2. Procedures and Evidence

3. RELEVANT DEFINITIONS AND ESSENTIAL ELEMENTS

The limitation period is the timeframe within which a legal action must be initiated following an environmental harm or violation. Usually, for an aggrieved party to bring a claim before the court, for the claim to be admissible, the aggrieved party must ensure the claim is brought before the end of the limitation period. Limitation periods are usually statutory provisions, and the timeframe is based on the nature of the damage or injury. In the context of climate and environmental cases, it is observed in the 17 focus countries that the law of limitation has been interpreted by courts based on the following principles:

i. Continuous/Ongoing Harm:

A key principle in environmental litigation is the concept of 'continuous or ongoing harm'. This principle is recognised in countries like Canada, Germany, India, the Philippines, the United Kingdom, and the United States. Continuous harm refers to a scenario where the defendant's harmful actions are ongoing, meaning that the harm is not a one-time event but a series of continuous events that are causing the damage. Under this doctrine, the limitation period may extend until such conduct stops or may restart with each new instance of harm. This is especially pertinent in cases of environmental pollution or climate change, where the effects are often prolonged and cumulative.

ii. New Cause of Action:

The principle of a new cause of action is closely linked to ongoing harm. In this context, each new act of harm or each day of continuation of the harm can be considered a fresh cause of action, effectively renewing the limitation period. This concept is particularly relevant in the United Kingdom, where it is applied in the context of 'continuing nuisances.' Each separate act of harm is viewed as a new wrong, giving rise to its limitation period. This principle is critical in environmental litigation as it recognises the evolving nature of environmental damage and allows for legal action even when the initial starting point of harm is in the distant past.

iii. Awareness/Discovery of Harm:

In countries like Germany and the Netherlands, consider the period when the injured party becomes aware of the harm and its causation as the starting point for the limitation period. This is particularly important in environmental cases where harm may not be immediately apparent. The limitation period starts when the claimant knows or should have known about the harm, not necessarily when the harm first occurred.

iv. No Specific Limitation Period for Environmental Harm:

In Brazil, environmental harm is viewed as having enduring effects, leading to the absence of a specific limitation period for such damages in civil cases. This shows that environmental protection transcends conventional temporal limitations on legal claims, acknowledging the long-term nature of environmental damage.

These principles reflect an adaptation of traditional legal frameworks to the unique challenges of environmental and climate litigation, acknowledging that environmental harm often differs significantly from other types of legal harm in terms of discovery, continuity, and impact. These adaptations are crucial for ensuring that legal systems can adequately address the complex realities of environmental and climate-related damages.