1. Causes of Action

I  Australia

There have been many climate-related planning and permitting cases in Australia over the past several decades. Some of these cases have been more relevant to the mitigation of climate change, with others primarily relevant to adaptation issues.

These cases are often brought against government decision-making for project applications, most notably coal and gas projects. However, these are relevant to 'corporate' climate litigation as they have implications for corporate project proponents and sometimes corporations are joined as parties to the proceedings (see e.g. Anvil Hill Project Watch Association v Minister for the Environment [14]).

Examples of recent cases in which the courts refused to allow projects to proceed include Kepco v Independent Planning Commission; Bylong Valley Protection Alliance.[15] KEPCO, a major Korean utility company, applied to build a large coal mine. The application was rejected by the Independent Planning Commission on several grounds, including its contribution to climate change. The issue was whether the planning commission's rejection of a coal mine on sustainability and climate grounds was lawful. KEPCO appealed the decision several times, but the finding that the refusal was lawful was upheld.[16] Another recent case is Tipakalippa v NOPSEMA,[17] the first case in Australia brought by First Nations people challenging an offshore project approval on the basis of lack of consultation as mandated by planning laws. The Court found that it could not be demonstrated that the corporation in question had consulted with each person that it was required to. As a result, the decision to approve the drilling approval was set aside. This ruling was upheld on appeal.

Beyond mitigation litigation seeking to challenge coal or gas projects, Australia has also seen many adaptation cases challenging approvals issued to corporate project proponents. These cases include those concerning coastal hazards (e.g. Aldous v Greater Taree City Council; Byron Shire Council v Vaughan), sea level rise (e.g. Able Lott Holdings Pty Ltd v City of Fremantle; Lake Park Holdings Pty Ltd v East Gippsland SC), flood risks (e.g. Arora Construction Pty Ltd v Gold Coast City Council; Bayport Enterprises Pty Ltd v Port Phillip CC), bushfire risks (e.g. Adamson v Yarra Ranges Shire Council; Boynton and Western Australian Planning Commission), and threatened species (e.g. Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor; Environment East Gippsland Inc v VicForests). They have generally drawn less public and academic attention compared with the mitigation-focused cases outlined above.

[14] [2007] FCA 1480.
[15] [2020] NSWLEC 38.
[16] See also Hume Coal Project and Berrima Rail Project, SSD 7172, NSW Independent Planning Commission Instrument of Refusal (31 August 2021) and Statement of Reasons (31 August 2021) at [124]. Though it did not proceed to litigation, the Planning Commission adopted similar reasoning to the Gloucester case in its decision to refuse the Hume Coal Project in 2021.
[17] [2022] FCA 1121; [2022] FCAFC 193.

II  Brazil

(forthcoming) 

III  Canada

The Canadian Environmental Assessment Agency (CEAA) requires environmental assessment for all major projects that may impact areas of federal jurisdiction to assess whether a project is "likely to cause significant adverse environmental effects."[18] The CEAA, Canada Energy Regulator and Canadian Nuclear Safety Commission, as well as some provincial regulators, hold public hearing processes as part of project approval, licensing and the development of regulatory frameworks. The Impact Assessment Act governs assessments on federal land or outside of Canada and requires that Canada may not carry out or provide financial support to carry out any project without determining that "the project is not likely to cause significant adverse environmental effects or... those effects are justified in the circumstances."[19] It also requires that "impact assessment takes into account scientific information, Indigenous knowledge [of the Indigenous peoples of Canada] and community knowledge."[20] In the albeit limited role of intervenor, these processes offer some means to utilise regulatory frameworks and enforcement mechanisms created by statute to advocate for corporate climate accountability. Regulators' decisions may also be challenged through judicial review.[21]

Non-profits have been successful at utilising judicial review as a means of challenging governmental approval of projects. For example, in 2008, the Federal Court found in favour of Ecojustice and several other NGOs who argued that an environmental assessment of Imperial Oil's Kearl Tar Sands Project was incorrect and would cause more than insignificant environmental harm.[22] The Federal Court held that the Panel that determined the project's greenhouse gas emissions had not provided sufficient justification that the company's proposed mitigation measures would be capable of reducing environmental harms to the extent claimed. The matter was remitted back to the Panel to provide a rationale for its conclusion.[23]

Finally, Sierra Club of British Columbia Foundation v British Columbia (Minister of Environment and Climate Change Strategy) illustrates the effectiveness of judicial review in assessing compliance with environmental reporting requirements.[24] There, the British Columbia Supreme Court ruled that reporting obligations under the Climate Change Accountability Act were justiciable, allowing for review of the Minister's compliance with statutory requirements. The court then reviewed the Minister's compliance with reporting requirements, which it found were reasonably satisfied.[25]

[18] Canadian Environmental Assessment Agency, "Operational Policy Statement: Determining Whether a Designated Project is Likely to Cause Significant Adverse Environmental Effects under CEAA 2012" (November 2015) ss 52(1), 5.
[19] Ibid, ss 82, 83.
[20] Ibid, s 6(1)(j).
[21] Federal Courts Act, R.S.C. 1985, c. F-7, s. 18, 18.1
[22] See e.g. Pembina Institute for Appropriate Development and Others v. Attorney General of Canada and Imperial Oil [2008] FC 302.
[23] Ibid at para 80.
[24] Sierra Club of British Columbia Foundation v British Columbia (Minister of Environment and Climate Change Strategy), 2023 BCSC 74.
[25] See also Highlands District Community Association v British Columbia (Attorney General), 2020 BCSC 2135; In the Matter of FortisBC Energy Inc.: Amendment to Rate Schedule, 2012 Carswell BC 1061. For Not In My Backyard (NIMBY) challenges, see Citizens for Riverdale Hospital v Bridgepoint Health Services, [2007] OJ No 2527, 56 OMBR 129.

IV  China

In China, environmental inspections carried out by the government can be an important way of encouraging regulatory authorities to expedite the implementation of green, low-carbon development policies. In particular, administrative public interest litigation can be brought by the government against regulatory authorities. For example, legal proceedings were brought against the Fengxiang Branch of the Baoji Environmental Protection Bureau because of its failure to bring the emissions of a corporation within legal standards (see discussion in Current Applications Section above). Currently, however, there are no cases that are specifically based on failure to perform duties related to climate change, though the future for such administrative public interest litigation is promising. A major barrier to administrative public interest litigation based on climate change is the lack of laws specifically regulating climate change. However, some local legislation has already elaborated a duty to combat climate change and promote carbon peaking and a carbon neutral goal for local government, and national level climate change legislation is in discussion. With further legislation, the theoretical foundations for filing a suit for inaction on climate change would be available.

V  France

VI  Germany

The violation of planning regulations and non-compliance with permits can form the basis of a claim for damages under civil law but only if the violated norm constitutes a 'protective law' (i.e. a law intended to protect another person) under Section 823(2) of the German Civil Code, according to which there is a duty to provide compensation imposed 'on a person who commits a breach of a statute that is intended to protect another person.' Interestingly, in Germany, compliance with permits under public law is a particularly strong defence to climate litigation. In addition to explicit provisions excluding liability in particular instances, Germany traditionally adheres to the overarching principle of unity of the legal order, by which it may be considered a contradiction to hold a corporation liable under civil law for emissions they were legally permitted to emit (see further detail in Section on Defences). 

VII  India

The Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 mandate that to operate an industrial unit corporations must obtain from the State Pollution Control Board a No Objection Certificate and Consent to Establish or Consent to Operate.[26] Although not based on climate change, cases such as AP Pollution Control Board v Prof MV Nayudu (Retd.)  demonstrate that individual claimants have been successful in seeking judicial review of planning authorisations based on violations of the above Acts. 

[26] See Section 25 of the Water (prevention and Control of Pollution) Act, 1974.

VIII  Italy

In Italy, there are several legal provisions requiring an EIA to include an assessment of the project's climate change impacts (EU Directive 2014/52/EU, Legislative Decree no. 152/2006, and the SNPA Guidelines). However, thus far, challenges to EIAs based on climate-related grounds have been consistently rejected by the courts on the basis that the public administration enjoys a wide margin of discretion to balance the multiplicity of opposing public and private interests (see e.g. ruling no. 7041 of 2021 by the Lazio Regional Administrative Court). 

IX  Japan

Japan enacted an Environmental Impact Assessment Act in 1997 . However, as the EIA is to be conducted by corporations and is a long-term and costly procedure, the requirement for an EIA is restricted only to large-scale projects that are likely to have significant environmental impacts. Furthermore, the Ministry of Economy, Trade and Industry, which has authority for authorising power plant projects, has considerably loosened the criteria that must be assessed in the EIA. For example, the corporations themselves can choose the items to be assessed and the opportunity for the public to express their opinions is limited. Thus, it is easy for developers to obtain planning permission from the government. In addition to these factors, in the wake of the Great East Japan Earthquake and tsunami, which damaged the Fukushima power plant and caused power shortages, the government sought to rapidly expand thermal power generation capacity that could immediately replace nuclear power plants. Consequently, the government further loosened the EIA criteria for constructing such plants and issued Guidelines for Replacement of Thermal Power Plants that shortened the time required for EIAs.

X  Kenya

The substantive Act on planning in Kenya is the Physical and Land Use Planning Act No. 13 of 2019 . The Act incorporates the need to combat climate change in physical and land use plans but does not address climate change substantively. General property laws in Kenya have low utility in supporting climate action against corporates. 

XI  Netherlands

Laws on planning and permitting are mainly laid down in administrative laws. Interestingly, in the Netherlands, challenges against administrative decision making have been brought by energy companies. In 2019, the Dutch government announced that it was phasing out the use of coal to produce electricity in order to meet its international climate obligations and the Urgenda ruling. This was enacted in the Prohibition of Coal in Electricity Production Act , which entered into force on 20th December 2020. Coal companies RWE and Uniper challenged this decision on the basis that their right to property under the European Convention on Human Rights had been violated. The District Court of The Hague ruled that the law did infringe on their property rights but was not unlawful because the infringement was proportionate and the interests of the claimants had been sufficiently considered. Furthermore, the court held that it was foreseeable to corporations that a ban would be imposed. On 1st January 2022, the Decree on Compensation for Loss Resulting from Administrative Acts Concerning the Production Reduction of Coal Plants entered into force. In 2023, the government paid compensation to the corporations concerned.

XII  Nigeria

Planning and permitting laws have not been the basis for climate litigation in Nigeria. However, where climate-harmful projects have been established contrary to existing planning and permitting laws, such as the Nigeria Urban and Regional Planning Act, 2004[27] the legality of those projects can be subjected to judicial review and appropriate penal and corrective orders issued. 

[27] Cap N138 Laws of the Federation of Nigeria, 2004.

XIII  Norway

The Planning and Building Act (2008) establishes a system for land-use and building control.[28] According to Section 1-1, the overall objective of the Planning and Building Act is to 'promote sustainable development in the best interests of individuals, society and future generations.' The Planning and Building Act contains certain rules directly aimed at the protection of the environment, e.g. Section 3-1 states that climate impacts are one of the factors to be taken into account before granting planning permission for energy and transport projects.

With respect to building rules, Section 28-1 mandates that proposed construction sites must be safe as regards environmental and natural risks, such as floods, landslides and avalanches. The Supreme Court has made clear in case HR 2020-1353-A that the Planning and Building Act shall be read in light of the right to a healthy environment in Section 112 of the Norwegian Constitution. Following this ruling, the question is open whether a stricter interpretation of the PBA rules in light of Section 112 would increase the opportunities for climate-related litigation connected to property rights.

Public participation is ensured through the establishment of a system of exchange of information. The planning authorities have a duty to actively inform the public about planning activities. Planning proposals have to be published in a way that is available to all citizens. Everybody have a right to raise questions and express their view.[29]

[28] Act of 27 June 2008 No. 71.
[29] HC Bugge, Environmental Law in Norway (4th edn, Wolters Kluwer 2022) 440.

XIV  Philippines

Presidential Decree No. 1586 entitled Establishing an Environmental Impact Statement System, Including Other Environmental Management Related Measures and for Other Purposes ("EIA Law") established the Environmental Impact Statement System with the policy of attaining and maintaining a rational and orderly balance between socio-economic growth and environmental protection.[30] Under this law, the President or his agents can "declare certain projects, undertakings or areas in the country as environmentally critical."[31] The rule in the EIA Law is that ​​a partnership or corporation which aims to undertake or operate any such declared environmentally critical project or area must first secure an Environmental Compliance Certificate ("ECC").[32]

Republic Act No. 7160 or the Local Government Code of 1991 ("LGC") has a number of provisions requiring permits of corporations and other business organisations who locate or operate in their local jurisdictions.[33] The grant of these permits may also require that corporations abide by certain local ordinances that include protections to the environment and climate change mitigation, particularly since these ordinances are based on the police power of LGUs as encapsulated in the general welfare clause.[34]
On top of this, the LGC has two crucial provisions on planning and permitting of projects, failure to comply with which can form a basis for litigation: Section 26, which stipulates 'the duty of every national agency or government-owned or controlled corporation authorising or involved in the planning and implementation of any project or program that may cause pollution, climatic change ... to consult with the local government units, nongovernmental organisations, and other sectors concerned';[35] Section 27, which stipulates that 'No project or program shall be implemented by government authorities unless the consultations ... are complied with, and prior approval of the sanggunian concerned is obtained'.

The ordinance power and the duty to consult are relevant to climate change, particularly since the Climate Change Act identifies LGUs as frontline agencies in climate change mitigation and adaptation.

[30] Pres. Dec. No. 1586 (1978), § 1.
[31] Id. § 4.
[32] Id.
[33] Rep. Act No. 7160 (1991). Local Government Code.
[34] Id. § 16.
[35] Emphases added.

XV  Poland

Legal action based on planning and permitting will be governed by administrative law and will aim to challenge decisions issued by public authorities.

Under Article 71ff of the Act on Providing Information on the Environment and Environmental Protection, Public Participation in Environmental Protection and on Environmental Impact Assessment , corporations must receive environmental approval for their activities for projects that may significantly affect the environment. The Act provides that citizens and environmental organisations have a right to participate in administrative proceedings and may challenge the decisions resulting therefrom. Citizens and environmental organisations may also challenge administrative decisions in the administrative courts based on the Act – Law on Proceedings before Administrative Courts . They may also apply to the Polish Ombudsman which can either make inquiries to the relevant government authorities about the decision made in the particular case or can join legal proceedings and present arguments.

They also bring litigation based on Article 325 of the Environmental Protection Law Act  where environmental damage has been caused by activities authorised by an administrative decision. 

XVI  United Kingdom

Climate change litigation in the United Kingdom is dominated by public law challenges. In most instances these arise as challenges to local administrative or national planning decisions.[36] For example, litigation has been brought challenging the authorisation of major emissions producing projects, such as incinerators and airport expansions, often questioning the integrity of the EIA on which the decision was based for failing to adequately take climate change into account. Some of these cases are brought as challenges or appeals under statute,[37] but most are brought as judicial review applications. Judicial review 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.[38]  In addition, there are limits on standing and short limitation periods (see Sections on Standing and Limitation Periods) which can present particular challenges given the complex and technical nature of environmental disputes.[39]

To date, none of these cases has resulted in an uncomplicated court victory but some have resulted in strategic progress in other ways, [40] most notably the ClientEarth (Drax) litigation, a challenge to development consent for a gas plant.[41] Although the claimants lost, the project did not go ahead, and no other large-scale (non-CCS) gas projects have come forward since. Although these are public law cases against (usually) a minister of state, litigation of this nature does affect business interests as States either regulate,[42] or support or accelerate the closure of different emitters to give effect to these decisions.[43] Directly affected corporations can, and frequently do, participate as interested parties.[44]

The current legal position regarding challenges of this nature is that climate change is relevant and a material consideration in any decision making about infrastructure. The greenhouse gas emissions of a project can be a reason to refuse permission, but emissions are 'not, of themselves, an automatic and insuperable obstacle to consent being given'.[45] How much weight to place on climate change issues is a matter for the decision-maker.[46] The Court of Appeal has confirmed that the statutory and policy arrangements for achieving net zero by 2050 'leave the Government a good deal of latitude in the action it takes to attain those objectives... as part of an economy wide transition' and that 'it is the role of Government to determine how best to make that Transition'.[47]

The most recent 'waves' of climate judicial reviews challenge the failure to assess scope 3 emissions in fossil fuel projects in the UK and abroad,[48] as well as challenging the flow of public money to projects that are 'not aligned with climate action'.[49] In the latter case, the target is more specific: 'to increase the cost of capital for high emitting activities to the point where such activities become economically unviable even if they remain legally permissible'.[50] Notably, Finch is an example of the former case, with the claimants arguing that the downstream emissions from oil wells should have been assessed for permission lawfully to have been given. The case has been heard before the Supreme Court, with several intervenors, including the OEP, two NGOs and a mining company, and at the time of writing, the decision is awaited with some anticipation.

[36] Elizabeth Fisher, Bettina Lange and Eloise Scotford, Environmental Law: Text, Cases, & Materials (Oxford University Press 2013), 807 - 836 explain these processes.
[37] For example Preston New Road Action Group and Gayzer Frackman v SSCLG [2018] EWCA Civ 9 (Court of Appeal).
[38] See for e.g. Richard Macrory, 'The Courts and the Environment', Regulation, Enforcement and Governance in Environmental Law (Hart Publishing 2009).
[39] Part 54.5 Civil Procedure Rules (CPR) and Fisher, Lange and Scotford (n 269), 263 - 264..
[40] Bouwer and Setzer (n 2), 8.
[41] R (on the application of ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy and Drax Power Limited [2021] EWCA Civ 43.
[42] Hari M Osofsky, 'The Role of Climate Change Litigation in Establishing the Scale of Energy Regulation' (2011) 101 Annals of the Association of American Geographers 775, 775-83.
[43] Macchi (n 62), 104 - 6.
[44] For instance in R (oao FOE) v SoS for UKEF and Chancellor of the Exchequer [2023] EWCA Civ 14 (Court of Appeal) both the operating and primary financing company intervened.
[45] R (on the application of ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy and Drax Power Limited (n 275), [87].
[46] ibid, [87].
[47] Packham v SoS Transport [2020] EWHC 829 (Admin).
[48] R (on the application of Sarah Finch on behalf of the Weald Action Group) v Surrey County Council and others (n 35); R (oao FOE) v SoS for UKEF and Chancellor of the Exchequer (n 278).
[49] Setzer and Higham (n 99), 19. UK examples include R (oao) Jeremy Cox and others v The Oil and Gas Authority and another [2022] EWHC 75 (Admin); R (oao FOE) v SoS for UKEF and Chancellor of the Exchequer (n 278).
[50] Setzer and Higham (n 99), 19.

XVII  United States

In the 'third wave' of litigation in the United States (cases initiated 2015-present), there have been cases brought by the Conservation Law Foundation under the Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) for violations of permits issued under Coastal Zone Management Acts.

There are also two cases which might be illustrative of future trends. The first was re Hawai'i Electric Light Co (2023), an appeal by the Hawai'i Electric Company to the Supreme Court of Hawai'i, for refusal, by the Hawai'i public utilities commission, of a permit for the utility to build a biofuel generation plant. This case is innovative for invoking human rights claims in connection with climate change, based on the Hawai'i state constitution. The second is Rise St James v Louisiana Department of Environmental Quality (LDEQ) (2022), in which environmental justice communities, Rise St James and others, sought judicial review of the Louisiana Department of Environmental Quality's decision to grant air permits to a plastics company, Formosa, in an area with a 99% minority population. This case invoked issues of environmental, climate and racial justice based on the Louisiana State Constitution's public trust obligations.