1. Causes of Action

Environmental Impact Assessment; Due Diligence Requirement

Jurisdictions such as France (Friends of the Earth et al. v. Prefect of Bouches-du-Rhône and Total) and Australia (Environment Victoria Inc v AGL Loy Yang Pty Ltd) emphasise the importance of comprehensive Environmental Impact Assessments (EIAs). Corporations are expected to conduct thorough analyses of their projects' impacts on the environment, including indirect effects like "indirect land use change" associated with the production of raw materials (e.g., palm oil).

In Friends of the Earth et al. v. Prefect of Bouches-du-Rhône and Total, the Administrative Tribunal of Marseille partially invalidated Total's permit to operate a biorefinery. The court found that the environmental impact statement undertaken by Total was incomplete, particularly in its failure to adequately assess the biorefinery's impacts on climate change. This underscores the corporate duty not only to assess but also mitigate adverse environmental impacts of their operations, considering both direct operations and the broader supply chain.

Leveraging Environmental Principles

Precautionary Principle allows for anticipatory measures even in the face of scientific uncertainty. Wingspread Declaration (1998) states, "when an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically. In this context the proponent of an activity, rather than the public, should bear the burden of proof." Similarly, Principle 15 of the Rio Declaration provides, "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."

While the case involving Trans-Adriatic Gas Pipeline (TAP)[1]  primarily revolves around the substantial climate legality, the precautionary principle is implicitly involved. The claimants argue against the extension of the TAP's authorisation by emphasising the climate emergency and the irreversible impacts of fossil fuel use. The invocation of the climate emergency reflects a precautionary approach, where actions are urged against the pipeline to prevent potential extensive harm, even though the full scope of the environmental impact may not be conclusively known. Litigants invoke this principle to argue for proactive measures against potentially harmful activities that could adversely affect the environment and human health. By leveraging this principle, litigants advocate for a risk-averse approach, especially when scientific evidence is not conclusive but the potential for significant harm exists.

In the landmark case of China Biodiversity Conservation and Green Development Foundation v. Yalong River Basin Hydropower Development Co., Ltd., the court notably invoked the precautionary principle alongside the Environmental Impact Assessment (EIA) requirement and the Convention on Biological Diversity (CBD) to address the potential environmental risks associated with a hydropower project. By leveraging the precautionary principle, the court emphasised the importance of erring on the side of caution in the face of uncertainty regarding the project's potential impacts on biodiversity and the environment. This approach underlined the necessity for comprehensive environmental impact assessments and adherence to international environmental standards, framing the issue as one of public interest.

Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs.[2]  It contains within it two key concepts: (a) the concept of needs, in particular the essential needs of the world's poor, to which overriding priority should be given, and (b) the idea of limitations imposed by the state of technology and social organisation on the environment's ability to meet present and future needs.[3]

Litigants use this principle to argue against policies or projects that compromise environmental integrity or deplete natural resources. In the TAP case, claimants use the frameworks of the UNFCCC, the Paris Agreement, and EU law, alongside scientific reports like those from the IPCC, to articulate the climate emergency as a critical, destabilising, and irreversible process. This "climate emergency" is presented as a legal issue, emphasising the necessity of substantial climate legality, which goes beyond formal compliance to entail quantitative and temporal targets to assess the legitimacy of administrative acts. From this perspective, according to the claimants, the administrative act extending TAP's authorisation was inconsistent with the principles of non-regression and sustainable development. They emphasised that the Trans Adriatic Pipeline should align with the EU's environmental objectives and principles. They also emphasise the need for balanced economic growth that is in harmony with nature and secures ecological well-being for future generations.

[1] European Ombudsman. (n.d.). Decision on complaint 135095. Retrieved from https://www.ombudsman.europa.eu/en/decision/en/135095 accessed 18 January 2023.
[2] Brundtland, G.H. (1987). Our Common Future: Report of the World Commission on Environment and Development. Geneva: UN-Dokument A/42/427
[3] Ibid.

Corporate Compliance with National and International Environmental Standards

Recent legal developments showcase the judiciary's increasing commitment to enforcing not only local environmental regulations and aligning them with global environmental standards and commitments.

UNITED KINGDOM

In Friends of the Earth Ltd and others v Heathrow Airport Ltd, claimants challenged the proposed expansion of Heathrow Airport and its third runway, arguing that the expansion would be inconsistent with the UK's climate commitments. The claimants argued that the government's approval of the airport expansion failed to adequately consider the UK's climate commitments under the Paris Agreement and the obligations under the Climate Change Act. The Court of Appeal found in favour of the claimants. However, the defendants appealed to Supreme Court and the Supreme Court unanimously allowed their appeal.

INDIA

In the landmark case Hindustan Zinc Ltd. v. Rajasthan Electricity Regulatory Commission the Supreme Court of India upheld the High Court of Rajasthan's 2012 order mandating a group of companies involved in non-ferrous metal production to purchase a minimum amount of energy from renewable sources. The order was pursuant to the renewable energy purchase obligation under the Rajasthan Electricity Regulatory Commission Regulations. The Supreme Court affirmed the validity of the renewable energy purchase obligation, emphasizing that protecting the environment and ensuring public health are duties of the state and its instrumentalities. The judgment also underscored India's commitment to the National Action Plan on Climate Change and the significance of generating and consuming green energy, referencing Articles 21, 48A, and 51A(g) of the Indian Constitution. The renewable energy purchase obligation is also deemed consistent with India's international obligations, as the country has ratified the Kyoto Protocol..

In the case of Tamil Nadu Pollution Control Board vs. Sterlite Industries (I) Ltd., Sterlite Industries operated a copper smelter plant in Thoothukudi, Tamil Nadu. Initially granted a No Objection Certificate (NOC) under the Water (Prevention and Control of Pollution) Act and Air (Prevention and Control of Pollution) Act, the company received permission to produce blister copper and sulphuric acid. However, the environmental clearance granted was contested in the High Court of Madras.

Subsequently, the Tamil Nadu Pollution Control Board permitted the production of additional products, phosphoric acid, and hydrofluorosilicic acid. In 2013, local residents began experiencing health issues, attributing them to emissions from the Sterlite plant. Consequently, the Tamil Nadu Pollution Control Board ordered the plant's closure under Section 31A of the Air Act, a decision that was also legally challenged. This case highlights the conflict between industrial operations and public health, scrutinizing the responsibilities and decisions of the statutory authority in regulating industrial activities and protecting the community's well-being.

NIGERIA

The dualist approach adopted by some countries like Nigeria means international treaties and agreements are not directly enforceable in domestic courts unless they are formally incorporated into national legislation. This poses a significant challenge for plaintiffs relying on international commitments.

While not directly enforceable, international agreements can still indirectly influence domestic litigation. This influence manifests in how courts interpret domestic statutes, ensuring that the interpretation aligns with the country's international commitments and the broader principles of international environmental and human rights law. The Nigerian Supreme Court's decision in the case of Centre for Oil Pollution Watch (COPW) v Nigerian National Petroleum Corporation (NNPC) reflects this trend, where the court recognized the standing of NGOs to bring actions against public and private entities for the enforcement of statutory provisions or public laws, especially those designed to protect human lives, public health, and the environment. This broader interpretation of standing and enforcement of public duty aligns with the spirit of international environmental commitments and human rights treaties.

CHINA

In a landmark environmental case in China, the Supreme People's Court presided over an anti-air pollution civil public interest lawsuit initiated by the prosecutor of Deqing County against Deqing Minghe Insulation Material Company, marking a pivotal moment in China's legal battle against ozone depletion. This case is distinguished as the first in China where environmental pollution led to criminal prosecution with actual punishment for the illegal use of ozone-depleting substances (ODS), specifically trichlorofluoromethane (freon), in violation of international treaties like The Vienna Convention and the Montreal Protocol. Concurrently, it stands as the inaugural civil public interest litigation regarding air pollution liability for ODS use. The lawsuit demanded Deqing Minghe to compensate for ecological environmental damage and cover appraisal and assessment costs, showcasing China's commitment to international environmental agreements and its proactive approach in using legal mechanisms to safeguard the ozone layer.