On 6 Mar 2020, at 8:14, Tamblyn, Nathan <N.Tamblyn@exeter.ac.uk> wrote:

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

 

To book an appointment: https://calendly.com/n-tamblyn

Visit profile page: https://socialsciences.exeter.ac.uk/law/staff/tamblyn/

 

 

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From: Barry Allan <barry.allan@otago.ac.nz>
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

​ 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.

​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).

Nonetheless, when it came to the public nuisance and negligence causes of  action, His Honour was constrained to apply orthodox principles. The public nuisance claim was not tenable primarily because any damage the plaintiff might suffer is no greater than, or different in kind from, the risks faced by the general public. The Court could not accept arguments that this rule should be discarded as archaic, and showed no inclination to do so. Furthermore, the damage is not direct - for damage to occur, the defendants' activities need to have an impact on global warming, for that warming to effect geographical changes and for those changes to cause damage to his land. A third problem was that he had pleaded interference with public health, safety, comfort and the like to satisfy the need for an interference with the rights of the public, but even if these interferences could be established, they would not cause the damage that the plaintiff alleged would be caused to his land. Finally, all activities of the defendants are currently lawful and the alleged interference with the public rights could not itself amount to the necessary unlawful act. If that argument was correct, the tort would be “pulling itself up by its own bootstraps.”

As for the negligence claim, the Court held that the damage said to be caused to the plaintiff's interests in the land were not foreseeable. The judgment on this point is not easy to accept, as it telescopes several points together (at [82]):

​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 Court also found against the plaintiff on the proximity element, for the reason just stated but also because only the Government can bring about the necessary collective action needed to combat climate change. There were also concerns with inderminacy and disproportionate liability. The plaintiff would need to establish he was a member of a class distinct from the general public - the plaintiff has a formidable problem on this point as well. At a policy level, the Court was also concerned that the relief sought by the plaintiff (the cessation of emissions by 2030) was more onerous than the current statutory and international targets in this area and that the defendants are all "socially useful". It was only in this context that the Court said that

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.

It is almost beyond doubt that the defendants will appeal the decision that the inchoate tort is tenable, although they may act strategically and demand that this first be properly pleaded. For the plaintiff, this is a point of principle that means settlement is not a likely outcome.

Barry 

Barry Allan | BA, BCOM, LLM Associate Professor Faculty of Law | Te Kaupeka Tātai ture University of Otago | Te Whare Wānanga o Otāgo