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Mitigation – reducing emissions – challenging specific activities or projects

Earlier pages have discussed actions against public bodies and policies and against high emitting corporations. But often legal action is possible against specific localised activities or projects which may involve adverse consequences in CC terms. They also often involve many different people or organisations. Examples are mines or oil drilling locations, pipelines, power plants and dams (dams are often promoted as climate friendly but this is often not the case – for why not see this explanation from AIDA).

Some general points are that

  • The approach that can be adopted for these large-scale projects can also be adopted for much smaller scale ones such as the direction of ordinary buildings or clearance of small areas of forest
  • as with much other legal action, legal proceedings often go hand in hand with campaigning, and this can be especially effective on this type of project has they usually happen in a specific location and will be of particular interest to the inhabitants of that location
  • even if the main reason or a reason for challenging the project is its climate change implications, often associated problems can be invoked as well such as it is effect on the environment generally, water supplies is local communities etc
  • Often action can be taken against people other than the operators or owners of the project or proposed project. It may be effective against in particular against investors in or lenders to such operators and owners. In particular an increasing number of banks  have policies or codes of conduct prohibiting investment in project which will have adverse CC effects

Legal Basis for challenge

Projects of this kind are often challenged on the basis either that they will have an adverse effect on CC or, looking at things the other way round, CC might have an adverse effect on them. So for example a proposed coal mine might be challenged both on the basis of the emissions from the coal to be produced, and on the basis that the proposed location was subject to increased flooding in from extreme weather events and rendered operation of the mine unsafe.

However the mere fact that an actual proposed project might have CC implications will not give legal grounds to challenge it. Actions are usually based on actual or threatened breach of

  • national or local laws or policies which regulate the process concerned, whether it be mining, drilling or power generation
  • planning laws which regulate the circumstances in which large infrastructure projects may be permitted
  • other laws which require EIAs (see section on mitigation – action against governments)
  • the terms of a licence, concession all permeate in relation to the proposed activity
  • laws which protect communities or the environment which may be adverse to the affected by the proposed project such as laws protecting wildlife or indigenous peoples all areas of land designated as parks or reserves

Example: In 2017 a challenge was brought against the Norwegian government’s granting of permits to drill for oil, based on the CC implications and the rights under 112 of the constitution to a healthy environment. Although the challenge failed to stop the permits, the right to a healthy environment was confirmed.

Example: also in 2017, a successful challenge was made in South Africa to a proposed coal power plant, on the basis of a failure to carry out and EIA, and is because of the adverse consequences not only in terms of CC from emissions but also in terms of water shortages due to the water intensive nature of the plant.

Example: In 2015 Panama’s National Environmental Authority temporarily suspended the construction of the Barro Blanco hydroelectric dam over non-compliance with its Environmental Impact Assessment (EIA). The dam was approved by the UN Clean Development Mechanism (CDM) despite risks of flooding to the territory of the indigenous Ngäbe Bugle communities.

Example: In 2017 an Irish court rejected an an application to challenge planning permission for an airport runway. Although the claim was unsuccessful, it contains useful material on questions of standing, rights to a clean environment and the effect of a Irish Climate Action and Low Carbon Development Act  of 2015

Many more similar examples from countries round the world can be found on the Columbia Law School chart of cases


Actions against lenders and funders

Most projects of this type require finance to make them viable. This may come from International Financial Institutions, national Banks or investment  funds, private banks or lenders, or a mixture of all of these.

Many of these are governed by their own laws all constitutions which limit the type of activity that they finance and/or require such activities to be subject to an EIA or equivalent level of checks and scrutiny. CC is often a relevant consideration.

Even where there are no binding legal requirements to this effect, the lenders may have signed up to voluntary codes or sets of principles which have a similar effect.

On this basis legal action may be possible against lenders and financiers. The same may be true in relation to fund such as pension funds or even insurers of the projects. So for example a Client Earth report (2017) on potential legal liabilities of Pension Funds and their advisers such as actuaries, arising from CC is here.

Example: In an action in 2008 an (unsuccessful) attempt was made to preventing US government agencies financing overseas projects which carried climate risks

Example: In 2017 a complaint was made to Canadian Securities authorities in relation to an allegedly misleading prospectus by a company  seeking to raise funds for an oil pipeline project

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