Thanks for this.
As many will know, here in England there was recently a successful judicial review challenge against the decision to expand Heathrow airport on the basis that it did not consider the legislated target of reducing emissions. While in the Netherlands the Supreme Court has ruled that the government owes a duty to protect citizen’s human rights by reducing emissions.
As for private nuisance, it has been argued that it developed in order to protect rural England from the industrial revolution, so perhaps we are starting to come full circle (Pontin (2012) 75 MLR 1010).
N
Nathan Tamblyn
MA (Oxford) LLM PhD (Cambridge) SFHEA Barrister
Associate Professor of the Common Law
University of Exeter Law School
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https://calendly.com/n-tamblyn
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Sent: Friday, March 6, 2020 5:59:06 AM
To: obligations@uwo.ca <obligations@uwo.ca>
Subject: Torts v Climate Change
Greetings from New Zealand
Judgment has just been issued in Smith v Fonterra Co-operative Group Ltd [2020] NZHC 419 (available at http://www.nzlii.org/nz/cases/NZHC/2020/419.html).
The plaintiff represents the owner of a piece of coastal land in New Zealand. The seven defendants are either direct emitters of greenhouse gases (such as by operating coal-fired factories) or indirect emitters (such as a major supplier of fuels used by
vehicles). The case proceeded on the agreed basis that each of the defendants emits greenhouse gases, that these contribute to global warning and climate change and that these changes have a significant adverse impact on the sea level, ecosystems and humankind
as a whole. The plaintiff sought a declaration that the defendants are required to cease emissions by 2030 - for some, this would mean a cessation of their business and related injunctions (he did not seek damages). It is of considerable interest that the
Judge entertained the causes of action despite arguments that the issues were non-justiciable.
The plaintiff relied on three causes of action: public nuisance, negligence and an inchoate "tortious duty which makes corporates responsible to the public for their emissions". The point of most immediate
interest is that the High Court struck out the first of these causes of action, but was not prepared to strike out the third as untenable. It seems that the elements of this duty have not yet been ascertained or even pleaded (there is no mention of such in
the judgment), and the only statement made by the court as to why it was not striking it out is that
The Judge noted an extra-judicial statement by our Chief Justice and two of her colleagues on the bench that "it may be that private law will develop to meet some of the challenges confronting climate change litigation e.g. adjusting traditional concepts of standing" and by "looking at issues from different angles may mean that such hurdles [i.e. obstacles posed by issues of causation] become less significant". One of the central dilemmas posed by climate change for the law of tort is that it creates “a collective action problem so pervasive and so complicated as to render at once both all of us and none of us responsible” (quoting Douglas A Kysar). it may be that a novel claim such as that filed by Mr Smith could result in the further evolution of the law of tort. It may, for example, be that the special damage rule in public nuisance could be modified; it may be that climate change science will lead to an increased ability to model the possible effects of emissions. These are issues which can only properly be explored at trial. I am not prepared to strike out the third cause of action and foreclose on the possibility of the law of tort recognising a new duty which might assist Mr Smith.
I do not consider that the defendants should have apprehended that there was any real risk of the damage claimed in this case. Assuming the damage claimed by Mr Smith can be proved, the defendants cannot protect Mr Smith from that damage. Even if they stop emitting greenhouse gases, either immediately or by 2030, and/or stop supplying products from which greenhouse gases are emitted, the science suggests that it is likely that the damage will nevertheless eventuate. The defendants’ collective emissions are miniscule in the context of the global greenhouse gas emissions which are causing climate change and it is the global greenhouse gas emissions which are pleaded as being likely to cause damage to Mr Smith. In these circumstances, in my view, reasonable persons in the shoes of the defendants could not have foreseen the damage claimed by Mr Smith. It is such an unlikely or distant result of the defendants’ emissions that it would not be fair to impose liability on them.
The Courts are poorly equipped to deal with the issues which Mr Smith seeks to raise. This country’s response to climate change involves policy formation, value judgments, risk analysis, trade-offs and distributional outcomes. These matters are well outside the normal realms of civil litigation.
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Barry Allan
| BA, BCOM, LLM Associate Professor Faculty of Law | Te Kaupeka Tātai ture University of Otago | Te Whare Wānanga o Otāgo |