1. Causes of Action

6. HURDLES AND CHALLENGES

The litigation based on climate and environmental laws encounters several hurdles and challenges, specifically: (a) the doctrine of political questions, (b) determining which laws to apply from among concurrent statutes, (c) proving causation, (d) establishing standing, (e) legal frameworks' focus on broader policy goals rather than direct corporate accountability, and (f) inadequate regulatory frameworks, including the broad discretionary powers given to regulatory bodies for approving environmental impact assessments.

Climate change litigation often grapples with the doctrine of political questions, particularly in the U.S., where courts defer certain claims to the legislative or executive branches, constraining judicial intervention.

• In the US, one of the earliest cases in the "First Wave" (see US report) was brought by the State of California against auto manufacturers, including General Motors, in 2006. The claims were unsuccessful at the Ninth Circuit on the basis that it was a political question reserved for Presidential or Congressional action.

Moreover, given that climate change and environmental laws encompass a broad range of statutes and policies, courts often face the challenge of deciding which laws to apply from among conflicting concurrent statutes. In making these decisions, courts consider several factors, including the principle of legislative independence and the precedence of federal legislation over federal common law claims.

• In France, the Larivot case clarified that environmental permits issued within the EU emissions trading scheme (Directive EU 2003/87) are not required to comply with the national emissions reduction targets outlined in Article L. 100-4 of the French Energy Code. This decision highlighted the principle of legislative independence by asserting that the validity of permits granted under one legal framework (in this case, environmental) cannot be judged by the standards of another framework (such as energy laws).
• In Australia, the case of Gray v Macquarie Generation involved environmental activists attempting to limit carbon dioxide emissions from a state-owned power company. They based their case on common law principles, which mandate the prevention of emissions exceeding levels that could be achieved by exercising "reasonable regard and care for the interests of others and the environment." This case underscored the legal challenges of applying common law principles to statutory permits. The Court of Appeal ultimately rejected the notion of applying these common principles, which protect private rights, to regulate emissions under a statutory permit.

• In the US, federal legislation like the Clean Air Act has been seen to supersede federal common law claims This displacement effectively limits the scope of federal common law in addressing climate change issues.
  
  The case of Massachusetts v. EPA (2007) set a precedent by confirming that the Environmental Protection Agency (EPA) has the authority to regulate Greenhouse Gases (GHGs) as pollutants under the Clean Air Act (CAA). Subsequently, in the case of American Electric Power v. Connecticut (2011), the Supreme Court clarified that federal common law claims related to pollution are superseded by the federal CAA. This ruling effectively affirmed that, following the Massachusetts v. EPA decision, the EPA possesses the explicit authority to regulate emissions from stationary sources, including emissions from power plants, under the CAA.
  
  In Kivalina v. ExxonMobil Corp. (2012)), the Native Village of Kivalina filed a lawsuit against various energy companies, seeking compensation for adaptation costs. The Ninth Circuit Court ruled that their federal claims, based on public nuisance, were precluded by the Clean Air Act (CAA), in line with the precedent set by the AEP v. Connecticut case.

Another significant hurdle in environmental litigation is proving a direct causal link between the defendant's actions and the environmental harm, a requirement that has led to the dismissal of several claims.

• In the United States, Barasich v Columbia Gulf Transmission Co. (2006) was a tort claim against oil and gas companies for destruction of marshland, which the plaintiffs claimed exacerbated the impacts of Hurricanes Katrina and Rita. The claim was ultimately dismissed for failure to prove causation.
• In Poland, the Environmental Protection Law Act (EPLA) sets the legal framework for commercial activities and their environmental impact. Plaintiffs, including organizations like ClientEarth and Greenpeace, have invoked Article 323 of the EPLA. This article empowers those directly threatened by unlawful environmental impacts, or who have already suffered such impacts, to demand that responsible entities restore lawfulness or cease harmful activities. While Article 323 adapts the civil liability mechanism to environmental protection, its interpretation and application, particularly regarding the definition of 'unlawfulness' and the scope of 'environmental damage', have been subjects of scholarly debate.

Establishing the standing to sue is another obstacle, as plaintiffs must demonstrate a sufficient connection to and harm from the action being challenged.

• In the Nigerian case of Oronto Douglas v Shell Petroleum Development Company Nigeria Limited & Ors (1997), the plaintiff, an environmentalist and public-spirited individual, sought to enforce the procedural requirements outlined in the Nigerian EIA Decree No. 86 of 1992 (now an Act). The plaintiff filed a lawsuit against several oil companies, accusing them of failing to comply with the procedural mandates of the EIA legislation during the establishment of the Nigeria Liquefied Natural Gas (NLNG) project. Despite these considerations, the court, relying on its outdated and overly restrictive rules regarding standing in environmental cases, concluded that the plaintiff lacked locus standi to pursue the matter.

The efficacy of statutory frameworks like the UK's Climate Change Act in litigation is often limited, due to the frameworks' focus on broader policy goals rather than direct corporate accountability.

• In Plan B Earth and others v Secretary of State for Business, Energy, and Industrial Strategy, the plaintiffs argued that the government's policy was insufficient to meet the carbon budgets and emission reduction targets set by the Climate Change Act. The courts dismissed the case, emphasising that the government's policy aligned with the carbon budgets set under the Climate Change Act.
• In China, the case of The Friends of Nature Institute v. Gansu State Grid involved the environmental NGO Friends of Nature, filing a lawsuit based on Article 40 of the Environmental Law and Articles 2 and 14 of the Renewable Energy Law. Gansu State Grid contended that these articles could not serve as a legal basis for the lawsuit. In this case, Article 40 of the Environmental Law is considered a "soft" provision due to its use of vague language that encourages green production and recycling of resources, whereas Articles 2 and 14 of the Renewable Energy Law do not specify penalties for non-compliance.

In some jurisdictions, inadequate regulatory frameworks, including the broad discretionary powers given to regulatory bodies for approving environmental impact assessments, often result in assessments that formally comply but lack the substantive rigor needed for stringent environmental protection.

• In Japan, administrative actions, including the Kobe and Yokosuka administrative cases, challenge these procedural and structural issues. The cases attempted to use the Basic Act on the Environment (BAE) and the Environmental Impact Assessment (EIA) Act to address legal interests harmed by CO2 emissions. However, these attempts were not successful, indicating the challenges and limitations within the current legislative framework. In the Kobe administrative case involved legal proceedings against Kobe Steel Ltd. and the State of Japan, the plaintiffs attempted to leverage the Basic Act on the Environment (BAE) and the EIA Act to argue against the harmful environmental impact of Kobe Steel's operations. The case brought to light the procedural limitations of Japan's EIA process. Critics argue that the process allows business operators to conduct formal and superficial assessments, which may not adequately capture the potential environmental harm of proposed projects.
• In Nigeria, while the 2018 Flare Gas (Prevention of Waste and Pollution) Regulations explicitly outlaw gas flaring, they concurrently grant the relevant Minister unrestricted discretion to permit this activity. This authority potentially diminishes the impact of these regulations in the context of corporate climate litigation. Historically, it has been observed that major oil companies may engage with the relevant authorities to obtain approval for gas flaring.

These hurdles and challenges reflect the complex nature of climate and environmental litigation, where legal doctrines, procedural requirements, and the interplay between national and international legal frameworks significantly influence the prospects and outcomes of such litigation.