1. Causes of Action

I  Australia

In Australia, corporate climate litigation can be brought under State and Territory human rights legislation. For example, in Waratah Coal Pty Ltd v Youth Verdict Ltd, a group of young people advocating for the rights of First Nations peoples launched a challenge against a coal company's mining lease under the State of Queensland's Human Rights Act 2019. The Youth Verdict group successfully argued that the impacts of the proposed mine project were incompatible with several protected rights, including children's rights and the cultural rights of First Nations peoples. The Queensland Land Court recommended to the Minister that the mine be refused permission to proceed. This case is also a good illustration of the role of the Queensland Land Court, which provides a mechanism by which anyone can object to an application for a mining lease, and the court will conduct an open and transparent assessment of the evidence and arguments, followed by a fully reasoned recommendation to the government decision maker.

II  Brazil

Fundamental human rights and their guarantees are scattered throughout the Brazilian Federal Constitution. Art. 225 provides for the human right to an ecologically balanced environment. Article 5 of the Constitution brings together a plurality of these rights. Companies that contribute to climate change can be held liable for violating these rights, especially if they impact those who are disproportionately affected by the effects of climate change, such as vulnerable communities. Article 231 of the Constitution provides for the recognition of indigenous peoples of 'their social organisation, customs, languages, beliefs, and traditions, and their original rights over the lands they traditionally occupy. Perhaps, these provisions could potentially be a basis for corporate climate change litigation.

III  Canada

In Canada, corporate climate litigation could be brought on a human rights basis under provincial/territorial laws, particularly in jurisdictions that recognise rights to health and the environment. For example, using the right to a healthful environment under Section 46.1 of the Quebec Charter of Human Rights and Freedoms. Additionally, Bill C-262, the Corporate Responsibility to Protect Human Rights Act, is currently before Parliament. If passed, the Act would create a private right of action in any Canadian provincial superior court against corporations that fail to meet mandatory human rights and environmental due diligence requirements in relation to business activities conducted outside Canada. The Canadian Constitution, most notably Section 7 (right to life, liberty and security) and Section 15 (equality rights) of the Charter of Rights and Freedoms, is another relevant source of human rights. While constitutional claims cannot be brought against private corporations directly, Charter values may be invoked in corporate climate litigation brought using other causes of action, such as tort, in order to support the claimant's interpretation of the law in that area.

IV  China

Human rights in China are protected under the environmental protection law and constitutional law. Procedural environmental rights have been stipulated in Chapter Five of the Environmental Protection Law. Substantive environmental rights are seldom stipulated in China in a uniform and explicit manner. The most typical cause of action is environmental rights including procedural and substantive environmental rights. In case of infringement of such rights, climate civil (tort) litigation can be instituted. However, this practice is relatively scarce.. As per the 'Guidelines for the Categorization and Statistical Standards of Environmental Resource Cases (Trial Implementation)' issued by the Supreme People's Court of China, climate change adaptation litigation can be instituted to in case of reducing the various losses and impacts of climate change on human life, property, and public health.

V  France

In France, corporate climate litigation cases can be brought using the duty of vigilance under Article L. 225-102-4 I. of the Commercial Code, which requires corporations to adopt and implement a vigilance plan including 'reasonable due diligence measures in order to identify risks and ​prevent serious harm to human rights and ​fundamental freedoms, the health and safety of humans and the environment'. There are several pending corporate climate litigation cases in France based on this duty. For example, Notre Affaire à Tous and others v Total , the claimants allege that the French oil company TotalEnergies has violated the duty of vigilance by failing to recognise the scale of its contribution to global emissions and identify the risks posed by its activities, and by failing to provide adequate emissions reductions measures with the goal of limiting global warming to 1.5 degrees Centigrade. In accordance with Article L. 225-102-4 II., the claimants seek a court order enjoining TotalEnergies to publish and implement a plan comprising a set of measures that will satisfy the requirements of Article L. 225-102-4 I. On July 5th 2023, the Tribunal Judiciaire of Paris declared the legal action inadmissible for procedural reasons. The decision will be examined by an appellate court.

VI  Germany

The German Constitution is a relevant source of human rights, notably human dignity (Article 1(1)) and the right to free development of personality (Article 2(1)). While constitutional claims cannot be brought against private corporations directly, constitutional rights may still be invoked in corporate climate litigation brought using other causes of action, such as tort, in order to support the claimant's interpretation of the law in that area. As with other EU Member States, corporate due diligence obligations could also become a basis for climate liability once the Corporate Sustainability Due Diligence Directive  (CSDDD) enters into force. In the current draft, Article 15(1) CSDDD requires certain big companies to develop and implement a climate transition plan. This would establish a climate-related duty of care, the violation of which could lead to civil liability according to Article 22 CSDDD.

VII  India

In India, environmental cases based on human rights emerge out of violation of 'fundamental rights' as embodied in the Constitution of India. Article 21  provides for the 'Right to Life' and the Supreme Court of India has on many occasions observed that it includes the right to a healthy and pollution free environment.[9] A majority of the cases have been decided by the Supreme Court and High Courts of India under Article 32 and 226  respectively and these can be invoked only if there is any infringement of fundamental human rights. From the purview of corporate climate litigation, violation of these provisions could potentially serve as a basis to bring companies before courts. As such, corporate climate litigation could arise in case of breach of the constitutional rights, making corporations liable in case of violation of their duties which negatively affect the environment.

[9] See page 42 of India's national report.

VIII  Italy

Greenpeace, Re:Common et al v ENI (pending) is the only corporate climate litigation in Italy with climate change as the central issue. The case is built on Milieudefensie v Shell, and seeks a court order that ENI, a State-owned energy company, must reduce its CO2 emissions by 45% by 2030. The claimants argue that ENI's activities contribute to the adverse effects of climate change, thus violating human rights provided by the Italian Constitution  (Article 9 'the Republic shall safeguard ... the environment ... also in the interest of future generations'; Article 41 'private economic enterprise ... cannot be carried out in conflict with social utility or in such a manner as may harm health, the environment, safety, liberty and human dignity') and by international norms and agreements (most notably Articles 2 (right to life) and 8 (right to private and family life) of the European Convention on Human Rights). The first hearing was held in October 2023.

IX  Japan

In Japan, claimants in the Kobe Coal Fired Power Plants Civil Injunction case sought an injunction to prevent the construction and operation of a power plant based, in part, on the argument that the plant would contribute to climate change and thus threaten the right to life, body and health, and the right to a peaceful and secure life. The court rejected the argument that the CO2 generated by the power plant would pose a concrete danger to life, body or health and moreover described the causal link between the damage that may be caused to the claimants from climate change and the CO2 emissions from an individual power plant as 'extremely tenuous'. The court also rejected the right to a peaceful and secure life based on the fear of the damage caused by global warming as such fears were too uncertain. The national report also notes that rights provided by the Japanese Constitution  (Article 13 right to life and Article 25 minimum standard of living) and human rights treaties may be invoked in corporate climate litigation to support the claimant's interpretation of other areas of law.

X  Kenya

In Kenya, the Constitution protects human rights under Chapter 4, 'The Bill of Rights'. Article 42 of the Constitution enshrines the right to a clean and healthy environment as part of the Bill of Rights.[10] The Constitution also enshrines procedural rights such as the right to access to information (article 35), fair administrative action  (article 47) access to justice  (Article 48), and a fair hearing  (Article 50), which are indispensable to the realisation of the right to a clean and healthy environment. Additionally, if substantive rights secured under the Constitution such as the right to life  (Article 26), consumer rights  (article 46), or rights of minorities and marginalised groups  (Article 56) are violated, legal action can be brought by the petitioner along with violation of Article 42 of the Constitution. If these provisions are violated by companies, legal action could be brought against them. Thus, these human rights embodied in the Constitution provide a springboard for potential corporate climate change litigation in Kenya.

[10] See page 6 and 16 of Kenya's national report.

XI  Netherlands

In the Netherlands, in addition to the national provisions, international human rights provisions can be a basis of corporate climate change litigation. First, liability under international human rights provisions has been invoked in the case of Urgenda Foundation vs. State of Netherlands  wherein the positive obligation under article 2 and 8 of the ECHR were invoked. Second, from a purview of corporate climate litigation, human rights are used to interpret and/or specify open norms of national liability law, such as the rules on negligence or nuisance. The legal basis for liability remains the rule of national tort law. This has been elucidated in the case of Milieudefensie v. Royal Dutch Shell  wherein along with article 2 and 8 of the ECHR (laid down human rights obligations for corporations), article 13 was also invoked, given its requirement that civil courts provide legal protection when legal obligations are at risk of being breached and to provide an effective legal remedy against that (future) breach.[11] Additionally, Article 6:162 of the Civil Code that provides for the tort of negligence played an important role in materialising international human rights provisions under domestic law. Third, as for corporate due diligence, at least two legislative initiatives at the national (Wetsvoorstel verantwoord en duurzaam internationaal ondernemen) and the European level CSDDD[12] are relevant to bring corporations before courts on their climate liability.

[11] See page 8 and 9 of the Netherlands national report.
[12] The directive contains a specific reporting provision on climate change; also see page 10 of the Netherlands national report.

XII  Nigeria

In Nigeria, there are two key human rights regimes that could form the basis of corporate climate litigation. First, are rights guaranteed in the African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act, most notably the right to a healthy environment derived from Article 24. Second, are rights guaranteed in the Nigerian Constitution, most notably the right to life in Section 33. The foremost corporate climate case based on human rights is Gbemre v Shell Petroleum Development Company Nigeria Ltd and Ors, in which the court ordered the defendants to stop gas flaring as it violated Constitution and Charter rights.

XIII  Norway

Human Rights are protected by the Constitution of Norway. Article 92 embodies the right to life. This has been invoked in the case of Statnett SF et al. v. Sør-Fosen sijte et al. This case also took into consideration the human rights provisions mentioned under article 27 of the ICCPR, and under Article 5 (d) (v) the International Convention on the Elimination of All Forms of Racial Discrimination  (ICERD), both of which Norway has ratified. In addition to this, Norway has also ratified the ECHR and perhaps that can be a basis of potential cause of action for corporate climate litigation in Norway.

XIV  Philippines

The Constitution confers fundamental rights to the citizens which includes the right to a balanced and healthful ecology (Article II). Violation of this right by any action or inaction gives rise to climate and environmental litigation. The Supreme Court held this in Juan Antonio Oposa, et. al. v. The Honorable Fulgencio S. Factoran, Jr., et. al., as a 'specific fundamental legal right' that carried the correlative duty to refrain from impairing the environment. This has also been affirmed in the case of Hilarion M. Henares, Jr., et. al. v. Land Transportation Franchising and Regulatory Board and Department of Transportation and Communications. Article 2 of the Climate Change Act of 2009 reiterates the foundation of the constitutional right. The recent report from the Philippines Commission of Human Rights on its work on National Inquiry on Climate Change  has laid out the responsibility of carbon majors as their activities in the Philippines impacted the climate system negatively.[13]

[13] See page 19-23 of the Philippines National Report.

XV  Poland

The Polish Constitution refers to the environment in a broad sense. It includes the principle of sustainable development, that requires companies to maintain the balance between the growth and the protection of the environment. Article 23 and 24 of the Polish Civil Code protect personal rights such as health, freedom, and dignity. The Supreme Court has taken into account that very poor air quality in the city of Rybnik, led to the infringement of the plaintiff's personal rights, such as health, freedom, and inviolability of the home. However, the personal rights from Articles 23 & 24 of the Polish Civil Code are not the same concept as human rights included in the Polish Constitution and international conventions, which should be read in conjunction with other provisions specifically addressing environmental issues (e.g., Articles 74 and 68 of the Polish Constitution). In addition to this, Poland has ratified other international human rights treaties such as ECHR, UNCRC, and ESCR. which also provides a potential basis to hold entities liable in case of violation of such rights.

XVI  United Kingdom

The UK has incorporated the ECHR into domestic law by means of the Human Rights Act 1998. While these rights can only be directly asserted against the State, they could have an indirect horizontal effect in climate litigation against private corporations. Under Section 6 HRA, courts must apply the law, in all cases before them, in a way that complies with these rights; under Section 3, courts must interpret legislation in a way which is compatible with Convention rights 'so far as it is possible to do so'. In R (Friends of the Earth) v Secretary of State for Business Energy and Industrial Strategy, the claimants argued that Section 3(1) of the HRA required the Climate Change Act 2008 to be interpreted in a way that was more consistent with Convention rights, which entailed better climate protections. This argument was unsuccessful, partly because the court was reluctant to exceed the "clear and constant" jurisprudence of the Strasbourg court. This might imply that if the ECtHR case law evolves to provide a strong normative statement on climate change and human rights, this kind of argument might have better prospects of success in future cases. The UK report also refers to the possibility for interested parties to make human rights and environmental due diligence complaints to the UK National Contact Point for the OECD's guidelines for multinational enterprises.

XVII  United States

In the US very few corporate climate litigation cases invoke human rights. The groundbreaking case of Juliana v United States, which claimed the federal government's actions in the context of climate change violated future generations' constitutional rights to life, liberty and property, was dismissed for lack of standing. Claims based on the constitutions of individual states have experienced more success. Most notably, re Hawai'i Electric Light Co, in which the Hawai'i Supreme Court upheld the denial of a permit to a company to supply energy using a biomass power plant, in light of the project's GHG emissions, and its impacts on the right to a clean and healthful environment under Article XI, Section 9 of the Hawaiʻi Constitution.