Sunday, January 22, 2012

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

Climate Change Litigation Laws
in selected Countries of SEA.
(Image Claimer.org)
In this section of our look into national liability laws published right in time for the Durban summit we focus on liability laws in Asia, Southeast Asia, and Australia.

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

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

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

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

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

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

India
India disposes of several factors that play in favor of climate change victims:
  • A special court for environmental affairs is also in charge of civil matters, the National Green Tribunal (157).
  • The Tribunal “is required to apply the principles of sustainable development, precaution and polluter pays” (157) which is advantageous for climate change victims.
  • Referring to the Massachusetts v. EPA case, the authors take the view that GHG might fall under the Air (Prevention and Control of Pollution) Act of 1981 (159).
  • The Supreme Court is likely to be influenced by the strong Indian human/fundamental rights doctrine (149).
  • There is a longstanding tradition of “public interest litigation” by persons not personally concerned by an issue (154-156). The authors identify three principles as a basis for private liability claims:
Nuisance: The authors take the view that the common law principle of “nuisance” provides “some (limited) hope to climate litigations” (165). Contrary to other common law systems so far examined on this blog, “nuisance” does not necessarily require a vicinity relationship; it may also be given if an act or an omission “must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right” (165).

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

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

Indonesia
Civil liability in Indonesia has the following preconditions (194, 195):
  • Unlawful action;
  • Fault;
  • Damage or loss;
  • Causality.
Unlawful action might include actions that contravene subjective rights of others, legal obligations, public decency or principles of appropriateness, prudence and reasonable care (194).

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

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

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

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

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 continue writing about the liability in Africa

Monday, January 16, 2012

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

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

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

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

Thist first blog entry will, however, focus on the general conclusions the authors draw from the detailed investigation (p 47-49, 63):
These entries will be split up into the follow sections:

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: Robert F. Blomquist at the Valparaiso University School of Law has also written on the same subject and combines many of the issues of this book into a shorter article called “Comparative Climate Change Torts.” It is available as a PDF at: http://scholar.valpo.edu/cgi/viewcontent.cgi?article=2250&context=vulr

Update: We continue writing about the liability in Asia: Australia, China, India, Indonesia, and Japan

Friday, January 6, 2012

Comparison of non-contractual liability in EU states

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

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

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

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

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

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

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

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

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

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

Furthermore, according to Spanish caselaw, “only proof of an exhaustive carefulness enabled exoneration from liability in cases where there was a situation of increased danger, with the result that ultimately … only force majeure remained as a defense” (558). The Italian law also knows the reversal of the burden of proof, and caselaw derives a strict liability from Article 2051 of the Civil Code (260, 560, 561). The Hungarian law sets-up a strict liability for “dangerous activities” and “activities which are hazardous to the environment” (260, 561).
Comment: As the vast majority of scientists and the general media point to the causality of CO2 and other gases for the climate change, a fault in its form negligence can, at first sight, easily be assumed for those who caused emission of climate damaging gases. However, the national law systems might – and this has not been examined by the book referred to here – deny negligence in case of legally / socially accepted behavior or hazards. There are several dogmatic connectors for such an argumentation. E.g. judges in some EU states might argue that CO2 and other industrial gas emitters did not violate rules of due care as they have undergone applicable authorization procedures (though, and this would be the major counter-argument, these procedures deal only with other risks than those caused via climate change). In other EU states like in Germany (589) and in Sweden (591), the negligence sub-criterion of “avoidability” could be denied.
Victims of climate change could face the same or similar arguments in court proceedings if they base their claim on strict liability.

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

States that do not know a reversal of the burden of proof have sometimes chosen other paths facilitating the task of the plaintiffs. Thus the “corrective device of prima facie proof” (first evidence proof) emerges in Portugal (263). Others like France have developed a jurisprudence on “presumption of negligence” (263). The Anglo-Saxon law systems compensate the absence of a reversal of the burden of proof by a lower requirement for evidence: evidence presented by one side must be more convincing than that of the opposing side (263). This is substantially more lenient than, e.g., the German law requiring the court to be convinced “beyond any reasonable doubt” (263). Likewise it is sufficient, under Swedish law, that “it is clearly more probable that the damage originated in the manner alleged by the claimant rather than by the defendant” (264).
Comment: The rather low requirements of evidence in the Anglo-Saxon law systems within the EU and in Sweden make these particularly attractive for climate litigation cases. The same might be true for Italy and Spain where there is a powerful reversal of the burden of proof for fault. However, given the common knowledge on certain gases causing climate change, one does not need to refrain from launching climate compensation claims in any of the EU Member States just because of the issue of burden of proof.

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

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

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

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

Related: An overview of other countries can be found here

Tuesday, January 3, 2012

U.S.: Political question doctrine, standing, and implied preemption notto block climate damage litigation, but rather substantial arguments

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

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

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

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

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

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

Related: More on Standing can be found here

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