Climate Change Liability in Egypt, Israel, Kenya and South Africa

(image by Tomas Castelazo)

At the end of 2011, right in time for the Durban summit, was published the following book:

„Climate Change Liability – Transnational Law and Practive“, edited by Richard Lord, Silke Goldberg, Lavanya Rajamani and Jutta Brunée, Cambridge University Press, Cambridge 2012, ISBN 978-1-107-67366-3.

To our knowledge, this is the first book comparing the law of different national systems under the aspect of climate change liability, the major topic of this blog. It has been written by more than 40 authors and is of good average quality. Accordingly, we present the content of this book quite in detail. When doing so, we focus on one of the two types of liability: private liability (discarding public liability). We summarize the various contributions in a view of indicating the chances of victims of climate change to sue successfully polluters. For some of the states examined in the book, our summary is very short, regardless of the length of the original text.

The first blog entry focused on the general conclusions the authors draw from the detailed investigation. The second blog entry presented the chapters on Australia, China, India, Indonesia and Japan. This blog entry presents the legal situation for Egypt, Israel, Kenya and South Africa.

Egypt

Liability on a fault basis: To obtain compensation via Article 163 of the Civil Code, the claimant has to establish fault, a fault being “a breach of a legal obligation to observe due care towards others, by deviating from the behavior of the reasonable man” (261). In the view of the authors, emitting greenhouse gas (GHG) can hardly be regarded as a fault given that the environmental law does not forbid it and given that Egypt is a non-Annex I country (262).

Liability on a non-fault basis: Article 178 of the Civil Code establishes the responsibility of the guardian of things which require special care (262). The guardian may prove that the damage has occurred as a result of an alien reason to which he did not contribute (262). The major obstacle identified by the authors in the case of climate change litigation is the fact that “it is difficult to prove that the defendant is primarily responsible for the long-term harm that is caused by many contributors around the world” (263). “Egyptian law does not recognize the concept of 'material increase in risk' or a similar concept” to prove a damage; the damage must be there (263).

Israel

Clean Air Act 2008: GHG fall under the CAA (274). “The CAA prohibits” any natural or legal person “from causing strong or unreasonable air pollution” (274).

Breach of statutory duty: These are the conditions for obtaining compensation (287/288):

• Breach of a statutory duty (to be assumed in case of violation of the CAA);
• The statute is intended to protect the plaintiff or the public as a whole (this can be assumed in the case of the CAA);
• The plaintiff was damaged by the breach (causality);
• The type of damage suffered by the plaintiff belongs to the damages intended to be prevented;
• The legislator did not indicate that a breach of the statutory duty should not legitimate civil action (in the case of CAA, the legislator indicated the contrary – private litigation should be possible);
• The damage must have been foreseeable (see below under negligence).

Negligence: There must have been a duty of care between the particular defendant and the particular plaintiff (289). The causality is established on the basis of the “sine qua non test” or by assuming that the defendant set a “sufficient cause”; the Supreme Court seems to be creative when wishing to compensate victims (291) which may include assuming causality based just on statistical grounds (292, 293). The damage must have been foreseeable which implies that the defendant could see the potential causality between his behavior and the damage; and that he also should have seen this causality (290). The authors assume that there would not be a joint and common liability of tortfeasors in the case of GHG emissions, but just a compensation based on the individual tortfeasor's share (e.g. market share).

Nuisance: Nuisance covers the “interference of one person with another person's enjoyment of his/her land and is therefore too narrow in scope” for covering GHG emissions (286).

Comment: Israel is attractive for cases where a company infringed the CAA. Israel’s jurisprudence on negligence is also quite generous for victims. But the absence of a joint and common liability of all tortfeasors makes Israel much less attractive in general terms.

Kenya

The authors only describe the legal basis for legal action, without really applying the legal basis to the case of climate change compensation claims.

Nuisance: The claimant must prove that there is a continuous interference of the defendant with the claimant's use or enjoyment of land. Furthermore, the must demonstrate that the defendants behaviors was unreasonable (313).

The Rule in Rylands v. Fletcher; The authors resume the Rylands v. Fletcher ruling, which is used all across Anglo-Saxon/common law countries, as follows (314): “Where a person for his own purposes brings and keeps on land in his occupation anything likely to do mischief if it escapes, he must keep it at his peril, and if he fails to do so, he is liable for all damage which is a natural consequence of the escape.”

Negligence: The lawsuit is only successful if

• the defendant had a duty of care towards the plaintiff,
• has breached this duty and 
• if this breach has caused the damage of the plaintiff (314). 

Causality can only be assumed “if the defendant's particular acts or omissions were the cause of the loss or damage sustained”; this is likely to be difficult to prove (315).

South-Africa

Regular tort law: Civil liability for tort has, as a rule, the following preconditions:

• An act or an omission must have caused damage or harm to another person (333);
• In case of an omission, the court may request that the plaintiff to demonstrate that the defendant had a legal duty to act (334). Such a duty could derive from the National Environmental Management Act (336) which imposes, in its Section 28, a duty of care on persons causing pollution or degradation of the environment (323);
• The court must state, in a kind of discretionary decision taking account of societal factors and of the constitution, whether there is “wrongfulness”;
• The defendant must have acted in awareness of the potential damage = with dolus (337) or, at least, negligently (338). The authors claim that dolus indirectus or dolus eventualis might be given for most defendants in the case of climate change (339).
• Negligence is given as soon as a reasonable person would foresee the possibility of a harm and would take reasonable steps to prevent this harm and if the defendant failed to take such steps (338);
• Causality must have been established (340). The authors claim that this will be the major stumbling block;
• The causality chain shall not be too remote (341).

Product liability: The authors claim that the Consumer Protection Act, establishing a strict liability, could in theory be invoked for climate change compensation claims caused by goods, whether produced in South-Africa or imported (342, 343). However, here again the issues of wrongfulness and of causation arise (342).

Nuisance: Nuisance can be given by “an act or omission that inconveniences another's right of use and enjoyment” and that constitutes an unreasonable and wrongful use of property (343).

Joint and common liability: The South-African law provides for the apportionment of damages in accordance with the Apportionment of Damages Act (340). Thus there is no joint and common liability.

Comment: Though providing for a variety of relatively promising legal paths for climate damage litigation, the South-African law is not ideal for victims of climate change due to the apportionment of damages (no joint and common liability).

Lawyers might nonetheless appreciate reading this chapter in as much as it is sophisticated. Several argumentations such as the one on dolus (instead of mere negligence) are unique and make this chapter particularly instructive.

A free PDF copy of the book is available at the oxfam website:
http://policy-practice.oxfam.org.uk/publications/climate-change-liability-transnational-law-and-practice-191277

Tendencies in national laws with regard to Climate Change Liability - Part 2 Australia and Asia

Climate Change Litigation Laws
in selected Countries of SEA

This is part 2 of a look into national liability laws published right in time for the Durban summit. This section focuses on liability laws in Asia, Southeast Asia, and Australia.

The book we are discussing is “Climate Change Liability – Transnational Law and Practice”, edited by Richard Lord, Silke Goldberg, Lavanya Rajamani and Jutta Brunée, Cambridge University Press, Cambridge 2012, ISBN 978-1-107-67366-3.

To our knowledge, this is the first book comparing the law of different national systems under the aspect of climate change liability, the major topic of this blog. It has been written by more than 40 authors and is of good average quality. We present here a very detailed summary of the book. When doing so, we focus on one of the two types of liability: private liability (discarding public or common liability). The summery of the various contributions focuses on clearly comparing and stating the chances for victims of climate change to successfully sue polluters. For some of the countries examined in the book, our summary is very short, regardless of the length of the original text.

The first blog entry focused on the general conclusions the authors draw from the detailed investigation. This second blog entry presented here summarizes the chapters on Australia, China, India, Indonesia and Japan.

Australia

Private climate damage litigation is unlikely to be successful in Australia (85, 102). The authors examine two potential paths: negligence and nuisance. Case law on nuisance can hardly be applied to climate change compensation claims given that it has been developed for "small-scale local disputes" (99) and given that greenhouse gas (GHG) emissions will hardly be seen as "unreasonable" (99). Case law on negligence gives no better prospects. Negligence is given “where a defendant has breached a duty of care owed to a plaintiff, thereby causing harm to the plaintiff” (86). The duty of care concept remains pretty vague, courts requiring foreseeability and further, not well established elements to be given (86, 87). Courts are likely to deny both foreseeability of the concrete harm (88-90). Furthermore, a “definite contribution to a process resulting from the cumulative effect of a multitude of such contributions” is not necessarily regarded as legal cause, even if negligence there was to be assumed (97).

As for Claimants, there may be a lot of victims of climate change from the region, for instance those affected by the Queensland Floods in November 2010 - February 2011 with Australian government disaster recovery payment reaching nearly $500 million Australian Dollars. However Australia is also not attractive for climate-change victims in so far a proportionate liability regime applies (100); thus there is no joint and common liability.

China

In addition to the usual causation issue, the author sees no chance for successful climate damage compensation claims in China under tort law because there is no law restricting the emission of GHG. Such a law would be a precondition for the successful application of the law on legal liability for environmental torts (136, 137). This statement contrasts with some earlier paragraphs on environmental tort principles being applicable to GHG emissions, these principles being quite friendly to the victims of negative environmental actions (135, 136). Regardless of this slight discrepancies, as courts are not independent in China, civil liability, at the end of the day, will only be recognized if the ruling party so wishes (which is unlikely to happen).

India

India disposes of several factors that play in favor of climate change victims:

• A special court for environmental affairs is also in charge of civil matters, the National Green Tribunal (157).
• The Tribunal “is required to apply the principles of sustainable development, precaution and polluter pays” (157) which is advantageous for climate change victims.
• Referring to the Massachusetts v. EPA case, the authors take the view that GHG might fall under the Air (Prevention and Control of Pollution) Act of 1981 (159).
• The Supreme Court is likely to be influenced by the strong Indian human/fundamental rights doctrine (149).
• There is a longstanding tradition of “public interest litigation” by persons not personally concerned by an issue (154-156). The authors identify three principles as a basis for private liability claims:

Nuisance: The authors take the view that the common law principle of “nuisance” provides “some (limited) hope to climate litigations” (165). Contrary to other common law systems so far examined on this blog, “nuisance” does not necessarily require a vicinity relationship; it may also be given if an act or an omission “must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right” (165).

Negligence: Negligence has as a precondition that “the defendant owes a duty of care. This requires the plaintiff to demonstrate foreseeability of the damage, a sufficiently proximate relationship between the parties, and that it is just and reasonable to impose such a duty” (168). Furthermore, there must have been a damage caused by the negligent act, but an increase of the risk or a contribution amongst other contributions may be sufficient (168, 169).

Absolute liability: The authors present absolute liability as an independent legal base from nuisance and negligence. Without providing an assessment on the chances for success, they refer to a landmark decision of 1987 the Supreme Court established the rule a kind of “absolute liability” for a company engaging in a hazardous or inherently dangerous activity (166). In another ruling of 1996 the Supreme Court established the principle of “the polluter pays” (167). Comment: Please note that, in other jurisdictions, GHG emissions are rather not seen as hazardous or inherently dangerous.

Indonesia

Civil liability in Indonesia has the following preconditions (194, 195):

• Unlawful action;
• Fault;
• Damage or loss;
• Causality.

Unlawful action might include actions that contravene subjective rights of others, legal obligations, public decency or principles of appropriateness, prudence and reasonable care (194).

The authors make no clear statement whether industry's emissions of GHG as such might trigger civil liability. However, they assume liability of private businesses if the businesses committed an unlawful action, e.g. by exerting an activity without a license or breaching a license (201). A compensation claim is not hindered by the fact that the license as such (or the law providing for such a license) has nothing to do with climate change (201). Indonesia disposes of a class action mechanism (196, 197).

Japan

Article 709 of the Civil Code provides: “A person who intentionally or negligently violates the rights of others shall be liable for the loss caused by the act.” There are two interpretations of “negligently”: “The first interpretation is that if a person can foresee the occurrence of the damage, he/she is liable. The second interpretation is that if a person can avoid foreseeable damage, but does not do so, he/she is liable.” Courts prefer the second interpretation (228).

As in other jurisdictions, the burden of proof lies on the alleged victim, but courts sometimes try to mitigate by recognizing indirect evidence or epidemiologic evidence (229). Sometimes the compensation is discounted due to the limited likelihood of causation (230).

The emission of GHG by the specific defendant must have been causal for the damage, not just all GHG emissions collectively (231). Some of the approaches, with regard to the principle of joint and common / several liability, might help to overcome this difficulty, says the author (231). Pointing to the multitude of factors impacting climate (thus not just climate change), the author concludes on a rather skeptical note: “Therefore, it is practically difficult, if not impossible, to single out a portion of damage directly attributable to climate change and to prove a causal link between the act of emission and the damage caused by it” (231, 232).

A free PDF copy of the book is available at the oxfam website:
http://policy-practice.oxfam.org.uk/publications/climate-change-liability-transnational-law-and-practice-191277

Tendencies in national laws with regard to Climate Change Liability - Part 1 Overview

Book Cover 

At the end of 2011, right in time for the November 2011 United Nations Climate Change Conference in Durban, the following book was published:

“Climate Change Liability – Transnational Law and Practice”, edited by Richard Lord, Silke Goldberg, Lavanya Rajamani and Jutta Brunée, Cambridge University Press, Cambridge 2012, ISBN 978-1-107-67366-3.

To our knowledge, this is the first book comparing the law of different national systems under the aspect of climate change liability, the major topic of this blog. It has been written by more than 40 authors and is of good average quality. Accordingly, we present detailed summery of the content of this book. When doing so, we focus on one of the two types of liability:  private liability (discarding public liability). We summarize the various contributions in a view of indicating the chances of victims of climate change to sue polluters successfully. For some of the states examined in the book, our summary is very short, regardless of the length of the original text.

Thist first blog entry will, however, focus on the general conclusions the authors draw from the detailed investigation (p 47-49, 63):

• The number of climate change liability cases increases, and so does the number of types of cases.
• In the so far pioneering United States, the decision on Connecticut v. AEP slowed down the run of private law damage claims.
• There is an increase of  “indirect” or  “ancillary” private liability cases.
• The number of public law claims increases as well.
• Regulation and jurisprudence developed for other purposes is often  “transposed”  into the new field of climate change liability.
• Developing countries' courts are becoming a new arena, India being the most prominent and promising case.
• The classic distinction between rich polluting countries and poor victim countries might gets blurred.
• The less regulation on climate change is successful, the more climate change litigation gains importance.
• Climate change liability (or the prospects therefore) influence the behavior of public and private operators (from regulation over rating to business planning).

Update: We continue writing about the liability in Asia

Update: A free PDF copy of the book is available at the oxfam website:
http://policy-practice.oxfam.org.uk/publications/climate-change-liability-transnational-law-and-practice-191277

Comparison of non-contractual liability in EU states

One of the purposes of this blog consists in analyzing where chances for climate litigation might be relatively high. As specific comparative literature is scarce, we refer also to publications that compare the tort law of different states, such as:

“Non-contractual liability arising out of damage caused to another – Principles of European Law”, by Christian von Bar, July 2009, Oxford University Press, Bruylant, Staempfli Publishers, ISBN 978-3-935808-63-7.

This publication contains valuable information on the tort law of 25 jurisdictions within the European Union (EU). Together with another publication already presented on this blog it helps to find the most favorable jurisdictions for the victims of climate change who wish to sue companies running fossil energy power plants, refineries or other climate damaging installations.

Basic rule triggering liability:

Most of the EU Member States require three conditions to be fulfilled: (1) there must be a damage (2) caused by an act or an omission of the alleged tortfeasor (3) and the tortfeasor must have committed a fault (249, 250).

From this basic rule deviate, towards more stringency, Austria, Germany, Portugal and Estonia in so far as these states require a certain “absolute rights” or “protective statutory provisions” to be violated (250; 254 for Austria). Furthermore, there are some variations to be noted for the Anglo-Saxon law systems (England, Scotland, and Ireland).

Wrongfulness:

The following states set-up an additional requirement “wrongfulness” which might be particularly difficult to confirm for purposes of climate damage litigation: Austria, Estonia, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Poland and Portugal (251; 252 and 254 for Poland).

The definition of wrongfulness is different from one state to the other. “The only common denominator is the notion that a person acts wrongfully if that person infringes a mandatory duty or a prohibition of the legal system” (253).
Comment: Given the vagueness of the term “wrongfulness”, victims of climate change should, in case of doubt, avoid jurisdictions requiring “wrongfulness”. In court proceedings, victims of climate change might be confronted with the counter-argument that emission of CO2 and of other climate damaging gases was subject to an authorization procedure of the state or on behalf of the state and that, therefore, wrongfulness would be to be denied. Moreover, some national law systems might deny wrongfulness in case of legally / socially accepted behavior or hazards. Whether this is the case or not, cannot be known by the mere lecture of this publication and thus would merit a deeper examination.

Fault:

“Fault” is the “umbrella term for intention and negligence” (255). The relevance of a fault is weaker in the Anglo-Saxon law systems (255), but the House of Lords' interpretation of the rule in Rylands v. Fletcher, adding the criterion of foreseeability, leads to a similar result in England (563). Fault is replaced by “blameworthiness” in the Hungarian law (255, 561). The distinction between intention and negligence is of minor relevance, except in the Portuguese law where the right for damage compensation can be reduced in case of negligence (255).

There is a tendency to drop the requirement of fault in favor of a so-called strict liability. However, this tendency is to be observed only in particular EU Member States and for certain circumstances. Thus it is referred to cases where the law imposes certain obligations (Portugal and the Netherlands, 258) or to the fact that the risk causing the damage emanated of the sphere of the tortfeasor (Netherlands, 258). In addition, the Netherlands have a strict liability for “hazardous substances” (Article 6:175 of the Civil Code) which encompasses gases (562), but is the hazard of climate change included? “A substance is hazardous if it is known that it exhibits properties that pose a particularly serious danger to persons or things”, e.g. for being inflammable or poisonous (562).

The French jurisdiction refers to the responsibility of the guardian and thus circumvents to some extent the requirement of negligence (259, 560). The Spanish law is “largely approximating liability for negligence to strict liability” (259, 558: by case law), and is “reversing the burden of proof in respect of fault” (259).

Furthermore, according to Spanish caselaw, “only proof of an exhaustive carefulness enabled exoneration from liability in cases where there was a situation of increased danger, with the result that ultimately … only force majeure remained as a defense” (558). The Italian law also knows the reversal of the burden of proof, and caselaw derives a strict liability from Article 2051 of the Civil Code (260, 560, 561). The Hungarian law sets-up a strict liability for “dangerous activities” and “activities which are hazardous to the environment” (260, 561).

Comment: As the vast majority of scientists and the general media point to the causality of CO2 and other gases for the climate change, a fault in its form negligence can, at first sight, easily be assumed for those who caused emission of climate damaging gases. However, the national law systems might – and this has not been examined by the book referred to here – deny negligence in case of legally / socially accepted behavior or hazards. There are several dogmatic connectors for such an argumentation. E.g. judges in some EU states might argue that CO2 and other industrial gas emitters did not violate rules of due care as they have undergone applicable authorization procedures (though, and this would be the major counter-argument, these procedures deal only with other risks than those caused via climate change). In other EU states like in Germany (589) and in Sweden (591), the negligence sub-criterion of “avoidability” could be denied.

Victims of climate change could face the same or similar arguments in court proceedings if they base their claim on strict liability.

Burden of proof:

According to a common rule, “Each party involved must generally plead facts in their favor and prove them if required” (260) unless the law or case law provides otherwise (261). In Spain, the burden of proof with regard to the “fault” lies with the defendant (261). The Estonian, the Hungarian and the Slovenian law only impose the duty to justify their behavior to the defendant; in these three states the plaintiff still needs to demonstrate the fault of the defendant (261). The German law knows some cases in which the burden of proof for negligence is reverted to the defendant, e.g. if a product causing a damage was defective or in special cases of environmental law (261) or where a protective law has been infringed (262, 263). The last case re-emerges in the Italian and in the Austrian law (262). In the law of the Netherlands, there is a reversal of the burden of proof “where a written or unwritten safety norm or a duty to observe safety standards is violated” (559). Moreover, “it is said that torts committed without fault remain the exception” (559).

States that do not know a reversal of the burden of proof have sometimes chosen other paths facilitating the task of the plaintiffs. Thus the “corrective device of prima facie proof” (first evidence proof) emerges in Portugal (263). Others like France have developed a jurisprudence on “presumption of negligence” (263). The Anglo-Saxon law systems compensate the absence of a reversal of the burden of proof by a lower requirement for evidence: evidence presented by one side must be more convincing than that of the opposing side (263). This is substantially more lenient than, e.g., the German law requiring the court to be convinced “beyond any reasonable doubt” (263). Likewise it is sufficient, under Swedish law, that “it is clearly more probable that the damage originated in the manner alleged by the claimant rather than by the defendant” (264).

Comment: The rather low requirements of evidence in the Anglo-Saxon law systems within the EU and in Sweden make these particularly attractive for climate litigation cases. The same might be true for Italy and Spain where there is a powerful reversal of the burden of proof for fault. However, given the common knowledge on certain gases causing climate change, one does not need to refrain from launching climate compensation claims in any of the EU Member States just because of the issue of burden of proof.

Environmental liability:

Most of the EU Member States dispose of specific laws or articles for environmental liability. However, it is very difficult to assess whether these laws or articles can be successfully referred to for climate litigation. These laws and articles have mostly been conceived to cover cases where the damage occurred in vicinity to a dangerous activity or installation. In some EU Member States, the criterion of vicinity is explicitly mentioned (e.g. Bulgaria (727), Finland (733) or Sweden (731)). A causality chain passing by the heating up of the atmosphere was probably not in the mind of the lawmakers.

Nonetheless, it cannot be excluded that judges would apply specific laws or articles to assess cases of climate change damage. The following list of EU Member States mentions those states where, from the publication presented in this blog entry, it cannot be excluded that the specific environmental liability laws or articles would be applicable to change litigation cases:

• Germany (728);
• Greece (729);
• Hungary (726);
• Italy (726);
• Poland (727);
• Spain (725).

The publication is not detailed enough to positively ascertain that there would be good chances for referring successfully to these laws and articles. Thus we can only recommend anyone attempting to bring such cases to court, to examine more in detail whether in these states’ specific environmental liability laws and articles can be used for climate litigation, regardless of whether this was initially intended by lawmakers or not.

U.S.: Political question doctrine, standing, and implied preemption not to block climate damage litigation, but rather substantial arguments

In an article published in the Yale Law Journal and to be found here, Benjamim Ewing and Douglas A. Kysar address mainly the issue of “Prods and pleas”. They analyze whether the political question doctrine, standing and implied preemption should constitute an obstacle to climate litigation in the U.S. Hereunder we list some key paragraphs:

1. “Although climate change plaintiffs still face long odds on the actual merits of their claims, judges would sell short their institutional role if they dismissed such claims as categorically beyond the proper domain of the courts and the common law. They would duck and weave when they should prod and plead.” (350)
   
2. The authors take a position on the frequently debated question whether the dozens of statutes passed by Congress since 1970 with regard to climate change, including the CAA, are to be regarded as an “initial policy determination” on greenhouse gases: “Such a freewheeling debate wrongly presupposes that there is just one policy determination to be made regarding greenhouse gases, which alone must dictate whether and how courts can adjudicate public nuisance cases based on their emissions. As the Second Circuit rightly emphasized, ‘[T]he fact that ... [federal] air pollution statutes, as they now exist, do not provide Plaintiffs with the remedy they seek does not mean that Plaintiffs cannot bring an action and must wait for the political branches to craft a ‘comprehensive’ global solution to global warming.’ That another branch is investigating or studying a new response to an emerging problem does not mean that preexisting common law tort principles – norms always intended to apply to evolving circumstances – somehow constitute judicial invasions into political questions.” (381)
   The authors point to the judicial nature of the questions and to the fact that they are about the “enforcement of rights grounded in fairness and already by particular parties before the court” (381).
   
3. The authors hold that dismissal of climate change cases as nonjusticiable political questions does not refer to the question to a more competent branch of government, but “constitutes a backdoor rejection of the substance of the plaintiff’s claim without direct consideration of its merits. This is a perverse result. ...” (412, 413)
   
4. The same view is taken for the potential dismissal due to a presumed lack of standing. “In essence the plaintiff is told that she has come to the wrong branch of government, even though no other branch is capable of addressing the crux of her claim: the assertion that she has a grievance actionable at common law. ... When courts invoke political question or standing doctrine to prevent common law adjudication, they self-negate in a way that is fundamentally inconsistent with the historical role of tort law as a locus for the airing of grievances. Curiously, they apply the ‘private-law model of public law’ to private law itself, perhaps out of a sense that complex tort actions may have effects and implications on the scale of public law. In doing so, however, they substitute a Potemkin version for the law of civil wrongs that they have been constitutionally entrusted to steward, leaving the core of that law at risk of rotting from neglect.” (413, 414) The fact that climate change tort seems to be particularly far away does not change anything to this situation, according to the authors.

Though mainly focusing on the above mentioned questions, the authors also make some rather skeptical statements on the merits of climate change litigation via tort law: “At the merits stage, a variety of doctrinal hurdles for plaintiffs will remain and will most likely justify dismissal of the suits” (356). The authors list the following possible obstacles for a success at the merits stage: “From the retrospective corrective justice standpoint, a second-order duty to repair one’s victim might arise if one has contributed to her harm through the mechanism of climate change, and, in so doing, breached an underlying duty of care owed to her. However, the domain of behavior to which such an underlying duty might apply could be severely cabined by demands for clear and proximate causation, foreseeability of harm, and feasible allocation of damages – all far from worked out as matters of morality, let alone law.” (369, 370) Other obstacles identified by the authors are “the special injury rule, which requires plaintiffs to demonstrate harm different in kind from that suffered by the general public” and the requirement to demonstrate “that relief is appropriate given the extraordinary number of other contributors to the problem beyond named defendants” (384). Furthermore, the authors question whether courts would assume “imminence” of the damage in terms of certainty or temporality (390) and whether a certain harm is attributable to a specific defendant (392): “Because of the globally dispersed, long-lived, and cumulative nature of greenhouse gas emissions, it is essentially impossible to attribute any particular climate-related harm to any particular source of emissions.” (392) Finally, “redressability is also a challenge for plaintiffs, given that the relief they seek could at most directly reduce or compensate for a tiny percentage of global greenhouse gas emissions. Defendants are thus likely to offer the ‘consequentialist alibi’ that plaintiffs’ requested relief would not redress their injuries because billions of other emitters not before the court are poised to continue emitting.” (392) The authors argue that the term “redressability” is commonly misunderstood; “rederessability” should just mean the “narrow question regarding the court’s capacity to award the specific relief sought” (393).

Whilst being basically skeptical with regard to climate change litigation via U.S. tort law, the authors also point to similar situations in the past where hurdles have been overcome: “On the other hand, many of the reasons for skepticism that climate change tort defendants could be held liable – especially the difficulty of pinning causation on a single defendant or group of defendants – have been similarly applicable to other environmental and toxic tort suits. Albeit with hesitation and confusion, courts have devised a number of doctrinal devices to accommodate the difficulties of proof associated with those cases. For instance ...” (370)

Comment: As we can see from this article and others, the game of climate change litigation via the U.S. tort law is unlikely to be over soon. Many questions are still open and constitute hurdles for the victims of climate change. As it will not be easy to obtain compensation in the U.S., possibilities provided by other jurisdictions should be examined as alternatives or supplementary paths. We demonstrate by this blog that prospects under other jurisdictions applying the principle of common and joint liability in tort law are not necessarily worse. Because of the fact that CO2 emitting companies are active all over the world, the worldwide effect of greenhouse gases and the common principles of international private law open many more options than litigation in the U.S.

Full Article can be found at: http://www.yalelawjournal.org/images/pdfs/1021.pdf

U.S.: 2nd wave of the initiative of “Our children’s trust”

Youth of the U.S. vs. the U.S. Government - round 2

“Our children’s trust” launched a second wave of its climate change initiative after an opinion was made by the District Court in California on Dec 6, 2011. The second wave, launched in Washington D.C., is targeting the U.S. Government. More to be found here at the climatelawyers.com website or on the website of “our children’s trust”.

The first wave of lawsuits launched in May 4, 2011 by Alec Loorz, an, at the time, sixteen year old environmental activist, and other youths, together with Kids vs Global Warming and Wildearth Guardians.

The plaintiffs filed State-level lawsuits against several government offices and bureaus in California, Colorado, Minnesota, Montana, New Mexico, Oregon and Washington, and a federal lawsuit targeting Lisa P. Jackson the EPA Administrator, Kenneth Salazar Secretary of Interior, Thomas Vilsack the Secretary of Agriculture, Gary Locke the Secretary of Commerce, Steven Chu the Secretary of Energy and Leon Panetta Secretary of Defense. The federal lawsuit was filed in United States Ninth Circuit District Court in San Francisco California because of this jurisdiction's friendliness to environmental concerns. This was probably why another climate change lawsuit, Native Village of Kivalina v. ExxonMobil, may also have been filed in the Ninth Circuit Court of in San Francisco California.

In the original filing, our children's trust argued that the atmosphere is a public trust within the hands of the U.S. Government. The public trust principle states that the government holds important and non-renewable natural resources in “trust” for the public, thereby making it a trustee. In this position as trustee, the government is required to protect these natural resources for the beneficiaries of the trust, namely citizens and future generations of citizens. Under this doctrine, the government must not allow private interests to cause irreversible damage to critical resources within the public trust, which in the case of climate change is the clean atmosphere.

The second wave moves the federal suit to Washington D.C. because of the national significance of the case which could additionally provide the lawsuit with more media coverage.

This case does not deal with climate change damage compensation which is the main focus of this website therefore we refrain from a detailed report.

For more information see the websites ourchildrenstrust.org or kids-vs-global-warming.com.

Special focus on tort law in the Netherlands, part 2 of 2

Tort law in the Netherlands

We have seen in another article on this blog that the Netherlands might be amongst the best places in the European Union to sue climate polluters. For this reason, we investigate in more detail the Dutch legal system in a view of climate litigation / climate damage compensation cases. We base this investigation mainly on two publications available in English. The second one is not very recent, but complements perfectly the first one:

“Civil Liability for Transfrontier Pollution - Dutch Environmental Tort Law in International Cases in the Light of Community Law” by Gerrit Betlem, Grahem & Trotman / Martinus Nijhoff, London/Dordrecht/Boston 1993, available at: Google Books

Forum and applicable law: We skip these sections they are outdated by later developments, namely the EU Regulation EC/44/2001 and the EU Regulation EC/864/2007 (“Rome II”). For these aspects – and many others not covered here – please see our 1st article on the Netherlands. See for the topic of Forum also Gerrit Betlem's article “Transnational Litigation against Multinational Corporations before Dutch Civil Courts” published in: M. Kamminga & S. Zia-Zarifi (eds.), Liability of Multinational Corporations under International Law (Kluwer Law International 2000), p. 283-305, available here: http://www.eulaw.soton.ac.uk/elpub/gb00.pdf, page 2 onwards.

Causation: Dutch law applies the Latin “conditio sine qua non” rule (462). According to this rule, a fact is a cause if the damage would not have occurred without the fact. However, the Dutch High Court “Hoge Raad” does not request that damage reducing measures of the victim would not have been taken without the damaging fact. In the Rhine water case MDPA referred to below, the contribution to the saltiness of the Rhine water made the tortfeasor proportionately liable although the victims might have decided to reduce the salt of their irrigation water anyway, even without this contribution (463/464).

Unlawfulness: It shall be recalled that A6:162 of the Dutch Civil Code provides:

1. A person who commits an unlawful act towards another which can be imputed to him, must repair the damage which the other person suffers as a consequence thereof.
2. Except where there is a ground of justification, the following acts are deemed to be unlawful: the violation of a right, an act or omission violating a statutory duty or a rule of unwritten law pertaining to proper social conduct.
3. An unlawful act can be imputed to its author if it results from his fault or from a cause for which he is answerable according to law or common opinion.

As in the 1st article on the tort law in the Netherlands, the authors identify three reasons for unlawfulness: “breach of a statutory duty, infringement of a right and breach of duty to take due care” (350). Each of these three grounds fulfils separately the requirement of unlawfulness (350).

Breach of a statutory duty: A duty is “statutory” if it is contained in any written provision of private or public law, including even self-executing provisions of (international) treaties (350). The authors even claim with reference to a ruling of the Hoge Raad that the breach of foreign law can constitute a breach of a statutory duty as well, but this statement seems to be limited to cases where the foreign law is “the law applicable to the conflict” (354/355). According to Article 6:163 of the Dutch Civil Code, “There is no obligation to repair damage when the violated norm does not have as its purpose the protection from damage such as that suffered by the victim” (356). This article is the basis of the doctrine of relativity of unlawfulness which needs only to be applied to the case of breach of a statutory duty (357).

Infringement of a right: The authors argue that this case has no function independent from the other two cases (377-390) except in special cases (which are of no relevance to climate change litigation).

Breach of duty of care: The essence of the examination which has to be made under this item is the weighing of the interests between the victims and those who have caused the damage (391-401). The Hoge Raad, in a ground breaking ruling of 23 September 1988 in a case of three Dutch horticulturists against the French state owned potassium mining company “Mines Domaniales de Potasse d' Alsace” MDPA, polluting the Rhine water, stated the following: “3.3.2. In assessing part 1, the criterion should be that whether a party who discharges substances into a river fails to observe its duty of due care towards those using the river-water downstream depends on the nature, seriousness and duration of the damage caused to the latter and on the other circumstances of the case; among the factors to be considered here are, on the one hand, the nature and importance of the interests served by the discharges and, on the other, the interests served by the use of the water downstream and the extent to which this use is liable to be affected by the substances discharged. It should be born in mind that in weighing up the respective interests, special importance must be attributed to the interests of the user downstream in that such a user may in principle expect the river not to be polluted excessively by large discharges.” In this case, the Hoge Raad did not see an inconvenience in the fact that the only means to reduce the salt emission would be to close down the business as the case related only to compensation (396). Another aspect interesting in the perspective of climate damage litigation: the salt added by MDPA to the Rhine water was “relatively minor”, though not negligible (395) or, to be precise, never more than 17% (398). However, the case was simpler than climate damage compensation in as much as there was a simple linear relation between salt increase and damage (395).“ A second doctrine has been developed for the third case “breach of duty of care”, the doctrine of creation of danger (410 onwards). This doctrine is more severe for the alleged tortfeasor and it includes by itself elements of imputability (or accuseability) – becoming thus a kind of strict liability. The authors see room for this second doctrine mainly with regard to dangerous substances (442). As victims of climate change would even have better chances of success under this doctrine, we can refrain from presenting details of this doctrine here. To our knowledge, this second doctrine is not yet prevailing on the “weighing of interests” doctrine. Chances for success for climate change victims under Dutch law have thus rather to be assessed in accordance with the “weighing of interests” doctrine.

Imputability: Imputability means the extent that the supposed culprit is able to be accused. Article 6:162 (3) of the Dutch Civil Code says: “An unlawful act can be imputed to its author if it results from his fault or from a cause for which he is answerable according to law or common opinion.” Though formally being incumbent to the plaintiff, it is in practice up to the defendant to rebut the assumption of imputability once the unlawfulness has been stated (444).

The first of the three alternative conditions for imputability is fault. Fault is not given if the causation of harm was not foreseeable and preventable for “the ordinary/reasonable man” (445). An “organization cannot plead lack of fault for not knowing something it should and could have known if the information had been properly registered” (445).

Reasonable attributability: Article 6:98 of the Dutch Civil Code sets up a requirement which is in-between the item of causality and imputability: “Reparation can only be claimed for damage which is related to the event giving rise to the liability of the debtor in such a fashion that the damage, also taking into account its nature and that of the liability, can be imputed to the debtor as a result of this event.” This recently introduced requirement is not identical to foreseeability (464), but may include aspects of foreseeability (466). It serves rather as a tool for sidelining very remote or indirect damages (466/467).
Comment: We can assume that Dutch courts, if confronted with climate damage compensation claims, would have different views on whether the condition of “reasonable attributability” is fulfilled. Their views might also depend on the type of climate damage that is subject of the lawsuit. The least remote/indirect damage types are probably those caused by the melting of snow and ice linked to the temperature increase. Damages caused by flooding or draughts, both if triggered by the melting of high mountain snow and ice, and damages caused by the sea level rise might thus be good candidates for pioneering lawsuits under Dutch law (and, by the way, probably beyond).

Joint and common liability of multiple tortfeasors: Article 6:102 of the Dutch Civil Code makes multiple tortfeasors jointly and severally liable (471). “The plaintiff is entitled to claim compensation for his entire damage from any one of the defendants, regardless of the contribution of that defendant to the loss.” (472) The defendant hold liable “has a right of recourse against his co-tortfeasors” (472).

Burden of proof: Article 177 of the Dutch Code of Civil Procedure says: “Upon the party who invokes legal effects of the facts or rights furnished by it, rests the burden of proving those facts or rights, unless a different distribution of that burden of proof ensues from a specific rule or from the requirements of reasonableness.” The burden of proof is thus primarily on the plaintiff's side. However, a relaxation or even shift may take place. “In particular in danger creation situations, the burden of proof is relaxed or reversed.” (478) Furthermore courts have developed a practice of setting up factual assumptions based on first evidences (478).

Procedural goals: Under the Dutch law, plaintiffs can go for injunction or for compensation. For the injunction path, an additional weighing of interest, including societal interests such as employment, takes place (489 to 497). Thus it will be more difficult for climate change victims to obtain the stop of CO2 or other climate damaging gases than to obtain compensation. However, going for injunction has also advantages. There is no requirement for fault or damage – it is sufficient that a damage (or even just the potentially damaging action) is likely (512). If the court has denied injunction on grounds of societal interests, it may accord compensation (513). Thus the two paths are of interest to climate change victims.
See for this topic also Gerrit Betlem's article “Transnational Litigation against Multinational Corporations before Dutch Civil Courts” published in: M. Kamminga & S. Zia-Zarifi (eds.), Liability of Multinational Corporations under International Law (Kluwer Law International 2000), p. 283-305, available here: http://www.eulaw.soton.ac.uk/elpub/gb00.pdf, page 10 onwards.

Content of compensation: The Dutch law does only cover compensatory damage, but includes therein non-material damage (498 – Article 6:106 of the Dutch Civil Code).

Preclusion: Article 3:310 of the Dutch Civil Code provides that a right of action to compensate is prescribed as from 20 years (30 years for environmental damages) after the event that caused the damage took place. The right is also precluded as from 5 years after the victim being aware that s/he could sue a certain tortfeasor (508-510).

Class action and standing of NGOs: See for this topic Gerrit Betlem's article “Transnational Litigation against Multinational Corporations before Dutch Civil Courts” published in: M. Kamminga & S. Zia-Zarifi (eds.), Liability of Multinational Corporations under International Law (Kluwer Law International 2000), p. 283-305, available here: http://www.eulaw.soton.ac.uk/elpub/gb00.pdf, page 13 onwards.

Violation of foreign law as a basis of tort law: See for this topic Gerrit Betlem's article “Transnational Litigation against Multinational Corporations before Dutch Civil Courts” published in: M. Kamminga & S. Zia-Zarifi (eds.), Liability of Multinational Corporations under International Law (Kluwer Law International 2000), p. 283-305, available here: http://www.eulaw.soton.ac.uk/elpub/gb00.pdf, page 5 onwards.

The Dutch Civil Code is available here: http://www.dutchcivillaw.com