1. Causes of Action

6. HURDLES

A. Wide discretion

A prominent hurdle identified in some countries is the wide margin of discretion accorded by courts to public decision makers. This was particularly highlighted in Italy and the UK.

In Italy, a series of judicial review challenges based on the erroneous assessment of emissions in EIAs have been consistently rejected on the ground that public decision makers have a wide discretion in assessing the private versus public interests at stake in EIA procedures. For example, in the recent ruling No. 7041 of 2021, the Lazio Regional Administrative Court dismissed judicial review proceedings brought by two environmental associations that complained that in the authorisation procedure for the expansion of a recycling and composting plant, the competent administrative authority had wrongly assessed the project's atmospheric emissions, which, according to the plaintiffs, were outside the standards. The court emphasised the wide discretionary power of the administrative authority in the context of EIA proceedings, stating that

'the environmental impact assessment is not a mere technical act of management or administration in the strict sense of the term ... [but rather] a measure with which a real political-administrative function is exercised with particular reference to the correct use of the territory, in a broad sense, through the care and balancing of the multiplicity of opposing public interests (urban, natural, landscape, as well as economic-social development) and private interests'.

Similarly, the Council of State, in Judgment No. 1761 of 2022, rejected objections concerning the allegedly erroneous assessment of emissions from a project for the demolition and reconstruction of a poultry farm. The Council of State, confirming the judgment of the Regional Administrative Court of Emilia Romagna no. 756 of 2021, emphasised the wide discretion attributed to the administrative authority in EIA proceedings, including with regard to the assessment of emissions into the atmosphere. The Council of State stated that it did not intend to depart

'from the exegetical approaches reached by (international and national) case law, from which emerges the broad discretionary nature of the choices made, justified in light of the primary and absolute values involved ... The administrative judge's review in this matter is therefore necessarily limited to manifest illogicality and inconsistency, to the misrepresentation of facts or to macroscopic defects of preliminary investigation or when the act lacks adequate motivation'

Likewise, in the UK, courts have upheld decisions approving major infrastructure projects that will generate greenhouse gas emissions on the basis of the government's discretion to determine how best to achieve emissions reduction targets. For example, in Packham v Secretary of State for Transport [2020] EWHC 829 (admin) , environmental campaigner Chris Packham brought judicial review proceedings to challenge the decision to approve a major rail project (HS2). The claimant argued that a report into whether the project should proceed had failed to adequately take into account greenhouse gas emissions in accordance with the Paris Agreement and the Climate Change Act 2008. The High Court rejected these claims. The Court of Appeal refused permission to appeal, deferring to the government's discretion to determine how best to achieve its emissions reduction targets:

'85. In October 2017, the Secretary of State published the Clean Growth Strategy, setting out the Government's policies and proposals for decarbonising the national economy, fixing policy milestones as far as 2032, describing "illustrative pathways" for spreading decarbonisation throughout the economy, but allowing the Government to respond to changes in technology in those 15 years. The Clean Growth Strategy does not prescribe one particular "pathway" in the period to 2050. It envisages various means of managing emissions - such as taxation, regulation, investment in innovation, and establishing a UK Emissions Trading Scheme. And it leaves the Government to choose how to manage increases in emissions from major infrastructure projects within its strategy for meeting the target of "net zero" emissions by 2050.
86. Energy and Emissions Projections are regularly published, which quantify the contribution of policies and proposals to the reduction of emissions and the achievement of the climate change targets in the legislation, and enable the Government to monitor progress in meeting the United Kingdom's carbon budgets.
87. As Mr Mould submitted, the statutory and policy arrangements we have described, while providing a clear strategy for meeting carbon budgets and achieving the target of net zero emissions, leave the Government a good deal of latitude in the action it takes to attain those objectives - in Mr Mould's words, "as part of an economy-wide transition". Likely increases in emissions resulting from the construction and operation of major new infrastructure are considered under that strategy. But - again as Mr Mould put it - "it is the role of Government to determine how best to make that transition".'

B. Lack of climate laws

Another prominent hurdle identified is the lack of legislation setting standards on climate change that can anchor a judicial review claim.

In China, the government can bring administrative public interest litigation against regulatory bodies for failure to take action. However, there are currently no such cases that are specifically based on failure to perform duties related to climate change, because such litigation is hampered by the lack of laws specifically regulating climate change. For example, in the case of Songzi People's Procuratorate of Hubei Province v Songzi Natural Resources and Planning Bureau, [11] the Songzi Natural Resources and Planning Bureau of Hubei Province was sued by the local Procuratorate for failure to perform supervision and management duties in forest protection, which it was argued hindered the eco function of the forest in combating climate change. However, this argument was unsuccessful, in part due to the lack of legal provisions imposing climate obligations on the public body. There have been some improvements at the local level in terms of new legislation elaborating a duty to combat climate change, and national level climate change legislation is in discussion. If further legislation, particularly at the national level, is enacted this would provide the theoretical foundations for filing a suit for inaction on climate change.

A related obstacle identified in Japan is that rules on EIAs have been watered down by the government, particularly in light of the perceived need to build new power plants following the power crisis after the Great East Japan Earthquake in 2011.

[11] December 11, 2019湖北省松滋市人民法院行政判决书（2019）鄂1087行初3号 [Songzi People's Procuratorate of Hubei Province v. Songzi Natural Resources and Planning Bureau] [2019] Decision No.3, Songzi People's Court of Hubei Province.