1. Causes of Action
H. Planning and Permitting Laws
1. OVERVIEW
A number of countries have not identified any corporate climate litigation cases based on planning and permitting laws (Kenya, Nigeria, Norway, Philippines) and such litigation is considered to be at an early stage in others (China, Italy, Japan). Other jurisdictions identified a more established history of this type of litigation (Australia, Canada, Germany, India, Netherlands, Poland, United Kingdom, United States). Australia and the UK particularly stand out as countries where a large number of climate-related planning and permitting cases have been brought and where this type of litigation forms the bulk of climate cases to date.
These cases are most often brought against government decision making that authorises projects that will produce deleterious effects on the climate. Often these cases question the integrity of environmental impact assessments that inform planning and permitting decisions, on the basis that the assessment failed adequately to take climate change into account. Decisions that have been challenged relate to a wide range of activities and projects, from coal mines to airport expansion. Although these cases are usually brought against government decision makers, the Toolbox project classifies them as corporate climate litigation as they have clear implications for corporate projects and, indeed, sometimes corporations are joined as parties in the proceedings (see e.g. the Australian case of Anvil Hill Project Watch Association v Minister for the Environment, in which a community group commenced judicial review proceedings challenging a government decision to approve a coal mine and the mining company was joined to the proceedings).
This comparative legal research explores established legal avenues for bringing planning and permit-based litigation in the case study countries, as well as the hurdles and challenges that might be encountered by litigants attempting to utilise these avenues in corporate climate litigation. It also highlights potential legal avenues in future litigation.
1. Established Legal Avenues from Past Litigation
In some cases, certain planning statutes may specify a right to seek statutory review of certain decisions (see e.g. the UK case Preston New Road Action Group and Gayzer Frackman v SSCLG [2018] EWCA Civ 9 (Court of Appeal), in which two applications for statutory review were made under the Town and Country Planning Act 1990, challenging a decision by the Secretary of State for Communities and Local Government to grant planning permission for exploration works to test the feasibility of fracking at two sites in Lancashire). However, by far, the more common avenue identified is to challenge decisions by bringing judicial review proceedings, and this is the mechanism that will be explored in this Section of the toolbox. In any event, statutory and judicial review are usually very similar mechanisms in terms of grounds for challenging a decision, though statutory review provisions will ordinarily provide for stricter rules in terms of remedies that can be sought and time limits for bringing challenges in areas 'where greater certainty and immunity from delayed challenge are needed in administrative decision-making.'[1]
As noted below in Part 3 on Relevant Definitions and Essential Elements, the precise grounds for bringing a judicial review claim vary across the different case study jurisdictions. Indeed, even the term 'judicial review' is not commonly used in civil law countries. However, the core principle identified across most case study countries is that the individual may have recourse to the courts to challenge a decision made by the State, and the courts may rule on the legality of the decision and, if necessary, overturn it. It is important to note that judicial review is a challenge to the process by which a decision was reached, not a challenge to the merits of the decision. In other words, the claim is that the decision maker has not applied the law correctly.
In the UK, the grounds for judicial review are conceptualised as illegality, irrationality, and procedural impropriety and these concepts are broadly echoed in the other jurisdictions surveyed.[2]
Illegality: If a decision maker makes a decision it was not empowered to make, it may be overturned as it is ultra vires (beyond the decision maker's powers). A decision may be deemed ultra vires if the decision maker relies on factors that are irrelevant or ignores relevant factors. In the UK case R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council and others, the Council granted planning permission to a corporation to retain and expand two existing oil wells and to drill four new wells. The claimant brought a judicial review challenge on the basis that the Council had failed to consider the relevant factor of scope 3 greenhouse gas emissions that would be generated from the future combustion of the extracted oil. The case was heard by the Supreme Court in 2023 and judgment is pending.
Irrationality: If a decision is manifestly unreasonable, it may be overturned on the ground of irrationality. Irrationality is an extremely high threshold, understood as meaning a decision that no reasonable public authority could have made. Thus, it is unlikely to be a successful ground of challenge other than in rare cases.
Procedural impropriety: If the correct steps have not been followed in reaching a decision then the decision may be overturned on the ground of procedural impropriety. For example, if the decision maker has failed to carry out a mandatory environmental impact assessment (EIA) or consultation with a local community. Thus, in the Australian case Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority, First Nations people challenged approval for an offshore oil project 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.
2. Hurdles
The nature of judicial review is that it allows individuals to challenge the process by which a government decision was made. Thus the scope for challenging a decision directly on the merits via this type of claim is extremely limited. In addition, the rules on who has standing to bring a judicial review are often restrictive (see Section on Standing).
Other hurdles include the wide margin of discretion accorded by courts to public decision makers in many countries. This is identified as a particular obstacle in Italy and the UK. Indeed, although Italy has seen a marked increase in the number of cases challenging the erroneous assessment of atmospheric emissions in EIAs in recent years, none of these challenges have been successful, as courts have consistently deferred to the wide discretion of the public administration to assess the public and private interests at stake in EIA procedures (see e.g. ruling No. 7041 of 2021, the Lazio Regional Administrative Court). Likewise, in the UK, courts have upheld decisions approving major infrastructure projects that will generate greenhouse gas emissions on the basis of the government's discretion to determine how best to achieve emissions reduction targets (see e.g. Packham v Secretary of State for Transport [2020] EWHC 829 (admin)).
A prominent hurdle identified in China is a lack of legislation setting standards on climate change that could be the anchor for a judicial review claim. In China, the government can bring administrative public interest litigation against regulatory bodies for failure to take action. However, there are currently no such cases that are specifically based on failure to perform duties related to climate change, because such litigation is hampered by the lack of laws specifically regulating climate change (see e.g. Songzi People's Procuratorate of Hubei Province v Songzi Natural Resources and Planning Bureau [2019] Decision No.3, Songzi People's Court of Hubei Province).
A related hurdle identified in Japan is that rules on EIAs have been watered down by the government, particularly in light of the perceived need to build new power plants following the power crisis after the Great East Japan Earthquake in 2011.
3. Potential Legal Avenues in Future Litigation
Future litigation might focus more on adaptation, as well as mitigation. For example, in Australia, there have been recent cases concerning sea level rise, flood risks and bush fire risks, among others.
The failure of decision makers to assess the scope 3 emissions of fossil fuel projects may become a more prominent legal avenue (see e.g. the recent UK case R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council and others, seeking judicial review of a decision to approve oil wells that failed to consider as part of the EIA the scope 3 emissions that would be generated. The case was heard by the Supreme Court in 2023 and judgment is pending.
Another increasing trend is to challenge public funding for projects that are 'not aligned with climate action'.[3] The target of such litigation is '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'.[4] (see e.g. the UK case Friends of the Earth v UK Export Finance).
[1] Law Commission, 'Administrative Law: Judicial Review and Statutory Appeals' (LAW COM.No.226, 1994) 106.
[2] For example, in the USA, a decision may be challenged on the grounds that it is 1) arbitrary and capricious, 2) contrary to law, 3) in excess of statutory jurisdiction, 4) without observance of proper procedure, and/or 5) unsupported by substantial evidence (J Wesneski, M Perry and M Pinkert, 'Q&A: judicial review in USA' (Weil Gotshal & Manges LLP, 22 December 2023)
[4] Joana Setzer and Catherine Higham, 'Global Trends in Climate Change Litigation:2022 Snapshot' (Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy, London School of Economics and Political Science 2022) 19.
