Whilst Uruguay has not experienced litigation challenging the government for authorising a specific project that leads to increased emissions or ineffective adaptation, Uruguay has experienced project-specific litigation against the State in the case of Laguna del Garzón bridge. Despite the claimants challenging the construction of the bridge on grounds of its ‘high negative environmental impact’ in an area considered as “protected” by law, the claimants were unsuccessful.

• However, Article 306 of the Constitution and fulfilment of Article 42 of the General Process Code (procedural requirements) provides potential “preventative measures” which could prevent the final construction of projects likely to create ‘high negative environmental impact. Nevertheless, this is difficult to attain as all of the following requirements have to be met in order for the preventative measures to take place:
• Claimants have to prove their rights have been violated;
  • Claimants have to prove that certain damage will occur if the project/activity is allowed to continue; and
  • (Likely but not possible) a warrant of payment is necessary.

Additional avenues to bring claims challenging the government for authorising specific projects that negatively impact the environment could be based on the following grounds:

• Constitutional grounds: Although Article 47 of the Constitution does not provide a constitutional “right to a healthy environment”, it still infers that “environmental protection is of general interest”. It states that acts of “people shall refrain to cause any depredation, destruction and pollution to the environment. The Law will regulate this disposition and shall envisage sanctions against transgressors.” Article 47 provides scope to bring a project-specific claim where these acts negatively impact the environment in the manner outlined above.
• Human Rights: wide interpretation of Article 72 of Constitution, linked with the ratified international Protocol on Economic, Social and Cultural Rights (1988), provides for a “right to live in a healthy environment.” Violation of such a right could provide grounds to base a claim against a public authority for a specific project that negatively impacts the environment, based on strong reasoning of human rights violation. These grounds can only be based on the international treaties on human rights ratified by Uruguay.
• Environmental Impact Assessment: individuals have scope to bring a claim challenging the authorisation of a project that negatively impacts the environment, where the local, municipal or national authority fails to conduct an Environment Impact Assessment as manded by laws and regulations, and causes direct damage to the claimant.

To be granted standing, the General Process Code requires claimants to fulfil procedural requirements, such as proving a violation of their rights or by demonstrating a minimum interest in the case (Article 42 General Process Code). Furthermore, to bring a claim based on human rights violations, based on Uruguay’s ratified international treaties on human rights, individual(s) must prove direct damage has occurred and that they are entitled to claim the fulfilment of the disposition inside a treaty binding between states.

Remedies include a Parliamentary or Executive Power decision nulling/prohibiting activities authorised without EIA that cause direct damage to the claimant.

Project-specific litigation on purely climate change grounds does not currently exist in Spain. This could change soon given recent legislative developments in this jurisdiction which includes a national law on climate change and energy transition (Law 7/2021).

However, as exposed below, there are a number of administrative environmental cases which might serve as precedents for the development of project-specific climate change litigation in the future. In addition, as environmental issues -including climate protection- are increasingly present in urban planning regulations, there is a potential for a rise in climate litigation in this area as well.

In project-specific litigation, plaintiffs may challenge before the contentious-administrative jurisdiction acts or specific administrative decisions that allegedly contribute to climate change (e.g., the authorization of a new airport involving an increase in GHG emissions) or administrative inaction where a legal obligation to act exists. On the other hand, courts may review the breach of the legal established proceedings in the approval of the administrative act (e.g., public participations in authorization of an infrastructure or industry). The challenge would take place, in this context, not for reasons of material legality, but for having omitted or erroneously carried out the necessary proceedings or the duty of motivation of public action.

To have standing, claimants must prove that they hold a “legitimate interest,” which is considered differently depending on the category of “individual” who files the claim. Since the approval of Law 26/2007 of July 18th, which regulates the rights to access to information, public participation and justice in environmental matters, environmental NGOs have standing if they meet three requirements: (i) that the organization has been constituted at least two years before the claim; (ii) that environmental protection is among its statutory purposes; and (iii) that the organization is active in the territory where the environmental damage occurs (Articles 22 and 23). Individuals who act on their own must prove at the time of filing the case that they hold a concrete legitimate interest. In climate change matters, this will not always be easy to prove because of the global nature of both the causes and the impacts of climate change. Only in the matter of urban planning, where a popular action is accepted, may the standing conditions be facilitated.

In this context, it is relevant to note that European and Spanish regulations on environmental assessments require taking into account climate impacts in the approval or modification of certain public and private projects (EIA) or public plans or programs (SEA). It is thus reasonable to affirm the possibility to annul projects, plans or programs adopted which do not take into account these impacts (related to both mitigation or adaptation concerns) or only do so in a defective way.

In addition, there are some specific scenarios which could potentially serve for the development of project-specific climate litigation. The existence of substantive legality issues in urban planning is one of them, as environmental issues are increasingly present in urban planning regulations, including those related to climate change. When this is the case, these plans must be in full congruence with climate protection. If not, their incongruence could lead to litigation.

So far, there have been some cases of an environmental nature which might serve as precedents for the development of project specific climate change litigation in the future. For example, in one case (Decision of the Superior Court of Justice of Madrid of 4.3.2016 (RCA 187/2015)), the Court annulled the modification of Madrid ?s urban plan because the subsequent increase in population it envisaged could “unjustifiably” alter the district’s environmental quality. In another case, the Spanish Supreme Court annulled the adoption of a plan because of its negative impact on surface and groundwater resources (Supreme Court Decision of 11.10.2013, (RC 5161/2010)).

In this field of environmental and urban planning there have also been numerous cases where procedural legality issues have resulted in the annulment of the specific administrative act (authorization) or the plan itself (its approval or modification) for lacking environmental assessments or other requirements (e.g., Supreme Court Decision 17.2.2015 (RC 1005/2013)).

In terms of adaptation to climate change, there is a judicial ruling that expressly mentioned climate change in its legal reasoning, in addition to some other human activities, as contributing to the increase of floods and their negative impact (Tribunal Supremo Decision of 29.3.2017 (case 541/2017)).

As potential remedies, parties can claim before courts (Article 31.1 Contentious-Administrative Jurisdiction Law – LJCA): a) a statement against a concrete public action or omission for not being in accordance with law (e.g., the annulment of the authorization of a new airport involving an increase in GHG emissions) and b) a performance of obligations, when the inaction of the Administration is disputed. If an individualized legal situation and its restoration are recognized in a potential climate change litigation case via the article 31.2 LJCA, damages compensation could be established.

In Italy, there has been no case challenging the government’s approval of projects that leads to increased emissions or ineffective adaptation.

However, a case could be based on breach of environmental impact assessment (EIA) requirements. The EU’s EIA Directive (Directive 85/337 codified by Directive 2014/52), implemented in Italy through a framework legislation (Legislative decree no. 152/2006, known as “Environmental Code”)  requires the EIA process to include an assessment of the effect of the project on the climate (Art. 3 Directive 2014/52). Where the direct and indirect effects of a project on the climate are not included in the EIA process or where EIA has not been validly conducted, citizens can challenge authorization of the project before the administrative court.

Standing: Both individuals and associations can challenge the approval of projects before the administrative judge. To have standing, private citizens must prove the geographical nexus and potential harm arising from the violation of the EIA process. Environmental associations which have been identified as having national character under the Law 349/1986 are exempt from providing evidence of sufficient standing.

Remedies: If the court finds that the EIA has not been validly carried out, any permit, opinion, or license relating to the project may be revoked. If the EIA is found to be incomplete, the authorization for the project may be annulled. Some regional laws also provide for administrative monetary fines, in addition to the penalties envisaged by the Environmental Code.

In Ukraine, there have not been climate cases against specific public authorities’ decisions to approve projects that could lead to an increase in emissions or ineffective adaptation.

The lack of a comprehensive national climate law is an obstacle to this type of climate lawsuits, but the 2017 Environmental Impact Assessment Law could provide a future ground.

In Environment-People-Law (EPL) vs. Cabinet of Ministers of Ukraine and others (2011) (described in scenario 1) the NGO’s complaint against the government and the State Environmental Investment Agency included a request to oblige the State and the Agency to establish and enforce procedures for issuing permits for GHG emissions and to set emissions limits. The grounds relied on by Plaintiffs for this claim was Law 2707-XII on the protection of atmospheric air. Plaintiffs stated that its interests protected under law regarding the protection and preservation of the environment was violated. This claim was dismissed by Kiev District Administrative Court.

Other potential grounds: The law of Ukraine ‘On Environnental Impact Assessment’ (2017) prescribes the obligatory assessment of the impact of a planned activity on the climate, and as such, it may provide a valid legal ground for public project-based litigation in Ukraine.

Regarding standing, Ukraine’s law allows both individuals and organizations to bring lawsuits against public authorities. Particularly, Art. 21 of the Law on Environmental Protection (1995) assigns environmental NGOs the right to appeal to court for the protection of the environment.  Secondly, Art. 6 of the Code of Administrative Justice gives each person the right to bring a case whenever her rights, freedom or interests may be affected by the public authorities’ activity or inactivity.

Regarding remedies, in EPL vs. Cabinet of Ministers of Ukraine and others (2011), plaintiffs asked the Court to oblige the State and the Environmental Investment Agency to develop, submit, adopt, and enforce a procedure on permitting of activities that involve greenhouse gas emissions. The Kiev District Administrative Court dismissed this claim based on its finding that Plaintiffs failed to specify laws or standards that would require the government or its ministries to develop and adopt procedures for issuing permits specifically.

The Netherlands has witnessed several administrative law cases against the commissioning of new coal fired power plants between 2008 and 2016. These concerned the construction of three new coal fired power stations in two locations on the Dutch coast as part of the Dutch energy security policy.

Regarding standing, the General Administrative Law Act provides that ‘interested parties’ may appeal against decisions taken by the public authorities, including authorizations to development projects. (Section 8:1:1). Individuals are considered “interested” when they are directly affected by the decision, whereas environmental organizations  need to prove that the interest they represent, including the general and collective ones, may be affected. (Section 1:2, General Administrative Law Act).

Regarding grounds for project-specific litigation, it should be noted that it is not possible to challenge policies before administrative courts. Moreover, CO₂ emissions of installations cannot be regulated under environmental permits (cf. the EU Industrial Emission Directive), meaning that project permits will not specifically address climate change impacts.

Moreover, NGOs could initiate project-specific litigation on the basis of Dutch and EU nature and conservation law (e.g. the EU Wild Bird and Habitat Directives). It was to these latter grounds that the plaintiffs resorted to, in the cases against the construction of the coal power plants. (Administrative Law Decisions of the Council of State decisions of February 2008, ECLI:NL:RVS:2008:BC5785;4 May 2011, ECLI:NL:RVS:2011:BQ3434;24 August 2011, ECLI:NL:RVS:2011:BR5684; 30 October 2013, ECLI:NL:RVS:2013:1694; 27 January 2016, ECLI:NL:RVS:2016:170, District Court of Amsterdam, 7 April 2008, ECLI:NL:RBAMS:2008:BC9281).  In Stichting Greenpeace Netherlands v. Board of Zeeland Provincial Executive, the environmental NGO claimed that due to the plants’ vicinity to protected areas under the EU Birds and Habitat directive, the projects’ impacts needed to be investigated before authorizing the plants’ construction.  (Administrative Law Division of the Council of State decision of 28 February 2008, ECLI:NL: RVS:BC5785) Along with other NGOs, Greenpeace appealed the revised decisions that followed, based on the same legal grounds, until their final judicial uphelding in 2016.

As for the remedies, under the administrative law, courts might dispose the annulment of the decision, whenever the appeal is admissible and well-founded, or provisional measures, where speed is essential to preserve the interests involved (sections 7:25 and 8:81 of the General Administrative Law Act). In the mentioned cases, the plaintiffs asked for either a preliminary injunction, i.e., to stop the construction of the power plants until further investigation, or for the annulment of the decision. As an example, in Stichting Greenpeace Netherlands v. Board of Zeeland Provincial Executive, the Council of State agreed to stop the construction, while demanding to research on the project’s impacts on the protected species. ((Administrative Law Division of the Council of State decision of 28 February 2008, ECLI:NL: RVS:BC5785) In 2011, the new decision authorizing the construction was annulled based on its failure to properly consider the project’s adverse impacts, including the emissions of sulphur and nitrogen oxide. (Administrative Law Decision of the Council of State of 24 August 2011, ECLI: NL: RVS: 2011: BR5684) Finally, in 2016 the Council of State put an end to the legal saga, considering that the municipal decision had thoroughly considered the conservation requirements in its impact assessment (27 January 2016, ECLI:NL:RVS:2016:170)

Further project-specific litigation to challenge insufficient (or the lack of) adaptation measures could rely on Article 21 of the Dutch Constitution(i.e. the economic right to the ‘liveability’ of the country) to interpret broad open norms within the regulatory and administrative regime (e.g. within spatial planning and the environment or flooding). Moreover, litigation against carbon-intensive projects could rely on the revised EIA directive, which includes climate change among the factors to be considered in a project’s impact assessment (art. 3 lett. C EU Directive 2014/52).

Canada has experienced litigation challenging a specific project on the grounds that it contributes negatively to climate change or that fails to adapt adequately to climate change.

In Pembina Institute for Appropriate Development v. Attorney General of Canada, environmental organisations challenged the recommendation of the Joint Review Panel to approve Imperial Oil’s Kearl Oil Sands project, which was the precursor to the authorisation by the Minister of Fisheries and Oceans. In a 2008 decision, the Federal Court concluded that the Joint Review Panel, of both the federal and Alberta governments, erred by failing to provide an explanation or a rationale for its approval.

In another case, Ecology Action, et al. v. Minister of Environment and Climate Change, three environmental organisations brought legal action against Canada, asserting the government failed to properly assess the risks of exploratory drilling for oil and gas off the coast of Newfoundland and Labrador, in violation of the Impact Assessment Act. The applicants argued that Canada did not assess the extent that offshore drilling will hinder its ability to meet its environmental obligations and commitments relating to climate change. In 2020, the Federal Court denied the government’s motion to dismiss and the applicants’ request for interim relief, and the action remains pending.

Environmental cases challenging project approvals have met some success in other contexts. In  Centre québécois du droit de l’environnement v. Energy East Pipeline Ltd,  the court concluded that the Quebec Environment Minister failed to explain in a reasonable way the decision authorising drilling in connection with pipeline infrastructure expansion in the Saint Lawrence River, citing a lack of adequate information on potential impacts on the beluga whale population.  

In Strateco Resources Inc. v. Attorney General of Quebec, the judge invalidated the authorisation of a uranium mine project by the government. This was invalidated due to the lack of “social acceptability” of the project within the surrounding communities, including First Nations. Although not specifically a challenge based on the project’s climate impact, the reasoning of the court could apply to projects impacting climate change mitigation or adaptation in the future.

Like other types of cases, applicants must establish standing to maintain actions against project approvals. In Voters Taking Action on Climate Change v. British Columbia (Energy and Mines), the petitioner challenged the expansion of a coal handling and storage operation on Texada Island. In dismissing the challenge in 2015, the British Columbia Supreme Court held that a challenge to the statutory authority for an expansion of a coal storage facility did not sufficiently engage with the applicant organisation’s interest in urging governments to take meaningful action against climate change, and therefore determined that the group did not meet the required showing for public interest standing.  The court left open that it might find other possible parties, such as impacted residents, may have a more direct and personal interest for the purposes of conferring standing.

Whilst no climate litigation has been brought by citizen(s) challenging project approval, the following grounds could form a basis;

• Breach of environmental law: Section 3 (2)(1) Environmental Management Act of 2007 provides that one of principles of decision-making process is “damage to the environment must be prevented and activities which cause such damage must be reduced, limited or controlled”. Under this provision, it can be argued that climate change is a relevant consideration in decision-making processes, which could form a basis for challenging such projects.
• Human Rights: Similar to point (iii) in scenario 1.

Standing: For human rights-based cases, standing is granted to “persons aggrieved” by alleged violation of fundamental rights. The Constitution does not define “aggrieved persons” and there is conflicting jurisprudence on whether it refers to the common law “direct and substantial interest” requirement or whether it is broad (see Maletzky and others v Attorney General and others holding that the constitution has not extended common law requirements of standing; Petroneft International Glencor Energy UK Ltd and Another v Minister of Mines and Energy and Uffindell t/a Aloe Hunting Safaris v Government of Namibia 2009(2) NR 670(HC) holding that a broad standing should be adopted in constitutional challenges).

In China, there have been no cases where citizens (on citizen groups) think that their state is breaching the law because it has authorised a project leads to increased emissions or ineffective adaptation. Nevertheless, a case could be based on the following grounds:

• Non-compliance with constitutional obligations. Like scenario 1 above, project approval could be challenged on the basis of constitutional obligation, particularly Articles 9 and 26 of the Constitution. They mandate the state to protect the environment and prevent pollution (Art. 26) and requires the state to ensure that damage to natural resource is prohibited (Art. 9). Since climate is a very crucial element for the ‘living environment and the ecological environment’, these provisions could form a basis of a suit challenging projects that lead to increased GHG emissions or impact on features that are crucial for adaptation.

However, standing requirements are narrow with eligibility requirements limited to NGOs. Under the revised Civil Procedure Law in 2013 and the Environmental Protection Law in 2014, environmental NGOs that have been registered with the civil administration department and operated in public environmental protection activities for over 5 years the ability to sue polluters in the public interest.

The absence of cases could be attributed to:

• A lack of strong legislative and constitutional basis such as no specific climate legislation;
• Non-recognition of environmental rights in the Constitution and non-recognition of GHGs as air pollutants in the Pollution prevention and control legislation; and
• Restrictive standing requirements where individuals cannot file environmental cases against public actors and only a small number of NGOs are qualified to file public interest environmental cases.

To date, there is no case of climate litigation brought by Finnish citizen(s) against a specific public project that leads to increased emissions or ineffective adaptation.

In principle, citizens may challenge public bodies’ projects on climate grounds before administrative bodies and the administrative court of appeal, if they believe that mitigation or adaptation plans and measures are not appropriate. Some laws provide specific requirements, such as the Flood Risk Management Act that allows landowners and individuals who have an interest in the matter (“everyone”) to initiate a review of the authorities’ proposal regarding the designation of flood risk areas, flood risk management plans and all related documents.

Finnish law provides a rather weak basis for climate change arguments. Firstly, it poses limits to the requirements that can be imposed on public actors or companies. For example, environmental permits may not limit the choice of energy sources (Supreme Administrative Court 29.12.2017/6894). Secondly, even if Finland has several environmental laws, such as the Environmental Pollution Control Act (527/2014), which states that one of its objectives is to prevent climate change; in its current form it does not impose any climate targets nor enshrines the individual citizen’s right to bring legal action unless there is a risk of pollution. However, if improved, this instrument could form a potential ground for climate litigation.

Due to the fact that international climate law does not have a direct effect on national law, the only way for legal action against public authorities is in connection with administrative planning or permit cases. The Finnish Flood Risk Management Act (620/2010), for example, applies to water management activities and planning in significant flood risk areas. According to its norms, the competent authorities are required to draw up maps for the flood risk areas, both for the water basins and in the coastal area, which also show the potential damage that such floods could cause in these localities most at risk. Another instrument, the Water Act (579/2011), requires that the responsible authorities to take all temporary measures necessary to reduce or eliminate potential risks to public or private interests that could result from floods or other changes in the water conditions. However, climate change is not addressed directly.

Furthermore, even if there is no binding law to specifically address climate change adaptation, the National Adaptation Strategy 2022, based on the Finnish Climate Act (609/2015), may become relevant to litigation as it needs to be taken into account by public bodies when they plan their specific adaptation strategies.

Citizens may request the administrative courts to ascertain that the authorities are bound to act in accordance with their obligations to provide solutions anticipating the damage, such as the construction of restrictions or servitudes for flood basins, and to ensure public participation in planning and permit activities. Moreover, remedies that may be sought in the mentioned cases include a request to the Government to adopt a precautionary approach, both as regards mitigation and adaptation policies. Judges are able to review and decide environmental standards or level of technical measures in regard of public projects. In addition, citizens can take action to seek compensation for environmental pollution damages (Environmental Damages Act 737/1994). In these cases, the assessment of the damages could also cover future losses caused by climate change, if the project is of sufficient relevance to global warming, thus contributing to national environmental harm. Monetary liability is restricted to cases where an individual presents proof of the losses.

In Russia, there have been no cases where citizens (on citizen group) think that their state is breaching the law because it has authorised a project that contributes negatively to climate change or fails to adapt to climate change.

The absence of cases can be explained by: (i) a weak domestic GHG emissions reduction target which is achievable without additional measures or a deviation from a business-as-usual approach; (ii) a lack of comprehensive climate laws and policies for mitigation and adaptation; (iii) no legal grounds for adaptation-based litigation; and (iv) individuals and interest groups rarely litigating on environmental issues.

In accordance with the Law on the Protection of the Environment, Russian law only permits NGOs, and not individuals, to bring cases against the state with the aim of preventing decisions or projects that contributes to a negative impact on the environment. Where a specific project has already been enforced, however, individuals (and groups of individuals) can bring a case against the state.

While there have been no cases where a citizen (or citizen group) alleges that their state is breaching the law because it has authorised a project that contributes negatively to climate change or fails to adapt to climate change, future cases could be based on the following grounds.

Firstly, citizens (or citizen groups) could rely on the Code of Administrative Proceedings to challenge a decision that has already been enforced and contributes negatively to climate change or fails to adapt to climate change. Claimants must show the project applied to them or violated their rights, freedoms and legal interests, or established barriers to their realisation.

Secondly, citizen (or citizen groups) could claim that a project that fails to adapt to or mitigate against climate change is unlawful because it inflicts 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 enforced decision and the harm caused.

Under the civil procedures route, full compensation is available for citizens (or citizen groups) who have been found to suffer harm to health or property, or satisfied the requirements for harm to the environment as a result of a project.

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