Monday, December 28, 2015

Model law for compensation of climate change victims by CO2 polluters

cover of the west coast
climate law report
More than one year ago suggested that countries can adapt their civil law so as to facilitate climate damage lawsuits, see.

Now the Canadian NGO West Coast Environmental Law goes even further. It has published a model law for the compensation of climate change victims by “major emitters” of greenhouse gases (GHG). The model law is accompanied by a report which is also worthwhile reading. The report deals inter alia with the topic of enforcement of judgments in other jurisdictions (page 20) and basic principles of law, which are relevant in the given context.

The model law suggests solutions as to a range of topics, and these solutions can mostly also be incorporated into national civil laws in a selective way:

  • Who can sue / be a claimant? 
  • Who can be a defendant? The model law refers to the term “major emitters” who are defined as companies having emitted at a detectable atmospheric level of 0.1 ppm or more. 
  • On what basis can a claim be brought forward? Here the model law is unfortunately limited to the “cause of action” “nuisance” which is not so common outside the common law sphere. 
  • Jurisdiction. 
  • Causation and proof thereof. The model law contains some very interesting pragmatic solutions for this thorny issue, see page 31. 
  • What can the courts order the defendants to do? 
  • Barriers to climate change litigation. 
  • Coordination amongst different jurisdictions connected to the same tort. 
  • Apportionment amongst different tortfeasors, mainly based on the principle of proportionate responsibility. Unfortunately, the model law does not suggest common liability though this might have a much bigger deterring effect. 
  • Establishment of a climate compensation fund. 
  • Establishment of a climate damage insurance for GHG emitting companies. 
  • Limitation periods. 
  • Lawsuits of the state on behalf of the victims (“parens patriae lawsuits”).  
  • Class actions. 
  • Restricting adverse costs coverage. 
  • Legal assistance / funding. 
  • Addressing (weak) judicial capacities of claimants. 
If a municipality adapts laws around these key areas as descried in the report then this would open the possibilities of successful climate change civil lawsuits in that jurisdiction.

Read the full report here:

Also see: Europe currently better than U.S. for Climate Change Damage Lawsuits

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