2. Procedures and Evidence

1. OVERVIEW

This section provides a comprehensive analysis of standing (or locus standi, from the Latin: "a place to stand"), as the right to bring an action or challenge some decision, in climate and environmental litigation across 17 focus countries,

Established Legal Avenues:

Countries like Australia, Canada, Brazil, the Philippines, Kenya, and India demonstrate a liberal interpretation, allowing various entities, including NGOs and individuals, to file environmental lawsuits. In contrast, France, Germany, the Netherlands, and the UK adopt specific criteria for standing, requiring claimants to show a legitimate interest or potential injury to their rights. Norway and Nigeria are moving towards a more liberal approach, while Italy and Poland have restrictive frameworks that adapt to accommodate environmental concerns.

Challenges and Hurdles:

Challenges in understanding the application of standing vary significantly among countries. In countries like Italy, China, and Poland, restrictive frameworks pose difficulties, especially for NGOs. Like Germany, establishing a direct causal link is a significant challenge in other countries like Japan, China, and the United States. Countries with a liberal approach, such as Australia, Brazil, and the Philippines, sometimes face challenges defining the boundaries of who can litigate.

Future Pathways:

The evolution of courts in showing flexibility to parties on locus standi suggests that there will be more inclusive and creative uses of legal standing in environmental litigation. In countries with liberal standing approaches, such as Australia, Brazil, the Philippines, and Canada, there's potential for an increased diversity of actors, including non-human entities. In addition, countries with specific criteria for standing, like France and Germany, may see strategic legal approaches focusing on demonstrating legitimate interest or establishing direct causal links.

Civil conspiracy is recognised as a cause of action in the common law case study countries, although the viability of civil conspiracy as a ground for corporate climate litigation varies with only the US and Canada envisaging potentially successful claims. Japan, Netherlands, Poland and the Philippines do not have civil conspiracy as an express cause of action but have other provisions that could be used to bring broadly analogous claims.

This comparative legal research explores established legal avenues for utilising civil conspiracy as a cause of action in the case study countries, as well as the hurdles and challenges that might be encountered by litigants attempting to utilise this cause of action in corporate climate litigation. It also highlights potential legal avenues in future litigation.

2 GRAPHIC SUMMARY

3. RELEVANT DEFINITIONS AND ESSENTIAL ELEMENTS

The Cambridge Dictionary defines locus standi as 'the right or ability to bring legal action to a court of law, or to appear in a court'. Similarly, as per Oxford References defines 'standing to sue' as 'the right to bring legal action against another party (...) A party who is injured by another party has standing'. In the context of climate and environmental litigation across the 17 focus countries, 'locus standi' and 'standing' have been used interchangeably. Thus, the essential elements and standing requirements vary, reflecting different legal traditions and approaches.

Brazil, the Philippines, Kenya, and India have demonstrated a liberal standing interpretation. Brazil, Kenya, and the Philippines have constitutional and legal frameworks that enable a broad spectrum of entities, including NGOs and individuals, to file environmental lawsuits. This is showcased in Brazil's Public Civil Actions Law and the Philippines' Rules of Procedure for Environmental Cases. Notably, Kenya's constitution (2010) allows individuals to initiate legal actions on environmental concerns without needing to demonstrate personal loss or injury, enabling broad public participation in environmental cases. India's broad approach is visible through Public Interest Litigations (PILs), where even letters to the judiciary can initiate legal actions. Australia and Canada also have a liberal approach to standing, allowing various parties such as NGOs, community groups, and shareholders to engage in environmental litigation.

In France, Germany, the Netherlands, and the UK, a party's standing depends on specific criteria. For instance, in France, plaintiffs must show a legitimate interest. Germany requires a potential injury to rights, with the challenge of establishing direct causation. The Netherlands and the UK have a more nuanced approach, considering sufficient interest or representativeness for collective actions. Norway and Nigeria show an evolving approach to standing, particularly in public interest litigation related to environmental and climate issues. In Norway, organisations can act on matters that fit their objectives. Italy and Poland have restrictive frameworks for standing, yet they adapt to accommodate environmental concerns. Japan requires recognition of personal rights and legal interests for standing, which can be a hurdle. China's approach is mixed, with NGOs and the People's Procuratorate having less restrictive standing in public interest litigation. This diversity in approaches underlines the complexity of environmental litigation globally and highlights the need for tailored legal strategies to address environmental challenges effectively.

4. SOURCES OF LAW

Domestic

Constitutional provisions

Brazil:

Popular Actions (Constitution, Article 5 LXXIII)

India:
Article 32 COI
Article 226 COI

Legislative provisions

Australia:
sections 475 and 487 of the EPBC Act

Brazil:
Public Civil Actions Law (Law 7347/1985

Consumer Protection Code (Law 8078/1990)

China:
Civil Code Chapter 7 of Part VII, Article 1229
Article 1 of the Interpretation

France:
Article L. 142-2 of the Environment Code

Germany:
Section 1004 (1) of the German Civil Code (BGB)
Section. 823 BGB

Italy:
article 311 of the "Code of the Environment
Article 840 of the Italian Civil Code

The Netherlands:
Article 3:303 of the Civil Code of Dutch Civil Code

Norway:
Section 1-3 of the Disputes Act.

The Philippines:
Rules of Procedure for Environmental Cases (RPEC) under Sections 2, 4, and 5

5. CURRENT APPLICATIONS

Locus standi or Standing in climate and environmental litigation across the 17 focus countries reveals diverse legal landscapes and approaches, with various levels of flexibility and specific requirements that influence the ability of parties to bring forth legal actions.

Countries like Brazil, Canada, the Philippines, and Australia exhibit a liberal approach to standing in environmental litigation. Brazil and the Philippines have constitutional and legal frameworks that allow a wide range of entities, including NGOs and citizens, to file lawsuits for environmental protection. This is exemplified by Brazil's Public Civil Actions Law and the Philippines' Rules of Procedure for Environmental Cases. A notable case in the Philippines is the Resident Marine Mammals case, where standing was given to mammals represented by a group that aimed to represent the interests of marine mammals. Similarly, Canada and India have broadened the scope of standing, particularly through public interest litigation (PILs), as seen in cases like Ecology Action Centre v. Nova Scotia in Canada. Australia allows various actors, including NGOs and shareholders, to gain standing in environmental cases. These countries recognise the collective nature of environmental rights and the need for diverse actors to access justice.

In Kenya and India, constitutional provisions play a significant role. Kenya's Constitution allows any individual to initiate legal actions on environmental concerns, as illustrated in the COI & Another Vs. Chief Magistrate Ukunda Law Courts & 4 Others case. Similarly, India's constitutional provisions have allowed PILs to evolve and have safeguarded the fundamental 'right to a healthy environment' in many cases. For instance, in the case of R. L. & E. Kendra v. State of Uttar Pradesh, a simple letter written to the Chief Justice of India to prevent and stop illegal mining activities and their consequent pollution was treated as PIL.

In the UK, France, Germany, and the Netherlands, standing is flexible but based on specific criteria. France allows various entities, particularly associations, to bring legal actions with a legitimate interest requirement. In Germany, plaintiffs must demonstrate a potential injury to their rights, as shown in the case of Saúl Luciano Lliuya vs. RWE AG. The Netherlands provides favourable conditions for claimants in public interest litigation, including environmental causes, but with requirements like sufficient interest or representativeness for collective actions, as highlighted in the Milieudefensie v. Royal Dutch Shell case. The UK has specific standing requirements that vary based on the nature of the legal action, from nuisance claims to corporate litigation.

Norway and Nigeria demonstrate an evolving understanding of Standing. Norway and Nigeria have moved towards a more liberal approach, especially in public interest cases related to environmental and climate issues. In Norway, organisations can bring actions related to their objectives, as seen in the Greenpeace Nordic Ass'n v. Ministry of Petroleum and Energy case. Nigeria's shift is evident in the Centre for Oil Pollution Watch v. Nigerian National Petroleum Corporation case.

Italy and Poland have more restrictive frameworks for standing, yet they adapt to accommodate environmental concerns. In Italy, article 311 of the "Code of the Environment" designates the Minister for the Environment as the primary actor in seeking environmental damage compensation, but cases like Greenpeace Re:Common et al. vs ENI show an expanded scope. Poland's approach is determined by the substantive law related to the specific dispute, with NGOs having limitations on legal standing.

6. HURDLES AND CHALLENGES

The challenges in understanding and applying locus standi in climate and environmental litigation across the 17 focus countries reveal a range of hurdles, from stringent legal requirements to broader issues related to the interpretation of environmental rights.

Italy and Poland have more restrictive frameworks for standing, adapting to accommodate environmental concerns. Italy faces challenges surrounding the complexities of environmental rights, while Poland's specific limitations for NGOs represent hurdles in representing natural persons in environmental claims. In France, Germany, the Netherlands, and the UK, the specific criteria for standing have posed various challenges. As such, in France, clearly defining the legitimate interest is a hurdle. In Germany, establishing a direct causal link has proven difficult, and satisfying representativeness for collective actions as required by the Netherlands is difficult. The UK's varied requirements based on the nature of legal action present challenges in understanding the applicable standing criteria in different contexts. The challenge in Nigeria lies in balancing the evolving understanding of standing with traditional notions of personal direct interest.

In countries like China, the US, and Japan, establishing causation for environmental harm is a key challenge in standing. China's lack of comprehensive climate change legislation at the national level limits the scope of private interest litigation. Similarly, restrictive legislative provisions make it difficult for NGOs to get standing in public interest cases. The US requires concrete injury, traceability, and redressability, which was a significant hurdle in the first wave of climate litigation. In Japan, the recognition of personal rights and legal interests is crucial, as seen in the Kobe Powerplant case, where the court found no legal interests adversely affected by global warming due to CO2 emissions.

Countries like Australia, Brazil, Canada, and the Philippines exhibit a more liberal approach to standing, however, this liberal approach has witnessed challenges in defining the boundaries of who can bring forth litigation. This can be seen in the Philippines' Resident Marine Mammals case. In India, constitutional provisions greatly facilitate standing in environmental cases. However, this broad approach through PILs can sometimes create challenges distinguishing between genuine public interest cases and frivolous litigation.

7. POTENTIAL FUTURE APPLICATIONS

The future application of locus standi in climate and environmental litigation in the 17 focus countries shows a trend towards more inclusive and creative standing uses. This evolution will likely result in broader participation of actors in environmental litigation. Countries like Australia, Brazil, Canada, and the Philippines, with their liberal approaches to standing, provide a fertile ground for a diverse range of actors, including NGOs and community groups, to initiate environmental litigation. The case of Environment Victoria Inc v AGL Loy Yang Pty Ltd in Australia and the Public Civil Actions Law in Brazil are indicative of this trend. Future litigation in these countries may see an expansion in the types of entities, including non-human entities, bringing forward cases, as suggested by the Resident Marine Mammals case in the Philippines. The constitutional provisions in Kenya and India support a broad interpretation of locus standi. These countries could see an increase in litigation filed by individuals and NGOs, even those not directly affected. For instance, The National Green Tribunal in India has the potential to entertain a wider array of environmental disputes, as seen in the case of Ridhima Pandey v. Union of India. In China, public interest litigation may see increased participation from NGOs and the People's Procuratorate, as seen in the Friends of Nature Institute v. Gansu State Grid case. In the US, representational standing and litigation focused on near-term climate impacts, like the Conservation Law Foundation v Shell Oil case, may become more prevalent.

In France, Germany, the Netherlands, and the UK, the specific criteria for standing may lead to strategic legal approaches focusing on demonstrating legitimate interest (France) or establishing direct causal links (Germany) via innovative use of climate science. The Milieudefensie v. Royal Dutch Shell case in the Netherlands illustrates the potential for successful public interest litigation. In the UK, derivative claims and unfair prejudice petitions could become more common in holding companies accountable for environmental harm. In Italy, if the expansion of standing in environmental cases, as illustrated by Greenpeace Re:Common et al. vs ENI continues, they might see more citizen-initiated litigations and class actions. Norway and Nigeria's evolving approaches suggest a trend toward more liberal interpretations of standing in environmental matters, as seen in the Greenpeace Nordic Ass'n v. Ministry of Petroleum and Energy case in Norway and the Centre for Oil Pollution Watch v. Nigerian National Petroleum Corporation case in Nigeria. This shift could facilitate increased litigation against both public and private entities.

8. COUNTRY SUMMARIES

Australia

In Australia, standing issues have not been significant barriers in corporate climate litigation. The standing rules are specific to the courts and jurisdictions where claims are brought, without special rules applying specifically to corporate climate cases. Different parties, including NGOs, community groups, and shareholders, have successfully gained standing in various environmental and climate-related cases. For instance, the case of Environment Victoria Inc v AGL Loy Yang Pty Ltd  saw Environment Victoria (a not-for-profit organisation) applying to the Supreme Court of Victoria (pursuant to order 56 of the Supreme Court (General Civil Procedure) Rules 2015) for declarations related to licensing decisions made by the Victorian Government. There was no challenge to their standing to bring the proceeding. Similarly, in Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority , Mr. Tipakalippa's application for judicial review of a decision to accept an environmental plan for petroleum drilling was not challenged in terms of his standing, being a traditional owner of the Sea Country in which drilling was proposed.

In addition to the above, the EPBC Act (sections 475 and 487) allows interested parties to bring claims. Additionally, under the Corporations Act, shareholders can have standing to intervene in proceedings involving the company. Shareholders have also been permitted to bring proceedings on behalf of a company or intervene in proceedings to which the company is a party. This provision enables them to enforce the company's rights against directors for breaches of duties. This can be seen in the case of Abrahams v. Commonwealth Bank of Australia  (see section on actors involved for further details on shareholder action).

Brazil

In Brazil, standing in climate and environmental litigation is not a major barrier. The country's legal system, through its various laws, guarantees environmental rights and recognises a broad range of entities entitled to file lawsuits (see the section on standing for more details). This approach is consistent with the constitutional recognition of the right to an ecologically balanced environment. There's also a growing interest in extending legal standing to non-human entities, evidenced by an innovative yet unsuccessful attempt to grant legal personality to the Rio Doce Basin .

The key legislations are:

i. Public Civil Actions Law (Law 7347/1985):
This law created legal avenues to remedy property damage to the environment, consumers, and other diffuse or collective interests. Legal standing to file both main and precautionary lawsuits is granted to various entities, including the Public Prosecutor's Office, the Public Defender's Office, the Union, states, federal district, municipalities, autarchies, state-owned enterprises, foundations, and associations with environmental protection among their institutional purposes.

ii. Popular Actions (Constitution, Article 5 LXXIII):
Any citizen can bring a popular action against acts harmful to public patrimony, administrative morality, the environment, or historical and cultural heritage, exempt from legal costs unless proven in bad faith. Popular actions aim to annul such harmful acts.

iii. Consumer Protection Code (Law 8078/1990):
This permits the Public Prosecutor's Office, the Union, states, municipalities, federal districts, public administration entities, and associations with a focus on consumer protection to file lawsuits.

Canada

Standing is not a significant barrier in Canadian climate litigation. Courts have been receptive to a wide range of plaintiffs, including NGOs, individuals, and Indigenous groups. The public interest nature of environmental and climate issues often facilitates access to justice. One important example is the case of Ecology Action Centre v. Nova Scotia (Department of Environment and Climate Change)  where two environmental NGOs, the Ecology Action Centre, and the New Brunswick Anti-Shale Gas Alliance. These organisations challenged the approval of a highway realignment project linked to the Goldboro LNG Project. The Supreme Court of Nova Scotia applied a three-part test for public interest standing. This test assesses:

i. Whether there is a serious justiciable issue raised;
ii. Whether the plaintiff has a real stake or genuine interest in the matter;
iii. Whether, in all circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts.

The court determined that the plaintiffs succeeded on the last two criteria but held that there was no serious issue to be tried, denying standing. However, in the Court of Appeal overturned this decision, allowing for public interest standing regarding the Minister's decision. The Court found that the lower court made an error in principle by concluding there was no serious issue. A serious issue is considered when the question raised is a "substantial constitutional issue" or an "important one". The claim should also be "far from frivolous" and not so unlikely to succeed that the outcome seems predetermined or a "foregone conclusion." The emissions from the LNG project were considered a serious issue, granting the public interest plaintiffs the standing to challenge the highway realignment.

Similarly, the Federal Court of Appeal in the case of Friends of the Earth v Canada (Governor in Council) noted that for public interest cases, particularly environmental issues, there is a relaxed approach to standing. The court recognised the importance of the issues and the need for these cases to be heard.

China

In China, the standing in climate and environmental litigation is shaped by a mix of legal, institutional, and policy factors. The inclusion of NGOs and the People's Procuratorate as eligible litigants in public interest litigation signifies an expanding scope for addressing environmental and climate issues through the legal system. However, the lack of comprehensive climate change legislation at the national level poses challenges for litigants, thus limiting the scope of private interest litigation​​. Standing is discussed through two main aspects, i. Private Interest Litigation and ii. Public Interest Litigation.

i. Private Interest Litigation:
a) Companies are major participants in climate change-related litigations, usually involving contract disputes related to climate change. In the case of Beijing Mingsheng Sunshine Technology Co., Ltd v. Yoshimunai Haiwei Oil Wind Power Co., Ltd, the dispute is focused on the performance and cancellation of CCER contract.
b) Individuals can rarely file climate change lawsuits, as "environmental rights" are not explicitly recognised in Chinese law. The Civil Code Standing of litigants in private interest litigation such as tort is governed by the Civil Code (Chapter 7 of Part VII, Article 1229 and Article 1 of the Interpretation). However, the emission of CO2 does not constitute "environmental pollution", ecological damage brought by climate change is also hard to confirm the causal relationship. All these obstacles mean that environmental torts are rarely applied in climate change, which governs environmental torts, but CO2 emissions are not categorised as "environmental pollution," making it challenging to establish a causal relationship for climate change damages​​.

ii. Public Interest Litigation:
a) NGOs can initiate public interest litigation under specific conditions under Article 58 of the Civil Procedure Law and Environmental Protection Law. However, the NGO needs to be registered with civil affairs departments at or above the municipal level and specialise in environmental protection activities for more than five consecutive years without any illegal records. Their scope must relate to their main business activities, maintaining social and public interests in the environmental sector. For instance, in the case of Friends of Nature Institute v. Gansu State Grid  the NGO sued for the company's failure to fully purchase grid electricity from renewable sources. This case is recognised as the first climate change litigation in China initiated by an NGO.
b) The role of the People's Procuratorate in public interest litigation has evolved and expanded, particularly after amendments to the Administrative Procedure Law and Civil Procedure Law in 2017. Procuratorates are authorised to initiate public interest litigation when social or State interests are infringed due to unlawful acts or omissions by administrative organs. They have filed various types of public interest litigations, including administrative litigations against government entities, civil litigations against companies, and criminal incidental civil public interest litigations against individuals. The Supreme People's Procuratorate issued 10 typical cases promoting carbon neutrality, covering a range of issues from reducing non-CO2 GHG emissions to illegal logging. These cases demonstrate the diverse ways in which procuratorates are engaging in climate-related public interest litigation. Procuratorates have more funding and technical support compared to NGOs, leading to a growing dominance in public interest litigation, especially in cases involving government defendants.

France

In France, standing in climate and environmental litigation is relatively flexible, allowing various entities, particularly environmental associations, to bring legal actions. Under French law, plaintiffs must demonstrate a legitimate interest in bringing an action. Associations and Other Local Authorities are allowed to defend environmental interests. Article L. 142-2 of the Environment Code provides that environmental associations can exercise rights accorded to civil parties regarding acts that are prejudicial to the collective interests they aim to defend, including those relating to environmental protection. Various cases highlight how standing is applied in France. For instance, in the case of France Nature Environnement & Guyane Nature Environnement v. Prefect of Guyane and EDF (The Larivot power plant case) , the NGOs were considered to have standing due to their publicly accredited status and the alignment of their action with their statutory objectives. Another case, Envol Vert et al. v. Casino , demonstrates the broad language of the French Commercial Code, which allows a wide range of entities, including NGOs with specific articles of incorporation related to environmental protection, to have standing to bring legal action.

Despite the flexible standing requirements, French law imposes certain procedural requirements, such as the necessity for a formal notice prior to summons in actions based on the duty of vigilance under the French Commercial Code. This requirement can be a source of difficulty for plaintiffs.

Germany

In Germany, standing in climate and environmental litigation is based on specific criteria and legal provisions. The plaintiffs must demonstrate a (potential) injury to their rights and thus must have the 'power to litigate (prozessführungsbefugnis)' for their claim to be admissible. The courts have emphasised the need to establish a direct causal link between the defendant's behaviour and the injury caused, which is a significant challenge in climate litigation. And if a defendant's conduct complies with existing legal requirements, it is often not considered an unlawful infringement of the plaintiff's rights. Thus, NGOs cannot directly act as claimants but can provide financial and legal support to individual claimants. In the case of Saúl Luciano Lliuya vs. RWE AG, a Peruvian farmer sued RWE AG, demanding the company bear a share of the costs for protective measures against flooding caused by climate change. His claim has been backed by NGOs such as GermanWatch.

Most GHG reduction and adaptation claims in climate litigation are based on Sec. 1004 BGB (civil code), which primarily focuses on the removal and injunction of interference with property. Sec. 1004 (1) BGB addresses issues related to impairments of property or other legally protected interests. Plaintiffs have often claimed infringements of the general right of personality due to climate change effects. In addition to that, sec. 823 BGB imposes fault-based liability for the unlawful infringement of a protected interest. This provision can be invoked for compensation claims related to impacts of climate change. There have been several cases against major car manufacturers, such as Volkswagen AG, BMW AG, and Mercedes Benz, where plaintiffs sought injunctions against the production of internal combustion engines and CO2 emissions reductions. Most of these claims were based on Sec. 1004 and Sec. 823 BGB but were dismissed as unfounded, mainly due to the lack of direct causal links and the lawful nature of the defendants' conduct.

India

Indian courts have broadened the concept of standing (locus standi) in environmental cases. Traditionally, only those directly affected by an issue had the standing to sue. However, this requirement has been relaxed in environmental matters, allowing public interest litigations (PILs) on environmental issues. This expansion enables individuals, social activists, and NGOs to bring environmental concerns to the courts, even if they are not directly affected.

The courts have often relaxed the rules on standing if the cases have been brought under Articles 32 and 226 (before the Supreme Court and High Courts, respectively) of the Indian Constitution; especially if there is a violation of Part III and IV (Articles 21 (Right to Life), 48A (Environment Protection), and 51A(g) (Duty to Protect Environment)) of the Constitution (see section on justiciability for further details). These provisions provide a foundational basis for environmental litigation. These articles have been interpreted to imply a right to a healthy environment, thus broadening the scope for standing in environmental cases. Notably, in the case of R. L. & E. Kendra v. State of Uttar Pradesh, a simple letter written to the Chief Justice of India to prevent and stop illegal mining activities and their consequent pollution was treated as PIL. In this case, two writ petitions were brought before the Supreme Court under Article 32 of the Constitution of India as public interest litigation. In M.C. Mehta v Union of India (Ganga Pollution Case), the Supreme Court expanded the notion of standing in environmental litigation. M.C. Mehta, an environmental activist, filed a PIL concerning the pollution of the Ganga River. The case led to significant actions against the polluters and set a precedent for future environmental litigations. In the Indian Council for Enviro-Legal Action v. Union of India, an NGO filed a lawsuit regarding industrial pollution. The court's decision to entertain the PIL further affirmed the relaxed approach to standing in environmental matters.

The National Green Tribunal, established under the National Green Tribunal Act 2010, has been pivotal in environmental jurisprudence in India. The NGT specialises in expeditiously handling environmental disputes and has further facilitated a wider interpretation of standing. It allows for more stakeholders, including community groups and environmental activists, to seek legal remedies for environmental degradation. For instance, the case of Ridhima Pandey v. Union of India was brought before the NGT under Section 2(m) of the National Green Tribunal Act, which authorises claims that raise "a substantial question relating to the environment".

Italy

In Italy, article 311 of the "Code of the Environment" designates the Minister for the Environment as the primary actor for seeking environmental damage compensation. However, in cases like Greenpeace, Re:Common et al. vs ENI, this scope is expanded, allowing individuals and associations to pursue legal action for harm stemming from environmental damage, as per Article 313 § 7 of the same code.

ENI's argument in the Greenpeace case, framing the plaintiffs' concerns as collective rather than individual rights, highlights the complexities surrounding environmental rights. Moreover, citizen-initiated litigations such as the 'Milan Stadium' and 'TAP' cases signify the judiciary's openness to recognising individuals' legitimate interests affected by administrative decisions. The diverse nature of these legal challenges is further evident in class actions, like the ILVA and Dieselgate cases, under the Art. 840 of the Code of Civil Procedure. These class actions encompass both injunctive and compensatory goals, thereby broadening the legal avenues for addressing collective environmental harms.

The report also sheds light on the importance of access to environmental information, as seen in the Mozambique LNG Project case by Re:Common, stressing the role of transparency in environmental governance. In the realm of transnational environmental issues, cases brought before the National Contact Point for the OECD Guidelines, like those by "Rete Legalità per il Clima" and Survival International Italia, demonstrate the recognition of non-governmental organisations in environmental advocacy. The Ikebiri case further underlines challenges such as jurisdiction and standing, but the court's willingness to delve into the dispute's merits signals a commitment to substantive environmental justice.

Japan

Standing in environmental and climate litigation in Japan is tied to the recognition of personal rights and legal interests. In civil litigation, standing is understood as a procedural standing to seek a judgment on the merits of a right that is the subject matter of litigation. This implies that if a plaintiff files a lawsuit based on a personal right, including emerging environmental rights, the acceptance of these rights is a merit issue rather than a standing issue. However, in administrative litigation against governments, standing to sue is granted to "a person who has a legal interest" in seeking the revocation of a disposition. In cases such as those involving the revocation of administrative dispositions regarding coal-fired power plants, the courts have interpreted relevant laws and regulations to find "no legal interests adversely affected by global warming due to CO2 emissions" and rejected cases based on a lack of standing. For instance, in the Kobe Powerplant case, a claim against the construction of two coal-fired power plants was filed. The plaintiffs claimed a health-related personal right to CO2 emissions, arguing that emissions from the facilities would likely cause individual damages. The Kobe District Court accepted the legal theory of the health-related personal right but dismissed the case, denying a concrete danger of harm to the plaintiffs' life, body, or health.

Kenya

In Kenya, locus standi in environmental and climate litigation is notably flexible. The Constitution of Kenya, 2010 (Articles 70 and 42) allows any individual to initiate legal actions regarding environmental concerns without needing to demonstrate personal loss or injury. In the case of COI & Another Vs. Chief Magistrate Ukunda Law Courts & 4 Others, the court observed in this that, 'The Constitution of Kenya 2010, unlike our previous one, enshrines a detailed, liberal and robust Bill of Rights (...)'. This interpretation of locus standi is reinforced by Section 23(3) of the Climate Change Act and Section 3(4) of the Environmental Management and Coordination Act (EMCA). Both Acts enable broad public participation in legal processes, catering to concerns about climate change and environmental degradation. Section 23 of the Climate Change Act empowers individuals to seek legal redress for actions hindering climate change mitigation and adaptation efforts without the necessity to prove personal loss or injury. The EMCA, on the other hand, facilitates legal actions against entities causing environmental harm, aligning with constitutional rights to a clean and healthy environment.

Netherlands

The approach to standing in the Netherlands is characterised by its alignment with human rights law, tort law, and soft law, providing a robust framework for both vertical (against the state) and horizontal (between private parties) climate change litigation. Dutch law provides relatively favourable conditions for claimants in public interest litigation, including environmental causes. Article 3:303 of the Civil Code (CC), legal standing requires a claimant to have sufficient interest. For collective actions, satisfying Article 3:305a CC is an important requisite. It allows foundations or associations with full legal capacity to take action to protect similar interests of others, provided these interests are aligned with the organisation's objectives and adequately safeguarded. The application of standing criteria varies between idealistic actions and collective damages claims. Idealistic actions typically involve public interest litigation initiated by NGOs, focusing on environmental protection. On the other hand, collective claims for damages are less prevalent.

For instance, in the Milieudefensie v. Royal Dutch Shell, the court found that Milieudefensie's idealistic action aimed to protect public interests related to climate change, specifically those that affect an undefined, large group of people. The court limited admissible claims to those protecting the interests of Dutch residents and the Wadden area, emphasising the need for a close connection with the Dutch legal order. In the Fossielvrij NL v. KLM case, the court ruled that Fossielvrij NL's action against KLM for alleged greenwashing was admissible. The court determined that representativeness, as required for collective damages claims, is not a prerequisite for actions under Article 3:305a CC when pursuing idealistic purposes.

However, the landmark Urgenda case has spurred an ongoing debate and differing interpretations in Dutch courts regarding the extent to which the representativeness of an interest group should be assessed in idealistic purpose claims. This debate has led to a motion in the House of Representatives questioning the extent of representativeness required for such groups in public interest litigation.

Nigeria

Traditionally, Nigerian courts adopted a restrictive approach to locus standi. This approach required a plaintiff to demonstrate a personal, direct interest in the matter, distinct from the public. 'According to the court-created rule, standing was only to be accorded to claimants who could show that their 'civil rights' - narrowly construed by the courts to mean 'private legal rights' - have been or are in danger of being violated or adversely affected by the act or omission complained of.' This stance is evident in cases like Oronto Douglas v. Shell Petroleum Development Company Nigeria Limited & Ors, where the plaintiff's attempt to enforce environmental procedures against oil companies was unsuccessful due to the restrictive standing rules.

However, there has been a shift towards a more liberal approach, particularly in public interest litigation related to environmental and climate issues. For instance, in the case of Centre for Oil Pollution Watch v. Nigerian National Petroleum Corporation (COPW v NNPC), the Nigerian Supreme Court broadened the locus standi doctrine, allowing any person, including NGOs, to bring actions against public and private entities to enforce statutory provisions or public laws designed to protect human lives, public health, and the environment.

The Climate Change Act 2021 also imposes climate obligations on public entities and private entities with over 50 employees. It allows for legal action against those who negatively impact efforts towards mitigation and adaptation measures. This could potentially increase opportunities for climate litigation against corporations with harmful practices, aligning with the more liberal approach to standing (see section on 'justiciability' for more details).

Norway

In Norway, under the Dispute Act, an organisation or foundation can bring an action in relation to matters within its purpose and normal scope, and this includes environmental organisations. The concept of "real need" is a key criterion for locus standi in civil court cases in Norway. Section 1-3 of the Dispute Act requires a claimant to demonstrate a genuine need for the claim. This is interpreted to mean that the need must be actual and related to protecting a specific right. Courts have shown flexibility in allowing organisations and foundations to sue on matters related to their objectives. For instance, environmental organisations have been active in bringing climate actions against corporations and the State, in cases like Greenpeace Nordic Ass'n v. Ministry of Petroleum and Energy and Statnett SF et al. v. Sør-Fosen sijte et al., This shows that both environmental organisations and individuals have locus standi to bring forth environmental and climate-related cases.

Philippines

In the Philippines, legal standing (locus standi) is a concept that slightly differs from the idea of being a real party-in-interest. The general rule for having legal standing in Philippine litigation is that a party must have a personal and substantial interest in the case, such that they have sustained or will sustain direct injury due to the governmental act being challenged. This "interest" must be material and significantly affected by the decree rather than just a general grievance. In public interest cases, particularly in environmental litigation, taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue under specific conditions. The Supreme Court, in the landmark case of Oposa v. Factoran, has taken a revolutionary step in relaxing the rules on standing. The Court granted standing to representatives (minors, in this case) of "generations yet unborn," acknowledging the unique nature and scope of environmental harms. This liberal approach is further entrenched in the Rules of Procedure for Environmental Cases (RPEC) under Sections 2, 4, and 5, allowing any Filipino citizen to file an action to enforce rights or obligations under environmental laws. In the Resident Marine Mammals case, the Supreme Court granted standing to the natural person representing the fauna as their stewards. In the Segovia case, the "Carless People of the Philippines" were granted standing as citizens, even though they could not show that they suffered a concrete injury. Thus, there are no major roadblocks in granting standing to citizens.

However, in ordinary civil actions, like a complaint for damages under tort law, the rule on real parties-in-interest (Sec. 2 of RPEC) is applied more strictly in cases involving corporations and damages. This rule requires that the party bringing the action must stand to benefit or be injured by the judgment in the suit.

Poland

In Poland, legal standing is determined by the substantive law related to the specific dispute. A party has legal standing if it has a personal and substantial interest in the lawsuit, evidenced by a legal relationship that gives the claimant the right to submit a specific request and imposes an obligation on the defendant. NGOs have specific limitations regarding legal standing in terms of subject matter and personal scope. Under Article 61, sections 1-2 of the Polish Code of Civil Procedure, NGOs can represent natural persons only in civil proceedings. Environmental claims can be brought for the infringement of personal rights affected by activities that threaten or destroy the environment. The justiciable issues under Article 61 of the Polish Code of Civil Procedure must align with the mandates of the NGO that is bringing the claim. NGOs can also act on behalf of a member or join pending proceedings for claims arising from their business activities with the member's consent. Failure to get permission from the members could be considered a lack of legal standing.

United Kingdom

In the UK, legal Standing has specific requirements to bring environmental or climate cases, and they vary depending on the nature of the legal action. For instance, to bring proceedings in nuisance, claimants must have proprietary rights in the land affected by the nuisance. This means the claimant must demonstrate a direct, tangible interest in the property that has been impacted by the defendant's actions. In cases based on human rights, claimants need to establish victim status. This requires demonstrating that the defendant's conduct has directly affected their rights, as protected under human rights law. For public law actions, including judicial reviews, claimants must show 'sufficient interest' in the matter. This threshold is usually liberally interpreted, allowing a wide range of individuals and groups, including non-governmental organisations (NGOs), to bring action. In corporate claims, the standing of claimants can depend on the capacity in which they are bringing the proceedings. For example, in derivative claims, minority shareholders can sue on behalf of the company for a right that the company itself has failed to exercise. These claims require the claimant to obtain court permission, which involves a two-stage process assessing factors like good faith, the likelihood of authorisation or ratification of the act or omission, and the importance a member would attach to the claim. Additionally, shareholders may also protect their interests through unfair prejudice petitions. These are applicable when a company's affairs are being conducted in a manner unfairly prejudicial to some or all shareholders, including the petitioner. Again, similar to derivative claims, the claimant must establish a prima facie case to gain permission for the action.

United States

In the US, establishing standing in environmental litigation involves meeting three key criteria, first, injury, second, traceability, and third, redressability. The plaintiff must demonstrate a concrete injury that is actual or imminent that is directly caused by the defendant's actions and is likely to be remedied by a court. This injury must infringe upon a legally protected interest and be specific to the litigant.

Organisations, particularly in public interest litigation, can claim standing in two ways: first, through an injury to the organisation itself or second, by representational standing, where they can sue on behalf of members who have suffered direct harm. In the 'First Wave' (see US Report), standing was a major hurdle in bringing environmental cases before the courts. For instance, in Kivalina v ExxonMobil, plaintiffs faced challenges due to an attenuated causal chain, leading to the court ruling that there was no standing. In the Murphy Oil case, plaintiffs attributed the strength of Hurricane Katrina to the contributions of Carbon Major corporations to climate change. The district court dismissed the case for various reasons, including lack of standing, but the appellate panel in the Fifth Circuit initially recognised standing based on claims of nuisance, trespass, and negligence, dependent on a causal link.

In the 'Third Wave', the case of Conservation Law Foundation v Gulf Oil LP was dismissed for lack of standing, as the court found no immediate threat of future injury to CLF members. The claims were not sufficiently specific about the immediate harm from climate change to the plaintiffs. However, in similar cases, like Conservation Law Foundation v Shell Oil, the courts found standing for near-term climate impacts, acknowledging an injury, traceability, and the potential for redress. In the notable case of Harvard Climate Justice Coalition v President and Fellows of Harvard College, standing was not established against a charitable corporation. Here, special standing would typically apply to individuals with a direct and personal right affected by the organisation's actions, a criterion the student members did not meet.