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 BrunĂ©e, 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

1 comment:

  1. It would be interesting to see how clauses listed in this book apply to a typical injury lawyer. Suffolk county lawyers, for instance, may get some better insights on this relating to pollution cases locally.

    ReplyDelete

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