In Qatar, there have been no cases 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 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, no policy-based case has been brought by citizens (or citizen groups) who allege the breach of legal rules because Norway’s climate policy does not adequately mitigate and/or adapt to climate change. The absence of such cases in Norway are due to (i) the implementing measure for Norway’s Nationally Determined Contribution (Climate Change Law), largely matching Norway’s Nationally Determined Contribution; and (ii) the fact that Norway’s Climate Change Law is expressly not challengeable in court. However, future policy cases could be envisioned on the following grounds. First, citizens (or citizen groups) who think that Norway is breaching the law because its climate policy does not adequately mitigate and/or adapt to climate change could bring a case on human rights grounds and constitutional grounds, which are entwined as per Section 112 of the Norwegian Constitution (see below Scenario 2). No past case highlights the potential for addressing the country’s national climate policy through human rights and constitutional law. Because judicial review allows for wide state discretion, the potential of these types of cases depends on a further leverage: the inclusion of climate change in the case law of the European Courts of Human Rights (ECtHR). Standing is not a problem as Norway provides relatively broad de jure access to the courts, including by individuals and nongovernmental organizations (NGOs), but costs are high, constituting a de facto barrier. Norway does not have a binary system for administrative matters, meaning that the latter are adjudicated by general courts. Courts are generalist and there exists no impartial administrative appeals authority/environmental court.

Additionally, if they can show to have interest, plaintiffs may challenge specific acts implementing existing national climate change policy, rather than the policy itself—which is not justiciable. The benchmark for scrutinizing these types of specific acts is national law, EEA law, European Convention on Human Rights (ECHR) law and international law. The consistent application of national law with international law (e.g., the Paris Agreement) holds potential because Norway, a dualist country, espouses the principle of presumption of conformity with international law. In addition, the dualist principle is modified with regard to EEA lawand ECHR law, as Norway predicates their supremacy over national law (see Human Rights Act §§ 2 and 3, and EEA Act §§ 1 and 2).

Whilst no climate litigation has been brought by citizen(s) challenging Nigeria’s climate policy, a claim could be filed based on breach of human rights, particularly the right to a healthy environment and the right to life.

Article 24 of the African Charter on Human and Peoples’ Rights states that ‘all peoples shall have the rights to a general satisfactory environment favourable to their development.’ This can be invoked in Nigerian domestic courts as the Charter has been domesticated into Nigerian law (Social and Economic Rights Action Centre and Another v Nigeria). The Nigerian Supreme Court has held that the provisions of the African Charter are enforceable before Nigerian courts (Abacha v Fawehinmi). Secondly, Section 33 of the Nigerian Constitution guarantees the right to life, which implicitly includes a right to a clean and healthy environment and the government has a duty to protect and not to threaten or violate this right (Centre for Oil Pollution Watch V. NNPC).

For standing, any person can file personal, representative, and public interest suits in the enforcement of the fundamental human rights provisions of the Constitution and African Charter.  Additionally, no human rights case may be dismissed or struck out for want of locus standi. (Paragraph 3 of the Preamble of the Fundamental Rights (Enforcement Procedure) Rules (2009).

If found to be in violation of the rights above, a court may declare the climate law incompatible with human rights provisions of the Nigerian Constitution and the African Charter on Human and People’s Rights, and consequently invalidate it (Sec. 1(3) Nigerian Constitution). The court only declares an incompatibility and does not order replacement of the law, rather it is left for the executive and legislative branches to revise the law and bring it in compliance with the Constitution and the Charter.

A possible reason for the lack of 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 Climate Change Policy Response and Strategy, it is merely directional and not enforceable in court.

Individuals have brought cases before courts in Mexico challenging the country’s overall climate and energy policies.

Individuals have the right to bring a case against the government for not complying with their international or national climate change obligations. Cases can be brought to court through the Amparo Law, the Federal Environmental Liability Law, and the Federal Code of Civil Procedures to call for new policies or halt existing ones, as well as interpret or enforce domestic legislation and international treaties such as the Paris Agreement.

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.

Two relevant climate lawsuits have been filed following a change in the Federal Administration in December 2018 and the regressive energy policy of the new Government (e.g. fossil fuels support and gradual suppression of renewable energies). In 2019, the first case against the State for their overall climate policy was filed before Mexican courts. Fifteen young people (ages 17-23) from Baja California contested the lack of enforcement of the General Law of Climate Change and the failure of the government to meet its targets under the Paris Agreement (Amparo Indirecto 1854/2019). The claim was dismissed by the Judge alleging lack of standing. Following an appeal, in March 2020 the case was admitted by the Seventh Collegiate Tribunal (Admin) First Circuit and is currently under study.

Regarding the new energy policies, several NGOs and private companies have filed a lawsuit against the promotion of fossil fuels and the lack of legal certainty for renewable projects. In August 2020, Greenpeace Mexico contested the Energy Sector Program 2020-2024 (Amparo Indirecto 372/2020). A judge ruled that the provisions of the Program hindered the use of renewable energies, failed to protect the right to a healthy environment, and were not aligned with Mexico’s commitments under the Paris Agreement and the 2030 Agenda for Sustainable Development. Consequently, the Program was stayed. The Federal government has announced its decision to appeal the sentence.

Through Amparo Law there have been two other cases in Mexico that reference climate change and cited the UNFCCC as a part of their standing in trial. The 238/2014 Amparo trial was a request to analyse whether a car’s restriction to circulate should be based on environmental criteria or by the car’s registration year. The tribunal detailed the precautionary and prevention principles of the UNFCCC articles 3 and 4 as the grounds of the case. In the 140/2016 Amparo Trial an analysis was requested on the refusal to allow a person to access Mexico City’s Subway System with a folding bike as allowing bicycles on the subway system would encourage reductions in GHG emissions and help achieve Mexico’s UNFCCC objectives.

In December 2020 Mexico submitted to the UNFCCC its updated NDC. In the first term of 2021, the NDC was contested by a Mexican NGO that filed a suit against the federal government. On October 1st a Tribunal ruled that the NDC mitigation section did not raise the ambition as envisaged in the Paris Agreement. The legal case is still under consideration by the Judicial branch.

Whilst no climate litigation has been brought by citizen(s) challenging Kenya’s national climate policy or law, the following grounds could form a basis:

• Human Rights: Enforcement of human rights provisions in the constitution. The Constitution guarantees the right to clean and healthy environment and the right to life which could be threatened by climate change impacts. The government has a duty to protect and fulfil rights and should take legislative and policy measures to ensure realisation of these rights.
• International Law: Government’s non-compliance with international obligations. The Constitution recognises ratified treaties and general rules of international law as part of Kenyan law and are therefore binding on government (Art. 2 Constitution; Kituo cha Sheria & 8 Others v Attorney General). Having ratified the Paris Agreement and submitted its NDC committing to enhance resilience, the government is bound to put in place sufficient measures to achieve its NDCs and obligations under the Agreement (see e.g Satrose Ayuma and 11 Others v Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme & 3 Others).

The remedies that could be sought include: declaration of invalidity, an order compelling the government to put in place sufficient measures in compliance with international obligations, as was done in the Satrose Ayuma case, or human rights obligations and compensation for any victim of such a violation (Art. 70 Constitution; sec 23 Climate Change Act).

The locus standi requirement is relaxed and quite broad. Any person can institute proceedings in Court to enforce the right to clean and healthy environment. This includes a person/association acting on behalf of another, in public interest or in the interest of a group (Art. 22, 70 & 258 Constitution). The applicant does not need to demonstrate that any person has incurred loss or suffered injury (Art. 70 Constitution; Climate Change Act, sec. 23; Moffat Kamau & 9 Others v Aelous Kenya Limited & 9 Others).

The absence of such cases could be attributed to;

• From a mitigation perspective, Kenya’s GHGs emissions are generally low in comparison to other countries in the world, which could then affect citizen’s demand for stronger mitigation actions.
• A relatively low awareness of the government’s climate policies and a lack of understanding of the government’s role in adaptation, especially among the most vulnerable communities.

While there have been cases where parties have raised and courts have referred to climate concerns, the only case that had climate concerns at its core – Ridhima Pandey v Union of India – has been rejected by the National Green Tribunal (NGT), without assessment of the applicant’s claims. An appeal against this decision is pending before the Supreme Court (SC). A reason for the absence of more specific climate cases could be attributable to the fact that there are many other – in the “mainstream” societal perception more apparent and urgent – environmental issues which are brought to the courts more frequently. In such cases, climate issues are often raised as only one of various issues.

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.

Indian courts are usually reluctant to review national policies. In BALCO Employees’ Union (Regd.) v Union of India & Ors, the SC stressed that the legality of the policy, rather than the wisdom of soundness of the policy, is the subject of judicial review. However, in practice, an individual could potentially bring a case challenging a national climate policy, if the policy impacts the environment significantly and violates fundamental rights (Sachidananda Pandey v State of WB). In judgements from various High Courts in India, judicial review has been exercised in relation to State policies, e.g., noting that the ‘adverse effects of environmental pollution are now felt, […] like global warming’ and that ‘the warnings of global warming have deserved scant attention’ (Swami Parmanand Bhatta Company v Union of India, para. 10, and Outdoors Communication v PWD and Municipal Corporation of Delhi, para. 4). India’s Nationally Determined Contribution (NDC) under the Paris Agreement has been mentioned in one decision of the SC (Hanuman Laxman Aroskar v Union of India); however, the issue of its justiciability was not discussed. 

With respect to grounds, the NGT must apply the principles of sustainable development (recognised by the SC in M.C. Mehta v Union of India – Taj Trapezium case), the precautionary principle (recognised by the SC in Vellore Citizens Welfare Forum v Union of India), polluter pays (discussed by the SC in Indian Council for Enviro-legal Action v Union of India), and no-fault liability when deciding a case. These principles have been incorporated into Indian law by the SC, similar to the principle of inter-generation equity (State of Himachal Pradesh v Ganesh Wood Products), and the notion of the State being trustee of all-natural resources (M.C. Mehta v Kamal Nath and Ors). The SC has held that the legal position regarding applicability of the precautionary and polluter-pays principles, which are part of the concept of sustainable development, is now well settled in India (Research Foundation for Science Technology & National Resource Policy v Union of India and Anr) and in this regard, requires these principles to be ‘applied in full force for protecting the natural resources of this country’ (Intellectuals Forum v State of A.P).

Furthermore, the Constitution contains Directive Principles of State Policy, which could be used as future grounds. These include duties to raise standards of living and improve public health (Art. 47), to protect the environment and safeguard forests and wildlife (Art. 48A), and to foster respect for international law (Art. 51 and SC in Vishaka v State of Rajasthan). While these principles are not directly enforceable by courts, the SC has held that they must be read harmoniously with the fundamental rights enumerated in the Constitution (Minerva Mills v Union of India). Courts have often read the right to life and liberty (Art. 21) and the duty to protect the environment (Art. 48A, Art. 51A (g)) together when determining an environmental right or establishing that such a constitutional right has been violated (MC Mehta v Union of India – Badkal lake and Surajkund case). The SC has also interpreted Art. 21 liberally to include unregulated rights i.e., the right to a wholesome environment and more precisely, the right to enjoy pollution free water and air.

Various human rights in Indian law, in particular, the right to life, the right to live with human dignity, the right to food, the right to health, the rights to pollution-free and clean environment, the right to livelihood, and the right to development, could also form prospective grounds. The principle of inter-generational equity (State of Himachal Pradesh v Ganesh Wood Products), in combination with these rights, also provides a basis for potential litigation.

The SC and High Courts may be approached under the writ jurisdiction (Art. 32 and Art. 226 of the Constitution respectively). For instance, the parties may petition for a writ of mandamus directing the government to take certain ‘climate friendly’ policy decisions (Manushi Sangathan Delhi v Govt. of Delhi and Ors); or take into account climate related considerations in its decision-making processes. Cases may also be filed in the NGT under Section 14 of the NGT Act – claiming that government policies raise a substantial question relating to the environment.

Individuals in Bolivia have not brought cases against the State for its overall climate policy yet.

Such cases could be filed on human-rights arguments through article 33 of the Constitution of the Plurinational State of Bolivia (Bolivian Constitution) which recognizes the right to a healthy, protected, and balanced environment. In this regard, a broad approach to standing in environmental issues is recognized in the Bolivian Constitution: according to article 34 “[a]ny person…is authorized to take legal action in defence of environmental rights”. Thus, anyone in the country can file judicial, administrative or constitutional actions to protect the rights to the environment. To do so, the Bolivian Constitution includes a mechanism of ‘popular action’ (Acción Popular) for guaranteeing the protection and implementation of collective rights and interests, including environmental rights. The Acción Popular can be filed against any action or omission of public and private actors, as established by articles 135-136 of the Bolivian Constitution.

Cases can also be filed by individuals or groups on behalf of Mother Earth against any actor who offends Mother Earth’s rights, especially her right to adapt naturally to climate change (Law No.071 of the Rights of Mother Earth). The current legislation (Framework Law no. 300 of Mother Earth and Integral Development for Living Well) states that such cases should be brought only by individuals or groups directly affected by the violation of the rights of Mother Earth. However, this restricted standing approach is in conflict with the broader right of standing established in the Constitution with regard to the defence and enforcement of the environmental right and the rights of Mother Earth.