1. Causes of Action

Australia

Many climate-related planning and permitting cases have been brought over the past several decades in Australia. The majority of these cases concern government decision making authorising projects, particularly coal mines and gas projects.

Gloucester Resources v Minister of Planning   [2018] NSWLEC 1200

The ruling in this case was the first in which an Australian court rejected a coal mine based in part on climate change impacts. In this case, the Land & Environment Court of New South Wales upheld the government's denial of planning permission. The case is particularly noteworthy for Chief Justice Preston's rejection of the market substitution argument, according to which if the mine were refused another would be approved in another part of the world.

'545. There is also a logical flaw in the market substitution assumption. If a development will cause an environmental impact that is found to be unacceptable, the environmental impact does not become acceptable because a hypothetical and uncertain alternative development might also cause the same unacceptable environmental impact. The environmental impact remains unacceptable regardless of where it is caused. The potential for a hypothetical but uncertain alternative development to cause the same unacceptable environmental impact is not a reason to approve a definite development that will certainly cause the unacceptable environmental impacts. In this case, the potential that if the Project were not to be approved and therefore not cause the unacceptable GHG emissions and climate change impacts, some other coal mine would do so, is not a reason for approving the Project and its unacceptable GHG emissions and climate change impacts: see Kane Bennett, "Australian climate change litigation: Assessing the impact of carbon emissions" (2016) 33 EPLJ 538 at 546-548; Justine Bell-James and Sean Ryan, "Climate change litigation in Queensland: A case study in incrementalism" (2016) 33 EPLJ 515 at 535.'

Kepco v Independent Planning Commission   [2020] NSWLEC 38

An application to build a large coal mine was rejected by the Independent Planning Commission on several grounds, including its contribution to climate change. The Commission's grounds of refusal included Kepco's failure to develop a plan to manage scope 3 greenhouse gas emissions and the fact that

'the distribution of costs and benefit over and beyond the life of the mine [was] temporally inequitable in that the economic benefits accrue to the current generation and the environmental, agricultural and heritage costs are borne by future generations.'

Kepco brought a number of appeals which were all rejected as the courts found the Commission's findings were lawful.

Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority  [2022] FCA 1121; [2022] FCAFC 193

Munupi Senior Lawman and Tiwi Traditional Owner Dennis Tipakalippa brought an action against the government regulator NOPSEMA and an oil and gas company, Santos Limited, over the approval of plans to drill the Barossa gas field in waters off Northern Australia. This was the first case brought by First Nations people challenging an offshore project. The claimant asserted that under the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth), he and other traditional owners of the Tiwi Islands should have been consulted by Santos as 'relevant persons' that would be affected by the project, before NOPSEMA could validly accept the environment plan and authorise the project to proceed; and that NOPSEMA should not have approved the project because Santos had not consulted with him and his community as 'relevant persons' under planning law.

The court concluded that based on the material before it NOPSEMA could not have been reasonably satisfied that the methodological exercise of identifying each and every relevant person conducted by Santos had been correctly undertaken:

'155 ... NOPSEMA was bound to perform the universe of relevant persons inquiry and ... I am of the view that there was insufficient information provided by the Drilling EP to have enabled NOPSEMA to perform that task.
156 To apply the reasoning and borrow the language of One Key at [113], "the [information necessary to demonstrate that each person within the universe of persons who met the description in reg 11A(1)(d) was identified as a relevant person in the Drilling EP was] a relevant consideration to which [NOPSEMA] was bound to have regard. The absence of that information meant that [NOPSEMA] was not in a position to form the requisite state of satisfaction. Put differently, without knowing [that information] it was not open to [NOPSEMA] to be satisfied [that the Drilling EP met the criteria set out in reg 10A]".
157 It follows from those conclusions that NOPSEMA did not have the requisite state of satisfaction that it was required to have. The necessary precondition to the exercise of its power of acceptance of the Drilling EP did not exist so that the acceptance it gave was not lawfully given.
158 My conclusion that NOPSEMA reached its state of satisfaction in the absence of the information necessary for it to lawfully have arrived at the state of satisfaction required by the Regulations is a conclusion made on the information contained in the Drilling EP.'

Canada

Non-profit organisations have been successful at utilising judicial review as a means of challenging government approval of projects.

Pembina Institute for Appropriate Development and Others v Attorney General of Canada and Imperial Oil  [2008] FC 302

In 2008, the Federal Court found in favour of Ecojustice and several other NGOs who argued that an EIA of Imperial Oil's Kearl Tar Sands Project was incorrect and that the project would cause more than insignificant environmental harm. 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 and remitted the matter back to the Panel to provide a rationale for its conclusion:

[79] While I agree that the Panel is not required to comment specifically on each and every detail of the Project, given the amount of greenhouse gases that will be emitted to the atmosphere and given the evidence presented that the intensity based targets will not address the problem of greenhouse gas emissions, it was incumbent upon the Panel to provide a justification for its recommendation on this particular issue. By its silence, the Panel short circuits the two step decision making process envisioned by the CEAA which calls for an informed decision by a responsible authority. For the decision to be informed it must be nourished by a robust understanding of Project effects. Accordingly, given the absence of an explanation or rationale, I am of the view that the Panel erred in law by failing to provide reasoned basis for its conclusion as mandated by s. 34(c)(i) of the CEAA.
[80] As this error relates solely to one of the many issues that the Panel was mandated to consider, I find that it would be inappropriate and ineffective to require the entire Panel review to be conducted a second time (Nanda v. Canada (Public Service Commission Appeal Board), [1972] F.C. 277, at para. 55). Accordingly, the application for judicial review is allowed in part. The matter is remitted back to the same Panel with the direction to provide a rationale for its conclusion that the proposed mitigation measures will reduce the potentially adverse effects of the Project's greenhouse gas emissions to a level of insignificance.'

Sierra Club of British Columbia Foundation v British Columbia (Minister of Environment and Climate Change Strategy)  (2023) BCSC 74

The claimant argued that the 2021 Climate Change Accountability Report did not meet the reporting requirements under the Climate Change Accountability Act. The Act requires the government of British Columbia to publish annual reports on its plan to reach climate targets set out in the Act. The 2021 Report did not contain plans for progressing towards 2025, 2040 and 2050 greenhouse gas emissions reduction targets in the Act or towards the greenhouse gas emissions reduction target set for the oil and gas sector. The British Columbia Supreme Court ruled that the reporting obligations in the Climate Change Accountability Act were justiciable, and thus, the Court was competent to review the Minister's compliance with the reporting requirements.

China

In China, administrative public interest litigation can be brought with respect to the failure of government bodies to perform duties to regulate. However, such litigation based on climate change impacts is hampered by the lack of laws specifically regulating climate change. That said, relevant cases have been brought in relation to air pollution that exceeds emissions standards.

Shaanxi Changqing Energy Chemical LLC litigation. Case set out in the Supreme People's Procuratorate of the People's Republic of China. '13th Guiding Cases of the Supreme People's Procuratorate of the People's Republic of China' 第十三批指导性案例_中华人民共和国最高人民检察院  (spp.gov.cn) (Dec 25 2018)

The air pollutant emissions of the coal-fired boiler of Shaanxi Changqing Energy Chemical LLC exceeded the local air pollutant control standards. Although the Fengxiang Branch of the Baoji Environmental Protection Bureau, Shaanxi Province, ordered some measures to be taken, the emissions levels remained above the legal limit. The Fengxiang County People's Procuratorate filed a public interest lawsuit against the Fengxiang Sub-Bureau, requesting the court to confirm that the administrative omission of the Fengxiang Sub-Bureau was illegal and that the Fengxiang Sub-Bureau should fully perform its duties to urge Changqing Energy Chemical to take effective measures to ensure that the emissions met the standards. The court made this declaration.

India

AP Pollution Control Board v Prof MV Nayudu (Retd.)  [1999] 1 SCR 235

In AP Pollution Control Board v Prof M.V Nayudu (Retd.), the respondent industry decided to set up a vegetable oil factory in the village of Peddashpur in Andhra Pradesh. The proposed land for the establishment of this unit was within a radius of 10 kms from two major reservoirs which were the main source of drinking water for nearly five million people. Furthermore, this industry was on the list of hazardous industries promulgated by the Ministry of Forest and Environment. The State Pollution Control Board of Andhra Pradesh did not grant permission for this plant. Therefore, the respondent approached the State Government, which granted an exemption. This exemption was challenged by the Society of Preservation of Environment and Quality Life (SPEQL), which obtained a stay order from the court and the No Objection Certificate granted to the industry was quashed. The respondent appealed to the Appellate Authority and from there to High Court of Andhra Pradesh and finally to the Supreme Court.

The Supreme Court upheld the decision of the High Court and held that allowing such an exemption would be arbitrary and violate Article 21 of the Indian Constitution (the right to life) and the precautionary principle of environmental protection. Permission for the project could not be granted as despite assurances from the corporation that safety norms would be observed, the risks of setting up such an industry to the environment and the safety and protection of the water reservoir outweighed the interest of industrial development.

Italy

Italian case law on climate EIAs is still underdeveloped. There has in recent years been an increase in the number of cases challenging the erroneous assessment of atmospheric emissions in EIAs. However, 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 Section on Hurdles .

Poland

Czech Republic v Poland (Mine de Turów) 

Several environmental organisations and one German municipality challenged two environmental decisions issued by the Climate Ministry of Poland to extend a licence for lignite mining, first until 2026 and then until 2044. The claimants argued that the mine's operations harmfully impact the climate, the environment, and national water resources.[10] In July 2023, the Polish Supreme Administrative Court overturned the decision of a lower court and granted an interim measure suspending the enforceability of the environmental approval. On 31 August 2023, the lower court, which must still decide whether the environmental decision was issued in accordance with the law, suspended the proceedings in the case.

Tczew Power Plant litigation

In 2015, environmental organisations, local residents, and landowners challenged a decision issued by local authorities in Tczew granting a construction permit for the construction of the biggest power plant in Poland. The claimants contended that local authorities had disregarded the development's harmful impact on the environment and had not followed public consultation procedures. After a long legal battle, in 2019 the Supreme Administrative Court issued a final decision in this case effectively blocking the project.

[10] J Wojajczyk, "Ekolodzy zaskarżą przedłużenie koncesji dla kopalni Turów ", Interia, 28 February 2023, last accessed on 19 March 2023.

United Kingdom

R (on the application of ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy and Drax Power Limited [2021] EWCA Civ 43 

This case was a judicial review challenge brought against a decision to authorise construction and operation of two gas-fired generating units at the Drax Power Station. In this case, the Overarching National Policy Statement for Energy (EN-1) identified a need for this type of infrastructure and that there should be a presumption in favour of granting consent. The Court of Appeal found that the current legal position regarding judicial review challenges against planning decisions is that climate change is a relevant and material consideration and that the greenhouse gas emissions of a project can be a reason to refuse permission, but they are not 'an automatic and insuperable obstacle' to granting permission. In this case, the Court ultimately deferred to the discretion of the decision maker:

'87. The force of the policy, therefore, is not that CO2 emissions are irrelevant to a development consent decision, or cannot be given due weight in such a decision. It is simply that CO2 emissions are not, of themselves, an automatic and insuperable obstacle to consent being given for any of the infrastructure for which EN-1 identifies a need and establishes a presumption in favour of approval. If they were, the policy need and the policy presumption would effectively be negated for certain forms of infrastructure supported by EN-1, and those essential provisions contradicted. Paragraph 5.2.2 does not diminish the need for relevant energy infrastructure established in national policy or undo the positive presumption. But nor does it prevent greenhouse gas emissions from being taken into account as a consideration attracting weight in a particular case. How much weight is for the decision-maker to resolve. It follows that, in a particular case, such weight could be significant, or even decisive, whether with or without another "adverse impact".'

United States

re Hawai'i Electric Light Co  (2023) Supreme Court of the State of Hawai'i

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 healthy environment under Article XI, Section 9 of the Hawaiʻi Constitution:

'I agree with the Majority that the PUC's consideration and denial of the amended Power Purchase Agreement ("PPA") met its duty under Article XI, section 9 to protect the right of Hawai'i's people to a clean and healthy environment, which subsumes the right to a life-sustaining climate system. I write separately to emphasize that the right to a life-sustaining climate system is also included in the due process right to "life, liberty, [and] property" enumerated in Article I, section 5 and the public trust doctrine embodied in Article XI, section 1's mandate that the State of Hawaiʻi "conserve and protect Hawaiʻi's...natural resources" "[f]or the benefit of present and future generations[.]"' (Concurring opinion of Justice Wilson, page 3).