Uruguay has not witnessed climate change litigation against a private actor. There is no constitutional, legal provision – even regulations or Decrees – that contain any prohibition against private actors carrying out activities, which negatively affect climate change.

However, claimants could bring a case against a private actor where their operations allegedly contribute to climate change for non-compliance of procedural obligations, such as: environmental impact assessment or previous public participation established by the Constitution, Law or other regulations.

In order to be granted standing, claimants must fulfil the procedural criteria established by Article 42 of the General Process Code.

Whilst the Court or Tribunal does not have the power to restrain or prohibit the activity itself, it can provide remedial action by granting full reparation

Whilst the Court or Tribunal does not have the power to restrain or prohibit the activity itself, it can provide remedial action by granting full reparation on individual torts.

Due to the lack of any specific provisions, and the limitations of the Environmental Liability Act and of private law, Spain has not yet witnessed any litigation against private actors for climate change related damage.

The legal basis for filing a potential claim for climate change related damage against private actors is actually rather weak. Despite of the fact that the Spanish Constitution establishes that those who infringe the right and duty to an adequate environment will have the obligation to restore damage, there is no specific statutory development of such a duty to restore but merely to a partial extent. The Spanish legislature transposed the Environmental Liability Directive (Directive 2004/35/CE) into national law by means of the Environmental Liability Act 26/2007 (LRM), but this instrument fails to provide to private persons any legal standing to sue. In this scenario, the only available path would be to instigate public authorities to act against the private actor and to challenge the possible inaction.

In the lack of specific provisions, the only way to sue private actors is through the mechanism of liability in tort (Spanish Civil Code). Individuals may invoke the general provisions on liability for fault (Art. 1902 CC) or strict liability (Art. 1908 CC).

However, in this context, Spanish courts are usually rather demanding as regards the degree of certainty for a causal link to be established between the defendant’s conduct and harm. Therefore, it is not entirely certain whether a Spanish court would be satisfied with the mere fact that the defendant’s action leads to a rise in GHG emissions. On that note, the LRM makes clear that liability for damage caused by so-called ‘diffuse pollution’ can only exist on the basis of a causal link between damage and the activities of specific operators. Moreover, air is not included as an environmentally protected resource by the LRM.

At any rate, Spanish courts usually inquire into which is the damage suffered by the alleged victim on an individual basis. A merely collective damage (like climate change) is not sufficient to trigger this kind of liability, with the exception of damage to consumers (Article 11 of the Civil Procedure Act). The prevailing opinion is that standing to sue for collective harm cannot be extended as to include environmental litigation as well. It is also open to question whether class actions are fully adequate in regard to compensation for damage to the environment such as in the case of climate change.

Regarding preventive measures, injunctive remedies are not statutorily provided under Spanish law. A mere threat of damage is not sufficient to trigger tort mechanisms. However, the possessor of a good may request the protection from the court whenever there is a possibility that she may be perturbed in it. It is unclear whether the GHG emissions may amount to a perturbation of possession to that regard. Similarly, the owner of land may obtain injunctive relief if it is established that there is a reasonable probability of an interference with the use or enjoyment of that land by a third person. It may be argued that polluting emissions may thus affect this use or enjoyment by way of a flexible interpretation of Article 1908 CC and Article 590 CC. By contrast, the LRM empowers public authorities to adopt any interim measures needed to prevent the pollution from becoming worse, or to prevent damage from being caused, and ‘in particular, to protect human health’. Henceforth, individuals could induce authorities to act. Concerning lenders liability, on one hand, a conditio sine qua non causal link should be established as it stipulates that the damaging activity is possible only because of the funding provided by the lender’s specific pension fund. On the other hand, a second level of legal analysis is required, namely, to check whether damage is attributable to the defendant on a legal basis (objective imputation test), for instance, because the latter increases the risk for damage to happen. Such a test may fail in the case of lenders liability.

In spite of the previous, the statutory definition of the liable operator is quite broad under Spanish law: any person who has a “determining economic power over the technical operation”. So, it makes it possible to hold a pension fund, for instance, liable for environmental damage, under the conditions described above. However, they will escape liability if it can be established that they are “external” to the activity carried out by the liable operator.

Italy has not experienced litigation against private actors for their operations that allegedly lead to more climate change. Nevertheless, a case could be based on the following grounds;

  • EU Environmental liability law: Environmental Liability Directive (Dir. 2004/35). It defines “damage” as “a measurable, adverse change in a natural resource or a measurable impairment of a natural resource service which may occur directly or indirectly” (Art. 2.2). Considering that it specifies that the damage can be caused through “airborne elements”, it can be applied to climate change-induced impacts.

 The Directive does not, however, apply to cases of personal injury, damage to private property or any other economic loss (Recital 14, Dir 2004/35).

Standing: To bring a case against a private actor, an individual must allege to have suffered a personal damage (Art. 2043 Civil Code). In case of damage from climate change, the plaintiff would have to prove the causal connection between such individual damage and climate change, and between the actor’s conduct.

Moreover, the Ministry for the Environment has legal standing to sue private subjects considered to be responsible for climate damage when they fall under the definition of environmental damage pursuant to the EU Directive 2004/35 (integrated into Italian Environmental code). Conversely, persons affected or likely to be affected by environmental damage cannot directly sue the responsible actors under the directive but can submit observations and request the Ministry to take action.

Remedies: Under tort law, the court can grant compensation to the injured party (Art. 2043 Civil Code). Courts can also grant orders for measures to prevent environmental harms. (Decision no. 641/1897, Constitutional Court [1987]).

Under the Environmental Liability Directive (Annex II of the Dir. 2004/35), remedies for environmental damage can be restorative, complementary, or compensatory. Compensation consists of “additional improvements” to the protected environment and not financial compensation to the members of the public (art. 1.1.3 Annex II).

Under Article 311 of the Environmental Code, an action by the Minister for the Environment should aim at restoring the environment. Consequently, monetary remedy must be provided only when restorative measures have been taken in an incomplete way or in a different form to what prescribed by the Minister and only to pay the costs of completing or correcting the restoration (art.5 bis D.L 135/2009).

There have been no cases against private actors for climate-related damages.

One reason for this is the lack of specific climate laws. However, based on the existing environmental case-law, potential grounds on which private climate litigation might be based are:

  • Constitutional Grounds: In 2008, the civil Chamber of the Court of Appeals decided  caseNo. 22?-1089/08 regarding the alleged violation of the constitutional rights to life and to a healthy environment of a family living in the vicinities of a mine (“Vizeyska”) maintained by a state enterprise. The civil court recognized that the enterprise had violated the family’s constitutional rights by failing to diligently maintain the mine and failing to resettle the family.
  • National Environmental Law: The Court of Appeals in case No. 22?-1089/08 upheld the decision taken by the civil court in the first instance on national environmental law grounds. The main legal grounds were the alleged violation of several environmental laws, including the Land Code of Ukraine, the state sanitary rules on planning and building of settlements, and the law on atmospheric protection.

Remedies: in the previous case law, complainants suing private actors over environmental damage have been seeking for both injunctive (i.e., ending damaging activities) and compensatory relief. In the environmental lawsuit concerning the Vizeyska mine, the plaintiffs requested to put an end to the activity of the mine, as well as moral damage and sanctions for the inability to perform ordinary activities. The Court acknowledged that the state enterprise had violated the law by failing to organize adequate sanitary zones and resettle the family. Moreover, it provided compensation for the moral damage.

The Netherlands is experiencing climate change litigation against a private actor in Milieudefensie et al. v. Royal Dutch Shell. The claimants alleged Shell’s contributions to climate change violated their duty of care under Dutch law and human rights obligations, seeking a ruling from the court ordering Shell to reduce their CO2 emissions by 45% by 2030, compared to 2010 levels, and zero in 2050 in line the Paris Agreement.

Regarding standing, Dutch civil law enables associations to bring class actions against private entities.  Therefore, in Milieudefensie et al. v. Royal Dutch Shell, the plaintiffs claimed their standing based on the same legal norm used in Urgenda (Art. 3:305a Dutch Civil Code), which granted the claimants standing as representatives of present and future generations. Furthermore, under Dutch civil law, individuals are entitled to bring class actions only when they have a sufficiently concrete individual interest.

The plaintiffs claimed that the company had violated its social duty of care. More precisely, they resorted to the following legal grounds:

  • Social standard of care derived from unwritten law: Under Dutch tort law (Art. 6:162 section 2 Dutch Civil Code), a tortious act can also be defined as “a violation of what according to unwritten law has to be regarded as proper social conduct.” When looking for a standard of unwritten law, different legal sources, including principle of laws, juridical views and customs, can be used. In Milieudefensie et al v. Shell, the plaintiffs interpreted the standard of care on the following legal grounds:
    • Kelderluik criteria (as interpreted in Urgenda): which was taken from the 1965 Supreme Court on damage caused unknowingly by creating a dangerous situation (Cellar Hatch case) and is used to determine whether a conduct equates to unlawful endangerment. The claimants explicitly referred to the interpretation of such criteria in the Urgenda case. The plaintiffs claimed that in Urgenda the Court had formulated a legal standard of a general nature, applicable in the climate context to all the “injurying parties” that fulfilled the Kelderluik criteria in a similar way to the state, and that such standard could be applied to Royal Dutch Shell.
    • Human rights, namely the right to life (Art. 2 ECHR) and private and family life (Art. 8 ECHR), which, based on the decision in Urgenda, the Court concluded that offer protection against dangerous climate change.
    • Soft law, namely the following sources as they had been endorsed by Shell:
      • UN Guiding Principles on Business and Human Rights (United Nations Human Rights Office of the High Commissioner, 2011), which was decisive in defining the content of the company’s standard of care. This included: avoidance of causing or contributing to human rights impacts through their activities and to address adverse impacts when they occur; and, seek to prevent or mitigate adverse impacts that are directly linked to their operations, products, or services by their business relationships, even if they have not contributed to those impacts. 
      • UN Global Compact
      • OECD Guidelines for Multinational Enterprises.

Based on the above, the plaintiffs claimed that Shell has an obligation to contribute to preventing climate change through the corporate policy it determines for the company group. The District Court, in its decision in May 2021, agreed with the plaintiffs that Royal Dutch Shell’s obligations ensued from the unwritten standard of care, that is, “the due care exercised in society”.

Finally, regarding Royal Dutch Shell specifically, the Court identified the following obligations:

  • an obligation of result to reduce the emissions deriving from Shell group’s activities
  • a best-efforts obligation, regarding Shell’s business relations, and end users, to “take the necessary steps to remove or prevent the serious risks ensuing from the CO2 emissions generated by them and use its influence to limit any lasting consequences as much as possible.” (Based on the previous considerations, the court ordered Royal Dutch Shell to limit or cause to be limited its scope 1, 2 and 3 emissions– as due to the group’s activities (scope 1 emissions), its business relationships (scope 2 emissions), and the sold products  (scope 3 emissions)– by at least 45% at end of 2030, relative to 2019 levels.)

The Netherlands also witnessed climate change litigation against a private actor in 2017, when several complaints were submitted to the National Contact Point reporting on a violation the OECD Guidelines for Multinational Enterprises against the Dutch multinational ING Bank. (Complaints against ING Bank by Oxfam Novib, Greenpeace, BankTrack en Milieudefensie)

Under Dutch tort law, claimants can bring a tort claim by proving they have suffered damage caused (to some extent) by the private actor.

Claims can then be based on the following grounds:

  • Violation of a duty of care under Dutch tort law (Dutch Civil Code, Art. 6:162): Although the Akpan v. Royal Dutch Shell PLC case was only successful against the Nigerian subsidiary (and not the parent company in the Netherlands), the Court ruled upon a violation of duty of care. The Court deemed the subsidiary liable for negligence due to the lack of preventive measures.
  • OECD Guidelines for Multinational Enterprises: These guidelines include the duty to adopt ‘measurable objectives’ and ‘targets for improved environmental performance’ and to disclose greenhouse gas emissions, both ‘direct and indirect, current and future, corporate and product emissions’. Complains can be brought before the National Contact Point. Successful complaints might even give rise to further climate litigation before domestic civil courts.

In Canada, there has been litigation by individuals against a private actor alleging that conduct that has contributed negatively to climate change breached the law.

The Volkswagen case was brought directly against a private company on the grounds, in part, of climate change impacts. This class action was brought on behalf of all citizens of the providence of Quebec against Volkswagen regarding the diesel motor gas emission fraud scandal, therefore seeking punitive damages under the Quebec Charter and the Quebec Environment Quality Act. In certifying the class, the Quebec Superior Court found that as Volkswagen admitted to intentional fault for exceeding regulated standards, there were grounds for the general population for punitive damages under the Quebec Charter.  However, for purposes of compensatory damages, the Court found that the damage was either inexistent or hypothetical for non-owners of a diesel car.

Another case, although not specifically about climate change impacts, potentially lays a pathway to future such claims. InAraya v. Nevsun Resources Ltd, the case concerned human rights violations committed against workers at Eritrean mine that was majority-owned by a Canadian firm, Nevsun Resources. The claims for civil damages resulting from a corporation’s alleged breaches of customary international law and jus cogens, international peremptory norms, survived a procedural motion to strike. The appellate Court pointed out that arguments based on corporate actors’ violations of customary international law could be receivable. Thus, one can consider that if climate change-induced human rights violations become customary international law or jus cogens, they could have standing at Canadian Courts.

For claimants to successfully maintain any action for liability against a private actor, the claimant must first demonstrate the required interest to meet the threshold for standing to bring the case. The claimant must also demonstrate harm.  In Quebec, the harm necessary to establish civil liability could be demonstrated through a claim for extra-contractual liability, advancing a proof of fault, damage, and the causal link between fault and damage. Outside of Quebec, harm necessary for tort liability, which concerns both intentional harms and negligence, would need to show the causal link between damage and wrongdoing in climate change issues.

In Namibia, there has been no case filed against private actors for operations that contribute to climate change. Such cases can however be based on common law of delict (wrongful acts or omission) or nuisance (public and private nuisance).

For standing in such cases, the claimant must show a direct and substantial interest in the matter, and the interest must be current and actual (not hypothetical or remote) (Mweb Namibia (Pty) Ltd v Telecom Namibia Ltd and Others 2012 (1) NR 331 (HC); Uffindell v Government of Namibia 2009 (2) NR 670 (HC)).

The remedies that can be granted by courts include an abatement order to stop the emitting activities and damages to any persons who may have suffered a loss/injury for the activities challenged.

In China, there have been no cases brought against a private actor for allegedly breaching the law by carrying out operations that negatively contribute to climate change. A case could however be based on the following grounds:

  • The Environment Protection Law. This covers a broad spectrum of environmental issues, ranging from protection against pollutants and control of pollutants to the protection of wildlife, and provides basic principles for both preventive and rehabilitative measures. The regulatory measures of this law address water, air, solid waste and noise pollution, and establish a system for environmental management, monitoring, liability and enforcement.
  • The Air Pollution Prevention and Control Law. The statute addresses air pollution, including by corporations. There have been some recent changes that have included controlling the origin and whole process of pollution, regulating the concentration and total amount of pollutants and promoting clean production and circular economy by corporations. While the legislation does not regard GHGs as pollutants, climate change is strongly linked to air pollution and consequently, the legislation can form a basis for climate litigation against polluting corporations.

The Law of the People’s Republic of China on the Prevention and Control of Atmospheric Pollution. Entities are required to adopt measures to prevent or reduce atmospheric pollution (Art. 7) and to monitor their emissions. The national and subnational environmental authorities are mandated to set discharge standards and entities should not discharge pollutants in excess of the set standards (Art. 9 & 23). Project proponents are also required to assess and disclose impacts of the project on atmospheric environment and abide by the standards of discharge of atmospheric pollutants (Art. 18). Noncompliance with this law could lead to an order (by the competent environment authority) to rectify the violation, suspension of production or a fine of between RMB 100 000 and RMB 1 million (Art. 99). Where there is continued violation, a lawsuit can be filed in court against such entities and the court can grant various orders including compensation (All-China Environment Federation V Zhenhua Co, Ltd).

The remedies that could be granted by court and the environmental authority are:

However, standing requirements are narrow with eligibility requirements limited to NGOs. Under the revised Civil Procedure Law and the Environmental Protection Law, environmental NGOs that have been registered with the civil administration department and operated in public environmental protection activities for over 5 years the right to sue polluters in the public interest. However, NGOs still face obstacles in having their cases filed in local courts, such as

  • Assessment of damages: In most cases the burden of proof falls on the plaintiff but in some cases the courts will commission their own assessment (Tengger desert case brought by CBCGDF in 2017).
  • The method of reasoning used by China’s tribunal is difficult to apply, as they do not use the ‘treatment cost estimate’ approach which would be more suitable to climate change litigation (All-China Environment Federation (ACEF) vs. Zhenhua 2015).

The absence of cases could be attributed to:

  • China’s legal system does not allow individuals to bring a case against a public or private actor that allegedly does not comply with climate change obligations (national or international) on human rights grounds; and
  • Environmental rights still have not been recognized by China’s Constitution, enabling citizens (or citizen groups) to rely on.

To date, there are no climate litigation cases against private actors in Finland. Finnish law does not directly set climate change-related obligations on business entities or individuals. Furthermore, it stipulates limits to the requirements that can be imposed on them (e.g. environmental permits may not limit the choice of energy sources). However, there are grounds on which future legal disputes in this area could be based:

  • The National Adaptation Strategy 2022 – although a political text and not legally binding – establishes strategic goals not only for public bodies but also for individuals and businesses. It stipulates that “[w]hen preparing and enforcing laws for business sectors the changes of the climate and the climatic risks shall be taken into account”. Interim targets require actors to evaluate and control climate risks with appropriate tools. Furthermore, adaptation has to be part of planning and operations of private enterprises.
  • The national forest legislation is highly relevant to climate litigation as about 75% of the territory is covered by forest and most of it is owned by private actors. While these forests constitute a large part of the national market, they are also an effective carbon sink to mitigate global warming. The law provides for forest management plans that regulate harvesting and other measures, for which permits are not required. If the requirements set by the law are not met, concessions may be suspended. This means that the forest legislation can be a tool in the hands of citizens to act against private actors who carry out harmful activities for the forests and the environment.

Citizens may claim compensation for environmental pollution under civil law (Environmental Damages Act 737/1994). In this case, they have to prove that climate change would cause environmental pollution. Although environmental pollution is usually associated with short-term changes in the environment, future litigation may convince courts that climate damages or global warming as such represent such pollution.  

In Russia, there have been no cases where citizens (or citizen groups) have brought a private actor to court for allegedly breaching the law by carrying out operations that contribute negatively to climate change.

The absence of such cases can be explained because: (i) private actors are under no legal obligation to limit or reduce their GHG emissions; (ii) of a weak GHG emissions reduction target which is achievable without additional measures or a deviation from a business-as-usual approach; (iii) of the pivotal role the fossil fuel industry plays in the Russian economy and the state’s support of it; and (iv) of a lack of clear norms and standards for private sector environmental obligations.

While there have been no cases brought against private actors for allegedly breaching the law by carrying out operations that contribute negatively to climate change, future cases could be based on the following grounds.

Firstly, citizens (or citizen groups) could claim that a private actor’s operations were unlawful and that an operation that contributed negatively to climate change inflicted harm to health, property or the environment under the Civil Code. In order to realise the right to compensation for harm to health or property, claimants must show that damage has been caused by a legal violation, damage to health or property, causation between action (or lack of) and damage and guilt. For harm caused to the environment, the burden of proof lies with the claimant, who must provide evidence of the environmental harm and a causal link between the climate unfriendly operation and the harm caused.

Secondly, citizens (or citizen groups) could bring a case against a pension fund on the grounds that, by contributing negatively to climate change, their operations acted out of their legal interests and violated their rights. However, there is currently no mention of the need to consider climate change risks or obligations with respect to fiduciary duties.

Under the civil procedures route, full compensation is available for citizens (or citizen groups) who have suffered harm to health or property, or satisfied the requirements for harm to the environment as a result of a private actor’s operation.

*Although in principle these legal avenues represent opportunities for citizens (or citizen groups) to bring a case against private actors, litigating on such grounds is not considered to be an effective or productive pathway for holding them accountable for their contributions to climate change. There are several existing challenges when pursuing legal actions of this sort through the Russian legal system.