Whilst Uruguay has not experienced any climate change litigation challenging ineffective climate action, cases can be brought based on the following grounds:

  • Constitutional rights: An individual (or group of individuals) can claim before the national court challenging the state for ineffective climate action based on a violation of their rights ( (Article 47 Uruguay’s Constitution of 1966, reinstated 1985, with amendments through 2004). Whilst the environmental is of general interest and does not constitute a constitutional provision entitling a “right to a healthy environment” (Article 47 of Uruguay’s Constitution), the claimant can base their claim on other rights, such as a human rights violations, or those ratified by the constitution (Article 72 of Uruguay’s Constitution).
  • Human Rights: Uruguay’s constitutional system allows for linking national provisions (with wide interpretive range) with international provisions (human rights treaties). Uruguay is a party to the American Convention of Human Rights (1969), as called Pacto de San José de Costa Rica) and San Salvador Protocol on Economic, Social and Cultural right, to which the latter ensures “Everyone shall have the right to live in a healthy environment and to have access to basic public services” (Article 11, para.1). Therefore, a wide interpretation of Article 72 of the Constitutioncould provide grounds to base a claim challenging a national climate law/policy where the claim is based on a strong reasoning of human rights violation. These grounds can only be based on the international treaties on human rights ratified by Uruguay.

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). 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 treaty provision binding between states.

This scenario had not materialized until recently. In September 2020, Greenpeace Spain, Oxfam Intermón and Ecologistas en Acción filed a complaint against the Spanish Government (Greenpeace Spain et al. v. Spain) grounded on administrative law, for not having passed on time the Integrated National Energy and Climate Policy Plan, and the Long-term Strategy required by the European Union Regulation 2018/1999 of 11 December 2018. Indirectly the Government was also sued for not having taken sufficient climate action and, consequently, affecting constitutional rights.

Case law on a purely climate change grounds under this scenario does not currently exist in Spain. The soft law, vague and abstract nature of climate regulations limit the degree to which they can be controlled by judges and make it difficult to identify subjective rights that could be used by individuals to substantiate their claim. Furthermore, there is a lack of precision in the form of the public distribution of GHG emission sources, which makes it very difficult to question in court a public decision that would lead to an increase in these emissions.

In this context, at this point, judicial control in Spain seems to be limited to supervising discretionary administrative decisions when exercised: (a) in a manifest arbitrary and unreasonable manner or (b) when procedural or formal legality vices (motivation, procedure —participation, public hearing—) appear during the decision-making process. Therefore, the jurisdiction through which climate litigation might proliferate is the administrative one, as seen in Greenpeace et al.

Actions —acts or specific administrative decisions or a rule of general scope or regulatory nature— or inaction —where a legal obligation to act exists— of public institutions can be challenged before the contentious-administrative jurisdiction (Law 29/1998). 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 27/2006, 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, parties can claim before courts: a) a statement against a concrete public action or omission for not being in accordance with law; b) the annulment in the case of general provisions that are contrary to climate change obligations; or c) a performance of obligations. Moreover, there is the option to have an individualized legal situation and its restoration recognised, including damages compensation, where appropriate.

This course of action in the administrative jurisdiction may be complemented by the possibility to initiate a contentious-administrative procedure for the protection of the fundamental rights of the person. Such procedures are regulated in Articles 114 et seq. of Law 29/1998 (Contentious-Administrative Jurisdiction) which link environmental concerns with traditional fundamental rights as explained below.

Beyond this administrative pathway, a constitutional one may be open through the ‘recurso de amparo’, contained in Article 41 et seq. of Organic Law 2/1979, of 3 October, of the Constitutional Court, and the appeal to fundamental rights of substantivenature. Carrying out one of these cases involves numerous difficulties but a major obstacle is the absence of a fundamental right with an environmental or a climate change content. Though the Spanish Constitution encloses a ‘right to enjoy an adequate environment’ (Article 45), in practice, this is merely meant as a ‘guiding principle’ of social and economic policies though and is not a true subjective right to be protected by the Spanish Constitutional Court. That said, as a result of the ECtHR case law (in particular, from the López Ostra Sentence, of November 23, 1994), the Spanish Constitutional Court interprets that environmental emissions can also imply a violation of the fundamental rights to physical integrity, personal and family privacy and the inviolability of the home. Therefore, the lack of a fundamental right to a healthy environment does not prevent the Constitutional Court from ruling on matters with environmental content when other fundamental rights recognized in the Spanish Constitution are affected.

For domestic constitutional or regional human rights to apply, the individual has not only prove to be directly affected but also that the interference with their personal sphere is due to the State’s direct actions or its failure to sufficiently protect them. Considering the diffuse nature of climate change, it would be extremely difficult to prove a link between State action/inaction and the damages occasioned. The State also enjoys a wide margin of appreciation to determine if the interference with the fundamental right can be justified by invoking the “general interest”, which implies that the judge cannot determine what kind of environmental policy measures should the States take. Some pending cases before the ECtHR, including one against Spain (Duarte Agostinho and Others v. Portugal and 32 Other States), will provide some clarity on these issues.

Italy has experienced litigation challenging the state for ineffective climate action. In the case A Sud et al. v. Italy, filed in June 2021, a group of associations and citizens  filed a case against the government alleging that the state has failed to take sufficient measures to meet the Paris Agreement’s temperature goals. At the time of preparing this summary, the case had not been heard. The case is based on the following grounds:

  • Human rights: The plaintiffs allege that:
  • International climate obligations: The Claimants derive the State’s climate obligations from the UNFCCC, Paris Agreement and EU Regulations nos. 2018/842, 2018/1999, 2020/852, 2021/241 Having signed international agreements and instruments on climate change, the State is obliged to fulfill the obligations and do so in good faith (Convention on the Law of Treaties, Art. 4 n.3 TEU, Articles 1375 and 1175 of the Italian Civil Code). While relying on caselaw, the plaintiffs further allege that;
    • International climate laws must be framed within the Italian constitutional system (Constitutional Court decision no. 124/2010; 85/2012; Council of State (V Section) decision no. 4768/2012 and (Section VI) no. 4567/2016.
    • The Paris Agreementis the first universal and legally binding climate treaty, and the international climate laws entered by the EU must be considered as EU law, and thus as directly applicable in Italy. (Supreme Court (Section V), no. 4568 and 2572/2021).
  • State responsibility under civil law. The plaintiffs argue that the state has violated its civil responsibility under Articles 2043 and 2051 of the Italian Civil Code. Article 2043 requires any person who causes unjustified injury through an intentional or negligent act to compensate the injured party for harm. Courts have extended the applicability of this provision to the state and asserted that civil liability includes preventing harmful consequences of inaction and regression (Decision no. 641/1987, Constitutional Court [1987])
  • According to Article 2051 of the Civil Code, everyone is responsible for the damage caused to the things in their custody. The plaintiffs argue that the state is responsible for the damage caused to the natural resources (including the elements of the climate system), which according to Art. 117 of the Constitution, are under its sovereignty in the Italian territory. Furthermore, that the State’s role of stewardship towards natural resources is based on international law, including: the Universal Declaration of Human Rights, the UN Stockholm Declaration on the Human Environment, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights.

In A Sud et al. v. Italy, the plaintiffs are seeking the following remedies:

  • A declaration that the Italian state is responsible for the dangerous situation resulting from its inaction in combating the climate emergency; and
  • An order directing the state to reduce greenhouse gas emissions by 92% by 2030 compared to 1990 levels.

Standing:  According to civil procedure code (Art. 100), in order to bring an action, one needs to have an interest in it. This interest is determined by the existence of an advantage or benefit that could not be obtained without the judge’s intervention.

Where one alleges violation of personal right(s), the mere allegation of entitlement to the right(s) alleged to have been violated is sufficient to establish standing.

Regarding cases before the administrative court for the annulment of unlawful acts, Italian law grants standing to environmental associations which have been recognized as having “national character” by the Minister of the Environment (Articles 13 and 18.5 of the Law no. 349/1986).

Ukraine has experienced climate change litigation against the state for its overall climate policy.

While Ukraine lacks a comprehensive climate change law, climate cases against the government relating to its overall climate policy have been based on the following grounds:

  • Administrative and environmental law, international climate laws: In two lawsuits, the international charitable organization “Environment-people-law” has directly addressed the government’s commitments under the United Nations Framework on Climate Change and the Kyoto Protocol. In Environment-People-Law (EPL) vs. Cabinet of Ministers of Ukraine and others (2011), the organization filed a complaint against the Government, the Minister of Ecology and Natural Resources and the State Environmental Investment Agency. The main legal grounds for the complaint were the national law 2707-XII on the protection of atmospheric air environmental and information laws, as well as Ukraine’s climate commitments under the international climate laws and the National Action Plan.
  • National climate plans, governmental resolutions: The same organization filed a lawsuit against the Ministry of Ecology and Natural Resources in 2013. In Environment-People-Law vs. Ministry of Ecology and Natural Resources of Ukraine, the plaintiffs sought that the Ministry’s inactivity, in its role as coordinator of the implementation of Ukraine’s obligations under international climate law, was declared illegal. The main legal grounds were the legal commitments under the UNFCCC, the measures envisaged in the National Action Plan, and the governmental resolutions aiming to the implementation of Ukraine’s international commitments. The Court of first instance argued that the international acts had only “declarative” effect, and thus the state’s compliance had to be evaluated based on the implementation of the measures embedded in the National Action Plan.  Besides, the final decision was grounded on the governmental resolutions assigning the Ministry specific responsibilities for the implementation of the climate commitments.

Regarding standing, Ukraine’s law allows both individuals and organizations to bring climate 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 (2005) 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, the courts in Ukraine have refused to order the public authorities to change their climate policy, while recognizing the state’s duty to implement the commitments taken, insofar as enshrined in national plans. In EPL v. Cabinet of Ministers of Ukraine and others, the claimants requested the court to demand the adoption of several climate-related measures. Among those, two remedies were particularly relevant to the litigation scenario 1, namely, the request a) to compel the government to publish information on the implementation of the climate commitments, as envisaged under the National Action Plan, and b) to order the Ministry of the Ecology to set GHG limits. Regarding the former one, the Supreme Administrative Court found that the information laws granted the government a broad discretion in deciding how to communicate its environmental policies and on that basis, excluded that the government was obliged to issue a specific report on its climate commitments.  Regarding the latter one, the District Court argued that the national environmental laws did not oblige the Ministry to elaborate specific reduction targets.

Conversely, in EPL v. Ministry of Ecology and Natural Resources the requested remedies were largely met by the courts. The District Court of Kiev provided that the Minister’s inactivity had been illegal, insofar it had not provided methodological guidance in setting GHG emissions reduction targets, and it had not implemented the necessary measures to fulfil the National Action Plan.

The Netherlands has experienced climate change litigation challenging the State for ineffective climate action in Urgenda Foundation v. State of the Netherlands. This case observed the claimants challenging the Dutch government for failing in being ambitious enough in their national climate change policy (to reduce greenhouse gas emissions by 17%). The claimants were successful, and the court concluded that failing to reduce greenhouse gas emissions by at least 25% by end of 2020 would find the Dutch Government in violation of Articles 2 and 8 of the European Convention on Human Rights (ECHR). The claimants based their claim on the following grounds, and under Dutch tort law (Dutch Civil Code, Book 6, Art.162), to establish an unlawful action or inaction:

  • Establishing an action contrary to legal norms: the claimants argued that the current Dutch climate policy violates Article 2 and 8 ECHR and Article 21 of the Dutch Constitution. As these human rights target natural persons, NGOs cannot invoke these human rights. Nevertheless, they do play a role in interpreting open norms, such as the unwritten duty of care standard.
  • Establishing a violation of the duty of care: in order to establish the unwritten duty of care standards, the Court heavily relied on a number of binding and non-binding rules and principles. Although the claimant cannot directly rely on international law obligations, as they are directed to States, they can play a role in interpreting open standards. The Court relied on the following grounds:

Regarding standing, non-governmental organisations (NGOs) can initiate a public interest case (Article 3:303a Dutch Civil Code). In the Urgenda case, the District Court (The Hague District Court C/09/456689) clarified that Urgenda, as a legal person, cannot be considered as a victim under Art. 34 ECHR. However, based on the mentioned civil law norm, NGOs like Urgenda have standing to bring class actions on behalf of individuals whose rights under Art. 2 and 8 of the ECHR have been violated. Therefore, the Court accepted standing for the Urgenda Foundation as a representative of both current and future generations by referring to the aim of the foundation (i.e. striving for a more sustainable society) (s [2018] The Hague Court of Appeal 200.178.245/01).

Remedial action includes a court order to the State to change of its climate change policy, and more specifically, to achieve a stricter emission target (Urgenda case)

Additionally, there may be scope for further climate litigation challenging the state for ineffective climate actionunder Dutch tort law, concerning the Climate Plans under the new Climate Law of 2018, if they are found to be too weak. In addition, further tort cases could focus on insufficient adaptation measures. These could include grounds, such as human rights, international climate law and Article 21 of the Dutch Constitution (i.e. the economic right to the ‘liveability’ of the country).

National climate policies in Canada have been subjected to judicial review. In 2008, the NGO Friends of the Earth (FOE) initiated legal proceedings against the Federal government on the ground of a violation of the Kyoto Protocol Implementation Act (KPIA) (Friends of the Earth v. Canada (FOE), 2008 FC 1183). The KPIA was adopted in 2007 by Canada to implement the legal obligations of the Kyoto Protocol. FOE claimed that the government needed to prepare a Climate Change Plan that would meet the obligations of the Kyoto Protocol. The Federal Court of Canada declared that while the court has a limited role to play in enforcing the clear mandatory elements of the KPIA, the Act has given accountability to the Parliament for its substance. Therefore, while the failure of the government to prepare a Climate Change Plan might be justiciable, an evaluation of its content for compliance with the Kyoto Protocol is not. The court further determined that, in any case, the Act did not create a justiciable duty to ensure Canada meets Kyoto commitments, as the Act itself relies on cooperation between the provinces and industry, matters which are not completely controlled by the government.

Canada’s national climate policy was again challenged in 2012, when Professor Daniel Turp sought review of the Government’s decision to withdraw from the Kyoto Protocol (Turp v. Canada, 2012 FC 893 ). The Federal Court of Canada explained that under royal prerogative, foreign affairs and international relations fall under the remits of the executive branch of government and so does the decision to withdraw from the Kyoto Protocol.

Recently, Greenpeace Canada filed a case against the Government of Ontario, alleging that policy actions violated procedural rights under the Ontario Environmental Bill of Rights (Greenpeace Canada v. Minister of the Environment, Conservation, and Parks; Lieutenant Governor in Council 2019 ONSC 5629).  Greenpeace Canada asserted that the government bypassed required public consultation in promulgating regulations that would end Ontario’s cap and trade program and in proposing a bill that would undercut the province’s legislative regime for combatting climate change.   In a 2019 decision, the Superior Court of Ontario dismissed the case on the grounds that declaratory relief was not available, as a subsequent legislative Act had essentially mooted the basis for the revised regulations.

Possible grounds to challenge Canada’s climate policy include several human rights such as property rights, rights to life and to a healthy environment. Section 7 of the Canadian Charter states that“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Article 1 of the Quebec Charter echoes this protection. Further, the Quebec Charter Article 46.1 provides for the right of every person to live in a “healthful environment in which biodiversity is preserved, to the extent and according to the standards provided by the law”. This article has been used to interpret the application of Quebec laws and regulations in favour of environmental protection.

Existing litigation seeks to establish that environmental protections, and specifically climate change mitigation and adaptation, are necessary to prevent the loss of life, liberty, and human well-being. Currently pending or on appeal are challenges alleging that inadequate action to combat climate change violates constitutional rights.

In La Rose v. Her Majesty the Queen, 2015 NBCA 26, fifteen children and youths brought suit against the Queen and Attorney General of Canada, alleging Canada’s inaction on climate change violates the Canadian Charter. The youth plaintiffs alleged that Canada’s actions allow a level of GHG emissions incompatible with a stable climate system, that it has adopted greenhouse gas reduction targets insufficient to avoid dangerous climate change, and that it failed to meet that inadequate target in any event. Invoking rights of the Charter under sections 7 and 15 (the latter guaranteeing equal protection) and public trust doctrine, the plaintiffs sought an order requiring defendant to develop and implement an enforceable climate recovery plan.  In 2020, the Federal Court dismissed the action, finding claims under sections 7 and 15 of the Charternot justiciable and that the public trust doctrine claims, although justiciable, stated no reasonable cause of action. Plaintiffs appealed to the Federal Court of Appeal.

In Lho’imggin et al. v. Her Majesty the Queen, 020 FC 1059, the Wet’suwet’en indigenous group (two houses) filed a legal challenge alleging that the Canadian government’s approach to climate change was failing to meet international obligations and its own NDC under the Paris Agreement. The plaintiffs alleged that the resulting warming effects in their territories and negative health impacts from climate change violated their rights, including those protected under sections 7 and 15 of the Charter, and Section 91 of the Constitution Act 1867 (duty to make laws for the peace, order and good government of Canada).  The Federal Court dismissed the action in 2020, finding the challenge non-justiciable, as it was deemed “inherently political, not legal, and is of the realm of the executive and legislative branches of government.” An appeal to the Federal Court of Appeal is pending. 

Recent litigation also challenges the actions of subnational governments to combat climate change on human rights grounds. In 2019, seven youths brought a legal challenge against the government of Ontario, alleging that the government violated the Canadian Charter by setting a greenhouse reduction target inadequate to avoid catastrophic climate change harms; thereby abdicating its responsibility to address climate change (Mathur, et al. v. Her Majesty the Queen in Right of Ontario, 2020 ONSC 6918). Invoking the Charter sections 7 and 15, plaintiffs requested, among other things, a declaration that Ontario’s failure to set a more stringent target or a plan sufficient to combat climate change violates the constitutional rights of Ontario youth and future generations. The Ontario Superior Court denied a motion to dismiss in 2020, finding the adoption of the new greenhouse gas reduction target and repeal of the Climate Change Act are governmental actions that are reviewable by the court for compliance with the Charter.  The action remains pending.

In 2018, an environmental non-profit organization brought a class action against the Canadian government on behalf of Québec citizens aged 35 and under in the Superior Court of Québec (ENVironnement JEUnesse v. Canada). They alleged that adopting an inadequate greenhouse gas reduction target and failing to put in place measures to achieve necessary reductions would lead to dangerous climate change impacts in breach of Canada’s obligations to protect the fundamental rights of young people under the Canadian Charter and the Québec Charter.  In 2019, the court declined to authorise the proposed class of 35 years old and younger; however, the court recognised that the impact of climate change on human rights is justiciable and that the rights and freedoms guaranteed can apply to the challenged government actions. The dismissal is on appeal.

Canada’s indigenous peoples also have constitutionally protected rights, as explained in Section 35 of the Constitution Act. These protected rights take three forms: aboriginal rights, which include certain practices, traditions and customs central to the aboriginal societies; treaty rights referred to in Section 35(3); and rights under the Aboriginal title. Some of these rights relate to the environment and potentially could be applied to climate change adaptation and mitigation.

There has been no litigation against the government in Namibia for ineffective climate policy or law. Such a case can, however, be filed under the following grounds;

  • Constitutional duties: Article 95(l) of the Constitution places a duty on the Namibian government to develop appropriate laws to protect the environment. Lack of necessary legislative measures to address climate change can be challenged under this provision.
  • International obligations: Article 144 of the Constitution incorporates international law as law of the land and courts can directly apply international law as long as it conforms with the Constitution. Having ratified the Paris Agreement and submitted its NDC with 49 proposed adaptation actions, the government has a duty to place sufficient measures to achieve its NDC and obligations under the Paris Agreement.
  • Human Rights: Right to life and right to a healthy environment. Namibia has ratified the African Charter on Human and Peoples’ Rights, which is binding and can directly be applied by courts (Kauesa v. Minister of Home Affairs). Art. 24 of the Charter provides under that all peoples shall have the rights to a general satisfactory environment favourable to their development. Secondly, Art. 6 of the Namibian Constitution guarantees the protection of right to life, which implicitly includes the right to a clean and healthy environment.

Standing: The Constitution grants standing to “persons aggrieved” by alleged violation of fundamental rights or freedoms. 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).

Possible reasons for the lack of climate policy litigation could be;

  • the absence of a legislative instrument focusing on climate change that would be the subject of such challenge. While there exists a National Policy on Climate Change, it merely provides the societal goal in making and applying laws but not enforceable in court (Art. 95(1) Constitution).
  • Regarding mitigation, Namibia’s GHG emissions are insignificant (In fact, Namibia is a net sink for CO2 as indicated by the two GHG inventories done so far), which leads to no demand for stronger mitigation action.

In China, no case has been brought by citizens (or citizen groups) against the state for ineffective climate action.

However, a case was filed against the State Grid Corporation for failure to purchase clean energy. In the case of Friends of Nature v State Grid Gansu Electric Power Co, Friends of Nature alleged that the defendants (a local unit of the state grid corporation) violated the Renewable Energy Law. The law requires grid firms to “fully acquire” all power and buy all power generated by renewable sources that meet grid connection standards (Art. 14 RE law). The plaintiffs therefore claim that the defendant’s refusal to purchase all grid power generated from wind and solar led to abandonment of 18.6 billion kwh grid power between January 2015 and June 2016, which was equivalent to burning 5.88 million tons of standard coal in vain and consequently discharged, among others, about 15.54 million tons of carbon dioxide into the atmosphere, thus seriously damaging social public interests. As a result, the plaintiffs are seeking orders that the defendant buys all on-grid power and financial damages to remedy the environmental loss. The case was dismissed in 2018 by the court of first instance on procedural grounds (that the defendant neither caused environmental damages nor directly exacerbated climate change. On appeal, the High Court of Gansu set aside the decision and ordered the District Court of Mining to hear the case. The case has entered substantive trial and a decision is yet to be made.

Additionally, citizens (or citizen groups) can challenge the government’s climate policy on the following grounds:

  • Non-compliance with constitutional obligations: Article 26 states that ‘the state protects and improves the living environment and the ecological environment and prevents and remedies pollution and other public hazards.’ Article 9 also states that ‘the state ensures the rational use of natural resources and protects rare animals and plants; the appropriation or damage of natural resources by any organization or individual by whatever means is prohibited’. Climate is a very crucial element for the ‘living environment and the ecological environment’ and consequently, the Constitution establishes the basic framework for addressing climate change, providing guidelines for the future climate legislation and a legal basis for current climate mitigation/adaptation.

However, standing requirements are narrow with eligibility limited to NGOs. The revision of the Civil Procedure Law in 2013 and the Environmental Protection Law in 2014 granted environmental NGOs that have been registered with civil administration department and operating for over 5 years the ability to sue polluters in the public interest.

The absence of cases could be attributed to

  • 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 and a small number of NGOs qualified to file public interest environmental cases.

To date, no climate litigation has been brought by citizen(s) in Finnish courts challenging the national climate policy. However, there are some grounds that a possible future case could be based on:  

  • The Finnish Climate Act (609/2015) aims to facilitate citizens participation in the national planning of climate change policies, limit greenhouse gas (GHG) emissions, and set new mitigation and adaptation targets. A participation of citizens when adopting “national actions” is not required. However, the Act contains specific duties to adopt medium and long-term policies that could provide a basis for future cases (Section 1.2 of the Act).
  • A constitutional right that requires the State to act on climate change is not formally recognized. Therefore, the Constitution (731/1999) does not provide legal grounds for obliging the State to reach specific environmental quality targets or to take determined mitigation or adaptation measures. However, a right to obtain environmental information and to participate in public procedures and appeals against administrative decisions is guaranteed (Section 20 Constitution). An individual may request that the State complies with the right to obtain information and to participate in decision-making processes, including where the individual has no legal standing in the matter. Moreover, citizens have the right to obtain environmental information, without proof of interest. Furthermore, the Finnish Constitution enshrines the principle that “[n]ature and its biodiversity, the environment and the national heritage are the responsibility of everyone” (Section 20 para 1). This imposes a duty on the legislator to enact necessary regulation for the enforcement of environmental liability of everyone.
  • Ultimately, Finland is party to the European Human Rights Convention, and Section 22 of the Constitution imposes an obligation to respect human rights in all decision-making.

Individuals and organisations are merely invested with the procedural right to participate and to appeal against administrative decisions. Thus, the citizens’ legal standing to act against the State, can be only upheld through the administrative courts. Class action is not permitted in environmental matters.

In Russia, no case has been brought by citizens (or citizen groups) who think that their state is breaching the law because its climate policy does not adequately adapt to or mitigate against climate change.

The absence of such cases can be explained by: (i) a lack of comprehensive climate laws and policies for mitigation and adaptation; (ii) a significant climate scepticism at both governmental and public levels; and (iii) the fact that individuals and interest groups rarely litigate on environmental issues.

While there have been no cases of citizens (or citizen groups) challenging Russia’s national climate policy for breaching the law because it does not adequately adapt to or mitigate against climate change, future cases could be based on the following grounds.

Firstly, citizens (or citizen groups) could enforce their constitutional rights. Under Article 42 of the Russian Constitution, citizens enjoy the right to a favourable environment. A future case could therefore be brought on the grounds that, by failing to adapt to or mitigate against climate change, Russia’s national climate policy violates citizen’s fundamental right to a favourable environment. Citizens (or citizen groups) could complain to the Russian Constitutional Court that the violation of their right to a favourable environment is unconstitutional. Given that such constitutional rights are referenced in specific civil and environmental laws, citizens (or citizen groups) could also seek court protection for their right to a favourable environment under the Civil Code. When seeking court protection, the violation of their constitutional rights could include harm directly inflicted on an individual’s health or property, or harm caused to the environment. 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 national climate policy and the harm caused.

Secondly, where Russia’s national climate policy is enacted through legislation, it could be challenged under the Code of Administrative Proceedings of the Russian Federation. The legislation being challenged must have been already applied to the claimant or violated the claimant’s rights, freedoms and legal interests. Claimants can attempt to either fully or partially repeal the legal act(s) in question. In doing so, the court will assess whether there has been a violation of the claimant’s rights, freedoms and interests, whether jurisdictional and procedural requirements have been met by an authority, organisation or official enacting the act, and whether the act complies with legislation of higher legal force. Under the civil procedures route, full compensation is available for citizens (or citizen groups) who have been found to suffered harm to health or property, or satisfied the requirements for harm to the environment as a result of the states national climate policy. Under the administrative procedures route, the court could impose a duty on the state to revise or enact new legislation that does not violate citizen’s rights, freedoms and legal interests. 

*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 Russia’s national climate policy. There are several existing challenges when pursuing legal actions of this sort through the Russian legal system.