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Legal Action to Challenge Carbon-Emitting Projects

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:

  • Oil exploration and drilling: The process of drilling is carbon intensive. More importantly, the oil and natural gas that’s discovered is exported and burned;
  • Coal mines: The process of mining coal is carbon intensive and leads to coal being exported and burned;
  • Fracking: This is a carbon intensive process used to extract shale gas. Shale gas is then exported and burned;
  • Oil and gas pipelines: Pipelines allow the mass transportation of oil and gas from the place of extraction to the place of exportation and combustion;
  • Fossil fuel power stations: Fossil fuel power stations burn fossil fuels (often coal) to produce electricity;
  • Deforestation and Land Use: Logging projects which don’t replant trees at a sustainable rate reduce the earth’s ability to capture carbon dioxide and contribute to climate change. Conversion of forest to other land use, policies or law which promote carbon intensive use of land generally. Industrial scale agriculture including livestock production;
  • Transport related projects, such building or expansions of airports, roads, ports: Air travel accounts for a big proportion of GHG emissions.
  • Other infrastructure projects or policies: This could involve carbon-intensive dam construction projects and commercial developments.

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?
1

Is a Project Challenge Right for Me?

A question to ask yourself when considering bringing a case to court is whether bringing the case is the right decision for you.

  • You should continue to ask yourself at each stage of your case’s preparation.

The following table of advantages and disadvantages is designed to help you consider whether a project challenge is right for you:

ADVANTAGESDISADVANTAGES
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.
2

What Laws Can I Base a Procedural Challenge on?

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.


(a) Judicial Review and Constitutional Law Principles


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:

 

(i) Environmental Impact Assessments

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:

  • An EIA was not carried out at all; or
  • The EIA that was carried out was inadequate as it did not assess the climate impact of the project (the legislation itself may require this or you could argue that any EIA must take into account climate change due to the immense environmental impacts it will have).

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.

 

(ii) Statutory Requirements to Take Climate Change into Account

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 successful 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.

 

(iii) Public Participation in Decision-Making Processes

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.

 

(iv) Relevant and Irrelevant Considerations

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.

  • For example, an irrelevant consideration could be if the licensing decision was based on inaccurate climate science or an inaccurate assessment of the GHGs that would be emitted by the project.
  • Examples of relevant considerations could be: the climate impact of the project; relevant climate science such as the recent IPCC 1.5 report; your government’s commitments under the Paris Agreement; findings of an EIA; or recommendations of an official advisory committee on climate change.

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.

 

(v) Procedural Unfairness

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:

  • Failed to give reasons for licensing a project;
  • Failed to consult with the public and provide opportunities for public participation in the process leading to the licensing of the project;
  • Exercised bias in licensing a project where, for example, the relevant official/body has a conflict of interest (e.g. an official has a financial interest in the fossil fuel industry) or was improperly influenced by fossil fuel lobbying); or
  • Has promised the public that they would not licence a project, giving rise to a legitimate expectation, but has broken that promise by licensing the project.

(b) Human and Constitutional Rights


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.

3

What Laws Can I Base a Substantive Challenge on?

Below are the main types of law on which you could have a “cause of action” for a substantive challenge.


(a) Human and Constitutional Rights


Human rights are found national constitutions and human rights law, as well as in international human rights treaties.

 

(i) What Human Rights Are Impacted by Climate Change?

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:

  • The right to life: Climate change poses a threat to human life due to the higher incidence of mortality associated with extreme weather events, increased heat, drought, disease.
  • The right to health: Climate change can impact health by increasing heat-related respiratory and cardiovascular diseases caused by extreme weather events and natural disasters and nutrition deficits linked to food shortages and loss of livelihoods. There is also evidence of an increase in vector-borne diseases linked to climate change.
  • The right to a healthy environment: Climate change has huge impacts on ecosystems, threatening biodiversity, causing ocean acidification and desertification.
  • The right to food: Changes in temperature and precipitation may affect crop production and warming oceans can affect fishing productivity.
  • The right to water: Climate change will increase drought in currently dry areas.
  • The right to property and housing: Rising sea levels, flooding, forest fires and other climate-related harms will deprive many people of their housing and property.
  • The right to private and family life: In countries where the rights to health, housing or a healthy environment are not recognized, the right to private/family life provides some protection for the same issues.
  • The right to self-determination: Climate change threatens the existence and traditional livelihoods of whole nations. For example, rising sea levels have resulted in a threat to the physical and cultural survival of various Pacific island nations.

 

(ii) What Are My Government’s Human Rights Obligations Relating to 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.

 

(iii) What Right Should I Base My Claim on?

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:

  • Your national constitution or national human rights laws; and/or
  • An international or regional human rights treaty which is directly enforceable in your country.

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

 

(iv) How Can I Argue that the Government Has Violated My Human Rights?

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:

  • That an action of the government interferes with your enjoyment of a human right. This means that climate change has or will seriously affect your rights, and this is connected to a government licensing decision (i.e. there’s a causal link between the project, climate change and the impact on your rights). You will have to show the action interfering with your enjoyment of the human right has (i) reached a minimum threshold of seriousness, and (ii) is caused by climate change and will be contributed to by the project in question. To demonstrate these criteria, it will be important to have evidence of the legal test and threshold of seriousness to meet in your country, past cases which have reached this threshold, climate change’s impacts on you, the causes of climate change and the GHG emissions related to the project; and
  • The interference with your rights is not justified. Usually, this requires you to show that the impact on your rights caused by a government action is disproportionate to the legitimate aim (e.g. economic development) that is pursues. This will be a highly contested and fact sensitive argument. It will depend on the level of harm you have or will suffer, the foreseeability of that harm, the economic development of your country and the necessity of the project for the economy.

You can find more information on this issue in the People’s Guide on Holding Your Government Accountable for Climate Change.


(b) Judicial Review and Constitutional Law Principles

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.


(c) The Doctrine of Public Trust


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).

4

Who Can Bring a Claim?

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.


(a) Affected Individuals and Groups


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

  • Physical health conditions of yours which make you especially vulnerable to climate change;
  • Your geographic location is particularly vulnerable to climate change impacts; or
  • Your way of life and culture is particularly vulnerable to climate change impacts

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:

  • The project will take place near where you live; or
  • The project will take place in an area which you regularly visit or use.

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.


(b) Public Interest Groups


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?

5

Who Can a Claim Be Brought Against?

Challenges against big carbon-emitting projects should generally be brought against the public authority responsible for making the licensing decision. This could be:

  • The government department, ministry or body responsible for industry, transport or energy; or
  • A local government body responsible for projects in your area.

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.

6

What Evidence do I Need to Bring a Claim?

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:


(a) The Occurrence, Causes and Impacts of Climate Change


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.

  • For example, if your claim is based on sea level rises affecting your coastal town, place emphasis on the relationship between climate change and sea level rises in your area.

(b) Your Country’s Climate Change Commitments


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.


(b) Details of the Project


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:

  • The body of the licensing decision itself (i.e. the law/regulation that approved the project); and
  • Records of the political debate in parliament/congress that was conducted regarding the project.

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.


(d) The Climate Impact of the Project


The extent of the contribution the project makes to climate change should be outlined.

  • This is particularly important for substantive challenges, but it’s also important for procedural challenges (i.e. by showing the project will have make a significant contribution to climate change, it strengthens the argument that its climate impact should have been considered before the project was licensed).

It will generally be important to demonstrate the following:

 

(i) The Projected/Estimated Output of the Project

For example:

  • If you are challenging an airport expansion, how many extra flights will the project facilitate?
  • If you are challenging an oil drilling project, how much oil is likely to be produced?
  • If you are challenging a coal mine, how much coal is likely to be mined?

 

(ii) The Amount of GHGs that Will Be Emitted in Relation to the Project

This includes:

  • GHGs emitted through the direct operation of the project (i.e. through the process of oil drilling or the operation of a coal-based power plant); and
  • GHGs will be emitted down the value chain of the project (i.e. GHGs emitted when the oil that has been produced by the project is used after it has been sold).

 

(iii) The Project’s Impact on the Global Carbon Budget and/or the Government’s Climate Change Commitments

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.

  • In other words, what percentage of the remaining carbon budget will the GHG emissions of the project take up?

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:

  • If the government has committed to reducing its GHG emissions by 50% of 1990 levels by 2030, can it still do this if it approves the project?
  • How much more difficult will licensing the project make it to achieve the government’s GHG reduction target?

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.


(e) The Specific Impact of Climate Change on You (Substantive Challenges)


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.

  • This will be very important in substantive challenges based on human or constitutional rights.
  • You may not need to prove individual impact in procedural challenges or in general allegations of unlawfulness in judicial review. The exception is this is where you have to show you are affected by the project to have “standing”. It also may strengthen the argument your government should have considered the climate impact of the project if you can prove that you will personally be impacted by climate change.

Specific loss and damage may include:

  • Property damage (e.g. extreme weather events such as forest fires, storms and floods that have endangered or destroyed the claimant’s property);
  • Economic loss (e.g. sea level rises, drought, ocean acidification or loss of biodiversity which has affected the claimant’s way of life/occupation); or
  • Personal injury: Extreme weather events or temperature changes that have affected the claimant’s health or well-being.

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.

(f) The Procedure Leading to the Licensing of the Project (Procedural Challenges)


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.

  • When you have information about what happened in the procedure leading to the licensing of the project, you can then compare this to what procedure should have been adopted as a matter of law (see above).

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.


(g) The Evidence Must Be Linked to the Legal Basis of Your Claim


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.

7

What Procedural Steps do I Need to Take?

These claims are usually taken in national administrative or constitutional courts.

  • In some countries, this process is called “judicial review” or a “constitutional petition”.
  • In many Latin American countries, this process is called “amparo proceedings”.

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:

Public Law Procedure

  • 1

    Notify the defendant

    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.

  • 2

    File your claim form

    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).

  • 3

    Present your statement of 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.

  • 4

    The permission phase

    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.

  • 5

    The defence

    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".

  • 6

    Disclosure or exchange of evidence

    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".

  • 7

    Notification of a hearing date

  • 8

    The Hearing

    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.

  • 9

    Appeal

    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.

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What Happens if I Win?

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”:

  • Redo the licensing process with proper consideration of the climate impacts of the project (this will be common in procedural challenges);
  • Stop the implementation of the project;
  • Take actions to reduce the amount of GHG emissions that will be emitted as a result of the project; or
  • Take actions to offset the GHG emissions that will be produced by the project.

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:

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The A4J Templates on Climate-Based Infrastructure Challenges

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.

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