3. Remedies

AUSTRALIA

Non-pecuniary remedies, such as declarations and injunctions, are important tools in strategic corporate climate litigation. These remedies are not focused on monetary compensation but rather seek to achieve broader objectives like compliance with environmental laws, cessation of misleading conduct, or shifts in corporate behaviours to address the climate crises.

In Australian Conservation Foundation Inc (ACF) v. Woodside Energy Ltd.,  claimants sought declarations that the Scarborough Gas Project falls within the scope of the Environmental Protection and Biodiversity Conservation Act (EPBC Act) and sought to restrain the respondents from acts in contravention of the EPBC Act. Similarly, in ACCR v. Santos , the Australasian Centre for Corporate Responsibility (ACCR) sought declarations that Santos engaged in misleading and deceptive conduct. They also sought an injunction to prevent future misleading conduct and a corrective statement about the environmental impact of its gas operations. In KEPCO Bylong Australia Pty Ltd v. Independent Planning Commission; Bylong Valley Protection Alliance Inc , KEPCO sought a declaration that the refusal to grant permission for the Bylong Coal Project was invalid and an order for the project's re-determination to be in accordance with law. This case exemplifies how non-pecuniary remedies can also be sought by corporations against regulatory decisions.

These cases illustrate how non-pecuniary remedies are utilised in Australia to influence corporate behaviours and policy decisions related to environmental and climate change issues. Rather than seeking financial compensation, claimants in these cases aim to ensure compliance with environmental laws, correct misleading information about climate impacts, and influence decision-making processes regarding environmentally significant projects. This approach reflects a broader goal of shaping law, policy, and corporate behaviours in response to climate change challenges.

BRAZIL 

In Brazil, non-pecuniary remedies are grounded in a variety of legislative and policy frameworks. These remedies are primarily pursued through civil and environmental law, with a focus on protecting the environment, ensuring public health, and upholding human rights.

i. The Public Civil Action (Ação Civil Pública)

This legal mechanism is used for safeguarding diffuse and collective rights, such as the rights to a healthy environment and consumer rights. Although e it enables compensation (indenização) to be awarded, it also enables obligations to be taken (obrigação de fazer) or action to be refrained from (obrigação de não fazer) enforcement to be imposed, whenever rights are violated (Article 3, Law No. 7,347/1985). Article 4 of this law also permits injunctive relief to prevent damage from occurring.

ii. Brazilian Constitution of 1988:

Article 225 (Law No. 6,938/1981; Law No. 7,347/1985) recognizes the right to an ecologically balanced environment, emphasizing the importance of environmental protection.

iii. National Environmental Policy (PNMA - Federal Law 6938/1981):

Defines "polluter" broadly and establishes joint and several liabilities for environmental harm.

iv. Forest Code (Law no. 12651/2012):

Protects native vegetation and imposes responsibilities on property owners for environmental damage.

v. National Policy on Climate Change (PNMC - Federal Law 12187/2009):

Aims to reduce greenhouse gas emissions and implement adaptation measures to climate change.

vi. Environmental Crimes Act (Federal Law 9605/1998):

Establishes both criminal and administrative penalties for conduct and activities detrimental to the environment.

vii. Brazilian Consumer Protection Code (CDC) (Law No. 8,078/1990).

Article 10 Product Recall offers specific legal remedies or obligations that can be imposed on companies for violation of consumer rights. In addition to compensation for damages, they also include Article 60 (Corrective Advertising) companies that engage in false or misleading advertising may be required to issue corrective advertising to inform consumers of the truth about their products or services. Finally, the CDC also authorises the suspension or revocation of licenses for companies that repeatedly violate consumer rights or engage in fraudulent or illegal activities.

The case of Federal Environment Agency (IBAMA) v. Madeira Nova Aliança Ltda. , illustrates how plaintiffs can seek injunctions for environmental and climate damages, including the suspension of the defendant's participation in financing lines and tax incentives. The case of IBAMA v. Minerva Ribeiro de Barros and Genesisagro S/A  highlights the importance of the Legal Reserve in environmental protection and the propter rem principle, which binds property ownership with environmental responsibilities. The case of Federal Public Prosecutor's Office v. INEA and Karpowership Brasil Energia Ltda.  illustrates the pursuit of reparation for deforested areas and compensation for material and non-material damages, including collective moral damages.

CANADA

Canada provides for several non-pecuniary remedies that have been used or can be potentially used in climate change or environmental cases. They are typically used to address environmental harms and enforce regulatory compliance. They include:

i. Injunctions: These are court orders prohibiting a party from doing something (prohibitory injunctions) or requiring them to do something (mandatory injunctions).

ii. Declaratory Relief: This involves a court making a declaration on the legal position or rights of the parties without necessarily ordering any specific action or awarding damages. It can be used to clarify the application of the law in certain circumstances, such as the responsibilities of corporations under environmental regulations.

iii. Retention of Jurisdiction (Structural Injunctions): This allows the court to retain jurisdiction over a matter to ensure compliance with its orders. For instance, a court might require a corporation to report regularly on its emissions or other environmental impacts.

iv. The Oppression Remedy: This is used to address situations where the actions of a company are oppressive or unfairly prejudicial to, or unfairly disregard the interests of a complainant. It could potentially be used in environmental litigation to address corporate actions that harm the environment or certain stakeholders. In Wisser v CEM International Management Consultants Ltd , oppression remedy was defined as, "the right to apply to the court, without obtaining leave, in order to recover for wrongs done to the individual complainant by the company or as a result of the affairs of the company being conducted in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of the complainant''.

In the case of La Rose et al. v. Her Majesty the Queen , the plaintiffs sought orders declaring that the government's conduct infringed the plaintiffs' fundamental rights under the constitution and violated the public trust doctrine. They also sought orders requiring the government to develop and enforce a new climate recovery plan. Similarly, in Mathur et al. v. Her Majesty the Queen in Right of Ontario , the youth plaintiffs sought declaratory orders that the Ontario government violated the plaintiffs' rights under the Canadian constitution and an order requiring Ontario to revise its climate change plan and implement a science-based greenhouse gas reduction target. The case of Doucet-Boudreau v. Nova Scotia (Minister of Education) involved a structural injunction where the court retained jurisdiction over the matter to ensure compliance with its orders. 

CHINA

In China, the legal framework for addressing climate change and environmental issues is still developing, with an existence of a couple of non-pecuniary remedies such as compensation by purchasing carbon sinks and public apology. The remedy of compensation related to carbon sinks has been utilised in the case of Shunchang County People's Procuratorate v. Wu Yuechang  in the Fujian Province. It involves the use of carbon sink projects as a form of ecological restoration. In cases of illegal logging, defendants who voluntarily purchase carbon sinks are considered to have contributed to restoration efforts. This approach aligns with the broader objective of increasing carbon sinks as part of climate mitigation strategies. The use of public apologies is often sought in public interest litigation, serving to raise public awareness about environmental issues.

The report highlights the need for the exploration of new remedies. It is noted that traditional remedies are often insufficient for the unique characteristics of climate change litigation. Hence, there is a need to explore new remedies such as injunctions and ecological environment restoration. Developments in relief methods along with preventative measures like environmental prohibitions, restorative actions like ecological environment restoration, and cost-effectiveness based on the principle of proportionality should be considered. 

FRANCE

In France, non-pecuniary remedies or preventive remedies are aimed at halting or preventing environmental harm rather than seeking financial compensation. Some cases have emphasised preventive actions focusing on obliging companies to change their practices and policies to prevent further environmental harm, along with compensating for it. It can therefore be noted that preventive remedies are used to bring change in policy and also corporate behaviour. For instance, in the case of Notre Affaire à Tous and Others v. Total (January 28, 2020)  the plaintiffs sought preventive remedies based on the statutory duty of vigilance and the ecological damage regime. They requested TotalEnergies to adhere to obligations under the duty of vigilance related to climate change risks. Specifically, they wanted TotalEnergies to publish a new vigilance plan including measures to identify risks and prevent damages caused by its activities, especially concerning greenhouse gas (GHG) emissions. Furthermore, they sought measures to achieve carbon neutrality by 2050 across all emissions resulting from TotalEnergies' activities. In the case of Greenpeace France and Others v. TotalEnergies SE and TotalEnergies Electricité et Gaz France , plaintiffs sought an order enjoining the defendants to cease misleading commercial practices. They also asked for mandatory information on environmental claims related to the defendants' climate commitments in their commercial practices. In Les Amis de la Terre France et al. v. TotalEnergies , the plaintiff-NGOs requested TotalEnergies to comply with its statutory duty of vigilance obligations and to halt its oil project in Uganda and Tanzania, emphasizing on due diligence measures to prevent risks and violations related to environmental harm. In Notre Affaire à Tous Les Amis de la Terre France Oxfam v. BNP Paribas, the plaintiffs sought preventive remedies, asking the court to order BNP Paribas to stop financing fossil fuel activities and investing in fossil fuels. They aimed at reducing greenhouse gas emissions and preventing further ecological damage. 

GERMANY

The German legal framework, particularly tort law and specific sections of the German Civil Code (Bürgerliches Gesetzbuch or BGB), provides the basis for various non-pecuniary remedies in such litigations. Remedies under Sec. 1004 BGB, represent a significant legal development. They reflect a shift from traditional damage compensation to more proactive and preventive measures against environmental harm and climate change effects. However, it's noteworthy that to date, many of these claims in Germany have faced challenges, particularly regarding proving causation and the lawfulness of corporate actors' behaviours under existing legal obligations.

i. Tort Law: German tort law emphasizes the restoration of the environment and the mitigation of climate change effects, rather than just monetary compensation. For instance, if emissions damage property, the responsible party is primarily required to repair the damage directly, as per Sec. 249 para.1 BGB.

ii. Sec. 1004 BGB: This section creates an obligation for the responsible party to cease and desist activities causing environmental harm. This can lead to court orders to stop CO2 emissions or to end high-emission activities like the production of internal combustion engines. It may also include orders for proactive measures by the defendant, such as installing safety features to mitigate risks like flooding.

iii. Sec. 8 (1) UWG: Under this section, a company can be sued for injunction in cases of unfair commercial practices. This non-pecuniary remedy is enforced by competitors or certain NGOs, such as Deutsche Umwelthilfe. It's often used in greenwashing cases, where no specific damage needs to be proven.

In the case of Lliuya v. RWE AG , the claimant is seeking to hold RWE AG responsible for a share of the costs for protective measures against flooding from a glacial lake, a consequence of climate change allegedly linked to RWE AG's activities. 

INDIA

In India, for non-pecuniary or non-monetary remedies, the emphasis is often on preventive, restorative, and behavioural directives. They include measures that do not involve a financial payout but rather aim to restore, rectify, or prevent harm. For instance, courts may order the cessation of environmentally harmful activities, mandate specific actions to remediate damage, or impose restrictions to prevent future harm. These remedies are:

i. Declaratory Relief: The court may provide declaratory relief by issuing a judgment that establishes the rights and liabilities of the parties involved in the case. This can clarify legal obligations and responsibilities regarding corporate activities impacting climate change.

ii. Injunctive Relief: Apart from its pecuniary aspect, injunctive relief can also have non-pecuniary implications. For instance, a court may order the corporation to disclose relevant information, publish environmental impact reports, or engage in public consultation processes. These measures aim to enhance transparency, public participation, and corporate accountability.

iii. Corrective Measures: In addition to monetary compensation, the court may direct the corporation to undertake corrective actions to rectify or mitigate the environmental harm caused. This could include implementing pollution control technologies, restoring ecosystems, or adopting sustainable practices.

The approach taken by Indian courts underscores the role of judicial activism in environmental conservation. For instance, the case of M.C. Mehta v. Union of India & Others (Oleum Gas leak Case)  led to the evolution of the Public Interest Litigation (PIL) mechanism and the development of the Absolute Liability Principle. In this case, the Supreme Court issued various directives to regulate industries causing environmental harm, demonstrating a non-pecuniary approach focused on preventive and remedial actions. In Vellore Citizens Welfare Forum v. Union of India & Others (1996)  emphasized the 'Precautionary Principle' and 'Polluter Pays Principle'. The court ordered the creation of an authority to implement the directives given, showcasing a model where non-pecuniary remedies work in tandem with pecuniary ones to achieve environmental conservation. In the case of the Indian Council for Enviro-Legal Action v. Union of India & Others (1996),  the court focused on the closure and relocation of hazardous industries from populated areas, again reflecting a non-pecuniary approach to prevent environmental damage. The case of T.N. Godavarman Thirumulpad v. Union of India & Others  related to forest conservation, where the Supreme Court issued comprehensive orders for forest preservation and management, is an example of non-pecuniary remedies for environmental conservation. 

ITALY

Non-pecuniary remedies in Italy reflect on a shift towards more sustainable and environmentally responsible corporate behaviours. They typically aim to prevent future harm, ensure compliance with environmental laws and policies, and promote greater transparency and responsibility in corporate conduct related to climate change and environmental protection.

The report explores non-pecuniary remedies through several case examples. In these cases, the claimants have sought both, pecuniary as well as non-pecuniary remedies simultaneously. For instance, in Greenpeace Re:Common et al. v. ENI , the claimants argue that ENI's conduct contributes to climate change, impacting their human rights protected under the European Convention on Human Rights (Arts. 2 and 8). The non-pecuniary remedy sought includes an injunction to avoid future damage, reflecting a focus on preventing ongoing harm rather than merely compensating for it. The case of Movimento Difesa del Cittadino et al. v. ENI S.p.A. (EniDiesel+ case)  involves allegations of greenwashing, where the claimants accuse ENI of misleading advertising about the environmental benefits of its fuel product. The non-pecuniary aspect of the remedy is the demand to cease misleading commercial practices and provide truthful information, aligning with broader goals of consumer protection and environmental transparency. In the class action case of C.Z. et al. v. Acciaierie d'Italia Holding S.p.A. ('ILVA' case), the claimants seek an injunction for the protection of their rights to health, serenity, and climate, affected by pollution from the ILVA steel plant. They demand the closure or modification of the plant to reduce its harmful emissions, a clear example of a non-pecuniary remedy aimed at rectifying environmental harm. In A.B et al. v. Ministero per lo Sviluppo Economico (TAP case), the claimants challenge the extension of authorization for the construction of a pipeline, arguing that it contradicts climate change commitments and violates human rights. The sought-after non-pecuniary remedy is the annulment of the extension, demonstrating an emphasis on compliance with environmental laws and policies.

The case involving petitions to the National Contact Point for OECD Guidelines "Rete Legalità per il Clima" vs Corporations (Cremonini, Veronesi, ENI cases)  emphasized the need for corporate climate change strategy and transparency. The non-pecuniary aspect here is the demand for compliance with environmental guidelines and responsible corporate conduct.

JAPAN

In Japan, non-pecuniary remedies have been explored primarily through civil injunctions against the operation or construction of power plants, particularly coal-fired power plants. These remedies aim to directly address environmental harms by stopping or altering activities contributing to climate change and environmental degradation. However, the report has highlighted the challenges in establishing legal grounds for such injunctions and the judiciary's cautious approach to granting them. For instance, in the Citizens' Committee on the Kobe Coal-Fired Power Plant v. Kobe Steel Ltd., et al, the plaintiffs sought an injunction against the operation of coal-fired power plants, arguing for a health-related personal right to CO2 emissions. The Kobe District Court recognized the legal theory of a health-related personal right but dismissed the case due to the absence of a concrete danger and sufficient legal causation between individual CO2 emissions and personal harm. In the Sendai Citizens v. Sendai Power Station  case, the initial claim was based on the right to peaceful and secure life related to CO2 emissions. However, this was narrowed down to a claim related to air pollution risks from the facility. The Tokyo High Court, in this context, acknowledged the usefulness and public nature of the plant, indicating a balancing act between domestic public benefits and global environmental concerns.

a. Challenges in Establishing Non-Pecuniary/Injunctive Remedies:

i. High Threshold for Proving Concrete Danger and Causation:

Courts in Japan have set a high threshold for proving a concrete danger to life, body, and health, as well as establishing a direct legal causation between individual emissions and individual harms.

ii. Judicial Cautiousness:

Courts are generally cautious about admitting new rights, such as the right to a peaceful and secure life as an injunctive cause of action in climate change litigation. This reflects a concern over potentially opening the floodgates for numerous injunctions based on less tangible environmental risks.

iii. Balancing Domestic Public Benefits and Environmental Harms:

Courts also consider the balance between the public benefits provided by energy sources like coal-fired power plants and the global environmental harm they cause, complicating the justification for injunctive remedies.

b. Developments in Legal Theories for Injunctive Remedies:

i. Expanding the Scope of Personal Rights:

There is an ongoing attempt to expand the scope of traditional personal rights to include interests like living peacefully without fears or serious concerns in a healthy environment. This expansion aims to establish new legal grounds for injunctive relief.

ii. Right to Stable and Healthy Environment:

Plaintiffs are increasingly arguing for rights that extend beyond traditional notions, such as the right to continue living in a stable and healthy environment, in an attempt to secure injunctions against activities contributing to climate change. 

KENYA

Kenya's legal framework for environmental and climate change litigation offers a range of non-pecuniary remedies. These include constitutional remedies, actions under the Climate Change Act, and decisions by the National Environment Tribunal. Various cases have demonstrated the judiciary's proactive role in addressing environmental concerns and holding corporations accountable for their environmental impacts.

i. Remedies for Breaches under the Climate Change Act:

The Climate Change Act imposes duties on both public and private sectors to respond to climate change and allows for certain actions when these duties are not upheld. This can include orders to prevent, stop, or discontinue harmful acts to the environment, or directives compelling public officers to take measures against such acts.

ii. Constitutional Remedies:

The Constitution of Kenya enshrines the right to a clean and healthy environment. Enforcement is possible under Article 70, which permits any person to seek redress in court for infringement or threat to this right, irrespective of personal loss or injury. The Environment and Land Court can issue orders or directions to prevent environmental harm or provide compensation for victims. In the case of Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others , the Supreme Court held that the list of appropriate reliefs that a court could grant under Article 23(3) is not exhaustive. Consequently, the court could craft orders aimed at protecting an infringed right.

iii. Remedies by the National Environment Tribunal:

The Tribunal hears appeals against decisions made by the National Environment Management Authority (NEMA) related to environmental licenses or permits. It can issue orders to correct or cease actions impacting the environment negatively. In the Save Lamu & others v National Environment Management Authority (NEMA) & another case , the tribunal played a pivotal role in addressing environmental concerns related to a major development project. The Tribunal's decision demonstrated its capacity to provide non-pecuniary remedies in the form of revoking or modifying licenses.

iv. Reliefs Against Boards and Directors:

Under the Capital Markets Authority Act CAP 485A (CMA Act), under its recommendation 5.3.3 provides that the "Board shall protect, enhance, and invest in the wellbeing of the economy, society, and the environment. If this provision is breached, boards and directors of companies can be held accountable for failing to protect or enhance the environment. Non-compliance can result in imposition of sanctions and penalties as well as other remedies to enforce adherence to environmental standards.

v. Enforcement of ESG Requirements:

Environmental, Social, and Governance (ESG) requirements guide corporate behaviour toward sustainable practices. Although the NSE Disclosure Guidance manual is non-justiciable, the guidelines can avail remedies to aggrieved litigants, through justiciable statutes such as Companies Act No. 17 of 2015 153 and the Public Procurement and Assets Disposal Act No. 33 of 2015. Non-compliance can lead to seeking remedies such as enforcement actions, as such direct for companies to adopt and report on sustainable practices.

NETHERLANDS

In the Netherlands, non-pecuniary or injunctive remedies in climate change and environmental litigation are mainly governed by Article 3:296 of the Dutch Civil Code. This article forms the backbone of injunctive (preventive) litigation, enabling the court to issue orders to prevent or stop violations of legal obligations owed to claimants. It is also noted that the injunctive relief is also forward-looking nature, aiming to prevent or stop potential violations.

It has been used in several landmark cases such as the Urgenda Foundation v. The State of Netherlands , where the court ordered the Dutch State to reduce its greenhouse gas emissions by 25% by 2020 compared to 1990 levels. This case exemplifies the court's power to impose specific, measurable environmental obligations on defendants. Another significant case is the Milieudefensie v. Royal Dutch Shell  case, where the court ordered Shell to reduce its CO2 emissions by 45% by 2030 relative to 2019 levels. The court established a non-pecuniary obligation on a private corporation and not just the state, demonstrating the court's willingness to impose direct environmental responsibilities on corporate entities. Thus, it is noted that injunctive reliefs are particularly important as preventative measures are often more effective and necessary.

NIGERIA

The effectiveness of non-pecuniary remedies in Nigeria's environmental litigation is limited by the judiciary's cautious approach, especially regarding injunctive reliefs. This conservative stance is often due to the significant economic interests tied to the activities of major corporations, particularly in the oil and gas sector. As opposed to injunctions, declaratory reliefs are equitable reliefs granted by a court, in exercise of its discretionary jurisdiction, where it pronounces on the existing and proper state of affairs of the law as it affects the rights and obligations of the parties.

i. Injunctive Relief:

In Nigerian law, an injunction is a discretionary order of the court that restrains an entity from performing a certain activity or, in exceptional situations, mandates a specific action. This form of relief is critical in climate litigation as it can prevent or stop harmful corporate activities contributing to climate change. However, Nigerian courts have historically shown a reluctance to grant injunctions against oil and gas companies to avoid hindering their economic outputs, which are major sources of national revenue. This was observed in the case of Allar Irou v Shell BP Development Company (Nigeria) Ltd.  wherein the plaintiff suffered damage as a result of the defendant's oil operations, and sued for compensation and an injunction against the latter. While the court awarded the damages, it refused to issue an injunction on the grounds that 'it will amount to asking the defendants to stop operating in the area [...]'. Similarly, in the case of Chinda & Ors. V. Shell Petroleum Development Co. Ltd. , the plaintiff's demand for a court injunction restraining the defendant from carrying out further gas flaring activities close to their village, was rejected by the court, stating that: 'The Statement of Claim demands an order that Defendants [Shell] refrain from operating a similar flare stack within five miles of Plaintiffs' village, an absurdly and needlessly wide demand.'

ii. Declaratory Relief:

Declarative relief in Nigeria is an equitable relief where the court pronounces the existing state of the law as it affects the parties' rights and obligations. Although it doesn't compel action or lead to contempt proceedings if ignored, it clarifies the legal status and can deter or incentivize corporations to change their practices. It was observed in the case of Nduul v. Wayo & Ors. (2018)  that for a declaratory relief to be granted, the claimants seeking same must prove - through credible evidence - their entitlement to those reliefs on the strength of their own case, as they are precluded from relying on any admission by the defendant or weakness of the defence, if any. There are two benefits to potential climate litigants, such as (a) by clarifying the rights and obligations of each party, it could deter or incentivize corporations to stop or limit their GHG emissions, and (b) where a defendant acts contrary to a declarative judgment, the claimant can seek an injunction or other coercive remedy against the latter (where such coercive relief is not sought alongside the declarative relief), citing the declarative judgment as evidence. A key case exemplifying the potential of declaratory relief is Jonah Gbemre v Shell Petroleum Development Company Nigeria Ltd and Others, where various declaratory reliefs were granted against the continuous gas flaring by oil and gas corporations, seen as inconsistent with constitutional rights to life and dignity.

NORWAY

Non-pecuniary remedies in Norway e include direct court actions, administrative appeals, the involvement of the Parliamentary Ombudsman, and specific legislation aimed at compensating environmental damages. The key legislations are:

i. Court System and the Dispute Act:

The court system plays a pivotal role in addressing concerns on standing and to challenge administrative decisions or seek enforcement of environmental regulations.

ii. Public Administrative Act:

This act allows for appealing administrative decisions to a superior authority. In climate litigation, this could involve challenging decisions by governmental bodies or agencies regarding environmental policies or projects. If a decision adversely affects the environment, individuals or organizations can appeal to modify or cancel such a decision.

iii. Parliamentary Ombudsman:

The Parliamentary Ombudsman (LOV-2021-06-18-121) provides another non-pecuniary avenue for addressing climate issues. The Ombudsman, focusing on ensuring proper and reasonable treatment of citizens by public administration, can investigate and influence how environmental and climate-related issues are handled, though without decision-making power. Their reports and recommendations, while not binding, often influence government actions and policies.

iv. Tort Law - Joint and Several Liability:

Under Norwegian tort law, particularly Section 5.3 of the Damage Act, there is a principle of joint and several liabilities for environmental damages. In climate litigation, this principle is crucial when damages result from multiple causes (contributory or cumulative causes). It ensures that parties responsible for environmental harm are held accountable, even if their individual contribution to the damage is part of a larger set of causes.

PHILIPPINES

In the Philippines, The Rules of Procedure for Environmental Cases (REPC) governs most of non-pecuniary remedies in climate change and environmental litigation. The REPC provisions (discussed below) are significant as they address the prevention and mitigation of environmental harm. Along with the REPC, the Civil Code governs the remedy of 'abetment of nuisance' and the Forest Reform Code governs the remedy of 'eviction and limitation of property rights'.

i. Writ of Kalikasan:

This legal remedy designed for environmental protection allows Filipino citizens to file an action for violations or threats of violations against their constitutional right to a balanced and healthful ecology. The remedies under this writ include orders to cease environmental damage, directives for environmental restoration, and ongoing compliance monitoring. The case Indigenous Cultural Communities of BICAMM Ancestral Domain v Office of the Secretary of the DENR  a landmark case where the Supreme Court granted the writ, protecting the indigenous communities against harmful mining activities. This remedy focuses on corrective and preventive measures rather than compensation or fines.

ii. Writ of Continuing Mandamus:

This remedy compels government agencies to perform their statutory duties of environmental protection over time. It enforces continued compliance with environmental laws and is particularly relevant where environmental damage is ongoing or the risk of recurrence is high. It also underscores the commitment to ongoing environmental preservation beyond the court's judgment. An example is the case Concerned Residents of Manila Bay vs. MMDA, et al. , where the Supreme Court issued a continuing mandamus directing several government agencies to clean up, rehabilitate, and preserve Manila Bay.

iii. Reliefs in a Citizen Suit:

As per Rule 5 of RPEC the court may grant various reliefs in a citizen suit, including protection, preservation, or rehabilitation of the environment. In addition, the violator may be required to submit a rehabilitation or restoration program at their own cost. Additionally, the Temporary Environmental Protection Order can be granted. This is similar to an injunction, and it can be granted in environmental cases to preserve the status quo pending the resolution of the case. It can be made permanent as part of the judgment in a citizen's suit. The case of Resident Marine Mammals of the Protected Seascape Tañon Strait vs. Secretary Angelo Reyes, et al.  is a landmark case where the Supreme Court granted the writ, protecting the marine environment against harmful exploratory and extractive activities.

iv. Confiscation and Forfeiture:

In environmental law violations, tools, equipment, or improvements used in the violation can be confiscated, and any improvements can be forfeited to the government.

v. Eviction and Limitation of Property Rights:

The Forestry Reform Code provides these remedies that serve to prevent recurrence of violations and to restrict the misuse of environmental resources. They emphasize the stewardship of environmental assets over private property rights. Thus, to prevent recurrence of environmental law violations, offenders can be evicted, or their property rights can be limited.

vi. Abatement of Nuisance:

The Civil Code allows for the abatement of public and private nuisances, including environmental hazards, by individuals or authorities. This involves the removal of the thing causing a public nuisance, which can be executed without judicial proceedings under specific conditions. This remedy focuses on reducing immediate harm rather than compensation

vii. Cancellation of Permits and Licenses:

This penalty involves revoking the legal ability to exploit or use environmental resources, directly addressing the root cause of certain environmental harms.

viii. Arrests and Criminal Action:

While primarily a punitive measure, arrests and criminal actions serve as a deterrent and a means to immediately halt ongoing environmental violations.

ix. Suits and Strategic Legal Action Against Public Participation (SLAPP):

The RPEC defines SLAPP as 'an action whether civil, criminal or administrative, brought against any person, institution or any government agency or local government unit or its officials and employees, with the intent to harass, vex, exert undue pressure or stifle any legal recourse that such person, institution or government agency has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights.' This defence is designed to protect individuals and organizations involved in environmental litigation from harassment and legal intimidation. It supports the broader goal of environmental justice by safeguarding the legal process.

POLAND

The non-pecuniary remedies in Polish law mainly revolve around the abatement of nuisances, protection of personal interests, and preventive injunctions.

i. Action for Abatement of a Nuisance (Article 222 § 2 in conjunction with Article 144 of the Polish Civil Code):

This remedy involves action to abate nuisances that affect the use of property, which can include environmental nuisances.

ii. Request for Abatement of the Threat to Personal Interest (Article 24 in conjunction with Article 448 of the Polish Civil Code):

This provision allows for action in cases of violation of personal interests due to environmental harm.

iii. Preventive Injunctions (Article 323 of the EPLA):

Allows for injunctions to cease activities that cause environmental damage and, if damage has occurred, to take steps to repair it.

The cases of ClientEarth v. PGE GiEK  and Greenpeace Poland v. PGE  are prominent examples demonstrating the application of these remedies in practice. In these cases, both the NGOs sued the company PGE GiEK, which is one of the biggest carbon polluters in Europe. The plaintiffs requested injunctions for the company to cut greenhouse gas emissions by 2030. These cases illustrate the use of preventive injunctions under Article 323 of the EPLA in corporate climate litigation. Similarly, the Citizens' Suits Against the State Treasury  involved citizens seeking rulings to compel the government to take decisive action against climate change. The demands include achieving climate neutrality by 2043 and reducing greenhouse gas emissions by at least 60 percent by 2030 compared to 1990 levels. While these cases are against the State Treasury, they demonstrate how non-pecuniary remedies, such as injunctions for specific governmental actions, can be sought in climate litigation.

UNITED KINGDOM 

In the UK, non-pecuniary remedies are such as injunctions have the potential to bring in corporate conduct rather than just monetary compensation to claimants. The report notes that the courts have the potential to grant targeted or specific injunctions. This could include orders to suspend operations pending environmental restoration or the installation of carbon removal technologies, or requirements for other improvements allowing operations to continue while addressing environmental impacts. In the ClientEarth v. Shell's Board of Directors  case, the court found the proposed injunction for Shell to develop a new climate risk strategy and comply with the order of the Dutch court in Milieudefensie case was not sufficiently precise and unworkable due to its likely 'serious impact' on the defendant. However, this doesn't rule out the possibility of more targeted injunctions being granted in future cases.

Another aspect that is discussed is the option for claimants in contract cases to ask for an order of specific performance, compelling the defendant to deliver on what they promised under the contract. While there is limited scope for this in English law, particularly in contracts for services, it remains a potential non-pecuniary remedy. Finally, in unjust enrichment cases, claimants may be entitled to proprietary restitutionary remedies, like orders declaring that the claimant has a new ownership or security interest in property held by the defendant, or remedies such as tracing into the defendant's assets, or asserting a lien over an asset.

UNITED STATES

Injunctions are the most common non-pecuniary remedies in the United States. For instance, in the First Wave of litigation, in the case of AEP v Connecticut , an injunction was sought in order to cap CO2 emissions and decrease them on an annual basis moving forward. This type of remedy has not been sought or replicated in other cases. In the Second Wave, in City of New York v. Chevron Corp. , the claimant, in addition to monetary damages, sought an injunction to abate the public nuisance and trespass should the defendants fail to pay the damages for past and permanent injuries. The case, however, was dismissed.