The biggest cause of climate change is excessive GHG emissions created by the combustion of fossil fuels (oil, coal and gas). As a result, the following types of carbon-emitting projects are big contributors to climate change:
Each of these projects could be challenged through climate litigation. These cases can be split into 2 types of claims:
1. Procedural challenges: Projects can be challenged on the basis that the decision-making process which led to the licensing of the project failed to consider or gave insufficient weight to their climate impacts.
2. Substantive challenges: Projects can be challenged on the basis that the extent to which the project will contribute to climate change mean they will violate your human/constitutional rights and/or be inconsistent with the government’s legal commitments to reduce its GHG emissions.
Often claims will contain both procedural and substantive challenges. Note that a well grounded threat of legal action before the project is licensed or permitted may be easier and more effective than challenging the licence or permit after it is granted. So the points made in this section can apply to a stage when a project is still being planned or proposed, or an application made for a permit but not yet granted.
Consider the following checklist if you are thinking about challenging a carbon-emitting project on climate-based grounds:
| CHECKLIST |
|---|
| 1) Is a challenge to a carbon-emitting project right for me? |
| 2) Is there an appropriate law for me to base my challenge on? |
| 3) Do I have the right to bring a claim? |
| 4) Have I identified the right defendant to make a claim against? |
| 5) Have I gathered enough evidence to make my challenge? |
| 6) Have I identified and followed the procedural steps I need to take in my claim? |
| 7) If I win, what remedies could I get? |
| 8) If I lose, is there an appeals process or a regional/international court that I can bring a claim to? |
A question to ask yourself when considering bringing a case to court is whether bringing the case is the right decision for you.
The following table of advantages and disadvantages is designed to help you consider whether a project challenge is right for you:
| ADVANTAGES | DISADVANTAGES |
|---|---|
| Successful cases can have the immediate result of cancelling a carbon-emmitting project. | Substantive challenges may be more difficult in developing countries as they have more flexibility on climate policy. |
| Substantive challenges can change energy policy, creating a "precedent" that certain carbon-emitting projects are unlawful. This could lead to other high-emission projects being cancelled. | If your government is doing more than the minimum required by the IPCC targets, it can be difficult to substantively challenge individual projects. |
| Procedural challenges can force government to consider the climate impact of projects before licensing them, leading to different decisions. | Justiciability can be a barrier for substantive challenges. |
| They can raise awareness about climate change in your country. | Some countries have strict "standing" requirements which mean you have to show you are especially affected by climate change to bring climate cases. |
| Procedural challenges avoid questions of causation and justiciability. | Successful procedural challenges can result in the project being licensed again, but with a different procedure. |
| You may have the option of going to a regional/international body if you don't succeed at the national level. | If all appeal processes are used, claims can take years. |
If you are challenging the licensing/approval of a carbon-emitting project, you will usually bring a claim under national human rights, constitutional or administrative law.
There are many different areas of public law. Each area prevents public bodies from doing certain things or requires them to do certain things, and provides consequences when laws are broken.
It is also possible to challenge carbon emitting projects for relevant non-carbon impacts. For example, conventional challenges to projects that increase air pollution. These claims may be more successful than carbon-based claims because they cause distinctive impacts that are both local and immediate. However, if you are challenging carbon emitting projects for non-carbon impacts, it can still be useful to highlight the climate impacts as an additional or alternative argument in your claim.
Once you have outlined the facts of your case, look at the areas of law below and see which most closely relates to your situation. Then check your national law to see what the law is in your country.
Remember:
Your legal analysis has to be supported by the evidence you have gathered. You should consider seeking legal advice. A lawyer should be able to provide advice on the options available to you and advise on your chances of success.The types of evidence you may need to support your argument will be outlined later in this section.
The specific content of these laws will change in different countries. However, below are the main types of law on which you could have a “cause of action” for a procedural challenge.
Where there is a law in your country which sets limits or conditions on the government’s powers when it comes to licensing/approving industrial or energy projects, the licensing/approval of a project could be challenged where it acts outside those limits. These laws are often found in planning laws and regulations, regulations pertaining to specific industries, or environmental legislation.
The following are key examples of where procedural challenges could be made on this basis:
Where planning, industry or environmental legislation requires the government to conduct an environmental impact assessment (EIA) before licensing infrastructure/energy projects, a licence could be challenged if:
Example: EarthLife Africa Johannesburg v Minister of Environmental Affairs
An environmental organisation successfully challenged the opening of a new coal mine in South Africa.
In South African law, public bodies are required to undertake an EIA before approving energy project. While an EIA was undertaken before the coal mine was licensed, it did not consider the climate impact of the coal mine.
Although the law did not explicitly say EIAs had to include the climate impacts of projects, EarthLife argued that the environmental damage that would be caused by climate change and South Africa’s international obligations required the climate impact of the project to be considered.
The court agreed with EarthLife and the licence was cancelled pending the undertaking of another EIA.
Where legislation specifically requires (i) the government to take into account climate change when licensing infrastructural projects and/or (ii) give reasons as to how its decisions relate to their climate change commitments, a licence could be challenged if the government has failed to do this.
Example: Plan B Earth v Secretary of State for Transport
In the UK, the Planning Act requires the government, when setting national infrastructural policy, to take into account and give reasons as to how policies are consistent with the UK’s commitments regarding climate change mitigation and adaptation.
Part of Plan B’s challenge to the expansion of Heathrow Airport was based on an argument that the government failed to consider how the expansion was consistent with their commitments under the Paris Agreement.
Where legislation requires the government to give the public an opportunity to participate in the decision-making process, a licence could be challenged if it fails to do this.
Example: Mexico Supreme Court Ruling on Modification to the Ethanol Fuel Rules
The Mexican Supreme Court has invalidated a regulation in relation to the amount of ethanol allowed in gasoline because this of its potential environmental and climate change implications, and because of the failure to provide for the necessary public participation in the decision-making process.
Where a law gives the government discretion regarding the licensing of industrial or energy projects, its licensing decision could be challenged if you can show that it took irrelevant considerations into account or it failed to take relevant considerations into account when making its decision.
These claims can be successful even if there isn’t a law which says the government has to take a certain issue into account (compare to statutory requirements to take climate change into account).
Example: Stephenson v Secretary of State for Housing and Communities and Local Government
An organisation against fracking challenged a UK government policy that promoted fracking on grounds that the policy was made without consideration being given to the climate impact of the policy. The court agreed and ruled that the policy was unlawful on this basis.
Even if there is not a specific law which requires the government to adopt a specific procedure, decisions of governments in many countries can be challenged where the procedure leading to the decision is generally unfair.
This could be the case where the government:
Human rights have a procedural dimension. This means where the government is taking actions which could interfere with your human rights, the government must abide by certain procedural safeguards.
Example: IACtHR Advisory Opinion on the Environment and Human Rights
The Inter-American Court of Human Rights outlined that States have the following procedural obligations before they undertake activities which could cause significant environmental damage that impacts human rights:
- Duty to require and pass environmental impact studies; and
- Provide opportunities for public participation in the first stages of decisions.
The licensing of a big carbon-emitting project could be challenged on human rights or constitutional grounds where these requirements have not been complied with. This is true even if, for example, there is no specific law that requires the government to hold an EIA.
Below are the main types of law on which you could have a “cause of action” for a substantive challenge.
Human rights are found national constitutions and human rights law, as well as in international human rights treaties.
Climate change poses a serious threat to the enjoyment and exercise of our human rights.
Key Resource: The OHCHR Study on the Relationship between Human Rights and Climate Change
This is a useful UN paper that provides an overview of the impacts climate change has on different human rights. It provides useful information for human rights-based arguments and has reference to evidence that shows how will human rights will be affected.
The following human rights are most clearly affected by climate change:
Governments have an obligation to respect human rights: This obligation requires governments not to act in a way that interferes your human rights (unless this can be justified).
Key Case: The Inter-American Court of Human Rights’ Advisory Opinion on the Environment and Human Rights
The IACtHR held that the obligation to respect human rights includes a duty not to interfere, through environmental contamination, with the enjoyment of people’s human rights. The IACtHR made it clear that these obligations apply to climate change.
The obligation to respect is relevant here as it is the State, through its act of licensing or approving a carbon-emitting project, that is interfering with your human rights. The key point to make in human rights-based challenges to carbon-emitting projects is that the obligation to respect certain human rights prohibits the government from licensing projects which will interfere with your rights by significantly contributing to climate change.
In deciding which rights to base a project challenge claim on, you need to consider:
1. How does or will climate change affect my human rights?
After you have gathered evidence about the impacts of climate change on your country or region, think about the climate impacts outlined in the introduction to this Guide and the list of rights above.
Then narrow down the most relevant rights to your factual situation. For example, if you live in a coastal area and your housing is threatened by rising sea levels, the right to property, housing or private/family life may be most relevant.
2. What human rights are legally enforceable in my country?
After you have identified the most relevant human rights, you need to check which ones are legally enforceable in your country. Although human rights are universal in principle, they may not all be recognized in a law that you can enforce.
If you want to enforce a human right in national courts, it must generally be contained in:
Example: Plan B Earth v Secretary of State for Transport
An environmental organisation in the UK challenged the expansion of Heathrow Airport. Part of the challenge was based on the UK’s Human Rights Act, which incorporates the European Convention on Human Rights into national law.
There is also a possibility of taking a claim to enforce rights contained in an international or regional human rights treaty in an international or regional human rights body. This is discussed in Alternatives to National Court.
Also, even where you are enforcing rights protected in a national constitution in national courts, the interpretation and application of that right to your case could be influenced by how similar rights are understood and enforced at the international level.
Example: De Justicia – Future Generations v Ministry of Environment and others, Colombia
The claimants in this case were a group of young people. The Colombian Supreme Court took into account a wide range of national and international human rights instruments and principles, in deciding that deforestation which contributed to climate change breached their constitutional rights to water, air, a dignified life, health and others.
For more information on how international law can be used in national courts, see What Laws Could I Enforce? in the A4J Going to Court: Q&A
Once you have identified a relevant and legally enforceable right, you need to argue that the government has violated that right. This means that it’s breached the human rights obligations it owes you.
In essence, what you will be arguing is that the government’s licensing/approval of a big carbon-emitting project has contributed to climate impacts and, consequently, violated your human rights.
Example: Greenpeace Nordic and Nature and Youth v Ministry of Petroleum and Energy
Environmental organisations in Norway are challenging a licensing decision to permit oil exploration in the Barents Sea. They are challenging the decision on the basis that it violates the right to a healthy environment in Norway’s Constitution.
They argue that the licensing decision could lead to the discovery, export and combustion of a large amount of oil and gas which would excessively contribute to climate change and, as a result, environmental harms in Norway.
For this argument to be successful, you usually need to show:
You can find more information on this issue in the People’s Guide on Holding Your Government Accountable for Climate Change.
The doctrine of irrationality or unreasonableness is a principle in which a decision of a public body can be challenged if it is so unreasonable that no reasonable decision-maker could have made the decision.
This is a very high threshold to reach but, in extreme cases, it could be argued that the licensing of a project was irrational because it was wholly and obviously incompatible with available climate science regarding climate change.
In some countries there is a legal doctrine called public trust which requires the government to take measures to protect the shared natural resources of the State.
It could be argued that a government’s licensing of a carbon intensive project violates the public trust because it demonstrates the government is damaging the shared natural resources of the State (which will be impacted by climate change).
To be able to bring a constitutional, public law or human rights claim, you must have “standing” (i.e. the legal right to bring a claim).
The following types of people can often have standing to bring public claims. But you have to check this in your country’s legal system.
Claims can often only be brought by persons who have been harmed when a national law has been broken. In challenges against big carbon-emitting projects, this means you may have to show that you will be particularly affected by climate change. This could be because of
However, when specific projects are being challenged, is sometimes sufficient to show that you have an interest in the project. This could be shown where:
Some jurisdictions permit multiple affected individuals to be represented collectively by a claimant. These actions may be called a “group”, “collective” or “class” action.
Example: Save Lamu v Nema & Amu Power Ltd
A local community group successfully challenged the licensing of a coal-fired power plant on the basis it was granted without a proper environmental impact assessment was conducted. This was in part due to a failure to consider the climate impact of the project.
In some countries, groups and individuals that have an interest in a particular area or issue can bring a case that involves their area of interest even if they aren’t personally affected.
Example: Greenpeace Nordic and Nature and Youth v Ministry of Petroleum and Energy
Greenpeace Nordic and Nature & Youth were permitted to bring a constitutional challenge to an oil exploration licence on the basis that they were environmental organisations and the claim concerned environmental interests.
For more information, see Who Can Take Legal Action?
Challenges against big carbon-emitting projects should generally be brought against the public authority responsible for making the licensing decision. This could be:
Example: EarthLife Africa Johannesburg v Minister of Environmental Affairs
The claim in this case was brought against the Minister of Environmental Affairs, who was responsible for licensing the coal mine under review.
It may also be possible to bring a claim against a project in another country on human rights grounds.
Area to Watch: Extraterritorial Human Rights Obligations
There is growing acceptance that governments human rights obligations extend to persons outside their borders. It may therefore be possible to bring a challenge against a government of another country for licensing a big carbon-emitting project.
In public law actions, it’s the claimant who has the “burden of proof”. This means the person bringing a civil claim needs to prove their case.
One of the first things you need to do to bring a successful claim is gather evidence that will be accepted in court. You need to have a set of facts that describes what happened and evidence that supports your “version of events” (i.e. what you are saying happened).
When you’re bringing a challenge to a carbon-emitting project, you will need evidence regarding:
You will need to provide evidence that global temperatures are rising, this is caused by man-made GHG emissions and the warming of the Earth will have serious impacts (see Climate Change).
Focus Point: The Global Carbon Budget
The global carbon budget is the amount of remaining GHGs that can be emitted if the world is to stay below 2° or 1.5°. This is especially important to include when you are making challenges to carbon-emitting projects as it provides a way that the climate impact of a project can be quantified.
When presenting evidence on climate impacts, you should focus on the particular climate impact that affects you and your community.
It can strengthen the argument that a public authority should not have licensed a project which will significantly contribute to climate change when the government has already made legal and/or political commitments to combat climate change.
Key Sources
You could demonstrate what commitments your government has made to combat climate change by highlighting that it has:
- Signed and ratified the Paris Agreement and UNFCCC;
- Made commitments to reduce its contribution to climate change in national law;
- Made political or policy commitments publicly regarding climate change.
These commitments can then be contrasted against the government’s decision to license a project that will significantly contribute to climate change.
To successfully challenge a carbon-emitting project, you will need to know the details of the project.
Key Questions
- What is the project? (e.g. the construction and operation of a coal-fired power plant or the exploration, drilling and export of oil)
- Where will the project take place?
- How was the project licensed?
- When was the project licensed?
- Which public authority was responsible for licensing the project?
- When will the project begin?
- How long will the project last for? (i.e. the length of time the power plant will be operational)
Some of this information may be publicly available. It could be found in:
If the information is not publicly available, you could possibly use a “freedom of information request” to gather more information about a project the government has licensed. For more information, see Access to Information.
The extent of the contribution the project makes to climate change should be outlined.
It will generally be important to demonstrate the following:
For example:
This includes:
Once you have worked out how the projected GHG emissions of the project, it’s important to show what impact these GHG emissions will have on the global carbon budget.
It can also strengthen your argument to show what impact these GHG emissions will have on the government’s ability to meet its climate change commitments. For example:
Practical Tip: Expert Evidence
Some of the above information may be publicly available and could be found in, for example:
- Governmental policy papers regarding the project. These may estimate the likely output from the project; and
- Consultations, environmental impact assessments and audits that have been published regarding the project. If these considered the climate impact, they may include a projection of GHG emissions.
Some of the information (e.g. projected GHG emissions) may not be available and will require expert evidence from someone qualified. Depending on the project concerned, a qualified expert could be a climate scientist or a specialist engineer.
If you are arguing that your rights are being impacted by the licensing of a project that will significantly contribute to climate change, you will need to provide evidence the specific loss or damage the you have suffered, are suffering or will likely suffer as a result of climate change needs to be detailed.
Specific loss and damage may include:
The specific loss and damage your claim is based on needs to be consistent with and supported by the climate science on the impacts of climate change on your country or region.
Practical Tip: Sources of Evidence
Useful evidence to demonstrate personal loss, injury and damage include:
- Witness statements from yourself and people in your community/group who have been affected by climate change impacts;
- Photographs, videos and satellite images;
- Environmental samples from the local area demonstrating environmental harm (e.g. ocean acidification);
- Local scientific, university, NGO/CSO and government reports, and an expert witness which corroborates the harm claimed by witnesses; and
- News reports of extreme weather events in the area.
If you want to make a procedural challenge, you will need evidence of what happened at key stages of the decision-making process which led to the licensing of the project.
Key Questions
Key stages in the licensing process and questions often include:
- The initiation of the process;
1. How was the decision-making process initiated?
2. What public body was responsible for overseeing the process?
3. Why was the project initiated?
- Social and environmental impact assessments that were made before the licensing decision was made:
1. Where impact assessments made?
2. At what stage in the decision-making process where the assessments made?
3. What information was included in the assessments?
4. What were the results of the assessments?
5. How did this affect the licensing decision?
- Expert evidence and consultations that were made before the licensing decision was made:
1. Was expert evidence considered? Where consultations made?
2. At what stage in the decision-making process did the consultations take place?
3. Who was consulted?
4. What were the outcomes of the consultations?
5. How did this affect the decision?
- Public participation in the decision-making process:
1. Did the public have an opportunity to participate in the process?
2. At what stage in the decision-making process where the public given opportunities to participate?
3. In what way were the public able to participate?
4. Was were the views of those who participated?
5. How did this affect the outcome of the decision?
- Policy papers, memos or press releases that were made by the government during the decision-making process;
- Political debates regarding the licensing decision; and
- Final reasons for the licensing decision.
Some of this information will be publicly available and others may be made available after a freedom of information request.
This evidence also needs to relate to the legal basis of your claim. It is not enough to show that climate change affects you, a project will contribute to climate change or that a procedure has been unfair.
The evidence has to support your legal argument that the procedural unfairness related to or the GHG emissions of a project correspond with the breach of a legal obligation. See the sub-section above for examples of what the legal basis of your claim could be.
These claims are usually taken in national administrative or constitutional courts.
The procedure that you have to follow will depend on whether you live in a “common law country” or “civil law country”. The law in your country will outline a judicial review, constitutional petition or amparo process, so that you can bring a claim to the courts and the court may review the situation and provide a remedy.
Focus Point: Limitation Periods
A limitation period imposes a time limit within which a claimant may bring a case. The limitation period depends on the precise cause of action and will dictate the amount of time you have to file your case in court. If you do not file your case within the relevant limitation period, you may be prevented from bringing the claim.
Research the law in your country to determine the relevant limitation period for your claim. You will also need to identify when the time starts running for the limitation period. When challenging carbon-emitting projects, the time will usually start running from the date the government made the licensing decision or took the action you are challenging.It may also be possible to apply for the limitation period to be extended.
Generally, you will have to meet the following requirements to bring a constitutional or administrative claim:
Write a formal letter to the proposed defendant setting out the proposed claim and what you wish to achieve. A response is usually requested from the defendant.
Submit your "claim form" to court within the required "time period" (there is usually a number of months of years after the incident within which you must file your claim).
Present your grounds for the claim to the court, which will be shared with the defendants. This document can be referred to as a "statement of claim", "statement of case", "particulars of claim" and "complaint". This then have to be shared with or "served" on the defendant.
In some countries, you have to apply for permission to bring a public law claim. This is a process where your claim is vetted to see if it's credible or has reasonable prospects of success before the defendant has to respond. The defendant can present arguments at this stage. In other countries, the claimant does not have to apply for permission but the defendant can make an application to dismiss the case or apply for summary judgment. The court will then decide whether the case is sufficiently credible or has reasonable prospects of success in order to decide whether to allow it to continue.
Defendants will then have a chance to explain their position. They can either accept all or part of your claim, or deny your version of events in full. This document is known as the "defence".
You and the defendant may be asked to share the evidence you are relying with each other. If you are using witnesses, you will usually need to include what they are going to say in a "witness statement" or "affidavit".
At the hearing, you will present your arguments, including a review of the key evidence already likely filed with the court, witnesses may give oral evidence and can be questioned by the lawyers. The court then makes its decision.
The losing party generally will have the right to appeal this judgement before a higher court.
Focus Area: Complaints to Regional and International Human Rights Bodies
If your claim is based on human rights, in some countries there is also the option to bring your case to a regional or international human rights body if you have been unsuccessful in national courts.
For more information, see Individual Complaints to Regional and International Human Rights Bodies.
If you bring a successful claim against the government in human rights, constitutional or public law, you could get one or more of the following “remedies”:
A court order could also make a quashing order, which directly cancels the licence and makes it have no legal effect.
Example: EarthLife Africa Johannesburg v Minister of Environmental Affairs
After finding that the licensing of a coal power plant was unlawful due to the EIA’s failure to take into consideration of its climate impact, a court order was made cancelling the licence until a climate impact assessment was made.
It is important to remember that the affected individuals and communities should lead on deciding which remedies are appropriate, as opposed to NGOs or lawyers. Consider the community impacts of each possible remedy.
If you want more information:
If you are considering taking legal action to challenge a big carbon-emitting project, we recommend that you download:
Key Resource: The Action4Justice Templates
The Template provides a skeleton for people to follow if they want to bring challenges against big carbon-emitting projects. The Templates have been designed by legal professionals with expertise in climate litigation.
The Templates aim to encourage effective use of the law to bring climate related litigation in appropriate cases by providing:
- An appropriate format for drafting a document in which to make a claim (“the legal complaint” – paragraphs, font, page numbers, title, headings etc);
- An effective structure in which users can place their legal and factual arguments regarding climate change;
- An outline of the arguments that could be used when bringing climate litigation; and
- References to climate science and cases to help the user build a strong case.
While your complaint needs to be different depending on what country you are taking a legal case, the Template provides useful tips and guidance to get you started if you are thinking about using legal action for climate justice.