2. Procedures and Evidence
E. Limitation Periods
1. OVERVIEW
This section provides a comprehensive analysis of the law of limitation in climate and environmental litigation across 17 focus countries. The limitation period is the time within which legal action must be initiated following environmental harm or violation.
i. Established Legal Avenues:
Courts have accepted key principles interpreting limitation laws in climate and environmental cases, i.e. continuous/ongoing harm, a new cause of action, awareness/discovery of harm, and cases where there's no specific limitation period for environmental harm. Courts have been flexible in applying the law of limitation in cases that deal with environmental and climate issues, irrespective of prescribed statutory provisions that guide limitation periods. Thus, many cases in Australia, Brazil, Canada, France, Germany, and India highlight such flexibility of courts.
ii. Challenges and Hurdles:
One of the primary challenges is determining the start and end of the limitation period, especially in cases where environmental damage is not immediately apparent or is continuous. In addition to this, the complexity of proving continuous harm or ongoing harm to extend limitation periods is difficult. This requires substantial evidence against the defendant, which can be a significant hurdle for plaintiffs. For instance, the Nigerian case of Shell Petroleum Development Company of Nigeria Ltd v Dodoye West illustrates the challenges faced when the limitation period starts from when the cause of action arises, not when the harm is discovered.
iii. Future Pathways:
The potential future applications of limitation periods in climate and environmental claims include wide acceptance of doctrines like 'continuous harm' and the 'discovery rule', where the limitation period starts upon discovering the harm. Another potential application to overcome the hurdles is the court's judicial discretion in extending limitation periods in exceptional cases to balance legal certainty with the urgency of environmental justice. These reforms are crucial to integrate these legal concepts into domestic systems, thus addressing the challenges of climate and environmental litigation.
