2. Procedures and Evidence

1. OVERVIEW

Countries such as Brazil, the Netherlands, and Poland are known for legal systems that facilitate the adjudication of climate-related cases without encountering "justiciability" issues - the question of whether a case is suitable for adjudication. Their legal frameworks support the adjudicability of environmental rights or do not specifically prevent judicial interventions against activities that contribute to climate change by challenging their justiciability. However, most of the 17 case-study countries explicitly recognise justiciability as an obstacle to corporate climate litigation. This contrast underscores the importance of justiciability in shaping the landscape of corporate climate litigation globally.

In determining the justiciability of corporate climate litigation cases, courts draw upon a set of legal principles, doctrines, and procedural rules. While these vary in the 17 jurisdictions surveyed, they typically revolve around concepts such as the separation of powers, the political question doctrine, displacement by written rule, deference to administrative discretion, ripeness and actual controversy, as well as enforceability and redressability.

By successfully addressing justiciability challenges, the cases from Canada, China, Nigeria, and India highlight the judiciary's willingness to engage with corporate climate litigation, especially when the issues are framed in certain ways: (1) highlighting the government's failure to adhere to its specific legal obligations rather than vague or broad misconduct; (2) invoking specific statutory or constitutional provisions that grant clear actionable rights; (3) based on well-defined procedural grounds that clearly outline how courts can proceed with such cases; or (4) emphasising the judiciary's role in delivering environmental or climate justice.

2 GRAPHIC SUMMARY 

3. CONCEPTS OF JUSTICIABILITY

Justiciability in the context of corporate climate litigation across the 17 jurisdictions surveyed is assessed based on a set of legal principles, doctrines, and procedural rules anchored in constitutional law, statutory provisions, and case law. While these vary, they typically revolve around concepts such as the separation of powers, the political question doctrine, displacement by written rule, deference to administrative discretion, ripeness and actual controversy, as well as enforceability and redressability.

a. Separation of Powers and Political Question Doctrine

In regard to the separation of powers among the legislative, executive, and judiciary branches, there is a widespread reluctance across jurisdictions like Canada, Germany, Australia, and the United States to adjudicate issues that are considered to fall under the legislative or executive branches' mandate. Additionally, in some jurisdictions, notably the United States, courts assess whether an issue is more suitably addressed by political branches rather than the judiciary pursuant to the "political question doctrine."

• CANADA

In Canada (Auditor-General) v. Canada (Minister of Energy, Mines & Resources), the Supreme Court of Canada held that: [a]n inquiry into justiciability is, first and foremost, a normative inquiry into the appropriateness as a matter of constitutional judicial policy of the courts deciding a given issue, or instead deferring to other decision-making institutions of the polity.

Furthermore, in instances where climate change litigation has argued that the government violated Canadians' constitutional rights, courts have determined they cannot impose a positive obligation on the government to legislate in response to climate change, as seen in Misdzi Yikh v. Canada.

• AUSTRALIA

 In Sharma v. Minister for the Environment, plaintiffs sought an injunction to prevent the Federal Minister for the Environment from approving an extension of Whitehaven Coal's Vickery coal mine. They contended that the Minister had a novel duty of care to consider negligence when deciding to approve or reject the coal mine under the EPBC Act. Initially, a Federal Court judge agreed that such a duty existed, but this decision was reversed upon appeal. Chief Justice Allsop, on appeal, stated, among other things, that the duty involved policy matters that were not appropriate for judicial resolution.

• UNITED STATES

 In the U.S., discussions on justiciability have frequently centered on the argument that climate change constitutes a political question. This perspective led to the dismissal of a lawsuit by the State of California against auto manufacturers, such as General Motors, in 2006. The Ninth Circuit determined that the regulation of greenhouse gas emissions from auto manufacturers was a political issue meant for Presidential or Congressional decision.

A subsequent series of litigation involved state-level lawsuits against fossil fuel companies in New York, which similarly failed. This was due to the application of the political question doctrine with a focus on foreign policy, as highlighted in the 2018 case of City of New York v. Chevron Corp. The U.S. District Court for the Southern District of New York concluded that New York's allegations raised nonjusticiable political questions that encroached on the domain of the political branches. This view was upheld by the U.S. Court of Appeals for the Second Circuit, which agreed that foreign policy considerations prevented the acknowledgement of a federal common law cause of action for emissions from outside the U.S.

In Baker v. Carr, 369 U.S. 186 (1962), the U.S. Supreme Court outlined the criteria for the political question doctrine, which has been applied in climate litigation to argue that some climate issues are beyond the scope of judicial review, as seen in Massachusetts v. EPA, 549 U.S. 497 (2007), where the Court, however, found that the EPA's regulation of greenhouse gases did not constitute a non-justiciable political question. The application of the political question doctrine in US tort cases is discussed further in Part I.C (Tort Law).

• GERMANY

 Unlike in the United States, Germany does not have an explicit "political question doctrine." Instead, the principle of separation of powers is embedded in the German Basic Law (Grundgesetz) and was exemplified in cases against Mercedes-Benz, BMW, and VW, where courts declined to make decisions they viewed as encroaching on legislative responsibilities (BVerfG, 2 BvR 2226/12, 2 BvR 2728/13, 2 BvR 2730/13, 2 BvR 2731/13).

Case Against Mercedes-Benz by DUH

The Regional Court of Stuttgart ruled against DUH's claim, emphasising that adjudicating this matter would disrupt the constitutional balance between legislative and judicial powers. The court highlighted that decisions impacting social life and living conditions, particularly those concerning legal regulations in the transport sector, fall squarely within the purview of the legislature. By denying the claim, the court maintained that allowing such a legal challenge could improperly empower individuals to use civil law to effect changes in transport regulations, a domain reserved for legislative action.

Case Against BMW

In the case against BMW, the Regional Court of Munich considered the extensive legislative framework established to fulfil the Paris Climate Agreement's objectives. It observed that the German Federal Constitutional Court had previously determined that these legislative measures fell within the legislature's discretion. The court further reasoned that the multifaceted issue of climate protection, which encompasses economic, social, and environmental considerations, is best managed by the legislative and executive branches of government rather than through judicial intervention.

Case Against Volkswagen (VW)

The case against Volkswagen (VW) was dismissed by the Regional Court of Braunschweig due to justiciability issues, primarily because the court found that it could not impose obligations on VW that exceeded those mandated for the state by law. Utilising Section 1004 (2) of the German Civil Code (BGB) as a basis for its decision, the court reasoned that demanding VW to undertake stricter environmental responsibilities would indirectly augment the state's duties, encroaching on legislative and executive domains of environmental policy and regulation. This stance was reinforced by the German Constitutional Court's view that the state already meets its environmental protection duties within the constitutional framework. Consequently, the court concluded that further judicially imposed obligations on VW would be unwarranted and exceed its jurisdiction, reflecting a careful delineation of the roles and responsibilities between the judiciary and the state in addressing environmental issues.

b. Deference to Administrative Discretion

Some jurisdictions, such as Japan, defer to governmental agencies' expertise, especially in environmental policy, highlighting a common understanding of the technical complexity involved in such cases.

• JAPAN

In Japan, the dismissal of climate change litigation cases due to justiciability issues has been particularly evident in administrative litigation, where the judiciary has deferred to the administrative discretion granted to agencies. This deference is based on the agencies' roles in issuing crucial environmental directives, such as final coal-fired power plant licensing notices, which are contingent upon detailed environmental assessment reports. Both the Kobe Administrative Case and the JERA case underscored the necessity for decisions in these matters to be underpinned by comprehensive scientific and technical expertise, reflecting a nuanced understanding of socio-economic policies and the strategic priorities within Japan's energy policy. The courts have consistently emphasised that such detailed and complex decision-making, especially regarding the obligations of different sectors to reduce emissions and the specific extent of these reductions, rightly falls within the purview of designated administrative agencies. Furthermore, in the Kobe Civil Case, it was articulated that decisions on the methodology and allocation of CO2 reduction targets are best resolved through democratic processes rather than judicial intervention, underscoring the judiciary's cautious stance on overstepping its bounds into areas requiring specialised knowledge and policymaking discretion.

c. Displacement by Written Law

The concept of displacement by written law involves assessing whether statutory or codified laws preclude judicial review of certain issues.

• It is a significant consideration in jurisdictions like Germany, where the legal system is based on codified law, and precedent is not binding in the same way it is in common law systems. This approach was evident in the BMW case mentioned above, where the court deferred to the comprehensive legislative framework on climate change.
• Furthermore, in the US, tort cases encounter preemption of their state law claims by federal common law, and then, if preemption applies, displacement of federal common law by the Clean Air Act (or any other federal statute). This issue is discussed further in Part I.C (Tort Law).

d. Ripeness and Actual Controversy

In jurisdictions like Kenya and the Philippines,[1]  the necessity for a dispute to be ripe and to constitute an actual controversy prevents courts from adjudicating cases that are hypothetical, premature, or purely academic, and have not yet evolved into fully justiciable disputes. This involves determining whether the harms involved are concrete and imminent rather than hypothetical or speculative.

e. Enforceability and Redressability

In Kenya, the constitutional avoidance doctrine requires a court to restrain from adjudicating a claim where there are other non-constitutional remedies available to a litigant.[1]  The courts will, therefore, decline to determine a constitutional issue when there is an alternative basis for the determination of a claim.[2]

[1] Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014.
[2] National Assembly of Kenya & another v Institute for Social Accountability & 6 others Nairobi Civil Appeal 92 of 2015.

4. DETERMINATION OF JUSTICIABILITY

A comparison of corporate climate litigation in various countries shows that while there are overarching principles guiding the concept of justiciability across jurisdictions, the application and emphasis of these principles vary. This variance reflects each jurisdiction's unique legal culture, constitutional structure, and judicial philosophy regarding corporate climate litigation.

The successful arguments for justiciability in cases from Canada, China, Nigeria, and India showcase the courts' openness to address corporate climate litigation issues, particularly when cases are framed in specific ways: (1) around the government's failure to meet precise legal obligations under existing laws, rather than challenging broad and diffuse conduct; (2) within the context of specific statutory or constitutional provisions that grant clear actionable rights; (3) within the framework of defined procedural grounds, detailing the conditions under which courts can hear cases; or (4) in alignment with the judiciary's responsibility to uphold (environmental or climate) justice.

Specific Violation of Legal Obligations (Canada)

Canadian courts generally avoid hearing cases centred on political questions or issues deemed too speculative and hypothetical for judicial decision-making. This approach was evident in the dismissal of cases like La Rose, Friends of the Earth, Tanudjaja, and ENVironnement JEUnesse.
For example, the La Rose case was deemed non-justiciable due to the "undue breadth and diffuse nature of the Impugned Conduct", which included:
a. continuing to cause, contribute to and allow a level of greenhouse gas emissions incompatible with a Stable Climate System;
b. adopting greenhouse gas emission targets that are inconsistent with the best available science about what is necessary to avoid dangerous climate change and restore a Stable Climate System;
c. failing to meet the Defendants' own greenhouse gas emission targets; and
d. actively participating in and supporting the development, expansion, and operation of industries and activities involving fossil fuels that emit a level of greenhouse gases incompatible with a Stable Climate System.

However, in Mathur et al. v. Her Majesty in Right of Ontario, the court marked a departure from previous barriers around justiciability. This case became one of the first climate litigation instances to be adjudicated on its merits. The court found the claims justiciable based on the specific and concrete nature of the legal issues presented. Success in the Mathur case stemmed from its focus on specific legislative actions reviewable by the court. The plaintiffs contested Ontario's repeal of the Climate Change Mitigation and Low-carbon Economy Act and the adoption of a less ambitious greenhouse gas emissions target under the Cap-and-Trade Cancellation Act. By framing their challenge around the government's failure to fulfil concrete legal obligations clearly outlined in its own environmental laws, the plaintiffs presented a justiciable issue the court could resolve without delving into policymaking.

Defined Procedural Grounds (China)

Shenzhen Xiangfeng Container Company v. Shenzhen Municipal Development and Reform successfully argued for justiciability within the procedural framework established by China's Civil Procedure Laws. These laws provide a clear basis for courts to adjudicate environmental disputes by setting out the conditions under which cases can be heard, including the requirement for a direct interest, a specific defendant, and a specific claim. This procedural clarity, along with the provision allowing a wide array of litigants to initiate environmental lawsuits, enabled the case to proceed. The case's focus on the legality of administrative penalties for excess carbon emissions was a specific legal issue that fell squarely within the courts' jurisdiction to resolve, according to the Civil Procedure Laws.

Constitutional Rights Enforceable through Implementing Laws (Nigeria)

In Nigeria, a crucial question regarding justiciability in corporate climate litigation has been whether Section 20 of Chapter II of the Nigerian Constitution endorses a litigable socio-economic right to a healthy environment. The Nigerian Constitution does not explicitly recognise an environmental right. However, under Chapter II, titled 'Fundamental Objects and Directive Principles of State Policy', Section 20 mandates that '[t]he State shall protect and improve the environment and safeguard the water, air, land, forests, and wildlife of Nigeria.' There were debates on the justiciability of this environmental protection provision, viewed by some as aspirational and lacking direct enforceability.

Nonetheless, the Supreme Court of Nigeria, in Centre for Oil Pollution Watch (COPW) v. Nigerian National. Petroleum Corporation (NNPC) advanced the justiciability of environmental protection provisions by interpreting the Nigerian Constitution as creating actionable rights. This landmark ruling was crucial as it clarified the constitutional grounds for environmental protection, asserting that such provisions are not merely aspirational but enforceable through legal avenues. Notably, Section 4(2) of the Constitution authorises the National Assembly to legislate to promote and ensure compliance with the directives in Chapter II and can thus 'activate' or implement environmental protection provisions. By basing its decision on constitutional interpretation, the Supreme Court laid a solid legal groundwork for future corporate climate litigation.

Judicial Commitment to Justice (India)

In the pursuit of environmental justice, the High Court of Himachal Pradesh assumed jurisdiction over the case Kinkri Devi and Anr. v. State of Himachal Pradesh and Ors. In this case, the petitioners sought the intervention of the court to halt the indiscriminate granting of mining leases and the unchecked and unscientific exploitation of mines by lessees, particularly in the hilly and Himalayan regions. The Court observed that the judiciary cannot remain silent in such matters. This case exemplifies how Indian courts have recognised the justiciability of climate and environmental issues in the interests of justice.

8. COUNTRY SUMMARIES

Australia

In Australia, jurisdictional issues related to justiciability are handled with a keen awareness of the separation of powers and the appropriate roles of the judiciary versus policymaking entities. This is illustrated in the case of Sharma, where plaintiffs attempted to impose a novel duty of care on the Federal Minister for the Environment regarding the approval of a coal mine extension under the Environmental Protection and Biodiversity Conservation Act (EPBC Act). Initially, a Federal Court judge acknowledged the existence of such a duty. However, upon appeal, this decision was reversed, with Allsop CJ articulating that the duty implicated policy issues that were beyond the judiciary's appropriate scope for decision-making.

Brazil

The Brazilian legal system provides a solid foundation for adjudicating environmental rights, making justiciability less of a barrier to pursuing corporate climate litigation. Specifically, articles 225 and 170 of the Brazilian Constitution affirm the country's commitment to environmental rights, with Article 225, paragraph 3, explicitly stating that harmful environmental activities can lead to criminal and administrative penalties for both individuals and legal entities, in addition to the requirement to remedy the damages caused. Furthermore, the Constitution guarantees that fundamental rights are immediately applicable, ensuring that no legal injury or threat to rights can be excluded from judicial consideration (Article 5, paragraph 1 and Article 5, XXXV).

Canada

In Canada, justiciability presents a notable challenge in corporate climate litigation. For a case to be considered justiciable, Canadian courts must determine they have the authority to adjudicate the matter, ensuring it does not encroach upon areas better suited to elected officials. This principle means that courts avoid cases perceived as addressing political questions or speculative issues. The Supreme Court of Canada in Canada (Auditor-General) v. Canada (Minister of Energy, Mines & Resources) highlighted that justiciability involves assessing whether it is appropriate for courts to decide on an issue or whether it should be left to other branches of government.

Despite these challenges, certain climate litigation cases have made it past preliminary hurdles by focusing on specific, reviewable government actions. One pivotal case is Mathur, which distinguished itself from prior cases by arguing that Ontario's government violated constitutional rights through specific legislative actions, such as repealing the Climate Change Act and setting insufficient greenhouse gas reduction targets. This approach enabled the Ontario Superior Court to deem the case justiciable, in contrast to broader claims like those in La Rose, which were dismissed as non-justiciable due to their wide scope. Additionally, a recent case involving the Sierra Club of BC challenged the BC government's climate reporting under the Climate Change Accountability Act. The BC Supreme Court found the government's reporting requirements justiciable, marking a significant moment in climate litigation by asserting the court's role in enforcing climate accountability, despite previous decisions that deemed climate targets under agreements like Kyoto as non-justiciable.

China

In China, justiciability—the concept determining what cases can be heard by courts—has specific criteria set out in the Civil Procedure Laws. To be heard, a case must involve a plaintiff with a direct interest, a specific defendant, a clear claim with a factual basis, and fall within the scope of civil or administrative actions the courts accept. Civil cases largely pertain to disputes over property and personal relationships among citizens, legal entities, or organizations. For a climate change-related case to be considered justiciable under civil law, there must be a link to property, contract, or personality rights. Administrative litigation is more specific, allowing for suits against particular administrative actions such as sanctions, compulsory measures, or failures to issue permits or protect rights.

Furthermore, China's administrative law explicitly excludes certain types of cases from being justiciable, including the legality of laws and regulations and government acts in climate change negotiation.

France

Unlike in other countries, France does not have a requirement for justiciability because it does not acknowledge the doctrine of political questions. This separation means that judges will not issue orders contradicting state-granted administrative permissions, such as shutting down an authorized activity. If a dispute arises concerning the legality of an authorization, it must be addressed to an administrative judge, rather than a judicial judge. This division suggests that in future, French judges might decline to mandate actions such as reducing greenhouse gas emissions or stopping activities that emit them if these actions conflict with state permissions. Currently, there have been no climate lawsuits in France challenging this specific issue.

Germany 

In Germany, the resolution of jurisdictional issues, including the concept of justiciability, is influenced by the principles of separation of powers and the predominance of written law, without an explicit political question doctrine akin to that of the United States. German courts do not initially filter cases based on their political nature but integrate considerations of the separation of powers into the substantive assessment of cases, usually as a final point of analysis. This approach ensures that the judiciary does not pre-emptively dismiss cases on this basis alone, but rather evaluates them on more concrete legal grounds before considering the implications of overstepping into the domain of the legislative or executive branches.

Recent climate litigation cases against companies like Mercedes-Benz, BMW, and VW highlight how German courts apply these principles. Courts have generally sided with defendants on the basis that judicial decisions on climate policy could infringe upon the constitutional division of labour among the government's branches, arguing that climate change, being a global issue, is best addressed by the legislative body equipped to balance the myriad interests and consequences such policies entail. The Regional Courts in cases against these automotive giants have emphasized that the legislature's role in shaping societal norms and policies, especially in complex areas like climate change, should not be circumvented through the judiciary. This stance is reflected in broader legal discussions in Germany, where justiciability concerns are integrated into the deeper legal analysis of duties and liabilities, rather than being seen as a standalone barrier to litigation, underscoring the codified nature of German law which does not grant the same weight to precedents as in common law jurisdictions.

India

In India, the judiciary has recognized the justiciability of climate-related cases, actively engaging in cases related to environmental issues and climate change. Through constitutional provisions, the Supreme Court of India has been pivotal in ensuring environmental justice, while various High Courts have leveraged the same provisions to uphold the right to a clean environment. Landmark cases like Kinkri Devi v. State of Himachal Pradesh have seen courts taking proactive steps against environmental degradation, emphasizing that judicial intervention is crucial in such matters. Additionally, India's adoption of Public Interest Litigation (PIL) enables citizens and NGOs to bring forward cases addressing environmental protection and climate issues, underpinning the legal acknowledgment that the right to a pollution-free environment is intrinsic to the fundamental right to life as articulated in the Constitution (Article 21).

Italy

In Italy, the approach to justiciability in climate disputes varies based on the legal mechanism employed. The OECD NCP's procedure, seen in cases like Cremonini and ENI, functions more as a mediation, with the NCP acting as a mediator to help settle disputes—a process parties are not obliged to accept. In the ILVA injunctive class action, the court's authority extends to ordering the cessation of activities that violate human rights to life, health, and family life due to industrial emissions. Similarly, in compensatory class actions like 'Dieselgate', courts have mandated compensation for damages. Regional Administrative Court proceedings, like those for the Milan Stadium and TAP projects, can lead to the annulment of public authority measures. Additionally, cases concerning misleading or unfair practices (e.g., EniDiesel+, Dieselgate) can result in administrative fines and prohibitions issued by the Competition and Market Authority. Lastly, in matters of environmental information access, such as the Mozambique LNG Project, administrative judges can compel public authorities to disclose requested information and documents.

Japan

In Japan, the question of justiciability emerges primarily in two scenarios: one concerning the restraint from judicial intervention to respect the separation of powers, and the other regarding the avoidance of decisions that surpass the judiciary's scope of authority. This issue is particularly pronounced in administrative litigation. Courts have occasionally deferred to the extensive administrative discretion granted to agencies, as seen in the issuance of final notices for coal-fired power plant installations, which hinge on environmental assessments requiring intricate scientific and technical judgments. This deference reflects an acknowledgment of the need for specialized expertise in evaluating the socio-economic policies underlying Japan's energy strategy, as illustrated by decisions in the Kobe Administrative Case and the JERA case.

Moreover, the Kobe Civil Case elucidated that decisions on CO2 reduction strategies should be determined via the democratic process, suggesting a judicial inclination towards respecting policy decisions made outside the courtroom. However, in civil litigation concerning direct environmental harms, the courts have been more amenable to providing remedies, such as injunctions, to address the plaintiffs' grievances, given that defendants in such scenarios are typically identifiable as project-based or direct emitters. Thus, while justiciability poses a significant threshold in administrative litigation due to concerns over judicial overreach and respect for administrative expertise, it is less of a barrier in civil cases where the courts are more willing to offer direct remedies for environmental damages.

Kenya

In Kenya, the concept of justiciability is critical in determining whether a climate-related claim against a corporation can be appropriately adjudicated by a court. Kenyan jurisprudence identifies three key doctrines that influence the justiciability of a case. The first is the political question doctrine, which posits that a claim should not proceed in court if it pertains to matters under the discretionary powers of the executive or legislative branches of government, recognizing that such issues are better resolved by the political arms rather than the judiciary. Additionally, the constitutional avoidance doctrine advises courts to avoid adjudicating claims if there are available non-constitutional remedies for the litigant, implying that courts will opt out of constitutional queries if other grounds exist for resolving a claim. Lastly, the doctrine of ripeness prevents courts from engaging in disputes that are considered hypothetical, premature, or academic, and have not evolved into fully matured, justiciable disputes. 

Netherlands

In the Netherlands, the concept of justiciability, as understood in common law jurisdictions, does not apply. Dutch courts are required to adjudicate a claim once all procedural prerequisites, such as standing and the validity of the summons, are met. This obligation is rooted in Article 26 of the Code of Civil Procedure, which establishes a prohibition on the denial of justice, ensuring that courts cannot refuse to decide on cases brought before them. Furthermore, the Netherlands does not recognize a political question doctrine, which means that the political nature or potential political and societal consequences of a legal issue do not exempt a case from judicial review. Instead, such considerations must be integrated into the comprehensive evaluation of the legal claim within the bounds of the relevant legal framework, obligating courts to address and resolve even those cases that may have significant political or societal implications.

Nigeria

In Nigeria, the justiciability of cases, particularly those related to corporate climate litigation, revolves around the question of whether the Nigerian Constitution recognizes a litigable socio-economic right to a healthy environment. This issue is critical because if climate-related claims can be constitutionally supported, it elevates the human rights dimension of these claims, potentially giving them precedence over economic claims. The Nigerian Constitution, unlike South Africa's, does not explicitly mention an environmental right. However, it includes provisions under Chapter II for the protection and improvement of the environment (Section 20), which were traditionally viewed as non-justiciable due to Section 6(6)(c), suggesting these rights could not be directly enforced in court. This perspective led to a scarcity of environmental litigation, as potential claims based on the environmental rights provided in Article 24 of the African Charter Act were seen as inconsequential or inconsistent with the superior Constitution, discouraging litigants.

Nevertheless, a landmark decision by the Supreme Court in COPW v. NNPC significantly shifted this landscape by declaring that Section 20 of the Constitution is justiciable, contradicting the previously held belief that Chapter II of the Constitution was entirely non-justiciable. The Court elucidated that Section 6(6)(c) does not make Chapter II's provisions entirely non-enforceable, and that provisions within Chapter II, including Section 20, can be activated or made justiciable through laws enacted by the National Assembly pursuant to Section 4(2) of the Constitution. This interpretation, along with the Supreme Court's acknowledgment of the justiciability of Section 20 when read in conjunction with such laws and Article 24 of the African Charter Act, opens the door for more robust climate change litigation in Nigeria, providing a constitutional basis for environmental protection claims.

Norway 

In Norway, the question of justiciability hinges on the claimant's ability to demonstrate a "genuine" need for the claim to be adjudicated, as mandated by Section 1-3 of the Dispute Act (Tvisteloven). This requirement emphasizes an overall assessment of the claim's relevance and the connection of the parties involved to the claim. Such a stipulation reflects the broader intention of Norwegian legislation to minimize court litigation in favour of exploring alternative dispute resolution methods.

Philippines

In the Philippines, the concept of justiciability in court litigation is rooted in the constitutional definition of judicial power, emphasizing the resolution of actual controversies involving legally enforceable rights and the oversight of governmental actions for grave abuse of discretion. Case law further refines this by stipulating that for a matter to be justiciable, there must be an actual case or controversy ripe for adjudication, involving a proper party, with the issue of constitutionality being central and raised at the earliest opportunity. This framework requires the presentation of a clear legal battle over recognized legal rights and their potential violation, including demonstrable hardship from direct adverse effects. Challenges to justiciability often emerge in cases involving state actions or in private suits against corporations, where establishing a cause of action necessitates demonstrating a violation of rights attributable to the defendant's actions or omissions. Additionally, the Supreme Court has highlighted difficulties, such as in the case of Sanggacala, related to the sufficiency of tort law in addressing direct harms, pointing out the need to establish the legal enforceability of the rights claimed, distinguishing between actionable legal rights and principles that are non-self-executing. 

Poland

In Poland, the concept of justiciability, unlike in the United States, does not encompass the political question doctrine. According to Article 199 of the Polish Code of Civil Procedure, a court is to reject a claim only if the action is deemed inadmissible, meaning it does not involve rights and obligations arising from civil law. Polish legal doctrine interprets civil rights and obligations to encompass claims for legal protection within economic relationships among entities viewed as equal-rights partners. Environmental claims, including those based on the Civil Code, fall within the scope of civil law, suggesting their appropriateness for judicial consideration. This perspective extends to climate change claims, as demonstrated in a case where an individual sued the State Treasury over failure to address climate change impacts. Though the lawsuit was ultimately dismissed, its acceptance for consideration implies such claims are seen as justiciable under Polish civil courts. This approach is further evidenced by the civil courts' willingness to hear similar lawsuits against the State Treasury regarding air pollution, indicating a broad interpretation of jurisdiction over environmental matters. 

United Kingdom

In the United Kingdom, claims of non-justiciability often stem from the way the grounds of the claim are presented. For example, there might be arguments suggesting that a claim framed as a tort would be more appropriately pursued under public law. However, the most common issues usually revolve around whether the matters being brought before the court are indeed suitable for judicial resolution, or if they are matters of Parliamentary accountability and thus better resolved within the legislative framework. 

United States

In the United States, the issue of justiciability concerning climate change litigation has been a significant hurdle, with courts often dismissing claims on the grounds that climate change is a political question and therefore outside their jurisdiction. This stance was evident in the First Wave of litigation, exemplified by the State of California's unsuccessful lawsuit against auto manufacturers like General Motors in 2006, where the Ninth Circuit Court ruled the matter as a political question meant for the President or Congress. Similarly, in the Second Wave, efforts by states such as New York to hold fossil fuel companies accountable were thwarted by the courts' application of the political question doctrine, focusing on foreign policy. The City of New York v. Chevron Corp. case in 2018 saw the U.S. District Court for the Southern District of New York and subsequently the Second Circuit Court of Appeals declaring New York's claims as nonjusticiable, emphasizing that the adjudication of these claims would encroach upon areas designated to the political branches, particularly in matters extending beyond the nation's borders and touching on foreign policy.