Tuesday, December 11, 2012

Can Human Rights serve as a legal basis for climate change compensation claims?

Can climate change litigation be based on Human Rights?
(Image Claimer.org based on Patrick Gruban)
After the 2nd instance failure of the village of Kivalina lawsuit against several big polluting companies in the U.S, more than ever new legal paths are needed for the U.S. One possible path could be to refer to Human Rights. But not only for the U.S. the question arises whether Human Rights can serve as a legal basis for compensation claims. Human Rights could become relevant in two ways:
  • Human Rights could be referred to if states fail to protect against climate change and its effects.
  • Human Rights could also influence the private law relationship amongst private natural or legal 

Unfortunately, the answer to the question must be sought for under each jurisdiction separately, as Human Rights are built into the national legal systems in quite different ways. We can distinguish the following types of jurisdictions:
  • In some jurisdictions, Human Rights cannot be referred to in public or private law at all.
  • In others, Human Rights constitute only defensive rights of the individual against action of the state.
  • In a few jurisdictions, Human Rights oblige the state to protect the rights holders – and failure to protect can trigger compensation. States of this type are interesting for climate change compensation lawsuits. They are interesting not only for residents of this state, but also for victims of climate change abroad, see the section “IX. Extraterritorial dimensions of human rights and the environment” of the Annex.
  • Finally, in very few jurisdictions, Human Rights can even influence the legal relationship between private persons. In these states, Human Rights might thus even influence a compensation lawsuit between private natural or legal persons. One way how Human Rights can find their way into civil law is that they constitute a right encompassed by a liability provision. For instance, in several continental European law systems defendants are liable if they infringed a certain right in an unlawful way. Human Rights could be rights in the meaning of such provisions.

In order to use the possibilities offered in some jurisdictions, the link between climate change and Human Rights must be established. The article “Restoring the Climate by Realizing Rights: The Role of the International Human Rights System” of Edward Cameron and Marc Limon which appeared in November 2012 in the Review of European Community & International Environmental Law (Volume 21, Issue 3, pages 204–219) provides a good starting point for the investigation of such a link. The authors show how the effects of climate change are more and more often looked at under Human Rights aspects. The link between climate change and Human Rights is already strongly demonstrated in soft-law documents.

E.g., on 28 March 2008, the Human Rights Council Resolution 7/23 on ‘human rights and climate change’ established a link between climate change and human rights. Since then, the issue is under investigation by the Office of the High Commissioner for Human Rights (OHCHR). A recent report the OHCHR office examines, amongst other legal aspects, the “extraterritorial dimensions of the human rights and environment interface”. If there was such an extraterritorial dimension of the human rights, governments might get sued for inactivity not only by persons on their territory, but also from abroad.

The authors refer also to the so-called “Special Procedures” which aim at addressing specific Human Rights issues falling outside the ordinary mechanisms, mainly by nominating “Special Rapporteurs”. And these “Special Procedures” came already to specific results: “Special Procedures issued a joint statement entitled ‘An ambitious climate change agreement must protect [the] human rights of all’, in which they argued that a weak outcome from COP-15 would threaten to infringe on human rights and called on mitigation and adaptation policies to be developed in accordance with human rights norms.” The new “Special Procedure on human rights and the environment” brings along even more possibilities for building a legal consensus, say the authors.

The report can be found here: http://onlinelibrary.wiley.com/doi/10.1111/reel.12004/full

Annex: Extracts of the report A/HRC/19/34 of the High Commissioner for Human Rights referred to in the previous paragraphs

IV. Environmental protection contributes to the enjoyment of human rights
23. A significant number of international human rights and environmental instruments show how environmental protection contributes to the enjoyment of human rights. This section analyses the relationship between human rights and the environment under existing international human rights and environmental instruments. Examination of these instruments indicates that human rights and the environment are interrelated; as such instruments recognize that the environment plays a critical part in protecting and promoting human rights. [...]

25. Certain international human rights instruments concluded after the 1972 United Nations Conference on the Human Environment explicitly recognized the linkage between human rights and the environment. For example, the Convention on the Rights of the Child refers to the environment plainly: article 24, paragraph 2 (c), requires States to pursue the full realization of the right of the child to the enjoyment of the highest attainable standard of health taking into consideration the dangers and risks of environmental pollution. Regional human rights instruments such as the African Charter on Human and Peoples’ Rights and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights make explicit references to the environment.

Older human rights instruments that were adopted before the linkage between human rights and the environment emerged do not explicitly refer to the environment. However, as detailed in subsequent sections, the human rights treaty bodies and regional human rights mechanisms have interpreted their respective human rights instruments in a manner that recognizes the environmental dimensions of protected rights. In this regard, older human rights instruments recognize the linkage between human rights and the environment by implication, such as in relation to the environmental dimensions of the rights to life, food, health, housing, property and private and family life, among others. Procedural human rights and cross-cutting components of the human rights-based approach – such as the right to participation in political life, the right of specific groups to be consulted in decision-making processes, access to justice, due process, access, transparency and accountability – are also relevant for environmental decision-making.

Similarly, the examination of many environmental instruments shows that they articulate their objectives with regard to the protection of public health and the environment, incorporate notions of common heritage of mankind and recognize environmental protection as an essential component for human survival and development. In addition, several environmental instruments also proclaim explicitly the importance of access to information, public participation and access to justice in environmental matters, which are crucial guarantees for democracy and the rule of law.

28. The examination of human rights and environmental instruments leads to the conclusion that human rights and the environment are explicitly and implicitly interrelated. The growing awareness of this interrelationship makes an important contribution to the enjoyment of human rights and a healthy environment. Certain aspects of the linkage are, however, in need of strengthening and further clarity, in order to more effectively promote human rights and a healthy environment. For example, greater elucidation is needed as to how to apply a rights-based approach to the negotiation and implementation of multilateral environmental agreements.


VI. The jurisprudence of regional human rights systems
The jurisprudence on environmental issues that has emerged from the African, European and Inter-American human rights systems has contributed to clarifying how environmental degradation affects human rights. This section explores the case law of three regional human rights mechanisms, namely the African, Inter-American and European systems.

33. These three regional human rights systems have addressed cases involving environmental issues and developed jurisprudence linking human rights and the environment. These bodies of law have identified how environmental issues relate to the rights protected under the relevant regional human rights instruments. In their jurisdictional exercise in response to individual and collective complaints, the regional systems have clarified the environmental dimensions of a number of protected rights, such as the right to life, the right to health, the right to private and family life, the right to property and the right to development.

34. The African Commission on Human and Peoples’ Rights has especially focused on the rights of indigenous and tribal peoples affected by environmental degradation resulting from extraction activities and their forceful removal from their traditional lands.1 The African Commission has detailed the importance of the right to a healthy environment recognized in the African Charter on Human and Peoples’ Rights, underscoring the role of carrying out environmental impact and independent scientific assessments prior to such activities. The African Commission has also given details on the right to benefit from natural resources and the right to development, articulating important standards regarding informed consultations and free and prior informed consent.

The Inter-American Court of Human Rights has contributed to establishing important standards of protection for indigenous and tribal peoples in relation to the environment. The Court has recognized that indigenous and tribal peoples have a right to property over the lands and territories that they have traditionally occupied.2 To reach this conclusion, the Court interpreted the American Convention of Human Rights in the light of other relevant international human rights treaties. For example, the right to the ancestral lands, territories and natural resources has been supported by the right to self-determination recognized in both the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights, and by the standards set by International Labour Organization Convention No. 169 (1989) concerning Indigenous and Tribal Peoples in Independent Countries.

The Inter-American Court has also developed a system of safeguards that apply where the State is considering approving development or investment projects that may impair the enjoyment of the rights of indigenous peoples. In such cases, in order to safeguard the survival of the peoples concerned, the State is required to: conduct independent environmental and social assessments; ensure adequate benefit-sharing schemes; and conduct effective and culturally appropriate consultations, as well as obtaining free and prior informed consent in certain cases. These safeguards doubtless contribute to clarifying the linkage between human rights and the environment. At the same time, further guidance is needed to implement these safeguards.

The European Court of Human Rights has also contributed to elucidating the human rights and environmental relationship, particularly in cases involving environmental pollution. The Court has found that environmental pollution can interfere with the enjoyment of several protected rights, particularly the right to life and the right to private and family life. The Court has also established that the State has positive duties to protect individuals from environmental risks. This body of law has clarified State responsibilities to address environmental risks once they become known, including through appropriate and effective regulation, monitoring and enforcement, and State duties to disclose information to the public regarding environmental risks.

In its approach to the relationship between human rights and environmental issues, the European Court has been inspired by notions of environmental democracy. The Court has noted that the positive duty to act in protection of individual rights needs to be balanced against the collective interests of society. In designing its environmental policy, the State enjoys a margin of appreciation. However, this margin of appreciation is not unfettered, being limited by the proportionality of any given interference with protected rights. In determining proportionality, the European Court has emphasized the importance of respect for national law and procedural guarantees that enable societal dialogue on environmental policy, such as access to information, the ability to participate in decision-making, and the possibility of requesting judicial review of governmental decisions. Where national law is not respected or where procedural guarantees are lacking, there is no fair balance of proportionality and State responsibility may be engaged for the environmental and human rights interference. […]

40. In summary, the African, Inter-American and European human rights systems have contributed to elucidating the environmental dimensions of rights protected under the relevant human rights instruments. The adjudication of cases involving forced displacement, environmental pollution or unsustainable extraction of natural resources has led to the designation of a growing body of State responsibilities regarding decision-making processes relating to environmental policy and the protection of persons and communities affected by environmental risk.


VII. Environment in the work of charter-based United Nations human rights bodies
The Human Rights Council and its predecessor, the Commission on Human Rights, have produced relevant statements and studies on the connection between the environment and human rights. In addition, special procedures established by those bodies have produced an important body of documentation regarding certain aspects of the linkage between the two fields. […]

55. In summary, human rights charter-based bodies have considered in various ways the relationship between human rights and the environment, including the various resolutions they have adopted and the mandates established under special procedures. Much effort has gone into identifying linkages between human rights and environment and the outcomes of such efforts provide valuable guidance to States and other actors. However, part of this material is dispersed and there is a need for consolidation. Similarly, a focal point on environment and human rights could provide valuable input to the various procedures addressing the environmental dimensions of their respective mandates.


VIII. Environment in the work of the human rights treaty bodies
56. The environment has also featured in the work of the human rights treaty bodies. Both the Committee on Economic, Social and Cultural Rights and the Human Rights Committee have found that the rights under their respective jurisdictions are multilayered and interconnected and that their realization depends heavily on healthy environmental conditions. The present chapter briefly examines the general comments and concluding observations emanating both committees that address environmental issues. [...]

63. In summary, both the Committee on Economic, Social and Cultural Rights and the Human Rights Committee have strongly contributed to clarifying aspects of the environmental dimension of human rights. Nevertheless, new aspects of this relationship require further work, such as the climate change and human rights interface.


IX. Extraterritorial dimensions of human rights and the environment
The extraterritorial dimensions of the human rights and environment interface provide fertile ground for further inquiry, particularly in relation to transboundary and global environmental issues. The linkage between human rights and the environment raises the question whether human rights law recognizes States’ extraterritorial obligations. The present chapter illustrates the most important issues relating to States’ extraterritorial obligations, in regard to environmental issues and explores the contours of human rights law as it evolves toward recognition of the extraterritorial obligations of States.

The extraterritorial dimension of the human rights and the environment linkage is evident in the area of transboundary environmental harm. Such harm arises where environmental degradation results in the impairment of rights of people outside of the territory of the State where the damaging activity occurs. One country’s pollution can become another country’s environmental and human rights problem, particularly where the polluting media, like air and water, are capable of easily crossing boundaries.

The extraterritorial problem raised by transboundary environmental harm also extends to global pollution issues, such as the concentration of greenhouse gases in the atmosphere leading to dangerous climate change and marine dumping, which may affect areas beyond national jurisdiction such as the high seas.

Additionally, extraterritorial concerns may arise where States fail to adequately regulate transnational corporations and other business entities, incorporated or otherwise, having substantial business operations in their territories which cause environmental harm in the countries where they operate. Often, environmental harm resulting from the activities of transnational corporations occurs in developing countries lacking effective means of monitoring and enforcing compliance with environmental laws and regulations. Failure by a State to regulate, by action and omission, indirectly causes environmental degradation beyond its territory.

Important progress has been made towards the recognition of the extraterritorial obligations of States in human rights law, particularly in the area of economic, social and cultural rights. This progress is particularly important where human rights obligations are related to environmental degradation.

Perhaps the key question with regard to the extraterritorial dimension of human rights and environment is the spatial scope of application of human rights law instruments. The universality of human rights proclaimed in the Universal Declaration of Human Rights has inspired the development of a number of legally binding treaties codifying State obligations to protected rights. Such international human rights law instruments have varying approaches to jurisdictional limitations on the spatial scope of application and extraterritorial reach of States’ obligations. Some human rights treaties contain provisions that specify jurisdictional limitations on States’ obligations. For example, the International Covenant on Civil and Political Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the American Convention on Human Rights contain jurisdictional limitations formulated differently. On the other hand, a number of international human rights instruments do not incorporate jurisdictional limitations on their spatial scope of application. The International Covenant on Economic, Social and Cultural Rights, the African Charter on Human and Peoples’ Rights, and the American Declaration of the Rights and Duties of Man contain no provisions specifying jurisdictional limitations on State’s obligations. Moreover, elements of extraterritorial obligations in the field of economic, social and cultural rights – and children’s rights and the rights of persons with disabilities – can also grounded in obligations to perform international cooperation and assistance that are explicitly recognized in the respective international human rights instruments.

Another important question that arises in relation to the extraterritorial dimension of human rights and environment is the extent to which international environmental law principles can inform the application of human rights instruments. The duty to prevent transboundary environmental harm, for example, is widely recognized as an element of customary law. In its case law, the European Court of Human Rights has resorted to this principle where environmental damage has crossed boundaries.

An indication of the increasing attention paid to extraterritorial obligations is the adoption in September 2011 by a consortium comprising academic institutions, non-governmental organizations and human rights experts – including some special procedure mandate holders – of the Maastricht principles on extraterritorial obligations of States in the area of economic, social and cultural rights at a conference that took place in Maastricht, Netherlands. The principles detail the status of the extraterritorial dimension of human rights law in the area of economic, social and cultural rights, while at the same time contributing to the progressive development of that dimension.

Lastly, the recognition of the extraterritorial obligations of States allows victims of transboundary environmental degradation, including damage to the global commons such as the atmosphere and dangerous climate change, to have access to remedies. Those who are adversely affected by environmental degradation must be able to exercise their rights, irrespective of whether the cause of environmental harm originates in their own State or beyond its boundaries and whether the cause of environmental harm lies in the activities of States or transnational corporations.

73. In summary, there have been important efforts to clarify States’ human rights extraterritorial obligations, including with respect to environmental degradation. The evolution of human rights law in this area has been influenced by principles and tools employed in the environmental protection regime. However, further guidance is needed to inform options for further development of the law in this area.


X. Conclusions and recommendations
Since the United Nations Conference on the Human Environment held in Stockholm in 1972, the relationship between human rights and the environment has received increased attention from States, international institutions and civil society.

The Human Rights Council has observed that sustainable development and the protection of the environment can contribute to human well-being and the enjoyment of human rights. Several human rights instruments concluded since the Stockholm Conference have included explicit references to the environment or recognized a right to a healthy environment. Similarly, numerous environmental instruments explicitly articulate their objectives in terms of protection of human health, the environment, and the common heritage of humankind. In addition, a significant number of States have incorporated environmental rights and responsibilities into their national constitutions.

76. The Human Rights Council has also observed that environmental damage can have negative implications, both direct and indirect, for the effective enjoyment of human rights. In this connection, the human rights treaty bodies have addressed the environmental dimensions of the rights protected under their respective treaties, for example, in general comments, decisions concerning individual petitions and concluding observations. Similarly, regional human rights monitoring bodies and courts have clarified the environmental dimensions of protected rights, including the rights to life, health, property, private and family life and access to information.

77. Furthermore, the Human Rights Council has noted that human rights obligations and commitments have the potential to inform and strengthen international, regional and national policy making in the area of environmental protection, promoting policy coherence, legitimacy and sustainable outcomes. In this regard, over the last three decades, human rights mechanisms have contributed to clarifying the linkages between human rights and the environment. The United Nations human rights charter-based bodies in particular have contributed to elucidating certain elements of the linkage between human rights and the environment through the adoption of resolutions that provide guidance to States and international organizations. In addition, several special procedures established by the former Commission on Human Rights, the former Sub-Commission on Prevention of Discrimination and Protection of Minorities and the Human Rights Council, for example, concerning environment, toxic materilas and toxins, food, water, housing, extreme poverty and indigenous peoples, have contributed to clarifying and strengthening the human rights and environment linkage.

78. While much progress has been made in elucidating the complex and multifaceted relationship between human rights and environment, the dialogue between the two fields of law and policy has still left a number of questions open. The theoretical discussions on the relationship between human rights and environment raise salient questions concerning, inter alia, the need for and the potential content of a right to a healthy environment; the role and duties of private actors with respect to human rights and the environment; and the extraterritorial reach of human rights and environment. Similarly, such questions arise regarding the operationalization of international human rights obligations as how to implement a rights-based approach to the negotiation and implementation of multilateral environmental agreements; and how to monitor the implementation of human rights treaties which recognize the right to a healthy environment or interconnected rights. These questions and other pending challenges lead to the following recommendations.

79. The Human Rights Council may consider paying special attention to the relationship between human rights and the environment through the appropriate mechanisms. These may include, inter alia, the establishment of a special procedure on human rights and the environment, the organization of a high-level panel or a call for further or more specific studies on the issues at hand. More focused attention on human rights and the environment would provide the Human Rights Council with detailed analysis of the key issues and gaps that arise in the relationship between human rights and environment. This analysis and information generally is key to enable the Human Rights Council to provide guidance to the international community in regard to the pressing human rights challenges facing humanity in the twenty-first century, including the recognition of a general right to a healthy environment.

80. The mechanism chosen by the Human Rights Council could also serve to further strengthen and clarify the relationship between human rights and the environment, and to systematize the work of special procedures, treaty bodies and regional human rights courts and monitoring bodies on the issue. In addition, it could provide guidance to the implementation of principles relating to the extraterritorial obligations of States, particularly in the area of environmental protection.

This full report can be found here: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session19/A-HRC-19-34_en.pdf

Thursday, November 22, 2012

Attribution of extreme weather events to climate change: possible, but tricky

Results of a 2011 World Climate Research Programme
study about the attribution of  extreme whether events
To what extent extreme whether events can be attributed to climate change in a way that can convince judges? An answer to this question is given by the article “Attribution of Weather and Climate-Related Extreme Events” written by Peter A. Stott, Myles Allen, Nikolaos Christidis, Randall Dole, Martin Hoerling, Chris Huntingford, Pardeep Pall, Judith Perlwitz, and Daithi Stone.

The article reflects the results of a conference held in 2011 by the World Climate Research Programme. The authors stress that at first sight conflicting findings of studies are often to be explained by the fact that the questions answered differ. They refer to the few published studies on particular events. E.g. there has been “an attributable human influence on the probability of some (including the Autumn 2000 flooding in the UK, and the 2003 European heat wave),” but “no substantial human influence on the magnitude of others (the Moscow heat wave of 2010 that).” The authors wonder whether future research will confirm the findings of these studies – and indeed a short time later in 2011 a study of the Potsdam Institute for Climate Change recently came to another conclusion for the Moscow heat wave. The authors conclude: “While such initial studies demonstrate the potential for event attribution they also highlight many of the challenges still to be faced […].”  And: findings on one region cannot be used for other regions.

Monday, September 24, 2012

Standing, standing, standing: the debate on climate change litigation in the U.S.

Air as a public trust to combat climate change
(Image Claimer.org)

The discussion on climate change litigation in the U.S. is still focusing on questions of standing, or demonstrate adequate connection to the damage claim. The article “Standing for Private Parties in Global Warming Cases: Traceable Standing Causation Does Not Require Proximate Causation” by Bradford C. Mank of the University of Cincinnati of September 2012, published in the Michigan State Law Review, Vol. 2012, No. 4, 2012 gives a good consolidated overview of the discussion so far held in the U.S.

In a post on the climatelawyers.com blogJ. Wylie Donald asks the question: Is a filing mass law suit the right strategy to get carbon dioxide regulation going? The post refers to two recent victories of Our Children's Trust, an environmental organization based in Oregon. After several defeats the organization succeeded in using the so-called public trust doctrine for air and thereby reached standing for the individual claimants. The author assumes that these cases will undoubtedly serve as a rallying point for the remaining cases as well as to-be-filed cases. The author compares the case of Our Children's trust with a multiple legal action for law school placements. He analyses the psychological games played with mass filing of claims, not least to reach press coverage. But he points to the local conditions for successful claiming, given by the law of the states. This limits mass filing of claims. He concludes: “Like politics, all law is local.” At the end, it is not the press coverage which counts but “the particular law of the particular jurisdiction on the particular facts of the case”.
The Our children's Trust recent successes and the role of particular (state) law are also touched upon in a post on one of the many sites of lawyers getting interested in the business of climate change litigation: “Texas Trial Court Recognizes Potential Application of ‘Public Trust’ Doctrine to Redress Climate Change”.

The lawyers provide more insight into the “public trust doctrine” which “is a legal principle derived from English Common Law”, “traditionally applied to water resources”. The lawyers remind that courts have mostly rejected to apply this theory, via assuming an “atmospheric trust”, in the context of climate change, and this namely in “Colorado, Oregon, Arizona, Washington, Arkansas, and Minnesota”. After referring the usual AEP issues, the lawyers analyze more precisely the “troubling statements” of one of the Texas judges who was not only applying common law, but who also referred to the Texas Clean Air Act and the “Texas Constitution, which (1) protects “the conservation and development of all the resources of the State,” (2) declares conservation of those resources “public rights and duties,” and (3) directs the Legislature to pass appropriate laws to protect these resources”.

Hari M. Osofsky analyses in “Litigation's Role in the Path of U.S. Federal Climate Change Regulation: Implications of AEP v. Connecticut”, 46 Val. U. L. Rev. 447 (2012), the implications of the famous AEP decision. He concludes at the end of the descriptive part of his article that the Supreme “Court presents a vision of its future role as an arbiter of regulatory disputes, rather than as a forum for debating climate change science or for directly addressing harms to the victims of climate change outside of a legislative framework.” But much remains unclear due to this role assignment. The author doubts that the regulatory path to which the court refers will really be able to settle the fundamental issues of justice posed by climate change; at least with regard to the question of compensation for damages.

On this blog like on some others, we wonder how tort law can be applied on climate change litigation cases, as a means to reach justice for the victims of climate change. But imagine for a second that you are a classic tort lawyer, familiar with the stability of tort law over centuries, and here comes a wave of big-scale lawsuits possibly changing the well-established, slowly evolving doctrine of tort law. The perspective is opposite, and this opposite perspective might enrich your view on how tort law can be used for climate change victims. If interested in that perspective, here is the right article for you: “What Climate Change Can Do About Tort Law” by Douglas A. Kysar found at: http://www.eli.org/pdf/kysararticle.pdf. Though being skeptical as to chances for plaintiffs, the author considers that “climate change will enter prominently into tort law’s evolutionary dynamics”. Maybe we have already found an example for Professor Kysar's theory, see our previous post: “Outstanding: a model on fairness based apportionment of liability for climate change”.

Wednesday, September 19, 2012

Outstanding: opening the door for fairness based apportionment of liability for climate change

dividing climate change damages among tortfeasers
In his article “Apportioning Damages in a Climate Change Tort Suits”, Simon S. Grille presents a new approach to the topic indicated in the title of his article. But before we can value this contribution, we have to explain the context and present it.

In the case of multitude of tortfeasors, jurisdictions around the world apply basically two principles:

  • The principle of apportionment of damages proportionate to the individual tortfeasor's contribution (which, in some jurisdictions, is only applied when the damage is divisible);
  • The principle of joint and common liability according to which each tortfeasor is liable for the entire damage, but may refer to the other tortfeasors to get compensation.

The principle of apportionment of damages does not really help the victims of climate change. None of the Greenhouse Gases (GHG) emitting companies is in charge of more than just a few percents (we estimate the biggest polluters to range at about 2 %). Accordingly, victims of climate change, when suing the biggest individual polluters together, cannot expect to get compensation for much more than 5 % of their damage – if the simple principle of apportionment of damages is applied.

On the other hand, judges might find it unfair to put the burden for the entire indivisible damage on a polluter who contributed only to 2 % or less to the damage, even if the polluter can then run behind the other polluters to get them pay their share.

Provided you follow both points, you are in a justice dilemma: either the victims do not get a substantial compensation or you over-burden those few polluters who happen to be sued.

For this situation, the author suggests a third approach. He is in favor of applying a few more principles so as to “correct” the simple apportionment based on contribution. The GHG contribution remains of course the baseline. But secondly, if it is difficult to ascertain the GHG contribution, market shares can be used as a proxy. Thirdly, the author favors a time limit: 1992 in so far as since then states engaged jointly to fight climate change. Since 1992, polluters could not turn a blind eye on the possible causality between GHG emissions and climate change. The fourth step consists in sidelining small contributors to climate change. Below a certain threshold, one should not be liable. This result could be reached by a de minimis exception. Finally, the author would like to apply a criterion of culpability or negligence. He refers to the example where one polluter emits the same amount of GHG as the other, but in a much shorter timeframe. He also considers that big companies can more easily find the necessary resources to reduce GHG emissions, e.g. by new technologies. As to the justification of the criterion of culpability, he surprisingly states: “Support for this approach rests primarily on a theory of unjust enrichment – a defendant who was aware of the dangers of GHG emissions but chose not to take measures to address the problem has been unjustly enriched by the resulting lower costs.”

The author is of course aware of possible criticism and the limitations of his theory which should be applied as a “flexible framework”. He concludes: “The ultimate guiding principle is equity to the defendants while providing adequate compensation to a deserving plaintiff.”

We cannot foresee yet how this theory will be received in the U.S. At any rate, it might have relevance for far more jurisdictions than the one in the U.S. (which the author targets). In all the jurisdictions where joint and common liability is generally rejected or where it is not deemed as appropriate in the case of climate change (e.g. because a minimum contribution threshold has to be passed), a theory of fairness based apportionment of damages could come into play and solve the above mentioned justice dilemma.

And maybe there are more reasons why it would be worthwhile investigating this theory. Who knows, maybe the U.S. judges' insistence on questions of standing has also something to do that they feel uncomfortable with the dogmatic questions at the end of the examination chain? This would not be the only case of an avoidance strategy applied by judges.

Update: have a look at the current state of climate change compensation

Wednesday, July 18, 2012

Contribution threshold for joint and common liability under European jurisdictions?

CO2 emissions from smokestacks of multiple polluters
each contributing to climate change, but is it enough
to invoke common and joint liability in European courts? 
This blog has argued so far that some European jurisdictions, amongst those applying the principle of common and joint liability, offer good opportunities for climate change compensation lawsuits. We mentioned in particular the Netherlands and Sweden. However, we were now informed by a reliable source that a well-renown lawyer has investigated the conditions for assuming common and joint liability under European jurisdictions. The lawyer is said to have found-out that case law of all European jurisdictions require a minimum contribution to a damage. If the minimum contribution threshold is not reached by the defendant, judges cannot assume joint and common liability, thinks the lawyer. The lowest threshold is said to be the one required by the Netherlands: 5%.

Applying this principle to climate change compensation lawsuits, we would have to assume that victims of climate change do not have much to win under any European jurisdictions as no polluter is responsible for 5% of the (weighed) factors triggering climate change, regardless of the historic parameters applied. Evidently, to obtain just a proportionate compensation (of <1% of the damage) is not of much economic interest. Taking these elements together one would have to conclude: the European legal path for obtaining climate justice is in practice blocked.

Claimer.org will try to investigate whether this 5% threshold really exists in all European jurisdictions applying the principle of joint and common liability. This investigation is likely to be anything but easy and will accordingly take quite some time. Therefore we prefer to warn our readers on the possible existence of this threshold in the case law of European jurisdictions.

It goes without saying that any such threshold doctrine could be questioned in terms of fairness and justice. If 100 people push forward towards a grid in a soccer or football stadium or at a popular music concert to get closer to theirs stars and thereby unintendedly, but foreseeably squeeze a man to death, why shouldn't they owe the widow a rent according to the principle of joint and common liability? Would it really be fairer that each tortfeasor owes only 1/100 of the rent although half of the tortfeasors cannot be identified or are unable to pay, leaving the injured party's relatives under compensated or uncompensated? But it might be hard to convince judges if the contribution threshold doctrine is well established in the respective jurisdictions. Therefore we invite our readers to investigate in particular this issue prior to launching lawsuits.

Update: Further look into contribution of a single tortfeaser towards climate change in Europe

Tuesday, July 17, 2012

Climate change compensation lawsuits: Situation report for the U.S.

Situation for Climate Change
Compensation Lawsuits in U.S.
(Image  Photoeverywhere.co.uk 
The first wave of climate change litigation at U.S. Federal courts seems to run against a wall, as this article on a recent case confirms. But attorneys defending the industry do not think that the first wave was the end of the story, see this interview with attorney Larry Mason of Segal McCambridge Singer & Mahoney. The attorney of the Inuit village Kivalina is of the same opinion and foresees new argumentations in this interesting BBC broadcast. Referring to the social cost of carbon to demonstrate harm and establish damages might be one of the new argumentations to be heard in court procedures, see this article.

In the Stanford Environmental Law Journal of March 2012, Tracy D. Hester explores, in his article „A New Front Blowing in: State Law and the Future of Climate Change Public Nuisance Litigation“, the possibilities offered by the law of the various states of the U.S. (like Texas, Massachusetts, California). This article on public nuisance litigation is online accessible via LexisNexis. Hester points to the fact that the law of the various states is often more lenient than the Federal law as to questions of standing, non-justiciability and political preemption. Some states have even lowered the hurdle for environmental claims. But the relative freedom goes in two ways. Texas has blocked climate change nuisance claims. And quite some constraints and limits are imposed by the Federal law. Hester therefore thinks that climate change compensation lawsuits referring to the law of the states can hardly be successful. He mentions explicitly the following obstacles:

  • the „Due process“ or „Equal Protection“ clauses of the federal Constitution, to be invoked by non-state residents,
  • the „Full Faith and Credit Clause“ of the federal Constitution opposing enforcement in case of „inappropriately broad standing or political question doctrines“ applied by the state of the judgment,
  • constitutional enforcement limits if the defendant has no sufficient contacts with the state of the judgment.,
  • the Dormant Commerce Clause (prohibition of undue burden to or discrimination of interstate commerce),
  • possible preemption by the Federal Clean Air Act.

To resume Hester's findings in practical terms: Evidently the path via the law of one of the states is easier if the defendants have all their place of business in the very state which's law is referred to. Still the possible preemption by the Federal Clean Air Act may put an end even to pure intra-state lawsuits.

Related: What other options are there? See this overview of laws pertaining to climate change in other jurisdictions.

Monday, June 4, 2012

The most appropriate defendants in the Netherlands and Sweden

Potentially Successful Climate Change Defendants
in Holland and Sweden
(Image Claimer.org)
According to various blog entries on our website the Netherlands and Sweden might be amongst those European states where victims of climate change might have the relatively high chance of success when suing climate polluters.

Regarding the general reflections on the selection of appropriate defendants, one can look at the Article Identifying potential defendants in climate damage litigation cases. Here in this article are a few links presented which indicate potentially interesting lists of defendants in the Netherlands and Sweden.

These are the 2 European states that have both relatively high chances of success and joint and common liability. (see bottom of article for links to older acrtiles about those 2 countries).

List of companies in the Netherlands that may have successful litigation suits brought against them:


List of companies in Sweden that may have successful litigation suits brought against them:
In the following articles, we have already discussed specific issues about Holland or Sweden:
Warning: After publishing this article, we heard that there might be an obstacle to climate change compensation claims under European jurisdictions, see the article “Contribution threshold for joint and common liability under European jurisdictions?

Monday, May 28, 2012

Identifying potential defendants in climate damage litigation cases

Identifying the right defendants
for climate damage litigation
How to identify appropriate defendants for climate damage litigation?

When attempting to take legal action against an environmental tortfeaser, the most important reflection, has to take place at the level of the applicable law, or sets of applicable laws and thus the place of jurisdiction. Different jurisdictions can have widely different applicable laws and therefore drastically different results for a climate change litigation lawsuit. Therefore we present and compare information on the legal systems all around the world on this blog. Before someone identifies an appropriate defendant they should check if the specific defendant can be sued in a legal system which provides relatively high chances of success.

The second most important reflection is the selection of the best defendants amongst those companies which can be sued under a certain legal system at a certain place of jurisdiction. This selection can be based on the current annual CO2 emissions or on the multiannual contribution that the respective company has made to climate change with CO2 emissions over the last years or decades.

Plaintiffs might also choose to combine these two criteria. Finally, plaintiffs might refer to the overall climate change contribution of the company group (e.g. of all companies labeled "Shell").

A lawyer might prefer suing companies that burn fossil fuels directly themselves (like power plants) instead of “just” refining them (like refineries).

This website focuses on researching the potential to successfully using climate change litigation, to battle global warming. In this context, we present here links that might help plaintiffs to identify potential appropriate defendants worldwide in those two categories:

A. Power stations / power plants

B. Refineries

Please note:
  1. Once a plaintiff thinks having identified the appropriate defendant, their lawyer should undertake additional research on the exact legal identity and the place of business. The legal entities in charge of a certain power station or refinery might have changed over time (e.g. through mergers and acquisitions). In certain cases, it might be necessary to sue both the mother and the daughter company in one strike.
  2. In some legal systems, the fact that a certain company belongs to a big multinational company will not matter. In others the daughter company might be liable for the doings of the mother company as well. In case of doubt, assume the first
  3. In theory, it is possible to sue a company in another state than its place of business. It might be recommended, in case of doubt, to avoid this complication by suing in the state where the place where the place of business is. This avoids problems at the level of execution of a positive court decision.

Sunday, May 6, 2012

Climate change hitting insurance industry twice? U.S. courts to accept climate damage compensation?

Climate Change Litigation Possibly Hitting
the Insurance Industry Twice
The insurance industry might be hit twice by climate change: first by climate change damages and second by an increasing number of climate damage litigation cases. This is the key message of a recent article which is based on a report published in September 2011 by a coalition of investors and environmental groups “Ceres”. “Insurers could be sued both by emitters that are trying to pass on liability, or by investors claiming they did not adequately disclose risks to the market”, says the article and refers to a study of Deutsche Bank according to which there were more than 132 climate-related lawsuits in the U.S. In 2010. Ceres and the article claim that the reinsurance world market co-leader Swiss Re tries to convince its U.S. business partners to take a more proactive approach – with little success so far. Only 11 out of 88 U.S. insurance companies investigated had climate change policies.

Ceres recognizes that it is today difficult for plaintiffs to win climate damage compensation cases. Besides the issue of causality, the “political question doctrine” is regarded as an obstacle by U.S. courts. But the courts might change their view if Congress holds back the EPA from further engaging against climate change. If this happens, the political question doctrine would not apply anymore. Furthermore, the article refers to the past battles on asbestos and tobacco. Decades of legal fighting preceded the settlement and $265 billion pay-outs on asbestos, compared to which climate change litigation progresses pretty fast nowadays. At the end of the day, no causality proof was requested by courts ruling on tobacco damage compensation: liability arose from the fact that companies suppressed evidence on risk.

Update: see an overview of the latest state of U.S. climate change litigation

Saturday, April 7, 2012

Comer v. Murphy Oil climate change litigation case dismissed again

Comer vs. Murphy Oil court case rejected.
(Image 
Agencia Brazil
In one of the oldest cases of climate change litigation, the plaintiffs were dismissed again. In the case, Ned Comer, et al. v. Murphy Oil USA, Inc., the judge referred to the doctrine of "res judicata". On substance, the judge reiterated that the plaintiffs have no standing and put causality in question.

Though the plaintiffs were demanding compensation for damages in a climate change litigation trial, their claim required that the district court created and enforced emission standards upon the defendants and all other emitters. The defendants argued in the same way as the defendants in the Connecticut v. American Electric Power case, stating that this is beyond the scope of the judicial branch and that this is a legislative issue.

The political questions doctrine is therefore an obstacle. The authors of the blog suppose that the judges at the superior (appeal) court will find it difficult to overrule this dismissal.

See also:
http://www.sdma.com/mississippi-federal-court-sacks-climate-change-lawsuit-for-a-second-time-04-06-2012/

See the original court decision here.

Related: Read about another U.S. rejection in this article about the AEP v. Connecticut case

Monday, March 19, 2012

U.S. exposed to litigation risk by signing the UN Convention on the Law of the Seas

U.S.  Senate discussing signing-up for the
UN Convention on the Law of the Seas (UNCLOS)
(Image by Lawrence Jackson)
In a “Thecutting Edge” article, Steven Groves of the Heritage Foundation warns against the U.S. signing-up for the UN Convention on the Law of the Seas (UNCLOS or LOS). Signing-up to this convention would expose the U.S. to a high risk of being sued by poor states that are victims of climate change.

The U.S. assisted in drafting the UN Convention on the Law of the Seas in 1982, and Congress has often discussed signing the treaty, but until now the U.S. has still not signed the UNCLOS convention. Ratifying the convention in the united states could potentially open up new avenues for climate change legal proceedings and lawsuits. The U.S. legal system rules out the chance for lawsuits that raise political questions that cannot be answer by the judicial branch of the government. The political question is one of the reasons why the Connecticut v. American Electric Power case was unsuccessful in the U.S. courts.

Unlike U.S. Courts, International Courts, on the other hand, have accepted cases that raise political questions and have given rulings that have affected U.S. political issues. One example of such a case is when the International Court of Justice (ICJ) gave its judgment over the 1984 case of Nicaragua v. United States, also known as Paramilitary Activities case. In that judgement the ICJ condemned the unlawful excessive use of force of U.S. Troops in Nicaragua, Stating that it goes against the Hague Convention No. VIII of 1907. The ICJ then reached the decision that the U.S. was ordered to pay war reparations. In another article we already discussed how the ICJ could be used to launch climate change litigation lawsuits and how one country, Pacific state Palau, is already trying this approach.

Beyond this precise topic, the article about the U.S. signing the UN Convention on the Law of the Seas gives also hints on international public law climate change compensation claims in general.

For more information see: http://www.thecuttingedgenews.com/index.php?article=72366

Monday, February 27, 2012

Climate Change Liability in England, Germany, Poland and Russia

Climate Change Compensation Laws of
the U.K., Germany, Poland and Russia.
England could be an interesting jurisdiction while Germany, Poland and Russia present difficulties with Climate litigation cases according to a book released at the end of 2011, right in time for the Durban summit.

The book we continues to discuss is “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 touched on general conclusions of this detailed investigation of climate change litigation. The second blog post presented the legal situation in Australia, China, India, Indonesia and Japan. The third blog talked about the African region detailing Egypt, Israel, Kenya and South Africa. The fourth blog entry dealt with Brazil, Canada, Mexico and the United States. This blog entry finalizes the series with England, Germany, Poland and Russia.

England

Nuisance: “A condition or activity which unduly interferes with the use of enjoyment of land” may justify a claim for nuisance (460). In the context of nuisance in British law it has to be examined whether:
  • the claimant has suffered a damage of life, health or property (461, 462);
  • there is causality between the defendant's activities and the damage (462);
  • whether these activities could amount to a nuisance by being at least annoyance or inconvenience (461, 462);
  • Whether a defense of statutory authority is available (462).


Negligence: Negligence is given if the defendant has breached a duty of care towards the claimant and if this breach has caused a foreseeable damage (462). A first obstacle for stating negligence might consist in the proximity requirement set-up by courts in order to make the “duty” more concrete, proximity being a vague expression and an easy tool for limiting tort claims deemed inappropriate (463). Foreseeability is already given when the type of damage was foreseeable, though not the extent of the damage (471).

Damage: The authors state that a damage in the meaning of negligence or nuisance might not be stated if certain negative effects are compensated by positive effects so as to constitute a “net benefit” (464).

Causation: The authors claim that the classic “but for” test might not be suitable and sufficient in all cases of climate change (466). In cases of “divisible” damage, it might be possible to divide also the causation for a certain damage (466). However, in the case of indivisible extreme weather events this will not work (466). In this case the claimant could argue that climate change has increased the likelihood of an extreme weather event by more than 100% which would create a prevailing likelihood of the individual extreme weather event being caused by climate change (467).

Statutory authority: No “current legislation gives sufficient direct authorization to emissions to prevent an otherwise valid common law claim” (473).

Common and joint liablility: The usual English law approach would make tortfeasors commonly and jointly liable (469). However, in the case of climate change, only a proportionate share approach is practicable, say the authors (469).

Limitation: Limitation might arise “six years of the accrual of the cause of action” or “three years from when … the claimant was or should have been aware of the right to claim” (474).

Litigation costs: Like elsewhere, “the loser pays and the winner recovers”, but a party might request, e.g. in public interest litigation, for a Protective Costs Order (485). “No win no fee” arrangements are and can be combined with an insurance to cover the defendant's costs (485).

Class actions: Class actions are not accepted, but similar tools are available (485).

Forum and applicable law: The chapter on England contains, on pages 483 and 484, explanations on rules determining:
  • whether England can be chosen as a forum, and
  • which law is applicable.

These rules are basically applicable to all Member States of the European Union and certain neighboring countries:
  • If the defendant is residing in the European Union and certain neighboring countries, the forum is determined by Regulation EC/44/2001 and namely Articles 5(3) and 6 thereof. Otherwise, the national (in this case: English) International Private Law provisions apply.
  • The applicable law is determined by the so-called „Rome II“ Regulation EC/864/2007 which gives the victim of an environmental damage a choice between the law where the damage occurred and the law of the country where the event giving rise to the damage occurred.

A conscious use of these rules could, e.g., lead to a situation in which a multinational with a base in one of the EU states can be sued in application of the progressive law of Brazil or India, but without the lengthiness of the respective judicial systems.

Germany

TORT LAW

The authors first analyze § 823 1st paragraph of the Civil Code which provides for compensation in case of damage to certain legally protected goods (such as property and life) provided that “attributable causation” and negligence are given (400).

Causality: Contrary to the case of “acid rain” caused by a multitude of sources for which the Federal Court had denied a concrete causality, they hold that causality between greenhouse gases (GHG) emissions and climate change can be attributed in a linear way to polluters because all particles of gas are distributed evenly in the atmosphere (401). Despite of a potential reversal of the burden of proof (401, 402), it is more difficult to demonstrate causality between the climate change and the individual damage (403). An increase of risk is not recognized as “causality” (403, 404). This is well embedded in a practice according to which courts ask for a rather high likelihood before assuming “proof”; a predominant likelihood is not sufficient (402).

Accountability: Accountability can be denied for those industries, such as the automotive industries, which contribute only indirectly to climate change; they can only be hold liable if they have a special safety duty which they violate (405). The fleet-target in Regulation EC/443/2009 could constitute a standard that creates such a duty (406).

Illegality: Illegality as precondition for § 823 1st paragraph of the Civil Code is to be denied if the GHG emission is based on customary use of land (which is often the case) and if the damage cannot be avoided without measures that are reasonable in terms of cost (406). Furthermore illegality could be denied with reference to operating licenses (407).

Negligence: The latter aspect of license may also lead to the denial of negligence (408). But it would be hard to argue that polluters were unaware of the effects of GHG emissions (408).

PRIVATE NUISANCE

§ 1004 1st paragraph of the Civil Code provides for the possibility to request the cessation of activities that threaten to interfere with the use of one's land (410). However, as GHG is a customary use of land, § 906 2nd paragraph 1st sentence and § 14 1st sentence of the Federal law for protection against emissions prevent the (claim for) injunction (410). Instead the claimant can request protective measures on the emitter’s side unless protective measures would be economically unreasonable (410, 411). If this is not the case, the claimant can request a financial contribution to protective measures on his side, provided that such protective measures are financially reasonable (411, 412). Such a contribution shall be proportionate to the share of the polluter with regard to the overall pollution (412). If protective measures on the victim's side are financially unreasonable, the victim could maybe obtain partial compensation based on § 906 2nd paragraph 12nd sentence (412, 413).

Comment: Though not explicitly stated by the authors, it can be assumed that the compensation to be paid by the polluter is not only partial with regard to the overall damage, but also proportionate to the polluter's share with regard to the emissions. Thus victims cannot obtain full compensation of their damage by suing one of the polluters.

STRICT LIABILITY

§ 1 of the Environmental Liability Act (UmweltHG) provides for strict liability of listed factory operators for damages to persons or objects for legal or illegal emissions including GHG emissions. Scholars debate whether this act is aiming at such distant and cumulative damages as those caused by GHG emissions (413). They furthermore debate the question whether the effect of prevention, which is at least one of the goals of the act, can be reached in the case of GHG emissions given that GHG emissions cannot be (totally) avoided at this point in time (413). The authors claim good arguments and the majority literature view to be on their side (413, 414).

Comment: As the German courts are seldom really impressed by the majority view in literature, it remains pretty much open whether a claim based on § 1 of the Environmental Liability Act would be successful in any of the many courts of Germany. Furthermore it might be difficult if not impossible to obtain a joint an common liability for the overall damage because the exact contribution of each polluter can be estimated. Germany (and Austria) rejects a joint and common liability if the share of one tortfeasor can be estimated, as we stated in another blog entry. Tort law and nuisance law not being easy paths and not leading to a joint and common liability either, Germany cannot be regarded as easy playing field for climate damage compensation claims.

Poland

Tort law: Any faulty causation of a harm might trigger liability under tort law, fault not yet being precisely defined (429). However, liability under tort law can be refuted by the argument that the respective activity is compliant with permits which are themselves compliant with the law (429). The potential effectiveness of such defense could only be weakened by a future court ruling, for example a ruling deeming that actions that contribute to climate change without adequate preventative measures to minimize their negative impact on the atmosphere are illegal (429).

Strict liability: Polish law recognizes a (fault independent) strict liability for “high risk business”, provided that causality between this activity and the damage has been established (431, 432).

Joint and common liability: A joint and common liability can only be assumed if several persons committed prohibited acts which form one single tort, the unity of tort being “determined by its indivisibility” or by the fact that “there can be no distinction of damage for which specific persons are liable“” (433, 434). The authors make no statement on whether this condition is to be regarded as fulfilled in the case of climate change damages, whilst in the chapter on England it was stated that extreme weather events would be regarded as “indivisible” (466). The fact that the tortfeasors are hold liable on different legal principles does not impede joint and common liability (433).

Class actions: Class actions are possible under certain conditions (434).

Preclusion: Preclusion takes place three years, in case of property damage 10 years after the victim noticed the damage (434).

Litigation costs: The losing party has to pay the costs for the lawyer(s) of the winning party, but only up to a level determined by regulation (443).

Comment: Whilst the authors seem to be skeptical as to the success chances, the Polish law still looks comparatively interesting for victims of climate change. First common and joint liability of polluters can be at least argued for. Second there is a strict environmental liability scheme that could be tested in the context of GHG emissions. Third the doctrine on “fault” is still under development. Therefore claimants might find avenues such as accusing certain polluters, and namely the important national fossil power plant operators, of not having taken all available mitigation measures. To our knowledge, fossil power plants in Poland are rather inefficient; and CO2 capture techniques are not used either.

Russia

Neither the civil liability for damage to the environment nor tort law can be successfully used to establish liability for GHG emissions. The first is to be excluded due to the fact that there is no legal obligation for mitigating climate change (496). Tort law is not suitable as courts only recognize close causal links and as courts also require a high standard “for an action to be considered ‘culpabable’” (515).

Info: 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

Update: We later examined tendancies of climate change laws in Latin American countries starting with Argentina here

Friday, February 24, 2012

Climate Change Liability in Brazil, Canada, Mexico and the United States

Climate Change Legal Framework of
Canada, Brazil, the U.S., and Mexico
(Image Pete Souza).
Brazil has strong environmental laws, but there are few practical cases up till now where these laws have been asserted. In Mexico the laws may not favor compensation because the system requires that a tortfeasor are given a chance to fixes the damages they caused before compensation can be demanded from victims. In Canada the chances may be better than in the U.S. where joint and common liability is unlikely to be affirmed by U.S. courts.

This information comes from a book “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. This book was released at the end of 2011, just before the Durban summit.

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 summarise 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. The third blog entry presented the legal situation for Egypt, Israel, Kenya and South Africa. This Fourth blog entry deals with Brazil, Canada, Mexico and the United States.

Brazil

Liability on a non-fault basis: Brazil has a strong non-fault based liability for environmental damages. This liability is enshrined in Article 225 § 3 of the Brazilian Constitution, Article 927 of the Brazilian Civil Code (Código Civil) and Article 4 Section VII and Article 14 § 1 of Law No. 6938 of 1981 (615-617). The practice, however, seems to be different: “As part of the search for an equivalent compensation, the lawsuits turn into long disputes, which do not allow for quick and satisfactory results for the truly disadvantaged, thus favouring the perpetrators of the damage” (618).

Public Civil Actions: Law No. 7347 of 1985 provides for a specific liability tool, aiming at compensation of environmental damages caused by a forbidden act or omission (619, 620).

Canada

Negligence: Negligence is given if harm was caused as a result of unreasonable acts or omissions (543). The defendant must have had a duty of care to the plaintiff (543). The harm must have been reasonably foreseeable; this is the case when the defendant should have had “the plaintiff in contemplation as being affected” (543). In this context, the courts apply a criterion of proximity: “is the relationship one where the imposition of legal liability for the wrongdoer's actions is appropriate?” (544, FN 81). The plaintiff may argue that the case falls under an existing type of negligence to demonstrate proximity (544). S/he may also argue that a new type of negligence should be recognised (544). The categories of negligence are not limited, thus new types can be developed (543). However, the authors state that establishing proximity “would likely be a crucial challenge”.
The defendant must have failed to fulfil this duty (543) or standard of care (544). The standard of care is based on what can be expected from “an ordinary, reasonable and prudent person in the same circumstances”. The standard of care is influenced by the likelihood of a known or foreseeable harm, the gravity of the harm and the effort needed to prevent the harm (545).

Conspiracy: Conspiracy is given if there is (1) an agreement between several persons, (2) an unlawful activity, (3) a damage and (4) either an intent or a known likelihood of the damage to occur (545). Conspiracy can give rise to punitive damages (545).

Private nuisance: Private nuisance is defined as “the unreasonable interference with the use of land” and does not require a duty of care and negligence in general (546).

Strict liability: Strict liability refers to the “non-natural use of land” which causes the escape of something that causes harm and is regarded as a flexible concept (546).

Provincial legislation: Some provinces ban the release of substances that cause damage to the environment unless they are authorised (552). For substantial non-authorised GHG emissions, this offers another pathway (552).

Causation: Beyond the classic causality (factual causation or “but-for”- test), Canadian courts recognize the “material contribution test”. They assume causality if it is impossible for the plaintiff to prove causation in the normal way, whereas the damage is “within the ambit of the risk created by the defendant's breach of the defendant's duty of care to the plaintiff” (547, 548).

Joint and common liability: It is unclear whether Canadian courts would assume a joint and several liability or whether they would follow the U.S. Market share doctrine (548, 549).

Limitation: Provinces have set-up different time limitations (549).

Comment: Chances to get compensation seem at least to be better than in the U.S.

Mexico

Mexican law recognises both fault liability and strict liability, the latter being linked to a dangerous activity (637). The author regards it as difficult to prove the causality chain between a certain human behaviour and climate change and between climate change and the individual damage (639). Furthermore, limitation issues would make it difficult for plaintiffs (640). Compensation can only be requested if restoration is impossible (641).

United States

Public nuisance: Public nuisance is given where there is an “unreasonable interference with a right common to the general public” (580), a test which is “infamously malleable” and thus giving rise to a case-by-case decision making practice (580). The infringed right must be public, but the harm has to be individualised (580). No fault is required (580). Instead of giving much indication on the various substantial questions which could be raised in this context, the authors describe primarily the 4 famous climate litigation cases of the U.S. history so far, and most prominently the case AEP v. Connecticut. In that case, the Supreme Court hold that the Clean Air Act provides the Environmental Protection Agency EPA with the power to regulate GHG and “that the EPA was exercising that authority” (583). “This displaced the federal common law of nuisance” (583). By a 4:4 decision, the court rejected the argument that some of the plaintiffs might have a State status which would allow to challenge EPA's refusal to regulate GHG (584); the 9th judge was recused (583). The authors claim that this 4:4 decision might not be the end of the story for state public nuisance claims against GHG emissions; but “there might be a 5-4 majority against any kinds of GHG nuisance claims (and maybe other kinds of GHG claims) by non-states” (584). Furthermore the judges left the question open whether the public nuisance law of one of the U.S. states is precluded as well (584), wherefore plaintiffs might forum shop (look for the most appropriate place) both in a view of the state laws and the various court districts or “circuits” (585). Preclusion of public nuisance by an authorising state law has been confirmed, in a non-GHG case, in a decision of the Fourth Circuit (585); and “On 17 June 2011, Governor Rick Perry of Texas signed a Bill providing that companies sued for nuisance or trespass for GHG emissions would have an affirmative defence if those companies were in substantial compliance with their environmental permits” (585; State Bill 875 to be codified at Tex. Water Code Ann. § 7.257).

Whilst injunctive claims in the U.S. might now shift (and why not?) to the undergrowth of the different states, the door of nuisance claims at federal level might get opened again if the Congress was to reduce EPA's competence for GHG without banning federal common law nuisance claims (586). Furthermore, and this is most important for this blog, the question is still open whether compensation claims are bared in the same way as injunctive claims (586). This question might pop-up soon with “Village of Kivalina v. Exxon Mobil” which was put on hold due to the AEP case. The newly filed “Comer v. Murphy Oil” might provide for another occasion to decide on this question (586).

Both injunctive and climate damage compensation claims raise a broad range of further questions on which no statement can be made so far, amongst them:
  • Is there a preclusion by the “Political question doctrine” (590, 592)?
  • How would causality be interpreted, given that there is a multitude of GHG emitters (586, 591, 592)?
  • What would be the appropriate share for each plaintiff and each defendant (586, 591)?
Comment: To judge from these lines, from other publications on the U.S. and from the general trend in most if not all Anglo-Saxon/common law countries, a joint and common liability for GHG emissions is unlikely to be stated by U.S. courts. If this assumption was to be right and if the authors are right in pointing to the many open questions, we might be tempted to conclude that quite some non-U.S. Jurisdictions, and even those of the two neighbours of the U.S.; could offer more interesting opportunities than the U.S. jurisdiction(s). This conclusion might even be valid for victims of climate change in the U.S. They are not bared from suing CO2 polluters in the most promising countries of the European Union.

Info: 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

Update: A deeper examination of Latin American countries can be found here starting with Argentina

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