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. 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.
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.