1. Causes of Action

I  Australia

In Australia, there has been a new and innovative method of utilising the existing legal framework to bring a multiple climate-related claims to the Federal Environment Minister. The Environmental Protection and Biodiversity Conservation (EPBC) Act was used to hold large-scale industrial projects accountable for their environmental and climate impacts. For instance, the 'living wonders' intervention by Environmental Justice Australia on behalf of the Environment Council of Central Queensland (ECoCeQ). This intervention is deemed innovative as it collectively submitted 19 requests to the Australian Federal Environment Minister to reconsider nearly all pending coal and gas projects, instead of challenging each coal and gas proposal individually. This resulted in the Minister reassessing 18 out of 19 major proposals, leading to the rejection of the Central Queensland Coal Project and the withdrawal of four others. This marked the first time a major new coal mine was refused under the EPBC.

In 2023, the Environment Minister made decisions on three of the projects, choosing not to revoke the initial assessments despite the presented evidence of climate impacts. In response, ECoCeQ initiated judicial review proceedings in the Federal Court against two of these decisions. These legal actions represent a significant step by highlighting the use of judicial processes to address climate change concerns. The approach of collectively challenging multiple coal and gas projects under a single legal framework, rather than individual lawsuits, mark a strategic shift in litigation, potentially setting a precedent for future climate-related cases.[1]

[1] See pages 24-26 of the Australia National Report.

II  Brazil

(Forthcoming)

III  Canada

In Canada, provincial legislatures relating to Indigenous rights can serve as additional causes of action. Canada has also adopted the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). In Haida Nation v British Columbia (Minister of Forests), the Supreme Court affirmed that the duty to consult is a constitutional duty. This duty belongs to the Crown, however, it may be delegated to industry. Private law claims and judicial reviews can be sought against the Crown in case it has failed to discharge its duty to consult. Injunctions against the Crown can then prevent corporations from continuing projects on Aboriginal land.

In Tsleil-Waututh v Canada (Attorney General), the Federal Court of Appeal withdrew the approval of a pipeline on the basis of the government's failure to adequately consult Indigenous communities adjacent to it. This case affirms that it is not enough for the Canadian government to have engaged in good faith consultation or to take note of the concerns of Indigenous nations at every step of the process, but rather that the Crown must respond with detailed specific responses to address the concerns raised by Indigenous nations. Moreover, the duty to meaningfully consult does not end until a final decision is made. Last, Metlakatla First Nation are currently seeking to quash British Columbia's approval of storage facility and gas turbines on the basis that their concerns about GHG emissions were not meaningfully addressed. The Metlakatla chief filed an application for judicial review, which is pending.

Turning to crown corporations which are owned or controlled, in whole or in part, by the government, it has been argued that these corporations owe greater obligations than private corporations.[2] The Clean Train Coalition Inc v Metrolinx case shows how Metrolinx, a governmental transportation authority, had a leadership role in the planning, development, and implementation of the regional transportation plans and policies, even though the court dismissed the case on administrative law principles. Although the case was not directly filed against Metrolinx, but was an application for judicial review, the case demonstrates that Crown corporations must carefully examine environmental assessments and feasibility studies and adhere to plans and policies that mitigate climate impacts. Recently, a case was filed against SaskPower, Crown Investments, and the Saskatchewan Government, alleging inadequate efforts of Crown corporations and the government to address climate change. This case will address doctrinal issues around climate responsibilities owed by Crown corporations in Canada.

[2] Steve Lorteau, 'The potential of international 'State‐as‐polluter' litigation' (2023) RECIEL.

IV  China

In China, the approach to corporate climate litigation is shaped by the application of criminal laws and the interpretations and guidelines issued by the Supreme People's Court. The 11th amendment of the Criminal Law criminalises greenhouse gas (GHG) emission data fraud. This represents a novel legal avenue for addressing climate change. However, as of 2023, no criminal cases based on carbon emission data fraud have been reported. Additionally, criminal incidental civil public interest litigations are increasingly being used to protect the eco-function of carbon sinks, particularly in the forestry sector.

Additionally, the Supreme People's Court's "Interpretation on Several Issues concerning the Application of Law in Environmental Civil Public Interest Litigations" provides clear guidance for these types of cases, emphasising the court's role in accepting lawsuits against environmental pollution and ecological damage. The Court's guidelines categorise environmental resource cases into five types, including a specific category for climate change response cases, which further delineates between mitigation and adaptation litigations. This classification system underscores the importance of judicial responses to climate change. Moreover, the Supreme People's Court encourages judicial activism in handling climate change-related cases, as seen in their White Papers from 2019 and 2020, which advocate for using various judicial judgment methods to mitigate and adapt to climate change, thus promoting the construction of a national climate change response governance system. This proactive stance by the judiciary highlights the evolving role of legal processes in addressing climate-related issues in China.[3]

[3] See pg. 24 of the China National Report

V  France

VI  Germany

VII  India

In India, an additional cause of action revolves around the compensation for the death of relatives stemming from pollution.

In the Debasish Banerjee v West Bengal Pollution Control Board & Ors case, the applicant sought compensation for the deceased daughter, which has died due to suffocation resulting from leakage of gas from the gas line belonging to the Greater Calcutta Gas Supply Corporation Limited. The court found that the corporation had failed to maintain the pipeline. The applicant was awarded compensation of INR 6.4 million (approx. £60,800).[4]

[4] See pg. 42 of the China National Report

VIII  Italy

In Italy a unique role is played by the OECD NCP. The main role of this is to provide a non-judicial grievance mechanism aimed at facilitating the resolution of issues arising between stakeholders and companies.

The role is evidence in the proceedings: Legalità per il clima on behalf of 45 individuals and Italian CSOs v Cremonini S.p.A, Legalità per il clima on behalf of 38 others v Gruppo Veronesi, and Legalità per il clima on behalf of 10 CSOs v ENI S.p.A  (refer to section on Human Rights for additional detail).[5]

[5] See pgs. 51-54 of the Italy National Report.

IX  Japan

X  Kenya

In Kenya, an additional cause of action arises from challenge to invalid environmental impact assessments (EIA). The Environmental Management and Coordination Act (EMCA) requires an EIA when a company seeks to initiate sensitive projects out of character with the environment. The National Environment Management Authority (NEMA) may issue an EIA licence when satisfied as to the adequacy of an EIA study.

However, where an EIA fails to take into consideration climate vulnerability assessments, a project with potential climate change impacts may be challenged inter alia for failing to conform to stipulated EIA procedures. Moreover, if a project proceeds based on an invalid or inadequate EIA report, liability for the project's proponent might be triggered, as could be seen in the Ken Kasing'a v Daniel Kiplagat Kirui & 5 others case.[6]

[6] See pg. 17 of the Kenya National Report.

XI  Netherlands

XII  Nigeria

XIII  Norway

In Norway, the mining industry is a fundamental sector for the Norwegian economy. The Acquisition and Extraction of Mineral Resources Act (the Minerals Act) is the main legislation, covering the extraction of minerals. It contains articles that relate to the safeguarding of the Sami culture. In addition to that Article 2 sets as goals the safeguard of both the Sami culture, their commercial activities and socials life together with the environmental consequences of extraction. The Sami rights and interests must be taken a special consideration as stated explicitly in Article 6 of the Act which asks for the application of the rules of international law relating to indigenous people and minorities.

In addition, a specific act regulates petroleum activities. The Petroleum Act regulates petroleum extraction activities. Chapter 7 of the Petroleum Act makes the licensee strictly liable in case of damage or loss due to pollution caused by the discharge, whether accidental or intentional, of petroleum. Chapter 8 of the lays out rules in case of damage suffered from the fishermen due to pollution and waste from petroleum activities. In the case against the Norwegian government, Greenpeace Nordic Ass'n v Ministry of Petroleum and Energy, the Supreme Court made clear that the EIA in connection with an exploration license should assess the climate effects of future emissions, both from the production and from burning of the exploited petroleum. Further provisions on the EIA can be found in the Regulations to Act relating to petroleum activities.

Last, the Pollution Control Act regulations pollution from stationary sources as well as waste management. The Act's overall purpose is to 'protect the outdoor environment against pollution and to reduce existing pollution, to reduce the quantity of waste and to promote better waste management. The Act shall ensure that the quality of the environment is satisfactory, so that pollution and waste do not harm human health or adversely affect welfare, or damage the productivity of the natural environment and tis reproductive capacity' (Article 1).[7]

[7] See pgs. 12-13 of the Norwegian National Report.

XIV  Philippines

In the Philippines, other potential causes of action can be derived from the Indigenous Peoples' Rights Act of 1997  (IPRA) or from other statutes relating to the environment and natural resources.

In the context of the IPRA, the Act emphasises the nexus between climate change and the hardships of vulnerable groups such as Indigenous people. It further recognises the protective role that Indigenous peoples have over their ancestral lands through their way of life. For this reason, the IPRA regulates and penalises actions related to the unauthorised or unlawful intrusion upon ancestral lands or domains. The IPRA also enshrines the requirement to obtain free and prior informed consent before entering these lands. In case of a violation, a corporation is penalised under the corporate agent liability rule and, as an entity, it might face the cancellation of the certificate of registration or of licences.

In the context of other statutes relating to the environment and natural resources, the Rainwater Collector and Springs Development Law of 1989  requires each Filipino locality to have, and maintain, a rainwater collector to ensure fresh drinking water is available even in times of flooding. This law, together with the duties of local government units in water management enshrined in the Local Government Code of 1991, formed the basis in the Global Legal Action on Climate Change v the Philippine Government (GLACC) case. In this case, the claimants filed a petition for writ of mandamus from the Supreme Court to order various government departments to act on the provisions of two statutes pertaining to flood control. The case was settled when the defendant government department submitted a work plan committing to carry out the required works and signed a Memorandum of Understanding codifying the agreement reached between the parties.[8]

[8] See pgs. 51-52 of the Philippines National Report.

XV  Poland

XVI  United Kingdom

XVII  United States

In the United States, corporate climate litigation has employed various causes of action, including violations of anti-idling laws and the Racketeer Influenced and Corrupt Organizations Act (RICO), to address environmental and climate-related issues.

Anti-idling laws was used in the case of People v. Jofaz Transportation, Inc. The New York State Office of the Attorney General (OAG) brought an enforcement action against school bus contractors in New York City for violating state and city idling vehicle restrictions. The complaint emphasized the dual harm caused by bus emissions: detriment to public health and contribution to climate change.

In the class-action suit of Municipalities of Puerto Rico v. Exxon Mobil Corp. sixteen Puerto Rico municipalities sued oil and coal companies, seeking accountability for losses incurred due to intense storms during the 2017 hurricane season and ongoing economic damages. The municipalities argued that these companies were significantly responsible for global industrial greenhouse gas emissions, which exacerbated climate change and intensified the impacts of storms in Puerto Rico. They accused the defendants of concealing information about how their products accelerated climate change. This case was drawn from the strategy used in tobacco litigation, such as in United States v. Philip Morris USA, Inc.(2006), wherein, it was alleged that, the defendants had concealed evidence and destroyed documents to hide the dangers of smoking and protect themselves in litigation.