The most striking feature of climate damage legislation in common law jurisdictions is the lack of civil liability to obtain compensation from negligent parties and to punish those who, through recklessness or intent, cause harm. It is a scientific consensus that the burning of coal, oil, and gas causes global warming. However, civil liability has an exceptionally weak track record in penalizing environmental polluters. For example, oil spills in the Port of Sydney and a subsequent explosion were deemed damages that were too “remote.”1 Chemical spills polluting Cambridge’s groundwater were also deemed a consequence too “remote” to warrant compensation for damages.2 In other words, any lawsuit against polluters faces profound doctrinal challenges at every stage of the process.
In terms of civil liability, under the traditional tort of negligence, three main questions arise: Was there damage? Was there a breach of the duty of care? And is there a causal link that is not too remote? First, there is a growing number of events resulting in increasingly extreme climate-related damages: floods in the United Kingdom, wildfires in Australia, and hurricanes in the United States. These result in property damage, physical and psychological harm, and death. Second, is there a breach of a duty of care? This depends on whether the harm is reasonably foreseeable, whether there is proximity, and whether it is fair, just, and reasonable to impose a duty.3 Climate damage was already predicted in 1965, and fossil fuel companies such as Exxon have been conducting extensive research on the subject since 1977. If a reasonable person should have known that their action could cause harm but acts anyway, there is a breach of duty.4
Third point: Do the actions of a fossil fuel company cause climate damage? Various sources pollute the atmosphere in different amounts, yet just 90 companies are responsible for 63% of all historical emissions.5 There is scientific uncertainty regarding the link between any given source of emissions and the resulting harm, because emissions in a single location lead to uneven global patterns of warming. However, in light of this uncertainty, it was established in Fairchild v. Glenhaven Funeral Services Ltd that a wrongdoer is liable for the material increase in risk that it causes.6 The preferred principle appears to be that violators are jointly and severally liable, although an alternative theory is that they may bear proportional liability—a rule that matters where some companies have become insolvent.7 The frequency and severity of these events are gradually increasing, which means that the percentage probability that any event is caused by climate damage is rising. As for the question of whether the causal chain is too “remote,” the answer must be no, since the climate damage caused by fossil fuels is expected and well understood.
It is likely that, when sued, fossil fuel emitters will place greater emphasis on the argument regarding causation. In the German state court in Essen, an ongoing case called Lliuya v. RWE AG has established that a major energy company, RWE AG, could in principle be held liable for damage to a glacier in Peru. The village of Lliuya, in Huaraz, was located near a melting mountain glacier, which caused Lake Palcacocha to expand and necessitated flood defenses. It was alleged that RWE contributed 0.47% of global carbon emissions and should therefore be responsible for 0.47% of the cost of flood protection. While the State Court dismissed the claim, arguing that there was no “linear causal chain,” in November 2017 the Superior Court granted leave to proceed to the evidentiary phase regarding the threat of landslides, and RWE’s exact contribution, to be assessed by experts.8 Of course, if a case establishes a company’s liability for climate-related damages, all companies under German jurisdiction could be sued for their contribution: this would likely render fossil fuel companies insolvent. A simple application of the principles in force under English law leads to the same result.
Another question may be raised: Should judges decide deeply political issues? Setting aside war and nuclear holocaust, no issue is as important as the future of life on Earth. This raises the question of “justiciability,” as a specific form of enforceability in court. In common law jurisdictions, the fundamental tort of “negligence” requires consideration of whether it is fair and reasonable to impose a duty of care for climate damage. It could be argued that the 2015 Paris Agreement, or the 2008 Climate Change Act, should supersede the civil liability laws applicable to greenhouse gas emissions. In the U.S., a similar argument was successful. In 2007, the U.S. Supreme Court ruled 5–4 that the Environmental Protection Agency had a duty to regulate greenhouse gas emissions under the Clean Air Act of 1963.9 This apparent victory was short-lived, as in the case of American Electric Power Co. v. Connecticut, the Court ruled 8–0 that, given the EPA’s jurisdiction, the application of federal civil liability law was precluded. English law does not follow this line of reasoning: in environmental matters, there is no barrier to the application of civil liability at any level, even in the absence of explicit language in the statute. The U.S. Supreme Court suggested that state civil liability laws should be applied,10 however, in subsequent cases, courts may conclude that, because harmful effects cross state lines, state laws become inoperative, making executive action necessary in the U.S. to control pollution at the federal level—a position that is incompatible with an effective justice system.
It is increasingly accepted that the common law system must be interpreted in light of human rights, particularly under the European Convention on Human Rights. For this reason, the Dutch Supreme Court’s decision in Urgenda v. the State of the Netherlands has become influential. It held that the Dutch government had to reduce greenhouse gas emissions by 25% by 2020, a standard drawn from the United Nations Framework Convention on Climate Change in 2007, which lists the developed countries that must reduce emissions by between 25% and 40% by the end of 2020 to stay 2 degrees below the threshold for climate damage.11 The Dutch Supreme Court ruled that failure to meet even the lower limit of this target violated both the right to life under Article 2 of the ECHR and the right to private and family life under Article 8.26 of the ECHR. In 2021, in a similar climate change case, the German Constitutional Court held that the government had a duty to accelerate its climate protection measures as part of its constitutional duty to protect the rights to life and to the environment under Articles 2 and 20a of the 1949 Grundgesetz.12 The significance of a decision based on these grounds is that, if followed by other courts across Europe, UK courts will have strong grounds to interpret common law rules in a manner consistent with the protection of the right to life and privacy. There is, therefore, a choice to be made regarding the suitability of civil liability to play a positive role in helping to mitigate the harm caused by fossil fuels.
In the case of Friends of the Earth v. Royal Dutch Shell plc, the District Court of The Hague held that, pursuant to Book 6, Section 162(2), of the Dutch Civil Code, failure to comply with Article 2(1) of the 2015 Paris Agreement would be unlawful: that is, “what, according to unwritten law, must be regarded as socially appropriate conduct.” In interpreting this general duty of civil liability, the Court took into account Articles 2 and 8 of the ECHR regarding the rights to life and to private, family, and domestic life. It was noted that “the serious and irreversible consequences of dangerous climate change in the Netherlands… pose a threat to the human rights of Dutch residents.” It was emphasized that Shell had a duty to reduce its emissions in accordance with the obligations of the Paris Agreement by 45% by 2030, whether those emissions were generated directly by its corporate group or indirectly by the purchasers of its products.13 Following the case, Shell plc dropped “Royal Dutch” from its name and announced the relocation of its headquarters to London, presumably in the hope of escaping the judgment, although, as expected, its public relations department denied this.
The most recent episode in the common law world is taking place in New Zealand, in Smith v. Fonterra, which seeks to sue seven of the largest emitters for negligence and public nuisance. It is alleged that these large corporations violated their duty of care toward New Zealanders by materially contributing to climate change. Evidently, the defendants’ argument relies heavily on civil liability theory, focusing on the lack of a causal connection between the emitters and Mr. Smith. What is interesting about the case is the interplay between Tikanga Māori (Māori customary law) and civil liability law, as Mr. Smith represents members of New Zealand’s largest tribe. It’s not every day that you see someone suing a group of large corporations for tens of billions of dollars over damage to coastal properties. He argued that the damage was caused by New Zealand’s largest coal miner, an oil refinery, a power plant, and other emitters.
The case reached the Supreme Court after lower courts refused to hear Smith’s case. The justices held that the outcome sought by Smith represents a dramatic shift in national climate change policy, and that it is up to the democratically elected parliament to change course, not the courts. Before the Supreme Court, the defendants argue that climate damage would occur anyway, that their collective emissions are “minuscule,” and that reasonable people in the defendants’ position could not have foreseen the damage. Furthermore, such harm would be an unlikely or remote consequence of the defendants’ emissions.14 This reasoning contradicts the famous precedent Rookes v. Barnard, in which the House of Lords established that punitive damages are applicable when the conduct is calculated to generate profit: “Where a defendant, with a cynical disregard for the plaintiff’s rights,” said Lord Devlin, “has calculated that the money to be gained by his tort will likely exceed the damages at risk, it is necessary that the law show that he cannot break the law with impunity.”15
However, the plaintiff urges the court to be bold: Perhaps the most important question is, if the courts will not do this, what will they do? Indeed, in this unprecedented “David and Goliath” battle, legal boundaries are being stretched in an attempt to force action on climate change. The fact is that the seven major emitters Smith has taken to court are technically acting within their authority, without violating any written law passed by parliament. Smith’s case invokes civil liability for tort and calls on New Zealand’s common law system to determine that the major emitters are causing harm and should not continue with business as usual. To draw an analogy with the classic concept of the tort of negligence: if you are riding a bicycle, fail to pay attention, and collide with a wealthy person’s car, you are liable for negligence for the damages caused. Furthermore, with regard to the tort of public nuisance, there is conduct that interferes with public life and enjoyment. If all else fails, the creation of a new tort is advocated: the tort of climate change, an invitation for judges to devise a more environmentally friendly way of applying the law.
In short, it is difficult to understand why New Zealand’s lower courts did not have the presence of mind to reason in a manner similar to that of the Dutch court. Perhaps they simply do not care about the international human rights treaties that New Zealand has signed and ratified. However, the pressing issue of climate change raises another question: that of the courts’ institutional capacity to formulate broad policies. This is not to say that urgent measures should not be taken on this issue. Rather, it is a matter of asking whether the courts are in a position to take and order the necessary measures.
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- The Wagon Mound (No 2) [1961] UKPC 2.
- Cambridge Water Co Ltd v Eastern Counties Leather plc [1993] UKHL 12, cf the Environment Act 1995 ss 5-6.
- Caparo Industries plc v Dickman [1990] UKHL 2, adopting the reasoning of Bingham LJ [1989] QB 653.
- Donoghue v Stevenson [1931] UKHL 3, per Lord Atkin.
- R Heede, 'Tracing anthropogenic carbon dioxide and methane emissions to fossil fuel and cement producers, 1854-2010' (2014) 122 Climatic Change 229.
- Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22. McGhee v National Coal Board [1972] UKHL 7. In the US, see Sindell v Abbott Laboratories 26 Cal 3d 588 (1980).
- Barker v Corus (UK) plc [2006] UKHL 20.
- 2015 Case No. 2 O 285/15 Essen Oberlandesgericht.
- Massachusetts v Environmental Protection Agency, 549 US 497 (2007), under 42 USC §7521(a)(1).
- 564 US 410 (2011) Ginsburg J, leaving 'the matter open for consideration on remand.'
- UN Framework Convention on Climate Change 1992, Annex I, and recommendation from the IPCC Working Group III, Climate Change 2007: Mitigation of Climate Change (2007) Contribution to the Fourth Assessment Report, ch 13, 776, Box 13.7. Note that the Renewable Energy Directive 2009/28/EC Annex I target for the Netherlands was just 14%.
- Klimaschutz or Climate Change (24 March 2021) 1 BvR 2656/18.
- (26 May 2021) C/09/571932 / HA ZA 19-379.
- Smith v Fonterra Co-Operative Group Ltd. NZHC 419 [2020].
- Rookes v Barnard [1964] AC 1129, UKHL 1.