3. Remedies

Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) 3156 UNTS 79

https://treaties.un.org/doc/Publication/UNTS/Volume%203156/Part/volume-3156-I-54113.pdf 

Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32011L0092 

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Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32014L0052

Canada

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Impact Assessment Act 2019 

Section 6(1): 'The purposes of this Act are ... (j) to ensure that an impact assessment takes into account scientific information, Indigenous knowledge and community knowledge'.

Section 82: 'An authority must not carry out a project on federal lands, exercise any power or perform any duty or function conferred on it under any Act of Parliament other than this Act that could permit a project to be carried out, in whole or in part, on federal lands or provide financial assistance to any person for the purpose of enabling that project to be carried out, in whole or in part, on federal lands, unless
(a) the authority determines that the carrying out of the project is not likely to cause significant adverse environmental effects; or
(b) the authority determines that the carrying out of the project is likely to cause significant adverse environmental effects and the Governor in Council decides, under subsection 90(3), that those effects are justified in the circumstances.'

Section 83: 'A federal authority must not carry out a project outside Canada, or provide financial assistance to any person for the purpose of enabling that project to be carried out, in whole or in part, outside Canada, unless
(a) the federal authority determines that the carrying out of the project is not likely to cause significant adverse environmental effects; or
(b) the federal authority determines that the carrying out of the project is likely to cause significant adverse environmental effects and the Governor in Council decides, under subsection 90(3), that those effects are justified in the circumstances.'

The CEAA, Canada Energy Regulator and Canadian Nuclear Safety Commission, as well as some provincial regulators, hold public hearing processes as part of project-approval, licensing and the development of regulatory frameworks. In the role of intervenor, these processes offer the public some means to utilise regulatory frameworks and enforcement mechanisms created by statute to advocate for corporate accountability.

Regulators' decisions may also be challenged through judicial review:

Federal Courts Act (RSC 1985 c F-7) 

Section 18(1): 'Subject to section 28, the Federal Court has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.'

Germany

The violation of planning regulations and non-compliance with permits can only form the basis of a claim for damages under civil law if the violated norm constitutes a 'protective law' (i.e. a law intended to protect another person) under Section 823(2) of the German Civil Code.

German Civil Code 

Section 823: '(1) A person who, intentionally or negligently, unlawfully injures the life, limb, health, freedom, property or some other right of another person is liable to provide compensation to the other party for the damage arising therefrom.
(2) The same duty is incumbent on a person who commits a breach of a statute that is intended to protect another person. If, according to the contents of the statute, it is possible to violate it also without fault, then liability to compensation only exists in the case of fault.'

India

The Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 mandate that industries must obtain from the State Pollution Control Board a) Consent to Establish or Consent to Operate, and b) a No Objection Certificate.

The Air (Prevention and Control of Pollution) Act, 1981 

Section 21: '(1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board, establish or operate any industrial plant in an air pollution control area'.

The Water (Prevention and Control of Pollution) Act, 1974 

Section 25: '(1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board,— (a) establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereafter in this section referred to as discharge of sewage); or (b) bring into use any new or altered outlet for the discharge of sewage; or (c) begin to make any new discharge of sewage'.

Italy

Legislative Decree no. 152/2006 (the 'Environment Code') dedicates the entire Part II to Environmental Impact Assessment Procedures. The Environment Code was amended by Legislative Decree 104/2017, which transposed the 2014 European Directive and included the assessment of project impacts on climate in the EIA procedures.

Legislative Decree 152/2006 approving the Code on the Environment

Article 4(b): 'the environmental assessment of projects has the aim of protecting human health, contributing to the quality of life with a better environment, providing for the maintenance of species and preserving the reproductive capacity of ecosystems as essential resources for life.'

Article 5(b): '[the EIA process includes] the preparation and presentation of the environmental impact study by the proponent, the conduct of consultations, the evaluation of the environmental impact study, of any additional information provided by the proponent and of the results of the consultations, the adoption of the EIA measure on the environmental impacts of the project, the integration of the EIA measure into the project approval or authorisation measure.'

Article 5(c): '[the environmental impacts to be considered in the EIA procedure include] significant direct and indirect effects of a plan, programme or project on the following factors:
- population and human health;
- biodiversity, with particular attention to species and habitats protected under Directive 92/43/EEC and Directive 2009/147/EC;
- land, soil, water, air and climate;
- material assets, cultural heritage, landscape;
- interaction between the factors listed above.'

The Environmental Code incorporates the 2014 Directive and adopts the same forward-looking perspective, requiring the proponent to provide information on the possible development of environmental aspects by considering different scenarios, both in terms of time (short, medium and long term), and from a factual point of view, formulating forecasts for the 'baseline scenario' in the absence of the project and for the scenarios in which the project is implemented or potential alternatives.

National System for Environmental Protection (SNPA) Guidelines No. 28/2020 

The Guidelines provide technical standards for the preparation of environmental impact studies. Guidelines define 'climate' as 'the totality of climatic conditions in the area under examination, which exert an influence on atmospheric pollution phenomena'.

The corporation proposing the project is required to consider the effects of climate change already recognised in the area, as well as their possible evolution, by adopting at least a 30-year forward-looking scenario. Following this assessment, the proposer shall provide a report as to the advisability of implementing the project under assessment, describing the option adopted against the alternatives considered.

With reference to the analysis of the impacts on the air and climate, the Guidelines require the proponents to provide detailed information on the atmospheric emissions that will be emitted by the project.

The proponent also has to provide a detailed description of the likely climate impacts and, based on the nature and extent of the emissions identified, a description of the techniques chosen to prevent or reduce these emissions.

The report should also contain information on the adaptation measures to be implemented to increase the project's resilience to climate change and the monitoring of these measures.

Once the analysis of the project's impact on climate change has been concluded, the compatibility of the project with national, regional and local GHG emission reduction targets, as well as the extent to which the project under assessment could contribute to their achievement, must be assessed.

Japan

Environmental Impact Assessment Act 

Kenya

Physical and Land Use Planning Act No. 13 of 2019 

Second Schedule, Part A — Matters which may be Dealt with in a
Local Physical and Land Use Development Plan: '3(c) Combating climate change'.

Nigeria

Planning and permitting laws have not been the basis for climate litigation in Nigeria. However, where climate-harmful projects have been established contrary to existing planning and permitting laws, such as the Nigeria Urban and Regional Planning Act,[6] the legality of those projects can be subjected to judicial review and appropriate penal and corrective orders issued.

Nigeria Urban and Regional Planning Act 

Section 28: 'Approval of a Planning Authority before development: (1) Approval of the relevant Development Control Department shall be required for any land development. (2) A developer shall submit a development plan for the approval of the Development Control Department.'

Section 30: 'Application for a development permit: (1) A developer (whether private or government) shall apply for a development permit in such manner using such forms and providing such information including plans, designs, drawings and any other information as may be prescribed by regulation made pursuant to this section. (2) No development shall be commenced by any Government or its agencies without obtaining an approval from the relevant Development Control Department. (3) A plan required to be made under this Act shall be prepared by a registered architect or town planner or engineer and shall be in accordance with the provisions of this Act.'

Section 31: 'Grounds for rejection of a development application: An application for a development permit may be rejected if- (a) the plan is not in accordance with an approved plan; or (b) the plan is in the course of preparation; or (c) in the opinion of the Control Department, the development is likely to have major impact upon the environment, facilities, or inhabitants of the community or contains such additional facilities which are not within the estimation of the Physical Development Plan for that community; or (d) in the opinion of the Control Department, the development is likely to cause a nuisance to the inhabitants of the community or contains such additional facilities that are not within the estimation of the Physical Development Plan for that community; or (e) the development is not in accordance with any other condition as may be specified under any regulation made pursuant to this Act.'

Section 33: 'Submission of detailed environmental impact statement: A developer shall at the time of submitting his application for development submit to an appropriate Control Department a detailed environmental impact statement for an application for- (a) a residential land in excess of 2 hectares; or (b) permission to build or expand a factory or for the construction of an office building in excess of four floors or 5,000 square meters of a lettable space, or (c)permission for a major recreational development.'

Section 48: 'Alteration, variation, etc., of a development: (1) An enforcement notice served pursuant to subsection (1) of section 47 may direct the developer to alter, vary, remove, discontinue a development. (2) The Control Department may impose additional conditions as it may deem fit in each circumstance. (3) Before issuing or serving an enforcement notice in accordance with the provisions of subsection (1) of this section, the Control Department shall- (a) have regard to the existing conditions for granting a development permit; (b) have regard to the likely environmental degradation or impact of a development carried out or being carried out; (c) consider the over-riding public interest without prejudice to paragraph (b) of this section.'

[6] Cap N138 Laws of the Federation of Nigeria, 2004.

Norway

Planning and Building Act (2008) 

Section 1-1: 'Purpose of the Act: The Act shall promote sustainable development in the best interests of individuals, society and future generations.'
Section 3-1: 'Planning functions and considerations pursuant to this Act:
Within the framework of section 1-1, plans pursuant to this Act shall:
...
(g) take the climate into account in energy supply and transport solutions'.
Section 28-1: 'Building land, environmental conditions, etc.: Land may only be developed, or property established or altered, when there is adequate safeguard against hazard or significant inconvenience as a result of natural or environmental conditions. The same applies to land that is exposed to hazard or significant inconvenience as a result of a project.'[7]

Supreme Court judgment 26 June 2020, HR-2020-1353-A 

A property owner and a building company exceeded planning permission they had received for a project and encroached onto protected shoreline. The penalties included a large fine and a period of imprisonment. The Supreme Court explained that the Planning and Building Act must be interpreted in light of Section 112 of the Norwegian Constitution which provides for the right to a healthy environment. Following this ruling, the question is open whether a stricter interpretation of the PBA rules in light of §112 would increase the opportunities for further actions in climate-related cases connected to property rights.

[7] Section 28-1 was added to the Planning and Building Act as an amendment by Act No. 27 of 8 May 2009. The document is available here.

Philippines

Presidential Decree No. 1586 Establishing an Environmental Impact Statement System, Including Other Environmental Management Related Measures and for Other Purposes ('EIA Law') (1978) 

Section 1: 'Policy. It is hereby declared the policy of the State to attain and maintain a rational and orderly balance between socio-economic growth and environmental protection.'
Section 4: 'Presidential Proclamation of Environmentally Critical Areas and Projects. The President of the Philippines may, on his own initiative or upon recommendation of the National Environmental Protection Council, by proclamation declare certain projects, undertakings or areas in the country as environmentally critical. No person, partnership or corporation shall undertake or operate any such declared environmentally critical project or area without first securing an Environmental Compliance Certificate issued by the President or his duly authorized representative. For the proper management of said critical project or area, the President may by his proclamation reorganize such government offices, agencies, institutions, corporations or instrumentalities including the re-alignment of government personnel, and their specific functions and responsibilities.
For the same purpose as above, the Ministry of Human Settlements shall: (a) prepare the proper land or water use pattern for said critical project(s) or area (s); (b) establish ambient environmental quality standards; (c) develop a program of environmental enhancement or protective measures against calamitous factors such as earthquake, floods, water erosion and others, and (d) perform such other functions as may be directed by the President from time to time.'
Section 9: 'Penalty for Violation. Any person, corporation or partnership found violating Section 4 of this Decree, or the terms and conditions in the issuance of the Environmental Compliance Certificate, or of the standards, rules and regulations issued by the National Environmental Protection Council pursuant to this Decree shall be punished by the suspension or cancellation of his/its certificate or and/or a fine in an amount not to exceed Fifty Thousand Pesos (P50,000.00) for every violation thereof, at the discretion of the National Environmental Protection Council.'

Republic Act No. 7160, otherwise known as the Local Government Code (LGC) (1991) 

Before granting permits for business activities, local government units (LGUs) may require corporations to abide by local ordinances on environmental protection and climate change mitigation. These ordinances are imposed based on the police powers of LGUs to promote general welfare:

Section 16: 'General Welfare. - Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.'

In addition to the power to impose obligations under ordinances, the LGC contains two provisions expressly related to planning and permitting obligations. Lack of compliance with these provisions can be used as a strong anchor for planning and permitting litigation:

Section 26: 'Duty of National Government Agencies in the Maintenance of Ecological Balance. - It shall be the duty of every national agency or government-owned or controlled corporation authorizing or involved in the planning and implementation of any project or program that may cause pollution, climatic change, depletion of non-renewable resources, loss of crop land, rangeland, or forest cover, and extinction of animal or plant species, to consult with the local government units, nongovernmental organizations, and other sectors concerned and explain the goals and objectives of the project or program, its impact upon the people and the community in terms of environmental or ecological balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof.'[8]
Section 27: 'Prior Consultations Required. - No project or program shall be implemented by government authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained: Provided, That occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the Constitution.'[9]

Presidential Decree No. 705 Revised Forestry Code of the Philippines (1975) 

Section 20: 'License agreement, license, lease or permit. No person may utilize, exploit, occupy, possess or conduct any activity within any forest land, or establish and operate any wood-processing plant, unless he has been authorized to do so under a license agreement, lease, license, or permit.'

Presidential Decree No. 856 Code on Sanitation of the Philippines (1975) 

Section 14: 'Sanitary Permit:
(a) No person or entity shall operate a food establishment for public patronage without securing a permit from the local health office. The term "food establishment" as used in this chapter means an establishment where food or drinks are manufactured, processed, stored, sold or served.
(b) Every Sanitary Permit shall be posted in a conspicuous place of the establishment.
(c) Fees: The fees payable on application for permits and upon the issuances, renewal and noting of such certificates shall be in such amounts as the City or Municipal Authority may by resolution impose.
(d) Noting of Permit: Within 14 days after any change in the ownership or occupancy of any establishment, the new occupant shall apply to the City or Municipal Health Officer to have such change noted in the records and on the permit certificate which he shall produce for the purpose and shall pay the corresponding fee in respect of such noting.
(e) Record of Permit Certificates:
1. Every City or Municipality shall keep a record of all establishments in respect of which permits have been issued and of all permit certificates and renewals thereof.
(f) The record shall in every case show the following:
i. The name and address of the holder of the permit who in every case shall be the actual occupier of the establishment;
ii. The location of the establishment;
iii. The purpose or purposes for which the permit has been issued;
iv. The date the first permit was issued and the dates of any renewal thereof;
v. Every change of occupation and management of the establishment since the first permit was issued; and
vi. Conditions under which the permit was issued or any renewal thereof granted.
The record shall be available at all reasonable times for inspection by any officer of the Department of Health.'

[8] Emphases and underscoring added.
[9] Sanggunian translates to English as 'city council'.

Poland

In many cases, corporations must receive environmental approval for their activities:

Act on Providing Information on the Environment and Environmental Protection, Public Participation in Environmental Protection and on Environmental Impact Assessment 

Article 71: 'Decision on environmental conditions:
1. The decision on environmental conditions shall determine the environmental conditions for the implementation of the project.
2. Obtaining a decision on environmental conditions is required for planned:
1) projects that may always significantly affect the environment;
2) projects that may potentially significantly affect the environment.'

Citizens and environmental organisations have a right to participate in administrative proceedings and challenge the decisions resulting thereof based on the above Act on Providing Information on the Environment and Environmental Protection, Public Participation in Environmental Protection and on Environmental Impact Assessment and based on the Act - Law on Proceedings before Administrative Courts. They may also apply to the Polish Ombudsman which can either make inquiries to the relevant government authorities about the decision made in the particular case or can join legal proceedings and present arguments.

They can also bring litigation based on Article 325 of the Environmental Protection Law Act where environmental damage has been caused by activities authorised by an administrative decision:

Environmental Protection Law Act 

Article 325: 'Liability for damage caused by environmental impacts shall not be excluded by the fact that the activity giving rise to the damage is carried out on the basis of and within the limits of a decision.'