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

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