There has been no litigation against state challenging project approval. Nevertheless, a case can be based on the following grounds:

  • Human Rights:
  • The Environmental Protection Act 2004:
    • Article 14 grants individuals the right to request the discontinuation of an activity affecting the environment, if it causes or would cause an excessive environmental burden or presents or would present a direct threat to human life or health. It can also be used for activities where the environmental burden will manifest itself in the future, which is often the case with activities contributing to climate change.
    • EPA allows for public participation in environmental impact assessment, process of issuance of environmental protection consent and in the process of issuance of environmental protection permits for projects (Articles 40, 43 and 58 of EPA). Failure to conduct proper public participation in these processes could be a basis to challenge project approval before the administrative court (U 893/2014).
  • Obligations code 2001: Article 133 of the Obligation Codeconcretises the constitutional right to a healthy living environment and can form a ground for litigation challenging a specific project. The case of VSL order II Cp 3973/2009 established that under the Obligations Code, individuals have grounds to challenge any activity that causes direct danger for the life and health of people, which can have indirect implications to climate change.

To remediate, the Court can grant orders to:

  • Prohibit the economic activity in violation of public benefit.
  • Prohibit project proponent from starting/proceeding with the project (Article 14 EPA)
  • Under the Obligations Code, the court can order that all appropriate measures be taken to prevent the occurrence of damage (Art 133 Obligation Code). If appropriate measures cannot prevent damage, the court can order that an individual must refrain from the activity from which that damage derives (Art 133 Obligation Code). Where the damage occurs during performance of a generally beneficial activity, court can order reimbursement. The reimbursement shall only be possible if that damage exceeds the customary boundaries (Article 133 Obligation Code)

In terms of locus standi, it is difficult to claim standing and interest in relation to breaches of constitutional rights for claims relating to the environment. Similar to scenario 1, claimants are required to show legal interest. Legal interest has been recognized where the participants live in the immediate vicinity of an area under assessment (Judgments U-I-315/00; U-I-265/99; U-I-292/97; U-I-24/96), which could make it difficult to show standing for climate cases. Citizens have standing under the Obligations code if they can show damage or disturbance from the project in question.

Possible reasons for lack of this type of litigation:

  • difficulty of proving excessive environmental burden and the existence of a direct threat to human life or health,
  • lack of sufficient statistical data on the status of the environment in Slovenia, to illustrate the damage in the environment caused by the concerned activity. Consequently, any attempt to prove such damage or threat would be very costly

To date, no climate change litigation has been brought by a citizen(s) challenging Slovenia’s climate policy. However, a claim could be based on the following grounds:

  • Constitutional rights:
    • Article 72 of the Slovenian Constitution grants the right to a healthy living environment. This right can be violated by continuous changes in the climate. The State has an obligation to protect this right and any violation can form the basis for litigation.
    • Article 70a grants the right to drinking water. Climate change projections for Slovenia indicate serious drought in the summer months, meaning that drinking water resources will become scarcer. The State has an obligation to take appropriate action to prevent the reduction of this resource.
    • Pursuant to Article 24 of the Constitutional Court Act, individuals may file a petition for review of constitutionality or legality of regulations or general act, which grants individuals the right to access court if they believe that a climate policy or law violates the rights mentioned above.
  • The Environmental Protection Act 2004 (EPA):
    • Article 14 grants individuals the right to request the court to discontinue an activity affecting the environment if it causes, or would cause, an excessive environmental burden, or presents, or would present, a direct threat to human life or health. Enactment of an insufficient climate policy could arguably be an activity by a public authority affecting the environment, which could be challenged in court.
    • The EPA requires public participation in environmental decision making and grants individuals the right to participate in preparation of environmental policies and regulations (Article 13). If a climate policy is developed without proper public participation, then litigation can be pursued.
    • Pursuant to Article 14 of EPA, the Human Rights Ombudsman may launch an investigation relating to violation of environmental rights by an act of a public authority and if a violation is confirmed, prepare a report with recommendations. This opens the door for the Ombudsman to investigate whether a Climate Policy is in violation of the right to a healthy living environment. However, there is a requirement for proof of an injured party from the violations, which could prevent proceedings, as climate change generally affects populations, as opposed to causing specific and direct damage to an individual or group of individuals.

The Constitutional Court can remedy a breach of constitutional right through a declaration of unconstitutionality. Additionally, the Administrative Court can remedy breaches of the EPA through the discontinuation of an activity affecting the environment Finally, the Ombudsman can prepare a report with recommendations to all parties involved, including public authorities.

In terms of locus standi, claimants in constitutional matters have to demonstrate a legal interest. This can be demonstrated if the challenged regulation or general act directly interferes with the claimants’ rights, legal interests, or legal position (Article 24 of the Constitutional Court Act). While the court has found that a professional association involved in ecosystem protection has standing to challenge constitutionality of a municipal ordinance (case U-I-30/95), legal interest is generally interpreted narrowly and in restrictive manner. Claimants have to show a sufficiently direct and concrete effect (case U-I-113/00). Courts have also rejected a NGO’s legal interest on the ground that the general assertion that they live and work in the area of a local community does not constitute their right to challenge constitutionality of a municipal ordinance (case U-I 255/00) .

Possible reasons for the lack of climate change litigation could be difficulty of proving legal standing and the difficult and costly manner of gathering sufficient evidence to prove the case.

In Israel there have been no climate change actions raised against private actors, however the following grounds could be the basis of future actions:

  • Constitutional grounds: under Israeli Basic Laws and the decision in The Israel Union for Environmental Defence v. The Government of Israel HCJ no. 4128/02, there can be action raised if a private actor breaches the minimum environmental standard.
  • National Law: Under the Clean Air Act citizens can bring an action against a private actor if they are found to have committed an act or omission which results in air pollution. Additionally, this can also be of a criminal nature. The definition of air pollution under the Act includes substances like carbon dioxide and methane resulting from combustion so the connection to climate change could be argued. Pensions and Investments: the Commissioner of the Israeli Capital Market, Insurance and Saving Authority issued instructions  for pension institutions, requiring a portion of pension funds to be channelled  to social investments, which will not necessarily yield a return to investors. However, it is not possible under current law to bring a claim against a pension fund that does not support environmental protection, social justice or the protection of human rights.

In relation to remedies, under the Clean Air Act  citizens can be granted damages for the loss sustained due to breach of the Act. Private actors may also have committed an act or omission which could be of a criminal nature and so a remedy could also be punitive.

The Locus Standi is broad. Under the Clean Air Act any citizen can bring an action if they have suffered damage. If a human rights claim is made under the Israeli Basic Law then the individual citizen would also have standing.

Israel has experienced litigation on specific projects on the following grounds:

  • The polluter pays principle has been used as a basis of climate change litigation in Israel, by virtue of the Clean Air Act section 63. It was applied in the Kedoshim v. IDF, Class Action No. 24714-02-16, a class action lawsuit filed against the Israeli Defense Forces (IDF) for negligence in preventing fire and refraining from proper steps to extinguish it during routine training activities, resulting in emissions of greenhouse gases and damage to the entire population, and contributing to global warming.
  • The precautionary principle can be used as tool for individuals to raise actions against specific projects and could be used in the future in the context of climate change litigation. This principle is also embedded in number of existing environmental legislation (The Clean Air Law, the Non-Ionizing Radiation Law, the Environmental Protection Law (Emissions/Releases and Transfers to the Environment – Reporting and Registering Obligations). This principle was applied in the case of Haifa Chemicals Ltd. V. Municipality of Haifa Criminal Appeal no. 2841/17 where there was a dispute over an ammonia storage facility in an industrial area located close to a populated urban area. It does not deal with climate change specifically but it is illustrative as to how the precautionary principle can be used in litigation, and could form the basis as to how this principle may be used in climate change litigation in the future.
  • Other possible grounds in claims against a government entity are general civil law grounds, for example the civil wrong of negligence, which could theoretically be used to claim future damage from climate change-related harms such as flooding. Given the challenges with proving future causality and in the absence of specific legislation, the chances of such a claim are low.

In terms of remedies, under the polluter pays principle financial remedies are the most likely outcome.

The Locus standi requirements are broad. The Israeli legal system allows for both individual citizens and NGOs to raise actions against the government or government entities in relation to specific projects.

While no climate change litigation has been brought by citizen(s) challenging Israel’s national climate policy or law, the following grounds could be used for a basis:

  • Constitutional grounds: under Israeli Basic Laws which form the constitution of the Country, Citizens have a right to dignity, liberty and property. In 2002 the Supreme Court was called to discuss the right to dignity, liberty and property and the right to a clean environment in the case of The Israel Union for Environmental Defence V. The Government of Israel, HCJ no. 4128/02. The Court was asked whether the text of the Basic Law could be construed to include the right to an adequate environment. The Supreme Court found that the right to a clean environment cannot be derived from the right to human dignity and liberty, but recognized the constitutional right to a “minimal environment”. The term “minimal environment” was not further defined and was left for to broad interpretation.
  • National Legislation: Under the Clean Air Act Citizens can bring an action against the State if the State has been found to have committed an act or omission which results in air pollution.  The definition of air pollution under the Act includes substances like carbon dioxide and methane resulting from combustion so the connection to climate change could be argued. The Protection of the Coastal Environment Law 5764-2004 does not specifically deal with climate change, however it places obligations on The Drainage Authority to prepare plans for each river or any  water source within its territory. These plans must factor in the sustainable use of these resources to address the needs of future generations.
  • International obligations: The Israeli Court in Custodian of Absentee Assets v. Samara et al. Civil Appeal No. 147/55 ruled that international customary law is automatically incorporated into Israeli National Law. However, international treaties which Israel has signed must be incorporated into national legislation.

Under the Clean Air Act a court can award damages to citizens who have suffered loss due to the breach of obligations under the Act. The Clean Air Act also places an obligation on the Israeli Government to create and implement a National Pollution Reduction & Prevention Program. If such a programme is not created, the Government can be ordered to do so, as happened in the case of The Israel Union for Environmental Defense v. The Government of Israel, HCJ No. 1092/12.

The Locus Standi requirement is broad. Under the Clean Air Act any citizen can bring forward an action if they have suffered damage.  Individual citizens can gain standing under the Israeli Basic Law for human rights claims.

Absence of more cases can be attributed to the fact that Climate Change Law is currently in its ‘teething stage’ in Israel. 

In the pending Lliuya case Peruvian citizen filed a case against the German energy company RWE. The claimant demands a contribution to the costs of suitable protective measures against the danger of flooding and hence damage to his house in Huaraz, Peru, likely to resulting from a spill-over caused by a nearby glacier lake that is melting due to climate change. The case is mainly based on § 1004 (in combination with § 823 para. 1 German Civil Code) which includes the principle of nuisance law that, if the ownership is unlawfully interfered with, the owner may require the disturber to remove the interference. The claimant argues that RWE contributed to global warming by emitting 0,47 % of world-wide emissions and hence created a situation which, in a linear fashion, adds to the risk of flooding through a melting glacier.  Some of the intricate problems of the case are how to deal with damage that occurs at a long distance, in the long term, and in a cumulative fashion and related questions of causation.

Moreover, the NGO Deutsche Umwelthilfe brought actions against BMW and Mercedes-Benz arguing that they produce vehicles which are particularly damaging for the climate and therefore infringe a fundamental right to climate protection. The claims are based on the right to injunctive relief under § 1004  para. 1 and § 823 para. 1  German Civil Code. The NGO argues that the defendants are inter alia obliged to prevent infringements of fundamental rights by refraining from the distribution of climate-damaging vehicles with a combustion engine after 2030.

Future claims under contract law, tort law, hazard- and strict liability law as well as various claims stemming fromproperty law, in particular nuisance law are generally conceivable. Claims can be filed against activities that have effects elsewhere in the world, as they can be based on either the place of action or of the result of an action. Potential cases may, for instance, concern situations where property owners have to adapt to an increased risk of flooding or suffer from damage after extreme weather events. Strict liability and nuisance law may be the most suitable bases for successful claims in this regard, as they do not require a fault. Claims against damage or nuisance to property caused by private actors need to show cumulative, long-term and distant damage and issues of causality may arise.

There are several cases of project-specific litigation in environmental matters that are relevant for climate litigation. Most of these cases are based on planning and licencing laws as well as their respective procedural dimensions. However, to date, no case explicitly challenging the government for authorising a project that frustrates efforts to mitigate of climate change or leads to ineffective adaptation has been decided by courts.

There is a long line of cases, e.g. relating to nuclear power (BVerfG, 1979), noise by air and car traffic (BVerfG, 1981, BVerfG, 1988), ozone (BVerfG, 1995), electro smog (BVerfG, 1997). Claimants commonly allege that the State had breached its duty to actively protect the fundamental rights of its citizens. However, in none of the mentioned cases the Constitutional Court actually assumed that a protective duty had been violated. More specifically, in a case regarding a planning permission for a long-term deposition of nuclear waste (BVerfG, 2009), based, among others, on Articles 20a, 2 II, 14 and 1 of the German Constitution (Basic Law – BL), the Constitutional Court held that citizens have to accept a minimum residual risk. However, other cases also provided that risk prevention can be part of the protective duty of the State if it serves to prevent fundamental rights violations.

In the pending law suit DUH vs. Stralsund Mining Authority (2020) the NGO Deutsche Umwelthilfe argued that the Mining Authority must review its 2018 planning permission issued on the basis of Article 43.1.2 Energy Industry Law (former version) for a gas pipeline and to order risk assessment measures linked to the related methane emissions, based on recent scientific findings.

In order to have standing, individuals have to show that they can rely on a norm that provides a direct entitlement for them or is intended to protect them as a directly concerned third party, e.g. as a neighbour. This requirement is challenging for climate change litigation because the rules requiring the authorities to take climate protection into account normally do not single out individual rights or protections of third persons. Therefore, planning law decisions that are detrimental to the climate may only be challenged where other interests are at stake that include an individual rights dimension.

Due to the implementation of the Aarhus Convention, claims based on procedural violations play a particular role for processes of planning and licensing. The Environmental Remedies Act provides that environmental NGOs can inter alia challenge acts that require an environmental impact assessment on substantive or procedural grounds. This is an exception to the mentioned century-old German administrative law doctrine of the subjective public right since by their very nature, NGOs will normally not be directly concerned in their rights. This new instrument of claims by NGOs by way of collective action is still in process to becoming accepted in practice. Furthermore, the implementation of the Aarhus Convention – and several rulings of the European Court of Justice – has widened the scope for standing of individuals, particularly in regard to rights of information and participation.

With regard to legal grounds in the area of planning law, relevant norms can be found in the Federal Construction Code or in the Federal Code on Protection against Emissions, often complemented by law of the respective federal state. Regional plans that concretise spatial planning can play a major role, as well. Yet, taking into account global climate protection in the balancing exercise during planning processes has so far not always worked very well, as this concern is not taken sufficiently seriously and has been considered as too abstract.

In the area of licencing law, climate litigation could become relevant where a building or piece of infrastructure is subject to a particular risk from climate change, e.g. flooding, which may cause damage to the neighbour´s property. So far, however, no case has been decided along those lines.

Regarding the procedural dimension, § 1 Environmental Information Act provides a right to information. Individuals can also challenge licensing decisions that are not based on a (sufficient) environmental impact assessment to the extent that the lack of such an assessment has made it impossible for the claimant to participate in the deliberation process (§ 4 I, III in conjunction with § 1 Environmental Remedies Act).

Finally, claimants can hold the State accountable for legal violations through the instrument of State liability (Article 34 BL in conjunction with § 839 of the German Civil Code). In the Forest-Damage-cases (BVerfG, 1998) private forest owners sued the State, alleging a violation of their property right (Article 14 I BL) due to increased air pollution, which would cause their forests to decline and be attributable to the State. However, the Constitutional Court held that liability for a global phenomenon such as forest decline as a result of distant emissions is a matter for the legislator and cannot be established by courts. State liability may be triggered indirectly in future cases, if the right to life, physical integrity or property is at stake.

In the area of planning and licencing law, breaches can mainly be remedied in so far as planning decisions are overturned or licences withheld. Furthermore, § 6 of the Environmental Information Act grants an individual remedy where information regarding infrastructure projects is unduly withheld.

In Germany, there have been several cases where citizens or NGOs filed lawsuits against the State alleging that its inadequate climate change mitigation policy violates national law.

In Family Farmers and Greenpeace Germany v. Germany (VG, Berlin, 2019)before the administrative court of Berlin claimants alleged that by abandoning its 2020 mitigation target the government had acted unlawfully in view of the general principles of self-binding administration as well as fundamental rights. However, the court dismissed the case due to a lack of standing. It held that, while the government’s climate policy is generally justiciable, the specific target was non-binding and internal, and a violation of fundamental rights was not substantiated.

The 2021 landmark decision by the Federal Constitutional Court (BVerfG, 2021), concerned the argument that the Federal Climate Protection Act’s target of reducing greenhouse gas emissions by 55% by 2030 from 1990 levels violated fundamental rights of the claimants and did not sufficiently take into account Germany’s obligations under the Paris Agreement. The claimants inter alia challenged the compatibility of the Climate Protection Act with Article 20a of the German Constitution (Basic Law – BL), stipulating the aim to protect the environment for future generations. The Constitutional Court found the claims to be partly justified and held that Article 20a BL obliges the legislator to protect the climate and pursue efforts towards climate neutrality, particularly with a view of future generations. The legislator had failed to distribute the burden of the remaining carbon budget on the path towards climate neutrality proportionally along the remaining years, so that harsher future intrusions into fundamental rights may constitute an undue burden. Therefore, the Court ordered the legislator to set clear provisions for reduction targets for the whole period until climate neutrality will be reached.

Following this decision, the NGO Deutsche Umwelthilfe filed lawsuits against the German Federal Government, requesting the adoption of a specific and adequate climate protection programme that meets the cross-sectoral greenhouse gas emissions and the targets for the transport sector laid down in the Climate Protection Act. Moreover, with support of the same NGO, eight lawsuits were filed with regards to lacking regional Climate Protection Acts in the respective federal States in Germany. Claimants seek an order for the establishment of such acts, and/or for their targets to be aligned with the goals of the Paris Agreement.

In general, individuals may allege a violation of their own fundamental right before the Constitutional Court under Article 93 I Nr. 4 a BL. Similarly, in administrative proceedings, individuals need to substantiate an infringement of a subjective right. The prerequisite of individual concern can be challenging for claimants in climate change cases, where a concrete violation may be hard to pinpoint and often only materialises in the future. Only certain State organs may challenge the legality of climate laws or policies based on violations of non-subjective legal norms (Article 93 I Nr. 2 BL, e.g. BVerfG, 2007).

According to § 3 Environmental Remedies Act (Umwelt-Rechtsbehelfsgesetz) only recognized associations have standing, but only where cases covered by § 1 Environmental Remedies Act are concerned. Alternatively, associations may argue that they have a right of action based on procuration provided that an individual would have standing. A right of action by Greenpeace based on the CJEU’s jurisprudence (CJEU, 2017) had been rejected in Family Farmers and Greenpeace Germany v. Germany, because the challenged German Climate Protection Goal 2020 had not been based on European provisions (e.g. VG Berlin, 2019).

With regards to the legal basis, the German Basic Law does not include an explicit or implicit right to environmental protection that goes further than what can be inferred from the respective substance of the various fundamental rights. Claims may in particular be based on Article 2 II 1 BL, which stipulates the right to life and physical integrity, on Article 14 I BL, which guarantees property, as well as on Article 12 I BL, which protects professional freedom. Under aggravated circumstances, even Article 1 BL containing the right to human dignity might be invoked, which, in conjunction with Art. 2 I and 20a BL has been labelled as the ecological minimum standard of living by several scholars and been discussed by the Constitutional Court in its 2021 landmark decision. That decision particularly  underlined the importance of Article 20a BL and is likely to be used in many future cases. In light of Art. 20a BL the Court understood relevant fundamental rights as ‘intertemporal guarantees of freedom [that] afford the complainants protection against comprehensive threats to freedom caused by the greenhouse gas reduction burdens […] being unilaterally offloaded onto the future’ (BVerfG, 2021, para. 183). However, the Court reaffirmed what it had already stated in an earlier relevant decision concerning emission reductions under the EU emissions trading system (BVerfG, 2007): The legislator has a wide margin of discretion as to how to implement Article 20 a BL.

Remedies sought may take the form of a declaration of unlawfulness of the challenged national policy and the obligation to restore legal compliance (e.g. Family Farmers and Greenpeace Germany v. Germany), or an order to amend the challenged law (e.g. BVerfG, 2021).

Denmark has not experienced any litigation against private actors for climate unfriendly operations. However, a possible avenue could be explored through Denmark’s participation in the OECD Guidelines for Multinational Enterprises. The latter have required OECD Members to establish National Contact Points (NCP) to promote the effective implementation of the Guidelines. Whilst the Danish NCP has not been very active, it was reformed in 2012 with the adoption of a new Act on the establishment of a Mediation and Complaints-Handling Institution for Responsible Business Conduct. The Danish NCP is an independent public sector body. Anyone can make a complaint. The processing is less expensive and much quicker than going to court. Much of the evidence collection is, to some extent, undertaken by the NCP itself. Whilst financial compensation can’t be awarded by the NCP, the result could be considered equivalent to a court judgment. In fact, naming and shaming could lead to altered conduct and make the business in question start operating in a more climate friendly manner.

Denmark has not experienced any litigation against the state or government department/agency for approving a project that contributes negatively to climate change or that fails to adapt to climate change. At least not in cases where climate change was mentioned directly. However, there have been cases both related to climate mitigation and adaptation where climate unfriendly projects have led to cases being brought against a public actor.

A first example comes from Danish administrative practice and is a decision by the Environment and Nature Board of Appeal of 4 November 2011 (MAD 2011.2645). The appeal board annulled a decision to allow for a large, combined heat and power plant to be coal-fired. Greenpeace Denmark successfully argued the lack of an assessment under the Habitats Directive (Article 6(3)) and the inadequacy of the environmental permit conditions. The key ground of review was a procedural one: the lack of an appropriate impact assessment.

Similarly, in a case before the Supreme Court, a Danish Cyclist Association successfully raised a claim regarding the lack of an EIA of a road project (U2000.1103H/MAD2000.83H). Again, however, climate change was not an argument and specific climate change legislation was not at stake. They key ground of review was procedural: the authorisation of the project was deemed unlawful because of the lack of an appropriate impact assessment. This was again the case in a High Court case from 1994 (U1994.78Ø) where Greenpeace Denmark was accepted as having sufficient legal interest in a claim against the Ministry of Transport regarding an EIA of the Øresund-bridge project.