Sunday, October 20, 2013

The right to a healthy atmosphere in climate change compensation litigation

Every drop counts towards the right to clean water
could this principle be used for climate change litigation?
Andrew Gage, staff lawyer of the (Canadian) West Coast Environmental Law blog, puts forward a new argumentation in favour of climate change compensation litigation. He argues that the English and Canadian courts commonly recognize the right “to the naturally occurring flow and quality of water past their property”. The fact that a single polluter upstream does not cause a harm by his pollution alone does not hinder his liability, according to the courts. This rule even applies when there are no other polluters yet. The right “to the naturally occurring flow and quality of water past their property” is even infringed if there is no proof of causality between the incriminated act of pollution and a concrete damage. All this is said to be common case-law, says the author.

In analogy to this argumentation, the author states that a “right to a healthy global atmosphere” could be asserted. If the case-law developed for water could be transposed to the climate change litigation, the issues of causality and attributability could be leapfrogged, hopes the author. Causality and attributability are core obstacles to climate change compensation lawsuits in many legal systems. cannot assess whether it is viable under Canadian, English or any other law to assert a “right to a healthy global atmosphere”. However, we find that our readers should be informed about the possibility to argue in such way. The argumentation put forward is different from the “public trust doctrine” referred to under U.S. law.

Related: Read more about Canadian Environmental law, and other North American Law with regards to climate change litigation.

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