless, this right to a healthy environment is a right whose defence is difficult to bring before a judge. Against such a background, in Italy an individual cannot bring a case against a public or private actor that allegedly does not comply with climate change obligations (national or international), on human rights grounds. Maybe, citizens could base a case on the idea that the State has to protect the health of the citizens according to art. 32 of the Constitution and that the State can take this obligation seriously only if it invests in a serious fight against climate changes. Not investing in a serious policy against climate changes would amount as a serious menace against the fundamental right to health. If an important environmental association would challenge the Italian Government on this ground, alleging that the Government is not doing sufficient effort in order to combat climate changes that would result in an increased risk for human health, maybe the case would fail, but the media echo would be huge and an awareness-­ raising process would begin.

4 Climate Change, the Individual and Moving Forward the Climate Change Agenda Against Public Actors (I) (Mitigation) In Italy, a city considering redeveloping an abandoned area into a new infrastructure, which might presumably lead to more greenhouse gas emissions, will have to cope with all the obligations arising out a vast legislation of EU origin.  Art. 32: “The Republic safeguards health as a fundamental right of the individual and as a collective interest, and guarantees free medical care to the indigent. No one may be obliged to undergo any health treatment except under the provisions of the law. The law may not under any circumstances violate the limits imposed by respect for the human person”. 13  D’Alfonso (2006) and Pozzo (2004). 14  Legge 8 luglio 1986, n. 349, Istituzione del Ministero dell’ambiente e norme in materia di danno ambientale (GU 15 luglio 1986, n. 162—Supplemento Ordinario n. 59). 15  Decision 210/1987, Constitutional Court (22 May 1987). 16  For a general overview in English in a comparative law perspective, see Boyd (2011). 12

476

B. Pozzo

In particular, the city will have to cope with the Italian legislation that implements Directive 85/337/EEC on Environmental Impact Assessment (EIA Directive) and subsequent amendments.17 In Italy, the EIA was initially normed by a set of laws,18 until a Framework legislation was introduced.19 According to this legislation, the EIA was originally aimed at evaluating projects (including their modification or their extension) which were likely to have significant and negative effects on the environment and on the cultural heritage. The scope of the legislation has been over time widened, in order to encompass climate concerns as well. After the enactment of Directive 2014/52/EU,20 the environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors: (a) population and human health; (b) biodiversity, with particular attention to species and habitats protected under Directive 92/43/EEC and Directive 2009/147/EC; (c) land, soil, water, air and climate; (d) material assets, cultural heritage and the landscape; (e) the interaction between the factors referred to in points (a) to (d). The Italian legislation has been accordingly modified, so that climate is now part of the EIA procedure.21

 Directive 85/337/EEC has been subsequently amended in 1997. The directive was amended again in 2003, following EU signature of the 1998 Aarhus convention and once more in 2009. The initial Directive of 1985 and its three amendments have been codified in Directive 2011//92/EU of 13 December 2011. 18  EIA was initially normed by Legge 8 luglio 1986, n. 349, Istituzione del Ministero dell’ambiente e norme in materia di danno ambientale; by Decreto del Presidente del Consiglio dei Ministri del 10 agosto 1988 n. 377; by Decreto del Presidente del Consiglio dei Ministri 27 dicembre 1988: Norme tecniche per la redazione degli studi di impatto ambientale e la formulazione del giudizio di compatibilita’ di cui all’art. 6 della legge 8 luglio 1986, n. 349, adottate ai sensi dell’art. 3 del decreto del Presidente del Consiglio dei Ministri 10 agosto 1988, n. 377. 19  Decreto Legislativo aprile 2006, n. 152 Norme in materia ambientale (so-called Codice dell’ambiente = Environmental Code). Part II of this statute is dedicated to Environmental Impact Assessment (Valutazione d’impatto ambientale: art. 26-47) and to Strategic Environmental Assessment (Valutazione Ambientale Strategica: artt. 7-22). This legislation was further modified by the followings Acts in order to cope with the modifications of the EU legislation: Decreto Legislativo 16 gennaio 2008, n. 4, decreto di modifica e integrazione del Codice dell’ambiente (d.lgs. n. 152/2006); Decreto Legislativo 29 giugno 2010, n. 128, decreto di modifica e integrazione del Codice dell’ambiente (d.lgs. n. 152/2006). 20  Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment, OJ L 124, 25.4.2014, p. 1–18. 21  Decreto Legislativo 16 giugno 2017, n. 104, decreto di attuazione della Direttiva 2014/52/UE del Parlamento europeo e del Consiglio, del 16 aprile 2014, che modifica la direttiva 2011/92/UE concernente la valutazione dell’impatto ambientale di determinati progetti pubblici e privati. 17

The Italian Path to Climate Change: Nothing New Under the Sun

477

The types of projects, which fall under the scope of EIA, include, according to Annexes II and III to Part II, of Legislative Decree 152/2006 are: • • • • •

Integrated chemical plants, Waste disposal facilities, Construction of roads, Installation of overhead electrical power lines, Industrial installations for the production of electricity.

In certain cases, the decision on whether or not EIA is required for a particular project is taken after a screening process (Annex IV to Part II, Environmental Protection Code). For projects listed in Annex II, the Ministry of the Environment carries out the EIA. For projects listed in Annex III, Regions carry out the EIA. The applicants must prepare and submit an environmental impact statement and apply for an EIA before starting work on the project. A decision granting development consent will contain appropriate conditions relating to the realisation and operation of the project as well as decommissioning. Work can start on the project only after obtaining the assessment. Projects must be completed within 5  years of the grant of development consent and once this period has expired, the EIA procedure must be undertaken all over again, unless the deadline has been postponed. A health impact assessment (valutazione di impatto sanitaria) (VIS) must also be carried out as part of the EIA procedure for some specific projects, for example, crude oil refineries or thermal power stations with a heat output of more than 300 mw. Where an EIA is required, but has not been validly carried out, any permit, opinion or licence relating to the project can be challenged and may be revoked. The relevant authority can suspend development works, request adjustments and/ or order the demolition and remediation of the site where a project: • is completed without a prior EIA. • does not comply with the conditions set out in the development consent decision. • has been subject to subsequent modifications affecting the EIA conclusions. Some regional laws also impose administrative monetary fines in addition to penalties envisaged by the Environmental Protection Code. As far as the participation of citizens is concerned, interested public can intervene in every single step of the environmental procedure, and can present due observations concerning the environmental impact assessment, the integrated environmental authorization and the evaluation of incidence. If the EIA is incomplete, the final authorization may be annulled. In this case, private citizens can bring a case in front of an administrative court to challenge the authorization that does not comply with EIA legislation that foresee that climate must be taken into consideration in evaluating the effects of the infrastructure under exam. Citizens will have to prove geographical nexus and potential harm arising out of the violation of the procedure of EIA.

478

B. Pozzo

Environmental associations might also have standing. In particular, those environmental associations that have been “identified” according to Law 349/8622 could also bring a case in front of an administrative court to challenge the authorization that does not comply with EIA legislation. In this occasion, the environmental association does not have to prove neither potential harm, nor the geographical nexus. Until now, there are no cases in Italy.

5 Climate Change, the Individual and Moving Forward the Climate Change Agenda Against Public Actors (II) (Adaptation) In 2015, the Italian Ministry of the Environment has published the National Strategy on adaptation to climate change.23 The Italian National Adaptation Strategy (NAS) involves three main elements: • the collection, analysis and interpretation of sound scientific data on impacts, vulnerability and adaptation relevant per sector at the national level, collected through a working group of national scientists; • the study of the political process of adaptation at the European level and an investigation about adaptation governance; • adequate consideration of the results of the involvement of national stakeholders and institutions when allocating priorities for action for adaptation. The Italian NAS does not foresee any obligation to adapt. For this reason, individuals cannot bring a case against public actors.

6 Climate Change, the Individual and Moving Forward the Climate Change Agenda Against Private Actors (I) (Mitigation) In Italy, individuals cannot bring a case against a private actor whose acts lead to a large rise in greenhouse gas emissions.  Law 349/86 (Legge 8 luglio 1986, n. 349, Istituzione del Ministero dell’ambiente e norme in materia di danno ambientale, foresees at art 13 the following “process of identification of environmental associations”: “The national environmental protection associations and those present in at least five regions are identified by decree of the Minister for the Environment on the basis of the programmatic objectives and the internal democratic system envisaged by the by-laws, as well as the continuity of the action and its external relevance, after consulting the National Environment Council to be expressed within ninety days of the request”. 23  Decreto direttoriale n. 86 del 16 giugno 2015, Approvazione del documento “Strategia Nazionale di Adattamento ai Cambiamenti Climatici”. 22

The Italian Path to Climate Change: Nothing New Under the Sun

479

Anyway, they might bring a case against a private actor if they are able to prove, that the rise in greenhouse gas emissions has caused a damage to their health. Nevertheless, in this case citizens should face the difficult test of damage and causal nexus. Another important issue would be to examine the role that individuals might play in the context of liability for environmental harm, if this is the result of climate changes. Directive 2004/35 frames liability for environmental damage in Italy—as in all EU Member States—.24 The Environmental Liability Directive (ELD) defines ‘damage’ as ‘a measurable, adverse change in a natural resource or a measurable impairment of a natural resource service which may occur directly or indirectly’ (Art. 2.2. ELD). Severe climate change impacts, such as hurricanes, floods and heat waves, will most likely increase the number of instances of environmental damage. According to the Environmental Liability Directive (Art. 2.12 ELD), the definition of “environmental damage” include ( 1) protected species and natural habitats, (2) water and (3) land. This definition does not take into consideration the air, though the fourth recital of the Directive specifies that environmental damage can be caused through “airborne elements”.25 ‘Natural resource services’ are further defined as “the functions performed by a natural resource for the benefit of another natural resource or the public” (Art. 2.13. ELD). (1) Damage to protected species and natural habitats arises when damage has significant adverse effects on reaching or maintaining the ‘favourable conservation status’.26 The significance of such effects is to be assessed by reference to the

 Directive 2004/35/CE (Environmental Liability Directive, ELD).  4th Recital: “Environmental damage also includes damage caused by airborne elements as far as they cause damage to water, land or protected species or natural habitats”. 26  Art. 2.4. ELD: ‘conservation status’ means: 24 25

(a) in respect of a natural habitat, the sum of the influences acting on a natural habitat and its typical species that may affect its long-term natural distribution, structure and functions as well as the long-term survival of its typical species within, as the case may be, the European territory of the Member States to which the Treaty applies or the territory of a Member State or the natural range of that habitat; The conservation status of a natural habitat will be taken as ‘favourable’ when: –– its natural range and areas it covers within that range are stable or increasing, –– the specific structure and functions which are necessary for its long-term maintenance exist and are likely to continue to exist for the foreseeable future, and –– the conservation status of its typical species is favourable, as defined in (b);

480

B. Pozzo

baseline condition, taking account of the criteria set out in Annex I such as the number of species, their capacity to recover naturally, the rarity of the species or the habitats, the natural fluctuations. (2) Water and water damage are defined by reference to the 2000 Water Framework Directive.27 Water encompasses surface water and ground water as well as the coastal waters28 and inland waters. The general aim of the Water Framework Directive was to have a good water quality status by 2015. Water damage is any damage that has significantly adverse effects on the ecological, chemical and/or quantitative status and/or the ecological potential of the waters concerned. These concepts derive from the Water Framework Directive, which in turn refers to other EU directives such as the Bathing Water end Drinking Water Directives. Even in this case, the impacts of climate change, both the ones happening immediately (e.g. sewers spilling over in a river after heavy rainfall) as those ones occurring gradually (e.g. acidification of lakes, disappearance of aquifiers) may make the objectives of the Water Framework more difficult to achieve. (3) Land damage finally, means any land contamination that creates a significant risk of human health being adversely affected as a result of the direct or indirect introduction in, on or under land, of substances, preparations, organisms and micro-organisms (Art. 2.1. c. ELD). Environmental damage (or the imminent threat thereof) falls within the scope of the Directive as far as it is caused by any of the environmentally risky occupational activities listed in Annex III. The general standard of liability is strict, though the Directive shall apply to damage to protected species and natural habitats caused by any other occupational activity, whenever the operator has been at fault of negligent (Art. 3 ELD).

(b) in respect of a species, the sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its populations within, as the case may be, the European territory of the Member States to which the Treaty applies or the territory of a Member State or the natural range of that species; The conservation status of a species will be taken as ‘favourable’ when: –– population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats, –– the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future, and –– there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis; 27  Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, Official Journal L 327, 22 December 2000, p.  1 as amended by Decision No. 2455/2001/EC (Official Journal L 331, 15 December 2001, p. 1. 28  See in this respect the Proposal for a Directive of the European Parliament and of the Council of 24 October 2005 establishing a framework for Community action in the field of marine environmental policy (Marine Strategy Directive), COM(2005) 504 final.

The Italian Path to Climate Change: Nothing New Under the Sun

481

As far as standing under the Directive is concerned, we might recall that the 14th recital provides that the Directive “does not apply to cases of personal injury, to damage to private property or to any economic loss and does not affect any right regarding these types of damages”. That is why, persons adversely affected or likely to be adversely affected by environmental damage do not have right to sue the polluter, but should be entitled to ask the competent authority to take action.29 Under the ELD regime, the competent authorities30 play a very important role. Most importantly, the competent authority should establish which operator has caused the damage, and it should assess the significance of the damage to determine which remedial measures should be taken. In Italy, according to the law that implements the Directive,31 the competent authority is the Ministry of the Environment and Protection of Land and Sea.32 In cases the Ministry fails to fulfil these tasks, persons adversely affected by (the imminent threat of) environmental damage, as well as environmental associations,33 are entitled to submit observations and to request the Ministry to take action.34

7 Climate Change, the Individual and Moving Forward the Climate Change Mitigation Agenda Against Private Actors (II) (Mitigation/Adaptation) In Italy, there is no citizens’ movement that call to move away from climate change unfriendly portfolios. Therefore, it is difficult to imagine citizens that bring a case against a pension fund. Until now there have been no cases. To overcome the actual situation, specific by-laws or a code of ethics of the pension fund would have to provide that investments in polluting activities should be avoided.

 The 25th recital states: “Persons adversely affected or likely to be adversely affected by environmental damage should be entitled to ask the competent authority to take action. Environmental protection is, however, a diffuse interest on behalf of which individuals will not always act or will not be in a position to act. Non-governmental organisations promoting environmental protection should therefore also be given the opportunity to properly contribute to the effective implementation of this Directive”. 30  Competent authorities and their duties are governed by article 11 of the ELD. 31  In Italy, Directive 35/2004 was implemented by Part VI of D.Lgs. 152/2006 (so-called Codice dell’ambiente). 32  Art. 299 Codice dell’ambiente (D.Lgs. 152/2006). 33  Art. 318 of Codice dell’ambiente (D.Lgs. 152/2006), which repealed the former legislation on environmental damage, left the previous rule on environmental associations in force. For this reason, associations identified on the basis of article 13 of Law 349/86 may still intervene in judgments for environmental damage. 34  Art. 12.1 ELD was implemented by art. 309 of the Italian Law. 29

482

B. Pozzo

In a recent Study on Green Finance in Italy,35 the move towards more environmentally friendly institutional investors is described as follows: The first step towards greening institutional investors is to promote the development of institutional investors themselves in general and retirement provision in particular. The experience of other European countries – such as France, the Netherlands, Sweden and the UK – shows that stronger pension funds are naturally more inclined to adopt a long-term approach, which represents the main challenge for Italian institutional investors. Stronger institutional investors would also be better equipped to develop the knowledge and the skills need to adopt SRI (sustainable and responsible investment) strategies. When institutional investors move from a short-term approach  – where sustainability issues are faced only when they become overwhelming and near-term gains have priority over long-term returns – to a more precautionary and far-­sighted approach, they become capable of promoting not only financial resilience, but also contribute to wider economic and social recovery. Within a long-term approach, investment decisions cannot overlook emerging socio-environmental challenges such as climate change, water and air pollution, water stress that have strong impacts on economic performance. A systematic integration of socio-environmental factors into financial analysis at the portfolio level is crucial.

8 Future Opportunities and Challenges Ahead In the last years, Italian policy on climate changes seems to have reached encouraging results, even in the absence of private actors’ intervention. Italy’s Greenhouse Gas Emissions in 2014 (419 million tons) have fallen by 20% since 1990 and by 28% since 2005 levels. Although emissions rose by about 3% in 2015, Italy seems on track for reaching its 2020 target (−18% since 2005), as set by the National Energy Strategy (2013) following the 20-20-20 EU package targets. On the other side, recent events show that business in Italy is taking climate change issues very seriously. In April 2016, the Permanent Mission of Italy at United Nations hosted a high-level conference on the topic of “Fighting Climate Change: Sharing Italy’s Innovative Technology”. The event gathered representatives from major Italian companies working in the field of innovative and sustainable technologies, while climate change and sustainable development are increasingly seen as closely related.36 Notwithstanding these important successes, it would be important to have more interested citizens on this topic. It is very difficult to forecast what policies are necessary, in order to increase citizens’ awareness in the face of climate changes. In the past, serious and evident environmental problems in Italy, such as hydrogeological disruptions, have not however led to efficient policies.

 FINANCING THE FUTURE—Report of the Italian National Dialogue on Sustainable Finance, MATTM & United Nations Environment Programme, 2017. 36  Cartei (2013). 35

The Italian Path to Climate Change: Nothing New Under the Sun

483

In order to increase the participation of citizens to climate change policies, it would be necessary to introduce educational programs from the elementary school to high school, while Universities should introduce specific courses and lectures, in order to enhance a clear perception of the problems and give to the citizens of the future the possibility to act. Other challenges come out of the rules governing civil procedure in Italy. In Italy, the availability of class actions is very limited and citizens’ suits, as applied in the United States,37 are completely missing. Finally, in order to facilitate private intervention, it would be important to have a more updated constitutional frame, where the duty of the State to fight climate change and protect the environment should be introduced.

References Adler JN (2001) Stand or deliver: citizen suits, standing, and environmental protection. Duke Environ Law Policy Forum 12:39 Boyd DR (2011) The implicit constitutional right to live in a healthy environment. Rev Eur Community Int Environ Law 20(2):171–179 Caldirola D (2009) Energia, clima e generazioni future. Amministrare XXXIX(2):281 Carraro C (2008) Cambiamenti climatici e strategie di adattamento in Italia: una valutazione economica. Il Mulino, Bologna Cartei GF (2013) Cambiamento climatico e sviluppo sostenibile. Giappichelli, Turin Casali O (2003) Cambiamenti climatici: quali costi per l’Italia? Equilibri 7(1):139 D’Alfonso G (2006) La tutela dell’ambiente quale valore costituzionale primario prima e dopo la riforma del Titolo V della Costituzione. In: Lucarelli (ed) Ambiente, territorio e beni culturali nella giurisprudenza costituzionale. Edizioni ESI, Napoli, p 3 Patti S (1984) Environmental protection in Italy: the emerging concept of a right to a healthful environment. Nat Resour J 24:535 Pozzo B (2004) La tutela dell’ambiente nelle Costituzioni: profili di diritto comparato alla luce dei nuovi principi introdotti dalla Carta di Nizza. In: Pozzo B, Renna M (eds) L’ambiente nel nuovo Titolo V della Costituzione. Giuffrè, Milano, p 6

Italian Legislation Decreto Legislativo 16 giugno 2017, n. 104, Attuazione della direttiva 2014/52/UE del Parlamento europeo e del Consiglio, del 16 aprile 2014, che modifica la direttiva 2011/92/UE, concernente la valutazione dell'impatto ambientale di determinati progetti pubblici e privati, ai sensi degli articoli 1 e 14 della legge 9 luglio 2015, n. 114. (Gazzetta Ufficiale 6 luglio 2017 n. 156) Decreto direttoriale 16 giugno 2015 n.86, Approvazione del documento “Strategia Nazionale di Adattamento ai Cambiamenti Climatici” (Gazzetta Ufficiale 4 luglio 2015 n. 153) Decreto Legislativo 29 giugno 2010, n. 128, Modifiche ed integrazioni al decreto legislativo 3 aprile 2006, n. 152, recante norme in materia ambientale, a norma dell'articolo 12 della legge 18 giugno 2009, n. 69 (Gazzetta Ufficiale 11 agosto 2010 n. 186 – Supplemento Ordinario n. 184) 37

 Adler (2001), p. 39.

484

B. Pozzo

Decreto Legislativo 16 gennaio 2008, n. 4, Ulteriori disposizioni correttive ed integrative del decreto legislativo 3 aprile 2006, n. 152, recante norme in materia ambientale. (Gazzetta Ufficiale 29 gennaio 2008 n.24 - Supplemento Ordinario n. 24) Decreto Legislativo 3 aprile 2006, n. 152, Norme in materia ambientale (Gazzetta Ufficiale, Serie Generale 14 aprile 2006 n. 88 – Supplemento Ordinario n. 96) Decreto del Presidente del Consiglio dei Ministri 10 agosto 1988 n. 377, Regolamentazione delle pronunce di compatibilità ambientale di cui all'art. 6 della legge 8 luglio 1986, n. 349, recante istituzione del Ministero dell'ambiente e norme in materia di danno ambientale (Gazzetta Ufficiale 31 agosto 1988 n. 204) Decreto Del Presidente Del Consiglio Dei Ministri 27 dicembre 1988, Norme tecniche per la redazione degli studi di impatto ambientale e la formulazione del giudizio di compatibilità di cui all'art. 6 della legge 8 luglio 1986, n. 349, adottate ai sensi dell'art. 3 del decreto del Presidente del Consiglio dei Ministri 10 agosto 1988, n. 377 (Gazzetta Ufficiale 5 gennaio 1989 n.4) Decreto del Presidente del Consiglio dei Ministri 10 agosto 1988 n. 377, Regolamentazione delle pronunce di compatibilità ambientale di cui all'art. 6 della legge 8 luglio 1986, n. 349, recante istituzione del Ministero dell'ambiente e norme in materia di danno ambientale (Gazzetta Ufficiale 31 agosto 1988, n. 204) Decreto del Presidente del Consiglio Dei Ministri 27 dicembre 1988, Norme tecniche per la redazione degli studi di impatto ambientale e la formulazione del giudizio di compatibilità di cui all'art. 6 della legge 8 luglio 1986, n. 349, adottate ai sensi dell'art. 3 del decreto del Presidente del Consiglio dei Ministri 10 agosto 1988, n. 377 (Gazzetta Ufficiale 5 gennaio 1989 n.4) Legge 8 luglio 1986, n. 349, Istituzione del Ministero dell'ambiente e norme in materia di danno ambientale (Gazzetta Ufficiale 15 luglio 1986, n. 162 - Supplemento Ordinario n. 5)

EU Legislation Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (Official Journal L 124, 25 April.2014, p. 1) Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (Official Journal L 20, 26.1.2010, p. 7) Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, (Official Journal L 327, 22 December 2000, p. 1) Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, (Official Journal L 143, 30 April 2004, p. 56) Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (Official Journal L 206, 22 July 1992, p. 7) Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (Official Journal L 175, 5 July 1985, p. 40) Barbara Pozzo  is professor of comparative law at the University of Insubria (Como-Italy), where she is the Director of the Department of Law, Economics and Cultures. She holds a Ph.D. in comparative environmental law from the University of Florence. She is Titular Member of the International Academy of Comparative Law, where she has been national reporter on climate change issues. She has participated to the drafting of the Italian National Strategy on Adaptation to Climate Change. She has directed and participated to various national and international research groups on climate change issues. She has recently been awarded a UNESCO Chair.

Climate Change Legislation and Litigation in France: A Work in Progress Maud Sarliève

Abstract  Between October and December 2018, three Climate Change actions in responsibility were filed in France, two against the Government and one against a Carbon Major. Following the example of other countries, representatives of the civil society and local public authorities are turning to the judge for a faster and more efficient transition towards a low-carbon economy. France’s international, European and national commitments in that respect are ambitious. Its laws and regulations provide for solid guarantees of key principles and fundamental rights, such as the precautionary principle or the right to a healthy environment. Practitioners and academics are acting for a progressive interpretation of this arsenal, which could lead to the creation of a new principe général du droit (general principle of law) requiring the French State to effectively tackle climate change and the development of a new regime of responsibility.

1 Introduction France is sometimes presented as one of the leaders in the international battle against climate change. The country has been taking a number of international initiatives in that direction since 12 December 2015 and the adoption of the Paris Agreement.1 It has also developed its own legislative arsenal to address both the causes of climate change (mitigation) and its impacts (adaptation).2 Under these  United Nations Framework Convention on Climate Change (UNFCCC) (2015), Adoption of the Paris Agreement, FCCC/CP/2015/L.9/Rev.1, 12 December 2015 (Paris Agreement) available at http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf. 2  France is the second European country which presented an adaptation plan (See Observatoire national sur les effets du réchauffement climatique (ONERC), Rapport n°010178-01, Stratégie Nationale d’adaptation au changement climatique, 2007). 1

M. Sarliève (*) The Hague, The Netherlands © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_25

485

486

M. Sarliève

international, European and national sources, France committed to a 40% reduction of its national greenhouse gas (GHG) emissions by 2030 compared to 1990.3 This resolute approach has not yielded the results one would expect: France achieved a 16.4% reduction of its emissions over 1990–2015 but this trend has stopped since 2015.4 The country has failed to meet its own goals to cut GHG emissions in the last 3 years.5 And yet, France remains one of the Europe’s best performers in terms of GHG emissions.6 Notwithstanding, the current level of climate action is not compatible with the Paris Agreement’s 1.5 °C limit7 and like in many other countries, individuals have started to take legal action against public authorities or private actors to boost mitigation or adaptation.

2 Climate Laws Any legal practitioner willing to take action against global warming through the law should have a clear idea of the range of legal tools available, and consider revisiting them with a view to identifying possible loop-holes and creating innovative legal strategies.8 Given the object it concerns, namely the protection of the climate, climate change litigation involves a combination of complex international and national policies and norms produced by a multitude of actors. It also involves a number of different sectors, given the direct or indirect impact their regulation may have on GHG gas emissions. This includes energy, transport, building, industry, forestry, agriculture, waste or finance and the corresponding scientific and legal fields.

 Intended Nationally Determined Contribution of the European Union (EU) and its Member States, Submission by Latvia and the European Commission on behalf of the EU and its Member States, Riga, 6 March 2015 and Loi n°2015-992 relative à la transition énergétique pour la croissance verte dated 17 August 2015. 4  European GHG emissions had fallen sharply since 1990, but increased in 2017 and 2018. See https://climateactiontracker.org/countries/eu/. 5  For a dashboard presenting the detail of the deviations from the objectives of the main indicators for the year 2017, see https://www.observatoire-climat-energie.fr/tableau-de-bord/. 6  This is attributable to its extensive nuclear capacity, which ensures electricity can be generated with low carbon emissions (CO2). 7  See https://climateactiontracker.org/countries/eu/: “Developments during 2018 in the European Union’s climate and energy policy are steps in the right direction towards re-establishing the EU’s position as a global leader on climate action. While the level of currently implemented climate action is not yet compatible with the Paris Agreement’s 1.5 °C limit, the Climate Action Tracker (CAT) estimates that the more ambitious renewable energy and energy efficiency targets adopted in June 2018 would result in emissions reduction of 47.5%–49.7% below 1990 levels (the European Commission has referred to about 45%). This is significantly higher than the present NDC target of 40% below 1990 levels.” 8  Hautereau-Boutonnet (2018). 3

Climate Change Legislation and Litigation in France: A Work in Progress

487

The nature of this multidisciplinary and shifting body of law makes it extremely challenging to define and understand. This chapter does not pretend to provide the reader with a comprehensive review of all French climate legislation. The following section only presents a selection of legal instruments relevant to France’s transition towards a low-carbon economy.

2.1 International and European Climate Commitments 2.1.1 International Climate Commitments France has been at the forefront of defining the international climate change strategy with the Paris Agreement, the Global Pact for the Environment and the One Planet Movement. France was the COP21 Presiding country and held a crucial role in the negotiations that led to the Paris Agreement in 2015. Throughout the negotiation period, French diplomacy organized informal meetings involving government representatives, think tanks and international organizations, leading to the development of relationships of trust and a better exchange of ideas that were beneficial to the discussions. This continued beyond the signing of the Paris Agreement to the process of its ratification, and reportedly facilitated its entry into force less than a year before the holding of COP22 in Marrakesh in 2016. In December 2017, at the initiative of President Emmanuel Macron, the One Planet movement was launched together with the United Nations (UN) Secretary-­ General and the President of the World Bank in December 2017, to bring together actors of public and private finance with a view to exploring ways of innovating, supporting and accelerating their common fight against climate change. Further to this Summit, France confirmed its determination to take a leading position with regard to Green Finance with the publication of its Report “French Strategy for Green Finance” and by co-hosting a second One Planet Summit in September 2018. France’s most recent initiative in relation to climate change and the environment is the Global Pact for the Environment. Despite innovative developments at regional and domestic levels, international law does not yet recognize a right to a healthy environment. The purpose of the Global Pact for the Environment is to ensure that this right is internationally acknowledged and protected. It also purports to identify a core framework of principles and norms for global environment protection. The Pact was adopted at the UN General Assembly in a resolution dated 10 May 2018 which aims to address the challenges posed by environmental degradation in the context of sustainable development.9

 UN General Assembly (UNGA) Resolution A/72/L.51, ‘Towards a Global Pact for the Environment,’ 7 May 2017 (Global Pact for the Environment), adopted by a vote of 143 in favour to five against with seven abstentions. 9

488

M. Sarliève

2.1.2 European Climate Commitments As a member of the European Union (EU), France is also bound by its European climate commitments. The EU ratified the Paris Agreement10 and committed to reduce its GHG emissions by at least 40% by 2030 compared to 1990.11 France is therefore under an obligation to work with the other member States to achieve this joint Nationally Determined Contribution (NDC). According to Climate Action Tracker, this target would lead to a warming of between 2 °C and 3 °C.12 It is therefore not consistent with the Paris Agreement’s 1.5 °C limit. The European Parliament has called for increasing the EU’s NDC emissions reduction goal for 2030 to 55% below 1990 levels, which would move the EU closer to the 1.5 °C limit but still be insufficient. Moreover, despite the political discussion about more ambitious renewable energy, energy efficiency and emissions reduction goals, the EU’s emissions began increasing again in 2017. This change in the downward trend underlines the need to accelerate the phase-out of coal and development of renewables.13 2.1.3 The French Legislative Arsenal Within the framework of the EU commitments, France has set itself extra climate targets, often the result of difficult negotiations involving various actors. Its legislative arsenal attempts to ensure a smooth transition towards a low-carbon economy. In some instances, these targets go further than the European commitments, for example the announced intention to achieve carbon neutrality by 2050.14 Even with these targets, the country’s laws and regulations developed over the last 15 years have proved insufficient and their implementation has almost systematically raised intense political, social and environmental criticism.  The Paris Agreement was concluded on behalf of the Union on 5 October 2016 and entered into force on 4 November 2016: Council Decision (EU) 2016/1841 of 5 October 2016 on the conclusion, on behalf of the European Union, of the Paris Agreement adopted under the United Nations Framework Convention on Climate Change. See also Regulation (EU) 2018/841 of the European Parliament and of the Council of 30 May 2018 on the inclusion of GHG gas emissions and removals from land use, land use change and forestry in the 2030 climate and energy framework, and amending Regulation (EU) 525/2013 and Decision 529/2013/EU. 11  Target set in Intended Nationally Determined Contribution of the European Union (EU) and its Member States, Submission by Latvia and the European Commission on behalf of the EU and its Member States, Riga, 6 March 2015 and Loi n°2015-992 relative à la transition énergétique pour la croissance verte dated 17 August 2015. See also Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for GHG gas emission allowance trading within the Community and amending Council Directive 96/61/EC. 12  https://climateactiontracker.org/countries/eu/. 13  For 2018 developments in the EU’s climate and energy policy, see https://climateactiontracker. org/countries/eu/. 14  French Ministère de la transition écologique et solidaire, Plan Climat 2017 « Une Planète, Un Plan », 6 juillet 2017. 10

Climate Change Legislation and Litigation in France: A Work in Progress

489

As established by the variety of legal grounds used by climate change lawyers worldwide, climate change litigation is not limited to challenging the failures of the State to comply with the legislation specifically designed to act against climate change. A few other grounds have been or could be used by French climate litigators, such as the Constitution, the Charter for the Environment, the Environment Code or any other regulation adopted in relation to the transition towards a low-­ carbon economy. 2.1.4 France’s Constitution and Charter for the Environment The French Constitution The text of the French Constitution does not expressly mention climate change prevention. Amending the Constitution to include a reference to action against climate change has been at the heart of a passionate debate in 2018. If adopted, the impact of such an amendment would depend on where the reference is included. Two options have been discussed: article 1 or article 34. Environmental law experts like Yann Aguila support the amendment of article 1 of the Constitution, as this would promote action against climate change as one of the most fundamental constitutional principles.15 The Government supports the article 34 option. Article 34 defines the scope of the powers of Parliament, i.e. matters that may be the object of a law in their totality or in their fundamental principles. Some argue that referring to climate change under article 34 would be merely cosmetic since Parliament already has the power to act in relation to climate change. The vote for the amendment of the Constitution, initially scheduled for the summer of 2018, had to be postponed to a later date. At the date of writing, it was still to be scheduled and given the social and political situation in France in December 2018, was likely to be postponed again.

 Le Monde Planète, « Inscrire le climat dans la Constitution ‘aura un impact réel’ », Propos de Yann Aguila recueillis par Simon Roger and published on 22 June 2018a. See also Le Club des Juristes « L’Actualité au prisme du droit: Inscrire le climat à l’article 1er de la Constitution : quelles conséquences? », 3 July 2018b, http://blog.leclubdesjuristes.com/inscrire-le-climat-a-larticle-1erde-la-constitution-quelles-consequences/ Yann Aguila is a member of the legal think-tank, the Club des Juristes, where he chairs the Environmental Law Commission. 15

490

M. Sarliève

The French Charter for the Environment Both the Conseil Constitutionnel16 and the Conseil d’Etat17 confirmed the constitutional value of the French Charter for the Environment adopted in 2004. Its text guarantees a number of fundamental principles, including the right to live in a balanced and healthy environment (article 1),18 the prevention principle (article 3),19 the “polluter pays” principle (article 4)20 and the precautionary principle (article 5).21

 The Charter for the Environment was adopted further to a revision of the Constitution pursuant to Article 89 of the Constitution. Its provisions have the same rank in the hierarchy of norms as the provisions of the 1958 French Constitution. The Conseil Constitutionnel referred for the first time to the Charter for the Environment in 2005. It held that the legislator did not disregard the principle of sustainable development set out in Article 6 of the Charter for the Environment (Conseil Constitutionnel, Decision n°2005-514 DC, “Loi relative à la création du registre international français,” 28 April 2005). In 2008, the Conseil Constitutionnel censored certain provisions based on the charter and article 34 of the Constitution, which defines the field of intervention of the legislator. It recalled “all the rights and duties defined in the Charter for the Environment have constitutional value” (Décision n°2008-564 DC dated 19 June 2008, Loi relative aux organismes génétiquement modifiés). In 2009, the Conseil Constitutionnel invalidated articles of the Finance Act relating to the carbon contribution or fossil fuel tax. It considered that they were breaching the principle of equality of treatment, in particular considering certain exemptions schemes (Conseil Constitutionnel, Décision n°2009-599 DC, Loi de finances pour 2010, 29 December 2009). 17  Conseil d’Etat, CE, 3 octobre 2010, Commune d’Annecy, n°297931. See also Conseil d’Etat, CE, 26 February 2014, Association Ban Asbestos France and others, n°351514. 18  Article 1 of the Charter for the Environment “Everyone has the right to live in a balanced environment which shows due respect for health.” 19  Article 3 of the Charter for the Environment: “Everyone shall, in the conditions provided for by law, foresee and avoid the occurrence of any damage which he or she may cause to the environment or, failing that, limit the consequences of such damage.” 20  Article 4 of the Charter for the Environment: “Everyone shall be required, in the conditions provided for by law, to contribute to the making good of any damage he or she may have caused to the environment.” 21  Article 5 of the Charter for the Environment contains a formulation of the precautionary principle which provides that “When the occurrence of any damage, albeit unpredictable in the current state of scientific knowledge, may seriously and irreversibly harm the environment, public authorities shall, with due respect for the principle of precaution and the areas within their jurisdiction, ensure the implementation of procedures for risk assessment and the adoption of temporary measures commensurate with the risk involved in order to preclude the occurrence of such damage.” The principle is also recognised in the law of the European Union and Article L.110-1 of the Environment Code and principle 15 of the 1992 Rio Declaration: “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” 16

Climate Change Legislation and Litigation in France: A Work in Progress

491

It also sets out the obligation to promote sustainable development (article 6)22 or the principle of public participation (article 7).23 Some lawyers and academics regret the timid approach of the Conseil Constitutionnel in its interpretation of the Charter, and consider that “the interpretative potential of the Charter is far from exhausted.”24 A rapid review of the jurisprudence of the Conseil d’Etat gives an insight into the potential that these provisions could have in the context of a climate change action.25 Climate litigators could use the provision of the Charter combined with the existing laws and regulations to support their climate claims. France’s Key Laws and Regulations In addition, the EU Regulations and the Charter for the Environment, the regulatory framework for environmental law and practice in France is governed by a number of codified and non-codified laws. Most of the relevant laws and decrees have been codified in the French Environment Code. Other key laws, decrees and orders may be found in other codified legislation26 or even non-codified legislation adopted in relation to the French transition towards a low-carbon economy.

 Article 6 of the Charter: “Public policies must promote sustainable development. To this end, they reconcile the protection and enhancement of the environment, economic development and social progress.” See also Conseil d’Etat, CE, 19 juin 2006, Association eau et rivière de Bretagne, n°282456. 23  Article 7 of the Charter for the Environment: “Everyone has the right under the conditions and within the limits defined by law to access environmental information held by public authorities and to participate in the preparation of public decisions affecting the environment.” See also Conseil d’Etat, CE, 12 juin 2013, Fédération des entreprises du recyclage, n°360702. 24  Julien Bétaille, Maître de conférence à l’Université Toulouse 1 Capitole, in « Revue Droit de l’environnement » cité dans Actu Environnement, « Le climat dans la Constitution : les juristes dénoncent l’inefficience du projet de loi déposé Article publié le 11 mai 2018 ». 25  See for example : Conseil d’Etat, CE, Association eau et rivière de Bretagne, n°282456, 19 June 2006; Conseil d’Etat, CE, Association du quartier Les Hauts de Choiseul, n°328687, 19 July 2010; Conseil d’Etat, CE, Commune d’Annecy, n°297931, 3 October 2010; Conseil d’Etat, CE, Association Ban Asbestos France and others, n°351514, 26 February 2014; Conseil d’Etat, CE, Association coordination interrégionale Stop THT et autres, n°342409, 342569, 342689, 342740, 342748, 342821, 12 April 2013; Conseil d’Etat, CE, Fédération des entreprises du recyclage, n°360702, 12 June 2013; Conseil d’Etat, CE, Fédération nationale de la pêche en France, n°344522, Ass., 12 July 2013; Conseil d’Etat, CE, Association Les Amis de la Terre France, n°394254, 12 July 2017; Conseil d’Etat, CE, Commune de Villiers-le-Bâcle et autres  - France Nature Environnement Ile-de-France et autres, nos 410917, 411030, 9 July 2018. 26  For each specific sector relevant to GHG emissions, see also the Energy Code, the Mining Code, the Public Health Code, the Construction and Housing Code, the Forest Code, the Rural and Fisheries Code and the Civil Code. 22

492

M. Sarliève

Climate and the French Environmental Code The French Environment Code provides for the main regulations concerning environmental policy in most sectors. Its article L.110-1-II enshrines a number of the key principles already laid down in the Charter for the Environment and directly relevant to Climate action as well as the non-regression principle. The precautionary principle (principe de precaution) is protected by article L.110-1-II-1 of the Environment Code and article 5 of the Charter for the environment.27 Pursuant to this principle, uncertainty attached to the reality, gravity or irreversibility of an environmental damage does not justify inaction. On the contrary, this uncertainty commands action and risk prevention at an economically acceptable cost. The Conseil d'Etat confirmed that the precautionary principle applies to activities undertaken or authorized by an administrative authority which affects the environment, particularly in the event that these activities are likely to be harmful to health.28 It recently reaffirmed the obligation for the State to take effective and proportionate measures to prevent a risk of serious and irreversible damage to the environment, even in cases where there is no certainty attached to that risk.29 The prevention principle (principe de prevention) is guaranteed by article L110-1-II-2 of the Environment Code and article 3 of the Charter for the Environment.30 Pursuant to this principle, any person ought to prevent the damage it is likely to cause to the environment, or failing this, limit the consequences within the conditions defined by law.31 The scope of the prevention principle could be expanded to include damages resulting from global warming.

 A claimant may invoke directly article 5 of the Charter for the Environment against administrative acts and public authorities. Conseil d’Etat, CE, 19 juillet 2010, Association du quartier Les Hauts de Choiseul, n°328687. 28  Conseil d’Etat, CE, 12 avril 2013, Association coordination interrégionale Stop THT et autres, n°342409, 342569, 342689, 342740, 342748, 342821. 29  Conseil d’Etat, CE, 9 juillet 2018, Commune de Villiers-le-Bâcle et autres  - France Nature Environnement Ile-de-France et autres, n°410917, 411030. If the reality of the risks attached to climate change is known and cannot be ignored, there are still uncertainties as to their scope in the state of scientific knowledge. Some may use this uncertainty to argue against the application of the precautionary principle, based on the exception mentioned under Article L. 110-1-II-1 of the Environmental Code. 30  Article L110-1-II-2 of the Environment Code: “The principle of preventive and corrective action, as a priority at source, of damage to the environment, using the best techniques available at an economically acceptable cost.” Article 3 of the Charter for the Environment: “Everyone shall, in the conditions provided for by law, foresee and avoid the occurrence of any damage which he or she may cause to the environment or, failing that, limit the consequences of such damage.” 31  The modalities of implementation of the prevention principle must be determined by the legislator and, within the framework defined by the law, the regulatory power and the other administrative authorities. This case provided particulars on the distribution of powers between law and regulation and the limits of the administrative judge’s control in this area (See Conseil d’Etat, CE, Ass., 12 juillet 2013, Fédération nationale de la pêche en France, n°344522). 27

Climate Change Legislation and Litigation in France: A Work in Progress

493

The “polluter pays” principle (principe du pollueur payeur), also protected by article L110-1-II-3 of the French Environmental Code and article 4 of the Charter for the Environment, could be another relevant principle in the context of a climate action. Pursuant to this principle, a polluter has an obligation both to prevent pollution and to repair damage resulting from pollution he has caused.32 The non-regression principle (principe de non regression), currently protected by article L.110-1-II-9 of the French Environmental Code, is worth mentioning. Under this principle, environmental protection already guaranteed by the applicable environmental laws and regulations can only be improved in light of the scientific and technical progresses of the time. A group of deputies recently proposed to include this principle in the Charter for the Environment, de facto upgrading its value from legislative to constitutional.33 French Legislation Towards a Low-Carbon Economy France’s legislative objectives reveal an incremental determination to act against climate change, as attested by the increasing ambitions of the Acts adopted since 2005 for the country’s transition towards a low-carbon economy. The Energy Policy Framework Act (POPE) (2005)  France adopted its first climate change related legislation, the Energy Policy Framework Act (POPE), on 13 July 2005 after 2 years of intense public debate.34 Although the Act does not refer directly to global warming or climate change, it defines four objectives and orientations of France’s energy policy, including the preservation of human health and the environment, “particularly in fighting the increasing GHG effect.” Grenelle Negotiations and Act I and II (2007–2010)  The “Grenelle de l’environnement” was launched less than 2 years later. This round of negotiations  Some wish a stricter application of this principle, such as in the « Algues Vertes » case. In this case, the actual polluters escaped their share of responsibility since only the public authorities ended up being fined, de facto resulting in the tax payer being sanctioned for public and private failures; See Cour Administrative d’Appel, Nantes, CAA Nantes, n°07NT03775, Ministre d’Etat, Ministre de l’Ecologie, de l’Énergie, du Développement durable et de la Mer c/ Association « Halte aux marées vertes », 1 December 2009; See also Cour Administrative d’Appel, Nantes, CAA Nantes, n°13NT01737, Ministre de l’écologie, du développement durable et de l’énergie c/ Département des Côtes d’Armor, 23 December 2014. 33  The group of deputies proposed the insertion of a paragraph after the 16th paragraph of article 2 of the Constitutional Law n°2005/205 dated 1st March 2005 on the Charter of the environment: “By application of the principle of non-regression, the protection of the environment, ensured by the legislative and regulatory provisions relating to the environment, can only be the subject of constant improvement, taking into account the scientific and technical knowledge of the moment.” (See http://www.assemblee-nationale.fr/15/amendements/0911/CION-DVP/CD26.asp). 34  Loi n°2005-781 de programme fixant les réorientations de la politique énergétique (POPE), 13 July 2005. 32

494

M. Sarliève

involved representatives from national and local government, employment organisations and civil society organisations. Its purpose was essentially to transpose many EU directives into French law, including the 2008 European Commission’s climate and energy package for 202035 that aims at a 20% share of renewables, a 20% cut in GHG emissions below 1990 levels, and energy efficiency improvements of 20%. The negotiations were difficult and resulted in two Acts: Grenelle I (2009)36 and Grenelle II (2010).37 Grenelle I sets a number of objectives and quantitative targets related to climate change and energy in various sectors. For example, it establishes targets aimed at reducing the building sector’s consumption of energy and reducing the transport sector’s dependency on fossil fuels. It also contains provisions on a tax on fossil fuels.38 Grenelle II gives a more detailed implementation framework and includes incentive measures to use renewable energy (a minimum of 23% of energy mix by 2020 sourced from renewable energy sources). It also creates a National Committee on Sustainable Development and the Environment tasked with monitoring the implementation of the measures adopted in these laws and reporting once a year to Parliament to suggest improvements. The Grenelle Acts raised criticism for being too complex and failed to meet environmental expectations. Energy Transition Act for Green Growth (2015)  France adopted the Energy Transition Act for Green Growth in 2015.39 The Act and its related action plans purport to give France the means to diversify its energy mix and enhance its actions contributing to tackling climate change. It brings in binding energy targets for transport, housing sector and renewable energy such as cutting GHG emissions by 40% between 1990 and 2030 and by 75% by 2050; reducing the share of fossil fuels in energy production by 30% compared to 2012; or bringing the share of renewables up to 32% of the energy mix by 2030. The Act also defines how the tax on fossil fuel will be increasing within the next years from the 2015 rate (€14.5 per ton) to €56 per ton in 2020, and €100 per ton in 2030, pending on ratification in the annual budget. Finally, the Act also introduced an innovative governance framework to monitor the transition towards a low-carbon economy with two key planning instruments namely

 The 2020 package is a set of binding legislation to ensure the EU meets its climate and energy targets for the year 2020, see https://ec.europa.eu/clima/policies/strategies/2020_en. 36  Loi n°2009-967 de programmation relative à la mise en œuvre du Grenelle de l’environnement I, 3 August 2009. 37  Loi n°2010-788 portant engagement national pour l’environnement Grenelle II, 12 July 2010. 38  Whilst the French Constitutional Council approved the principle of a tax on fossil fuels, it considered its scope against the “principe d’égalité” and invalidated this particular carbon tax scheme (see Conseil Constitutionnel, Décision n°2009-599 DC sur la Loi de Finance pour 2010, 29 December 2009). Another fossil fuel scheme was eventually adopted on 29 December 2013 as part of the annual Finance Act for 2014 (See Loi n°2013-1278 de finances pour 2014, 29 December 2013, article 32). 39  Loi n°2015-992 relative à la transition énergétique pour la croissance verte, 17 August 2015. 35

Climate Change Legislation and Litigation in France: A Work in Progress

495

the stratégie nationale bas carbone (SNBC) which sets carbon budgets and strategic axes for the entire economy, and the programmation pluriannuelle de l’énergie (PPE) which does the same for the energy sector. Act Prohibiting All Hydrocarbon Fossils Activities (2017)  More recently, an Act voted on 19 December 2017 imposed an end to all activities related to the exploration and exploitation of hydrocarbon fossil fuels within France’s territory by 2040, including its exclusive economic zone and the continental plateau. The ban includes gas, oil and coal, and stipulates that the government will deliver no further permits.40 The 2017 Finance Act New Rates for Fossil Fuel Tax (2018)  Pursuant to the annual Finance Act for 2018 and Second Rectifying Finance Act for 2017, a new objective was set for the fossil fuel tax rates for the 2018–2022 period, more ambitious than that set by the law on the energy transition.41 At the end of 2018, this tax rise, combined with another tax rise on diesel decided by the government and the increasing market price of oil and gas, turned a previously rather painless tax into a financial burden for many. This led in mid-November to the rise of a massive popular unrest (the gilets jaunes) which rapidly turned into weekly protests, of unprecedented length and intensity. The French Marche pour le Climat was organised on Saturday 8 December 2018, shortly after this movement started and interestingly, a number of persons wearing the gilets jaunes participated, thus attesting of their support to action against climate change, and adding to the general confusion. French Legislation on Corporate and Social Responsibility The European Commission defines corporate social responsibility as “the responsibility of enterprises for their impacts on society.” This includes their environmental impact, which is not always obvious, particularly when it comes to climate change. Defining a business’ level of GHG emissions is challenging. Demonstrating how these GHG emissions contribute to climate change, their specific impact and the contributor’s share of responsibility for causing this impact is close to impossible. There are alternative means: certain acts and regulations, such as non-financial reporting and transparency regulations can be used as litigation tools to drive change in businesses behaviours for buyers, sellers or employers. Directive 2014/95/EU of

 Loi n°2017-1839 mettant fin à la recherche ainsi qu’à l’exploitation des hydrocarbures et portant diverses dispositions relatives à l’énergie et à l’environnement, 30 December 2017. 41  The value of the carbon component of the tariffs for these taxes is set at €44.6 per ton in 2018 (instead of €39 initially), €55 in 2019 (instead of €47.5) and €65 in 2020 (instead of €56), to reach €86.2 in 2022. 40

496

M. Sarliève

22 October 2014,42 for example, obliges certain large undertakings and groups to disclose non-financial information on the social, societal and environmental consequences of their activities in annual management reports.43 Under the Grenelle Acts (I and II), all large companies with activities in France must produce an annual report on Corporate Social Responsibility matters (Grenelle II, article 225). The Government adopted provisions for the implementation of these laws in April 2012. Since 31 December 2013, all French companies with over 500 employees are also required to issue a yearly “social and environmental report” within their annual report. France’s key piece of legislation imposing on businesses a duty of care (“devoir de vigilance”) was enacted in March 2017.44 The devoir de vigilance Act creates a duty on parent companies to implement measures ensuring that their subsidiaries, suppliers and subcontractors around the world respect good social, environmental and ethical practices. A report of the French Ministry of Foreign Affairs on France and corporate social responsibility explains that “[t]he Act’s purpose is to raise awareness among these companies of their role in preventing tragedies in France and abroad, and to ensure that victims receive compensation for any harm caused by a breach of companies’ new duty to implement vigilance plans. The goal is to create an obligation for parent companies to identify risks and prevent serious violations to any human rights and fundamental freedoms, and the health and safety of persons and the environment, at each step of the supply chain. It concerns between 150 and 200 companies. It applies to companies with more than 5000 employees headquartered in France, or companies with more than 10,000 employees headquartered abroad. “Vigilance plans” must be submitted by 2018, and implementation reports by 2019.45

3 Climate Litigation In October 2018, the Institute for Sustainable Development and International Relations (IDDRI) published a study showing the extent to which France is lagging behind in respect of its climate objectives.46 To address the lack of efficiency of

 Directive 2014/95/EU of the European Parliament and of the Council of 22 October 2014 amending Directive 2013/34/EU as regards disclosure of non-financial and diversity information by certain large undertakings and groups. 43  Directive 2014/95/EU was transposed into French law with Ordonnance n°2017-1180 dated 19 July 2017 and Décret n°2017-1265 dated 9 August 2017. 44  Loi n°2017-399 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre, 27 March 2017. 45  Ministère des Affaires étrangères, France and Corporate Social Responsibility, May-August 2018. 46  Institut du développement durable et des relations internationales (IDDRI), Évaluation de l’état d’avancement de la transition bas-carbone en France, Andreas Rüdinger, Pierre-Marie Aubert, Marie-Hélène Schwoob, Mathieu Saujot, Nicolas Berghmans, Lola Vallejo (Iddri), Octobre 2018. 42

Climate Change Legislation and Litigation in France: A Work in Progress

497

public and private commitments to reduce GHG gas emissions, a number of actors are turning to the administrative or judicial judge.47 This judiciarisation of climate issues participates in the emergence of new forms of responsibility identified by Professor Laurent Neyret as “climate responsibility”.48 The contours of a specific regime for “climate responsibility” are yet to be defined and its scope should be progressively expanded with each adjudicated claim, administrative or judicial.

3.1 Administrative Responsibility The role and mission of the administrative judge is essentially to control and where appropriate, sanction the administration. Several litigating avenues are available to the applicant who wishes to attack the insufficiencies of French climate policies and legislation, depending on the emergency of the situation49 and the issue at stake. 3.1.1 Litigating the Illegality of an Administrative Act The administrative judge may be asked to review the legality of an administrative act and, if necessary, decides its annulation. Such review may be exercised via the recours pour excès de pouvoir, which must be filed within 2  months of the

The authors of the study pointed out a growing gap between France’s objectives and the reality of its GHG gas emissions. Since 2015, French emissions have gone up again and it may be that France will not meet its targets by the end of Emmanuel Macron 5-year mandate. According to this report, the transport sector is responsible for 30% of GHG gas emissions. The building sector is the second most emitting sector of GHG gases and co-responsible for the delay taken by France on these climate objectives. The goal of renovating 500,000 homes per year has not been achieved and now has to be revised upward. More generally, the authors of the study consider that current efforts to improve energy efficiency would have to be multiplied by four whilst consumption of fossil fuel energies would have to be reduced three times as much for France to comply with its climate commitments. 47  In France, there are several categories of courts divided into two major branches, a judicial branch and an administrative branch. Administrative claims are brought before specific administrative courts, which apply a specific set of administrative rules. Before the judicial branch, civil courts settle private disputes between individuals whilst criminal courts judge individuals who have committed offences. 48  Neyret (2015), p. 2278. 49  If the French climate policies or the way they are being implemented by public authorities appear insufficient, the applicant may rapidly obtain certain injunctions from the administrative judge provided that evidence of urgency is demonstrated through the référé-liberté (article L. 521-2 of the Code of Administrative Justice) when a fundamental freedom is at stake, the référé-suspension (article L. 521-1 of the Code of Administrative Justice) to obtain the suspension of an administrative decision or the référé-conservatoire (article L. 521-3 of the Code of Administrative Justice) to request any useful measure from the judge.

498

M. Sarliève

publication of the act (or its notification for an individual decision), or via the exception d’illégalité, which can only be invoked in a jurisdictional context, in which case, no time limits apply. For this type of legal action, the applicant may file a preliminary administrative claim (recours administratif préalable) either to the author of the contested decision (recours gracieux) or its hierarchical superior (recours hiérarchique) prior to bringing its claim to the administrative judge. Depending on the grounds raised by the applicant, the administrative judge may exercise two types of control: external or internal. The administrative judge cannot substitute its appreciation to that of the administration and the extent of its control will depend on the discretionary power left to the administration for each case: the wider the administration’s discretion, the narrower the judge’s control. External Legality  When the administrative judge examines the external legality of an administrative act, he or she will appreciate the competence of its author and whether the required procedure and rules of form have been complied with. Internal Legality  Controlling the internal legality of an administrative act is more complex: the judge will have to ensure the litigious administrative act is not tainted with either an error of law (wrong application of a text that no longer exists for example) or an error of fact (wrong appreciation of the factual situation or wrong legal characterization of the facts). The judge may also have to examine whether a power or procedure has been misused by the author of the contentious administrative act (détournement de pouvoir). Climate Responsibility  The case Association les Amis de la Terre France50 illustrates how the procedure of recours pour excès de pouvoir may be used to act against GHG emissions. In this case, the organisation Amis de la Terre France had asked the competent authorities to comply with European and national regulations and design a plan to improve the quality of the air in certain zones where the legal threshold had been reached and overtaken. The administration remained silent. The organisation brought the matter before the administrative judge and argued that this silence amounted to a rejection. Since the resulting inaction was breaching relevant and applicable European and domestic regulations, it then asked for the annulation of this implied rejection based on a recours pour excès de pouvoir. The Conseil d’Etat considered that the administrative measures taken in relation to pollution of the atmosphere were insufficient, granted the organisation’s request for annulation and enjoined the Government to develop a plan to improve the quality of the air.

50

 Conseil d’Etat, CE, 12 juillet 2017, Association Les Amis de la Terre France, n°394254.

Climate Change Legislation and Litigation in France: A Work in Progress

499

3.1.2 Litigating the Responsibility of the Administration When the responsibility of the administration is engaged, public authorities are under the obligation to remedy the prejudice caused by their action or inaction. This is done through the recours de pleine juridiction, also called recours de plein contentieux. Conversely to the recours pour excès de pouvoir, the purpose of this type of legal action is not to obtain the annulation of an administrative act but a financial compensation for the damage sustained. Each recours must therefore include a financial assessment of the actual prejudice, which can prove particularly challenging. Interestingly, the decision of the administrative judge regarding the reparation of a prejudice may, under certain circumstances (defined by case law), result in the annulation of the litigious administrative act or contract. For this type of legal action, the applicant must file a preliminary administrative claim (recours administratif préalable) and will have 2 months from the notification of the administration’s response or decision to bring the issue before the administrative judge. For a long time, the responsibility of the administration could only be engaged in cases of gross misconduct (faute lourde). This is no longer the case and a simple fault (faute simple) may be sufficient. In some limited cases, the responsibility of the administration may even be incurred without a demonstrated misconduct or faute. Even if administrative law may provide for mechanisms to facilitate reparation for the victim, the conditions required to engage the responsibility of the administration under this regime are identical to those applicable in non-administrative cases: the applicant must establish the facts, the prejudice and demonstrate a causal link between the two. In the context of climate change litigation, establishing the facts or the prejudice should not be an issue. Demonstrating the causal link between the two and assessing the financial prejudice resulting from the conduct of the administration may prove more difficult if not impossible. Responsabilité pour faute  The mission of the administration is to protect the general interest. Failing to do so may result in engaging its responsabilité pour faute. As already mentioned above, the faute of the administration may result from an action as well as from a failure or inaction (carence fautive). The Algues vertes case provides for an interesting example for climate litigators. Toxic green algae had been thriving in certain coastal areas, causing inter alia public health concerns. Further to the related claim filed by a group of associations, the administrative judge found that the proliferation resulted from the Government’s shortcomings (carence fautive). In relation to the causal link between these shortcomings and the green algae pollution, the judge ruled that notwithstanding the other contributing factors, the infestation would not have reached such an extent had the government had immediately and strictly applied the European and domestic regulations and

500

M. Sarliève

standards.51 The same reasoning was applied in at least two subsequent procedures further to the claims filed on similar grounds by a group of municipalities in 201352 and by the Département des Côtes d’Armor in 2014.53 Responsabilité sans faute  As part of their mission to protect the general interest, public authorities are responsible to review, assess and manage risks. To this end, they must keep informed of the existing dangers and take appropriate measures, in the state of scientific knowledge, to limit and if possible eliminate these dangers. Sometimes, the risks realise and a prejudice is suffered as a result. In these cases, the regime of responsabilité sans faute may apply. Since this form of administrative responsibility strongly engages public finances,54 it is accepted only in very specific and limited circumstances as the case Ban Asbestos France55 shows. In this case, the competent public authorities had conducted a review and assessment of the risks attached to the use of asbestos and adopted the measures considered adapted at the time in light of the available knowledge to protect the population against these risks. The contested measures proved insufficient and the organisation Ban Asbestos France sought to engage the responsibility of the administration based on articles 1 (right to a healthy environment) and 5 (precautionary principle) of the Charter for the Environment. The Conseil d’Etat confirmed that these legal grounds were admissible but, on balance, validated the administration’s approach and rejected the request. 3.1.3 Litigating the Administration’s Climate Responsibility Actions in Climate Administrative Responsibility recently peaked in France with two recours pour carence fautive against the government for lack of climate action, from the mayor of a French city (Grand Synthe) and a group or four organisations (“l’Affaire du Siècle”) respectively filed in November and December 2018. Grande Synthe  On 19 November 2018, the mayor of a French city bordering the North Sea requested the Ministre de la transition écologique to take all legislative and regulatory measures required to mitigate climate change and to implement immediate climate change adaptation measures. Despite its own efforts to act

 Cour Administrative d’Appel, Nantes, CAA Nantes, n°07NT03775, Ministre d’Etat, Ministre de l’Ecologie, de l’Énergie, du Développement durable et de la Mer c/ Association « Halte aux marées vertes » et a. 1 December 2009. 52  Cour Administrative d’Appel, Nantes, CAA Nantes, n°12NT00342, Ministre d’Etat, Ministre de l’Ecologie, de l’Énergie, du Développement durable et de la Mer c/ Commune de Tréduder, 23 March 2013. 53  Cour Administrative d’Appel, Nantes, CAA Nantes, n°13NT01737, Ministre de l’écologie, du développement durable et de l’énergie c/ Département des Côtes d’Armor, 23 December 2014. 54  Compensation for victims is borne by the community in the name of social solidarity. 55  See also Conseil d’Etat, CE, 26 February 2014, Association Ban Asbestos France and others, n°351514. 51

Climate Change Legislation and Litigation in France: A Work in Progress

501

against climate change, the city remains at the forefront regarding risks of marine submersion and flooding, its mayor wants to force the government to comply with its international, European and national commitments and plans to ask a judge to appoint an expert charged with identifying the measures required to ensure adaptation to climate change. The Ministre has 2 months to answer. Should there be no response or if any response does not satisfy the applicant, the city mayor will be able to proceed with his legal claim and demonstrate further the State carence fautive in a “recours en plein contentieux” before the competent administrative court. L’Affaire du Siècle  On 17 December 2018, four organisations (Greenpeace France, Notre Affaire à tous, Oxfam and la Fondation pour la nature et l’homme) sent a letter to Prime Minister Edouard Philippe and twelve members of the government. This letter, also called “demande préalable,” details the inaction of the French Government for the last decades against climate change and demanding compensation for the resulting prejudice caused by this inaction. Pursuant to the applicable procedure described above, this letter opens a period of 2 months within which the French Government may choose to answer or not. If, by February 2019, the organisations have not received any answer from the Government or, alternatively, are not satisfied with it, they will have another 2 months to decide whether to commence a “recours en plein contentieux” procedure before the Administrative Court of Paris.56

3.2 Judicial Responsibility 3.2.1 Civil Responsibility (Tort) In French law, civil responsibility (responsabilité civile délictuelle) is a branch of law that governs the reparation of a prejudice caused to others by a private person as opposed to criminal liability which aims to sanction the author of a criminal behaviour. Its regime is defined under articles 1240 and 1241 of the Civil Code.57 The causal link between the litigious fact attributed to the defendant and the prejudice she or he is asking reparations for must be direct and certain. In the context of climate responsibility, the challenge is to establish a direct and certain causal link given the multiplicity of factors at stake. Many natural and human activities produce GHG.  Distance and time necessarily separate the increase in global GHG emissions and the resulting prejudice. Although climate scientists are making consistent progresses in their related analysis, the melting of the Alps glaciers or the rising sea level cannot be attributed to the actions of one specific sector

 On 14 March 2019, the organisations started such a procedure, thereby opening an investigating period which should last 1–2  years. They expect the administrative judge to acknowledge the State’s obligations in the fight against climate change, identify its faults and shortcomings in this area, and—if proven—order the State to put an end to them. 57  Articles 1240 and 1241 of the Civil Code (formerly articles 1382 and 1383 of the same code). 56

502

M. Sarliève

or company in France.58 Several actions in civil responsibility have been brought before domestic courts against companies or groups of companies that release large quantities of GHGs, but none in France. To date, no action of this type has succeeded but this may change as prejudice caused by climate change pile up. Since 2017 and the ‘devoir de vigilance’ Act (duty of vigilance Act), the civil responsibility of French biggest companies may be engaged under certain conditions when they breach the obligations defined in article L.225-102-4 of the Code of Commerce, which include the obligation to assess and prevent their impacts on human rights and the environment. Within that legal framework and further to publication of the latest IPCC Special Report on Global Warming,59 a group of elected representatives and activists60 wrote to the French oil giant Total on 22 October 2018 regarding the impacts of its activities on the climate.61 The letter demands that the company complies with its obligations based on the recent law on the duty of vigilance of companies. The authors of the letter consider that the current vigilance plan “does not reflect the reality of the impacts of [Total’s] activities and the risks of serious damage to the system they induce.”62 Referring to Richard Heede’s work and the latest version of the Carbon Majors Report,63 the letter recalls that Total was responsible for 0.7% of all global GHG emissions in 2015, and 0.9% for the period 1988–2015. It then discusses the omissions in the vigilance plan, which will have to integrate actions that Total should adopt to mitigate climate risk and prevent serious harm to the environment and the resulting human rights. It concludes with the following notification: If these major omissions were to be confirmed in the vigilance plan for the 2018 financial year, we would then be forced to sue your Group in the Court on the basis of the provisions of Article L. 225-102-4.-II of the French Commercial Code.

Consequently, depending on Total’s 2019 plan de vigilance, a new climate change case may open in France.64 Other actions based on the devoir de vigilance could be started against the biggest French banks. Given the size of these banks, their activities in finance, investment and credit also fall under the scope of the Act and creative lawyers may well

 Professor Neyret suggested that for the sake of justice, it would be appropriate to consider claims for collective responsibility proportionate to the climate risk created. See Laurent Neyret (2015), p. 2278. 59  Intergovernmental Panel on Climate Change (IPCC), Special Report Global Warming of 1.5 °C, 6 October 2018. 60  13 cities and four French NGOs. 61  See press kit dated 23 October 2018 including in its annex 6 the letter sent by Seattle Avocats to the CEO of Total SA, Duty of Vigilance/Total SA, dated 22 October 2018. 62  ibid. 63  The Carbon Majors Database, Carbon Majors Report 2017 (100 fossil fuel producers and nearly 1 trillion tonnes of GHG gas emissions), 2017. 64  At the time of writing, Total’s plan de vigilance for 2019 was yet to be published. 58

Climate Change Legislation and Litigation in France: A Work in Progress

503

use the same strategy to demand that they increase their divestment efforts towards the 1.5 °C GHG reduction scenario. 3.2.2 Criminal Responsibility Practitioners may also consider commencing proceedings before criminal court and engage the criminal responsibility of those failing to address the anticipated impact of Climate Change or the biggest contributors to France GHG emissions. Individual criminal responsibility was engaged for climate related facts in the Xynthia case, where a massive storm hit the urbanized shores of the municipality of La Faute-sur-Mer, resulting in 29 deaths. The mayor was convicted to 4 years in prison in 2014 for negligence resulting in manslaughter and endangering the lives of others.65 Corporate criminal responsibility was also engaged in connection with fossil fuel exploitation in the Erika case66 and more recently, further to the rupture of a refinery pipe causing oil pollution in a Loire estuary.67 These decisions defined the concept of ecological prejudice as a direct or indirect harm caused to the environment as a result of the criminal offense committed. In the latter case, the Cour de Cassation interestingly ruled that a judge cannot refuse compensation for the ecological prejudice acknowledged by his or her decision, on the ground that the method of evaluation proposed was insufficient or inadequate. In such cases, it is for the judge to come up with an alternative evaluation method, using the services of an expert if need be.68 Similar applications could be imagined in other GHG emissions related cases, such as a car manufacturer providing wrong information on the polluting gas emitted by its vehicles69 or a listed company misrepresenting its GHG gas emissions in its accounting records.70

4 Conclusion The French approach to climate change provides for an illustrative example of the challenges ahead. France’s comparative low carbon and low cost energy situation is essentially thanks to its nuclear power, which France will probably have to  Tribunal Correctionnel, Sables-d’Olonne, n°877-2014, 12 December 2014, overturned by the Cour d’Appel de Poitiers, Cour d’Appel, Poitiers, n°16/00199, 4 April 2016. 66  Cour de Cassation, Chambre criminelle, Crim. 25 sept. 2012, n°10-82.938. 67  Cour de Cassation, Chambre criminelle, Crim. 22 mars 2016, n°13-87.650. 68  ibid. 69  Incriminated as misleading commercial practices under article L. 121-1-1 c. consom. See also Laurent Neyret (2015), p. 2278. 70  Incriminated as misdemeanor of disseminating false or misleading information under article L. 465-2 c. mon. fin. See also Neyret (2015), p. 2278. 65

504

M. Sarliève

eventually give up. Political determination to adopt improved mitigation and adaptation policies will not be sufficient to address the challenges attached to the French transition towards a carbon free economy. Just recently, France launched various climate related initiatives, published a number of ambitious policy papers in relation to deforestation, energy efficiency and fossil fuel taxes and worked on the implementation of its laws and regulations. None of this has been sufficient to meet the country’s climate commitments. Worse, some of these measures—the increase of fossil fuel taxes supposed to pay for the “energy transition”—have resulted in a quasi-insurrectional popular movement for more than 4 weeks. France action against global warming must upgrade to efficiently reduce GHG emissions. The various legal procedures recently initiated to this end may assist in getting the judges to place additional pressure on the public or private actors contributing the most and ultimately, influence French climate law.

References (Chronological Order) Regulation International Regulation Rio Declaration on Environment and Development (13 June 1992) UN Doc. A/CONF.151/26 (vol. I); 31 ILM 874 (1992) United Nations Framework Convention on Climate Change (UNFCCC) (2015) Adoption of the Paris Agreement, FCCC/CP/2015/L.9/Rev.1 (12 December 2015) (referred to as “Paris Agreement”) UN General Assembly (UNGA) (7 May 2017) Resolution A/72/L.51, ‘Towards a Global Pact for the Environment,’ (Global Pact for the Environment)

European Regulation Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for GHG gas emission allowance trading within the Community and amending Council Directive 96/61/EC Directive 2006/32/EC of the European Parliament and of the Council of 5 April 2006 on energy end-use efficiency and energy services and repealing Council Directive 93/76/EEC Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community Directive 2014/95/EU of the European Parliament and of the Council of 22 October 2014 amending Directive 2013/34/EU as regards disclosure of non-financial and diversity information by certain large undertakings and groups

Climate Change Legislation and Litigation in France: A Work in Progress

505

Council Decision (EU) 2016/1841 of 5 October 2016 on the conclusion, on behalf of the European Union, of the Paris Agreement adopted under the United Nations Framework Convention on Climate Change Regulation (EU) 2018/841 of the European Parliament and of the Council of 30 May 2018 on the inclusion of greenhouse gas emissions and removals from land use, land use change and forestry in the 2030 climate and energy framework, and amending Regulation (EU) No 525/2013 and Decision No 529/2013/EU

Domestic Regulation French Civil Code (1804), articles 1240 and 1241 (formerly articles 1382 and 1383 of the same code) French Constitution, 4 October 1958 French Environment Code French Charter for the Environment, 2004 Loi n°2005-781 de programme fixant les réorientations de la politique énergétique (POPE), 13 July 2005 Loi n°2009-967 de programmation relative à la mise en œuvre du Grenelle de l'environnement I, 3 August 2009 Loi n°2010-788 portant engagement national pour l'environnement Grenelle II, 12 July 2010 Loi n°2013-1278 de finances pour 2014, 29 December 2013 Loi n°2015-992 relative à la transition énergétique pour la croissance verte, 17 August 2015 Loi n°2017-399 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre, 27 March 2017 French Ministère de la transition écologique et solidaire, Plan Climat 2017 « Une Planète, Un Plan », 6 juillet 2017 Ordonnance n°2017-1180 dated 19 July 2017 Décret n°2017-1265 dated 9 August 2017 Loi n°2017-1839 mettant fin à la recherche ainsi qu'à l'exploitation des hydrocarbures et portant diverses dispositions relatives à l'énergie et à l'environnement, 30 December 2017

Reports Dr. Paul Griffin, Carbon Majors Report (July 2017) The Carbon Major Database, in partnership with the Climate Accountability Institute Special Report Global Warming of 1.5 °C (6 October 2018) Intergovernmental Panel on Climate Change (IPCC) Rüdinger A, Aubert PM, Schwoob MH, Saujot M, Berghmans N, Vallejo L (Octobre 2018) Institut du développement durable et des relations internationales (IDDRI), Évaluation de l’état d’avancement de la transition bas-carbone en France Stratégie Nationale d'adaptation au changement climatique (2007) Rapport n°010178-01, Observatoire national sur les effets du réchauffement climatique (ONERC)

506

M. Sarliève

Articles Neyret L (2015) La reconnaissance de la responsabilité climatique. Recueil Dalloz D. 2015:2278 Hautereau-Boutonnet M (2018) Quel droit pour sauver le climat ? [Rapport de recherche] Université Lyon 3 J. Moulin Bétaille J (2018) « Climat dans la Constitution : les juristes dénoncent l'inefficience du projet de loi déposé », published in « Revue Droit de l'environnement » (cité dans Actu Environnement)

Cases Conseil Constitutionnel Conseil Constitutionnel, Décision n°2005-514 DC, Loi relative à la création du registre international français, 28 April 2005 Conseil Constitutionnel, Décision n°2008-564 DC, Loi relative aux organismes génétiquement modifiés, 19 June 2008 Conseil Constitutionnel, Décision n°2009-599 DC, Loi de finances pour 2010, 29 December 2009

Administrative Courts Conseil d’Etat, CE, Association eau et rivière de Bretagne, n°282456, 19 June 2006 Cour Administrative d’Appel, Nantes, CAA Nantes, n°07NT03775, Ministre d’Etat, Ministre de l’Ecologie, de l’Énergie, du Développement durable et de la Mer c/ Association « Halte aux marées vertes », 1 December 2009 Cour Administrative d’Appel, Nantes, CAA Nantes, n°12NT00342, Ministre d’Etat, Ministre de l’Ecologie, de l’Énergie, du Développement durable et de la Mer c/ Commune de Tréduder, 23 March 2013 Cour Administrative d’Appel, Nantes, CAA Nantes, n°13NT01737, Ministre de l’écologie, du développement durable et de l’énergie c/ Département des Côtes d’Armor, 23 December 2014 Conseil d’Etat, CE, Association du quartier Les Hauts de Choiseul, n°328687, 19 July 2010 Conseil d’Etat, CE, Commune d’Annecy, n°297931, 3 October 2010 Conseil d’Etat, CE, Association Ban Asbestos France and others, n°351514, 26 February 2014 Conseil d’Etat, CE, Association coordination interrégionale Stop THT et autres, n°342409, 342569, 342689, 342740, 342748, 342821, 12 April 2013 Conseil d’Etat, CE, Fédération des entreprises du recyclage, n°360702, 12 June 2013 Conseil d’Etat, CE, Ass., Fédération nationale de la pêche en France, n°344522, 12 July 2013 Conseil d’Etat, CE, 12 July 2017, Association Les Amis de la Terre France, n°394254 Conseil d’Etat, CE, Commune de Villiers-le-Bâcle et autres - France Nature Environnement Ile-­ de-­France et autres, nos 410917, 411030, 9 July 2018

Climate Change Legislation and Litigation in France: A Work in Progress

507

Judicial Courts Tribunal Correctionnel, Sables-d'Olonne, n°877-2014, 12 December 2014 Cour d’Appel, Poitiers, Chambre correctionnelle, n°16/00199, 4 April 2016 Cour de Cassation, Chambre criminelle, Crim., n°10-82.938, 25 September 2012 Cour de Cassation, Chambre criminelle, Crim., n°13-87.650, 22 March 2016

Newspapers Aguila Y (22 June 2018a) « Inscrire le climat dans la Constitution ‘aura un impact réel’ », interviewed by Simon Roger for Le Monde Planète. doi: https://www.lemonde.fr/planete/article/2018/06/22/ inscrire-le-climat-dans-la-constitution-aura-un-impact-reel_5319569_3244.html Aguila Y (3 July2018b) « L’Actualité au prisme du droit: Inscrire le climat à l’article 1er de la Constitution : quelles conséquences? », Le Club des Juristes. doi: http://blog.leclubdesjuristes. com/inscrire-le-climat-a-larticle-1er-de-la-constitution-quelles-consequences/

Websites Climate Action Tracker (2019), https://climateactiontracker.org/countries/eu/last (for recent developments in the EU, French and other countries climate and energy policy) Observatoire Climat Energie: où en est la France? (2017), https://www.observatoire-climatenergie.fr/tableau-de-bord/ (for a dashboard presenting the detail of the deviations from the objectives of the main indicators for the year 2017) Maud Sarliève  is a Human Rights and International Criminal Lawyer advocating for creative legal thinking to mitigate Climate Change and protect the environment. She holds a Master in International Law from the University of Paris-Nanterre, an LLM in European Law from Trinity College Dublin and is licensed to practice law in France. After a couple of years practising as a corporate lawyer in Prague and Paris, Maud switched to specialise in complex international human rights and criminal investigations. Over the last 10–15 years, she has operated in conflict and post conflict zones for international jurisdictions and organisations such as the United Nations and the European Union. Her cases have taken her to South East Asia, the Middle East, the Balkans, East Africa or Latin America. Since 2016, Maud has been researching how her expertise can assist in addressing the climate crisis. Her publications explore the challenges associated to the definition of the crime of ecocide and to holding corporations accountable for their contribution to climate change and environmental destruction. Maud has given lectures and conferences on these issues at academic institutions around the world and contributes as an independent expert to various research projects on environmental and climate issues.

Climate Change and the Individual in the Finnish Legal System Erkki J. Hollo

Abstract  The Climate Act (2015) requires that state bodies adopt and update strategic plans for both climate change mitigation and adaptation. These plans shall be observed when developing other public plans. Individuals and organizations are entitled to obtain information and to present their opinion. In permit procedures individuals may obtain compensation from the permit-holder in case of environmental damage. Claims for compensation may also be brought in civil and criminal cases but only if there is evidence that climate change has caused environmental damage or other losses. Presently, this is unlikely. Class actions are not permitted in environmental cases.

1 The Regulatory Basis of Climate Law Finland is a member state of the European Union and party to all essential environmental conventions. So, at the international and the EU level, Finland is committed to fulfil the imposed and agreed commitments. The most relevant sectors in terms of climate change are industry, forestry, traffic and agriculture. The physical impacts of climate change have been rather soft so far but especially water-related risks (flood), changes in the agricultural sector and flora are included in national mitigation and adaptation strategies.1  For comparative aspects on climate instruments  see Hollo (2012), pp.  229–272. Finland’s National Strategy for Adaptation to Climate Change. Publications of the Ministry of Agriculture and Forest 1a/2005, Summary: “The Finnish Meteorological Institute compiled the climate change scenarios based on the existing international and national data. According to the estimates on the future climate change in Finland, by 2080 the average temperature could rise by 4 - 6°C and the average precipitation would grow by 15 - 25 %. Extreme weather events, such as storms, droughts and heavy rains, are likely to increase.” See also Hollo et al. (2011), pp. 399–432. 1

E. J. Hollo (*) Law Faculty, University of Helsinki, Helsinki, Finland e-mail: [email protected] © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_26

509

510

E. J. Hollo

Citizens’ rights to participate in administrative procedures as well as the right to obtain environmental information are legally guaranteed without proof of interest. Environmental law does not specifically include or exclude climate change as an argument for action. As far as energy law is concerned, citizen’s rights seem for the most not to be relevant unless measures or decisions involve environmental consequences or risks. In public procedures, citizens may direct their claims both against public bodies, companies and private actors. Also, the official principle requires as a rule that authorities arbitrate between the parties as set by law. In some fields, e.g. in water and mining law, the authority also settles compensation claims between the permit-­ holder and other parties. In this context, today theoretically, the assessment of damage might cover also future losses caused by climate change, supposed that the project would in size be responsible for a share of global warming as well as for its national impacts.

2 Implementation of the International Climate Change Agenda Concerning Mitigation and Adaptation as Basis for Claims of Individuals (Climate Act) Finland has implemented its international climate obligations by several legal instruments within the framework of the European Union. National law incorporates rulings concerning emissions trading, the use of renewable energy and more. Binding law concerning specifically and comprehensively the impacts of climate change does not exist. Instead, programmes and strategic instruments dealing with mitigation and adaptation, based on scientific data, have been adopted nationally. The Finnish Climate Act (CA, 609/2015, ilmastolaki; following is based on an unofficial English translation adopted by the Finnish Government, available at Finlex Data Bank) addresses in particular public authorities as they have to enforce climate strategies and land use plans. Several ministries have adopted political mitigation and adaptation strategies for over 10 years by now. Basically, the Climate Act regulates strategic planning, under the perspective of EU law. One additional purpose of the Act is to “strengthen the opportunities of Parliament and the public to participate in and affect the planning of climate change policy in Finland. This Act lays down provisions on the tasks of state authorities in drawing up climate change policy plans and ensuring their implementation” (CA Sec. 2.1). As a rule, the Finnish legal order does not set direct climate-related obligations on business actors or individuals, as the position is that the State, and to some extent communities, are the only actors in the field. Their responsibility is to transpose internationally binding commitments and recommendations into national law and, as in this case, into strategic plans. Concerning the business sector, the Kyoto Mechanisms, especially the Emissions Trading Scheme of the EU, are the most

Climate Change and the Individual in the Finnish Legal System

511

important instruments. Strategic plans function in the background of planning measures and may influence argumentation in those procedures. The CA provides for following definitions (Sec. 5): 3) mitigation of climate change means preventing the generation of anthropogenic greenhouse gas emissions and preventing them from entering the atmosphere, and also mitigating or eliminating other effects of climate change; 4) adaptation to climate change means measures taken to prepare for and adapt to climate change and its effects, and measures that can be used for benefitting from the effects of climate change;

Those definitions are in line with the concepts in international climate law (United Nations Framework Convention on Climate Change, UNFCCC, and its protocols). Concerning its legal context, the CA states (Sec. 1.2): “The goals of the Act and of the planning of climate change policy carried out in accordance with it are: 1) to ensure the fulfilment of obligations under the treaties binding on Finland and under the legislation of the European Union to reduce and monitor greenhouse gases; 2) to reduce anthropogenic emissions of greenhouse gases into the atmosphere, to mitigate climate change through national actions, and to adapt to climate change.

In addition to the strategies required by the CA, municipalities and also companies have adopted climate strategies for their internal use, without further legal implications. For instance, the cities in the Helsinki Metropolitan Area approved in 2007 a Climate Strategy to the Year 2030.2 The strategy is used for development programmes inter alia in order to achieve sustainable consumption of natural resources and improve general material efficiency. The strategy serves also as a basis for land-­use planning especially as traffic and energy issues, but also building infrastructures, are concerned. Point (2) of Sec. 5 of the Climate Act mentioned above is interesting for the estimate of how individuals (and non- governmental organizations, NGOs) may enforce their individual environmental rights: “to mitigate climate change through national actions, and to adapt to climate change”. The available national provisions for mostly originate from European or international law and as such are directed to authorities. But there is, in my view, a certain demand for imposing the State to allow participation when adopting “national actions”. Presently, this is not done by the Climate Change Act as its task is not to interfere with the enforcement of other legal statutes. But this seems not to prevent the authority to consider climate risks in a substantial case both in terms of mitigation and adaptation, especially as there is an environmental obligation behind, for instance reduction of emissions, traffic plans or waste recovery.

 https://www.hsy.fi/sites/Esitteet/EsitteetKatalogi/Raportit/Helsinki_Metropolitan_Area_ Climate_strategy _summary.pdf. Accessed 22 August 2018. See also: “Fortum’s climate strategy among the best in the world” - https://www.fortum.com/ media/2008/09/fortums- climate-strategy-among-best-world. Accessed 22 August 2018. 2

512

E. J. Hollo

Thus, substantially or in terms of combatting global warming, the obligations of the Climate Act are rather weak but perhaps not irrelevant for the future interpretation of substantial laws. The individual has rights towards the state and other communities, especially as the Constitution is concerned. According to Sec. 20 of the present Constitution of 2000 (731/1999) everyone is invested with the rights provided for in the Aarhus Convention,3 i.e. the right to get information and to participate also when the individual has no legal standing in the matter.4 In addition, further legislation in the environmental field as well as general rules on administrative procedures invite individuals to participate in procedures, in many cases without proving to be a party to the case.

3 Initiatives in the Field of Mitigation 3.1 General Legislation There is no tailored mechanism for climate change mitigation for modes of land use and management. Initiatives may be presented to political bodies of the State and the communities (which also have the possibility to use climate strategies and planning measures for enforcement). But national law sets limits to what requirements may be imposed on actors and companies. E.g. environmental permits may not limit the choice of energy sources. In a case concerning zoning, the city had adopted a climate programme, the aim of which was to densify the settlement structure. In addition to other reasons, this climate-based argument justified the rejection of a claim for a review of the zoning plan (Decision of the Supreme Administrative Court 29.12.2017/6894, KHO 2017:202, Finlex Data Bank). Climate change mitigation presupposes scientific knowledge about the causes of global warming. This again, under the perspective of human activities, means that strategies must tackle the essential sources in a variety of businesses. Some of them are spot-based, mostly industrial and energy-producing units, others are diffuse. Emissions from diffuse sources from agriculture and traffic require for mitigation other mechanisms than point-sources. These are usually economical and voluntary or based on contractual arrangements. Not all sources are caused by human activities; also natural processes emit greenhouse gases, especially methane. Mitigation measures should be in line with the precautionary principle. The UNFCCC states: “The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific  Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (1998). See also Hollo et al. (2013), pp. 1–79. 4  Constitution Sec. 20 para 2: “The public authorities shall endeavour to guarantee for everyone the right to a healthy environment and for everyone the possibility to influence the decisions that concern their own living environment.” 3

Climate Change and the Individual in the Finnish Legal System

513

certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-­ effective so as to ensure global benefits at the lowest possible cost” (Art. 3.3). The following shows some examples of Finnish substantial law in relation to climate change mitigation. From the perspective of international climate law, Finland offers a model of how greenhouse gas emissions from forestry may be neutralized. This is based on the strategic approach of international climate law that natural forests are allocated as sinks. Forests store carbon, and they become carbon dioxide sinks when they are increasing in growth or area. About 22.8 million hectares (75%) is under forests in Finland, representing about 10% of the forest area in Europe (215 million ha).5 The Natural Resources Institute gives following information about forest sinks: “The annual net sink of forests varies annually mainly due to harvesting but the average sink has been about 38 million CO2 equivalent tonnes over the last 10 years. Concurrently the wood products gave a net sink of 2 million tonnes of CO2. Recently the forest sink has covered about 60% of the Finland’s total emissions excluding the emissions and removals of land use and forestry.”6 The amount of sinks requires often complicated calculations and statistics. Being highly dependent on the national income from pulp industry and forestry, Finland pursues at the same time a high percentage of forests as sinks. In this respect, Finland’s National Forest Strategy 2025 is loaded with tensions because of the three strategic objectives of the strategy. The visions are: (1) Finland is a competitive operating environment for forest-based business, (2) forest-based business and activities and their structures are renewed and diversified and (3) forests are in active, economically, ecologically and socially sustainable, and diverse use.7 The forest strategy strongly focuses on biodiversity and ecological forestry practices but less on mechanisms for the creation of sinks. There is altogether a strategic statement (pp. 27–28): Forests as a carbon sink have been a significant means of mitigating climate change in Finland. Whereas the international benchmark level agreed upon for 2020 is 17–18 million tons in carbon dioxide equivalent, the carbon sink has been larger than this as harvesting volume have been lower than those indicated in the National Forest Programme 2015. As wood consumption increases, forests will lose their significance as carbon sinks and emphasis in climate change mitigation will shift to replacing fossil raw materials by renewable ones, including wood.

In Finland most forests are owned by private persons and organizations. This is reflected in the forest legislation as a relatively strong protection of the actors’ interests as owners and producers. It is natural that the national strategy to some extent emphasizes the importance of those interests in the national economy. The forest legislation itself provides for forest management plans, which serve as a basis for  The Finnish Natural Resources Institute “Luke”: https://www.luke.fi/wp-content/uploads/2017/06/ finlands-forests-facts-2017-www.pdf. 6  Ibid. 7  https://mmm.fi/documents/1410837/1504826/National+Forest+Strategy+2025/197e 0aa4-2b6c-426c-b0d0-f8b0f277f332. 5

514

E. J. Hollo

harvesting and other measures. In principle, such measures do not need a permit, but they may be interrupted if conditions set by the law are not followed up. Since environmental law, especially the law on nature conservation, has to be respected in forestry as well, the interests of owners and conservationist may collide and cases come up to court. The National Climate Strategy covers forest management as well and it should be taken into account in forestry planning as far as possible. That approach seems to be in line with the principle of sound forestry: forest planning measures may recommend modes of soil treatment and harvesting, which favour for instance the creation of sinks and other mitigating goals. However, if such requirements cause remarkable losses to forest owners, subsidies should be paid. For this purpose the environmental aid of the Common Agricultural Policy (CAP) has been available. The objective of the Nature Conservation Act (1096/1996) is inter alia to maintain biological diversity and to promote sustainable use of natural resources and the natural environment.8 This Act does not meet the challenge that climate change would occasionally nullify conservation values and require adaptive measures. Some conservation nature areas are also preserved under the obligation not to interfere in the ecosystem by human activities. It seems however, that the practices concerning management of state conservation areas could be adapted to the recommendations of the National Climate Strategy especially as forests and aquatic areas as well as Natura 2000 sites are concerned. One aspect is the protection of genetic resources especially in forests (70% of the area) and swamps (28% of the area).9 The natural values of marshland are, despite the fact that a great part of marshland is protected as conservation areas, under threat because of the peat production and also, especially historically, due to drainage of wetland for agricultural purposes.10 Peat production releases methane and impairs the capacity of swamps to serve as sinks. Individuals in the neighbourhood and NGOs may take action against peat production, but mainly referring to dust and noise. The UNFCCC does not, as it seems, apply to peat production outside forests. However, the Finnish Government has initiated studies in order to find climate-friendly methods for the use or re-use of marshland.

3.2 Climate-Oriented Mitigation The objective of some laws is tailored for mitigating negative impacts caused by global warming. Some of those laws have their origin in European law, for instance flood risk abatement, forest fire prevention and provisions favouring the use of

 See also Act on Managing the Risks Caused by Alien Species (1709/2015).  The concepts of forest and swamp are overlapping. 10  Finland comprises land areas 303,891 km2, inland waters 34,544 km2 and sea areas 52,470 km2. The uplift brings annually 7 km2. 8 9

Climate Change and the Individual in the Finnish Legal System

515

renewable energy. Waste law, which is based on the concept of life cycle, is relevant for mitigation as well. As an example, I will just mention the Finnish Flood Risk Management Act (620/2010). Maps are prepared for the significant flood risk areas, which may be flooded at different probabilities. The map also shows the potential adverse consequences of such floods. A flood risk management plan is prepared for river basins11 with one or several designated significant flood risk areas and a significant flood risk area in the coastal area. Water management mechanisms tend to belong both to mitigation and adaptation but this act has mainly a strategic function with anticipation of risks. The measures that adaptation would need in a real situation are mainly regulated under water and planning law. See e.g. Water Act (579/2011, Ch. 18 Sec. 4): “If exceptional natural conditions or other force majeure event causes a flood or another such change in the water body or in its water conditions that may pose a general hazard to human life, safety or health or causes major damage to private or public interests, the permit authority shall order the state supervisory authority or the party responsible for a water resources management project to undertake the temporary measures necessary to eliminating the danger or minimising the damage. Such an order may be given notwithstanding the provisions laid down in this Act or in regulations in permits or decisions issued under it.” The Flood Risk Act has or may have legal implications, for instance building restrictions or servitudes for flood basins. For this reason participation of landowners and other interested individuals (“everyone”) is required when approving the plan. The authority must reserve everyone the opportunity to examine the proposal concerning the designation of significant flood risk areas referred and the proposal for a flood risk management plan and their background documents. Also, the opportunity shall be given to present one’s opinion on the proposals in writing or electronically.

4 The National Adaptation Strategy In the project and environmental legislation adaptive measures are basically dealt with as any other project. There is no comprehensive law concerning climate change adaptation either. However, the approach in case of adaptation seems to be less strategic than in preventive situations because adaptive measures tend to be more case-related and therefore regulated by sectoral rules, for instance by land use planning or building permits. The question is to what extent the climate argument may be used in (administrative) cases concerning building on shores, on flood risk management and more. For this purpose adaptation strategies have been adopted. The National Adaptation Strategy 2022, based on the Climate Act, was prepared by the Ministry for Agriculture and Forestry and approved by the Government 20

11

 Main concept of the Water Framework Directive 60/2000/EC.

516

E. J. Hollo

November 2014. It is an update of the national strategy 2005. The status of the Government’s decision is political, not legally binding but it shall be taken into account by public authorities in their sectoral planning measures. However, the objective to achieve is that the Finnish society as a whole is able to cope with the risks related to climate change and to adapt to changes. For this the strategy does not address public bodies only but sets strategic goals for other actors as well. There are three interim targets. First, adaptation shall become part of planning and operations of business areas and business actors. Secondly, actors shall acquire necessary tools for the evaluation and control of climate risks, Third, research, development programmes, information and education favour capacity of adaptation, adoption of innovative solutions and awareness of climate risks. The strategy identifies 12 different areas of action. The estimate of global warming in this report bases on the fifth evaluation report of the Intergovernmental Panel on Climate Change, (IPCC), which gives higher numbers for Finland than for the rest of the Globe (between 2.3 and 6 centigrade by 2100). According to the strategy, the main meteorological change would be increasing amounts of rain. For this article the approach would be to examine how the strategy addresses issues concerning decision-making and the role of individuals. As said above, strategies are mostly weak in terms of hard law. But looking at the mentioned objectives of the strategy, some soft law input seems to be feasible. The information and communication approach relates to the legal position of individuals, to their right to be informed and to participate in planning and permit procedures. Even if climate change at present is not in substantial law a ground for legal action, it seems logical to open participation for individuals in cases where operators motivate their projects on climatic grounds. This would be the case especially in issues concerning the use of energy sources (wind, water energy, peat). There are constitutional and administrative reasons for the deservedness of the Government to interfere in the legal system. The legislation related to operations in the climate field has been developed mostly on a sectoral basis. Therefore, the communication between strategic tools and the need to update laws is in my view not efficient yet. However, in the strategy there is a statement to work on: “When preparing and enforcing laws for business sectors the changes of the climate and the climatic risks shall be taken into account.” Let us take two recent examples for the preparation of environmental laws. How are climate aspects been taken into account when adopting the Environmental Pollution Control Act (527/2014) and the Water Act (587/2011), the two most important statutes in the field? The first act applies to activities causing pollution in the environment. The gases provoking global warming are not pollutants and therefore they fall beyond the application area of this act. However, the act states that one objective is to prevent climate change and to support sustainable development. The act itself does not set any climatic targets, wherefore the statement is merely declarative without a right of individuals to bring action unless there is a risk of pollution. The objective of the Water Act does not at least explicitly refer to prevention of global warming. Instead, the act is intended to promote, manage and allocate the use of water resources and the aquatic environment in a manner that is socially, economically and ecologically sustainable. Though not evidenced in legal practice, the

Climate Change and the Individual in the Finnish Legal System

517

formulation leaves open the question to what extent climate change might be relevant when considering the approval of an application. Large water management projects are commonly known to have relevance for either combatting or provoking global warming. When considering the conditions for granting a water permit, the concept of “public interest” is decisive. Also, the preparatory works do not indicate whether or to what extent climate issues might be relevant in this discretion. The position seems to be negative. Considering those comments on legislation in force, one may recognize that in procedures concerning the acts and the liability of the actors concerned there is, eventually, an interest of individuals to participate or to bring action on climatic grounds. The difficulty to proceed lies in the fact that so far individuals would hardly be capable to argue in terms of climate change in a concrete permit matter. As far as strategic instruments are concerned, the present CCA does provide limited possibilities for public participation. This should be improved. Climate law would otherwise consist just of a dialogue between authorities or authorities and operators.

5 Application of the Principles of Public Environmental Law Even if there is no specific legislation on the right of the individual to act in issues concerning climate change, the rules and principles in relation to environmental protection apply at least indirectly in planning and permit procedures, where climate change is one criterion for environmental or social suitability or sustainability. Climate arguments may be raised for instance in permit cases concerning the energy or mining sectors. In a case concerning construction of a water energy plan (Supreme Administrative Court 22.5.2017/2367, KHO:2017:87, Finlex Data Bank), climatic aspects were taken into account as benefits. Essentially, the decision was about the correct implementation of the Water Framework Directive and its environmental goals, not explicitly about the relevance of climate facts. Despite the position that the Climate Act does not regulate climate goals substantially, the Parliament reserved the option for later considerations. According to the Constitution, citizens do not have a legal ground for obliging the State to reach specific environmental quality targets or to take specific climatic measures. According to the Constitution, the legislator shall enact necessary rulings for the enforcement of environmental liability of everyone.12 In the end, the individual (and organisations) is merely invested with the procedural right to participate and to appeal against administrative decisions. Cases may be brought by individuals and NGOs to the administrative body and before the administrative court of appeal. The environmental standards or level of technical measures may be reviewed and determined by the court. The range of such discretion is rather broad in environmental

 Section 20 para 1: “Nature and its biodiversity, the environment and the national heritage are the responsibility of everyone.” 12

518

E. J. Hollo

law, since laws cannot set precise figures for emissions and nuisances. Case law tends therefore to be influential for the legal practice. The court may take into account or emphasize the relevance of scientific and other information more efficiently than the first administrative instance. In the future, the role of the Court, especially of the Supreme Administrative Court, will probably be important for the development of climate change aspects in legal decision-making while interpreting permit and planning provisions, including the individuals’ right to act as parties. Already today they are invited to present their opinion in permit procedures also without a personal interest. Occasionally citizens have acted for instance in cases dealing with public nature conservation law. Similarly, action based on global warming could also be initiated, though probably today without success for lack of sufficient or legally relevant evidence.

6 The Position of Human Rights in Finnish Climate Law As to human rights, Finland is party to the European Human Rights Convention, and also the Constitution imposes the State to respect human rights in all decision-­ making.13 The authorities do not need to refer to the provisions of the Constitution itself because the substantial and administrative legislation fulfils (or is considered to fulfil) sufficiently the protection of human rights. No cases concerning Finland of the European Human Rights Court are known to me in the field of climate change. Citizens’ rights concerning environmental protection and human rights, including eventually climate change regulations, range under administrative law. It is unlikely that civil (or criminal) lawsuits based on tort could successfully be brought against authorities or companies on the basis of climate change rulings only. Class actions are not permitted in environmental cases. Climate change may cause environmental damage but in individual cases the causation link would hardly exist because the concept of environmental pollution refers to rather short-term changes in the environment. In civil law, citizens may raise compensation claims for environmental pollution (Environmental Damages Act 737/1994). The challenge in this context is to prove that the impact of climate change would cause environmental pollution or risks. Suits against public bodies or companies on the basis that they contribute to global warming may not, as it seems, lead to monetary liability unless proof of losses is presented. In the case that citizens or NGOs consider that planning and other measures foreseen for mitigation or adaptation are not appropriate, claims may be brought before administrative courts (planning and permit authorities at the first instance). There are no decisions so far that such claims or suits were brought against actors or authorities without other dominant aspects than climate change.

 Section 22: “The public authorities shall guarantee the observance of basic rights and liberties and human rights.” 13

Climate Change and the Individual in the Finnish Legal System

519

7 Future Opportunities and Challenges Ahead There is so far no pending discussion about the right of individuals to bring action against operators or authorities solely on the ground of global warming. State liability based on tort is theoretically enforceable in cases where international or EU law commitments have not been transposed properly and this fact causes damage to individuals. As supranational climate law is not interpreted to have a direct effect on national law, Finnish law is not at this stage opening the court-way for actions, other than in connection with administrative planning or permit cases. It seems that individuals do not efficiently act as substantially involved parties because the regulations concerning mitigation are mainly based on public interests on safety and land use-planning, rather seldom on pure individual interests. Mitigation again is usually not based on the existence of realized negative impacts but on calculations and expectations. In some cases the situation may be different, especially where individual interests would be affected as is the case in the flood mitigation. Adaptive measures have probably positive impacts on most involved parties but they still encumber the rights of others. In most cases the right to actively participate in decision-making concerning mitigation and adaptation is guaranteed. But often, in strategic contexts, the participation remains substantially without success if claims are based on climate change arguments only. One opening would be that citizens could efficiently challenge decision-making authorities about the appropriate enforcement of internationally adopted climate goals. It seems however that such a discourse is more political than legal by nature and should be held for instance in the Parliament and its Commissions or in other legislative bodies, not in the court. The future will show if the climate argument will obtain more weight in administrative decision-making than it is today as a complementary to environmental interests. I assume that Finland would enter this path even without supranational commitments if the court practice decides to incorporate global warming in the rulings of environmental risks. This seems to take time, also depending on how foreign civil actions proceed as examples.

References Finland’s National Strategy for Adaptation to Climate Change. Publications of the Ministry of Agriculture and Forestry 1a/2005. http://urn.fi/URN:ISBN:952-453-231-X. Accessed 22 August 2018 Finlex Data Bank: Legislation. https://www.finlex.fi/en. Accessed 22 August 2018 Government report on the National Energy and Climate Strategy for 2030. Publications of the Ministry of Economic Affairs and Employment Energy 12/2017 Hollo EJ (2012) Climate change and the law. In: Brown KB, Snyder DV (eds) General Reports of the XVIIIth Congress of the international academy of comparative law. Springer, Heidelberg, pp 229–272 Hollo EJ, Kuokkanen T, Utter R (2011) Ilmasto-oikeus (climate law). Talentum, Helsinki

520

E. J. Hollo

Hollo EJ, Kulovesi K, Mehling M (eds) (2013) Climate change and the law. Series: Ius Gentium: comparative perspectives on law and justice, Vol. 21. 2012 (2013) XXI. Springer, Heidelberg Kansallinen ilmastonmuutokseen sopeutumissuunnitelma 2022 (Finland’s National Strategy for Adaptation to Climate Change 2022). Publications of the Ministry of Agriculture and Forestry: http://urn.fi/URN:ISBN:978-952-453-860-2 National legislation (English translations, published in Finlex Data Bank, are not official): Climate Act (609/2015) Environmental Damages Act (737/1994) Environmental Pollution Control Act (527/2014) Finnish Constitution (731/1999) Flood Risk Management Act (620/2010) Forest Act (1093/1996) Nature Conservation Act (1096/1996) Waste Act (646/2011) Water Act (579/2011) Erkki J. Hollo  LL.DD. (Helsinki Law Faculty and Law Faculty Tübingen, Germany), Ph.D. is Professor Emeritus in Law at the University of Helsinki in Finland. His expertise covers environmental, water and property law, as well as EU and international environmental law and comparative law. He acted as full professor in economic law at the University of Technology (presently Aalto University) for 16 years, then as full professor of environmental law at the Law Faculty of the University of Helsinki for 12  years since 1997. He was appointed Justice at the Finnish Supreme Administrative Court for 8  years. He acted as President of the European Council for Agricultural Law 2005–2010. He is Member of the Finnish Academy of Sciences and Humanities (member of board 1999–2018). He is founder and former chairman (1980–2018) of the Finnish Environmental Law Association. Publications 30 books and about 300 scientific articles. [email protected]

Opportunities for Climate Litigation in Russia: The Impossibility of the Possible Yulia Yamineva

Abstract  This overview looks at the opportunities for litigating on climate change grounds in Russia. It should be noted from the start that no such case has taken place in the country; nor has there been policy or academic debate on the issue. The overview first introduces the reader to the Russian legal system and environmental law framework as well as climate change law and policy before providing answers in respect of the three scenarios suggested by the editors of the book: claims against the government; claims against decisions by public bodies; and claims against private actors. The concluding part summarises the chapter and discusses potential legal pathways to effective litigation on climate change grounds in Russia.

1 Introduction This overview looks at the opportunities for litigating on climate change grounds in Russia. It should be noted from the start that no such case has taken place in the country; nor has there been policy or academic debate on the issue. The overview first introduces the reader to the Russian legal system and environmental law framework as well as climate change law and policy before providing answers in respect of the three scenarios suggested by the editors of the book: claims against the government; claims against decisions by public bodies; and claims against private actors. The concluding part summarises the chapter and discusses potential legal pathways to effective litigation on climate change grounds in Russia.

Y. Yamineva (*) Centre for Climate, Energy and Environmental Law, Law School, University of Eastern Finland, Joensuu, Finland e-mail: [email protected] © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_27

521

522

Y. Yamineva

2 The Russian Legal System and Environmental Law Russia follows a civil law tradition whereby the main source of law is written law adopted according to established legislative procedures. Such law has a strict hierarchy and includes the Constitution which has the supreme legal force as well as federal laws, executive regulations and other legal acts. Precedent does not serve as a source of law in the Russian legal system and judges should decide individual cases only on the basis of law contained in codes, statutes and regulations. That said, court decisions, especially when coming from high courts or summarized into judicial practice, seem to have a legally binding force although its extent is still a debated issue in the legal community.1 Like in many other countries, environmental law in Russia started forming as a separate field of state regulation in the second half of the twentieth century. A plethora of new fundamental environmental laws was adopted in the 1990s, following the collapse of the Soviet Union, and many of them have undergone significant reforms since then. The institutional framework of environmental management has also been subject to multiple changes in recent decades.2 Overall, environmental management in Russia heavily relies on command-and-control instruments such as environmental quality standards and environmental permitting; however, some economic instruments such as pollution charges are also used.3 In 2014, a major reform of environmental legislation was launched to introduce the principle of ‘best available technologies’ to encourage the industry to move to more sustainable practices.4 Accordingly, starting from 2019, industrial entities with significant environmental impact will have to apply the technologies with the least negative impact on the environment.5 Other important ongoing reforms of environmental law in Russia concern waste management and recycling, and environmental information. Overall, Russia’s environmental legislation indicates relatively high standards. At the same time, it is often poorly implemented due to lack of specificity, inadequate environmental monitoring, insufficient finance, and corruption.6 The system to ensure compliance with and enforcement of environmental legislation is quite complex and includes state control, environmental prosecutors’ offices, administrative channels and courts.7 Individuals and NGOs relatively rarely resort to court action on environmental issues.8 There are multiple reasons for this including insufficient legal knowledge and high costs of legal services. Another reason lies in legal history: many Russian  Pomeranz and Gutbrod (2012) and Burkov (2011).  OECD (2006). 3  Ibid. 4  Federal Law ‘On the Protection of the Environment’ (N 7-FZ, 10 January 2002), art 28.1. 5  Such technologies are listed in industry-specific guides. See also Shuvalova (2018). 6  Newell and Henry (2017). 7  OECD (2006). 8  Ibid. 1 2

Opportunities for Climate Litigation in Russia: The Impossibility of the Possible

523

citizens still, as in the Soviet period, seek to redress violations through complaining to executive bodies rather than launching public suits.9 This historical tradition seems to be changing though as ordinary citizens in contemporary Russia actively seek court protection for mundane disputes; they however avoid courts when it comes to politically sensitive issues.10 Indeed, there are political challenges to litigating on environmental grounds in Russia. Environmental activists, especially those critical of Putin’s administration and policies, have been targeted as adversaries of the regime and portrayed as anti-­ Russian.11 One manifestation of this is the Law on Foreign Agents adopted in 2012.12 The Law requires NGOs receiving funding from abroad and engaging in ‘political activity’ to declare themselves as foreign agents—a term which has the negative undertones of traitors in the Russian language.13 As a result, environmental activism in recent years has somewhat decreased.

3 Climate Change Law and Policy in Russia When it comes to international commitments, Russia is a party to the UNFCCC and the Kyoto Protocol. It has signed the Paris Agreement but—as of February 2018— has not ratified it. The main reason seems to be one of caution in the face of unclear implementation rules which are still being negotiated and will be finalised in late 2018. There are also concerns as to the consequences of ratification for the Russian economy. At the same time, there have been recent indications from the Russian Government that ratification is planned for around 2019.14 Domestically, the country’s key document on climate policy is the Climate Doctrine adopted in 2009.15 It recognises the need for a response to anthropogenic climate change and sketches the main contours of domestic policy on climate mitigation and adaptation. It also defines the country’s engagement in international cooperation. Although an important framework, the Climate Doctrine, from a legal point of view, has no binding force. The President and Government of the Russian Federation have enacted several regulations (bylaws) concerning climate mitigation and/or adaptation. Such regulations can be described as climate change legislation, defined here as legislation  Ibid.  Hendley (2015), p. 547. 11  Newell and Henry (2017), p. 12. See also Darby (2017). 12  Federal Law ‘On Amendments to Selected Legislative Acts of the Russian Federation Relating to the Regulation of the Activities of Non-profit Organisations Functioning as Foreign Agents’ (N 121-FZ, 20 July 2012). 13  Newell and Henry (2017), p. 15. 14  See Tarasenko et al. (2017). 15  Order by the President of the Russian Federation ‘On the Climate Doctrine of the Russian Federation’ (N 861-rp, 17 December 2009). 9

10

524

Y. Yamineva

enacted with the explicit purpose of addressing climate change. It should be noted that there are a number of legal acts relevant to climate mitigation, for instance in the energy sector, such as those aiming to increase energy efficiency, expand renewable energy, and reduce emissions from associated petroleum gas. This legislation is omitted from this analysis for the reason that it was enacted with other than climate goals. Pursuant to the Presidential decree of 2013, Russia aims at limiting its greenhouse gas (GHG) emissions by 2020 to a level not exceeding 75% of the emissions of 1990.16 This target should be considered against the background that in 2013 the country’s emissions were at 70% of 1990 levels.17 The reader should be reminded that Russia’s emissions dramatically decreased in the 1990s—by nearly 40%—following the disintegration of the Soviet Union and resulting economic collapse. The goal adopted by the decree is seen therefore as reflecting a business-as-usual approach and will be met without additional measures.18 Overall, there is a strong preference for strengthening energy efficiency as a climate mitigation policy. The country’s pledge submitted to the UNFCCC—also known as an Intended Nationally Determined Contribution (INDC) communicates the target of limiting GHG emissions to 70–75% of 1990 levels by 2030.19 The INDC target comes with the caveat of taking ‘maximum possible account of absorbing capacity of forests’, which is seen as further weakening an already weak mitigation goal.20 The outcomes of emissions modelling done by the Ministry for Economic Development show that Russia will meet this target without additional measures to limit GHG emissions.21 The government has adopted implementation plans both for the Climate Doctrine22 and the Presidential decree23 as well as a plan to strengthen state GHG

 Decree by the President of the Russian Federation ‘On Reducing Emissions of GHGs’ (N 752, 30 September 2013). 17  Ministry for Economic Development of the Russian Federation (2013). 18  Kokorin and Korppoo (2017). 19  Submission by the Russian Federation to the Ad Hoc Working Group on the Durban Platform for Enhanced Action, Intended Nationally Determined Contribution (1 April 2015), . 20  See further explanation in Kokorin and Korppoo (2017), p. 8. 21  ‘Ministry for Economic Development: Russia has a significant GHG mitigation potential’ (Regional Energy and Energy Efficiency, 23 December 2016) accessed 10 February 2018. 22  Order by the Government of the Russian Federation ‘On Adoption of the Comprehensive Implementation Plan for the Climate Doctrine of the Russian Federation up to 2020’ (N 730-r, 25 April 2011). 23  Order by the Government of the Russian Federation ‘On Adoption of the Plan of Actions in Support of Reducing GHG Emissions by 2020 to Levels of No More than 75 % of the Emissions of 1990’ (N 504-r, 2 April 2014). 16

Opportunities for Climate Litigation in Russia: The Impossibility of the Possible

525

regulations and prepare for the ratification of the Paris Agreement.24 In accordance with these documents, the Government has already taken steps towards developing a monitoring, reporting, and verification system for emissions.25 The introduction of carbon regulations—including a mitigation goal for 2030, federal law on state regulation of GHG emissions, a low-carbon development strategy for 2050 and other acts—is however delayed amid fossil fuel lobbying and lack of push by political leadership.26 The introduction of mandatory reporting of GHG emissions by enterprises is also postponed.27 The trajectory of climate policy development in Russia should be viewed in the context of public and expert opinions about climate change. Only around 22% of Russians consider climate change as a serious threat.28 Moreover, scepticism on anthropogenic causes of current climate change is widespread both in the society and among political elites.29 There are also signs that in recent years the political leadership of the country, including the President Vladimir Putin, has backtracked to the sceptical view.30 Some members of the scientific community also openly express doubts as to human factors behind global warming31 although there seems to be now an epistemic community of Russian scientists who raise awareness about anthropogenic causes of climate change and its consequences.32 As an example of this latter trend, recent state scientific reports carry an alarming perspective on impacts of climate change in the country.33 Indeed, awareness of the risks carried by changing temperatures and associated impacts has been growing in Russia and as a result the political elites started to be concerned with adaptation challenges.34 The country’s Environmental Security Strategy of 2017 clearly identifies consequences of global climate change as one of

 Order by the Government of the Russian Federation ‘On Adoption of the Implementation Plan for Measures to Strengthen State Regulation of GHG Emissions (alongside the Implementation Plan for Measures to Strengthen State Regulation of GHG Emissions and Preparation for Ratification of the Paris Agreement, Adopted on 12 December 2015 by the 15th Conference of the Parties to the UN Framework Convention on Climate Change’ (N 2344-r, 3 November 2016). 25  Order by the Government of the Russian Federation ‘On Adoption of the Concept for the Development of System to Monitor, Report and Verify GHG Emissions in the Russian Federation’ (N 716-r, 22 April 2015). 26  Kokorin and Korppoo (2017), p. 10. 27  Davydova (2017). 28  Carle (2015). 29  Kokorin and Korppoo (2017), pp. 1–3. 30  Ibid, 2–3. 31  Yamineva (2013) and Rowe (2009). 32  See n. 29, 1–2. 33   See for instance Federal Service for Hydrometeorology and Environmental Monitoring (Roshydromet), Second Roshydromet Assessment Report on Climate Change and Its Consequences in Russian Federation: General Summary (Moscow, 2014). 34  See n. 28, 2–3. 24

526

Y. Yamineva

the challenges needing to be addressed.35 A national adaptation plan is also in development, to be drafted by mid-2018.36 In addition, several regions have stepped up in developing their climate plans and/or specific mitigation or adaptation measures.37 In sum, climate legislation in Russia is still being formed and progress has been slow, especially on the mitigation side. The domestic target on limiting GHG emissions is weak and hardly suggests any deviation from business-as-usual. Adaptation policies and legislation are yet to be introduced.

4 Climate Change Litigation in Russia 4.1 Claims Against the Government In a hypothetical scenario where an individual decides to bring a case against the Russian government for alleged non-compliance with its international climate change obligations, several remarks need to be made. To start with (and as explained above), Russia has not ratified the Paris Agreement and hence has not taken related international climate change obligations. Furthermore, the Paris Agreement only establishes procedural obligations—or obligations of conduct—but not binding obligations of result (although there is a good faith expectation of that).38 From this perspective, there is for instance no legally binding obligation for a party to the Agreement to achieve the target set in a country’s pledge (Nationally Determined Contribution (NDC)) but there is an obligation to prepare, communicate and maintain one.39 Other than that, pursuant to the Constitution of the Russian Federation, international agreements ratified by Russia become part of its legal system.40 Moreover, such agreements alongside with generally recognised principles and norms of international law are given priority if they establish rules different to domestic laws.41 However, in reality Russian courts do not necessarily implement this provision: they for instance tend to avoid direct application of the European Convention on Human Rights (ECHR) and the case law of the European Court on Human Rights (ECtHR).42 Adopting a human rights perspective in relation to climate litigation may indeed be difficult. The human rights record in Russia has been problematic, with civil

 Decree by the President of the Russian Federation ‘On Strategy for Environmental Security of the Russian Federation up to 2025’ (N 176, 19 April 2017), art 19. 36  Order by the Government of the Russian Federation (n 24). 37  Senova and Uspenskaya (2017). 38  Rajamani (2016). 39  2015 Paris Agreement on Climate Change, FCCC/CP/2015/L.9/Rev.1, art 4.2. 40  Ibid, art 15(4). 41  Ibid. 42  Burkov (2017). 35

Opportunities for Climate Litigation in Russia: The Impossibility of the Possible

527

liberties in particular having been significantly restricted under Putin’s rule.43 At the same time, the situation is not so dire for other groups of rights: there is high support for personal-integrity and economic rights in the Russian society44 and Russians have been active in defending their social rights in courts.45 As has already been noted there is however general avoidance of litigating on issues which are deemed politically sensitive. When it comes to environmental rights, Article 42 of the Russian Constitution states that ‘Everyone shall have the right to a favourable environment, reliable information about its state and to restitution of damage inflicted on his health and property by ecological transgressions’.46 Individuals can seek court protection of their rights and freedoms defined in the Constitution as well as challenge court decisions and actions (or lack thereof) by state authorities, local authorities, NGOs and officials.47 Furthermore, individuals may seek protection in international courts if domestic means of protection have been exhausted. Russia is for instance a signatory to the ECHR and as a result under the jurisdiction of the ECtHR.48 These constitutional provisions are further specified in legislation. The Federal Law ‘On the Protection of the Environment’ stipulates that everyone has the right to be protected from negative impacts caused by economic or other activity, or disasters.49 Pursuant to the Civil Code, individuals can seek full compensation for harm inflicted on them, including moral damages,50 or damage to property.51 The Law ‘On the Protection of the Environment’ specifies that damage inflicted on health or property as a result of environmental law violations should be compensated in full.52 The basis for this action is violation of environmental legislation manifested for instance in the form of lack of permits or licences, or exceedance of emissions limits. Specialised environmental laws also contain related provisions: for instance, the Law on Atmospheric Protection stipulates that individuals have the right to bring claims for compensation for harm to health and property caused by air pollution.53

 Gerber (2017), pp. 316–317.  Ibid. 45  Pomeranz (2012). 46  Constitution of the Russian Federation (12 December 1993). 47  Ibid, art 46. 48  Russia’s relationship with the Court has not been easy. Cases filed by Russians in the ECtHR are numerous and sometimes repetitive while ideological opposition to its judgements among some political elites has been strengthening. See Mälksoo and Benedek (2017). 49  Federal Law ‘On the Protection of the Environment’ (n 4), art 11. 50  Resolution by the Plenum of the Supreme Court of the Russian Federation ‘On the Application by Courts of the Legislation on Responsibility for the Violations in the Area of Environmental Protection and Natural Resources Management’ (N 21, 18 October 2012). 51  The Civil Code of the Russian Federation, Part II (N 14-FZ, 26 January 1996), art 1064. 52  Federal Law ‘On the Protection of the Environment’ (n 4), art 79. 53  Federal Law ‘On the Protection of Atmospheric Air’ (N 96-FZ, 4 May 1999), art 29.2. 43 44

528

Y. Yamineva

There are four requirements for realising the right to compensation for harm to health or property under civil and environmental law: damage has been caused by environmental law violation; damage to health or property; causal link between action (inaction) and damage; and guilt. Environmental legislation therefore requires that damage is caused by unlawful action (inaction). The Civil Code in principle provides for the possibility of compensation for damage caused by lawful action (inaction) but only in cases specified in legislation.54 As a rule, a defendant’s guilt is necessary for bringing charges; however, the legislation also has provisions for liability for damage caused by non-­ guilty behaviour55: for instance, for damage caused by publicly dangerous activities.56 The claimant also bears the burden of proof: he/she has to prove existence of harm and a causal link between the activity and inflicted harm. If there is a risk of continuing harm in the future, this constitutes grounds for court action to prohibit the activity which is causing the harm.57 Here, a claimant has to prove the reality of the onset of such a risk and the need to prohibit the activity as a result.58 If the harm is a result of industrial activity, which is in violation of the law and continues or threatens to cause the harm, the court has the right to require the defendant to limit, suspend or stop the relevant activity in addition to compensation.59 When it comes to court practice on the application of the aforementioned provisions, the number of cases on restitution of damage to health or property caused by environmental damages is relatively low.60 The number of positive decisions by courts is even lower.61 The criteria listed above pose serious challenges for litigating on climate change grounds. For illustration purposes, let us consider the cases of mass reindeer deaths in the Yamal peninsula which occurred in 2006 and 2013.62 In both cases, the losses were reportedly due to a sudden change of temperatures, the resulting rain-on-snow events and arrival of thick ice which prevented the reindeer from foraging for food.63 Scientific studies have confirmed the link between climate change and higher

 The Civil Code (n 51), art 1064 para 3.  Ibid, art 1064 para 2. 56  Ibid, art 1079. The legislation contains a list of activities which are considered publicly dangerous. 57  The Civil Code (n 51), art 1065 para 2. 58  Resolution by the Plenum of the Supreme Court of the Russian Federation ‘On Some Issues of Applying the Legislation on Compensation for Damage Caused to the Environment’ (N 49, 30 November 2017). 59  The Civil Code (n 51), art 1065 para 2; Federal Law ‘On the Protection of the Environment’ (n 4), art 80. 60  Vasilyeva (2017), p. 15. 61  Ibid. 62  The Siberian Times reporter (2016). 63  The same phenomena have been reported in the Chukotka region. See Arctic Monitoring and Assessment Programme (2017), p. 35. 54 55

Opportunities for Climate Litigation in Russia: The Impossibility of the Possible

529

frequency and intensity of rain-on-snow events.64 In the most severe case of 2013 in total 61,000 reindeer, or 22% of all reindeer in the Yamal region, were lost. These events caused major hardship for nomadic herders who are from the indigenous tribe of Yamal Nenets peoples and have taken years to recover from the effects. It should be noted that Russian federal and regional legislation provides special protection for the rights of indigenous peoples, including the right to compensation for harm as a result of damage to the land of indigenous peoples by economic ­activities65 and the right of court protection of their rights.66 The loss of reindeers can be considered as harm to property so compensation can be sought in court under the Civil Code. However, further questions are less straightforward to answer. Whose action (or inaction) inflicted the harm and who should be held responsible? Does this action (inaction) violate the law? It can be argued that a fossil fuel company—say, the most active oil company in the region, Gasprom Neft—is partly responsible for the loss of reindeers through emitting GHG emissions and contributing to global climate change. However, emitting GHGs as such is not a violation of the law in Russia. Furthermore, claimants would have to prove a very long causal chain: contribution of the company’s emissions to increased concentration of GHGs in the atmosphere; link between increased concentrations of GHGs and increased global temperatures; link between the resulting increase in local temperatures and a specific rain-on-snow event; and connection between the rain-on-snow event and the loss of reindeers.67 It would also be necessary to measure and calculate the company’s share in this causation since Gasprom Neft is one of many GHG emitters globally.68 The causation is likely to be disputed by both the defendant and the court especially given the widespread scepticism in Russia about human causes of global climate change. Relevant scientific expertise may also be difficult to obtain while many studies confirming the causation have been conducted outside of Russia and may be met by the court with suspicion. Suing authorities, say, for inaction on climate mitigation or adaptation is also not a fruitful litigation strategy. The claimant would still have to provide indisputable evidence to prove the causal link. Furthermore, the court could decide that such claims are premature as federal policy and legislation on climate change are still being developed. Another possible way to realise the right to a favourable environment is seeking compensation for harm to the environment. According to the Federal Law ‘On the Protection of the Environment’, individuals have the right to bring claims for  Forbes et al. (2016).  For instance, Federal Law ‘On Guarantees of the Rights of Indigenous Peoples of the Russian Federation’ (N 82-FZ, 30 April 1999), art 8 para 8. Specific arrangements are also possible between communities and companies through benefit-sharing agreements which specify compensation for damages. See Tulaeva and Tysiachniouk (2017). 66  Federal Law ‘On Guarantees of the Rights of Indigenous Peoples,’ (n 65), art 12. 67  See also Lliuya v RWE AG, Indicative Court Order and Order for the Hearing of Evidence (Higher Regional Court of Hamm, 30 November 2017). 68  However, contribution of Gasprom of which Gasprom Neft is a subsidiary has been quantified in Heede (2014). 64 65

530

Y. Yamineva

compensation for harm to the environment as a result of violation of the law.69 The Law further specifies what constitutes such harm: environmental pollution, depletion, deterioration, destruction, irrational use of natural resources, degradation as well as destruction of natural ecosystems, natural complexes, and natural landscapes or another violation of environmental legislation.70 It can be argued that GHG ­emissions constitute environmental pollution which is defined in the Law as ‘the introduction into the environment of a substance and (or) energy, properties, location or quantity of which have a negative impact on the environment’.71,72 However, they have to be unlawful to qualify under this legal provision. Harm to the environment should be compensated in full according to existing methodologies.73 It is also compensated regardless of parallel compensation of harm to the health or property of individuals.74 Claims to compensate harm to the environment can be brought within 20 years.75 A court may decide that a defendant must compensate the harm financially and/or by restoring the environment.76 In the case of financial compensation, the awards go into the relevant state budgets.77 When considering the responsibility to restore the environment, the court should examine whether environmental restoration is possible.78 If only partial restoration is possible, the rest of the damage is compensated financially. As in the case with compensation of harm to individuals, claimants have the duty to provide evidence of harm and of a causal link between the action/inaction of a defendant and inflicted harm.79 Therefore, this legal pathway bears the same challenges as described above. When it comes to public actors, individuals can challenge legal acts in court under the Code of Administrative Proceedings.80 Here, the requirements are that the legal act in question has already been applied to a claimant or a claimant is subject to regulation under the act and that the act violates his/her rights, freedoms and legal interests.81 In such cases, the claimant can file an administrative claim in court to repeal the legal act fully or partially. Importantly, a claim should contain information on legal acts of higher legal force against which a challenged legal act needs to

 Federal Law ‘On the Protection of the Environment’ (n 4), art 11 para 2.  Ibid, art 77. 71  Federal Law ‘On the Protection of the Environment’ (n 4), art 1. 72  Russian legal scholars seem to be of the same opinion. See Dubovik, ed. (2016). 73  Federal Law ‘On the Protection of the Environment’ (n 4), art 77. 74  Resolution by the Plenum of the Supreme Court (n 58). 75  Federal Law ‘On the Protection of the Environment’ (n 4), art 78 para 3. 76  The Civil Code (n 51), art 1082; Federal Law ‘On the Protection of the Environment’ (n 4), art 78. 77  Resolution by the Plenum of the Supreme Court (n 58). 78  Ibid. 79  Ibid. 80  Code of Administrative Proceedings of the Russian Federation (N21-FZ, 8 March 2015), chapter 21. 81  Ibid, art 208. 69 70

Opportunities for Climate Litigation in Russia: The Impossibility of the Possible

531

be checked by court for compliance.82 In deciding the case, the court clarifies: (1) violation of claimant’s rights, freedoms and legal interests by a challenged legal act; (2) whether jurisdictional and procedural requirements have been met by an authority, organisation or an official in enacting the act; and (3) whether the act complies with the legislation of higher legal force.83 Here, the burden of proof in relation to (2) and (3) lies with the defendant.84 In case of repealing the legal act, the court can also impose a duty on the defendant to enact a new legal act, if it is envisaged that the issue is insufficiently regulated and this regulation gap can lead to violations of rights, freedoms and legal interests.85 Similarly, individuals can also challenge in court acts interpreting legislation and having legal effects.86 Furthermore, the same Code provides individuals with an opportunity to challenge in court decisions and actions (inaction) by state or municipal authorities and their officials as well as organisations with state or public powers.87 The basis for such claim is that these decisions or actions (inaction) violate or question claimant’s rights, freedoms and legal interests; establish barriers to their realisation; or illegally impose duties on a claimant. Although the aforementioned possibilities under the Code of Administrative Proceedings can in principle be taken advantage of in litigation on climate change grounds, their effectiveness seems to be questionable. This is because at present climate change legislation is too immature in Russia and there has still not been a thorough discussion on how to interpret the right to a favourable environment in light of climate change. Individuals can also complain of the violation of their rights to the Constitutional Court of the Russian Federation to check the constitutionality of the law applied in a concrete case.88 This provision pre-supposes that these individuals have already had their case heard in court and that the court applied a particular law in making a decision. They can complain to the Constitutional Court that the applied law violates their constitutional right to a favourable environment. However, the relevant article of the Constitution says nothing about climate change per se and hence the Court is unlikely to even accept the case.

 Ibid, art 209.  Ibid, art 213 para 8. 84  Ibid, art 213 para 9. 85  Ibid, art 216 para 4. 86  Ibid, art 217.1. 87  Ibid, chapter 22. 88  Federal Constitutional Law ‘On the Constitutional Court of the Russian Federation’ (N1-FKZ, 21 July 1994), art 3. 82 83

532

Y. Yamineva

4.2 Claims Against Decisions by Public Bodies If an individual wishes to bring a case against a public actor for authorising a major infrastructure operation that leads to a rise in GHG emissions and allegedly does not comply with national mitigation obligations, he/she will face significant difficulties in the Russian legal system. Pursuant to the Law on the Protection of the Environment, only NGOs—but not individuals—can file a case in court with the goal of cancelling decisions on planning, construction and operation of facilities which may have a negative impact on the environment.89 They can also file court cases to restrict, suspend and terminate economic and other activities that have a negative impact on the environment.90 The fact that individuals cannot file such cases is not viewed as violating the constitutional provision for court protection of rights: according to the Constitutional Court, individuals have sufficient opportunities to protect their environmental rights under the current legislation including through administrative (filing a complaint) and civil (compensation of damage) procedures.91 If the scenario concerns a decision by a public actor which has already entered into force, an individual can challenge that decision under the Code of Administrative Proceedings as described in the section on claims against the government. However, in that case the claimant would have to prove how the decision violates or questions his/her rights, freedoms and legal interests, or establishes barriers to their realisation. In addition, as it has already been discussed, national mitigation obligations at present reflect a business-as-usual scenario and therefore such a situation is even unlikely to arise in reality. With regard to claims concerning failure to adapt to climate change, an individual can again challenge actions (inaction) by a public actor under the Code of Administrative Proceedings, as described in the preceding section. Another possibility is compensation claims for harm to health, property or the environment. Furthermore, the Civil Code also provides for the right to seek compensation for damage caused by unlawful action/inaction of state or municipal authorities.92 The claimant would have to prove the existence of harm and the causal link between inaction of a public actor with respect to adaptation and the harm inflicted. Providing such evidence would be challenging as explained above. More importantly, at present there are no legal grounds for this type of court action: federal policy on climate change adaptation is still inchoate and current

 Ibid, art 12 para 1.  Ibid. 91  Definition by the Constitutional Court of the Russian Federation on the Refusal to Accept the Complaint by Valentin Kuznetsov, Zagit Murtazin and Natalia Oleinik on the Violation of Their Constitutional Rights by Articles 11 and 12 of the Federal Law ‘On the Protection of the Environment’ (N 1003-O, 26 May 2016). 92  Civil Code (n 51), art 16. 89 90

Opportunities for Climate Litigation in Russia: The Impossibility of the Possible

533

legislation contains no specific provisions relating to adaptation (see the section on climate policy and law in Russia).

4.3 Claims Against Private Actors In a scenario where actions by a private actor lead to a large rise in GHG emissions and if a claimant can prove that the harm inflicted on his/her health, property or the environment is a result of such rise, damages can be sought in court. This legal pathway carries significant challenges as explained in the section on claims against the government. Other than that, the national target on limiting GHG emissions is weak and does not suggest additional measures beyond a business-as-usual scenario, while carbon regulations are still in development (see the section on climate policy and law in Russia). What follows is that at present private (and public) actors are not bound by law to limit or reduce their GHG emissions. Globally, claims have been brought against institutional investors, for instance pension funds, on the ground that their investments lead to further rises in GHG emissions. Are such claims possible in Russia? To the author’s knowledge, the divestment movement has not yet reached Russia and there have been no calls for divesting from fossil fuels on climate change grounds.93 It also has to be noted that the Russian economy is heavily dependent on revenues from fossil fuels which for instance in 2014 constituted more than half of the state budget.94,95 Major oil and gas companies are owned by the Russian state and hence enjoy extensive Government support and subsidies. With respect to pension funds, the Pension Fund of the Russian Federation is the largest state fund. There are also 38 non-state pension funds presently operating. In principle, legal action can be taken by individuals towards whom a pension fund holds a fiduciary duty. That said, the concept of fiduciary duty of pension funds is only taking shape in Russia with relevant legislation being currently debated in the State Duma, the lower chamber of the Russian legislative body.96 The existing legal framework states that pension funds—both state and non-­ state—should operate exclusively in the interest of their clients and not violate their rights and interests.97 The laws also list requirements for investment management companies which are entrusted with investing the money of pension funds: such  However, there have been calls for divestment on other grounds: for instance, with the goal of diversifying the economy and making it less vulnerable to the volatility of oil prices. 94  Ministry for Finance of the Russian Federation (2015). 95  In 2016, due to decreased oil prices, the oil and gas revenues of the federal budget were around 35%. Ministry for Finance of the Russian Federation (2017). 96  Invest.com (2018). 97  Federal Law ‘On Investing Funds for Financing a Funded Pension in the Russian Federation’ (N 111-FZ, 24 July 2002), art 10. 93

534

Y. Yamineva

companies should invest the money in the interest of clients and in a reasonable and conscientious manner.98 The legal framework contains a list of investment principles which mainly relate to financial considerations and include: ensuring profitability, diversification and liquidity of investment portfolios as well as transparency and professionalism.99 There is therefore no mention of the need to consider non-­ financial risks, including environmental and climate change risks. All in all, it would require ample creativity to design a court case against a pension fund given the lack of clear legal norms on funds’ fiduciary duty and their environmental obligations, weak climate change legislation, and dependence of the Russian economy on fossil fuels.

5 Effective Climate Change Litigation in Russia: The Way Forward To sum up, no court case relating to climate change has materialised in Russia and there does not seem to have been any discussion on such a possibility. The Russian legal system in principle provides individuals with opportunities for court protection of their environmental rights. They can, for instance, challenge legal acts, law interpretation acts as well as decisions and actions (inaction) by public actors in court if those violate their rights. Moreover, pursuant to the Constitution and other legal acts, Russians can seek in court compensation for damage inflicted on their health and property caused by environmental damage as well as compensation for harm to the environment. Taking these legal routes however carry significant challenges. There is currently no judicial practice or discussion on how to interpret the right to a favourable environment in the context of a changing climate. Furthermore, for compensation claims, a claimant carries the burden of proof. Providing indisputable evidence of a direct causal link between action/inaction of a defendant and inflicted harm would be difficult in court. Even more importantly, climate change legislation in Russia is still in the process of (slow) formation and to this date lacks sufficient specificity to allow for effective court action. For instance, the mitigation target is weak and does not suppose taking additional actions to reduce GHG emissions. Furthermore, the general context of climate change scepticism among the public and political elites combined with insufficient scientific expertise is seen as unfavourable for litigating on climate change grounds. The potential barriers to climate change litigation in Russia are not unique to that country. The difficulties of proving a causal connection between action/inaction and

 Ibid, art 12; Federal Law ‘On Non-State Pension Funds’ (N 75-FZ, 7 May 1998), art 36 para 14.  Federal Law ‘On Investing Funds’ (n 97) art 12; Federal Law ‘On Non-State Pension Funds’ (n 98) art 24. 98 99

Opportunities for Climate Litigation in Russia: The Impossibility of the Possible

535

harm as well as lack of explicit climate change obligations in legislation are also observed in other jurisdictions.100 One legal pathway could be taking a climate litigation case outside of the Russian legal system, for instance to the ECtHR (after exhausting domestic means of court protection). This can be done in connection to article 8 of the ECHR which affirms the right to respect for private and family life. The Court has considered other cases involving environmental concerns under this article although it has been established that interference must directly affect the claimant’s home, family or private life.101 However, even if such a scenario realises, there is no clarity as to how the Court itself approaches climate change cases as it does not have any established judicial practice on this matter. As a concluding remark, litigating on climate change grounds in Russia is not seen as an effective means of protecting the climate and related rights. However, the capacity of courts to decide on environmental cases directly depends on the legal framework applied.102 The conclusion follows that it is strengthening the current legislative framework on climate change that should be prioritised in Russia. This will for instance enable effective claims against public actors under administrative proceedings. Strengthening legislation on broader environmental issues can also be useful, for example through introducing industry’s liability for not complying with the legislation on best available technologies. In sum, solid and specific legal provisions outlining rights and duties on mitigating GHG emissions and adapting to climate change will provide a legal basis for various channels of enforcing such legislation including through court action. Acknowledgements  The author wishes to thank Anton Burkov, Angelina Davydova and Vilena Valeeva for their useful suggestions.

References Arctic Monitoring and Assessment Programme (2017) Adaptation Actions for a Changing Arctic: Perspectives from the Bering-Chukchi-Beaufort Region Burkov A (2011) The status of decisions by the plenum of the Supreme Court of the Russian Federation in legislation and judicial practice. Jurisprudence 5:172–186 Burkov A (2017) The use of European Human Rights Law in Russian Courts. In: Mälksoo L, Benedek W (eds) Russia and the European Court of Human Rights: the Strasbourg effect. Cambridge University Press, Cambridge, pp 59–92 Carle J (2015) Climate change seen as top global threat. Pew Research Centre. http://www.pewglobal.org/2015/07/14/climate-change-seen-as-top-global-threat/. Accessed 10 Feb 2018

 United Nations Environment Programme (2017).  Fadeeva v Russia App no 55723/00 (ECtHR, 9 June 2005), 16. 102  OECD (2006). 100 101

536

Y. Yamineva

Darby M (2017) Russia brands environmental NGOs ‘foreign agents”. In Climate Home News. http://www.climatechangenews.com/2017/11/21/russia-brands-environmental-ngos-foreignagents/. Accessed 10 Feb 2018 Davydova A (2017) Zashli v ugol (they went into the coal). In Kommersant. https://www.kommersant.ru/doc/3496236. Accessed 10 Aug 2018 Dubovik O (ed) (2016) Kommentariy k Federalnomu Zakonu ‘Ob ohrane okruzhauschey sredy’ (Commentary on the Federal Law ‘On the Protection of the Environment’, N 7-FZ, 10 January 2002). Garant, Moscow Federal Service for Hydrometeorology and Environmental Monitoring (Roshydromet) (2014) Second Roshydromet Assessment Report on Climate Change and Its Consequences in Russian Federation: General Summary Forbes B et al (2016) Sea Ice, Rain-on-Snow and Tundra Reindeer Nomadism in Arctic Russia. Biol Lett 12 Gerber T (2017) Public opinion on human rights in Putin-Era Russia: continuities, changes, and sources of variation. J Hum Rights 16(3):314–331 Heede R (2014) Tracing anthropogenic carbon dioxide and methane emissions to fossil fuel and cement producers, 1854–2010. Clim Change 122(1–2):229–241 Hendley K (2015) Resisting multiple narratives of law in transition countries: Russia and beyond. Law Soc Inq 40:531–552 Invest.com (2018) Gosdume rekomendovano prinyat vo vtorom chtenii zakonoproekt o fidutsiarnoy ovetstvennosti i kontrole rashodov NPF (The State Duma has been recommended to adopt the draft law on the fiduciary responsibility and control of non-state pension funds’ expenditures). https://ru.investing.com/news/%D0%9E%D0%B1%D1%89%D0%B8%D 0%B5-%D0%9D%D0%BE%D0%B2%D0%BE%D1%81%D1%82%D0%B8/article-530797. Accessed 10 Feb 2018 Kokorin A, Korppoo A (2017) Russia’s Ostrich approach to climate change and the Paris Agreement. Centre for European Policy Studies 40 Mälksoo L, Benedek W (eds) (2017) Russia and the European Court of Human Rights: the Strasbourg effect. Cambridge University Press, Cambridge Ministry for Economic Development of the Russian Federation (2013) Forecast for the Long-term Social and Economic Development of the Russian Federation up to 2030 Ministry for Finance of the Russian Federation (2015) Implementation of the Federal Budget and Budgets of the Budget System of the Russian Federation for 2014. Ministry for Finance of the Russian Federation, Illustrated Information Publication Ministry for Finance of the Russian Federation (2017) Implementation of the Federal Budget and Budgets of the Budget System of the Russian Federation for 2016. Ministry for Finance of the Russian Federation, Illustrated Information Publication Newell J, Henry L (2017) The state of environmental protection in the Russian Federation: a review of the post-Soviet era. Eurasian Geogr Econ:1–23 OECD (2006) Environmental policy and regulation in Russia: the implementation challenge. OECD, Paris Pomeranz W (2012) Uneasy partners: Russia and the European Court of Human Rights. Hum Rights Brief 19(3):17–21 Pomeranz W, Gutbrod M (2012) The push for precedent in Russia’s judicial system. Rev Cent East Eur Law 37(1):1–30 Rajamani L (2016) The 2015 Paris Agreement: interplay between hard, soft and non-obligations. J Environ Law 28(2):337–348 Rowe E (2009) Who is to blame? Agency, causality, responsibility and the role of experts in Russian framings of global climate change. Europe-Asia Stud 61:593–619 Senova O, Uspenskaya E (2017) Climate change: what regions can do. Russian Socio-­ Ecological Union Shuvalova M (2018) Do kontsa goda budut sozdany vse usloviya dlya primeneniya nailuchshih dostupnyh tehnologiy i novoy systemy obrascheniya s tverdymy kommunalnymy othodami

Opportunities for Climate Litigation in Russia: The Impossibility of the Possible

537

(Before the end of the year, conditions will be in place for the application of the best available technologies and a new system of solid waste management). In: Garant.ru. https://www.garant. ru/news/1169471/. Accessed 12 Mar 2018 Tarasenko P, Chernenko E, Davydova A (2017) Burya posle duri (Storm after Folly). In Kommersant. https://www.kommersant.ru/doc/3317347. Accessed 10 Aug 2018 The Siberian Times reporter (2016) Mass reindeer deaths if no early warning system for “climate change” freak freezes. http://siberiantimes.com/other/others/news/n0789-mass-reindeerdeaths-if-no-early-warning-system-for-climate-change-freak-freezes/. Accessed 10 Feb 2018 Tulaeva S, Tysiachniouk M (2017) Benefit-sharing arrangements between oil companies and indigenous people in Russian northern regions. Sustainability 9(1326):1–21 UN Environment (2017) The status of climate change litigation  – a global review. UN Environment, Nairobi Vasilyeva M (2017) Legal problems of compensating for the harm to health caused by environmental law violations. Sudya (Judge) 9:15 Yamineva Y (2013) Climate law and policy in Russia: a peasant needs thunder to cross himself and wonder. In: Hollo E, Kulovesi K, Mehling M (eds) Climate change and the law. Springer, pp 551–556 Dr Yulia Yamineva  is a Senior Researcher at the Centre for Climate Change, Energy and Environmental Law of the University of Eastern Finland Law School. She holds the title of docent in Climate Law and Policy. She has published on law and governance of climate change and of air pollution, and the science-policy interface in such journals as Transnational Environmental Law, Environmental Science and Policy, Review of European, Comparative and International Environmental Law (RECIEL), Nature Climate Change, and others. Previously, Yamineva worked for the UN Climate Change Convention Secretariat and the International Institute for Sustainable Development. Yamineva holds a PhD in International Studies from the University of Cambridge.

Climate Change Litigation in Ukraine Mariia Muravska

Abstract  The consequences of climate change on Ukrainian territory are getting more and more tangible. Despite this, climate change policy has not been developed. Only some policy measures that contribute to combating climate change are regulated under legal acts in an environmental sphere. At the same time, Ukrainian national legislation gives individuals a right to bring a case before a court on climate change related violations. However, climate change litigation in Ukraine is scarce, due to low activity of individuals in the protection of their climate rights in courts as well as lack of climate change policy. An additional reason for limited climate change litigation is low awareness of individuals of the climate change challenge, how climate change affects them, and their role in solving the problem, etc. Existing climate change litigation practice in Ukraine is considered here and the legal grounds and legal strategies leading to courts’ decisions are revealed. Additionally, proposals for “effective” climate change litigation are presented. Finally, factors that call such “effectiveness” into question in the near future are identified.

1 Introduction Consequences of climate change are getting more and more tangible in Ukraine. This is manifested in abnormal weather conditions with all kinds of dangerous and spontaneous meteorological phenomena,1 increase of droughts, and problems of water supply,2 etc. These influence all spheres of human life. Thus, Ukraine should be interested in providing policy measures directed at combating climate change.  Ukrainian Hydrometeorological Center. Information server: https://meteo.gov.ua/ua/33345/zmi/ articles/read/61, consulted on the 16.09.2018. 2  Udod (2015), p. 107. 1

M. Muravska (*) Verkhovna Rada of Ukraine, Central Scientific Experts Office, Department on Agrarian, Environmental, Natural Resources Issues, Kyiv, Ukraine © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_28

539

540

M. Muravska

Ukraine is a party to several international instruments aimed at combating climate change, including, inter alia, the Vienna Convention for the Protection of the Ozone Layer3 (since 1985), the Montreal Protocol on Substance that Deplete the Ozone Layer4 (since 1988), and the Kyoto Protocol5 (since 2005). In 2016, Ukraine became a party to the Paris Agreement6 and presented its INDC,7 according to which the country is committed to not exceed 60% of 1990 GHG emissions level in 2030. At the same time, its greenhouse gas (GHG) emissions amounted to 42.6% of the 1990 level in 2012. This means that, unlike the obligations under taken by Ukraine when signing the Paris Agreement and the adverse consequences of climate change on its territory, it is committed to reducing its emissions by approximately 20% in 2030. Besides, according to the Climate Action Tracker (an independent scientific analysis produced by three research organisations) “there is some uncertainty surrounding Ukraine’s INDC and its implementation of its climate policies, in part because of its political instability, and the Government has stated that it will revise its INDC after “restoration of its territorial integrity and state sovereignty”.8 This attitude of Ukraine to its obligations under the Paris Agreement demonstrates that the climate change challenge is not considered a national priority. This has resulted in limited climate change litigation in Ukraine.

2 Climate Change Law in Ukraine Articles 50 (1) and 66 of the Constitution of Ukraine9 provide for a right to life and a healthy environment and an obligation not to cause harm to nature, respectively. Persons guilty of violations of the requirements that result in the violation of the right of citizens to a healthy environment are liable under article 68 (2 “a”) of the Law “On environmental protection”.10

 United Nations / the Vienna Convention for the Protection of the Ozone Layer, opened for signature 22 March 1985, OJ L 297 (entered into force 22 September 1988). 4  United Nations / the Montreal Protocol on Substance that Deplete the Ozone Layer, opened for signature 16 September 1987, OJ L 297 (entered into force 26 January 1989). 5  Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for signature 16 March 1998, OJ L 358 (entered into force 16 February 2005). 6  Paris Agreement, opened for signature 12 December 2015, OJ L 282 (entered into force 4 November 2016). 7  Intended Nationally Determined Contribution (INDC) of Ukraine to a New Global Climate Agreement (30 September 2015). 8  Climate Action Tracker, Ukraine: https://climateactiontracker.org/countries/ukraine/, consulted on the 15.09.2018. 9  Constitution of Ukraine [1996] with amendments, Official Bulletin of the V erkhovna Rada of Ukraine № 30. 10  Law of Ukraine of 25.06.1991 № 1264-XII “On environmental protection” [1991] Official Bulletin of the Verkhovna Rada of Ukraine № 41. 3

Climate Change Litigation in Ukraine

541

The Constitution guarantees the right to bring a case before a court in order to protect constitutional rights and freedoms (8 (3)). However, Ukrainian laws do not set privileges on an amount of court fees when bringing a case on environmental and climate change matters. The provision of the Law “On court fee”,11 under which a court has a right to take into account the property status of the parties in a court process in order to reduce the amount of the court fee or free them from payment (art. 8 (2)), is prejudicial to individuals bringing such actions. This reduces opportunities for individuals to protect their rights against climate-related violations in courts. In spite of the above constitutional rights, laws aimed at regulating climate change activity in Ukraine had not been adopted by mid-2018. Only some legal acts with an environmental focus contain some policy measures that contribute to achieving the targets of the Paris Agreement. Thus, in 1992, the Law “On protection of atmospheric air”12 was passed. It prescribes that activity that is done for economic purposes and results in artificial changes in an atmosphere can be carried out only under permission that is issued by the Ministry of Ecology and Natural Resources of Ukraine. Besides, norms regulating the amount of pollutants in exhaust gases were set. Nevertheless, most experts express an opinion that these norms exist only on paper and are rather declarative.13 On 1 January, 2018, the National plan on reduction of emissions from large combustion facilities entered into force.14 However, results of its implementation can be analysed only with time. Environmental taxation is regulated under the Tax Code of Ukraine15 that entered into force in 2012. It provides taxation of air pollutants that are emitted into the atmosphere by stationary sources. Since 2015, the environmental taxes on emissions of pollutants caused by vehicles had been abolished as a result of the entry into force of the Law “On Amendments to the Tax Code of Ukraine and certain legal acts of Ukraine concerning tax reform”.16 Besides, in contrast to the previous laws, the Tax Code does not provide for an increase in the rates of taxes when environmental pollution exceeds the set limits.17 Thus, current legislation is not sufficient to reduce GHG emissions that are the major contributor to climate change. In some measure, disregard for the climate  Law of Ukraine of 08.07.2011 № 3674-VI “On court fee” [2011] Official Bulletin of Ukraine № 59. 12  Law of Ukraine of 16.10.1992 № 2707-XII “On the protection of atmospheric air” [1992] Official Bulletin of the Verkhovna Rada of Ukraine № 50. 13  Doskich (2015). 14  Order of the Cabinet of Ministers of Ukraine of 08.11.2017 № 796-р “On National plan on reduction of emissions from large combustion facilities” [2017] Governmental Courier № 226. 15  Tax Code of Ukraine of 02.10.2010 № 2755-VI [2010] Official Bulletin of the Verkhovna Rada of Ukraine №№ 13-17. 16  Law of Ukraine of 28.12.2014 № 71-VIII “On Amendments to the Tax Code of Ukraine and certain legal acts of Ukraine concerning tax reform” [2014] Official Bulletin of the Verkhovna Rada of Ukraine № 7-8. 17  Naidenko (2017), p. 631. 11

542

M. Muravska

challenge is a consequence of the fact that Ukraine met its obligations under the Kyoto Protocol, reducing its level of emissions by approximately 60% compared with its 1990 emissions, according to the INDC of Ukraine. However, this emission reduction was a result of the economic recession that took place after the collapse of the USSR. During the period from 1990 to 2000, Ukraine drastically reduced metallurgical, chemical, and machine-building production18 that caused GHG emission reduction. The subsequent resumption of industry has not resulted in a return to the pre-1990 quantity of GHG emissions. Instead of development of climate change policy, Ukraine focused on the sale of quotas that it obtained under the Kyoto protocol.19 Despite insufficient legal protection of the environment and lack of climate change policy, Ukraine has complied with a number of procedural obligations regarding the development of major infrastructure, such as public participation and environmental impact assessment. Thus, Ukraine has been a party to the Convention on access to information, public participation in decision-making, and access to justice in environmental matters20 since 1999.21 Its requirements were implemented in the Law “On environmental protection”. Additionally, the Law “On environmental impact assessment”22 was adopted in May 2017 and put into operation in December 2017. It prescribes obligatory assessment of the climate impact of a planned activity. This law gives a wider range of opportunities to bring cases on potential climate change-related violations in order to prevent them. In 2014, Ukraine ratified the Ukraine–European Union Association Agreement,23 which entered into force in September 2017. Currently, there is a gradual process to meet the conditions of the Agreement by bringing Ukrainian legislation in line with the EU legislation, including climate change legislation. In December 2016, the Ukrainian Government (the Cabinet of Ministers of Ukraine) adopted a Conception on implementation of the state policy on climate change for the period up to 2030.24 According to the Conception, the state policy on  Chernykh (2011).  Ibid. 20  Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention), 28 June 1998, 38 ILM 517 (entered into force 30 October 2001). 21  Law of Ukraine of 06.07.1999 № 832-XIV “On ratification of the Convention on access to information, public participation in decision-making and access to justice in environmental matters” [1999] Official Bulletin of the Verkhovna Rada of Ukraine № 34. 22  Law of Ukraine of 23.05.2017 № 2059-VIII “On environmental impact assessment” [2017] Official Bulletin of the Verkhovna Rada of Ukraine № 29. 23   Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Ukraine, of the other part, OJ L 161 (entered into force 1 September 2018). 24  Order of the Cabinet of Ministers of Ukraine of 07.12.2016 № 932-р “Conception on implementation of the state policy on climate change for the period by 2030” [2016] Official Bulletin of Ukraine № 99. 18 19

Climate Change Litigation in Ukraine

543

climate change is fragmented and considered a part of environmental policy. Besides, it emphasises that lack of a systematic approach to addressing the climate change challenge prevents the government from taking management decisions aimed at ensuring prevention of and adaptation to climate change at a scale of the whole economy of the country. At the same time, according to the Conception, the Ministry of Ecology and Natural Resources of Ukraine was empowered to work out a draft plan of measures necessary for the implementation of the Conception. The plan was adopted by the Ukrainian Government in December 2017.25 According to the plan, necessary climate legal acts have to be worked out by 2018–2020. Besides, the Minister of Ecology and Natural Resources, Ostap Semerak, confirmed that the Ministry is currently working out a package of legal and technical solutions necessary to implement systems for monitoring and reporting on GHG emissions, in accordance with the requirements of European legislation.26 In addition, in July 2018, the Minister announced the transition of the Ukrainian economy to the low carbon development model, which envisages reduction of GHG emissions, abandoning fossil fuels, and investing in renewable energy sources. However, practical results of these initiatives will have to be evaluated over time.

3 Climate Change Litigation in Ukraine 3.1 Claims Against the Government As climate change policy is not developed, there is no litigation practice directed at the protection of the right to a safe life and healthy environment due to natural processes (rising sea levels, etc.) caused by climate change. However, several cases have been brought against the Government and other state authorities concerning non-compliance by Ukraine with international climate obligations. In all such cases, the Plaintiff was the same—an International charitable organization “Environment-People-Law” (the EPL). Two such cases will be discussed below to show the problems that individuals meet when bringing claims and legal strategies leading to the courts’ decisions. One case was brought in 2011 against the Ukrainian Government, Ministry of Ecology and Natural Resources of Ukraine, and State Environmental Investment Agency of Ukraine. Courts of three instances heard the case: District Kyiv  Decree of the Cabinet of Ministers of Ukraine of 06.12.2017 № 878-р “On Approval of the Action Plan on Execution of the Concept of Implementation of State Climate Change Policy until 2030” http://zakon3.rada.gov.ua/rada/show/878-2017-р [2017] Uryadovy Courier № 235. 26  Semerak Ostap: new tools for stimulating greenhouse gas emission reductions will emerge in Ukraine (2018), Government portal, Official website, www.kmu.gov.ua/ua/news/ostap-semerakvukrayini-zapracyuyut-novi-instrumenti-stimulyuvannya-zmenshennya-vikidiv-parnikovih-gaziv, consulted on the 15.09.2018. 25

544

M. Muravska

Administrative Court27 (the court of first instance), Kyiv Court of Appeal28 (the court of second instance) and Supreme Administrative Court of Ukraine29 (the court of third instance). The Plaintiff claimed: –– against the Ukrainian Government, to: (1) declare illegal its inactivity in providing policy development in a sphere of atmospheric air protection; (2) oblige it to work out and adopt a procedure on issuing permits and set greenhouse gas emissions limits; (3) prepare and publish information on implementation of measures that were envisaged under the National Action Plan of measures on implementation of the Kyoto Protocol to the United Nations Framework Convention on Climate Change30 (the National Action Plan). This requirement was prescribed under the Decree of the President of Ukraine of 01.08.2002 № 683 “On additional measures to ensure transparency in the activities of state authorities”31; –– against the Ministry of Ecology and Natural Resources of Ukraine, to: (1) declare illegal its inactivity in implementing legislation on the regulation of a mechanism of reduction of greenhouse gas emissions; (2) oblige it to work out and adopt rules, standards, regulations, and methodology on the regulation of a mechanism of reduction of greenhouse gas emissions; –– against the State Environmental Investment Agency of Ukraine, to: (1) declare illegal its inactivity in implementing a state policy on the regulation of negative anthropogenic influence on climate change and making suggestions on formation of this policy, as regards the mechanism of reduction of greenhouse gas emissions; (2) oblige it to work out and submit to the Ukrainian Government and Ministry of Ecology and Natural Resources of Ukraine propositions on issuing permits and setting greenhouse gas emissions limits for enterprises, institutions, and organizations.

 International charitable organization “Environment-People-Law” vs. Cabinet of Ministers of Ukraine, Ministry of Ecology and Natural Resources of Ukraine, State Environmental Investment Agency of Ukraine [2011] District Kyiv Administrative Court № 2а-6990/11/2670, http://reyestr. court.gov.ua/Review/18904279, consulted on the 23.12.2017. 28  International charitable organization “Environment-People-Law” vs. Cabinet of Ministers of Ukraine, Ministry of Ecology and Natural Resources of Ukraine, State Environmental Investment Agency of Ukraine [2012] Kyiv Court of Appeal № 2а-6990/11/2670, http://reyestr.court.gov.ua/ Review/23566211, consulted on the 23.12.2017. 29  International charitable organization “Environment-People-Law” vs. Cabinet of Ministers of Ukraine, Ministry of Ecology and Natural Resources of Ukraine, State Environmental Investment Agency of Ukraine [2013] Supreme Administrative Court of Ukraine № 2а-6990/11/2670, http:// reyestr.court.gov.ua/Review/34684361, consulted on the 23.12.2017. 30  Order of the Cabinet of Ministers of Ukraine of 18.08.2005 №346-р “National Action Plan of measures on implementation of the Kyoto Protocol to the United Nations Framework Convention on Climate Change” [2005] with amendments, http://zakon2.rada.gov.ua/laws/show/346-2005-р, consulted on the 18.12.2017. 31  Decree of the President of Ukraine of 01.08.2002 № 683 “On additional measures to ensure transparency in the activities of state authorities” [2002] Official Bulletin of Ukraine № 31. 27

Climate Change Litigation in Ukraine

545

The court of first instance met the claims partially. It obliged the Ukrainian Government to prepare and publish information on implementation of measures that were envisaged under the National Action Plan within 3 months of its decision entering into force. All other claims were rejected. The Kyiv Court of Appeal upheld the decision. However, the Supreme Administrative Court of Ukraine satisfied the cassation claim of the Ukrainian Government and overturned the obligation to publish information on implementation of measures envisaged under the National Action Plan. The legal ground and legal strategies leading to the courts’ decisions are as ­follows. The court of first instance started with analysis of legislation in order to determine the standing of an NGO to bring a case against state authorities. Thus, as a result of analyses of article 21 of the Law “On environmental protection”, which prescribed the rights of NGOs in the sphere of environmental protection, and the statute of the EPL, the court concluded that the Plaintiff had a right to bring a case before a court against state authorities. In addition, the court of first instance referred to articles 2 and 6 of the Code of Administrative Justice of Ukraine.32 According to article 6 of the Code, each person had a right to bring a case before an Administrative Court if he/she/it considered that his/her/its rights, freedoms and interests were violated by a decision, activity, or inactivity of an authority. According to article 2 (1) of the same Code, a task of an administrative legal procedure was the protection of the rights, freedoms, and interests of natural persons, and the rights and interests of legal persons in a public sphere. At the same time, the Plaintiff referred to paragraph 2 article 16 of the Law “On the protection of atmospheric air”33 in order to explain that its “protected under law interest” in the protection and preservation of the environment was violated. According to this paragraph, legal persons were obliged to cut down and in future to cease completely the production and use of chemicals that harmfully affect the ozone layer, to strive to reduce emissions of substances if their accumulation in the air led to negative climate change. Further, the court of first instance analysed the meaning of the phrase “protected under law interest” in order to explain conformity of the claims of the Plaintiff with the exercise of powers by the state authorities. It referred to the meaning of this phrase that was explained by the Constitutional Court of Ukraine in its Decision No 18-pn/2004 of 01.12.2004.34 The court of first instance interpreted its meaning as an intention to use specific tangible and/or intangible benefit, a simple legitimate permission and an independent object of judicial protection. It was conditioned on the  Code of Administrative Justice of Ukraine of 06.07.2005 № 2747-IV [2005] Official Bulletin of the Verkhovna Rada of Ukraine № 35. 33  Law of Ukraine of 16.10.1992 № 2707-XII “On the protection of atmospheric air” [1992] Official Bulletin of the Verkhovna Rada of Ukraine № 50. 34  People’s Deputies of Ukraine on an official interpretation of certain provisions of paragraph 1 article 4 of the Civil Procedure Code of Ukraine (the case on protected under law interest) [2004] Constitutional Court of Ukraine № 1-10/2004, http://zakon2.rada.gov.ua/laws/show/v018p710-04, consulted on the 18.12.2017. 32

546

M. Muravska

general ­ content of an objective and not mediated in subjective right directly. Referring to this interpretation, the court of first instance agreed with the statement of the Plaintiff that it had “protected under law interest” in the protection of the environment and had a right to bring a case before a court against the state authorities in order to protect this interest. However, the Supreme Administrative Court of Ukraine did not agree with the interpretation of the phrase “protected under law interest” that was given by the court of first instance. That influenced its decision. Analysing the same Decision of the Constitutional Court of Ukraine, it proved that one of the characteristics of an interest as an independent object of court protection was that it was not directly mediated in subjective right. At the same time, the claim to oblige the Ukrainian Government to work out and publish information on the implementation of measures envisaged under the National Action Plan was a requirement that was directed towards protection of such subjective right as a right to information. However, the Plaintiff did not prove that it made a request to the Ukrainian Government in order to receive information on the status of implementation of measures envisaged under the National Action Plan that would result in a legal obligation for the Ukrainian Government to submit such information. At the same time, according to the National Action Plan, the Ukrainian Government was not obliged to publish information on the status of implementation of the plan. Besides, the Supreme Administrative Court of Ukraine referred to the Decree of the President of Ukraine “On additional measures to ensure transparency in the activities of public authorities”. According to the Decree, the Ukrainian Government was obliged to work out and publish a report on the results of the work of the Government for public discussions. Nevertheless, the Government had to choose itself the ways in which it would be done, inter alia, in spheres of environmental protection, environmental safety and use of natural resources. According to article 19 of the Constitution of Ukraine, state authorities were obliged to act only according to duties and in a way that was prescribed under the Constitution and laws of Ukraine. Taking into account the above, the Supreme Administrative Court of Ukraine proved that the Government was not obliged to publish information on the status of implementation of measures envisaged under the National Action Plan. The court of first instance refused to grant the rest of the claims as a result of analysis of powers of the Government that were prescribed under the Law “On environmental protection” and the Law “On the protection of atmospheric air”. These laws did not oblige it to work out and adopt a procedure for issuing permits or to set greenhouse gas emission limits. As a result of analysis of legal acts that set the powers of the Ministry of Ecology and Natural Resources of Ukraine, the court of first instance concluded that the Plaintiff did not emphasise specific rules, standards, and methodologies on the regulation of the mechanism of reduction of greenhouse gas emissions, which the Ministry had to work out and had not worked out. Besides, the Plaintiff did not specify legal acts under which it had these powers. This explanation was the ground for the decision of the court of first instance, according to which the Ministry’s

Climate Change Litigation in Ukraine

547

inactivity in implementing the legislation on regulation of the mechanism of reduction of greenhouse gas emissions could not be declared illegal. Relying on an analysis of legal acts that set out the powers of the State Environmental Investment Agency of Ukraine and an explanation of its representative, the court of first instance concluded that the Agency did not have the powers to work out and submit to the Ukrainian Government and Ministry of Ecology and Natural Resources of Ukraine propositions on issuing permits and setting GHG emission limits for enterprises, institutions, and organizations. Besides, the Agency and the Ministry worked out several bills. Thus, in the court’s opinion, it did not have a legal ground to satisfy the Plaintiff’s claim to declare illegal the Agency’s inactivity in implementing the state policy on the regulation of negative anthropogenic influence on climate change and making suggestions on the formulation of this policy. Another case that was brought by the EPL versus the Ministry of Ecology and Natural Resources of Ukraine in 2013 (at that period it was called the Ministry of Environmental Protection of Ukraine) was more successful. It also was heard in courts of three instances: District Kyiv Administrative Court35 (the court of first instance), Kyiv Court of Appeal (the court of second instance)36 and Supreme Administrative Court of Ukraine(the court of third instance).37 The Plaintiff sought a declaration of illegality regarding the inactivity of the Ministry as a coordinator of measures in fulfilment of Ukraine’s obligations under the United Nations Framework Convention on Climate Change (the UN FCCC) and Kyoto Protocol, inter alia: –– on implementation of the climate protection policy in order to reduce GHG ­emissions in Ukraine; –– on fulfilment of paragraphs 1 (3, 5, 6), 4 (3), 5 (2, 3), 11 (1, 4), 13, 14, 15, 16 of the National Action Plan; –– on fulfilment of the Decision of the National Security and Defence Council of Ukraine of 20.07.2007 № 658/2007 “On the state and problems in implementa-

 International charitable organization “Environment-People-Law” vs. Ministry of Ecology and Natural Resources of Ukraine [2013] District Kyiv Administrative Court № 826/6201/13-а, http:// reyestr.court.gov.ua/Review/32639259, consulted on the 23.12.2017. 36  International charitable organization “Environment-People-Law” vs. Ministry of Ecology and Natural Resources of Ukraine [2013] Kyiv Court of Appeal № 826/6201/13-а, http://reyestr.court. gov.ua/Review/35749736, consulted on the 23.12.2017. 37  International charitable organization “Environment-People-Law” vs. Ministry of Ecology and Natural Resources of Ukraine [2014] Supreme Administrative Court of Ukraine № 826/6201/13-а, http://reyestr.court.gov.ua/Review/39698835, consulted on the 23.12. 2017. 35

548

M. Muravska

tion of the UN FCCC by Ukraine”38 that was put into operation by the Decree of the President of Ukraine of 20.07.2007 № 658/200739; –– on fulfilment of the Decree of the President of Ukraine of 12.09.2005 No 1239/2005 “On the coordination of measures in order to implement Ukraine’s obligations under the United Nations Framework Convention on Climate Change and Kyoto Protocol to the United Nations Framework Convention on Climate Change”.40 The court of first instance met the claims partially, and its decision was upheld by the courts of second and third instances. Thus, the court of first instance proved that any person had a right to bring a case against illegal inactivity regarding fulfilment of Ukraine’s international obligations in an environmental sphere, inter alia, according to the UN FCCC and Kyoto Protocol. The Plaintiff had this right, as it was an international charitable organization, which task was to assist natural and legal persons in the protection of their environmental rights, inter alia, through public environmental control. Relying on analysis of the UN FCCC and Kyoto Protocol, the court of first instance concluded that these acts were declarative and had to be implemented under national legislation. Accordingly, activity and/or inactivity of the Ministry could be evaluated only as a result of analysis of the fulfilment of its obligations imposed on it under the National Action Plan. Firstly, the court of first instance analysed the powers of the Ministry as a coordinator of measures directed on implementation of the provisions of the UN FCCC and Kyoto Protocol. It was appointed as the coordinator under the Decree of the President of Ukraine of 12.09.2005 № 1239/2005. The powers of the Ministry as the coordinator were prescribed under the Resolution of the Cabinet of Ministers of Ukraine of 10.04.2006 No 468.41 According to this Resolution, the coordination mechanism was defined as follows: Central and local authorities submitted to the Ministry information on quantity of consumption of all types of fuel, all types of industrial and agricultural activities, which resulted in emissions, propositions on working out the National and regional climate change mitigation plans. Then, the Ministry submitted this information to the Secretariat of the UN FCCC. However, the Ministry was not empowered to control an activity of other  Decision of the National Security and Defence Council of Ukraine of 20.07.2007 № 658/2007 “On the state and problems in implementation of the UNFCCC by Ukraine” [2007] Official Bulletin of the President of Ukraine № 21. 39  Decree of the President of Ukraine of 20.07.2007 № 658/2007 “the Decision of the National Security and Defence Council of Ukraine of 20.07.2007 № 658/2007 “On the state and problems in implementation of the UNFCCC by Ukraine” [2007] Official Bulletin of the President of Ukraine № 21. 40  Decree of the President of Ukraine of 12.09.2005 № 1239 “On the coordination of measures in order to implement Ukraine’s obligations under the United Nations Framework Convention on Climate Change and the Kyoto Protocol to the United Nations Framework Convention on Climate Change” [2005] Governmental Courier № 175. 41  Resolution of the Cabinet of Ministers of Ukraine of 10.04.2006 № 468 “On a procedure for the coordination of measures on implementation of obligations of Ukraine under the United Nations Framework Convention on Climate Change and Kyoto Protocol” [2006] Official Bulletin of Ukraine № 15. 38

Climate Change Litigation in Ukraine

549

state bodies that were empowered to implement specific measures under the National Action Plan. In the court’s opinion, the above duties of the Ministry were not a ground to assess whether the Ministry properly executed its powers as the coordinator of measures aimed to implement the provisions of the UN FCCC and Kyoto Protocol. In this part, the claim was not satisfied. Further, the court of first instance analysed the Decision of the National Security and Defence Council of Ukraine of 20.07.2007 № 658/2007 “On the state and problems in implementation of the UN FCCC by Ukraine”. According to this Decision, the Ministry was empowered to improve the methodological provision in order to set an amount of GHG emissions and review the procedure of the state registration of objects that had or may have an adverse effect on human health and the air, types and quantity of pollutants that were emitted in the air. The court was not provided with evidence that the Ministry had fulfilled these obligations. That gave the court the ground to declare illegal inactivity of the Ministry as the coordinator of measures on fulfilment of Ukraine’s obligations under the UN FCCC and Kyoto Protocol. However, the Decision of the National Security and Defence Council of Ukraine of 20.07.2007 № 658/2007 was repealed later in 2014 by the Decision of the same state authority of 28.04.2014 № 658/200742 that was put into operation by the Decree of the President of Ukraine of 06.06.2014 №504/2014.43 Finally, the court of first instance analysed the status of implementation of the National Action Plan by the Ministry. As the court was not provided with evidence on implementation of measures that were necessary in order to fulfil the National Action Plan, it concluded that the Ministry did not implement paragraphs 1 (3, 5, 6), 4 (3), 5 (2, 3), 11 (1, 4), 13, 14, 15, 16 of the National Action Plan. That became a ground for satisfaction of the claim in this part in order to oblige the Ministry to take necessary measures and fulfill these provisions of the National Action Plan. On 14 January 2014, the District Kyiv Administrative Court issued a writ of execution № 826/6201/13-а. Later in November 2014, the Ministry brought a case with a claim to postpone the execution of the writ. The Ministry explained that it could not fulfil the provisions of the National Action Plan because of lack of necessary legal acts. Besides, a new draft National Action Plan that prescribed a longer period for the implementation of its provisions had been worked out. This case was heard in the courts of three instances: District Kyiv Administrative Court44 (the

 Decision of the National Security and Defence Council of Ukraine of 28.04.2014 № 658/2007 “On the repeal of certain Decisions of the National Security and Defence Council of Ukraine” [2007] Official Bulletin of Ukraine № 47. 43  Decree of the President of Ukraine of 06.06.2014 № 504/2014 ‘On the Decision of the National Security and Defence Council of Ukraine of 28.04.2014 № 658/2007 “On the repeal of certain Decisions of the National Security and Defence Council of Ukraine” and the repeal of some Decrees of the President of Ukraine’ [2014] Official Bulletin of Ukraine № 47. 44  International charitable organization “Environment-People-Law” vs. Ministry of Ecology and Natural Resources of Ukraine [2014] District Kyiv Administrative Court № 826/6201/13-а, http:// reyestr.court.gov.ua/Review/43641038, consulted on the 23.12.2017. 42

550

M. Muravska

court of first instance), Kyiv Court of Appeal (the court of second instance)45 and Supreme Administrative Court of Ukraine (the court of third instance).46 However, the courts of all three instances did not grant the claim. It is necessary to mention that despite the success of the EPL in winning the case the Ministry has not met all its obligations yet. The cases and legal acts that were analysed reveal that individuals in Ukraine have a right to bring a case against state authorities. However, there are other factors that complicate winning court processes and prevent successful fulfillment of courts’ decisions. One of the factors is lack of national laws that prescribe instruments for achieving the targets of international legal acts aimed at combating climate change. That becomes more important, given the fact that courts consider that international legal acts are declarative and do not create obligations for state authorities. The above narrows the range of possible claims. Inter alia, that does not permit claimants to accuse state authorities of non-fulfilment of their obligations to reduce GHG emissions. Another factor is the ambiguous meaning of rules of law and their various interpretation given by courts of different instances. Besides, state authorities do not always fulfill the obligations imposed on them by court decisions, so they often go unpunished. In order to address these challenges, climate change policy should be detached from environmental policy and relevant laws should be adopted that would set targets aimed at contributing more intensively to achieving the targets of the Paris Agreement. In addition, the role and powers of state and local authorities in ensuring the implementation of the policy should be defined clearly and fully and a stricter control on fulfillment of court decisions introduced.

3.2 Claims Against Public Bodies’ Decisions The right to bring a case against public bodies before a court is regulated by the above-described legislation. However, low awareness among people about the targets of the Paris Agreement, lack of climate change policy that would set emission reduction targets for Ukraine, lack of a clear mechanism for mitigation and adaptation to climate change, and current priority in solving other problems (economic, social, armed conflict, etc.) are some of the reasons that such cases have not yet been brought before the courts.

 International charitable organization “Environment-People-Law” vs. Ministry of Ecology and Natural Resources of Ukraine [2015] Kyiv Court of Appeal № 826/6201/13-а, http://reyestr.court. gov.ua/Review/42803346, consulted on the 23.12.2017. 46  International charitable organization “Environment-People-Law” vs. Ministry of Ecology and Natural Resources of Ukraine [2015] Supreme Administrative Court of Ukraine № 826/6201/13-а, http://reyestr.court.gov.ua/Review/43181611, consulted on the 23.12.2017. 45

Climate Change Litigation in Ukraine

551

3.3 Claims Against Private Actors Cases against private actors concern the protection of the constitutional right to a safe life and healthy environment and bring to an end an activity that adversely affects the environment. Due to lack of climate change policy in Ukraine, climate problems are not mentioned in such cases. However, they are interesting from a climate change litigation perspective as they reveal the legal ground and legal strategies leading to courts’ decisions in protecting this constitutional right. In 2008, a panel of judges of the Chamber of Civil Cases of the Appeal Court of Lviv region (the court of second instance) considered the following case.47 According to the decision of the court of second instance, in 2005, four persons brought a case before a court of first instance claiming a declaration of illegality against the inactivity of the state enterprise “Lvivvugilya”, an end to the activity of the mine “Vizeyska”, moral damage, charges for inability to perform ordinary activities, and per diem. The Plaintiffs explained their claims as follows. They lived in a house that was located at a distance of 100 m from the mine “Vizeyska” that belonged to the state enterprise “Lvivvugillya”. For 40 years, their family had been affected by the mine’s activity in the following way: the noise from the mine fan and pollutants in the air exceeding the permitted concentration. Besides, living in the sanitary protection zone was dangerous for their life and harmful to their health. For many years, the respondent had not fulfilled the requirements to organize a sanitary protection zone of the mine “Vizeyska” and resettle the Plaintiffs’ family. Finally, the Plaintiffs requested for temporary prohibition of mining. The court of first instance acknowledged illegal inactivity of the state enterprise “Lvivvugilya” on the organization of the sanitary protection zone of the mine “Vizeyska” and resettlement of the family. Besides, the Plaintiffs got compensation for moral damage. The rest of the claims were rejected. State enterprise “Lvivvugilya” brought a case before the Court of Appeal of Lviv region asking the court to overturn the decision of the court of first instance and adopt a new decision, because, in an opinion of the state enterprise, there was no tort composition in its actions. The court rejected the appeal of the state enterprise “Lvivvugilya” explaining as follows: Inactivity of the mine on the organization of the sanitary protection zone was illegal and contradicted article 114 of the Land Code of Ukraine and paragraphs 5.4 and 5.10 of an Order of the Ministry of Health of Ukraine of 19.06.1996 № 173 “State Sanitary Rules of Planning and Building of Settlements”.48 An excess of the permitted concentration of pollutants in the air contradicted article 19 of the Law

 Court of Appeal of Lviv region, case № 22ц-1089/08, [2008] http://www.reyestr.court.gov.ua/ Review/4586221, consulted on the 23.12.2017. 48  Order of the Ministry of Health of Ukraine of 19.06.1996 № 173 “State Sanitary Rules of Planning and Building of Settlements”, http://zakon.rada.gov.ua/laws/show/z0379-96, consulted on the 15.09.2018. 47

552

M. Muravska

“On ensuring sanitary and epidemic wellbeing of the population”.49 According to this article, atmospheric air in settlements must meet sanitary norms. The respondent violated article 24 of the Law “On atmospheric air protection” that prescribed an obligation to resettle a family if it was necessary. At the same time, the respondent had taken on such commitments and promised to resettle the family in an apartment previously, but had not fulfilled its promises. The court decided that such inactivity of the respondent violated the rights of the Plaintiffs to safe lives and a healthy environment and proper, safe, and healthy living conditions that were prescribed under the Constitution, article 293 of the Civil Code of Ukraine,50 and the European Convention for the Protection of Human Rights and Fundamental Freedoms.51 Nevertheless, the claims of the Plaintiffs to bring to an end the activity of the mine “Vizeyska” were not granted by the court of first instance. The Plaintiffs did not claim that before the court of second instance. Besides, the Plaintiffs did not mention in their claim a problem of adverse effect of the respondent’s activity on the climate. One of the major reasons is that specific climate change legislation had not been adopted and, as a result, was not at stake.

4 Effective Climate Change Litigation in Ukraine: The Way Forward Ukraine is a country with potential in the development of climate change litigation that would promote the protection of the rights of individuals to a safe and healthy climate. However, there are many legal and non-legal challenges that, in my opinion, impede successful climate change litigation in the nearest future. One of the biggest challenges that individuals meet is lack of clearly defined laws in Ukraine regarding climate change mitigation and adaptation measures. In order to address this challenge, climate change policy should be detached from environmental policy. Also, there should be set national targets aimed at contributing more intensively to achieving the targets of the Paris Agreement and relevant laws. Unfortunately, political instability currently prevents constructive dialog when working out and passing new laws. Another challenge is low awareness of individuals of the climate change problem, how climate change affects them, and their role in solving the problem. This is largely due to the priority of current economic and social problems that people experience in Ukraine and the problem of armed conflict. That reduces interest in problems  Law of Ukraine of 24.02.1994 № 4004-XII “On ensuring sanitary and epidemic wellbeing of the population” [1994] Official Bulletin of the Verkhovna Rada of Ukraine № 27. 50  Civil Code of Ukraine of 16.01.2003 № 435-IV [2003] Official Bulletin of the Verkhovna Rada of Ukraine № 40. 51  European Convention for the Protection of Human Rights and Fundamental Freedoms, open for signature 04.11.1950, European Treaty Series № 5 (entered into force 03.09.1953). 49

Climate Change Litigation in Ukraine

553

that could arise in the future. This challenge could be answered, inter alia, through the development of various educational programs. Finally, there is a distrust of the judicial system in Ukraine. This problem could be answered through systematic struggle against corruption.

5 Conclusion Unfortunately, climate change policy has not been developed in Ukraine. That negatively influences the fulfilment of its international obligations in this sphere and reduces opportunities for individuals to bring a case before a court, against public and/or private actors, regarding their alleged climate change related violations. In 2018, the Minister of Ecology and Natural Resources announced a start of development of climate change policy. However, today it is difficult to predict the results of this initiative. Due to permanent political instability, priorities in the development of Ukrainian policies depend mostly on the will of the political elite which is in power. Hopefully, someday Ukraine will overcome these and other challenges and adopt climate friendly policy protecting people’s right to live in a safe and healthy environment and increasing their opportunities to protect this right in courts.

References Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Ukraine, of the other part, OJ L 161 (entered into force 1 September 2018) Chernykh P (2011) Whether Ukraine was punished for discrediting of the idea of the Kyoto protocol? UNIAN, information agency, https://www.unian.ua/society/555280-ukrajinu-pokarali-zadiskreditatsiyu-ideji-kiotskogo-protokolu.html, consulted on the 15.09.2018 Civil Code of Ukraine of 16.01.2003 № 435-IV [2003] Official Bulletin of the Verkhovna Rada of Ukraine № 40 Climate Action Tracker, Ukraine: https://climateactiontracker.org/countries/ukraine/, consulted on the 15.09.2018 Code of Administrative Justice of Ukraine of 06.07.2005 № 2747-IV [2005] Official Bulletin of the Verkhovna Rada of Ukraine № 35 Constitution of Ukraine [1996] with amendments, Official Bulletin of the Verkhovna Rada of Ukraine № 30 Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention), 28 June 1998, 38 ILM 517 (entered into force 30 October 2001) Court of Appeal of Lviv region, case № 22ц-1089/08, [2008] http://www.reyestr.court.gov.ua/ Review/4586221, consulted on the 23.12.2017

554

M. Muravska

Decision of the National Security and Defence Council of Ukraine of 20.07.2007 № 658/2007 “On the state and problems in implementation of the UN FCCC by Ukraine” [2007] Official Bulletin of the President of Ukraine № 21 Decision of the National Security and Defence Council of Ukraine of 28.04.2014 № 658/2007 “On the repeal of certain Decisions of the National Security and Defence Council of Ukraine” [2007] Official Bulletin of Ukraine № 47 Decree of the Cabinet of Ministers of Ukraine of 06.12.2017 № 878-р “On Approval of the Action Plan on Execution of the Concept of Implementation of State Climate Change Policy until 2030” http://zakon3.rada.gov.ua/rada/show/878-2017-р [2017] Uryadovy Courier № 235 Decree of the President of Ukraine of 01.08.2002 № 683 “On additional measures to ensure transparency in the activities of state authorities” [2002] Official Bulletin of Ukraine № 31 Decree of the President of Ukraine of 12.09.2005 № 1239 “On the coordinator of measures in order to implement Ukraine’s obligations under the United Nations Framework Convention on Climate Change and the Kyoto Protocol to the United Nations Framework Convention on Climate Change” [2005] Governmental Courier № 175 Decree of the President of Ukraine of 20.07.2007 № 658/2007 “the Decision of the National Security and Defence Council of Ukraine of 20.07.2007 № 658/2007 “On the state and problems in implementation of the UN FCCC by Ukraine” [2007] Official Bulletin of the President of Ukraine № 21 Decree of the President of Ukraine of 06.06.2014 № 504/2014 ‘On the Decision of the National Security and Defence Council of Ukraine of 28.04.2014 № 658/2007 “On the repeal of certain Decisions of the National Security and Defence Council of Ukraine” and the repeal of some Decrees of the President of Ukraine’ [2014] Official Bulletin of Ukraine № 47 Doskich V (2015) Dangerous air: what Ukrainians breathe, UNIAN, information agency, https:// ecology.unian.ua/reduction/1216722-nebezpechne-povitrya-chim-dihayut-ukrajintsi.html, consulted on the 15.09.2018 European Convention for the Protection of Human Rights and Fundamental Freedoms, open for signature 04.11.1950, European Treaty Series № 5 (entered into force 03.09.1953) Intended Nationally Determined Contribution (INDC) of Ukraine to a New Global Climate Agreement (30 September 2015) International charitable organization “Environment-People-Law” vs. Cabinet of Ministers of Ukraine, Ministry of Ecology and Natural Resources of Ukraine, State Environmental Investment Agency of Ukraine [2011] District Kyiv Administrative Court № 2а-6990/11/2670, http://reyestr.court.gov.ua/Review/18904279, consulted on the 23.12.2017 International charitable organization “Environment-People-Law” vs. Cabinet of Ministers of Ukraine, Ministry of Ecology and Natural Resources of Ukraine, State Environmental Investment Agency of Ukraine [2012] Kyiv Court of Appeal № 2а-6990/11/2670, http://reyestr. court.gov.ua/Review/23566211, consulted on the 23.12.2017 International charitable organization “Environment-People-Law” vs. Cabinet of Ministers of Ukraine, Ministry of Ecology and Natural Resources of Ukraine, State Environmental Investment Agency of Ukraine [2013] Supreme Administrative Court of Ukraine № 2а-6990/11/2670, http://reyestr.court.gov.ua/Review/34684361, consulted on the 23.12.2017 International charitable organization “Environment-People-Law” vs. Ministry of Ecology and Natural Resources of Ukraine [2013] District Kyiv Administrative Court № 826/6201/13-а, http://reyestr.court.gov.ua/Review/32639259, consulted on the 23.12.2017 International charitable organization “Environment-People-Law” vs. Ministry of Ecology and Natural Resources of Ukraine [2013] Kyiv Court of Appeal № 826/6201/13-а, http://reyestr. court.gov.ua/Review/35749736, consulted on the 23.12.2017 International charitable organization “Environment-People-Law” vs. Ministry of Ecology and Natural Resources of Ukraine [2014] Supreme Administrative Court of Ukraine № 826/6201/13-а, http://reyestr.court.gov.ua/Review/39698835, consulted on the 23.12.2017 International charitable organization “Environment-People-Law” vs. Ministry of Ecology and Natural Resources of Ukraine [2014] District Kyiv Administrative Court № 826/6201/13-а, http://reyestr.court.gov.ua/Review/43641038, consulted on the 23.12.2017

Climate Change Litigation in Ukraine

555

International charitable organization “Environment-People-Law” vs. Ministry of Ecology and Natural Resources of Ukraine [2015] Kyiv Court of Appeal № 826/6201/13-а, http://reyestr. court.gov.ua/Review/42803346, consulted on the 23.12.2017 International charitable organization “Environment-People-Law” vs. Ministry of Ecology and Natural Resources of Ukraine [2015] Supreme Administrative Court of Ukraine № 826/6201/13-а, http://reyestr.court.gov.ua/Review/43181611, consulted on the 23.12.2017 Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for signature 16 March 1998, OJ L 358 (entered into force 16 February 2005) Law of Ukraine of 25.06.1991 № 1264-XII “On environmental protection” [1991] Official Bulletin of the Verkhovna Rada of Ukraine № 41 Law of Ukraine of 16.10.1992 № 2707-XII “On the protection of atmospheric air” [1992] Official Bulletin of the Verkhovna Rada of Ukraine № 50 Law of Ukraine of 24.02.1994 № 4004-XII “On ensuring sanitary and epidemic wellbeing of the population” [1994] Official Bulletin of the Verkhovna Rada of Ukraine № 27 Law of Ukraine of 06.07.1999 № 832-XIV “On ratification of the Convention on access to information, public participation in decision-making and access to justice in environmental matters” [1999] Official Bulletin of the Verkhovna Rada of Ukraine № 34 Law of Ukraine of 08.07.2011 № 3674-VI “On court fee” [2011] Official Bulletin of Ukraine № 59 Law of Ukraine of 28.12.2014 № 71-VIII “On Amendments to the Tax Code of Ukraine and certain legal acts of Ukraine concerning tax reform” [2014] Official Bulletin of the Verkhovna Rada of Ukraine № 7-8 Law of Ukraine of 23.05.2017 № 2059-VIII “On environmental impact assessment” [2017] Official Bulletin of the Verkhovna Rada of Ukraine № 29 Naidenko OE (2017) Problems of environmental assessment and solutions. Mukachevo State University, Mukachevo, Economy and society, № 8/2017, pp 627–633 Order of the Cabinet of Ministers of Ukraine of 18.08.2005 №346-р “National Action Plan of measures on implementation of the Kyoto Protocol to the United Nations Framework Convention on Climate Change” [2005] with amendments, http://zakon2.rada.gov.ua/laws/show/346-2005-р, consulted on the 18.12.2017 Order of the Cabinet of Ministers of Ukraine of 07.12.2016 № 932-р “Conception on implementation of the state policy on climate change for the period by 2030” [2016] Official Bulletin of Ukraine № 99 Order of the Cabinet of Ministers of Ukraine of 08.11.2017 № 796-р “On National plan on reduction of emissions from large combustion facilities” [2017] Governmental Courier № 226 Order of the Ministry of Health of Ukraine of 19.06.1996 № 173 “State Sanitary Rules of Planning and Building of Settlements”, http://zakon.rada.gov.ua/laws/show/z0379-96, consulted on the 15.09.2018 Paris Agreement, opened for signature 12 December 2015, OJ L 282 (entered into force 4 November 2016) People’s Deputies of Ukraine on an official interpretation of certain provisions of paragraph 1 article 4 of the Civil Procedure Code of Ukraine (the case on protected under law interest) [2004] Constitutional Court of Ukraine № 1-10/2004, http://zakon2.rada.gov.ua/laws/show/ v018p710-04, consulted on the 18.12.2017 Resolution of the Cabinet of Ministers of Ukraine of 10.04.2006 № 468 “On a procedure for the coordination of measures on implementation of obligations of Ukraine under the United Nations Framework Convention on Climate Change and Kyoto Protocol” [2006] Official Bulletin of Ukraine № 15 Semerak Ostap: new tools for stimulating greenhouse gas emission reductions will emerge in Ukraine (2018), Government portal, Official website, www.kmu.gov.ua/ua/news/ostapsemerak-v-ukrayini-zapracyuyut-novi-instrumenti-stimulyuvannya-zmenshennya-vikidivparnikovih-gaziv, consulted on the 15.09.2018 Tax Code of Ukraine of 02.10.2010 № 2755-VI [2010] Official Bulletin of the Verkhovna Rada of Ukraine №№ 13-17

556

M. Muravska

Udod NM (2015) Global climate change: the impact on international trade and means of regulation. Kyiv National University of Trade and Economics. Kyiv. Foreign Trade: Economics, Finance, Law № 3 (80), 105–113 Ukrainian Hydrometeorological Center. Information server: https://meteo.gov.ua/ua/33345/zmi/ articles/read/61, consulted on the 16.09.2018 United Nations / the Montreal Protocol on Substance that Deplete the Ozone Layer, opened for signature 16 September 1987, OJ L 297 (entered into force 26 January 1989) United Nations / the Vienna Convention for the Protection of the Ozone Layer, opened for signature 22 March 1985, OJ L 297 (entered into force 22 September 1988) Mariia Muravska  is a principal scientific adviser of the department on agrarian, environmental, natural resources issues of the central scientific experts office of the Verkhovna Rada of Ukraine. She holds her Ph.D. in Land Law from V.M. Koretsky Institute of State and Law (Kyiv, Ukraine). She has an experience in working out of land management projects, carrying out expertise of draft laws, participation in research projects on Land Law, Water Law. Her research interests focus on Environmental Law, Spatial Planning Law, Land Law, Water Law. She can be reached at [email protected].

Climate Change Litigation in Spain Rosa Mª. Fernández Egea, Sofia Simou, and Albert Ruda

Abstract  This chapter attends to provide an overview of climate change litigation in Spain even though this kind of litigation has not currently reached a significant level in this Country. In fact, important hurdles may exist under Spanish law, which may prevent climate change related claims from succeeding. The chapter analyses such obstacles in the light of previous cases, which are tangentially related to climate change or may, in the future, have some influence whenever climate change suits are filed.

1 Introduction: Spanish Climate Change Obligations Spain has assumed obligations of mitigation on climate change by ratifying the United Nations Climate Change Framework Convention (hereinafter, UNFCCC) and its two application agreements: the Kyoto Protocol of 2007 and the Paris Agreement of 2016. These international instruments establish the possibility that the parties jointly meet their commitments, as chosen by the European Union (EU), party to the Protocol together with its Member States. Thus, one has to look into EU Law on climate change in order to ascertain Spain’s concrete climate change Both Rosa and Sofia are co-authors of Sects. 2 and 3.1. The contribution of Rosa M. Fernández Egea is written within the Spanish Ministry of Economy and competition Research Grant on “La constitución climática global: gobernanza y Derecho en un contexto complejo” (CONCLIMA-DER2016-80011-P). This contribution is updated to October 2018. R. M. Fernández Egea (*) · S. Simou Universidad Autónoma de Madrid, Madrid, Spain e-mail: [email protected]; [email protected] A. Ruda Universitat de Girona, Girona, Spain e-mail: [email protected] © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_29

557

558

R. M. Fernández Egea et al.

obligations. It is also necessary to emphasize that Spain is not regulating beyond or in a more ambitious way than the standards raised at European level. Spain (as well as the UE) has only specific and legally binding obligations with regard to the two periods of application of the Kyoto Protocol.1 According to the most recent European Court of Justice case law,2 breaches of EU regulations on climate change can only be verified once the aforementioned compliance periods have been concluded.3 Therefore, only breaches of the Kyoto first period commitments could be brought currently before a tribunal. In this sense, Spain managed to meet its commitments within the EU, due to the decrease of greenhouse gases (hereinafter, GHG) emissions as a direct effect of the economic crisis and after spending over 800 million euros to buy GHG emissions credits from other countries.4 However, this does not mean that the Spanish climate change policies are satisfactory. The present chapter examines the state of climate change related litigation under Spanish Law. Firstly, after affirming that there is no climate litigation based on purely climatic legal grounds in Spain, it explores the existing judicial procedures to challenge public actions or omissions within the Spanish legal system as well as some issues of a procedural nature. Secondly, it refers to some areas of Law where there has been environmental litigation and that could serve as precedents for future climate change cases challenging the actions or omissions of public authorities in the field. Thirdly, it also analyses the existing remedies in the Spanish legal system for climate litigation against private actors.

 The distribution of the mitigation obligations of EU Member States, regarding the implementation of the Kyoto Protocol during the first compliance period (2008–2012) is settled by the Council Decision 2002/358/EC of 25 April 2002, concerning the approval, on behalf of the European Community, of the Kyoto Protocol to the United Nations Framework Convention on Climate Change and the joint fulfilment of commitments thereunder (OJ L 130, 15.5.2002, pp. 1–3). Spain pledged not to increase the level of GHG emissions by more than 15% above 1990 levels in the commitment period 2008 to 2012. The objectives for the second compliance period (2013–2020) are settled in the 2020 Climate and Energy Package, adopted in 2008. This package includes a 20% reduction of GHG emissions from 1990 levels (base year) throughout the EU and establishes that 20% of the EU energy should come from renewable energy sources and a 20% improvement should be achieved in energy efficiency. The Decision 406/2009/EC of the European Parliament and of the Council of 23.4.2009, on the effort of Member States to reduce their GHG emissions to meet the Community’s GHG emission reduction commitments up to 2020 (OJ L 140, 5.6.2009, pp. 136–148) sets the distribution of the reduction’s effort among Member States, corresponding to Spain 10% from 2005 levels. 2  ECJ Judgment of 20.10.2017 (Joined cases C-215/16, C-216/16, C-220/16 and C-221/16). 3  More information in the Website of the Spanish Agriculture, Fisheries and Environment Office: http://www.mapama.gob.es/es/cambio-climatico/temas/mitigacion-politicas-y-medidas/definicion-difusos.aspx. 4  El País, “España, entre los países que más pagan por cumplir Kioto”, (3.11.2013); available at: https://elpais.com/sociedad/2013/11/03/actualidad/1383513464_110043.htm)l. 1

Climate Change Litigation in Spain

559

2 Climate Change Litigation in Spain 2.1 The Current State of Climate Change Litigation in Spain Case law on purely climate change grounds is as of now practically non-existent in Spain. For this reason, it is hardly possible to draw safe conclusions regarding the scope of judicial control over public action or inaction in this area. In order to base a case of climate justice5 on solid legal grounds, there must be irrefutable proof of Spain’s failure to comply with its specific national or international obligations or commitments. Such a failure has not been identified yet regarding the first period of the Spanish commitments. Until the expiration of the second period of the Spanish obligations in the European and international context in 2020, in order for a climate change litigation scenario to have possibilities of success, it should be based on strong scientific evidence demonstrating the clear inability of Spain’s compliance with the commitments at the end of the period. Another reason for the lack of climate change litigation in Spain may be that current regulations on climate change are characterized by vagueness and abstraction. Due to the programmatic or soft law nature of the public action instruments in this field, a true creation of subjective rights that could be challenged before a court by individuals cannot be easily identified. Moreover, certain political administrative decisions, which may lead to an increase of GHG by a concrete action, can be compensated by others that entail a reduction of GHG within the national territory. This lack of precision in the form of public distribution of GHG emission sources makes it very difficult to question in court a public decision that would lead to an increase in GHG emissions. Indeed, in this discretionary political and administrative area, judicial control in Spain is limited to supervising discretionary administrative decisions when exercised: (a) in a manifest arbitrary and unreasonable manner, or (b) when procedural vices or questions referred to formal legality (motivation, procedure—participation, public hearing-) appear during the decision-making process. Even more so, if there is no proof of a complete failure of Spain to comply with any obligation resulting from any legally binding instrument. However, it is possible under Spanish law to challenge public inaction in court when a sufficiently concrete legal obligation to act is required and public authorities fail to perform it. In fact, Article 45 of the Spanish Constitution (hereinafter, CE) requires all public authorities to ensure environmental protection in Spain, which includes complying with the European and international rules in relation to reducing GHG emissions. Therefore, nothing seems to prevent climate change litigation from timidly starting to appear before the public law jurisdiction if the current policies and soft law framework acquire more regulatory force. One may thus explore some scenarios or directions in which cases of climate justice have begun to appear or are likely to arise in Spain.

 See, Rodríguez García (2016), p. 1 ff.; Burdiles Perucci (2016), pp. 251–267.

5

560

R. M. Fernández Egea et al.

2.2 Existing Litigation Procedures in the Spanish Legal System (Including Procedures Before the European Court of Justice) Action or inaction of public institutions can be challenged in Spain before the contentious-­administrative jurisdiction (jurisdicción contencioso-administrativa), where individuals, NGOs or other public institutions may have legal standing to sue. The plaintiffs may challenge: (a) acts or specific administrative decisions (e.g. the authorization of the location of a new airport involving an increase in GHG emissions); (b) a rule of general scope or regulatory nature (e.g., the urban plans that allow the construction of homes in the adjacent sea area); and (c) the administrative inaction (e.g. not to limit GHG emissions)6 where a legal obligation to act exists. Parties can therefore make the following claims before courts (Article 31.1 LJCA): (a) a statement against a concrete public action or omission for not being in accordance with Law; (b) the pretension of annulment in the case of general provisions that are contrary to climate change obligations; (c) a performance of obligations— when the inaction of the Administration is disputed. Moreover, there is a fourth option, which is the recognition of an individualized legal situation and its restoration, including damages compensation, where appropriate (Ar. 31.2 LJCA). Apart from that, there are also possibilities offered by the European legal system whenever Spain fails to comply with its international commitments on climate change. Therefore, Spain can be taken to court for not complying with its international responsibilities through the procedures before the ECJ: (a) the “infringement procedure” against Member States that do not comply with the inferred under EU Law obligations and (b) by applying, with the willing of the national courts, the “preliminary ruling procedure”—triggered by individuals that are disputing a national public action or omission before national courts for not being in accordance with EU Law. The first remedy (Art. 258 TFEU) can be brought before the ECJ by the Commission that is responsible for ensuring compliance with EU Law (or by other Member States, ex Art. 259 TFEU). This could be the case if Spain failed to comply with its commitments to reduce GHG emissions settled in the aforementioned EU Decisions, as well as for the violation of any of the obligations set forth by binding EU Law (individuals can file a complaint to the Commission). Until now, no procedure of this type has taken place against Spain. As regards the second type of proceedings (Art. 267 TFEU), preliminary ruling can be raised before the ECJ by a Spanish court in order to ask for clarifications concerning the interpretation of EU Law (mitigation and adaptation obligations) and to verify whether Spanish legislation or administrative action/inaction comply with EU Law. There are several ECJ preliminary rulings concerning climate change, two of them

 See Art. 25.1 of the Act governing the contentious-administrative jurisdiction (Ley de Jurisdicción Contencioso Administrativa 29/1998 of 13.7.1998). See also the Organic Act of the Spanish Constitutional Court (Ley Orgánica del Tribunal Connstitucional 2/1979 of 3 October 1979). 6

Climate Change Litigation in Spain

561

raised by Spanish judges.7 Both deal with the generation of electric power, and confirm the legality of the actions undertaken by the Spanish authorities in this matter. Nevertheless, the two procedures before the ECJ offer limited possibilities to individuals. The Commission, regarding the first one, or the national judge, regarding the second one, have discretionary powers to initiate the procedure against Spain or to raise the question before the ECJ respectively. There is a third procedure to verify if Spain has breached its climate change commitments, the action of non-contractual liability for the breach of EU Law that can be brought before Spanish courts.8 In this proceeding, individuals have to demonstrate the existence of a sufficiently serious breach of a superior rule of law and its link to the damage suffered by the individual. It is also necessary to have obtained a rejecting judgment of an appeal concerning the administrative act that caused the damage, provided that the EU Law violation had been alleged in the first proceeding. This procedure offers a more direct way for litigation than the other ones, but the conditions required are not easy to meet when dealing with climate change. First, climate legislation does not usually expressly recognize rights to private individuals nor does it so clearly and precisely that failure to comply with this regulation may be considered sufficiently characterized. Second, it is also difficult to establish a direct link between the damage suffered by the claimant and the failure of the national obligation not to contribute to global warming. This judicial remedy rules also out possible cases where actors could denounce a breach of public obligations concerning climate change when they are not directly affected by it.

2.3 Procedural Requirements and Formal Legality Issues in Climate Change Litigation The hurdles faced by the plaintiffs of hypothetical climate change related litigation are manifold. These may be of a judicial procedural nature, fundamentally referred to the fulfillment of standing conditions for individuals to be able to sue before public law courts. Once the court admits the case for examination, other formal and substantive issues may arise.

 ECJ Judgments of 17.10.2013 (Joined cases C-566/11, C-567/11, C-580/11, C-591/11, C-620/11 and C-640/11) and of 20.9.2017 (Joined cases C-215/16, C-216/16, C-220/16 y C-221/16). 8  Art. 32.5 of Law 40/2015 of Legal Regime of the Public Sector. 7

562

R. M. Fernández Egea et al.

2.3.1 Procedural Requirements: Standing to Sue Individuals claiming against a concrete public action or administrative inaction must prove that they hold a “legitimate interest”9 in the case at stake in order to have standing to sue. This requirement can be considered differently, depending on the category of “individual” who files the claim and whether he acts by himself or the claimant is an association or organization of individuals. When a claim has been filed by an environmental NGO, the Spanish case law has interpreted in an inconsistent way the existence of “legitimate interest” in order to accept their standing conditions. We can find examples of broad judicial interpretation of the standing conditions,10 in the line also of the ECJ,11 but also other cases setting out a restrictive interpretation of them.12 However, after the approval of Law 26/2007 of July 18th, which regulates the rights of access to information, public participation and justice in environmental matters, this has changed. Indeed, in its Articles 22 and 23 the Act expressly recognizes the active standing (action popularis of corporate character) of environmental associations to bring this kind of cases before courts if they meet the three requirements established in these provisions: (i) that the association has been constituted at least two years before the exercise of the action or file of the appeal; (ii) that environmental protection is accredited among the statutory purposes of the association; and (iii) that the organization is active in the territory where the environmental damage occurs. On the other hand, individuals who act on their own and are not associated in an organization that meets those criteria must prove at the time of filing the contentious-­ administrative appeal that they hold a concrete legitimate interest for the admission of the claim. In climate change matters, this will not always be easy to prove because of the global nature of both the causes and the impacts of climate change. Only when individual claims affect urban planning (which often has direct repercussions on policies to fight climate change) may the standing conditions be facilitated. This is because urban planning legislation accepts an action popularis in the field of urban planning for the filing of contentious-administrative claims. Therefore, any neighbor/individual of a municipality would have standing to file a contentious-­ administrative appeal, if he considers that an express or presumed administrative act, public inaction in urban planning matters or a general provision of urban planning is vitiated by reasons of formal or material legality.

 Art. 19 LJCA.  Decisions of the Spanish Supreme Court (Tribunal Supremo, hereinafter, TS) of 13.10.2003 (RC 8065/2000) and of 22.4.2002, (RC 3799/1997). 11  ECJ Judgment of 12.5.2011 (case C-115/09). 12  Decision of the Superior Court of Justice of Andalusia of 7.3.2006, (RCA 2574/2003). 9

10

Climate Change Litigation in Spain

563

2.3.2 Legal Formality Aspects Once the requirement of standing to sue has been fulfilled, the court may review other types of issues, such as those related to formal or procedural legality. Under Spanish law, it is possible to file a public law appeal for the breach of the legal established proceedings in the approval of an administrative act (e.g., authorization of an infrastructure or industry) or of a rule of general scope (e.g. urban plan or ordinance). In fact, in the field of environmental and urban planning, there have been numerous cases in which the specific administrative act (authorization) or the plan (its approval or modification), have been annulled for lacking environmental assessments or other requirements (e.g. hearings, deadlines, public participation, consultations, etc.).13 Thus, public action, administrative inaction or the approval or modification of rules as urban plans, contrary to the spirit of the mitigation-adaptation to climate change binomial, could be likely brought before the public law jurisdiction. The challenge would take place, in this context, not for reasons of material legality—due to the absence of binding legal climate change grounds—but for having omitted or erroneously carried out the statutorily provided proceedings or the duty of motivation of public action.

3 Effective Climate Change Litigation in Spain: The Way Forward 3.1 Climate Change Litigation Under Public Law Rules At the substantial legality level and in order for a case to have a successful outcome when an administrative act, a general provision or public inaction are being challenged their contradiction to existing law (European, constitutional, legal, regulatory) or the incorrect exercise of administrative discretion (principle of proportionality, principle of equality, etc.) must be established in court. It is on this scenario where several rules or concrete acts of application, with a more or less intense relationship to climate change, have been already judicially questioned, as will be shown below. 3.1.1 The Judicial Challenge of National Allocation Plans of Emission Rights and Their Application The first type of litigation in climate change issues that has arisen before the public law jurisdiction in Spain concerns the judicial questioning of the National Plans for Allocation of emission rights, adopted within the framework of the Spanish  See, for example, the TS Decision of 18.10.2016 (case 2245/2016), and of 17.2.2015 (RC 1005/2013) and the Decision of the Superior Court of Justice of Castilla y León of 14.2.2013 (case 234/2013). 13

564

R. M. Fernández Egea et al.

commitments on European level to comply with the Kyoto Protocol. To date, they have been the most numerous. These cases can be classified into a broad concept of “climate litigation” insofar as they concern the legality of measures adopted to mitigate climate change. However, the core matters of the disputes brought before courts show an inverse sense to the useful effect and spirit of the European and international commitments on climate change. Indeed, claimants (industries that emit GHG and are subject to the European Trading Scheme) did not intend with their appeals to denounce that Spain was not adopting sufficient or adequate measures to fight climate change, but rather the opposite: that they wanted to increase the carbon dioxide emission rights assigned to them. In this way, almost all claimants lodged annulment appeals against the Decisions of the Ministerial Council that assigned the emission rights. Many of them question the legality of the governmental Decisions alleging that they contravene EU Law and some constitutional principles and rights, being, nevertheless, rejected in their great majority by the courts.14 In other cases, industrial companies affected by the reduction of GHG emissions have managed to annul the Decisions adopted by the Council of Ministers that contained the specific allocation of GHG emission rights in application of the National Allocation Plans, for reasons of formal legality, such as the lack of sufficient motivation15 or due to formal, procedural or calculation errors.16 3.1.2 Conflicts of Distribution of Powers Between State and Autonomous Communities Another type of litigation related in a broad sense to climate change policies is the one that concerns the distribution of powers between the different territorial entities in Spain, which are judged by the Spanish Constitutional Court (Tribunal Constitucional, hereinafter TC). Through the filing of the Appeal of Unconstitutionality (recurso de inconstitucionalidad), which applies only to rules considered formally as laws in the Spanish legal system, the TC seeks the concrete determination of the specific power margin between the central State and the Autonomous Communities. As a general rule, the TC has confirmed the power of the central State to adopt norms that promote mitigation and adaptation measures to climate change, despite the fact that the executive powers in environmental matters are attributed to the Autonomous Communities (under Art. 148.1.9 CE). The TC has thus acknowledged the power of the central State to adopt rules on: (a) the regime of occupation and use of natural and urban

 See, among others, the TS Decision of 5.4.2017 (case 1398/2017) and of 29.3.2017 (case 1187/2017). 15  TS Decision of 19.11.2008 (case 6895/2008). 16  TS Decisions of 26.3.2014 (case 1590/2014) and of 9.10.2013 (case 5195/2013). 14

Climate Change Litigation in Spain

565

stretches in coastal areas, imposing limitations on properties on adjoining land17; and (b) the technical specification of the interior boundary of the maritime-­terrestrial zone through decrees.18 Likewise, the TC has affirmed the State’s authority to regulate: (a) a specific State plan for the technology of geological storage of carbon dioxide,19 applicable to all Autonomous Communities; (b) an Autonomic plan of adaptation to climate change20; and (c) norms in the sector of high efficiency cogeneration as a source of energy supply,21 invoking the supraterritoriality of the activity and the requirements of coordination, coherence and technical homogeneity in the performance of public Administrations. Special mention deserves the Catalan Law 16/2017 of 1 August 2017, on climate change. Against this Act an Appeal of Unconstitutionality is pending before the TC after the former Spanish Government challenged it for unconstitutional invasion of powers. Such Act provides a rule of formal legal rank of strict emission limits of GHG addressed to the Autonomous Government. Moreover, it lays down several climate change policies establishing specific objectives in terms of energy efficiency in housing construction, electric vehicle development, abandonment of nuclear energy, etc. 3.1.3 Substantive Legality Issues in Urban Planning Environmental issues are increasingly present in urban planning regulations, including those related to climate change, although still timidly. Thus, when climate change as a regulatory objective is reflected in the general plans of urban planning or in the applicable urban planning legislation, any modification or approval of the urban development plans must be in full congruence with climate protection. If not, it could lead to a case of climate litigation. European regulations—and, by extension, Spanish legislation—on environmental assessments require taking into account the effects and impacts on climate in the approval or modification of certain public and private projects (EIA) or public plans or programs (SEA). It is thus reasonable to affirm the possibility to annul projects, plans or programs adopted without taking into account the effects on climate (mitigation/adaptation) or doing it in a defective way. In one case, the Court annulled the modification of Madrid’s urban plan that regulated the construction of new houses in a determined sector because the court considered that the subsequent increase in population could unjustifiably alter the district’s environmental quality.22 Moreover,

 TC Decision of 18.2.2016 (case 28/2016).  TC Decision of 5.11.2015 (233/2015) and of 17.3.2016 (case 57/2016). 19  TC Decision of 15.11.2016 (case 190/2016) and of 6.10.2016 (case 165/2016). 20  TC Decision 18.2.2016 (case 28/2016) of 17.3.2016 (case 57/2016) and of 5.11.2015 (case 233/2015). 21  TC Decision of 6.10.2016 (case 171/2016). 22  Decision of the Superior Court of Justice of Madrid of 4.3.2016. (RCA187/2015). 17 18

566

R. M. Fernández Egea et al.

the Spanish Supreme Court annulled the adoption of a plan because of the negative impact on surface and groundwater resources that this adoption would cause.23 In terms of adaptation to climate change, it is worth pointing out a judicial ruling that expressly mentioned climate change in its legal reasoning regarding flood forecasting.24 The court considers that although floods are unavoidable natural phenomena, some human activities (such as the increase of human settlements and economic assets in the floodplains and the reduction of the natural capacity of retention of water by the soil) and the climate change phenomenon are contributing to increase the likelihood of their occurrence, as well as their negative impact. 3.1.4 Human Rights Litigation A human rights case challenging public action or inaction regarding climate change has not been raised in Spain yet. Nonetheless, it might happen in the near future, as it did with other environmental problems such as odors or noises. In fact, a failure to control GHG emissions or not to prevent severe global warming impacts can surely affect persons lives, their physical and moral integrity, or the peaceful enjoyment of their private and family life and home, among other fundamental rights enshrined in the Spanish Constitution and protected by the TC (recurso de amparo). It is important to distinguish between fundamental rights of a substantive nature from those of a procedural one. Regarding the latter, there are some procedural obligations, which the State has to warrant (impact assessment, publicity, transparency, public participation in decision-making—attached to freedom of expression and association—access to justice and damages compensation, etc.). Although they have mostly evolved in relation to environmental policies, they are not specific to climate change. They are “neutral” in the sense that they do not question the suitability of the policies adopted, but only check if proper procedures have been followed and if individuals have been able to participate in decision-making or have access to court to challenge measures affecting them. Violations of this kind of procedural rights can be settled through the ordinary public law procedures explained above. However, fundamental rights of substantive nature have a more direct link to climate change issues as they might imply the necessity to adopt mitigation and adaptation measures. Yet, to carry out one of these cases involves numerous difficulties. The main one is the absence of a fundamental right with an environmental or a climate change content, which is sufficiently concrete and precise in recognizing subjective rights, which individuals may invoke against their States. This is the case of Spanish law since the Spanish Constitution says nothing about climate change. Although it encloses a “right to enjoy an adequate environment”,25 this is merely a

 TS Decision of 11.10.2013, (RC 5161/2010).  TS Decision of 29.3.2017 (case 54/2017). 25  Art. 45 Spanish Constitution. 23 24

Climate Change Litigation in Spain

567

“guiding principle” of social and economic policies and not a true subjective right to be protected by the Spanish Constitutional Court.26 Another possibility to challenge public actions or inactions dealing with climate change that might infringe fundamental rights is by enforcing an international treaty on human rights signed by Spain. In this sense, as a member of the Council of Europe, Spain has to comply with the European Convention of Human Rights (ECHR). As is well known, the jurisdiction of the European Court of human rights (ECtHR) is accessible to individuals once domestic remedies have been exhausted. The ECHR does not provide an individual fundamental right to a healthy environment nor the obligation for States to adopt measures of mitigation or adaptation to climate change. However, this has not prevented the ECtHR from deciding on cases of “environmental” content when the safeguard of the environment develops through the protection of a fundamental right enshrined in the Convention (such as the right to life, Art. 2 or the right to the peaceful enjoyment of family and private life and home, Art. 8). Moreover, the ECtHR counts with a vast jurisprudence in this field, also built on some important Spanish cases.27 One may find some examples in cases of waste, atmospheric, luminous or acoustic pollution, but none of them referred specifically to climate change. The ECtHR has specified the requisites to meet in order to raise a case invoking Article 8 ECHR.  Firstly, there must be a serious interference with the peaceful enjoyment of the private and family life as well as of the domicile. That would be the case dealing with floods, hurricanes or extreme drought. However, the individual not only has to prove to be directly affected but also that these phenomena are due to the State’s direct actions or its failure to sufficiently protect the individuals against such interference. Considering the diffuse and global nature of climate change, it would be extremely difficult to prove a link between State action/inaction and the damages occasioned. This hurdle would exist even if the ECHR enclosed a hypothetical fundamental right to a healthy environmental. Moreover, the State enjoys a wide margin of appreciation to determine if the interference with the fundamental right can be justified by invoking the “general interest”. This implies that it is not for the judge to determine what kind of environmental policy measures should the States take. Even though the ECtHR may scrutinize if there is a reasonable weighting between the interests at stake, the problem again is the vagueness and lack of specificity of commitments at international level. Nevertheless, the ECtHR may also check if the decision-making procedure was the correct one. For example, if citizens were informed prior to the adoption of measures that might affect them or the environment; if their participation in the adoption of decisions was allowed—which usually means that they can make allegations—and if, once the measure has been adopted, the adequate mechanisms have been established so that affected individuals can challenge such decisions if they  See, among others, Simón Yarza (2012), pp. 153–179.  The case López Ostra v. Spain (9.12.1994) was a leading case for environmental concerns linked to human rights protections, in particular, through Article 8 ECHR.  For a further study on this topic, see Fernández Egea (2015), pp. 163–204. 26 27

568

R. M. Fernández Egea et al.

consider that their rights have been harmed by them. Climate change litigation is more likely to occur when controlling theses formal requirements. In the ECtHR case law one can also find other types of cases with environmental concerns when justifying an interference with a human right. This is generally the case when dealing with the infringement of Article 1 of Protocol 1 to the Convention, which includes the right to the peaceful enjoyment of property. This provision envisages the possibility that such right may be subjected to certain limitations to satisfy a general interest, namely the protection of the environment. That would be the case when electricity firms suffer restrictions by having to accept caps on GHG emissions. 3.1.5 Litigation in the Field of Renewable Energies The treatment of renewable energies as a main pillar in the fight against climate change deserves also special mentioning. The relationship between energy generation and transformation activities based on the burning of fossil fuels for its subsequent consumption and the acceleration of the physical phenomenon of climate change is one of cause and effect. Thus, any public effort—regulatory, political or economic—in the revitalization of the production and use of renewable energy sources constitutes a direct reduction in the emission of GHG. In the last 20 years, the determination of a complete and systematic legal regime of renewable energies has been subject to constant reforms. Until 2013, the Spanish production of electricity from renewable energy sources was carried out within the so-called “special regime of electricity production”, as an exception to the “general regime”, regulated under Act 54/1997 of 27 November, of the Electric Sector. This Act included a regime of economic incentives for investors in clean energy. The existing regime was abruptly modified by a series of measures adopted by the new elected Government, hiding behind the economic crisis and the protection of the financial stability of the Spanish electricity system.28 Among these measures, Act 24/2013 of 26 December removed the distinction between the ordinary and the special regime but did not adopt a global and systematic approach to renewable energies. Furthermore, the Royal Decree-Act 9/2013 of 13 July significantly reduced the incentive for investments in clean energies. Nevertheless, the Spanish TC supported the new regulations, considering that did not present any formal or material incompatibility with the Spanish Constitution.29 Specifically, the Spanish TC denied

 The following regulatory measures were adopted: Royal Decree-Act 1/2012 of 27.1.2012, Royal Decree-Act 2/2013 of 1.2.2013, Royal Decree-Act 9/2013, of 13.7.2013, Royal Decree 413/2014 of 6.6.2014 and Ministerial Order 1045/2014. 29  TC Decisions of 17.12.205 (case 270/2015) and of 4.2.2016 (case 19/2016). In the same sense, against a claims for liability in the field of the renewable energies, see: TS Decisions of 25.5.2017 (case 2059/2017) and of 12.7.2018 (case 2727/2018). 28

Climate Change Litigation in Spain

569

that the cutting of premiums for renewable energy violated the principles of legal certainty and non-retroactivity.30 Not pleased by these TC Decisions, investors seeked justice outside the Spanish judicial system, litigating before arbitral tribunals. There are already two arbitral decisions on this matter in favour of the investors, while around 30 denunciations are still pending. In 2017, in the framework of the International Court of Settlement of Disputes of the World Bank (ICSID), an arbitral tribunal sentenced Spain to compensate with 128 million euros the energy companies for having abruptly eliminated the premiums that they were enjoying in the field of photovoltaic solar energy. According to the Arbitral Tribunal, “the obligation to grant fair and equitable treatment does not prohibit some appropriate changes, but it is incompatible with radically altering regulatory regimes”.31 Likewise, in 2018, the Stockholm Chamber of Commerce has issued a condemnatory ruling that orders Spain to pay 53 million euros to Novenergía, an institutional investor based in Luxembourg who has several photovoltaic installations in Castilla-La Mancha, Extremadura, Murcia and Catalonia.32 These arbitral decisions, contrary in essence and in spirit to the Spanish Constitutional Court’s Decisions on the same matter, examine the issue from a more holistic perspective. Moreover, they are more aligned with the commitments that Spain has made at EU level. They establish interesting precedents in the matter and predict the content of the future decisions in the cases that are still pending against Spain in the framework of the ICSID.

3.2 Climate Change Litigation Against Private Actors In the lack of particular provisions on climate change liability, any potential claims should be grounded on the general provisions of liability in tort. The Spanish Civil Code provides a general clause of liability for damage caused by fault (Art. 1902). This general rule is supplemented by some special provisions in the same statutory text, which lay down specific instances of liability. They have been consistently referred to by case law as the basis for establishing environmental liability of private actors under Spanish law. In particular, the Code provides that the ‘owner’ will be liable for damage caused by excessive fumes, which are harmful to the persons or the goods33 and for any emissions from sewage or storage of infecting matter, which have been built without the adequate precautions with regard to the place in which they are located (Art. 1908.4). The issue whether these two provisions lay down a

 See among others, Bacigalupo Saggese (2017) and id. (2010), p. 286 ff.  Eiser Infrastructure Limited and Energía Solar Luxemburg Solar Energy v. Kingdom of Spain. ICSID Case No. ARB/13/36. 32  Case Novaenergia v. Kingdom of Spain, SCC Case No. 063/2015. 33  Art. 1908.2 CC. 30 31

570

R. M. Fernández Egea et al.

fault-based or a strict liability rule is debated by legal scholarship. The statutory reference to the lack of the adoption of precautionary measures34 seems to suggest this is an instance of liability based on fault. Nonetheless, legal scholarship interprets that the rule lays down a presumption of liability, which may be rebuked by proof of the lack of fault. Case law adopts a unitary approach, by which both sections of Art. 1908 CC are construed together, so liability is actually strict.35 Case law has also construed the statutory terms of Art. 1908.2 and 4 in a quite broad way, according to which the Civil Code lays down a general rule of strict liability for environmental harm. Such result has been achieved by a reading of the Civil Code provisions in the light of the Spanish Constitution, according to which all persons have a right to an adequate environment.36 Accordingly, those who infringe such right and duty will have the obligation to restore damage.37 The problem is that, as pointed out above, there is no specific statutory development of such a duty to restore but merely to a partial extent. Certainly, the Spanish legislature transposed the EC Environmental Liability Directive38 into national law by way of the Environmental Liability Act, mentioned above. 2007 (hereinafter, LRM).39 However, the transposing act provides an instance of liability as regards the public authorities in charge and fails to provide any legal standing to sue to private persons.40 The Environmental Liability Act does exclude on a literal basis that private persons may recover any damages at all on the basis of its provisions,41 which is fully in line with the EC Directive.42 Such statutory framework entails that the legal basis for filing a potential claim for climate change related damage is actually rather weak. Private individuals may inform the public authorities about the polluting industry or person,43 however the first are not as such entitled to receive any compensation for damage caused.44 They may nevertheless invoke the general provisions on liability for fault45 or its strict liability counterpart (Art. 1908 CC). Spanish courts are usually rather demanding as regards the degree of certainty for a causal link to be established between the defendant’s conduct and harm. Therefore, it is not entirely sure whether a Spanish court  In Art. 1908.4 CC.  For further details, see Ruda (2008), p. 408ff. 36  Art. 45.1. 37  Art. 45.3. 38  Directive 2004/35/CE of the European Parliament and of the Council of 21.4.2004, on environmental liability with regard to the prevention and remedying of environmental damage (OJ L 143, 30.4.2004, p. 56). 39   Act on Environmental Liability (Ley de Responsabilidad Medioambiental) 26/2007, of 23.10.2007 (BOE no 255, 24.10.2007). 40  See Art. 5 and 41ff. LRM. On which see Esteve Pardo (2008), p. 83ff. 41  Art. 5 LRM. 42  Art. 3.3. 43  To Art. 41.2 LRM. 44  Under Art. 5.1 LRM. In legal scholarship, see Guerrero Zaplana (2010), p. 97ff. 45  Art. 1902 CC. 34 35

Climate Change Litigation in Spain

571

would be satisfied with the mere fact that the defendant’s action leads to a rise in GHG emissions. To that regard, the Environmental Liability Act makes clear that liability for damage caused by so-called ‘diffuse pollution’ can exist on the basis of a causal link between damage and the activities of specific operators only.46 Moreover, air is not included as an environmentally protected resource by the Environmental Liability Act.47 At any rate, Spanish courts usually inquire into which is damage suffered by the alleged victim on an individual basis. A merely collective damage is not sufficient to trigger liability in tort, with the exception of damage to consumers (Art. 11 of the Civil Procedure Act [hereinafter, LEC]).48 The prevailing opinion is that standing to sue for collective harm cannot be construed extensively as to include environmental litigation as well, for want of analogy. It is also open to question whether class actions are fully adequate as regards compensation for damage to the environment as such, as in the case of climate change.49 As to the question whether the (potentially) affected individuals may request the adoption of any preventive measures from the court, injunctive remedies as such are not statutorily provided under Spanish law to that regard—unlike other legal systems. Tort law mechanisms will usually be triggered by the occurrence of damage, being a mere threat of the same insufficient. However, the possessor of a good may request the protection from the court whenever there is a possibility that she may be perturbed in it.50 It is unclear whether the GHG emissions may amount to a perturbation of possession to that regard, since the statutory rule has been traditionally applied to cases where another person interferes with the peaceful possession of a good (e.g. by using the same without permission). Similarly, the owner of a piece of land may obtain injunctive relief if it is established that there is a reasonable probability of an interference with the use or enjoyment of that land by a third person. Such ‘negatory action’ is commonly seen as an expression of the owner’s protection.51 It may be argued that polluting emissions may thus affect the owner of a piece of land if pollution affects the normal use of the land or the owner’s health. Such a result may be reached by way of a flexible interpretation of Art 1908 CC, mentioned before, and Art. 590 CC (which basically provides on the distances to be left in case of certain constructions such as sewage, chimney and the like).52 By contrast, the Environmental Liability Act empowers public authorities to adopt any interim measures needed to prevent the pollution from becoming worse, or to prevent damage from being caused, and ‘in particular, to protect human health’.53 In

 Art. 3.3.  Art. 2 e contrario. 48  Civil Procedure Act (Ley de Enjuiciamiento Civil) 1/2000, of 7.1.2000 (BOE no 7, 8.1.2000). 49  See Ruda (2015), p. 334. 50  Pursuant to Art. 446 CC and 250.3 et seq. LEC. 51  Art. 348 CC. 52  On which see Egea Fernández (1994) and Díaz Romero (2003), p. 1 ff. 53  Art. 44.1. 46 47

572

R. M. Fernández Egea et al.

these cases, the cost of the adopted measures adopt will be assumed by the liable operator.54 Regarding lenders liability, it would be approached from the Spanish legal perspective as one relating to causation. For a causal link to exist it is needed that the event at stake is necessary condition of the same, according to the conditio sine qua non test.55 Therefore, if it can be established that the damaging activity is possible because of the funding provided by a specific pension fund, the latter would be deemed to have caused damage. However, under Spanish law causation is not enough for tort liability to be established. A second level of legal analysis is required, namely, to check whether damage is attributable to the defendant on a legal basis. This is called the ‘objective imputation’ test and finds its origins in German scholarship now well settled among Spanish courts and legal scholars.56 At such a level, the court must decide whether damage can be attributed to the defendant, for instance, because the latter increases the risk for damage to happen, or because damage is of the kind of those damages which the infringed rule was aimed to prevent from happening. Such a test may fail in the case of lenders liability. Generally Spanish courts do not seek liabilities of third parties who contributed to make the damaging activity possible by way of their financial contribution unless, probably, in the unlikely case in which they knew in advance. In spite of the previous, the statutory definition of the liable operator is quite broad under Spanish law, namely, it is any person who has a ‘determining economic power over the technical operation’ of the activity at stake can be considered an operator and held thus accountable under that statutes provisions.57 The provision is slightly different to the one included in the EU Directive, according to which it is required for that operator to be liable that such economic power ‘has been delegated’ to her.58 The Spanish Act seems to make it possible to hold a pension fund, for instance, liable for environmental damage, under the conditions described above. Some legal scholars favour such a solution, which creates incentives for those who finance a potentially polluting activity to prevent pollution from happening. However, they will escape liability if it can be established that they are ‘external’ to the activity carried out by the liable operator.59

4 Conclusion One may say that Spain has managed to comply with the objectives agreed upon on an international basis to reduce GHG emissions. To this regard, Spain has been ‘blessed’ by the economic crisis, which has contributed to substantially decrease the

 Art. 44.3.  See Ruda and Ribot (2007), p. 41ff. 56  See Pantaleón Prieto (1990), p. 1561ff. 57  Art. 2.10 LRM. 58  Art. 2.6. 59  See Pedraza Lainez (2016), p. 35. 54 55

Climate Change Litigation in Spain

573

economic activity and, with it, the volume of polluting emissions in general. As Spain gradually leaves the crisis behind, it may have to adjust its public policies to meet with these objectives, since compliance to date has been more a result of coincidence than of a deliberate behaviour by public authorities. Although the current legal system provides some mechanisms through which climate litigation could in theory take place, there has been no properly speaking climate change litigation as such. In fact, the existing pathways, which are theoretically available for use, are plagued with difficulties. Moreover, there is still no specific statutory instrument dealing exclusively with climate change. As the Appeal of Unconstitutionality against the regional Catalan Act on climate change is pending before the Spanish Constitutional Court, the new Spanish Government is currently preparing an Act on the same issue. Maybe its adoption depending on the rights conferred upon individuals to challenge actions that are contrary to the spirit of climate change protection can trigger litigation on the matter. With regard to tort law in particular, the individualist approach adopted by the general rules in the Spanish Civil Code seem scarcely adequate to tackle climate change, which is per definition a collective, global problem. As regards the Environmental Liability Act, it excludes liability for diffuse damage unless a causal link can be established with the conduct of specific operators. It seems therefore that damage may be a major hurdle for potential claimants in this regard.

References Bacigalupo Saggese M (2010) La distribución de competencias entre el Estado y las Comunidades Autónomas en materia de energías renovables. Revista d’estudis autonòmics i federals, n° 10, pp 286–329 Bacigalupo Saggese M (2017) Cambios regulatorios y confianza legítima en el sector energético. Blog Fide. Available at: https://blogs.elconfidencial.com/espana/blog-fide/2017-06-15/cambios-regulatorios-confianza-legitima-sector-energetico_1399527/?utm_source=twitter&utm_ medium=social&utm_campaign=BotoneraWeb Burdiles Perucci G (2016) Litigación climática con enfoque de derechos: comentario sobre el caso Leghari contra Pakistán. Revista de Justicia Ambiental, n° 8, pp 251–267 Díaz Romero MR (2003) La protección jurídico civil de la propiedad frente a las inmisiones (especial referencia a la acción negatoria). Civitas, Madrid Egea Fernández J (1994) Acción negatoria, inmisiones y defensa de la propiedad. Marcial Pons, Madrid Esteve Pardo J (2008) Ley de responsabilidad medioambiental. Comentario sistemático. Marcial Pons, Madrid Fernández Egea RM (2015) La protección del medio ambiente por el Tribunal Europeo de Derechos Humanos: últimos avances jurisprudenciales. Revista Jurídica de la UAM, n° 31, vol 1, pp 163–204. Available at: https://revistas.uam.es/revistajuridica/article/view/6467 Guerrero Zaplana J (2010) La Responsabilidad medioambiental en España. La Ley, Madrid Pantaleón Prieto F (1990) Causalidad e imputación objetiva. In: Asociación de Profesores de Derecho civil (ed) Centenario del Código Civil (1889–1989), 2nd vol. Ceura, Madrid, p 1561 Pedraza Lainez J (2016) La responsabilidad por daños medioambientales. Cizur menor, Aranzadi Rodríguez García N (2016) Responsabilidad del Estado y Cambio climático: el caso Urgenda contra Países Bajos. Revista Catalana de Dret Ambiental, n° 2, vol 7. Available at: https://revistes. urv.cat/index.php/rcda/article/view/1703

574

R. M. Fernández Egea et al.

Ruda A (2008) El daño ecológico puro. Cizur menor, Thomson Reuters Aranzadi Ruda A (2015) Collective redress in environmental liability cases: the Spanish approach. In: Lein E et al (eds) Collective redress in Europe – why and how? British Institute of International and Comparative Law, London, p 327 Ruda A, Ribot J (2007) Spain. In: Winiger B et  al (eds) Essential cases on natural causation. Springer, Wien, p 41 Simón Yarza F (2012) El llamado derecho al medio ambiente: un desafío a la teoría de los derechos fundamentales. Revista Española de Derecho Constitucional, n° 94, pp 153–179 Rosa M. Fernández Egea  is Doctor in Law by the Universidad Autónoma de Madrid (2007) with her Thesis on Libre circulación de mercancías y protección del medio ambiente en la OMC (Marcial Pons, 2008) and Master in European Community Law by the same University (1999). She has been a research fellow in various foreign centers, inter alia, the Faculty of Law at the University of Hamburg (2004–2005), the WTO Headquarters in Geneva (2002, 2003) or the Centre for Studies and Research in International Law and International Relations of The Hague Academy of International Law (2008). She is the author of a number of works dealing with the international protection of the environment, in particular on its relationship with international trade, the fight against climate change and the sustainability of marine resources. She is also co-editor of the books El cambio climático en Derecho internacional y comunitario (Fundación BBVA, 2009) and El Derecho internacional del medio ambiente: una visión desde Iberoamérica, (Cameron May, 2010). She is responsible of the Chronic on International Environmental Jurisprudence published in the Revista Catalana de Derecho Ambiental and member of the working group of the Spanish Observatory of Environmental Policies (since 2019). Currently she is Senior Lecture of International Public at the Universidad Autónoma de Madrid. Albert Ruda  is an Associate Professor in private law and the Dean of the Faculty of law at the University of Girona (Spain). He is a member of the European Law Institute (ELI), a founding member and chair of the ELI Spanish Hub, and a chair of the ELI Global Private Law Special Interest Group. He is a member of the Institute of European and Comparative Private Law of the University of Girona, member of the European Centre of Tort and Insurance Law (ECTIL, Vienna), research fellow of the Utrecht Centre for Accountability and Liability Law (UCALL, Universiteit Utrecht), member of the IUCN World Commission on Environmental Law and the Commission of Codification of Catalonia. He has been a reporter of the Trento “Common Core of European Private Law” Project (Environmental Liability), and is a former Van Calker scholar of the Swiss Institute of Comparative Law and former Japan Foundation scholar. He has authored two books and more than 100 papers on tort law, environmental liability, contract law, and other private law issues. He has been a Visiting Scholar at Wake Forest University School of Law, Nova Southeastern University Law School (USA) and Ryukoku University (Japan). Sofia Simou  PHD in Administrative Law (Climate Change and Local Government Law-2019). Antoni Pedrol Rius award for the best doctoral thesis in Local Government Law for 2019. Adviser at the Ministry of Presidential Affairs, Parliamentary Relations and Democratic Memory (2019–). Academic Secretary of the Institute of Local Government Law of the Autonomous University of Madrid (2012–2018). Lecturer in Administrative Law at the Autonomous University of Madrid (2012–2018) and in European Union Law at the IE University of Madrid (2018–2019). Law Degree from the Aristotle University of Thessaloniki (Greece) and postgraduate studies (Master’s Degree) on European Union Law at the Autonomous University of Madrid. Visiting Scholar at the Great Cities Institute of the University of Illinois at Chicago (2010) and at the Institut für Medienund Informationsrecht of the University of Freiburg (Germany, 2011–2012). Publications on urban planning, environmental law, the Services Directive, public contracts, municipal economic public activity. Participation in several research projects.

Emerging Awareness of Climate Change Litigation in Slovenia Vasilka Sancin and Maša Kovič Dine

Abstract The chapter discusses Slovenian normative framework, practice and jurisprudence related to climate change issues, and emphasizes that mitigation of and adaptation to climate change has yet to generate the necessary attention, both in legislation and case-law. Currently, the main legal documents relevant for potential climate change litigation are the Constitution of the Republic of Slovenia and the Environmental Protection Act (EPA). One of the focuses of this chapter is thus on Article 70.a of the Constitution, which grants everyone the right to drinking water and can serve also a basis for future climate change litigation, since climate change undoubtedly affects the available resources of drinking water all over the world. Additionally, Article 72 of the Constitution grants everyone the right to a healthy living environment and constitutes a basis for the EPA and its granting to each individual as the holder of the right to a healthy living environment, the right to request before the courts the discontinuation of an activity affecting the environment, if it would cause an excessive environmental burden or would present a direct threat to human life or health. While this article presents itself as the most promising avenue for climate change litigation, there are a few heavy burdens for the plaintiff to resolve (proof of existence of possible future excessive environmental burden, high financial costs related to this etc.) that affect its practical applicability. Since so far no cases have been argued under this article, even for other environmental matters, the chapter presents the case-law based on the procedure set in the EPA for environmental impact assessment and for environmental damage under the Obligations Code of Slovenia and concludes with suggestions for possible future climate change litigation in Slovenia.

V. Sancin (*) · M. K. Dine Department for International Law, Faculty of Law, University of Ljubljana, Ljubljana, Slovenia e-mail: [email protected]; [email protected]

© Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_30

575

576

V. Sancin and M. K. Dine

1 Introduction Mitigation of and adaptation to climate change has yet to generate the necessary attention and receive appropriate manifestation in the normative framework and judicial practice in Slovenia. Although, Slovenia was among those who signed and ratified the Paris Agreement1 in 2016, there exists no legislation nor case-law directly addressing climate change in Slovenia in 2019. While in 2009 the Government established a governmental Office for climate change,2 which prepared the draft of the Act on Climate Change,3 these efforts froze in 2012 when the office was abolished.4 No major steps were taken in this direction until December 2014 when the Government adopted the Operative program of measures to reduce greenhouse gas emissions until 2020.5 The program contains activities that Slovenia will carry out in order to fulfill European Union (EU) climate-energy package in sectors that are not included in the EU greenhouse gas emissions trading scheme.6 This was followed by the adoption of the Strategic framework for climate change adaptation7 in December 2016, which is the first step in preparation of an overall and inter-­ sectoral process of climate change mitigation and adaptation. The four horizontal guidelines propose measures and activities to (1) incorporate climate change impacts in the development and implementation of all policies at the national level, among local communities, economic operators and individuals; (2) broaden the cooperation, integration and exchange of experiences and good practices; (3) enhance the knowledge about climate change impacts and adaptation methods; and (4) achieve an appropriate level and quality of education, competence, awareness and information communication about climate change impacts.8 To follow the implementation of the Strategic framework a special Inter-sectoral working group for climate change adaptation9 has been set up in 2016. These activities have proven  Paris Agreement (Dec. 13, 2015), in UNFCCC, COP Report No. 21, Addenum, at 21, U.N. Doc. FCCC/CP/2015/10/Add, 1 (Jan. 29, 2016). 2  Decree on the establishment of the Office of teh Government of Slovenia for Climate Change, Official Gazette RS, No. 49/2009. 3  Third draft of the Act on Climate Change (2011), see: http://www.arhiv.svps.gov.si/fileadmin/ svps.gov.si/pageuploads/3._osnutek/ZPS_140210_vse.pdf. 4  Article 15 and 20, Act amending the State Administration Act, Official Gazette RS, No. 21/12. 5  Operative program of measures to reduce greenhouse gas emissions until 2020 (OP-TGP2020) (2014), see: http://www.energetika-portal.si/fileadmin/dokumenti/publikacije/op_tgp/op_ tgp_2020.pdf. 6  Decision No 406/2009/EC of the European Parliament and of the Council of 23 April 2009 on the effort of Member States to reduce their greenhouse gas emissions to meet the Community’s greenhouse gas emission reduction commitments up to 2020, OJ L 140, 5.6.2009, p. 136–148. 7  Strategic framework for climate change adaptation (2016), see: http://www.mop.gov.si/fileadmin/ mop.gov.si/pageuploads/podrocja/podnebne_spremembe/SOzP_ang.pdf. 8  Strategic framework for climate change adaptation (2016), p. 5. 9  Order on the establishment of the Inter-sectoral working group for climate change adaptation, which includes also all the names of the members of the group (2016), see: http://www.mop.gov. si/fileadmin/mop.gov.si/pageuploads/podrocja/podnebne_spremembe/medresorska_delovna_skupina_sklep.pdf. 1

Emerging Awareness of Climate Change Litigation in Slovenia

577

to be the first steps towards a more serious response to climate change from the Slovenian Government. In May 2019 the Government confirmed the preparation of a series of climate change related documents: Framework for a long-term climate change policy for Slovenia, Long-term climate change strategy for Slovenia till 2050, Five-year climate plans, Act on climate policy and a proposal for a national climate day.10 Nevertheless, the awareness of devastating climate change effects in Slovenia is high and civil initiatives and environmental NGOs work hard to protect the environment and mitigate and adapt to climate change, particularly through continuous warnings against Slovenia’s acts that do not correspond to international and EU commitments for reducing greenhouse gas emissions, causing damage to the environment and oftentimes, violating the right of individuals to a healthy living environment. In June 2019 four of the largest environmental NGOs in Slovenia prepared a public call with a petition asking the Government to take concrete steps for addressing climate change and determine strong emission reduction targets in line with its international climate change commitments.11

2 Climate Change Law in Slovenia As mentioned in the introduction there is no legal act in Slovenia directly granting the access to courts for climate change related violations, as the Climate Change Act was not adopted. Nevertheless, there are other possibilities for individuals to claim violations of climate change related obligations under the Constitution of the Republic of Slovenia and the Environmental Protection Act, as well as to request removal of the activity causing environmental damage under the Obligations Code.

2.1 Constitution of the Republic of Slovenia The Slovenian Constitution12 contains two articles granting environmental rights to individuals indirectly related to climate change. Article 72 grants the right to a healthy living environment and has been included in the Constitution since its adoption. Article 70a, which grants the right to drinking water, has been added to the Constitution only in 2016. The calls for this amendment followed the initial ­proposals for the EU Concessions Directive,13 which initially allowed multinational  32. Government Session, 23 May 2019, http://www.vlada.si/delo_vlade/dnevni_redi/dnevni_ redi/article/32_redna_seja_vlade_rs_dne_23_maja_2019_62589/. 11  Webpage with the call and the petition to the Government: http://podnebnakriza.si/. 12  Consitution of the Republic of Slovenia, Official Gazette RS Nos. 33/91-I 42/97, 66/2000, 24/03, 69/04, 68/06, 47/13 and 75/16. 13  Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts, OJ L 94, 28.3.2014, p. 1–64. 10

578

V. Sancin and M. K. Dine

corporations to get a concessions agreement for managing drinking water resources.14 The fear of potential irrational management of Slovenia’s drinking water resources by multinational corporations and the potential high costs of water access led to political proposals for such an inclusion of this right in the Constitution. Article 70a of the Constitution provides: Everyone has the right to drinking water. Water resources shall be a public good managed by the state. As a priority and in a sustainable manner, water resources shall be used to supply the population with drinking water and water for household use and in this respect shall not be a market commodity. The supply of the population with drinking water and water for household use shall be ensured by the state directly through self-governing local communities and on a not-for-­ profit basis.15

The right to drinking water could be derived also from the right to life,16 the right to dignity17 and the right to a healthy living environment.18 However, its explicit inclusion in the Constitution has an extremely important declaratory effect. It also requires the legislator to change the existing water laws to give effect to the constitutional amendment and to improve access to drinking water to individuals all over Slovenia. As climate change undoubtedly affects the drinking water resources, there exists potential opportunity for a climate change litigation before the Constitutional court. Perhaps even more importantly, Article 72 of the Constitution, as mentioned, grants each individual the right to a healthy living environment, which can be violated by continuous changes in the climate: Everyone has the right in accordance with the law to a healthy living environment. The state shall promote a healthy living environment. To this end, the conditions and manner in which economic and other activities are pursued shall be established by law. The law shall establish under which conditions and to what extent a person who has damaged the living environment is obliged to provide compensation. The protection of animals from cruelty shall be regulated by law.19

The Constitution grants the right to a healthy living environment to every individual, while the State has the obligation to ensure it. The Environment Protection

 The directive proposal was later edited, also following Slovenia’s suggestions, to allow States to exclude water resources from the scope of the directive. See paragraph 40 of the Preambule of the EU Concessions Directive. 15  Translation of the text of the Consitution from the webpage of the Constitutional Court of the Republic of Slovenia, About the Court, Legal Basis, Constitution, see: http://www.us-rs.si/en/ about-the-court/legal-basis/. 16  Article 17, Consitution of the Republic of Slovenia. 17  Article 21, Consitution of the Republic of Slovenia. 18  Article 71, Consitution of the Republic of Slovenia. 19  Translation of the text of the Consitution from the webpage of the Constitutional Court of the Republic of Slovenia, About the Court, Legal Basis, Constitution, http://www.us-rs.si/en/aboutthe-court/legal-basis/ (4.1.2018). 14

Emerging Awareness of Climate Change Litigation in Slovenia

579

Act (EPA)20 further defines the term environment, the basic principles relevant for environmental protection and ensures fulfillment of the standards of quality of the environment. Article 72, paragraph 2, calls on the legislator to determine the conditions and manner in which economic and other activities are persuaded so as to promote a healthy living environment. This is in line with Article 67 of the Constitution and its recognition that property shall be enjoyed in a manner to ensure its economic, social and also environmental function. This means that any enjoyment of property in Slovenia must respect EPA measures, including climate change mitigation and adaptation measures. Furthermore, Article 72, paragraph 3, recognizes the polluter-pays principle, while the EPA determines the rules and procedures for such litigation, as described in the following section.

2.2 Environment Protection Act (EPA) The EPA is the cornerstone act on environmental protection, including climate change, in Slovenia. As mentioned, it contains the fundamental environmental principles, programs, plans, activities and allowances for interference in the environment. Its chapters specifically address also the issues of environmental information, responsibility for environmental damage, economic and financial instruments of environmental protection, public service for environmental protection and the status of nongovernmental organizations (NGOs) working in the public’s interest. Although the EPA does not explicitly regulate climate change, it does so indirectly through regulation of activities that undermine the environment, oftentimes contributing to climate change in one way or another. The EPA also defines the three main obligations of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention),21 which Slovenia ratified in 2004. The obligations of (1) access to environmental information22; (2) public participation in decisions on specific activities with the potential to harm the environment23 or on plans, programs and policies relating to the environment24 or during the preparation

 The Environment Protection Act (EPA), Official Gazette RS, Nos. 39/06, 49/06  – ZMetD, 66/06 – odl. US, 33/07 – ZPNačrt, 57/08 – ZFO-1A, 70/08, 108/09, 108/09 – ZPNačrt-A, 48/12, 57/12, 92/13, 56/15, 102/15, 30/16 and 61/17 – GZ. 21  Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention), 2161 UNTS 447, 38 ILM 517 (1999), Act Ratifying the Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters, Official Gazette RS, No. 17/04; Act ratifying the Amendment to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Official Gazette RS, No. 1/10. 22  Article 4, Aarhus Convention. 23  Article 6, Aarhus Convention. 24  Article 7, Aarhus Convention. 20

580

V. Sancin and M. K. Dine

of executive regulations and/or generally applicable legally binding normative instruments25; and (3) access to justice26 are included in Articles 13, 14, 26, 34a, and 37, as described below. EPA’s Article 14 defines the principle of protection of rights and grants to each individual, as the holder of the right to a healthy living environment, the right to request before the courts 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. The individual may also request before the court that the person responsible for an activity affecting the environment be prohibited from starting the activity, if there is a strong probability that the activity would present such a threat. Unfortunately, there exists no case law on this article due to the difficulty of proving excessive environmental burden and the existence of a direct threat to human life or health, and due to the 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. Especially for the later reason, any attempt to prove such damage or threat would be very costly.27 Nonetheless, Article 14 also grants the Human Rights Ombudsman the responsibility to ensure the protection of this right. Any individual that believes that his right has been violated by an act, an action or maladministration of a state body, local self-government body, or body entrusted with public authority may lodge a petition with the Ombudsman to start the proceedings.28 If the ombudsman believes in a serious violation of this right, he/she will launch an investigation29 and if the violation is confirmed, prepare a report with recommendations that is distributed to all the parties involved.30 The Ombudsman may also launch an investigation on his/her own initiative.31 However, in both cases, there has to be an injured party behind any of the violations.32 Which means that such proceedings could hardly be instigated for climate change case which generally affect the overall environment and do not cause any specific damage to an individual or a group of persons. The Ombudsman has actively protested to violations of human rights in the field of environmental protection and spatial planning. However, the majority of cases are related to long or ineffective procedures of inspection checks.33

 Article 8, Aarhus Convention.  Article 9, Aarhus Convention. 27  Pichler et al. (2010), p. 777. 28  Article 26, Human Rights Ombudsman Act, Official Gazette RS, Nos. 69/17 – official consolidated text. 29  Article 33, Human Rights Ombudsman Act. 30  Article 38 and 39, Human Rights Ombudsman Act. 31  Article 33, Human Rights Ombudsman Act. 32  Article 28, Human Rights Ombudsman Act. 33  Human Rights Ombudsman, About Us, Environment and Spatial Planning, see: http://www. varuh-rs.si/index.php?id=84&L=6. 25 26

Emerging Awareness of Climate Change Litigation in Slovenia

581

According to the EPA every individual also has the right of access to environmental information34 and the right to participate in the preparation of environmental policies and regulation.35 Respect for these two rights by various ministries, agencies, and other State and local community bodies has been less than appropriate. Environmental information is scarce on the webpages and other media intended for informing the public and any direct requests for information to the state bodies are responded with significant delay, only after numerous requests for such information and, most often than not, after the request is launched through the Information Commissioner. Similarly, the public’s right to participate in the preparation of environmental policies and regulation, in processes of environmental impact assessment or in issuing environmental consents and permits in limited. As the Ombudsman for Human Rights has found in several cases, the time limits given to the public for participation in such proceedings are often unacceptably short.36 The latest such example is related to the participation of the public in the preparation of the new EPA.37 The Ministry for Environment and Spatial Planning made the draft of the new act available for comments to public only for 2 months during the summer holidays. The draft of the EPA included 338 articles, but only included an one page long explanation of reasons for the new changes. Several NGOs, civil initiatives and also the Ombudsman complained to the ministry arguing that the available time for comments on such an important and lengthy piece of legislation is too short considering the summer holiday season. The ministry failed to respond to these petitions granting the petitioners a false hope that the time limit would be extended. The ministry responded only after the time for comments expired. The Ombudsman claimed that even though the ministry respected the 2 months long comment period required by law, the fact that it provided scarce information on the new changes without providing any scientific reasoning for these changes (also requested by law) presents a violation of the right to participation. The EPA defines three other procedures that enable the individuals to participate in the environmental decision-making process. However, even in these cases the extent of the rights to participate is very limited. The individuals may participate as either an individual or through the work of the NGOs with a recognized official status of working in the public’s interest, which may bring complaints and appeals in the name of the environment.38

 Article 13, EPA.  Article, 13, 26, 34a, and 37, EPA. 36  Petition 7.0-41/2007, see: http://www.varuh-rs.si/o-instituciji/podrocja-dela-varuha/okolje-inprostor/novice/detajl/mop-javnosti-onemogocilo-kakovostno-sodelovanje-pri-pripravi-zakona-ovarstvu-okolja-1/?cHash=7e3e20b28edf11facd8139bec47b80ae; petition 7.0-25/2016, see: http:// www.varuh-rs.si/o-instituciji/podrocja-dela-varuha/okolje-in-prostor/novice/detajl/pravicajavnosti-sodelovati-pri-sprejemanju-in-spremembah-predpisov-1/?cHash=8c0978bfed31817018e 19746f2ff9254. 37  Petition 7.0-41/2007, see: http://www.varuh-rs.si/o-instituciji/podrocja-dela-varuha/okolje-inprostor/novice/detajl/mop-javnosti-onemogocilo-kakovostno-sodelovanje-pri-pripravi-zakona-ovarstvu-okolja-1/?cHash=7e3e20b28edf11facd8139bec47b80ae. 38  Pichler et al. (2010), p. 777. 34 35

582

V. Sancin and M. K. Dine

First, the individual may participate in the process of integrated environmental impact assessment39 in the preparation of a plan, program, spatial planning or any other documents the implementation of which is likely to have a substantial impact on the environment. The individual may comment the submitted plan and environmental report as part of the public debate.40 However, this right is limited only to individuals having permanent residence in the area to which the plan pertains, those who own property in the same area, and to NGOs working in the public’s interest (hereafter interested public). Second, the individual may also participate in the procedure of issuing an environmental protection consent, which must be issued when an activity is likely to have a significant impact on the environment. The issuing of the environmental protection consent must be preceded by an environmental impact assessment. Any individual has the right to comment on both the application for the environmental protection consent and on the draft of the decision.41 Interested public is considered to have a legal interest to intervene in the process of issuing the environmental protection consent,42 and may also appeal the final decision before the administrative court. Third, the individual may also participate in the procedure of issuing the environmental protection permit for the operation of an installation or a plant. The EPA actually differentiates between three different environmental permits: (a) for the operation of an installation that may cause large-scale pollution, (b) for the operation of other installations (in specific circumstances), and (c) for plants. This differentiation is important as it determines the degree of participation of the individual. The individual may participate in the process of issuing the environmental protection permit for the operation of an installation that may cause large-scale pollution by commenting both the application for such permit and the draft decision. Similarly, the interested public has a legal interest to intervene and appeal the final decision before the administrative court. No such special status for the interested public is recognized in the process of issuing an environmental protection permit for a plant. Here only the general public may comment on the application for such a permit and the draft decision, in the public debate. Participation of individuals in the process of issuing an environmental protection permit for other installations is even more limited. Information about the process of granting the permit is made public only after the competent ministry receives more than five requests from the interested public to intervene.43 In 2014, the administrative court issued a decision in the case UPRS Judgment I U 893/2014 against the Agency for Environment of the Republic of Slovenia for issuing an environmental protection permit for the operation of an installation that

 Article 40, EPA.  Article 43, EPA. 41  Article 58, EPA. 42  Article 64, EPA. 43  Article 84, EPA. 39 40

Emerging Awareness of Climate Change Litigation in Slovenia

583

may cause large-scale pollution. The applicant (two NGOs working in the public’s interest and an individual) complained that the environmental protection permit allowed the cement production plant to emit excessive emissions of dangerous substances, such as benzene, TOC, ammonium, thallium, mercury, and others. The permit would also fail to ensure the quality of air in the area, which was spreading also to areas protected under the regulations of the Nature 2000. The court found that the rules of participation of the interested public were not followed correctly in the procedure, as the NGOs were not given the opportunity to express their opinions on the concerned case. The court further added that no economic activity should be carried out in the violation of the public benefits, which includes the health of the population. However, the court found that Slovenia’s determination of limit values of emissions did not violate the right to a healthy living environment. Finally, the EPA also provides for a procedure when individuals suffer or would suffer from environmental damage caused by a third party.44 The individual, as well as the NGOs working in the public’s interest, may inform the Ministry of the Environment and Spatial Planning of the damage suffered and request it to take action against the polluter to prevent the damage or remedy it. This is a form of the application of the polluter pays principle in Slovenian legislation. In such a case the individual and the NGOs are considered as intervening parties. Appeal on the decision of the ministry is not possible, but the parties may file a suit before the administrative court.45 Regardless of the strict rules on participation of the individuals in the environmental decision-making, several civilian initiatives were established to protest such projects that would have the potential to damage the environment. In some cases, they only publicly protested, in others they got involved in the environmental impact assessment procedures and the procedures for the issue of environmental protection permits, often with the backing of environmental NGOs working in the public’s interest. Their results vary from achieving rejection of a project to convincing the national environmental agency to request environmental impact assessments for certain projects. For example, when the discussions for the building of wind power plants in the Senožeška brda became public, a civilian initiative was formed to prevent the project, claiming the plants would cause negative impact of the health of the nearby population, as well as affect the biodiversity of bird species in the area. Consequently, the project got rejected at the local referendum. Similarly, another civilian initiative achieved the annulment of the environmental protection permit for the waste sorting plant in Vevče Ljubljana. The waste sorting plant would affect the local population with is noise, air and traffic pollution, as well as life in the Ljubljanica river in case of flooding (which is common in the area). The initiative with the support of an NGO also complained against the narrow determination of the effected area by the Agency for the environment.

44 45

 Article 110g, EPA.  Article 110e, EPA.

584

V. Sancin and M. K. Dine

In the case of building a major transit route that would connect two cities in Slovenia and lead through the village Braslovče, the civilian initiative has been protesting this project since 2007. They have complained that the proposed route is more expensive, environmentally least attractive compared to the alternatives and would affect a substantially larger number of agricultural lands. Regardless of their protests, the Government in January 2017 confirmed the route as part of it special planning acts. As the legal assessment of this decision is possible the initiative filed a suit against the proposed special plan before the Administrative court in March 2017.46 In August 2017, the Agency for the Environment granted the environmental protection permit for a car varnish plant Magna in the vicinity of Maribor. Several NGOs working in the public’s interest, as well as civilian initiatives protested against the permit. The Government saw the plant as a foreign investment opportunity in Slovenia and an important employment prospect for a region starved of workplaces. Thus, even though several NGOs intervened in the procedure, their suggestions and comments were addressed in a limited scope. The plant was opposed to for its anticipated dangerous emissions into the air and water resources, air pollution from the transportation and for the need to cut down a valuable area of forest on the proposed location of the plant. This was also the first project where the reference to climate change effects was strongly present. Following the threat that the NGOs will file a suit against the agency before the Administrative court regarding the permit, which would stall the process of building of the plant, the foreign investor agreed to build the plant according to the latest technologies for management of waste emissions and waste water, move the transportation of the substances and products from the roads to train tracks to reduce traffic pollution and adapt such building plans that would cut the smallest amount of the forest possible.

3 Climate Change Litigation in Slovenia So far no cases have been filed that would explicitly argue violation of climate change mitigation or adaptation measures or would be directed against the State or public agencies for the failure to take measures to prevent climate change or to adequately adapt to it. Nevertheless, Slovenian courts have dealt with numerous cases addressing environmental issues that in one way or another affect the climate.

46

 Article 58, Spatial Management Act, Official Gazette RS, No. 61/17.

Emerging Awareness of Climate Change Litigation in Slovenia

585

3.1 Constitutional Complaints and Petitions to Review the Constitutionality and Legality of Regulations and General Acts Issued for the Exercise of Public Authority When an individual’s human right is violated he/she may file a constitutional complaint against individual acts in which state authorities, local community authorities, or bearers of public authority decided on the rights, obligations, or legal entitlements of individuals or legal entities.47 However, the complaint may be lodged only after all other legal remedies have been exhausted.48 The Ombudsman may also lodge a complaint in connection with a case that he/she is dealing with.49 So far no complaints have been filed asserting the violation of the right to drinking water and to a healthy living environment. Individuals may also lodge a petition that the procedure for the review of constitutionality or legality of regulations or general acts issued for the exercise of public authority be initiated, if they believe that an act or other regulation violates one of the two relevant constitutional rights.50 An individual has to demonstrate legal interest,51 which has proven difficult in environmental cases. “Legal interest is deemed to be demonstrated if a regulation or general act issued for the exercise of public authority whose review has been requested by the petitioner directly interferes with his rights, legal interests, or legal position.”52 The Constitutional Court’s interpretation of this article is extremely restrictive. Besides individuals, Constitutional Court Act’s Article 23a allows for the petition to be lodged also by: - the National Assembly; - one third of the deputies; - the National Council; - the Government; - the ombudsman for human rights if he deems that a regulation or general act issued for the exercise of public authority inadmissibly interferes with human rights or fundamental freedoms; - the information commissioner, provided that a question of constitutionality or legality arises in connection with a procedure he is conducting; - the Bank of Slovenia or the Court of Audit, provided that a question of constitutionality or legality arises in connection with a procedure they are conducting; - the State Prosecutor General, provided that a question of constitutionality arises in connection with a case the State Prosecutor's Office is conducting;

 Article 50, Constitutional Court Act, Official Gazette RS, Nos. 64/07 – official consolidated text and 109/12. 48  Article 51, Constitutional Court Act. 49  Article 50, Constitutional Court Act. 50  Article 24, Constitutional Court Act. 51  Ibid. 52  Ibid. 47

586

V. Sancin and M. K. Dine

- representative bodies of local communities, provided that the constitutional position or constitutional rights of a local community are interfered with; - representative associations of local communities, provided that the rights of local communities are threatened; - national representative trade unions for an individual activity or profession, provided that the rights of workers are threatened.53

Among the first cases where the Constitutional court addressed issues of environmental protection was the case U-I-30/95, where the court recognized both the legal interest of the petitioning NGO and the petitioning group of individuals. A municipal decree adopting a building plan of a small industrial zone was challenged as per the petitioners it presented a serious intervention in the space which, because of its natural attributes (spring water, wetlands and the catchment area for lake Bled) requires a much more considered approach for adoption of such a decree. The petitioners also claimed that the plan would need to obtain positive opinions from the office for the Protection of Nature on the issues of protection of water in the region. The region is one of the last preserved catchment areas of Lake Bled, in which protecting the water sources of the inflowing lake waters demands an integral interdisciplinary approach to the solution. The court found that the NGO Society of Ecologists of Slovenia holds legal interest as a “professional association, whose members are involved in research, professional, popularization, popular science and pedagogic activities in the field of the study of ecosystems and their protection”.54 Additionally, the court also confirmed the legal interest of the individual petitioners. It decided, that “the individual's interest in preventing damaging encroachments in space is not restricted only to the narrower environment in which he lives, or to preventing minimal damage, but is certainly wider.”55 The court concluded that the concerned decree shall be annulled as it violated the rules on spatial planning. However, later case law indicates a more restrictive approach to the interpretation of the legal interest of the petitioners. In case U-I-113/00 two individual petitioners and an NGO filed a petition against the Decree on Emissions in the Air from the Incineration of Municipal Waste and Decree on the Emission of Substance in the Air from the Incineration of Dangerous Waste arguing that the decrees allow the emission of dangerous and poisonous substances in the air far above the norms defined in the draft of EU directives. The petitioners claimed that the State plans to build a waste incarceration plant of large proportions under financially lower costs as elsewhere in the world due to the low emission standards. The court denied petitioners legal interest, as it was in its opinion insufficiently direct and concrete. The court noted that the petitioners complain about a decree that as such demonstrates no interference in the environment at the time of the petition. If the decision to build an incarceration plant is adopted according to these decrees, the petitioners might

 Article 23a, Constitutional Court Act.  Paragraph 8, Judgment U-I-30/95. 55  Paragraph 9, Judgment U-I-30/95. 53 54

Emerging Awareness of Climate Change Litigation in Slovenia

587

have a legal interest.56 For the same reasons the court also denied the legal interest of the NGO Umanotera, an NGO that works in the public’s interest.57 Similarly, in the case U-I 255/00, the Court rejected legal interest to the Society of Landscape Architects in a petition to review the constitutionality of a municipal ordinance on a public pool project, arguing that the fact, the “general assertion that they live and work in the area of a local community does not constitute their right to challenge” that the ordinance threatens their healthy living environment.58 The examples where the legal interest of the petitioners was recognized are the cases, where the participants live in the immediate vicinity of the area under assessment.59 Constitutional court also interpreted the meaning of the right to a healthy living environment. In the case U-I-254/99, the court points out that the right to a healthy living environment protects from excessive modifications to the environment, which exist only if there is excessive burdening of the environment, which exceeds marginal values of the limits of allowed modifications.60 Similar need of excessive modifications applies in cases of deterioration of living conditions.61 As the right to drinking water was just recently added to the constitution there have not yet been any cases challenging its violation.

3.2 Litigation for Damage Under the Obligations Code There exists a fair amount of cases before the Slovenian courts in civil law proceedings relating to air pollution or to other emissions that could also affect the climate and can thus be regarded as climate change litigation. These cases are for the discontinuation of the damaging activities and for compensation. Article 133 of the Obligations Code62 allows for the request for removal of risk of damage: 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. At the request of a person with legitimate interest the court shall order appropriate measures to prevent the occurrence of damage or disturbance or to dispose of a source of danger to be taken at the expense of the possessor thereof should the latter fail to do so.

 Paragaph 4, Judgment U-I-113/00.  Paragraph 5, Judgment U-I-133/00. 58  Judgment U-I-255/00. 59  Judgments U-I-315/00; U-I-265/99; U-I-292/97; U-I-24/96. 60  Judgment U-I- 254/99. 61  Judgment U-I-315/00. 62  Obligations Code, Official Gazette RS, Nos. 97/07 and 64/16 – odl. US. 56 57

588

V. Sancin and M. K. Dine

If damage arises during the performance of generally beneficial activities for which permission has been given by the relevant authority, it shall only be possible to demand the reimbursement of damage that exceeds the customary boundaries. Nevertheless, appropriate measures to prevent the occurrence of damage or to reduce damage may also be demanded in such case.63

The Slovenian courts confirmed that Article 133 of the Obligation Code concretizes the constitutional right to a healthy living environment.64 In the case VSL order II Cp 3973/2009, the court adopted a broad interpretation of this article and added that it is intended to protect the environment and to prevent any activities in the environment that cause direct danger for the life and health of people. It added that the article should be read in relation to the EPA and that it presents a way to fulfill EPA’s Article 14 allowing for environmental litigation. Slovenia’s courts have addressed the issue of air pollution from excessive transportation in several cases and have thus continuously confirmed that polluted air from an overcrowded nearby road, the noise pollution and constant shaking, represent a serious interference with the right to a healthy living environment.65 As transportation is a serious contributor to climate change these cases could be considered as indirect climate change cases. However, the courts followed the Constitutional court’s determination of the right to a healthy living environment and 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 transportation in the environment.66 The court noted in a different case that the point when the normal interference is exceeded, is a legal question, which involves the determination of the legal standard of the normal level of interference in each individual case.67 The court in several cases expressed its opinion that the standard of the normal level of interference is higher in urban areas.68 It is noteworthy, that the wrongful element in all these cases was found to be the excessive interference in the environment, i.e. the unusual damage caused by the transportation activities, which can be caused also by non-wrongful activities.69

 English translation of the Obligation Code, see: http://www.svz.gov.si/fileadmin/svz.gov.si/ pageuploads/prevodi/List_of_Slovene_laws_and_regulations_in_English.pdf. 64  VSL order II Cp 3973/2009, 2 December 2009. 65  Judgment 567/2008, 9 July 2008; VSM Judgment I Cp 2989/2005, 7 November 2006; Judgment II Ips 940/2007, 24 January 2008; VSM Judgment I Cp 1887/2008, 14 January 2009; VSL intermediate judgment I Cp 3518/2010, 3 March 2011; VSL Judgment II Cp 784/2015, 8 April 2015. 66  VSM Judgment I Cp 2989/2005, 7 November 2006; Judgment II Ips 940/2007, 24 January 2008. 67  VSM Judgment I Cp 1887/2008, 14 January 2009. 68  VSM Judgment I Cp 2989/2005, 7 November 2006; VSL Judgment II Cp 4088/2011, 11 January 2012. 69  VSL intermediate judgment I Cp 3518/2010, 3 March 2011; VSL Judgment II Cp 784/2015, 8 April 2015. 63

Emerging Awareness of Climate Change Litigation in Slovenia

589

4 Effective Climate Change Litigation in Slovenia: The Way Forward Article 14 of the EPA is the most promising avenue for climate change litigation in Slovenia. As illustrated above, the article gives the individual a 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 thus be used also for activities where the environmental burden will manifest itself in the future, which is often the case with activities contributing to global warming and climate change. To prove the existence or possible future formation of excessive environmental burden and to prove the existence of a direct threat to human life or health would be excessively costly for any individual. The greatest cost would include carrying out environmental measurements and monitoring to illustrate the damage in the environment caused by the concerned activity, at private expense, since there is a lack of sufficient statistical data on the status of the environment in Slovenia. However, with the research activities on the impact of climate change increasing also in Slovenia,70 more data is gathered on the effects of various activities that could be used in litigation proceedings. Another avenue open for climate change litigation in Slovenia in the future could be in regards to the respect of the right to drinking water. As climate change projections for Slovenia all indicate serious drought in the summer months,71 drinking water resources will become scarcer. Therefor it is on the State to take appropriate action to prevent the reduction of this crucial natural resource. A petition before the Constitutional Court of Slovenia addressing an act violating the right to drinking water due to climate change could be thus the most plausible and the easiest for establishing the legal interest of the petitioner. Notwithstanding the above, the work of civil initiatives and environmental NGOs in trying to prevent environmental damage is also commendable. They got involved in the majority of procedures for issuing environmental permit where there was a risk for serious environmental damage. While their success rate in these procedures varies, they keep increasing the awareness among the governmental institutions about the potential damaging effects of certain activities and thus contribute to the respect for the precautionary principle. The NGOs are becoming increasingly concerned also about the climate change impact of certain activities and are beginning to push for stronger climate change impact assessment as part of the environmental impact assessment. This is a crucial step in putting the focus on preventative action rather than litigation. Finally, the International Environmental Law Clinic at the Faculty of Law, University of Ljubljana,72 is providing education and research on litigation options for

 Climate Path 2050, see: https://www.podnebnapot2050.si/.  Strategic framework for climate change adaptation, see: http://www.mop.gov.si/fileadmin/mop. gov.si/pageuploads/podrocja/podnebne_spremembe/SOzP_ang.pdf. 72   International Legal Environmental Clinic, see: http://www.pf.uni-lj.si/ob-studiju/ pravna-klinika-za-varstvo-okolja/. 70 71

590

V. Sancin and M. K. Dine

addressing climate concerns in Slovenia. In the clinic the students search for creative solutions for practical problems. In the past the clinic has provided studies on the protection of biodiversity and certain animal species in Slovenia, air pollution with PM10 particles, the obligation of the State to provide for the right to drinking water, and the legal status of environmentally displaced persons internationally and in Slovenia. Individuals migrating due to environmental degradation of their homeland caused by climate change induced disasters are knocking also on the doors of Slovenia and climate change litigation includes also the fight for their rights.73 The studies prepared by the International Environmental Law Clinic have been recognized by many, including the Ministry of Environment, as a valuable resource in addressing topical environmental concerns. In the study year 2017/2019, the law clinic worked with the largest environmental law NGO in Slovenia concluding its research on the responsibility of the States for violations of international legal climate change obligations.74 Its findings in line with the latest success of some of the climate change cases around Europe, have given the Slovenian environmental NGOs a push in their discussion on the option of filing the first climate change claim against the state.

5 Conclusion As evident from the above, Slovenia’s governmental response to the pressing issue of climate change has so far been inadequate. Moreover, at present there exists no jurisprudence before domestic courts directly tackling climate change. The main obstacles for actual attempts at climate change litigation mostly relate to the difficulty of establishing the necessary legal interest of petitioners, including before the Constitutional court, the lack of judicial interpretation benefiting environmental protection, as well as the significant costs involved in such litigation. However, due to the active engagement of the civil society and growing educational projects, such as environmental legal clinics and similar projects, which empower future lawyers and judges with necessary environmental knowledge, including on climate change, there exists significant potential for future climate change litigation in Slovenia.

References Act amending the State Administration Act, Official Gazette RS, No. 21/12 Act ratifying the Amendment to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Official Gazette RS, No. 1/10

 For the study on the legal status of the environmentally displaces persons see: http://www.pf. uni-lj.si/media/studija.projekta.pdf. 74  For a short overview of the study on The responsibility of the States for violations of international legal climate change obligations in Slovenian see: http://www.pf.uni-lj.si/media/koncna. studija.-.odgovornost.drzav-compressed.pdf. 73

Emerging Awareness of Climate Change Litigation in Slovenia

591

Act Ratifying the Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters, Official Gazette RS, No. 17/04. Climate Path 2050. https://www.podnebnapot2050.si/. Accessed 10 Oct 2018 Constitution of the Republic of Slovenia, Official Gazette RS Nos. 33/91-I 42/97, 66/2000, 24/03, 69/04, 68/06, 47/13 and 75/16 Constitutional Court Act, Official Gazette RS, Nos. 64/07 – official consolidated text and 109/12 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention), 2161 UNTS 447, 38 ILM 517 (1999) Decision No 406/2009/EC of the European Parliament and of the Council of 23 April 2009 on the effort of Member States to reduce their greenhouse gas emissions to meet the Community’s greenhouse gas emission reduction commitments up to 2020, OJ L 140, 5.6.2009, p. 136–148 Decree on the establishment of the Office of teh Government of Slovenia for Climate Change, Official Gazette RS, No. 49/2009 Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts, OJ L 94, 28.3.2014, p. 1–64 Government Session, 23 May 2019. http://www.vlada.si/delo_vlade/dnevni_redi/dnevni_redi/ article/32_redna_seja_vlade_rs_dne_23_maja_2019_62589/. Accessed 25 June 2019 Human Rights Ombudsman Act, Official Gazette RS, Nos. 69/17 – official consolidated text Human Rights Ombudsman, About Us, Environment and Spatial Planning. http://www.varuh-rs.si/ index.php?id=84&L=6. Accessed 8 Jan 2018 International Legal Environmental Clinic. http://www.pf.uni-lj.si/ob-studiju/pravna-klinika-zavarstvo-okolja/. Accessed 6 Jan 2018 Judgment 567/2008, 9 July 2008 Judgment II Ips 940/2007, 24 January 2008 Judgment U-I-113/00, http://odlocitve.us-rs.si/en/odlocitev/AN02218?q=U-I-113%2F00 (8.1.2018) Judgment U-I-24/96, http://odlocitve.us-rs.si/en/odlocitev/AN01943?q=U-I-24%2F96 (8.1.2018) Judgment U-I-254/99, http://odlocitve.us-rs.si/en/odlocitev/AN02362?q=U-I-254%2F99 (8.1.2018) Judgment U-I-255/00, http://odlocitve.us-rs.si/en/odlocitev/AN02249?q=U-I-255%2F00 (8.1.2018) Judgment U-I-265/99, http://odlocitve.us-rs.si/en/odlocitev/AN02714?q=U-I-265%2F99 (8.1.2018) Judgment U-I-292/97, http://odlocitve.us-rs.si/en/odlocitev/AN02164?q=U-I-292%2F97 (8.1.2018). Judgment U-I-30/95, http://odlocitve.us-rs.si/en/odlocitev/AN01045?q=U-I-30%2F95 (8.1.2018) Judgment U-I-315/00, http://odlocitve.us-rs.si/en/odlocitev/AN02726?q=U-I-315%2F00 (8.1.12018) Legal status of the environmentally displaces persons. http://www.pf.uni-lj.si/media/studija.projekta.pdf. Accessed 6 Jan 2018 Obligations Code, Official Gazette RS, Nos. 97/07 and 64/16 – odl. US Operative program of measures to reduce greenhouse gas emissions until 2020 (OP-TGP2020). http://www.energetika-portal.si/fileadmin/dokumenti/publikacije/op_tgp/op_tgp_2020.pdf. Accessed 4 Jan 2018 Order on the establishment of the Inter-sectoral working group for climate change adaptation, which includes also all the names of the members of the group. http://www.mop.gov.si/fileadmin/mop.gov.si/pageuploads/podrocja/podnebne_spremembe/medresorska_delovna_skupina_sklep.pdf. Accessed 8 Jan 2018 Paris Agreement (Dec. 13, 2015), in UNFCCC, COP Report No. 21, Addenum, at 21, U.N. Doc. FCCC/CP/2015/10/Add, 1 (Jan. 29, 2016) Petition 7.0-25/2016. http://www.varuh-rs.si/o-instituciji/podrocja-dela-varuha/okolje-in-prostor/ novice/detajl/pravica-javnosti-sodelovati-pri-sprejemanju-in-spremembah-predpisov-1/?cHas h=8c0978bfed31817018e19746f2ff9254. Accessed 8 Jan 2018 Petition 7.0-41/2007. http://www.varuh-rs.si/o-instituciji/podrocja-dela-varuha/okolje-in-prostor/ novice/detajl/mop-javnosti-onemogocilo-kakovostno-sodelovanje-pri-pripravi-zakona-ovarstvu-okolja-1/?cHash=7e3e20b28edf11facd8139bec47b80ae. Accessed 8 Jan 2018 Pichler D, Pucelj Vidović T, Pličanič S, Pirnat R, Kelšin S (2010) Commentary to the environment Protection Act. Inštitut za javno upravo pri Pravni fakulteti, Ljubljana Spatial Management Act, Official Gazette RS, No. 61/17

592

V. Sancin and M. K. Dine

Strategic framework for climate change adaptation. http://www.mop.gov.si/fileadmin/mop.gov.si/ pageuploads/podrocja/podnebne_spremembe/SOzP_ang.pdf. Accessed 6 Jan 2018 The Environment Protection Act (EPA), Official Gazette RS, Nos. 39/06, 49/06 – ZMetD, 66/06 – odl. US, 33/07 – ZPNačrt, 57/08 – ZFO-1A, 70/08, 108/09, 108/09 – ZPNačrt-A, 48/12, 57/12, 92/13, 56/15, 102/15, 30/16 and 61/17 – GZ The responsibility of the States for violations of international legal climate change obligations. http://www.pf.uni-lj.si/media/koncna.studija.-.odgovornost.drzav-compressed.pdf. Accessed 8 Oct 2018 Third draft of the Act on Climate Change (2011). http://www.arhiv.svps.gov.si/fileadmin/svps.gov. si/pageuploads/3._osnutek/ZPS_140210_vse.pdf. Accessed 4 Jan 2018 VSL intermediate judgment I Cp 3518/2010, 3 March 2011 VSL Judgment II Cp 4088/2011, 11 January 2012 VSL Judgment II Cp 784/2015, 8 April 2015 VSL order II Cp 3973/2009, 2 December 2009 VSM Judgment I Cp 1887/2008, 14 January 2009 VSM Judgment I Cp 2989/2005, 7 November 2006 Dr. Maša Kovič Dine  (PhD) is an Assistant Professor at the Department of International Law at the Faculty of Law, University of Ljubljana. After graduating the Faculty of Law, University of Ljubljana, she continued her studies at the Faculty of law, University of Toronto, where she also worked at the Research Group for G7/G8 countries. She defended her PhD thesis in International Environmental Law on the topic of international forest protection at the Faculty of Law, University of Ljubljana, where she has been teaching an array of courses at both undergraduate and graduate level including Public International Law, Law of the Sea, International Humanitarian Law, International Criminal Law and International Environmental Law. She is also a mentor to student teams competing at international moot court competitions, a mentor of the International Environmental Law Clinic, mentor in the national Environmental defenders program, and the conference coordinator of a series of international interdisciplinary scientific conferences entitled Contemporary Challenges of International Environmental Law and Responsibility to Protect in Theory and Practice. Among other professional affiliations, she is a Secretary of the Slovene Branch of the International Law Association (ILA) and a member of the International Union for Conservation of Nature (IUCN). E-mail: [email protected]. Dr. Vasilka Sancin  (PhD) is an Associate Professor of International Law and Head of the Department of International Law at the Faculty of Law, University of Ljubljana (Slovenia). She is a member of the UN Human Rights Committee (2019–2022) and an arbitrator and a member of the Bureau of the OSCE Court of Conciliation and Arbitration (2019–2025). Among other professional affiliations, she is a President of the Slovene Branch and a member of the Executive Council of the International Law Association (ILA) and a member of the International Union for Conservation of Nature (IUCN), the National Inter-ministerial Commission for Human Right and the Inter-governmental working group on International Humanitarian Law. She teaches and lectures at numerous foreign institutions and is a member of Editorial Boards of various legal journals and author or editor of numerous books and articles in different areas of international law and their intersections, including international environmental law. She is also a mentor to student teams competing at international moot court competitions, a mentor of the International Environmental Law Clinic, and a conference chair of a series of international interdisciplinary scientific conferences, including the Contemporary Challenges of International Environmental Law conferences. E-mail: [email protected].

Climate Change Litigation in a Comparative Law Perspective Barbara Pozzo

Abstract  The complex evolution of the international regulation has led to the development of alternative policy architectures for addressing the threat of global climate change, and to very heterogeneous results in the various regions. This chapter examines in detail how legal transplants work in the environmental field, why they are continuously increasing, and analyses their specific characteristics. In particular legal transplants of environmental protection models have been strongly influenced by the globalized perception of the environmental phenomenon, and by that of its protection. In the last decades, we are witnessing the development of a body of rules, which tends towards a progressive approaching in the development of common operational choices in addressing environmental problems. This certainly derives from the fact that the environmental problem, in addition to having affected all legal systems in an almost contemporary way, is suitable to involve by its very nature multiple countries at the same time. Nonetheless, although climate change protection is a global issue, the implementation of climate change regulations remains a local issue, giving rise to different protection regimes that render comparative law analysis a suitable tool to investigate on the differences existing in the various legal systems.

1 The International Setting Climate change has undergone a process of international regulation, which has experienced its ups and downs, with international diplomacy devoting more and more attention to the phenomenon.1

 Oberthür and Pallemaerts (2010); Harris (2000), p. 11; Hsu et al. (2015), p. 501.

1

B. Pozzo (*) Department of Law, Economics and Cultures, University of Insubria, Como, Italy e-mail: [email protected] © Springer Nature Switzerland AG 2021 F. Sindico, M. M. Mbengue (eds.), Comparative Climate Change Litigation: Beyond the Usual Suspects, Ius Comparatum - Global Studies in Comparative Law 47, https://doi.org/10.1007/978-3-030-46882-8_31

593

594

B. Pozzo

From the 1992 United Nations Framework Convention on Climate Change (UNFCC),2 to the Kyoto Protocol, which came into force in February 2005, the alternating phases of the institutional debate have established an international binding legislative framework for action, setting the objectives (mitigation and adaptation), and the tools (emissions trading, clean development mechanism, joint implementation) for facing the challenge of climate change.3 It should also be noted that, within the framework of the UNFCC and the principle of common but differentiated responsibility, industrialised, newly industrialised and developing countries are all called upon to play an active role in climate protection. After the 18th Conference of the Parties (COP) held in Doha, Qatar, the complex structure taken on by international negotiations has become self evident. The idea of a single binding international agreement, which would have favoured the prorogation and extension of the Kyoto Protocol has been given up. After that, an attempt was made to cope with the various problems arising out of climate change on the different working tables, but the outcome of these efforts is not easily assessed. International negotiations have very likely become so complex because of the will to encourage the participation and involvement of all the industrialised and newly industrialised countries as much as possible.4 After the COP held in Bali in 2007,5 it became evident that the United States were to be taken back to the negotiating table and newly industrialised countries were to be induced to make mitigation efforts worldwide, including with tools other than the Kyoto Protocol under the auspices of the United Nations Framework Convention on Climate Change. However, countries found it hard not to carry on heading down the path set by the Kyoto Protocol, which was felt by most of the Parties concerned as a sort of acquis of the international legislation on climate change. In order to lead the United States back to higher participation, the parties decided to launch a second round of negotiations, always within the Framework Convention, by setting up a second working table, the so called Ad Hoc Working Group on Long-­ term Cooperative Action under the Convention (AWG-LCA).6 As set out in section 3.9 of the Kyoto Protocol, the AWG-LCA was supposed to prepare the first meeting of the parties to the Protocol held in Montreal in 2005, in parallel with the so called Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG-KP), so as to identify the obligations of the Parties after 2012.

 Freestone (2016).  Piñon Carlarne (2010), p. 6. 4  Cass (2006). 5  Ott et al. (2008). 6  Christiansen (2003). 2 3

Climate Change Litigation in a Comparative Law Perspective

595

Hence, the complexity of the negotiations held in parallel, sometimes with different parties, which inevitably results in a lack of transparency of the outcome of the negotiations themselves. The Paris Agreement, which entered into force on 4 November 2016, was aimed at bringing all nations into a common cause to undertake ambitious efforts to combat climate change and adapt to its effects, with enhanced support to assist developing countries to do so. It was considered a success also because of the will of President Obama and President Xi Jinping to sustain it.7 Notwithstanding the withdrawal announced by President Trump, the Paris Agreement remains the point of reference in this complicated evolution of climate change. In this context, the 24th Conference of the Parties to the United Nations Framework Convention on Climate Change took place in Katowice in December 2018. At the conference (COP24), the international community agreed on the Katowice Rulebook, that spells out the details on implementing the Paris Climate Agreement. It lays down how countries’ national climate contributions should be measured, compared and forwarded to the UNFCCC secretariat.

2 Different Approaches to Climate Change The complex evolution of the international scenario has led to the development of alternative policy architectures for addressing the threat of global climate change, and to very heterogeneous results in the various regions.8 In particular, it is no news that the United States and the European Union share no common perspective on what should be done to fight climate change.9 Although both, the US and the EU played key roles in the negotiations for the UNFCCC, it is also to note that their roles in the international context has changed over the years and that climate negotiations saw the US and the EU reversing roles from those they had adopted only a few years before during the ozone negotiations.10 In the period between the 1960s and the end of the 1980s, the United States has been an enthusiastic promoter of international agreements and treaties in the environmental sector. As Philippe Sand pointed out back in 1994: the United States has, historically, played a dominant role in the development of international environmental law. Many of the principles endorsed by the Rio Declaration on Environment and Development were first expressed in U.S. domestic legislation, especially the emerging rules of international law concerning environmental impact assessment, the right of citizens to have access to environmental information and rights of redress before judicial and administrative bodies, and provisions on liability for environmental damage. Many of these emerging international commitments can be traced directly to domestic

 Boom et al. (2016).  Aldy et al. (2003). 9  Piñon Carlarne (2010), p. 237. 10  Piñon Carlarne (2010), p. 6. 7 8

596

B. Pozzo

U.S. law, which has in this and other ways contributed significantly to international law reform.11

The US leadership developed in the environmental field at the international level in the 1970s and 1980s could be considered perfectly in line with the US domestic policy in that period. The environmental standards imposed on American companies in those years were certainly more stringent than those made by any other industrialized nation, and the leading role of the United States at the international level was certainly recognized. An example can easily be drawn from the story that has characterized the American policy on ozone-destroying chemicals. Towards the mid-1970s, the U.S.  Environmental Protection Agency severely limited the use of Chlorofluorocarbons (CFCs), which strongly affected the domestic production concerned by this initiative.12 In 1977 the Congress banned the use of CFCs and the US government began to pressure European companies to adopt standards similar to those already imposed on American companies in Europe. The legislation promulgated by the American Congress remained however much more severe than the European one for several years and the Montreal Protocol was adopted in 1987 thanks to American diplomacy.13 Starting in 1992, the role of the United States as a reference model in the environmental sector began a waning parable. In the absence of effective support from environmentalists, and in the face of numerous criticisms from the world of industrialists, President Bush took a much more detached attitude towards environmental issues and was the only great leader who did not attend the Earth Summit of Rio of 1992.14 The different position of environmentalist lobbies appeared even clearer after the election of President Clinton. Clinton proposed a package of environmental reforms and signed the Convention on Biological Diversity adopted in Rio, but failed to obtain ratification by the Senate or the adoption of any specific legislation in the environmental sector.15 In 1997, when the Kyoto Protocol was opened for signature, Clinton first undersigned the international commitment, which was never ratified by the Senate. Later, President George Bush Jr. distanced himself from international climate change negotiations, preferring not to impose any new environmental burden on American industries. In a 2005 Report prepared by the Natural Resources Defense Council,16 the US President’s policy regarding climate change is described as “characterized by irresponsible inaction and studied ignorance in the face of overwhelming scientific consensus.”17

 Sand (1993).  Kelemen and Vogel (2010), p. 450. 13  Benedick (1991). 14  Hopgood (1998), p. 140. 15  Kelemen and Vogel (2010), p. 439. 16  Cousins et al. (2005). 17  Cousins et al. (2005), p. 9. 11 12

Climate Change Litigation in a Comparative Law Perspective

597

2.1 The United States: Litigation in the Absence of Regulation Notwithstanding the fact that the United States has never ratified the Kyoto Protocol,18 a number of actions aimed at facing climate changes have been taken in the country to make up for the gaps and defects of federal regulations.19 Industries have been the first to take action with their “greener” styles and attitudes: Companies have begun rebranding themselves to suggest a more climate-friendly agenda – such as British Petroleum’s new tag line “Beyond Petroleum”- and a wide range of corporations are establishing corporate GHG reduction targets, while entrepreneurs look to profit from people’s desires to do something about the climate problem.20

In his respect, the idea is often to take measures aimed at a “voluntary, legally binding, rules-based greenhouse gas emission reduction and trading system”.21 The second kind of action has been a local one. In spite of the lack of specific federal regulations, local initiatives have been remarkable. The first example is the Regional Greenhouse Gas Initiative (RGGI): in December 2005, the governors from seven states entered into an agreement on a system of cap and trade for carbon dioxide.22 These states undertook to reduce their CO2 emissions from electric plants by 10% by the end of 2018. The Parties to this agreement auction off their emission credits and invest the proceeds for the benefit of consumers through energy efficiency policies, renewable energy and other clean energy technologies. Another interesting initiative has been taken by 22 States and the District of Columbia, who ask their municipal utilities to develop part of their electricity from renewable sources, while Washington and Oregon ask for a compensation for Greenhouse gases (GHG). 2.1.1 The Climate Change Litigation Movement The third and last kind of action concerns the development of a “climate change litigation” movement,23 which may be not so much aimed at damage compensation but rather at “regulation through litigation”.24 As it has been pointed out:

 See the American Report by Margaret Rosso Grossman in this book. See also Harrison (2010), p. 67. Further compare Chalecki (2009), p. 18, in particular p. 152. 19  Hersch and Viscusi (2006). 20  Hunter and Salzman (2007). 21  Hunter and Salzman (2007), p. 1743. 22  The agreement has been signed by nine States: Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont. 23  Pidot (2006). 24  Hersch and Viscusi (2006), p. 1662. 18

598

B. Pozzo

In view of this government failure, the use of litigation to address the consequences of climate change might be viewed as being under the general purview of the overall regulation through litigation movement.25

Another commentator emphasized “the socio-legal role that climate change litigation plays” in constituting “a formal part of the regulatory process” as well as serving as an “expressive,” or “social norm creating” force.26 In particular, [t]he adjudication provides a mechanism for dialogue and awareness . . . in a regulatory environment in which policies have not caught up with the problem. At least as important, it creates diagonal interactions through which different levels and branches of regulators interact and grapple with what is needed.27

This is not the place to deepen the discussion if litigation might or not be considered the most suitable instrument to fight against climate change.28 Anyway, as it has already been pointed out: To the extent that litigation can replicate what a meaningful government policy can do, it will do so by establishing appropriate incentives to control emissions related to global warming at efficient levels. What is missing from the litigation process is any internal check to ensure that an efficiency-based pollution control objective is being fostered and that the preferences reflected in the incentives created by the litigation coincide with those of society more generally. It is likely, for example, that the private gain that the litigators stand to reap from such litigation is a strong motivation. There is no assurance that these private gains are in line with societal benefits and costs.29

What is important to underline here, is that climate change litigation in the US context needs to be considered as a reaction—from different parts—to the government’s absence from the scene.30 Nonetheless, climate change litigation does not present itself as a monolithic block, or as a homogeneous trend, but—much more—as a series of proceedings started by different parties for very heterogeneous purposes.31 A first group of cases concerned actions from various states against public authorities. In the leading case Massachusetts et al., v. Environmental Protection Agency,32 for example, states sued the EPA under the Clean Air Act (CAA) to order the agency to regulate carbon dioxide as a pollutant.33 In particular, the claimants  Id.  Osofsky (2009), pp. 380 and 383. 27  Id., p. 383. 28  Huggins (2008). 29  Hersch and Viscusi (2006), p. 1663. 30  Blomquist (2012). 31  Markell and Ruhl (2010). Compare further the US Report by Margaret Rosso Grossman. 32  Supreme Court, 2 April 2007. 33  In Massachusetts v. EPA (2007), the U.S. Supreme Court interpreted the Clean Air Act (“CAA”) to require the Environmental Protection Agency (“EPA”) to regulate greenhouse gas emissions from motor vehicles if the EPA Administrator finds that the emissions endanger public health and welfare (“Endangerment Finding”). See Cecot (2012), p.  190. See further Markell and Ruhl (2010), p. 15; Hester (2012), p. 52; Hunter (2008), p. 268. 25 26

Climate Change Litigation in a Comparative Law Perspective

599

sued the U.S.  Environmental Protection Agency, because it had “abdicated its responsibility under the Clean Air Act to regulate the emissions of four greenhouse gases, including carbon dioxide”34 from new motor vehicles. Petitioners asked the Supreme Court to determine whether the EPA had statutory authority to regulate GHG emissions and whether the EPA’s reasons for failing to regulate were consistent with the CAA. The Supreme Court in Massachusetts et al., v. Environmental Protection Agency analysed different issues. First of all the standing issue. Justices recognized that GHG emissions caused widespread harm, but at the same time that the State of Massachusetts had constitutional requirements for standing. Massachusetts, as landowner and parens patriae for its citizens, was recognized having standing to sue. As far as the causation issue is concerned, the Court evaluated that carbon dioxide emissions from motor vehicles contributed significantly to GHG, so that finally EPA was recognized as competent to regulate GHG. A second group of cases is exemplified by the action started by some towns and environmental associations against the Overseas Private Investment Corporation (OPIC), the financial institution of the Government of the United States, which promotes US private investments in newly industrialised countries, within the wider framework of US foreign policy promotion.35 The plaintiffs in this action claimed that the OPIC should start conducting environmental impact assessments regarding its investment procedures, taking into account any possible climate impact of the infrastructures financed by the OPIC itself.36 A third group of cases is closely linked with the protection of human rights, as in the case brought by the representatives of the Inuit peoples against the United States before the Inter-American Commission on Human Right.37 In 2005, the Chair of the Inuit Circumpolar Conference filed a petition against the United States with the Inter-American Commission on Human Rights (IACHR), which is an independent, seven-member body of the Organization of American States (OAS).38 The petition alleged that the United States committed human rights violations against the Inuit people of the United States and Canada, by failing to restrict GHGs emissions, which resulted in climate change and harm to Inuit culture, life, and physical integrity.39

 Massachusetts v. EPA (no. 05-1120), Supreme Court of the United States, Massachusetts, et al., Petitioners v. Environmental Protection Agency et al., on writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit, April 2, 2007, p. 1. 35  Friends of the Earth, Inc. v. Watson, No. C 02-4106 JSW, 2005 U.S.  Dist. LEXIS 42335 (N.D. Cal. Aug. 23, 2005). 36  Hunter and Salzman (2007), p. 1743. 37  Petition to the Inter American Commission on Human Rights Seeking Relief From Violations Resulting From Global Warming Caused by Acts and Omissions of the United States (available at http://www.ciel.org/Publications/ICC_Petition_7Dec05.pdf) (last visited December 2018). Borràs (2012). 38  Markell and Hammond (2012). 39  Markell and Hammond (2012), p. 29. 34

600

B. Pozzo

The petition requested that the IACHR conduct an investigation, hold a hearing, issue a report declaring that the United States is responsible for violations of the American Declaration of the Rights and Duties of Man, and recommend that the United States take measures to limit GHG emissions and protect the Inuit people.40 In 2006, the Commission stated that it would not process the petition “at present,” explaining that it was not able to determine, based on the information in the petition, whether the facts alleged would support a finding that the rights protected by the Declaration had been violated.41 2.1.2 Climate Change Tort Litigation A fourth series of initiatives shows that there has been an increase in tort actions against private individuals for compensation of damages resulting from climate changes.42 These actions are hard to tackle because of the difficulties in establishing a clear causal connection, in  quantifying and distinguishing the damages resulting from anthropical events from those caused by natural events, in identifying and attributing liability.43 The development of scientific knowledge will definitively help law experts with their theorization efforts.44 Tort litigation as developed so far in the United States shows, on the one hand, the nature of its possible claims and, on the other, the unquestionable difficulties of this kind of lawsuits. In Connecticut v. American Electric Power,45 eight states and the city of New York brought an action against five important fuel manufacturers, allegedly the main parties responsible for CO2 emissions in the United States. The lawsuit was based in the tort of public nuisance,46 which can be defined as a behaviour, which obstructs the exercise of rights common to all.47 In the case at issue, the breach of the duty of care against defendants was described as follows: Defendants, by their emissions of carbon dioxide from the combustion of fossil fuels at electric generating facilities, are knowingly, intentionally or negligently creating, maintaining or contributing to a public nuisance – global warming – injurious to the plaintiffs and their citizens and residents.

 Osofsky (2006), p. 675.  Markell and Hammond (2012), p. 29. 42  Thorpe (2008), Gifford (2010), Grossman (2003), Blomquist (2012), and Hunter (2008). 43  Pfrommer et al. (2019) and Hinteregger (2017). 44  Grossman (2003), p. 9: “Any climate change lawsuit will be inextricably linked to the science of global warming”. 45  Connecticut v. American Elec. Power Co., Inc., 582 F. 3d 309—Court of Appeals, 2nd Circuit 2009. 46  Prosser (1966), p. 1001. 47  As concerns tort of public nuisance regulations, see Restatement Second of Torts (1977): Christie et al. (1990), p. 874. 40 41

Climate Change Litigation in a Comparative Law Perspective

601

Defendants could generate the same amount of electricity while emitting significantly less carbon dioxide by employing readily available processes and technologies. Defendants know or should know that their emissions of carbon dioxide contribute to global warming and to the resulting injuries and threatened injuries to the plaintiffs, their citizens and residents, and their environment.48

The suit was never decided at first instance because the Court turned down the claim on the grounds that it was a “nonjusticiable political question”. The plaintiffs appealed. In an ensuing lawsuit, Korsinski v. United States EPA,49 Mr Korsinski sued the Environmental Protection Agency for tort of public nuisance. The plaintiff’s claims, which were mainly based on the same demands made in Connecticut v. American Electric Power,50 were turned down for inability to prove a specific injury. In Comer v. Murphy,51 which went down in history as “the first climate change liability damages suit”,52 some citizens victims of hurricane Katrina sued nine fuel manufacturers, thirty-one coal producers and four chemical companies on the basis of the following torts: tort of negligence, unjust enrichment, civil conspiracy, fraudulent misrepresentation, concealment and trespass. The Court turned down the claim both at first instance and appeal. In California v. General Motors Corp.,53 the Attorney General of California started proceedings against General Motors and five other big car manufacturers for tort of public nuisance. According to the statistics shown during the trial, the emissions of the cars manufactured by the defendants account for 9% of CO2 emissions worldwide. As specified by the Attorney General: “Defendants know or should have known, and know or should know, that their emissions of carbon dioxide and other greenhouse gases contribute to global warming and to the resulting injuries and threatened injuries to California, its citizens and residents, environment, and economy”.54 In this case too, the Court turned down the claim both at first instance and appeal.

 Hunter and Salzman (2007), p. 1752.  Gersh Korsinsky, Plaintiff v. U.S. Environmental Protection Agency (EPA); N.Y.S. Department of Environmental Conservation; N.Y.C. Department of Environmental Protection, Defendants. 05 civ. 859 (nrb) United States District Court for the Southern District of New York 2005 U.S. Dist. Lexis 21778 September 28, 2005, decided September 29, 2005, filed. 50  American Electric Power Company, Inc., et al., v. Connecticut, 564 U.S. 410, 131 S. Ct. 2527; 180 L. Ed. 2d 435. 51  Ned Comer, et  al., Plaintiffs-Appellants, v. Murphy OIL USA, et  al., Defendants-Appellees, United States Court of Appeals, Fifth Circuit, No. 12-60291, Decided: May 14, 2013. 52  See Climate Lawyers: http://climatelawyers.com/post/2012/03/22/Dismissed-Means-DismissedThe-First-Climate-Change-Liability-Damages-Suit-Comer-v-Murphy-Oil-Is-Tossed-Again.aspx, last visited 29 April 2019. 53  People of the State of California, ex rel. Edmund G. Brown Jr., Attorney General, Plaintiff— Appellant, v. General Motors Corporation, a Delaware Corporation; et  al., corporation, Defendants—Appellees, United States Court of Appeals for the Ninth Circuit, No. 07-16908, June 24 2009. 54  Hunter and Salzman (2007), p. 1756. 48 49

602

B. Pozzo

Another important case that has been debated and that presents tort law issues as well as human rights issues is Kivalina v. ExxonMobil Corporation, et al.,55 filed on February 26, 2008, in the district court of Northern District of California.56 The suit, based on the common law theory of nuisance, claims monetary damages from the energy industry for the destruction of Kivalina, Alaska by flooding caused by climate change.57 The plaintiffs argued that the defendants’ contribution to global warming through their emissions of carbon dioxide and other greenhouse gasses was substantially and unreasonably interfering with the plaintiffs’ rights to use and enjoy public and private property in Kivalina. The plaintiffs sought to recover monetary damages for the cost of relocating the entire village as a result of what they describe as “defendants’ past and ongoing contributions to global warming”. Kivalina also alleges that certain defendants conspired to suppress public awareness of the link between greenhouse gas emissions and global warming, thereby further contributing to the community’s injuries.58 On 30 September 2009, the US District Court for the Northern District of California granted the defendants’ motion to dismiss, agreeing with the defendants’ arguments that the case raises nonjusticiable political questions and that the plaintiffs lack standing to bring the case. In November 2009, Kivalina Village appealed this dismissal to the Ninth Circuit Court of Appeals. In September 2012 the appeals court rejected Kivalina’s appeal, affirming the lower court’s dismissal of the case. In October 2012, Kivalina asked the appeals court to rehear the case en banc (before the full panel of appeals court judges), but the court refused to rehear the case. The plaintiffs filed an appeal with the Supreme Court in February 2013, but the court declined to hear the appeal.59 2.1.3 Public Trust Doctrine Cases American common law has used since the 1970s the public trust doctrine in the field of environmental protection:60 Based on classic trust law concepts, this traditional doctrine provides that the sovereign holds certain land or non-renewable resources in trust for its present and future citizens.61

 Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863 (N.D. Cal. 2009), aff’d, 696 F.3d 849 (9th Cir. 2012). 56  Gerrard and MacDougald (2013), p. 153. 57  All the legal documents related to this case can be found at https://www.business-humanrights. org/en/kivalina-lawsuit-re-global-warming (last visited 13 January 2019). 58  The case is discussed by Borràs (2012). 59  Borràs (2012), p. 5. 60  Lutz (1976). 61  Lutz (1976), p. 469. 55

Climate Change Litigation in a Comparative Law Perspective

603

Inspired by a leading article by Joseph Sax,62 several federal laws63 have adopted the model of public trust as a tool for managing environmental resources64 and other related problems.65 The public trust doctrine has further been introduced in other contexts: common law66 as well as civil law systems67 have adopted this perspective as an efficient instrument to deal with ecological problems.68 American scholars have also suggested that public trust might be considered as a viable approach to international environmental protection.69 In the last decade, scholars suggested that the public trust doctrine could be efficiently applied also in climate change context.70 Lastly, the public trust doctrine has been applied in the case Juliana v. United States.71 In this case the action was brought by young plaintiffs also on behalf of future generations, asserting that the federal government violated their constitutional rights by causing dangerous carbon dioxide concentrations.72 Plaintiffs in particular alleged that defendants’ actions violate their substantive due process rights to life, liberty, and property, and that defendants have violated their obligation to hold certain natural resources in trust for the people and for future generations.

They sought a declaration that their rights had been violated and an order enjoining continued violation and requiring preparation of a plan to reduce emissions of CO2. While this litigation is in the early stages, it represents another effort to use the common law—in this case the public trust doctrine—to safeguard the environment for future generations.73

 Sax (1970). On the origins of the public trust doctrine see further Araiza (2011), On the development of the public trust doctrine at the beginning of the 1970s compare Smythe (1972) and Dyer (1972). 63  Like the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) of 1980 or in the reform of the National Environmental Policy Act (NEPA) of 1970. See Chase (1991) and Meyers (1994). 64  Meyers (1988), Campbell (1994), Hargrave (1992), Bader (1992), Ingram and Oggins (1992), Rieser (1991) and McCurdy (1988). 65  Bukac (2015), p. 361. 66  Razzaque (2001), pp. 221–234. The Supreme Court of India first recognized the public trust in a 1996 opinion that rooted the doctrine in common law and cited both Illinois Central Railroad and Professor Sax’s article. See Bukac (2015), p. 373. 67  Dyer (1972). 68  See further Blumm and Guthrie (2012). 69  Nanda and Ris Jr. (1976). 70  Craig (2009), p. 781. 71  Blumm and Wood (2017). 72   All the documents of case are available at: http://climatecasechart.com/case/ juliana-v-united-states/?cn-reloaded=1. 73  Nevitt and Percival (2018), p. 491. 62

604

B. Pozzo

2.1.4 The Impacts and the Future of Climate Change Litigation The strategies in and outcomes of climate change litigation in the US have been at the core of various researches.74 Scholars who have analysed the different impacts that climate change litigation has had, have pointed out that litigation focused not anymore only on mitigation issues (like greenhouse gas emissions and clean energy transition) but also, increasingly, on adaptation issues and disaster planning.75 As already pointed out,76 climate change litigation was from the very beginning aimed at receiving a response from the institutional level, and not so much at receiving compensation. The effects of climate change litigation on the development of climate change regulation have been both direct and indirect.77 Direct regulatory impact succeeds when litigation results in a formal change in climate change law and policy,78 while litigation induces indirect regulatory impacts when it brings to behavioural and norm change.79 Although climate change litigation can also be used as a tool by antiregulatory interests, nowadays, climate change litigation is considered part of a multidimensional system of climate change governance.80 The experience of the United States is and remains “the epicentre of climate change litigation phenomenon”,81 where more than 500 cases are filed in court. Most of these can be considered a prototype, a source of inspiration, an opportunity to analyse benefits and limitations of courts “as sites for advancing regulation and accompanying social and behavioural change”.82 Some specific features (like the failure to ratify the Kyoto Protocol and to enact comprehensive national climate legislation, or the presence of a particular litigious culture compared to other countries83), might be considered specific characteristics of the US legal system and can offer an explanation of the success of climate change litigation in this context. No other country has in fact embraced litigation as a tool of climate change governance to a greater extent than the United States.84 Although the US legal process is unique and these features will be difficult to find elsewhere, the problems and issues taken into consideration by climate change litigation are common to any other legal system in the world.

 Bouwer (2018); McCormick (2018), p. 829.  Peel and Osofsky (2015), p. 310. 76  See supra. 77  Peel and Osofsky (2015), p. 28. 78  Peel and Osofsky (2015), p. 37. 79  Peel and Osofsky (2015), p. 47. 80  Peel and Osofsky (2015), p. 35. 81  Peel and Osofsky (2015), p. 17. 82  Peel and Osofsky (2015), p. 24. 83  Peel and Osofsky (2015), p. 17. 84  Peel and Osofsky (2015), p. 324. 74 75

Climate Change Litigation in a Comparative Law Perspective

605

2.2 The European Union 2.2.1 Claiming for Leadership in the Climate Change Diplomacy In comparison to the United States, the European experience has taken a very different path. Since the late 1980s, the European Union has always wanted to play an increasingly active role in pursuing a coherent environmental and energy policy,85 which is strictly connected with climate change regulation both at national and international level.86 This process has gradually led to an overall “greening” of European politics and to the “Europeanization” of the environmental policies of member states.87 With the Maastricht Treaty of 1992 and—even more—with the Amsterdam Treaty of 1997 the promotion of sustainable development must be integrated into the definition and implementation of all EU policies,88 that has become EU’s legal basis for international action.89 Looking to the relationship between international law and European law devoted to climate policy change issues, it is possible to note that “whereas EU climate policy and law were lagging behind international policy development until the early 2000s, they have moved ahead of the international framework since then”.90 The EU has taken a leading role in the development and support for the Kyoto Protocol on climate change in 199791 and has further enhanced its leading role in international negotiations in order to fight climate change.92 Already in 2000, the problem was raised, if the will of Europe to become a leader in the climate change global governance was compatible with its own political and institutional circumstances, in order to be considered “legitimate, credible and effective”.93 As a matter of fact, since then, the EU has invested very much on its own internal policies in order to become a “legitimate, credible and effective” leader, putting much effort in developing an effective EU climate policy and climate policy instruments.94

 Peeters et al. (2012) and Pozzo (2009).  Oberthür and Pallemaerts (2010). 87  Torney (2015). 88  Article 11 TFEU (ex Article 6 TEC): “Environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development”. 89  Lightfoot and Burchell (2005), p. 78. 90  Oberthür and Pallemaerts (2010), p. 28. 91  Lightfoot and Burchell (2005), p. 76. 92  Van Schaik and Schunz (2012), pp. 169–186. 93  Gupta and Grubb (2000), p. 4. 94  Wettestad (2000). 85 86

606

B. Pozzo

In 2003, even before the entrance into force of the Kyoto Protocol, the EU adopted the Emissions Trading Directive (2003/87/EC),95 which introduced in EU climate change law one of the market-based instruments foreseen at international level. The 2003/87 Directive was later amended by Directive 2004/101/EC linking the ETS to the other Kyoto Protocol project mechanisms, namely the CDM and JI.96 In 2007 the EU launched an ambitious “energy-climate change package”,97 that was further implemented by the climate and energy legislation adopted in 2008 and 2009, providing for further greenhouse gas (GHG) emission reductions.98 This has given rise to a number of concrete European initiatives in favour of power savings, renewable sources, emission reductions and green economy. In particular, the EU has adopted an extensive climate and energy policy package.99 The “20-20-20 by 2020” package, that established to achieve before 2020 a reduction of greenhouse gas emissions by at least 20% in comparison to 1990 levels, a 20% share of renewable energies in final energy consumption (as well as a 10% target for renewable fuels) and a 20% of savings on the projected EU final energy consumption in 2020, rendered the self-proclaimed leadership role of the EU more credible, even though EU climate policy may still be considered insufficient for effectively responding to the environmental challenge.100 With the entrance into force of Lisbon Treaty on December 1st 2009, a particular emphasis was given on the external dimension of the EU environmental policy.101 The Treaty of Lisbon introduces an express link between sustainable development and EU external relations, stating that in its relations with the wider world, the Union shall contribute to the sustainable development of the Earth.102 Another explicit link with environmental protection is to be found in the General provisions on the union’s external action, pointed out at Article 21 TEU. In particular, the Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order “to foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty”103 and “to help develop international measures to preserve and improve the quality of the environment and

 The long story of the Emissions Trading Directive is narrated by Jacometti (2010).  Oberthür and Pallemaerts (2010). 97  See Communication from the Commission to the European Council and the European Parliament: An energy policy for Europe, Brussels, 10.1.2007, COM(2007) 1 final; Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions: Limiting global climate change to 2 degrees celsius the way ahead for 2020 and beyond, 10.1.2007, COM(2007) 1 final. 98  Oberthür and Pallemaerts (2010), p. 25. 99  See for renewable energy: Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC. 100  Torney (2015). 101  Marín Durán and Morgera (2012), pp. 12 ff. 102  Art. 3 (5) TEU. 103  Art. 21 (2) TEU, letter (d). 95 96

Climate Change Litigation in a Comparative Law Perspective

607

the sustainable management of global natural resources, in order to ensure sustainable development.”104 Among the principles that we find now in Title XX of the TFEU, dedicated to the “Environment”, we find that the Union policy on the environment shall contribute to pursuit of “promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.”105 As a matter of fact, the EU has claimed for itself an international leadership role with respect to the climate change issue106 and has become one of the most enthusiastic supporters of an international binding treaty.107 Despite US opposition,108 the EU has adopted an approach that promotes climate change regulation in different international contexts,109 giving credit to the idea of wanting to lead by example the rest of the world.110 In conclusion, the European Union is intensively regulating the sector,111 passing legislation aimed at mitigating the effects of climate changes.112 At the same time, the Commission is pursuing a strategy of adaptation to climate change.113 Within this new framework, a key role will be played by the new standards of liability for the damages resulting from climate changes, including the possibility to take out a specific insurance policy. Due to this widespread regulation, it should not come as a surprise that climate change litigation did not develop as in the US until very recently. Nevertheless, in the last years the unsatisfaction of European citizens towards the results of EU climate change policies resulted in new judiciary initiatives, among which the case Urgenda has risen to the fore.114 2.2.2 Climate Change Litigation in Europe Besides the Urgenda case in the Netherlands that was successful also in Appeal, and few others,115 it is necessary to note that in 2018 a first European case was brought in the EU General Court seeking to compel the EU to take more stringent greenhouse gas emissions (GHG) reductions. The plaintiffs (ten families, including  Art. 21 (2) TEU, letter (f).  Art. 191 (1) TFEU. 106  Torney (2015), p. 20. 107  Van Schaik and Schunz (2012); Schunz (2009); Oberthür (2009); Oberthür and Kelly (2008); Van Schaik (2010), p. 251. 108  Harris (2000). 109  Oberthür and Pallemaerts (2010), p. 27; Compare further Schreurs and Tiberghien (2010), p. 23. 110  Van Schaik and Schunz (2012), p. 169. 111  Oberthür and Pallemaerts (2010). 112  Pallemaerts (2004). 113  An EU Strategy on Adaptation to Climate Change, COM (2013) 216. 114  On the Urgenda case see the Dutch Report by Jonathan Verschuuren. Compare further De Graaf and Jans (2015), van Zeben (2015), Lin (2015), Cox (2016) and Roy and Woerdman (2016). 115  See e.g. the Belgian Report in this Book. 104 105

608

B. Pozzo

children, from Portugal, Germany, France, Italy, Romania, Kenya, Fiji, and the Swedish Sami Youth Association Sáminuorra) alleged that the EU’s existing target to reduce domestic GHG emissions by 40% by 2030, as compared to 1990 levels, had to be considered insufficient to avoid dangerous climate change and was threatening  plaintiffs’ fundamental rights of life, health, occupation, and property. In Armando Ferrão Carvalho and Others v. The European Parliament and the Council, the plaintiffs presented two requests. In the first place, they brought a nullification action, asking the court to declare three EU legal acts as void for failing to set adequate GHG emissions targets. The three EU legal acts are: Directive 2003/87/EC governing emissions from large power generation installations (ETS); regulation 2018/EU on emissions from industry, transport, buildings, agriculture, and etc. (ESR); and regulation 2018/EU on emissions from and removals by land use, land use change, and forestry (LULUCF). Plaintiffs argued that inadequate emissions reductions were violating higher order laws that protect fundamental rights to health, education, occupation, and equal treatment as well as provide obligations to protect the environment. These higher rank laws include: the EU Charter of Fundamental Rights (ChFR), the Treaty on the Functioning of the European Union (TFEU), the United Nations Framework Convention on Climate Change (UNFCCC), and the Paris Agreement. Plaintiffs asked the Court to order that the three emissions reductions laws remain in force until improved versions of the Acts can be enacted. Art. 263 of the Treaty on the Functioning of the EU (TFEU) is the basis for this procedural action. The second action concerned non-contractual liability. Article 340 of the TFEU provides a mechanism for injunctive relief when three conditions are met: (1) there is an unlawful act by the EU institution(s), (2) the unlawful act is a serious breach of a law that protects individual rights, and (3) there is a sufficient causal link between the breach and the damages. The plaintiffs finally demanded as a relief an injunction to compel the EU to set more stringent GHG emissions reductions targets through the existing framework of the ETS, ESR and LULUCF regimes in order to bring the EU into compliance with its legal obligations. Plaintiffs asserted this would require a 50–60% reduction in GHG emissions below 1990 levels by 2030 or whatever level the Court finds appropriate.

2.3 The Spreading Out of Climate Change Litigation As it is clearly demonstrated by the various Reports of this book, climate change litigation is developing in various jurisdictions. The nature of these suits varies widely across countries, reflecting each jurisdiction’s unique legislative and regulatory framework, energy portfolio, and legal system.116

 Wilensky (2015).

116

Climate Change Litigation in a Comparative Law Perspective

609

There are some legal systems that have been particularly vivacious in introducing climate change litigation, like Australia and New Zealand, that might be also understood as being both common law systems where ideas, taxonomies and arguments developed in the US were easy to take over. But the success of climate change litigation is not limited to the Western industrialized world, as the Leghari case discussed in a Pakistani Court in 2015 easily demonstrates, or only to common law countries, as the quoted European cases point out. In Leghari v. Federation of Pakistan,117 an appellate court in Pakistan granted the claims of Ashgar Leghari, a Pakistani farmer, who had sued the national government for failure to carry out the National Climate Change Policy of 2012 and the Framework for Implementation of Climate Change Policy.118 The court, citing domestic and international legal principles, determined that “the delay and lethargy of the State in implementing the Framework offend the fundamental rights of the citizens.” As a remedy, the court directed several government ministries to each nominate “a climate change focal person” to help ensure the implementation of the Framework, and to present a list of action points by December 31, 2015; and created a Climate Change Commission composed of representatives of key ministries, NGOs, and technical experts to monitor the government’s progress. The vast majority of lawsuits in countries with the most extensive climate change litigation, like the US and Australia “have involved statutory law causes of action alleging that governments failed to take climate change considerations adequately into account in their decision-making process.”119 Anyway, the Urgenda case, the Leghari case as well as the 2005 petition filed by the Inter-American Commission on Human Rights,120 show how climate change lawsuits can be based on rights violation, which represents a turn away from the more conventional modes of litigation.121 The spreading out of climate change litigation appears to be an interesting field for comparative law research. In this perspective, comparative law tools could enhance the understanding of legal transplants in environmental law and provide a new approach to the development of global environmental law.

 Asghar Leghari v. Federation of Pakistan (W.P.  No. 25501/2015), Lahore High Court Green Bench, https://elaw.org/PK_AsgharLeghari_v_Pakistan_2015. 118  Peel and Osofsky (2018). 119  Peel and Osofsky (2018), p. 39. 120  See above. 121  Peel and Osofsky (2018), p. 39. 117

610

B. Pozzo

2.4 Legal Transplant in the Environmental Field Comparative law scholars have always been interested in the problem of legal transplants,122 a phenomenon with which we usually identify the process of imitation from one legal system to another of norms, institutions or legal concepts.123 The phenomenon can be analysed from different points of view,124 taking as its object of analysis—from time to time—the reason leading to the transplant, the phenomenon of adaptation to the new social and regulatory context, the modernization of legal language.125 Comparative lawyers have highlighted how traditionally the deep motivations that have led to the adoption of foreign rules or institutions, can be traced back either to the prestige126 that a legal model rises in a given moment in history, or to imposition.127 Both the prestige and the imposition are also mere keys to interprete a phenomenon that develops continuously and which can therefore be reinterpreted in the light of the most recent developments. The idea of prestige has been reinterpreted in recent decades in the light of the criterion of economic efficiency128 (true or presumed) of a given legal model, justifying its reception in another legal system or as a valid reason for imposing it in a supranational or international context. The same idea of imposition, once reconnected with the Colonial period, seems nowadays completely outdated. Nevertheless, the idea of imposition might also be reinterpreted in the light of the current circumstances. For example, we have to remember that the idea of taking into consideration environmental protection and climate change in external relations, “has arguably increased the temptation for the EU to use the size of its markets to guide the international community towards more effective action against climate change through unilateral measure.”129 A vast literature points out how Europe has become in this sector a normative power, able to impose its own perspective and regulation on how climate change

 On this point, the bibliography is now boundless. To underline the relevance of the theme, the International Academy of Comparative Law dedicated a whole session to the theme of “Legal Cultures and Legal Transplants”, published in the Isaidat Law Review, (2011) Volume 1—Special Issue 1. 123  Watson (1974). 124  The Journal Theoretical Inquiries in Law, dedicates its Volume 10 (Number 2, July 2009) to the topic of Histories of Legal Transplantations, where several episodes of circulation of legal models are taken into consideration, highlighting the different reasons. See for example Harris and Crystal (2009), Kirov (2009) and Graziadei (2009). 125  Timoteo (2018). 126  On the reception of the German Pandectist School in Italy, see Furfaro (2012). 127  On the reception of the common law in India, see Glenn (2000), p. 273 ss. 128  Mattei (1994); Graziadei (2006), p. 441. 129  Kulovesi (2012). 122

Climate Change Litigation in a Comparative Law Perspective

611

should be taken into consideration,130 becoming a global producer of norms in this as in other important fields.131 From another point of view, it can be observed, how legal transplant must necessarily come to terms with the social substratum of the order in which this model is grafted, with consequent corrections or divergences with respect to the original model. Today the reasons that drive the circulation of models can be very heterogeneous and new methods of analyzing the phenomenon have been suggested.132 An important role is played today by international cooperation, which in recent decades has affected many aspects of the legislation of emerging economies.133 As the European experience can teach us, environmental cooperation has become one of the leading instruments in inducing legal transplant, as “environmental integration clauses are included in most EU agreement of a general nature.”134 Analyzing the profound reasons that may lead to the phenomenon of legal transplants is not a merely academic exercise.135 A greater understanding of legal transplants in sectors that are considered homologous in different parts of the world could convince national and international institutions that some goals of reform can be more easily achieved through the acquisition of legal models already tested in others social and economic contexts.136 In recent decades this phenomenon has become particularly evident when it comes to tools and regulations of environmental law. In this field, legal problems are closely intertwined with aspects of the natural sciences that present themselves as universal and to economic problems that appear to be common in the globalized world,137 whereas the link to a particular cultural, social or legal background seems to fade away. It has also been pointed out138 that legal transplants might be conveyed through private contracting as well. In the globalized world Private actors have transplanted a variety of private and public laws across jurisdictions through contracting for over a decade.

 Manners (2002), Lightfoot and Burchell (2005), and Braun (2014).  De Morpurgo (2013). 132  Graziadei (2006), p. 441. 133  Delisle(1999) and Wheeler (2013). 134  Marín Durán and Morgera (2012), p. 57. 135  Graziadei (2009), p. 723. 136  As Graziadei (2009), p. 697 recalls: “The question whether law can be transferred from one place to another turns out to be a question of the highest importance, whether these actors are interested in political reform, economic growth, social progress, or less beneficial ends. Unsurprisingly Institutions like the World Bank now take an interest in the literature on legal transplants and the topic is featured regularly in the study of economic growth and political change, as every student of law and development knows”. 137  Wiener (2001). 138  Lin (2009). 130 131

612

B. Pozzo

In particular codes of vendor conduct in global supply chains have shown to be an important instrument in transplanting environmental protection standards: “Codes of vendor conduct require suppliers to meet certain labor and environmental protection standards in the production process. The labor standards generally include topics concerning child labor, forced labor, health and safety measures in workplaces, freedom of association and right to collective bargaining, discrimination, working hours, and compensation. The environmental standards usually involve hazardous substance management (e.g., safe handling, shipping, storage, recycling, and disposal of hazardous materials), waste management, air emission management, energy efficiency measures, and other pollution prevention requirements”.139 Legal transplants in the environmental field are continuously increasing and present their own characteristics. At first glance, the imitation of environmental protection models should be facilitated by a whole series of heterogeneous reasons. Firstly, the rules for regulating environmental protection appear to be characterized by a high technical content, which is not—at least generally—influencing values ​​considered “fundamental” in the various legal systems. On the one side, it is true that transplanted norms or instruments cannot remain the same once they are placed in their context of arrival, so much so that some scholars have pointed out that legal transplants are impossible.140 On the other side, it is also likely that these are able to solve the problems for which they were originally designed, in case they prove to be similar. Rules and institutions borrowed in the environmental field will also have to deal with the particular legal process of the target system and with a particular path dependence that will vary from context to context, as well as with factors that will surely affect the efficacy of the transplanted rule or instrument. Moreover, here as well as in other contexts, the problem of legal translation—if not adequately addressed—can trigger a real conceptual tug of wars of uncertain results about the real applicative scope of the “imported” norms or institutes. This is all the more true if the circulation deals with concepts intimately connected to Western culture that do not easily find a lexical, but also cultural, translation in the system of arrival.141 In the field of environmental law, however, the fact that the problems to be addressed are—in more than one respect—intimately linked to scientific knowledge, and cover for this reason, a certain degree of technicality, will lead, in a greater number of cases, to new phenomena of legal transplants.

 Lin (2009), p. 717.  Legrand (1997). 141  See for example Timoteo (2015), p. 121. 139 140

Climate Change Litigation in a Comparative Law Perspective

613

Furthermore, legal transplants of environmental protection models has been strongly characterized and—consequently—also influenced by the globalized perception of the environmental phenomenon, and by that of its protection.142 In the last decades, we are witnessing the development of a body of rules, which tends towards a progressive approaching in the development of common operational choices in addressing environmental problems. This certainly derives from the fact that the environmental problem, in addition to having affected all legal systems in an almost contemporary way, is suitable to involve by its very nature multiple countries at the same time.143 In particular, with the Rio Conference of 1992,144 a new era of international environmental law begins:145 international cooperation is not anymore referred only to the prevention of transboundary issues, but concerns global issues, that that can jeopardize natural balances essential for the maintenance of the conditions of life on earth.146 With the drafting of large international conventions, homogeneous rules and standards are developed. It is not therefore difficult to find a rule formulated in a similar way in the United States, the European Union or India. This cannot come as a surprise: to similar and common problems, not included in the casts of the different legal traditions, the different legal systems have developed similar answers. Other factors that might drive legal transplants in the environmental field can also be linked to the formation of regulations at the regional supranational level, as in the case of the EU. In this case, legal transplants might be induced by the imposition of harmonized supranational legislation, that finds its roots in one or more advanced legal systems that aims at creating common conditions in all Member States.147 This, on the one hand, corresponds to a specific political will, and in particular to the principle of environmental protection adopted by the Charter of Nice,148 and, on

 Yang and Percival (2009), Percival (2007, 2009, 2011) and Wiener (2001).  Sand (2007); Pozzo (2010), p. 1161 ss. 144  Pallemaerts (1992) and Weiss (1992). 145  Birnie (1977). 146  Palmer (1992). 147  The environmental competences enter the Treaty of Rome with the Single European Act of 1987, which inserts a new Title VII, dedicated to the “Environment”, consisting of three articles: 130R, 130S and 130T. The Single European Act states that action by the Community relating to the environment shall be based on the principles that preventive action should be taken that environmental damage should as priority be rectified at source and that the polluter should pay. It further provides that environmental protection requirements shall be component of the Community’s other policies. 148  Art. 37 Nice Charter. Environmental Protection: “A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development”. 142 143

614

B. Pozzo

the other hand, to the need not to create obstacles to a market that is based on free competition rules.149 In this context, there is the search for effective and tested environmental reference models by developing economies that want to offer reliability to foreign investors. In addition to the rules, even the practices of large multinational companies can have an impact on facilitating the circulation of Western models in emerging economies. In another perspective, we can see the willingness by countries that have undergone a rapid process of democratization, to refer to authoritative models, mostly arising from Western or international models, in the field of protection of human rights and of the environment. Given the complexity of the questions at stake, I would hardly agree with the perspective that comparative law methodology is inadequate to tackle the problems connected with global environmental law. Two prominent scholars have pointed out that while comparative law scholars in the past might reasonably have described the movement and transfer of concepts from one national legal system to another or to the international systems as acts of “borrowing,” global environmental law indicates that this description has become inapposite. Trends such as convergence, integration, and harmonization are creating a few principal approaches to regulation that are being embraced with local variations, blurring traditional distinctions between national and international law. Environmental legal principles can no longer be seen as belonging to any one particular system, suggesting that their transfer is an act of “lending.” Like the many global environmental goods that they protect, these legal principles have become part of the global commons. As part of a system of global law, they are at home everywhere.150

I here support a different view, according to which comparative law methodology offers a very efficient perspective on how legal transplants develop in the environmental field. While recognizing that environmental law has increasingly become global in recent times, the fact remains that its application is local. In this dimension, not only the blackletter of the law counts, but also and above all the existence of tools to make it effective. That is why it is important to analyse the legal system, in which it will be imbedded, as a whole, taking into account its legal and cultural background. As the judges of the Indian Supreme Court have magisterially reminded us: If the mere enactment of laws relating to the protection of environment was to ensure a clean and pollution-free environment, then India would, perhaps, be the least polluted country in the world. But this is not so. There are stated to be over 200 Central and State statutes which have at least some concern with environment protection, either directly or indirectly.  In the Preamble to the TEU, it is true that one of the objectives of the European Union should be “to promote the economic and social progress of their peoples, taking into account the principle of sustainable development in the context of the creation of the internal market and the strengthening of cohesion and of environmental protection”. In Article. 3, paragraph 3, TEU also states that the Union “strives for the sustainable development of Europe, based on balanced economic growth and price stability, on a highly competitive social market economy, which aims at full employment and social progress, and a high level of protection and improvement of the quality of the environment”. 150  Yang and Percival (2009), p. 664. 149

Climate Change Litigation in a Comparative Law Perspective

615

The plethora of such enactments has, unfortunately, not resulted in preventing environmental degradation which on the contrary, has increased over the years.151

In this perspective, comparative law methodology, I believe, will deliver efficient tools to investigate the past, the present and the future of climate change litigation.

References Aldy JE, Barrett S, Stavins RN (2003) Thirteen plus one: a comparison of global climate policy architectures. Clim Policy 3(4):373–397 Araiza WD (2011) The public trust doctrine as an interpretive canon. UCDL Rev 45:693 Bader HR (1992) Antaeus and the public trust doctrine: a new approach to substantive environmental protection in the common law. BC Environ Aff Law Rev 19:749 Benedick R (1991) Ozone diplomacy. Harvard University Press, Cambridge Birnie P (1977) The development of international environmental law. Rev Int Stud 3(2):169–190 Blomquist RF (2012) Comparative climate change torts. Val Univ Law Rev 46:1053 Blumm MC, Guthrie RD (2012) Internationalizing the public trust doctrine: natural law and constitutional and statutory approaches to fulfilling the Saxion vision. UCDL Rev 45:741 Blumm MC, Wood MC (2017) No ordinary lawsuit: climate change, due process, and the public trust doctrine. Am Univ Law Rev 67:1 Boom K, Richards JA, Leonard S (2016) Climate justice. The international momentum towards climate litigation. Heinrich Böll Foundation, Berlin Borràs S (2012) (CEDAT, Universitat Rovira i Virgili), Climate change responsibilities in polar peoples: the Inuit Case, EJOLT Factsheet No. 44. http://www.ejolt.org/wordpress/wp-content/ uploads/2015/08/FS-44.pdf Bouwer K (2018) The unsexy future of climate change litigation. J Environ Law 30(3):483–506 Braun M (2014) EU climate norms in East-Central Europe. JCMS J Common Mark Stud 52(3):445–460 Bukac A (2015) Fracking and the public trust doctrine: this land is their land, but after Robinson, might this land really be our land. USFL Rev 49:361 Campbell TA (1994) The public trust, what’s it worth. Nat Resour J 34:73 Cass LR (2006) The failures of American and European Climate Policy  – international norms, domestic politics, and unachievable commitments. State University of New York Press, Albany Cecot C (2012) Blowing hot air: an analysis of state involvement in greenhouse gas litigation. Vand Law Rev 65:189 Chalecki EL (2009) Exceptionalism as foreign policy – US climate change policy and an emerging norm of compliance. In: Harris PG (ed) Climate change and foreign policy – case studies from east to west. Routledge, London Chase AR (1991) Remedying CERCLA’s natural resource damages provision: incorporation of the public trust doctrine into natural resource damage actions. Va Environ Law J 11:353 Christiansen AC (2003) Convergence or divergence? Status and prospects for US climate strategy. Clim Policy 3(4):343–358 Christie GC et al (1990) Cases and materials on the law of torts. West Publishing, St. Paul Cousins E, Perks R, Warren W (2005) Rewriting the rules, Special edition: The Bush administration’s first term environmental record. Natural Resources Defense Council, Washington DC Cox R (2016) A climate change litigation precedent: Urgenda Foundation v The State of the Netherlands. J Energy Nat Resour Law 34(2):143–163  Supreme Court of India—Indian Council for Enviro-Legal Action v. Union of India 1996 (5) SCC 281, 293. 151

616

B. Pozzo

Craig RK (2009) Adapting to climate change: the potential role of state common-law public trust doctrines. Vt Law Rev 34:78 De Graaf KJ, Jans JH (2015) The Urgenda decision: Netherlands liable for role in causing dangerous global climate change. J Environ Law 27(3):517–527 De Morpurgo M (2013) The European Union as a global producer of transnational law of risk regulation: a case study on chemical regulation. Eur Law J 19(6):779–798 DeLisle J (1999) Lex Americana: United States legal assistance, American legal models, and legal change in the post-communist world and beyond. Univ Pa J Int Econ Law 20:179 Dyer DG (1972) California beach access: the Mexican Law and the public trust. Ecol Law Q 2:571 Freestone D (2016) The United Nations Framework Convention on climate change—the basis for the climate change regime. In: Gray KR, Tarasofsky R, Carlarne C (eds) The Oxford handbook of international climate change law. Oxford University Press, Oxford Furfaro F (2012) The revival of Romanistic scholarship between the 19th and 20th centuries as a ‘Centralizing Force’ in European legal history: the masterpieces of German Pandectist Literature revised by Italian translators. Maastricht J Eur Comp Law 19(2):262–280 Gerrard MB, MacDougald JA (2013) An introduction to climate change liability litigation and a view to the future. Conn Insur Law J 20:153 Gifford DG (2010) Climate change and the public law model of torts: reinvigorating judicial restraint doctrines. SCL Rev 62:201 Glenn HP (2000) Legal traditions of the world. Oxford University Press, Oxford Graziadei M (2006) Comparative law as the study of transplants and receptions. In: The Oxford handbook of comparative law, pp 441–476 Graziadei M (2009) Legal transplants and the frontiers of legal knowledge. Theor Inq Law 10(2):723–743 Grossman DA (2003) Warming up to a not-so-radical idea: tort-based climate change litigation. Colum J Environ L 28:1 Gupta J, Grubb M (2000) Climate change and European leadership – a sustainable role for Europe? Kluwer, Dordrecht Hargrave L (1992) The public trust doctrine: a plea for precision. La Law Rev 53:1535 Harris PG (2000) Climate change and American Foreign Policy: an introduction. In: Harris PG (ed) Climate change and American Foreign Policy. St. Martin’s Press, New York Harris R, Crystal M (2009) Some reflections on the transplantation of British company law in post-­ Ottoman Palestine. Theor Inq Law 10(2):561–587 Harrison K (2010) The United States as an outlier: economic and institutional challenges to US climate policy. In: Harrison K, McIntosh Sundstrom L (eds) Global commons, domestic decisions, the comparative politics of climate change. MIT Press, Cambridge Hersch J, Viscusi WK (2006) Allocating responsibility for the failure of global warming policies. Univ Pa Law Rev 155:1657 Hester TD (2012) A new front blowing in: state law and the future of climate change public nuisance litigation. Stan Environ Law J 31:49 Hinteregger M (2017) Civil liability and the challenges of climate change: a functional analysis. J Eur Tort Law 2017(2):238–259 Hopgood S (1998) American Foreign Environmental Policy and the power of the state. Oxford University Press, Oxford Hsu A et al (2015) Towards a new climate diplomacy. Nat Clim Chang 5:501 Huggins A (2008) Is climate change litigation an effective strategy for promoting greater action to address climate change? What other legal mechanisms might be appropriate? Local Gov Law J 13:184–191 Hunter TS (2008) Ambiguity in the air: why judicial interpretation of insurance policy terms should force insurance companies to pay for global warming litigation. Penn St Law Rev 113:267 Hunter D, Salzman J (2007) Negligence in the air: the duty of care in climate change litigation. Univ Pa Law Rev 155:1741 Ingram H, Oggins CR (1992) The public trust doctrine and community values in water. Nat Resour J 32:515

Climate Change Litigation in a Comparative Law Perspective

617

Jacometti V (2010) Lo scambio di quote di emissione: analisi di un nuovo strumento di tutela ambientale in prospettiva comparatistica. Giuffrè, Milano Kelemen RD, Vogel D (2010) Trading places: the role of the United States and the European Union in international environmental politics. Comp Polit Stud 43(4):427–456 Kirov J (2009) Foreign law between grand hazard and great irritation: the Bulgarian experience after 1878. Theor Inq Law 10(2):699–722 Kulovesi K (2012) Climate change in EU external relations: please follow my example (or I might force you to). In: Morgera E (ed) The external environmental policy of the European Union– EU and international law perspectives. Cambridge University Press, Cambridge, pp 115–148 Legrand P (1997) The impossibility of ‘legal transplants’. Maastricht J Eur Comp Law 4(2):111–124 Lightfoot S, Burchell J (2005) The European Union and the world summit on sustainable development: normative power Europe in action? JCMS J Common Mark Stud 43(1):75–95 Lin L-W (2009) Legal transplants through private contracting: codes of vendor conduct in global supply chains as an example. Am J Comp Law 57(3):711–744 Lin J (2015) The first successful climate negligence case: a comment on Urgenda Foundation v. The State of the Netherlands (Ministry of Infrastructure and the Environment). Clim Law 5(1):65–81 Lutz RE (1976) The laws of environmental management: a comparative study. Am J Comp Law 24:447 Manners I (2002) Normative power Europe: a contradiction in terms? JCMS J Common Mark Stud 40(2):235–258 Marín Durán G, Morgera E (2012) Environmental integration in the EU’s external relations, beyond multilateral dimensions. Hart, Oxford Markell DL, Hammond E (2012) A primer on common law & related causes of action in climate change litigation. Civil remedies. In: Gerrard MB, Freeman J (eds) Global climate change and US law, 2nd edn Markell DL, Ruhl JB (2010) An empirical survey of climate change litigation in the United States. Environ Law Rep 40(7):10644 Mattei U (1994) Efficiency in legal transplants: an essay in comparative law and economics. Int Rev Law Econ 14(1):3–19 McCormick S et al (2018) Strategies in and outcomes of climate change litigation in the United States. Nat Clim Chang 8(9):829 McCurdy MK (1988) Public trust protection for wetlands. Environ Law 19:683 Meyers GD (1988) Variation on a theme: expanding the public trust doctrine to include protection of wildlife. Environ Law 19:723 Meyers GD (1994) Divining common law standards for environmental protection: application of the public trust doctrine in the context of reforming NEPA and the commonwealth environmental protection act. Environ Plann Law J 11(4):289–306 Nanda VP, Ris TWR Jr (1976) The public trust doctrine: a viable approach to international environmental protection. Ecol Law Q 5:291 Nevitt MP, Percival RV (2018) Could official climate denial revive the common law as a regulatory backstop. Wash Univ Law Rev 96:441 Oberthür S (2009) The role of the EU in global environmental and climate governance. In: Telo M (ed) The European Union and global governance. Routledge, London Oberthür S, Kelly CR (2008) EU leadership in international climate policy: achievements and challenges. Int Spectator 43(3):35–50 Oberthür S, Pallemaerts M (eds) (2010) The new climate policies of the European Union Internal Legislation and Climate Diplomacy. VUBPress – Brussels University Press, Brussels Osofsky HM (2006) Inuit petition as a bridge-beyond dialectics of climate change and indigenous peoples’ rights. Am Indian Law Rev 31:675 Osofsky HM (2009) Conclusion: adjudicating climate change across scales. In: Burns WCG, Osofsky HM (eds) Adjudicating climate change: state, national, and international approaches. Cambridge University Press, New York

618

B. Pozzo

Ott HE, Sterk W, Watanabe R (2008) The Bali roadmap: new horizons for global climate change? Clim Policy 8(1):91–95 Pallemaerts M (1992) International environmental law from Stockholm to Rio: back to the future. Rev Eur Comp Int Environ Law 1:254 Pallemaerts M (2004) Le cadre international et européen des politiques de lutte contre les changements climatiques. In: Courrier hébdomadaire, 1858–9. CRISP, Brussels Palmer G (1992) New ways to make international environmental law. Am J Int Law 86(2):259–283 Peel J, Osofsky H (2015) Climate change litigation, regulatory pathways to cleaner energy. Cambridge University Press, Cambridge Peel J, Osofsky H (2018) A rights turn in climate change litigation? Transnatl Environ Law 7(1):37–67 Peeters M, Stallworthy M, De Cendra de Larragán J (eds) (2012) Climate law in EU member states: towards national legislation for climate protection. Edward Elgar, Cheltenham Percival RV (2007) Environmental law in the twenty-first century. Va Environ Law J 25:1 Percival RV (2009) The globalization of environmental law. Pace Environ Law Rev 26:451 Percival RV (2011) Global law and the environment. Wash Law Rev 86:579 Pfrommer T et al (2019) Establishing causation in climate litigation: admissibility and reliability. Clim Chang 152(1):67–84 Pidot JR (2006) Global warming in the courts, an overview of current litigation and common legal issues. Washington DC, Georgetown Environmental Law & Policy Institute, Georgetown University Law Center Piñon Carlarne C (2010) Climate change law and policy EU and US approaches. Oxford University Press, Oxford Pozzo B (2009) Le politiche comunitarie in campo energetico. Rivista giuridica dell’ambiente XXIV(6):841–876 Pozzo B (2010) Tutela dell’ambiente (diritto internazionale), in Enciclopedia del Diritto, Annali, III. Giuffrè, Roma, p 1156 Prosser WL (1966) Private action for public nuisance. Va Law Rev 52:997 Razzaque J (2001) Application of public trust doctrine in Indian environmental cases. J Environ Law 13(2):221–234 Rieser A (1991) Ecological preservation as a public property right: an emerging doctrine in search of a theory. Harv Environ Law Rev 15:393 Roy S, Woerdman E (2016) Situating Urgenda versus the Netherlands within comparative climate change law. J Energy Nat Resour Law 34(2):165–189 Sand PH (1993) The greening of international law: emerging principles and rules. Ind J Global Legal Stud 1:293 Sand PH (2007) The evolution of international environmental law. In: Bodansky D, Brunnée J, Hey E (eds) The Oxford handbook of international environmental law. Oxford University Press, Oxford Sax JL (1970) The public trust doctrine in natural resource law: effective judicial intervention. Mich Law Rev 68(3):471–566 Schreurs MA, Tiberghien Y (2010) European Union Leadership in climate change: mitigation through multilevel reinforcement. In: Harrison K, McIntosh Sundstrom L (eds) Global commons, domestic decisions, the comparative politics of climate change. MIT Press, Cambridge, p 23 Schunz S (2009) European Union’s external climate policy: a foreign policy analysis. CFSP Forum 7(2) Smythe MK (1972) Environmental law--expanding the definition of public trust uses. NCL Rev 51:316 Thorpe A (2008) Tort-based climate change litigation and the political question doctrine. J Land Use Environ Law 24:79 Timoteo M (2015) Law and language: issues related to legal translation and interpretation of Chinese rules on tortious liability of environmental pollution. China-EU Law J 4(2-4):121–133

Climate Change Litigation in a Comparative Law Perspective

619

Timoteo M (2018) Contemporary Chinese Law: a linguistic perspective in handbook of communication in the legal sphere. Walter de Gruyter, Boston/Berlin Torney D (2015) European climate leadership in question: policies towards China and India. MIT Press, Cambridge Van Schaik L (2010) The sustainability of the EU’s Model for Climate Diplomacy. In: Oberthür S, Pallemaerts M (eds) The new climate policies of the European Union Internal Legislation and Climate Diplomacy. VUBPress – Brussels University Press, Brussels, p 251 Van Schaik L, Schunz S (2012) Explaining EU activism and impact in global climate politics: is the Union a norm-or interest-driven actor? JCMS J Common Mark Stud 50(1):169–186 Van Zeben J (2015) Establishing a governmental duty of care for climate change mitigation: will Urgenda turn the tide? Transnatl Environ Law 4(2):339–357 Watson A (1974) Legal transplants: an approach to comparative law. Scottish Academic Press, Edinburgh Weiss EB (1992) International environmental law: contemporary issues and the emergence of a new world order. Geo Law J 81:675 Wettestad J (2000) The complicated development of EU climate policy. In: Gupta J, Grubb M (eds) Climate change and European Leadership – a sustainable Role for Europe? Kluwer, Dordrecht Wheeler N (2013) The role of American NGOs in China’s modernization, invited influence. Routledge, London Wiener JB (2001) Something borrowed for something blue: legal transplants and the evolution of global environmental law. Ecol Law Q 27:1295 Wilensky M (2015) Climate change in the courts: an assessment of non-US climate litigation. Duke Environ Law Policy Forum 26:131 Yang T, Percival RV (2009) The emergence of global environmental law. Ecol Law Q 36:615 Barbara Pozzo  is professor of comparative law at the University of Insubria (Como-Italy), where she is the Director of the Department of Law, Economics and Cultures. She holds a Ph.D. in comparative environmental law from the University of Florence. She is Titular Member of the International Academy of Comparative Law, where she has been national reporter on climate change issues. She has participated to the drafting of the Italian National Strategy on Adaptation to Climate Change. She has directed and participated to various national and international research groups on climate change issues. She has recently been awarded a UNESCO Chair.