3. Remedies

RELEVANT DEFINITIONS AND ESSENTIAL ELEMENTS

Non-pecuniary remedies in climate and environmental litigation across the 17 focus countries encompass a range of judicial tools used to address and mitigate environmental harm beyond monetary compensation. These non-pecuniary remedies, varying across countries, reflect a global trend towards more nuanced, rights-based, preventive, and restorative legal responses in climate litigation. They underscore the judicial willingness to address complex environmental issues beyond traditional compensatory approaches by aligning legal responses with the unique challenges posed by climate change and environmental degradation. The key elements and types of non-pecuniary remedies include:

i. Injunctions:

These are court orders compelling a party to do or refrain from specific acts. Injunctions are common in Canada, Brazil, Germany, Poland, and the United States, employed to either stop harmful activities or mandate proactive environmental measures.

ii. Declaratory Relief:

Courts in countries like Canada and India use declaratory relief to establish the rights and liabilities of parties, clarifying legal obligations and corporate responsibilities regarding environmental impacts.

iii. Preventive Measures:

These remedies focus on obliging entities to change practices to avoid future harm. France and the Netherlands, with cases like Notre Affaire à Tous and Others v. Total and Milieudefensie v. Royal Dutch Shell, exemplify this approach, aiming to compel behavioural changes in corporations for long-term environmental benefits.

iv. Restorative Measures:

In Germany, under tort law and sections of the German Civil Code, restorative measures aim to repair environmental damage directly rather than providing monetary compensation, as seen in Lliuya v. RWE AG.

v. Corrective Actions:

Indian courts, through cases like M.C. Mehta v. Union of India & Others, have ordered corporations to undertake specific actions to rectify or mitigate environmental harm.

vi. Public Civil Actions:

Brazil uses public civil actions to safeguard collective rights to a healthy environment, empowering entities to take or refrain from certain actions to enforce environmental rights.

vii. Writ of Kalikasan and Continuing Mandamus:

The Philippines employs innovative tools like the reliefs in a Citizen Suit, the Writ of Kalikasan and Writ of Continuing Mandamus, seen in Resident Marine of the Protected Seascape Tañon Strait vs. Secretary Angelo Reyes et al., for holistic environmental protection and ongoing compliance with environmental laws.

viii. Specific Performance Orders:

In the UK, courts may order specific performance in contract cases, compelling defendants to fulfil environmental obligations as promised in agreements.

ix. Expanding Legal Theories for Injunctive Remedies:

Japan is evolving its legal theories to include new rights, such as the right to a stable and healthy environment for securing injunctions against environmentally damaging activities.