2. Procedures and Evidence

AUSTRALIA

In Australia, general limitation periods apply to corporate climate litigation cases. The statute of limitations varies depending on the type of legal action involved. These are not specific to climate litigation. For civil cases, such as negligence and contract disputes, the limitation period is usually six years from the date the cause of action arises. However, there may be shorter limitation periods for certain claims, such as property damage (three years) and defamation (one year).

BRAZIL 

Article 225 of the Brazilian Constitution,1988 emphasises triple environmental accountability, holding offenders responsible for civil, criminal, and administrative consequences for environmentally harmful actions. This has been affirmed by the Brazilian Supreme Court's 2020 ruling (STF, Plenary, RE 654.833/Acre, Justice Alexandre de Moraes) and further corroborated by numerous precedents established by the Brazilian Superior Court of Justice, as documented in "Jurisprudência em teses" No. 119.

In civil cases, there is no limitation period for environmental damages, as per prevailing doctrine and jurisprudence. The rationale is that environmental harm often has enduring effects, making the right to seek redress perpetual. This aligns with the understanding that environmental protection is a fundamental right, transcending conventional temporal limitations on legal claims. Additionally, Federal Decree No. 6.514/2008 outlines the framework for addressing environmental infractions in the administrative sphere. The administration has five years to initiate investigations from the date of the infraction or its cessation (in the case of ongoing offences). The decree also introduces the concept of 'intervening limitation' (prescrição intercorrente), where if administrative proceedings are stalled for over three years without judgment, the right to penalise may be forfeited. However, actions taken by the administration to advance the investigation reset this limitation period. Notably, the lapse of the administrative limitation period does not negate the civil obligation to remedy the damage, ensuring continued accountability in civil law. As for criminal claims, Articles 109 and 110 of the Brazilian Penal Code governs limitation periods for environmental crimes that stipulate the timeframes for initiating criminal proceedings. These periods vary depending on the severity of the crime, with more serious offences having longer limitation periods.

CANADA

In Canada, the limitation period for bringing civil climate claims varies by province, generally set at two years, starting from the day the harm is caused. A key legal concept reflected in cases is "continuous harm," which suggests that if a defendant's harmful actions are ongoing, the limitation period may extend until such conduct stops. This principle is based on the idea that continuous harm can be seen as a new breach, effectively renewing the limitation period. This was established in the case of Hole v Chard Union, requiring repetitive acts similar to the original wrongful act, in the case of Manitoba v Manitoba, the Human Rights Commission clarified that continuous contravention involves present, separate acts of discrimination, not merely ongoing effects of a single act.

The principle of continuous harm can be applied to climate litigation. Plaintiffs might argue for extended limitation periods due to ongoing environmental harm. For instance, if a corporation consistently emits pollutants causing continuous environmental damage, each emission might be considered a new act of harm, thus resetting the limitation period. However, for the limitation period to be extended, there needs to be a factual basis for claiming a series of separate acts or omissions. In cases of continuous corporate climate impacts, such as consistent pollutant emissions, these might be viewed as distinct acts, especially if they violate environmental regulations and cause identifiable separate harm. This approach to the limitation period allows for the possibility of extending the timeframe for legal action in cases of ongoing environmental damage. 

FRANCE

In France, the limitation period for civil liability is provided in Article 2224 of the French Civil Code, which is typically five years from the '...day when the holder of a right knew or should have known the facts enabling him to exercise it'. However, there is an exception to the rule governing compensation for ecological damage, and the limitation period is longer. According to Article 2226-1 of the Civil Code, 'A liability claim for compensation for ecological damage redressable under Chapter III of Subtitle II of Title III of the present Book shall be time-barred ten years from the date on which the holder of the claim knew or should have known of the occurrence of the ecological damage'. However, so far, the limitation period has not been a point of contention in climate and environmental cases in France.

GERMANY

In Germany, the standard limitation period for bringing claims, including those in corporate climate litigation, is generally three years as per Sec. 195 BGB (German Civil Code). This applies to torts and nuisance claims, which are common in climate litigation. According to Sec. 199 (1) BGB, this period begins at the end of the year in which the claim arose and when the creditor becomes aware or should have become aware without gross negligence of the circumstances giving rise to the claim. The claimant need not be aware of the full details of the damage for the limitation period to commence; knowledge of the harmful circumstances is sufficient.

In cases of environmental damage, particularly where harm is of a continuous or recurring nature, the limitation period may be extended. This "continuing harm doctrine" allows the limitation period to restart with each new instance of harm or when the nature of the harm changes. The period may also start when the injured party becomes aware of the harm and its causation. The LLiuya vs. RWE  case illustrates this principle. The Higher Regional Court of Hamm did not apply the standard three-year limitation because it was not clear that the claimant, residing in Peru, was aware of European carbon majors' responsibilities. The court instead relied on the absolute ten-year limitation period under Sec. 199 (4) BGB, which had not expired.

For certain claims, like those involving intentionally caused fatal or personal injury, a special 30-year limitation period under Sec. 197 (1) no. 1, 199 (2) BGB is applicable. However, this longer period does not typically apply to climate litigation cases. 

INDIA

In India, there is no specific limitation period defined for climate litigation. The Limitation Act of 1963, which sets the timeframe for various civil claims, does not distinctly categorise climate litigation. The limitation period for a climate-related legal claim depends on the nature of the claim. For instance, in cases involving compensation for harm due to environmental pollution, the typical limitation period for tort claims is three years from the date the cause of action arises. The application of the general principles and limitations of the Limitation Act varies based on the type of legal claim. Civil suits generally have a three-year limitation period from when the right to sue accrues.

Public Interest Litigations are often used to bring environmental and climate litigation before courts. The limitation period to bring PIL is different and may depend on issues or matters of public interest. Thus, strict enforcement of limitation periods may not apply. The Limitation Act allows for extension under certain conditions, such as disability, fraud, or mistake, and if the aggrieved party was unaware of the cause of action due to such reasons. The Supreme Court of India also has the discretion to condone delays in filing suits if justified reasons are presented.

Moreover, the Court has acknowledged the concept of continuous harm or continuing wrong in several cases, implying that in situations of ongoing harm, each day of continuation might constitute a new cause of action. This principle has been recognised in cases like State of Madhya Pradesh vs. Bhailal Bhai (1964). This could be applied in climate litigation, considering environmental harm is often cumulative and ongoing. However, the complexity of environmental and climate litigation cases means that the specific circumstances could influence the determination of the applicable limitation period.

ITALY

In Italy, the limitation period for climate-related claims varies depending on the nature of the liability. For non-contractual liability, such as torts, the statute of limitations is five years, starting from when the damage becomes apparent. This period can be interrupted by formal actions like a court application, after which a new five-year period begins. For claims arising from breach of contract, the limitation period extends to ten years and can also be interrupted. In the case of non-contractual liability, injunctive relief claims, which involve a court order to compel or prevent specific actions, are subject to a five-year limitation period.

For climate-related claims, corporate conduct causing environmental harm or infringing on fundamental rights due to climate negligence can be perceived as continuous, particularly in cases involving perpetual and continuous corporate actions contributing to climate change, such as GHG emissions. If they are considered as 'ongoing climate-related harm', it could potentially affect the application of limitation periods. 

JAPAN

In Japan, the statute of limitations for bringing climate-related claims varies depending on the nature of the tort. For torts causing harm to life and limb, the limitation period is five years from the time the victim becomes aware of both the damage and the perpetrator. For other types of harm, the period is three years. However, there is an overarching limitation of 20 years from the time of the tortious act, as specified in articles 724 and 724-2 of the Civil Code.

If the infringement is ongoing, the statute of limitations does not apply, allowing for extended or continuous claims in cases of persistent harm. Additionally, under Article 135 of the Code of Civil Procedure, actions seeking future performance, including claims for monetary compensation for anticipated future damages, are permissible but are subject to strict scrutiny to determine their necessity. This framework allows for flexibility in addressing ongoing or future harms in corporate climate litigation. 

KENYA

In Kenya, the framework for limitation periods in legal actions, including those related to climate litigation, is governed by the Limitation of Actions Act (CAP 22). This Act, however, does not specifically address causes of action pertaining to climate change. The limitation period applicable to a climate litigation case in Kenya largely depends on the nature of the cause of action invoked by the litigant. For example, if a claim is grounded in tort law, it must be filed within three years. This could include cases where corporations are accused of causing environmental harm. In contrast, claims alleging the infringement of constitutional rights are not subject to such limitation periods. This distinction is crucial in the context of climate litigation, as some cases might involve constitutional rights, such as the right to a clean and healthy environment. 

NETHERLANDS

In the Netherlands, the limitation period for climate litigation is governed by the Dutch Civil Code, which distinguishes between absolute and relative limitation periods. According to Article 3:306 of the Civil Code (CC), a legal claim generally expires after twenty years unless otherwise specified. For claims involving damages, Article 3:310 CC stipulates a relative limitation period of five years from the day the injured party becomes aware of both the damage and the identity of the responsible party. However, there's an absolute limitation period of twenty years following the event causing the damage. An exception to this rule involves harm from pollution or hazardous substances, where the limitation period is extended to thirty years. This thirty-year period starts after the harmful event (if it's a continuous event) ceases or, in the case of successive events with the same cause, after the last event. Special provisions exist for claims related to injury or death, where the limitation period is five years from awareness of both the damage and the responsible party.

Determining the start and end of the limitation period in climate litigation often hinges on whether emissions contributing to the damage are considered a continuous tort and when the harmful event started or stopped. Answers to these questions are crucial in establishing when the limitation period commences. While many cases have specified when the limitation period can begin, however, in the context of climate change liability, there is no specific case law or literature. In certain situations, the limitation periods can be disregarded based on principles of reasonableness and fairness, though this has not been extensively explored in the context of climate change litigation in the Netherlands.

NIGERIA

The Limitation of Actions Act CAP 22 outlines the periods within which civil court actions must be brought, but it does not specifically address climate change litigation. The Act establishes that limitation periods are determined by the nature of the cause of action. For tort claims, the action must be filed within three years. However, in cases alleging constitutional rights infringements, there is no limitation period.

The case law, such as Shell Petroleum Development Company of Nigeria Ltd v Dodoye West, demonstrates how limitation issues are treated in corporate climate cases. In this case, Shell argued successfully that the action was statute-barred under the Rivers State Limitation Law, which prescribes a five-year limitation period for tort claims. This case illustrates that in Nigeria, the limitation period begins when the cause of action arises, not when the injured party becomes aware of the effects. This can be challenging for environmental and climate litigants, as the impact of pollutants might become apparent only after a significant time has elapsed.

While Nigerian limitation laws have exceptions for ongoing damage and for claimants who were minors at the time of the harm, there's a lack of judicial discretion to extend limitation periods in deserving cases. This is particularly relevant in environmental and climate cases, where harm may manifest or be discovered years after the initial wrongdoing. Lastly, climate claims brought under human rights laws in Nigeria are not subject to limitation periods, offering a different avenue for addressing climate-related grievances in court. 

NORWAY

In Norway, the general limitation period for bringing climate claims in both civil and criminal cases is three months, as stipulated by Section 10-4 of the Dispute Judgment Act. This period starts from the submission of the writ of summons. In administrative proceedings, a different timeframe applies. According to Section 24 of the Public Administrative Act, appeals must be initiated within three weeks of the decision being made known. As per section 28, if a decision made by a public authority in individual cases is to be appealed, it must be done through the superior authority. This appeal option is available only to the party involved or another person with a legal interest in the appeal. Furthermore, for issues concerning the Ombud, a complaint must be filed within one year of the decision being made. These timeframes are crucial for potential litigants in climate-related cases, whether they are pursuing action through civil, criminal, or administrative channels or addressing decisions made by public authorities or the Ombud. 

PHILIPPINES

The Philippines has no specific limitation period dedicated to climate change litigation. The nature of legal action, i.e. the cause of action, determines when a climate-related claim can be brought before the court. For instance, claims based on quasi-delicts or torts must be filed within four years, as stipulated by the Civil Code. This rule applies to various civil causes of action that are used to bring climate-related claims under the Civil Code. In criminal cases, the prescriptive periods are determined by the Revised Penal Code (RPC) or other special laws defining the offences. Notably, actions to abate a nuisance, as described in Article 1143 of the civil code, do not prescribe a limitation period. Thus, this can be potentially used in addressing sources of greenhouse gas (GHG) emissions if the claim is characterised as a nuisance. This provides a unique avenue for climate litigation where GHG emissions are framed as nuisances, allowing potential legal action without the constraint of a limitation period.

POLAND

In Poland, there is no specific limitation period in the law for climate change claims, so the timeframe for filing such claims depends on the underlying cause of action. For most tort claims related to environmental harm, the limitation period is governed by Article 4421 of the Civil Code. This provision stipulates a three-year limitation period starting from the date the claimant becomes aware of the damage. However, it cannot exceed ten years from the occurrence of the event causing the damage. In instances where the event causing the damage continues over a period of time, the limitation period begins when the damaging behaviour ends.

Notably, non-material injuries resulting from the infringement of personal rights are not subject to a limitation period. While certain aspects of environmental protection laws in Poland allow for extended liability periods or are not limited by time, these exceptions do not extend to civil liability for torts under Article 323 of the Environmental Protection Law Act (EPLA). 

UNITED KINGDOM 

In the United Kingdom, the limitation period for bringing climate claims depends on the nature of the cause of action. According to sections 5 & 2 of the Limitation Act, for contract or tort claims, the general limitation period is six years. However, as per section 11 of the limitation act, if the tort claim involves personal injury, the period is three years, with the possibility of extension at the court's discretion. Sections 14a and 14b govern the limitation period in case of negligence not involving personal injury. In this case, if all relevant facts are not initially known, there is an overriding limitation period of 15 years.

Judicial review claims must be filed promptly and no later than three months after the grounds for the claim arise. Statutory actions, such as those under the Human Rights Act, have specific limitation periods set by their respective statutes, often one year or three months.

Similar to other jurisdictions, the concept of 'continuing harm' provides that each day of ongoing wrongful behaviour can constitute a new cause of action. This was addressed in the case Jalla v Shell, where the Supreme Court clarified that a 'continuing nuisance' pertains to repeated activities or ongoing situations for which the defendant is responsible. However, damages for such nuisances can only be recovered for occurrences within the relevant limitation period. The concept of 'continuing harm' is distinct from situations where a defendant does not create but fails to rectify a nuisance. Thus, this would not qualify as a 'continuing nuisance'. It is noted that understanding these nuances would be critical for litigants in climate-related cases in the UK, especially when determining the applicability of limitation periods.

UNITED STATES

In the United States, the limitation period for bringing corporate climate litigation varies depending on the specific cause of action. For securities claims, as per the Securities Act, a one-year limitation period is set from the time of discovering the untrue statement or omission or when it should have been discovered with reasonable diligence. For instance, in Barnes v Edison (2019), the plaintiffs missed the one-year period to file a claim following the revelation of the concealed risk of wildfires, leading to the dismissal of the case for untimeliness.

In cases of public nuisance, the statutes of limitations differ by state, ranging from two to five years. Moreover, the limitation period depends on whether the nuisance is classified as permanent or temporary. For permanent nuisances, the action must be initiated within the specified period from when the nuisance occurred. As for temporary or continuing nuisances, the action can be brought at any time, but recovery for injuries is limited to those occurring during the limitation period[1]. The principle here is that each occurrence of a continuing nuisance can lead to a fresh cause of action.

As for product liability claims, including design defects or failure to warn, the "discovery rule" governs the limitation period. This rule stipulates that the limitation period starts when the plaintiff discovers, or should have discovered, the harm caused by the defendant's conduct, which has given rise to a potential cause of action.

Similarly, for claims under state deceptive trade practice or consumer protection acts, the limitation period commences when the cause of action accrues, generally when the deceptive actions are or should have been discovered by the aggrieved party. This approach is based on the understanding that a cause of action cannot accrue before the full extent of the deceptive actions is known to the defrauded party.

[1] Tri-County Inv. Group, Ltd. v. Southern States, Inc., 231 Ga. App. 632, 500 S.E.2d 22, 25 (1998) ("Under Georgia law, a cause of action for a tort that is continuing in nature—for example, the frequent runoff of contaminated water across land, or ... the underground leakage of hazardous waste onto adjoining property—accrues at the time of continuance. Therefore, the plaintiff in a continuing tort suit can recover for any damages that were suffered within the four years prior to the filing of the suit.")