In Qatar, there have been no cases where citizens (on citizen groups) 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) 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.

Within the Qatar legal system, individuals do not have standing to bring cases against the state for climate change or environmental issues.

Individuals are unable to challenge administrative decisions implemented by the state. Only the government has discretion to challenge and review administrative and legislative decisions.

In Norway, there has been at least one case where a citizen (or citizen group) asserts that the state is breaching the law because it has authorized a project that contributes negatively to climate change or that fails to adapt adequately to climate change. The case is Greenpeace Nordic Ass’n and Nature & Youth v Norway Ministry of Petroleum and Energy (also called People v Arctic Oil), which included challenges to the lawfulness of oil and gas licenses, under constitutional law, international law, and other pieces of domestic law (in particular transposing the EIA and SEA directives). Greenpeace Nordic is the first climate change lawsuit brought in Norway, filed in 2016. Greenpeace contested that the Government’s grant of ten oil and gas licenses for deep-sea extraction in parts of the Barents Sea violated Section 112 of the Norwegian Constitution (right to environment), which had never been tried in court previously. Plaintiffs claimed that the decision granting the licenses (the Decision) contravened the state’s duty to assess and consider the effects of state action on the environment, including the climate. The plaintiffs also relied on the Paris Agreement, the European Convention on Human Rights, and the International Covenant on Economic Social and Cultural Rights. The plaintiffs asked for a declaration of invalidity of the Decision, which, had it been granted, would have prevented the activity from going forward. Standing to the ENGOs in the case was easily granted. In January 2018, the Oslo Court of First Instance maintained the justiciability of Section 112, but made the threshold of judicial review very high and found no breach of Section 112. Further, the court did not scrutinize the governmental assumptions on emissions and profitability of the licenses, and concluded that the increase in CO₂ emissions would be marginal, thus rejecting the plaintiff’s requests. The court apportioned the costs of the proceedings and lawyering on the plaintiffs only. In January 2020, the Oslo Court of Appeals upheld the decision, with three notable exceptions: (i) split costs due to the novelty and importance of the issues raised; (ii) the legal relevance of “exported” emissions (scope 3 emissions), namely the emissions derived from burning Norwegian oil and gas abroad. Somewhat contradictorily, the Court failed to determine the actual impact of exported emissions and the validity of the decision on this basis; (iii) a reference to Urgenda as being a landmark case about something completely different, although the provisions invoked were the same (Articles 2 and 8 ECHR)—mitigation policy instead of emissions from a specific activity that may happen in the future in a specific sector. The court added that the result in the Norwegian case was perfectly in line with Urgenda, but did not say why or how. In December 2020, Norway’s Supreme Court rejected all grounds of appeal. It held that judicial review in environmental matters can only be undertaken if the Parliament has not taken a ‘position’ on a particular matter. If the Parliament has taken any ‘position’, judicial review based on the right to environment fails. In exceptional situations, Section 112 can be a safety valve for judicial review also when the Parliament has taken a position, but only if the Parliament has grossly sidelined its duties under Section 112, third paragraph, and the threshold for review is here very high, the court said. Urgenda was found to be not applicable: (i) it did not deal with future emissions; (ii) nor with a governmental decision. On scope 3 emissions, the majority considered that the international climate regime is based on the territoriality principle. Therefore, extraterritoriality shall be considered only if emissions are proved to cause direct damage in Norway. Extraterritoriality is relevant only when extraction and construction occur, not in the exploration phase, when it would be too early to consider them (according to the judges who referenced a governmental document from 1995-1996). In the proceedings, plaintiffs pointed out that, in 10 years from now, when extraction may start, taking away the licenses would amount to expropriation under Norwegian law, which would reduce the margin of remedies to the Decision. As a rebuttal, the court restated that, when opening new areas, it is sufficient that Parliament is aware of effects abroad (but there is no need of accounting for such effects, paras 228-234). Four judges dissented, only in the finding that the EIA was faulty for not being a full EIA and for neglecting the assessment of scope 3 emissions (as based on EU law), and declared three of the licenses invalid.

Intervenor “Grandparents’ Climate Action” lodged an application with the ECtHR in May 2021. In June 2021, the two plaintiff organisations and six young Norwegians similarly lodged an application with the ECtHR, arguing that the new licenses for oil and gas exploration violated plaintiffs’ rights under ECHR Articles 2 (right to life) and 8 (right to respect for private and family life, home and correspondence). In particular, Norway allegedly discriminated against young people and the indigenous Sami minority, who will be disproportionately affected by the effects of the licenses—an overall violation of ECHR Article 14 (prohibition of discrimination). Further, plaintiffs asserted that, given the Norwegian courts’ failure to adequately assess the case, Norway violated ECHR Article 13, on the right to an effective remedy.

Broaching further litigation avenues, environmental law, in particular pollution prevention and control, can help craft litigation strategies to counter dangerous GHG emissions. Individuals may challenge pollution permits by resorting to administrative remedies before the administrative authorities. Challenging the permit may be attained on a number of grounds, either procedural or substantive. In addition, the Pollution Control Act provides for the alteration or withdrawal of the permit upon evidence that “the damage or nuisance caused by the pollution proves to be significantly greater than or different from that anticipated when the permit was issued;” that “the damage or nuisance can be reduced without unreasonable cost to the polluter;” that “new technology makes substantial reduction of the pollution possible;” that “the conditions laid down in the permit are not necessary for the purpose of counteracting pollution;” that “the advantages to the polluter or others of relaxing or rescinding conditions will be substantially greater than the damage or nuisance to the environment that will result;” or that “rules for reversing decision” would nevertheless permit such alteration or withdrawal. Individuals having an interest in the case may request an alteration or withdrawal of the permit even in the absence of the foregoing circumstances if the permit were issued more than ten years before the requested withdrawal or alteration. If the permit is not revised or annulled, plaintiffs may pursue the case in courts, even though public authorities enjoy a wide discretion. An administrative appeal is mandatory only when the relevant public body specifies that a prior administrative appeal is necessary.

In Nigeria, there has been no case challenging the State or governmental department/agency for the approval of projects (likely to) contribute to climate change.

However, there is at least one case that was filed against a government entity for its participation in emitting activities. In Gbmere v Shell Petroleum Development Company Nigeria Ltd and Nigerian National Petroleum Corporation and Ors, a representative of the Iwherekan community in the Niger Delta filed a suit against a private entity (Shell) and the state oil corporation for gas flaring. The suit was based on the ground that the flaring was a violation of the Applicant’s fundamental right to life and dignity guaranteed by Sections 33(1) and 43(2) of the Nigerian Constitution and reinforced by Articles 4, 16 and 24 of the African Charter on Human and Peoples’ Rights. The court held in favour of the plaintiff granting the following remedies: a declaration that the continued gas flaring by respondents violated the Applicants rights to life and human dignity, an order restraining the respondents from further gas flaring, and an order directing the federal government to amend the gas flaring legislation and regulation, that allows for gas flaring, to bring them in line with the constitution.

In addition to the above human rights ground, another ground could be failure to conduct a proper Environmental Impact Assessment (EIA). The Nigerian EIA Act generally subjects activities that could lead to a rise in greenhouse gas emissions to the procedural requirements of the Act: requiring an EIA study to inform the authority’s decision-making on such projects and to allow for public participation within the process. Failure to perform an EIA for a climate unfriendly project could constitute a violation of the Act’s procedural requirements.

Regarding standing, the recent Supreme Court decision in Centre for Oil Pollution Watch V. NNPC [2019] 5 NWLR (Pt. 1666) 518 expanded the standing requirements in environmental matters by introducing public interest litigation. Previously, the standing requirements were restrictive since plaintiffs were required to show that their ‘civil rights’ – narrowly taken to mean ‘private legal right’ – have been or are in danger of being violated or adversely affected by the violation ((Adesanya v Nigeria; Oronto Douglas v Shell Petroleum).  

The lack of litigation against the State or governmental department/agency for project approval could be attributed to:

• The weak and porous judicial review provisions, which, for instance, provide that judicial review of EIA decisions shall be refused where the sole ground is defect in form or a technical irregularity.
• The unreasonably wide discretion and unstrained powers of the public authority in the EIA processes so that such decisions are not questioned by courts.
• Existing laws permitting high emitting activities such as the Gas Re-Injection Act which authorise gas flaring.
• The pro-economic stance of Nigerian courts in general which favour economic benefits of oil industry over environmental protection.

Individuals of Mexico have not brought any project-specific litigation against the State on the grounds of climate change, but this could change soon as part of the recent surge of climate change specific cases (see Scenario 1).

Cases can be brought by either an individual or a non-profit environmental organization to court through Amparo Law, the Federal Environmental Liability Law, and the Federal Code of Civil Procedures, and the General Law on Transparency and Access to Public Information to challenge specific projects of activities.

The Mexican Constitution (Article 107, section I) and the Amparo Law (article 5, section I), recognize legal standing for every natural or moral person that holds a subjective right or a legitimate individual or collective interest. Likewise, 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).

Amparo (“juicio de amparo”) can be used as a remedy for the infringement of constitutional rights, commonly regarding human rights violations. Individuals who believe their rights have been infringed due to their government not complying with international or national climate change obligations can file a climate change claim on this basis. It should be noted that the Mexican Constitution recognizes the right to an adequate environment (Article 4) which can be used as a relevant ground to file a case against national climate policy.

There have been several cases, mainly using the Amparo Law, which alleged that projects or initiatives somehow infringed the human right to a healthy environment, enshrined in the Mexican Constitution, though no direct links to a climate change argument have been made. This includes challenges to environmental permits on the bases of failures in the decision-making processes, such as inadequate assessment of specific projects’ risks to human health, inappropriate balance between environmental rights and project’s public utility or, simply, lack of environmental impact assessment.

For example, the Supreme Court Request 225/2015 (2^nd Chamber: SCJN) case requested that the environmental impact permit granted to use water from the Sabinos River for the construction, operation, and maintenance of a road in Guadalajara, Jalisco should not be given on the basis that there is a human right to a healthy environment. Similarly, Supreme Court Request 987/2015 (1^st Chamber: SCJN) was based on the grounds that an environmental impact permit should not have been granted for the “Aqueduct Independence” project in Sonora as the human right to a healthy environment was not protected. Further cases have opposed environmental permits being granted for specific projects such as the Supreme Court Request 51/2016 (2^nd Chamber: SCJN) to analyse the lack of an EIA for a project approved by the Council of Guadalajara, Jalisco. 

The Supreme Court Review 3/2015 (2^nd Chamber: SCJN) and Supreme Court Request 540/2015 (2^nd Chamber: SCJN) cases reviewed a prior decision and requested the Supreme Court hear a case regarding the need for a balance between the human right to a healthy environment and public utility for the development of the El Zapotillio Dam and El Zapotillo-Los Altos Aqueduct in Jalisco and Guanajuato project.

Other requests and trials to the Supreme Court regarding opposition to the development of specific projects include the Supreme Court Request 30/2016 (2^nd Chamber: SCJN) opposing the construction of the El Zapotillo Dam, Amparo Trial Appeal 211/2016 (2^nd Chamber: SCJN) opposing the decree modifying the status of the “Nevado de Toluca National Park”, and Amparo Trial 307/2016 (1^st Chamber: SCJN) and Amparo Trial Appeal 680/2016 (2^nd Chamber: SCJN) were inopposition to the “Ecological Thematic Park Laguna del Carpintero” project being an area of municipal public domain on a basis of a human right to a healthy environment.

There have also been a couple of Amparo trials, which request the analysis of pollution to rivers. Amparo Trail Appeal 201/2016 (2^nd Chamber: SCJN) requests an analysis be facilitated in the Salado and Atoyac rivers in Oaxaca while the Amparo Trial 5091/2016 (1t Chamber: SCJN) requests analysis in the Bacanuchi and Sonora rivers in Sonora.

Alternatively, the Federal Code of Civil Procedures and the Federal Environmental Liability Law can be invoked in cases where plaintiffs might question the GHG emissions that result from the licensing of a particular activity or project. Furthermore, plaintiffs might use the General Law on Transparency and Access to Public Information, which regulates the procedure to request information from federal or local governments (emitting sources, air quality data, chemicals release, etc.) or claims for misleading or incomplete information.

Kenya has experienced litigation challenging an EIA licence issued for construction of a 1050MW coal power plant. In 2019, the National Environmental Tribunal (NET) in Save Lamu & Others v NEMA & Another set aside the decision of the National Environmental and Management Authority (NEMA) to issue the EIA for because of, among other reasons;

• Breach of domestic climate change law: Failure to consider climate change issues and the Climate Change Act in the EIA study and approval process; and
• Breach of public participation requirements in the EIA study process.

Human rights grounds could also be used to challenge government’s approval of climate unfriendly projects. The Constitution guarantees the right to life (Article 26) and the right to a clean and healthy environment for present and future generations (Article 42). The state of the environment can be a threat to the right to life, and the right of life encompasses the right to clean and healthy environment (Peter K. Waweru v Republic).  Secondly, projects that impact on the quality of the environment or are considered to have harmful effects which may interfere with the physical or mental well-being of persons could amount to violation of the right to clean and healthy environment (Adrian Kamotho Njenga v Council of Governors & 3 Others).

While the Tribunal in Save Lamu case did not deal with the issue of standing, the Court of Appeal has held that the expanded locus standi in environmental matters applies to cases challenging EIA licencing process (National Environmental Tribunal v Overlook Management Limited & 5 others). The Constitution and the Environmental Management and Coordination Act (EMCA) allow any person to apply to court to enforce environmental rights without the need to demonstrate that any person has or is likely to incur loss or suffer an injury (Art. 70(3) Constitution; Sec. 3 EMCA; Joseph Leboo & 2 others v Director Kenya Forest Services & another).

Indian courts have adopted fairly liberal rules of standing in environmental cases. Even if individuals are not directly affected by the environmental harm, they can still claim standing before the courts. This has allowed individuals to recur to the courts to challenge specific projects that allegedly led to more climate change.

Legal action against public actors in a project-specific context can be based on the public trust doctrine, on rights grounds or statutory duties.

Under the public trust doctrine, which forms part of the Indian legal system, the State has a legal duty to protect natural resources. The SC has quashed a lease deed granting forest land for the construction of a motel, relying upon the public trust doctrine (M.C. Mehta v Kamal Nath and Ors). Concerning another relevant principle, the SC recently made clear that the Environmental Rule of Law seeks to create essential tools to bring structure to the discourse on environmental protection and draw within the fold all stakeholders in formulating strategies to deal with current challenges such as climate change (Himachal Pradesh Bus Stand Management and Development Authority v The Central Empowered Committee and Ors).

Indian human rights jurisprudence has interpreted the right to life to include different specific environmental rights. Examples include the right to enjoyment of pollution free water and air (Subash Kumar v State of Bihar), the right to live in a healthy environment with minimal disturbances to ecological balance (Rural Litigation and Entitlement Kendra v State of Uttar Pradesh), and the right to environmental protection and conservation of natural resources (Intellectuals Forum v State of A.P).

Moreover, claims against the public sector may be made for dereliction of regulatory duties (e.g., failure to stop a polluting industry from operating). The Environment (Protection) Act 1986invests the Government with powers to enact rules and regulations concerning pollution and processes which impact the environment. Individuals could bring a claim against the State if regulatory processes under these rules and regulations do not include climate considerations at different stages, or if relevant considerations concerning sources and impacts of climate change were not taken into account during grant of regulatory approvals. This could be the failure to regulate GHG emissions in view of unacceptable environmental effects and a derogation from India’s commitment to the Paris Agreement (Ratandeep Rangari v State of Maharashtra and Court v State of Himachal Pradesh).

Relevant cases in this regard include a complaint by companies concerning a provision which obliged them to purchase energy from renewable sources, in which the SC upheld the validity of this regulation and recognised the importance of reducing emissions and reducing GHGs (Hindustan Zinc v Rajasthan Electricity). In another case, the NGT quashed a notification of the Delhi Development Authority which aimed at providing housing for the poor, keeping in view the serious impacts this would have on climate change (Mahendra Pandey v Union of India Ors). In Narmada Bacho Andolan v Union of India, the SC – while allowing to continue the construction of a controversial dam – noted as part of their rationale for favouring hydroelectric power that, while global warming has become a major cause of concern and thermal power projects contribute to environmental pollution by using fossil fuels, the specific contribution of the project would be negligible. In another case, the SC has stated that the danger of climate change needs to be averted and that although GHG emissions largely originate from developed countries, India also needs to regulate its electricity sector to protect the environment. (Tamil Nadu Newsprint And Papers Ltd. v Tamil Nadu Electricity Regulatory Commission). Other relevant judicial precedents may be found in the NGT’s decision concerning the submergence of forest land and resulting methane emissions due to a massive irrigation project (Om Dutt Singh v State of Uttar Pradesh), or the SC’s decision concerning impacts of polluting industrial emissions on heritage sites (M.C. Mehta v Union of India – Taj Trapezium case).

A challenge of regulatory approvals could be a statutory appeal in the NGT or a writ of mandamus in the High Court or SC seeking directions against a public actor or seeking to compel the government to execute its legal duties. As a precedent of possible judicial interventions, in Hanuman Laxman Aroskar v Union of India, the SC intervened in the construction of an international airport, stalling all work, and adopting a Zero Carbon Programme for both the construction and operational phase. While the suspension was lifted, a specialised body was appointed to oversee compliance of the directions issued by the Court. The NGT has ordered suspension of a clearance accorded by the Ministry of Environment and Forests for the construction of a hydroelectric power project, in line with the principles of sustainable development and the protection of endangered species (Save Mon Region Federation and Lobsang Choedar v Union of India). Remedies for cases of this kind include compensation for loss of livelihood and loss of property (Srinagar Bandh Aapda Sangharsh Samiti v Alaknanda Hydro Power Co. Ltd).

Concerning adaptation measures, India’s rights jurisprudence also provides potential bases for litigation. While there have been no specific decisions pertaining to the adequacy of climate adaptation measures taken by the government, the SC has struck down a government amendment to the Coastal Regulatory Zone Notification, diluting protection afforded to the coastline. The Court held that the amendments were against the public interest and granted the government unchecked discretion that could result in serious ecological damage (Indian Council for Enviro-legal Action v Union of India). The Court directed the government to complete the coastal planning exercise in a time-bound manner and ensure the enforcement of legal provisions in relation to coastal protection.

To date, individuals in Bolivia have not brought cases against the State or a government department for a specific project that contributes to aggravate climate change.

In Bolivia, any public or private actor who intends to develop a project that could negatively impact the environment needs to obtain an environmental permit prior to the commencement of its activities. National environmental legislation (Law 1333 and its regulation) establishes rules of procedures for Environmental Impact Assessments for such infrastructure projects. Project developers are required to evaluate the potential risks or impacts of the activities. This EIA has to be submitted to the competent environmental authority before an environmental license is given.

Environmental Regulation also states that an applicant is required to engage in a consultation process to publicise the characteristics of the project and its potential impacts as well as the mitigation measures to be adopted. This is consistent with the Bolivian constitution stating that “the population has the right to participate in environmental management, and to be consulted and informed prior to decisions that could affect the quality of the environment.” (Article 343, Bolivian Constitution).

If an environmental permit is granted to a project that does not meet the environmental legislation’s requirements, and therefore creates risks for the environment and population, an individual could file a claim against the public actor who authorised the infrastructure project through the competent administrative authority or judicial body, demanding its annulment and the author´s responsibility (Law 1333 and its regulation).

Also, collective rights (such as environmental rights) could be used as legal grounds to bring a popular action against an agreement or permit granted by public authorities that threatens or violates these rights, as established in articles 34, 135 y 136 of the Bolivian Constitution. If granted, this action could lead to the suspension of the project.

However, though within their rights, these kinds of initiatives have been hindered in the past by the government’s actions. For instance, several policies and regulations have been adopted which allow for hydrocarbon, mining, energy, and transport projects and have resulted in socio-environmental conflicts around numerous projects, such as the TIPNIS Highway and Chepete-El Bala and Rosita hydroelectric developments. NGOs and affected indigenous communities strongly opposed these developments for their environmental and climate change implications as well as their impact on indigenous and local populations’ rights and filed legal actions (acciones populares) against them. However, the government defended these projects, considering them necessary to the country’s socio-economic development and the legal actions resulted fruitless.