In Qatar, 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 cases can be explained by: (i) litigation is not a driver for change in Qatar; (ii) political and legislative interventions are driven solely by governmental regulation and enforcement; (iii) there are no legal mechanisms that enable litigation on climate change issues.
Under the Qatari Civil Code or Environmental Protection Law, individuals do not have standing to bring cases against private actors for climate change, social justice, pollution or other environmental issues.
Only the executive and legislative branches reserve the right to bring cases against private actors on climate change grounds.
In Norway, there has not been any case in which an individual has brought a private actor to Court for allegedly breaching the law by carrying out operations that contribute negatively to climate change.
The main reasons for the lack of these kinds of cases are (i) high costs associated with accessing courts, and (ii) traditional judicial deference to public authorities’ evaluation concerning permitted activities carried out by private actors. However, future cases could be envisioned on the following grounds.
First, citizens (or a citizen group) may rely on administrative law by challenging the permit issued for the specific activities carried out by private actors. Hence, litigation would be against the permitting authority, with indirect effects on the private actors (supra Scenario 2). For example, plaintiffs can challenge the permit due to a level of project emissions that is not in line with the national or global carbon budget. However, it is unsure whether Norwegian courts would consider scope 3 emissions, namely the emissions derived from burning Norwegian oil and gas abroad. These were acknowledged as legally relevant in Greenpeace Nordic Ass’n and Nature & Youth v Norway Ministry of Petroleum and Energy (in the second and third instances), but the courts stopped short of mandating a calculation for the specific project and their legal adjudication as to the validity of the decision at issue.
Second, citizens (or a citizen group) may rely on tort law by bringing an action against industrial operators in order to request injunctive reliefs and/or damages claims in civil courts. In principle, the Neighboring Properties Act allows lawsuits when damage or nuisance on a neighboring property is unreasonable or unnecessary. Injunctions are impermissible when the permit is formally approved under the Pollution Control Act, whereas the right to compensation applies. Only economic loss may be compensated as a rule of civil liability. However, principles such as the polluter pay principle may practically lead to compensation also for damage on the natural environment. The concept of neighboring property is construed liberally in Norway as to include the neighborhood in general. Individuals should have property links with the neighborhood where the industrial installation operates. However, plaintiffs seem more likely to succeed by grounding their request on the detrimental health effects of the emissions (e.g., emissions of the aluminum sector), rather than on the danger of GHG emissions per se, given that electricity is mostly generated by hydropower.
Second, citizens (or citizen group) may rely on criminal law. In fact, the State Nature Inspection and Økokrim can start a criminal investigation motu proprio or as prompted by individuals. If a permit had been issued, normally the permit should be breached for the investigations to start. Intentional or negligent conduct resulting in significant pollution is punished with imprisonment up to 15 years. Imprisonment up to 6 years is imposed for intentional or grossly negligent conduct reducing the natural stock of protected organisms that are endangered by national or international threat or inflicting considerable damage on protected areas, and this threshold seems high.
With specific regard to pension funds, the funds’ beneficiaries can in theory request climate change information and assessments and challenge some of the funds’ investments on the grounds of their responsibility in supporting climate-endangering activities or insufficient due diligence. Young beneficiaries would be stronger plaintiffs as today’s investments in fossil fuel will damage their pensions (e.g., for the risk of stranded assets) and quality of life. Norwegian citizens virtually hold a stake in the world’s largest fund—the so-called Oil Fund (Norway’s sovereign wealth fund). Given the Oil Fund’s recent divestment initiatives and its role in financing the Norwegian welfare state, successful litigation may be hard. Banks have been limned by Norway’s divestment movement for their lending support of, e.g., the Dakota Access Pipeline, which they eventually dropped.
In terms of business and human rights, Norway passed the Transparency Act in June 2021, a due diligence law that has made disclosure and due diligence obligations mandatory, including when the effects of business activities violates human rights encompassing the right to environment. Yet, this extension of obligations to environmental matters is implicit. This law has been drafted and enacted under the auspices of the Ministry of Children and Families and applies to larger companies that are registered in Norway and offer goods and services in Norway, as well as larger foreign enterprises that offer goods and services in Norway and are subject to taxation in Norway.
Nigeria has experienced litigation challenging private actors for their climate unfriendly operations.
In addition to the human rights grounds that was used in Gbmere v Shell Petroleum Development Company Nigeria Ltd and Nigerian National Petroleum Corporation and Ors, the law of torts has been used. In Chinda v Shell-BP, the Plaintiff sought an injunction against the defendant’s gas flaring activities, which had contributed in destroying his land, houses and economic trees. The court however declined to grant an injunction.
Considering their pro-economic stance, Nigerian courts are more likely to grant compensation rather than injunction. This can be seen from the other tort-based environmental cases such as Allar Irou v Shell BP Development Company (Nigeria) Ltd, where the Plaintiff suffered damage as a result of the Defendant’s oil operations and sued for compensation and injunction. Like in the Chinda case, the court declined to grant injunction, but granted compensation for the damage suffered.
When it comes to standing, the plaintiff must be able to prove the direct injury to the person or community’s wellbeing resulting defendant’s actions to have standing in tort cases (Chinda v Shell-BP).
Whilst there has been climate litigation against private actors, a number of these cases fail because plaintiffs are unable to discharge the burden of proof, as the scientific evidence required is expensive and time consuming. The other reason is the pro-economic stance taken by courts.
There have been no cases brought against private actors in Mexico for failing to reduce their GHG emissions or damages relating to climate change. No cases have been brought against pension funds investing in climate change unfriendly portfolios either.
That said, it should be noted that the energy market in Mexico is dominated by major state-owned companies (i.e. Petróleos Mexicanos (PEMEX) and Comisión Federal de Electricidad (CFE), oil and electricity producers, respectively) whose emissions surpass those resulting from private companies. Individuals have targeted their activities through public policy litigation (see Scenario 1) and may directly challenge them through private litigation strategies in future.
Individuals can bring a case against private actors based on the Federal Environmental Liability Law and the Federal Code of Civil Procedures if they wish to target their responsibilities for climate change mitigation and/or adaption measures. These laws can be invoked to remedy personal property damage or injury caused by climate change related events. The Federal Environmental Liability Law grants standing to individuals living in the community adjacent to the environmental damage (degraded land, polluted watercourses, landfills, etc.), and to non-profit environmental organizations, when they act on behalf of an inhabitant of the affected community (article 28, sections I and II). The Federal Code of Civil Procedures establishes that collective actions can be exercised by the representative of a community made up of at least thirty members, and by non-profit environmental organizations legally constituted at least one year prior to the time of filing the legal action (article 585, sections II and III).
The Federal Environmental Liability Law (Articles 13, 14) and the Federal Code of Civil Procedures (articles 604, 605),provide a general framework torepair environmental damage, by establishing that the judge has the ability to condemn the defendant and enforce a requirement to restore the environment to the state it was in prior to their interference. This can be implemented through a requirement for defendants to facilitate environmental regeneration efforts such as reforestation and soil restoration initiatives.
However, currently there is no precedent that has been set for how this could be developed in the area of climate change damages. In this context, a human rights approach may be used to redress climate change damage, keeping in mind the pro personae principle and the conventionality control enshrined in article 1 of the Mexican Constitution.
The Save Lamu & Others v NEMA & Another was also filed against a private actor (the project owner) for failure to undertake proper EIA study in accordance with statutory and constitutional requirements. In addition, a case against private actors for allegedly breaching the law by carrying out operations that contribute/likely to contribute negatively to climate change could be filed based on the following grounds:
- Human rights: The constitution guarantees the right to clean and healthy environment and this right can be enforced against private entities since the Constitution allows for horizontal application of rights (Satrose Ayuma case).
- National climate change law: Plaintiffs can also pursue a claim under Section 23 of the Climate Change Act on the grounds that the private entities’ actions have or are likely to adversely affect mitigation or adaptation efforts or for violation relating to climate change duties. The Climate Change Act and Environmental Management and Coordination Act impose duties on private entities, including prescribed emission limits that should not be exceeded and a requirement of installation of technologies to monitor and mitigate/control GHGs.
- The third option could be to pursue a tort-based cause of action. However, this is likely to be more challenging than the other two grounds because in tort-based cases the Plaintiff has to prove they suffered an injury or loss to themselves or their property (Kenya Port Authority v East African Power and Lighting Company) and prove that said injury or loss is a result of the defendant’s actions (David Ndetei v Orbit Chemicals Industries Limited).
For constitutional claims and claims under Section 23 Climate Change Act, the standing requirement is relaxed and any person in Kenya can institute proceedings in Court without the need to demonstrate that any person has incurred loss or suffered injury (Art. 22 & 70(3) Constitution; Section 23(3) Climate Change Act; Moffat Kamau & 9 Others v Aelous Kenya Limited & 9 Others).
In the tort-based cases, with the exception of public nuisance tort, plaintiffs are required to allege an injury/loss resulting from the defendant’s actions to have standing (Kenya Port Authority v East African Power and Lighting Company). The tort of public nuisance is however subject to the liberal standing requirements under Art. 70 of the Constitution and Section 3 of Environmental Management and Coordination Act (Edward Nyaoga Onsongo v Job Mekubo Mogusu).
The remedies the court may grant include: compensation, injunction to prevent, stop, or discontinue the act or omission and orders compelling a public officer to take measures to prevent or discontinue the act or omission (Sec. 23(2) Climate Change Act; Art. 70(2) Constitution).
The lack of litigation against private actors could be attributed to the high costs of litigation particularly in private law cases i.e. lawyer’s fees, filing fees, and the likelihood of paying the cost of litigation for unsuccessful claims. Additionally, climate change litigation is nascent even by global standards and issues relating to climate change in Kenya are canvassed in other types of litigation.
Climate litigation in India has been largely focused on public actors; however, the outcomes in those cases also inform cases against private actors. The National Green Tribunal Act, for instance, does not differentiate between public and private actors in terms of remedies.
Legal action against private actors may be taken where they have violated statutory provisions and infringed a citizen’s right to the environment. Although there is no particular statutory obligation requiring private actors to take actions in specific conformity with India’s NDC targets, it could be argued that major GHG emitters – e.g. thermal power plants – contribute to the ‘environmental consequence’ of climate change, thereby establishing the National Green Tribunal’s jurisdiction on climate claims.
A case where a private actor has been ordered to take mitigation or adaptation measures based on human rights grounds has not yet materialised. Of particular relevance for future litigation are claims against private actors on grounds of inadequate adaptation measures, comparable to the project-specific litigation against public actors.
Cases against private actors may challenge regulatory approval granted to them which does not adequately – or at all – consider climate impacts. Cases may also be filed if conditions laid out in the regulatory approvals – which may be relevant to climate change mitigation or adaptation – have not been complied with.
Individuals in Bolivia have not brought cases against private actors for operations that contribute negatively to climate change.
Private actors have an obligation to protect the environment (article 247 of the Bolivian Constitution) by meeting the requirements of environmental regulations (i.e. completing EIAs and ensuring public participation). When private actors breach these environmental regulations, individuals could file a claim before an administrative or judicial body against these actors for non-compliance of their statutory requirements.
In some cases, private actors’ operations are permitted to contribute to air pollution within a set limit written in environmental regulations. However, even if this limit is not breached but still causes environmental harm, individuals have the right to file a constitutional action (Popular Action) based on every persons’ right to a healthy environment or the duty to “protect and defend the environment suitable for the development of living beings.”
The non-compliance with the environmental regulation could give rise to administrative, civil and criminal responsibilities, depending on the seriousness of the breach. It could also result in
administrative sanctions (i.e. fines, stoppage of activities or withdrawal of authorization until the requirements are met), reparation and compensation for environmental damages, and even imprisonment of the legal representatives of the operator. Importantly, article 347.I of the Constitution provides that “[l]iability will be declared for historic environmental damages, and liability for environmental crimes shall not lapse”.