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A Climate Change Tort

1

The Law of Torts

I don’t want to deal with global warming, to tell you the truth.

United States Supreme Court Justice Scalia1

I. Introduction

Under the common law, a climate change tort could be fashioned to deter emissions of greenhouse gases and prevent the resulting damage of anthropogenic climate change. No case has yet been successful in extending the law of torts to this global phenomenon. Most cases have been rejected on the basis that a separation of powers exists between the legislature and the judiciary, which prevents the judiciary from arresting greenhouse gas emissions. As the science of climate change provides a complex link between greenhouse gas emissions and climate change, the law has found the link too attenuated to provide redress. Even though theoretically tort should remedy physical property damage, there have proved significant hurdles for remediation. This chapter argues that the public nuisance of climate change provides an unreasonable interference with the comfort and convenience of the public. Courts should be unafraid to assess thoroughly the public utility of greenhouse gas emissions with the associated climate change damage provided the damage is a reasonably foreseeable consequence of greenhouse gas emissions as contended. Equivalent questions can be considered in a tort of negligence or product liability. Causation could be satisfactorily addressed through a proportional risk-based assessment. Even though it is improbable that a climate change tort will be created by the courts, as greenhouse gas emissions enter society’s consciousness and climate change damage become rampant, the challenges of a climate change tort can, it is argued, be overcome with cautious development.

II. The Science

Climate change law as a discipline has grown out of scientific research on climate change.  It is therefore necessary to understand the science of climate change before embarking on any legal discussion. The Intergovernmental Panel for Climate Change (the IPCC) has been the key assessor and disseminator of such science.  Formed in 1988, it is composed of several hundred specialists nominated by their governments or selected  because of their specialities.2 The IPCC is charged with providing a comprehensive, objective and transparent analysis of all scientific, technical and socio-economic information on climate change3 Divided into three Working Groups, Working Group I summarises the physical science of climate change, Working Group II focuses on adaptation and Working Group III examines mitigation strategies.4  Together these Groups combine to form Assessment Reports. The Assessment Reports that are produced synthesise and evaluate the peer-reviewed and internationally available literature. These Reports are then peer-reviewed.5 An executive summary of the reports is subsequently made into Summaries for Policymakers.

The IPCC explains that the Earth’s surface temperature change is driven by the balance between the incoming energy from the Sun and that which is reflected directly back to space or radiated as heat6 Some of the incoming solar energy is absorbed by the atmosphere but most is absorbed by land and oceans7.  This energy is radiated as heat to space but is impeded by gases in the atmosphere known as greenhouse gases (including water vapour, carbon dioxide, ozone, methane, nitrous oxide as well as complex industrial substances)8. Without these, the Earth would be minus 19oC rather than the global average of 14oC.9 This is known as the greenhouse effect. There are a number of other temperature forcings. As the Earth varies its elliptical orbit and tilt of its axis, there has been the waxing and waning of ice ages.10Other forcings include solar output, cosmic dust, clouds and volcanic eruptions.11 The IPCC, however, has stated that despite these natural forcings, the reason for an increase in temperature of the Earth’s surface is very likely due to increases in anthropogenic greenhouse gases.12 The increase in greenhouse gases have come from the burning of fossil fuels (gas, oil, coal), methane from ruminoid animals and decaying landfills, nitrous oxide from fertiliser use and complex gases from industrial uses.13 This has meant that the Twentieth Century saw Earth warm by an average of 0.76oC and a 0.17 metre rise in the average sea level.14 In the twenty-first century, global temperatures could rise between 1.1oC and 6.4oC with a sea level rise of between 0.18 and 0.59 metres.15 

How these global temperatures have been collated has been a crucial tenet of sceptical arguments against anthropogenic global warming. For instance, the sophistication of instrumentation in testing temperature has changed over time and testing temperature from sea (at least initially) has depended on a range of factors. Temperature has also been taken from radiosondes in balloons as well as satellite infared spectrometers.16

Obtaining temperatures prior to the beginnings of industrialisation requires proxy data. This is data obtained from ice cores, sediments, speleotherms (stalagmites and stalactites), coral and tree rings.17

The “Urban Heat Island Effect” has also been an accounting challenge for scientists, as it is warmer in urban environments relative to unpopulated areas.18 From these temperatures, supercomputer models have tried to predict the climate of the future. It must be cautioned, however, that the models “are not infallible [but nor are the models] useless.”19

Global warming sceptics have extensively pointed out discrepancies. This includes the fact that a mild global cooling between the 1940s and 1970s meant many scientists thought that a global ice age was impending.20. They point towards the medieval warming period.21.

They state  that a naturally warming climate releases more greenhouse  gases into the atmosphere .22 .  They consider polar bears are more likely to be killed by hunters than from adapting to global warming23 They reveal discrepancies in Michael Mann’s so-called hockey-stick graph used in Al  Gore’s An Inconvenient Truth.24   They use hacked emails compiled out of context in the  Climategate controversy to mislead the public.25 The main sceptic argument is that the “[c]limate has always changed. It always has and always will… Extinctions of life are normal… Climate changes are cyclical and random.”26

While these concerns are legitimate, there are good reasons for seeing a causal relationship between greenhouse gases and a rise in twentieth century temperature.

 Worryingly, there is evidence of abrupt change in  palaeoclimatologic data under natural circumstances so any tampering with the climate system has the possibility of happening very quickly  ( the so-called “bath tub effect” ) .27  Most importantly “the combined radiative forcing due to increases in carbon dioxide, methane, and nitrous oxide… and its rate of increase during the industrial era is very likely to have been unprecedented in more than 10,000 years.”28  In addition, palaeoclimatologic data has indicated that change to the climate usually occurs in the southern hemisphere before the northern hemisphere but the twentieth century has not seen such a time lag with the northern hemisphere warming  “ahead of any clear signal ”  from the southern hemisphere.29

In the IPCC words, “ [m]ost of the observed increase in global average temperatures since the  mid-[twentieth]  century is very likely due to [increased] anthropogenic greenhouse gas concentrations.”30

The consequences of such global warming will lead to climatic change.  There are positive features of climate change including an increase in plant growth from carbon dioxide, an ice-free Northwest Passage and less cold-related deaths.31

The negative features of climate change include: sea level rise; reduced snow cover as well as reduced glacier length (less melt for rivers); melting permafrost; acidification of the oceans; coral bleaching; tropical diseases in temperate zones; risk of wildfires; and risk of extinction for vulnerable species.32 The gravest concern is a general increase in extreme weather events such as droughts, heat waves, cyclones, tornados, and typhoons.33 For New Zealand, climate “is dominated by” the oceans surrounding the country.34 With an increase in westerly wind flow over New Zealand, it is predicted that the west will become wetter and the east drier in New Zealand.35These “[s]mall shifts of climate can mean big changes at ground level.”36 All in all, water is “likely to be the biggest issue – too much in some places, too little in others.”37This will see increased conflict over resources for worldwide food and energy security.

 III. The Law of Torts

Turning to the law of torts, a tort as a civil wrong is “concerned with those situations where the conduct of one person causes harm to or invades the interests of another.”38 The question for tort law is therefore to “determine when [loss] should be shifted to another”

which will usually turn on fault although liability can also be strict without proof of fault.39 There are, of course, other objectives to tort law including “influenc[ing] conduct, promot[ing] safety, and deter[ing] wrongful behaviour.”40 Tort law can, therefore, “help create a climate of opinion in a particular profession or discipline that encourages taking care.”41 Nevertheless, there are additional ways of influencing conduct outside the law of torts including criminal law and regulatory control.42 Speaking on the aims of litigation, Kaminskaitė-Saltersconsiders these aims are receiving compensation for loss sustained, deterrence, regulatory change, and awareness through media exposure.43 Therefore, the ultimate aim of a corporate tort lawsuit is to provide market deterrence through economic efficient mechanisms. This “provide[s] indirect incentives to people not to cause harm or loss to others” especially where conduct is intentional or reckless.44

The common law tort of nuisance would seem, at first glance, appropriate for climate change. There are two forms, private and public, which provide for the “unreasonable interference with a person’s right to the use or enjoyment of an interest in land” and the “unreasonable interference with the comfort and convenience of a section of the public” respectively.45 Private nuisance is limited by the requirement of an interest in land and requirements of geophysical proximity.46 It would therefore exclude non-stationary sources of greenhouse gases. Stationary industries would still remain potentially liable although unable to be sued by those without “such causes being linked to land” interests.47 Trespass is unlikely to be appropriate if the trespass is negligent rather than intentional48  or where it is “merely the indirect or consequential result of the defendant’s act.”49 Similarly, Rylands v Fletcher will be unhelpful because of the need for an interest in land, a non-natural use of land, a pollution pathway where a mischief escapes from the defendant’s land to be established as well as the need for isolated acts.50 Thus, public nuisance seems the most suitable tort for development.

IV. Separation of Powers

Drawing upon United States case law, most cases alleging a climate change public nuisance have been thrown out on the basis of standing or presenting a non-justiciable political question.51 Standing in the United States system is stringent.52The first requirement for sufficient standing requires injury in fact which is concrete, particularised, actual or imminent and not conjectural. Next, the injury must be fairly traceable to the challenged action of the defendant. Finally, it must be possible for the injury to be redressed by a favourable decision. Climate change presents the problem of anticipatory harm as well as real physical harm as the harm is traced through a complex lattice of phenomenon. Preventing the harm through a mass halt of greenhouse emissions when society is almost exclusively reliant upon the greenhouse gas emissions will create extensive economic chaos. This point was implicit in the minority opinion of Massachusetts v EPAin the United States Supreme Court.53.

The majority deemed it possible for greenhouse gas emissions to be regulated by the Environmental Protection Agency (EPA) under the Clean Air Act.54

The majority relied upon the sovereignty of the States to protect its citizens in granting standing. In New Zealand, there is considerable leniency towards standing because “[a]ny tendency to consider the issue of standing in [isolation] from the nature of the complaint is resisted.”55

In the United States, the rejection of standing has often been used in conjunction with the non-justiciable political question doctrine which forms part of the separation of powers. It provides that the judiciary should not usurp other branches of government where another branch is better suited to resolve the issue. The statement of Baker v Carr is critical:56

Prominent on the surface of any case held to involve a political question is found [(1)] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [(2)] a lack of judicially discoverable and manageable standards for resolving it; or [(3)] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [(4)] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [(5)] an unusual need for unquestioning adherence to a political decision already made; or [(6)] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

The United States Supreme Court cautioned that political issues do not make a decision non-justiciable as the question is one of political questions not political cases.57 The argument is that the question involves adjudication of the nation’s foreign relations which is the prerogative of the executive. In addition, the judiciary should not regulate by judicial decree issues where there is the requirement to resolve complex scientific problems. In Comer v Murphy Oil, land owners along Mississippi’s Gulf Coast brought a class action against oil and energy companies operating within the United States for the destruction of their property following Hurricane Katrina58

Climate change was argued to intensify the effects of Hurricane Katrina through a rise in global temperatures.  The District Court held that “to balance economic, environmental, foreign policy, and national security interests [involves] an initial policy determination of a kind which is simply nonjudicial.”59

In New Zealand, the United States political question doctrine involves a policy appraisal of the separation of powers doctrine.60 It is usually subsumed into the statutory interpretation of any statute law which isknown in the Untied States as displacement. In New Zealand, the Climate Change Response Act 2002 (CCRA 2002) is to enable New Zealand to meet its international obligations of the international climate change framework including reporting requirements.61 The CCRA 2002 provides:62

for the implementation, operation, and administration of a greenhouse gas emissions trading scheme in New Zealand that supports and encourages global efforts to reduce greenhouse gas emissions…and by reducing New Zealand’s net emissions below business-as-usual levels.

Awkwardly, s 104E of the Resource Management Act 1991 (RMA 1991) adds:63

a consent authority [when considering an application for resource consent for a discharge permit] must not have regard to the effects of such a discharge on climate change except to the extent that the use and development of renewable energy enables a reduction in the discharge into air of greenhouse gases.

The relevance of these statutes will be extensively discussed later. For present purposes, there is no explicit statement of immunity from suit for climate change damage within these Acts.64 Nevertheless, it should be noted that in Langdon v Bailey, Panckhurst J has questioned whether public nuisance “remains relevant in modern conditions” owing to the extensive environmental regulatory framework.65 Certainly, the Supreme Court of the United States in American Electric Power v Connecticut has rejected injunctions as a form of remedy in a public nuisance lawsuit for climate change because “the Clean Air Act and the [EPA] actions it authorises displace any federal common law right to seek abatement of carbon-dioxide emissions.”66 There, eight states and three land trusts sued six power companies seeking abatement of the defendants’ contributions to the public nuisance of climate change. The Supreme Court found that the statutory background “provides a means to seek limits on emissions of carbon dioxide… [There is] no room for a parallel track.”67 While the lower court had held that there was room for a climate change public nuisance, the Supreme Court disagreed. It stated that the delegation of authority to the EPA to regulate greenhouse gas emissions displaced the federal common law.68 Any decision of the EPA to not exercise its delegated authority would be a question for administrative law.69

Hence, injunctions in light of Connecticut will be limited. However for Kaminskaitė-Salters, damages remain an arguably viable alternative because as an ex-post (rather than ex-ante) instrument, damages would redress wrongs already caused.70

V. Potential Plaintiffs and Defendants

With these reservations in mind, consideration ought to be given to a hypothetical climate change lawsuit under New Zealand law. At the outset, the most rudimentary question as to the potential plaintiffs and potential defendants must be asked. There are the traditional civil procedural hurdles to bringing such a lawsuit. Central government, local authorities, non-governmental organisations (NGOs), indigenous peoples, private businesses and individuals are all potential plaintiffs. NGOs can be divided into two categories: those who suffer direct loss due to climate change and those organisations that merely protect an interest. The latter group may find it difficult to launch climate claims as there would not seem to be an actionable wrong.71 The ability of foreign claimants to sue in the New Zealand courts for damage is a moot question concerning choice of law in the realm of conflict of laws.72 In international law, there are formidable problems concerning the jurisdiction of the International Court of Justice73

The most desirable plaintiff, in the author’s view, would be New Zealand’s non-self governing state of Tokelau.74 Tokelau forms part of New Zealand under the Tokelau Act 1948.75 Despite s 6 of the 1948 Act which states that statute law of New Zealand is not applicable to Tokelau, New Zealand statute law can and often does form part of Tokelau law. The Tokelau judiciary system is intermixed with the New Zealand system with the exception of the Judicial Committee of the Privy Council as the final appellate court.76.While Tokelau’s population is a mere 1,400, Tokelau is explicitly vulnerable to a sea level rise with many of its atolls just metres above sea level.77 Premier Foua Toloa has stated that climate change is already leaving its “ugly mark” on Tokelau.78

In early 2005, Cyclone Percy struck Tokelau putting most of Tokelau under seawater. It caused widespread damage to infrastructure and crops including bananas, coconuts and pandanus. The salination of Tokelau’s water supplies and territory means vegetation is dying and, for Premier Foua Toloa, stealing their food.

A related question continuing to vex legal scholars is the extent to which future generations may have standing as plaintiffs in any area of law.79 In New Zealand, the extension of legal standing to future generations is doubtful.Arguments of intergenerational equity are not excluded from the law but usually integrated into arguments of current harm.80 A related concept to future generations standing in the United States is the public trust doctrine.81 The concept is that governments “hold natural resources in trust for their citizens and bear the fiduciary obligation to protect such resources for future generations… as an attribute of sovereignty itself.”82 Atmospheric trust litigation posits the atmosphere as a trust asset and would impose a governmental fiduciary obligation to reduce greenhouse gases.

Therefore, a government “can no more abdicate its trust over property [than] abdicate its police powers”.83 A trustee who damages the trust assets acts in breach of trust and thereby commits waste. Waste of the trust asset requires recuperation and like all trusts, trust accounting is required. To this end, Our Children’s Trust has initiated proceedings in the United States to force governments to protect the atmosphere in trust for present and future citizens.84 While “the atmosphere is an endowment [and] failure to safeguard it amounts to generational theft”, the legal basis for a public trust in New Zealand would seem the restricted concept in s 5 of the RMA 1991 which excludes minerals from intergenerational equity85 .In the United States, Connecticut creates hurdles for the public trust doctrine. Returning to tort law, potential defendants seem inexhaustible.

Given causation requirements, however, entities must have made a material contribution to any harm86 The most likely defendants, therefore, include entities that supply fossil fuels (gas, oil and coal companies), entities that create greenhouse gases (electricity), and entities that manufacture products which create greenhouse gases (vehicle manufacturers, aluminium industry, cement industry and arguably the manufacture of animal by-products). Another arguable defendant would be governmental authorities but conduct may be better challenged under administrative law. Grouping defendants together should help “overcome issues… that would apply to individual emitters’ contribution to climate change.”87Moreover, the extent to which consumers maintain any substantial control over greenhouse gas emissions is debatable given the level of consumer (unlike corporate) knowledge of the risks of greenhouse gases.88

VI. Public Nuisance

Continuing with the hypothetical climate change lawsuit, the tort law cause of action most appropriate for climate change is public nuisance. The public nuisance must be “so widespread in its range or so indiscriminate in its effect that… it should be taken on the responsibility of the community at large.”89 Although public nuisance can also intersect with criminal law,90 it is a flexible concept which has included in the past the obstruction of  highways with vehicles91siltation of navigable rivers,92street meetings,93excessive obscene phonecalls,94stock sales yards95,attraction of animals96,activities of a quarry,97,the sale of food unfit for human consumption,98hoax bomb threats99letters laced with salt as anthrax100 and prostitutes on streets which compromise public morality.101While the Attorney-General would normally bring the action either personally or on behalf of private individuals, private individuals are able to bring an action only if that individual has experienced some special damage over and above the public.102Special damage will qualify if it is different in kind or to an “appreciably greater in degree that any suffered by [the public].103For public nuisance, the standard of liability is strict liability for creating a continuing interference with public rights and fault based liability for failing to abate a continuing interference with public rights.104Absence of negligence is no defence although the unreasonableness of the conduct complained of is necessary for establishing liability. Actual physical damage is usually sufficient to establish unreasonableness, although a general public interference will require that the conduct exceeds that which reasonable members of the public should be expected to tolerate.105The law of nuisance must strike a balance between what is fair including looking to the severity of the effect of the defendant’s activity as against the reasonableness of the plaintiff’s activities. Any court will give consideration to the nature of the harm, relevance of the locality, the time of day of interference, its intensity, and the duration of the harm. Implicit within the unreasonableness threshold is the social utility of the activity. A problem for defendants is that just because a universal activity benefits the general public does not provide a defence because it is the injury that is inflicted on the plaintiff which is the focus of the inquiry.106It must be remembered there “is no public interest defence in the civil law of nuisance.”107

The court may take the public benefit into consideration when fashioning a remedy as an antidote to the defendant’s activities.

Applying such law to the facts of a hypothetical climate change public nuisance suit presents an interesting legal dilemma. Any individual plaintiff will have to prove special damage. While the concept of unreasonableness usually focuses on locality, climate change by its very nature is global although some people will be more affected. The notion of intensity should be therefore a key concern. A test of significance will be the social utility of greenhouse gases but this should be considered at the remedial rather than liability stage. The advantages of a public nuisance claim for the plaintiff include the fact that given its strict liability nature, pure economic loss is recoverable unlike negligence108and there is no requirement for an interest in land.109While harm suffered must be a reasonably foreseeable consequence of the defendant’s conduct, remoteness is not particularly challenging and will be further considered in the discussion on damage below.110The cumulative impact of a nuisance by many defendants has not barred nuisance allegations in the past.111 Undoubtedly, the defence of statutory authorisation will need to be considered. There is a distinction to be made between a duty and a mere power. The statutory authorisation of a public nuisance must be express in words of a duty rather than merely allowing a discretionary activity to take place. Therefore, a resource consent granted under the RMA 1991 does not extinguish a right to nuisance inevitably created by the use of the consent.112As the RMA 1991 does not require consideration of direct greenhouse gas emissions, the question of nuisance has been left to the CCRA 2002.113The CCRA 2002 does not expressly exempt greenhouse gas emitters from liability. As Kaminskaitė-Saltersargues an emissions trading scheme “rather than authorising [emissions], arguably aims to eliminate them in due course” and even if it does authorise emissions “at the most [it] creates a power.”114

This interpretation of emissions trading, where there is a statutory authorisation rather than an inalienable right to emit greenhouse gas emissions, is further advanced in chapter three.

VII. Negligence

An alternative to public nuisance action for climate change is the creation of a duty of care in negligence. Like nuisance where “the categories of nuisance are not closed”,115

negligence has remained flexible to societal harm. Basically, negligence involves a duty of care owed by the defendant to the plaintiff, a breach of that duty by the defendant, a causal connection between the breach and the damage caused to the plaintiff, and damage.

A          The Duty of Care

In New Zealand, a duty of care in the tort of negligence includes asking whether the defendant should reasonably have foreseen injury to his or her neighbour as the person proximately affected and whether it is just, fair and reasonable to impose a duty of care in the circumstances.116Turning to the first stage, any physical proximity between the parties is unlikely to be physical but rather causal. Causal proximity may be established where there is an “uncomplicated” close connection.117A court may find too many other factors troubling proximity.  In the American context, the minority opinion in Massachusetts v EPA described the causal connection as “far too speculative to establish causation.”118Referring to the “tenuous link”, Roberts CJ reasoned that the majority had used “the dire nature of global warming itself as a bootstrap for finding causation and redressability.”119

In the eyes of the IPCC, the so-called attenuated link is appreciable. There are real scientific reasons for finding a causal link, so the question is not factual but entirely legal. The proximity is, of course, principally complicated by other entities contributing to global warming as well as the harm being inflicted indistinguishable from natural causes. Unlike proximity, the question of foreseeability is relatively straight-forward. Knowledge of a reasonable person in the defendant’s position would suggest that his or her conduct (greenhouse gases) involved a risk of harm (climate change) to the plaintiff. With each advance in science, the foreseeability of harm becomes progressively well-established.

Whether imposing a duty to take reasonable care to avoid harm on a defendant is just, fair and reasonable will present a plethora of policy problems. While wrongs need to be remedied, fairness would suggest a distribution of burdens is required. On these principles as all humans arguably produce greenhouse gases, all should be entitled to an equal distribution of the burden. This leads nowhere. Any omnipresent plaintiff is more apparent than real because damage will need to be physical rather than entirely anticipatory. Foreseeability would, likewise, act as a net because of uncertainties as to the precise effects of climate change being seen as unreasonable such as mental health issues of climate change fear.120 The omnipresent defendant, similarly, could be restricted to those “biggest emitters of greenhouse gases.”121However, it must be acknowledged that a duty of care cannot be owed to the world at large as the floodgates of litigation will be opened.122In Sutradhar v NERC,a duty was not held to exist to the whole population of Bangladesh for negligently reporting on water which was contaminated with arsenic.123Liability could not be imputed where there was no measure of control over and responsibility for the dangerous situation.124

Thus, a vulnerable Tokelau plaintiff as a group in contrast to corporate private oil or coal companies as potential defendants provides the necessary unequal distribution of harm and level of control required for remediation.

Other factors such as the defendants committing positive acts (the emission of greenhouse gases) and the harm caused being mostly actual physical damage (property damage from a sea level rise) seem to point towards liability although some harm may amount to pure financial loss (mere loss of snow). The interaction between public nuisance and negligence will also be considered.125Any defendants willbe primarily private entities. Even so, an argument will be that a duty of care on greenhouse gas emitters would prevent them from conducting publicly crucial enterprises. A counter-argument is that “short-term considerations of social utility should not trump long-term concerns regarding the likely widespread harm to property and public health.”126Durrant cites “the imposition of indeterminate liability on emitters” as crucial but confining the potential plaintiffs and defendants points the other way.127Again, a strong causation argument can be put that as climate change is a global phenomenon “as a result of natural processes as well as historic and continuing anthropogenic emissions”, liability should be denied.128

B          Breach of the Duty of Care

The question of whether the defendant is negligent will present another hurdle. Common behaviour as a comparable standard, which has not “ke[pt] abreast with developing knowledge and technological advances” may still be, nonetheless, negligent.129The argument will be presented that the defendant failed to invest in alternative renewable energy sources for oil or electricity or failed to invest in energy efficient activities. Defendants, therefore, will be “assessed according to their commitment to research and investment into low-[greenhouse gas] product alternatives.”130The likelihood of the harm is significant but it is unclear how precisely all impacts will play out. This would indicate the need to apply the precautionary principle. The social utility of the defendant’s conduct will present a challenge because without the services provided by them, society would not be able to function. The counter-argument follows that defendants with the passage of time will find “it increasingly difficult to prove that low-[greenhouse gas] alternatives were unavailable or prohibitively expensive.”131The test becomes a cost-benefit analysis as to the advantages of the defendant activities “against the precautionary measures necessary in order to eliminate it.”132The Stern Review has argued that one per cent Gross Domestic Product (GDP) per year now spent on mitigating climate change will prevent a possible twenty per cent GDP per year in the future of damage associated with climate change.133When compared to the revenue of greenhouse gas emitters, the cost of reductions is hardly exorbitant.134

C         Causation

Causation in a climate change lawsuit “tests the conventional boundaries of causal proof”135

and has been subjected to mass academic scrutiny.136Although “undeniably challenging, [causation] should not (at least in the future) amount to insurmountable obstacle.”137With a little creativity and imagination, causation need not present “daunting evidentiary problems.”138

In essence, there are three issues. Firstly, other entities contribute to global warming. Secondly, other entities have contributed to global warming in the past. Thirdly, the damage caused by global warming can be seen as natural (the damage itself is indistinguishable from natural factors). The traditional but-for test of causation fails demonstratively. But for the actions of defendant in emitting greenhouse gases would the damage have occurred? The answer is affirmative because there are a multitude of other factors at play including other emitters and the natural damage of climate change.

Ordinarily, from a causation perspective multiple potential defendants provide a relatively straightforward question as each can seek contribution from the others in the form of joint and several liability even though the harm seems indivisible. In Fairchild v Glenhaven Funeral Services involving the signature disease of mesothelioma, any one of the several employers could be liable.All were held liable (jointly and severally) as it could not be shown which asbestos fibre initiated the mesothelioma.139This was subsequently upheld in Sienkiewicz v Greif.140

Any comparison with climate change is misleading because emissions are cumulative causes rather than consecutive replaceable causes. As multiple concurrent tortfeasors, the acts of emitters combine to cause the same seemingly indivisible damage. The manner by which that damage is to be divided up in proportion to the emitter’s contribution to global warming will be problematical given the need to address liability for historical emissions and whether a liability amnesty is appropriate.141Another difficulty rests with the notion of joint and several liability in a climate change lawsuit which can be legitimately claimed as unfair because of the widespread nature of emissions. Hence, those in favour of a climate change tort recommend a proportional market-share liability theorem because of the intensity-based contribution to climate change.142The trouble posed through multiples causes of harm is an added challenge.143For the climate change scenario, the more a defendant emits, the greater the intensity of the damage. There are multiples causes but the risk of those causes does not remain static but rather intensifies with the increase in emissions. Wilsher v Essex Area Health Authority (over-oxygenation causing blindness merely added to a list of causes) is distinguishable.144Rather the concept in McGhee v National Coal Board (dermatitis caused by lack of washing facilities) of material increase in risk is apposite.145The use of epidemiological studies by the courts which use a relative risk formula (RR) will help to bear risk in mind as against background risk. A RR of 2.0 indicates that the risk is twice as likely as usual. In Sienkiewicz v Greif, Lord Phillips reasoned that “as a matter of logic, if a defendant is responsible for a tortious [act] that has more than doubled the risk of the victim’s [harm], it follows on the balance of probability that he has caused the [harm].”146Lord Phillips found, however, that the “the court must be astute to see that [such] evidence provides a really sound basis for determining [causation]”147and for mesothelioma such evidence was deemed “tenuous.”148

Perhaps a useful conceptualisation of climate change causation is to distinguish short-term incidents (weather events) and long-term phenomenon (sea level rise, melting of permafrost). The former is inherently chaotic but the intensity of the chaos is at issue. The latter is strictly temperature. The former will have more attenuated causation with a lower RR; the latter will have a significantly closer correlation with a higher RR. In many ways, material increase in risk becomes part of the burden of proof. The question becomes whether on the balance of probabilities the defendant materially increased the risk of damage to the plaintiff.

A variant of the multiple defendants and causes argument is that there is some intervening third party conduct or there is intervening natural events which form to break the chain of causation. There is justifiable concern that “the chain of causation is broken by other parties’ emissions eclipsing their own, independently of the defendants’ actions or omission and outside their sphere of influence.”149If proportional liability is considered everyone is proportionally liable however this is calculated. The remains of foreign emitters of greenhouse gas emissions but defendants would principally be liable for damage in New Zealand’s jurisdiction due to conflict of laws concerns and this avoids unlimited liability. The court may also see that an intervening natural event is causative. The act of nature or act of god argumentshould be seen in terms of risk. There will always be acts of nature. Acts of nature are indistinguishable from climate change damage. If a comparison is made with a baseline, the defendant is liable for the material increase risk of those acts of nature.

D         Damage

The last factor, damage, is not likely to present any novel difficulties. In terms of remoteness of damage, it is unlikely to pose “any significantly greater obstacles than in other tort based claims.”150Defendants will be liable only for damage of a kind which a reasonable man should have foreseen, although the full extent of that damage will be accountable even where the extent or degree of that damage is greater than could have been expected. Therefore, as “the scientific understanding of climate change deepens, certain kinds of damage… will become foreseeable and therefore not too remote.”151Connecticut rejected injunctions as a form of remedy in a climate change public nuisance tort because such a remedy would interfere with statutory intention.152Therefore, damages based entirely on anticipatory harm in lieu of an injunction would elicit related challenges. A claim based on current damage with associated anticipatory damages is different. Nonetheless, Korinsky v EPA highlights a connected problem.153

There, a New York resident claimed global warming as a public nuisance claiming both mandatory and prohibitory injunctions over and above anticipatory damages. The plaintiff argued that he faced a higher risk of illness from climate change due to his respiratory problems and that, after learning of climate change dangers, he developed a mental illness. The court doubted that even if the decision was granted in the defendant’s favour the injury would be redressed. The need for real actual damage provides a fitting litmus test which can be combated with a suitable plaintiff (such as Tokelau) who can show actual harm.

 

VIII. Product Liability

Products that produce greenhouse gas emissions during operation which add to the problem of climate change could be argued to have been created defectively. A product can be created negligently in three ways. There can be a warning defect, a manufacturing defect, or a design defect. A warning defect is that a product did not warn the consumer of the risks of the product. A manufacturing defect is that the product is not manufactured correctly. A design defect is that all manufactured products are inherently defective in design. The Consumer Guarantees Act 1993 (CGA 1993) provides a statutory framework to supplement the cause of action in negligence. The Act provides that “where goods are supplied to a consumer there is a guarantee that the goods are of acceptable quality.”154Section 7 provides that acceptable quality means that the goods are fit for all purposes for which the goods are commonly supplied, free from minor defects, safe, and durable.155For climate change, the issue will be safety. Those who manufacture, distribute or supply the product will be strongly positioned to argue that the product is safe. As Smith and Shearman note “plaintiffs… are not harmed by, for example, power plants and petrol-driven cars in their capacities as users of electricity or motor vehicles.”156Thus, harm to a third party not just to those who purchase the product should also be anticipated. As such, the question is of foreseeability.157Grossman clarifies that since “potential climate change plaintiffs’ harms are arguably a foreseeable result of placement of defendants’ products in the marketplace, defendants might thus owe plaintiffs a duty of care.”158It is arguable that power stations and cars are not required to produce greenhouse gases as an intrinsic feature given that renewable energies are available even though the question is economic. A design defect argument could be put that products must not emit unnecessary greenhouse gases.159The failure to warn consumers about human induced climate change from products which emit greenhouse gases give plaintiffs a defective product argument.160Consumers may seek out carbon-neutral electricity sources, carbon-neutral cars, or sustainable public transport. Even if there are warnings about the potential for climate change, as Grossman notes, this is unlikely to lead to major changes in consumer behaviour because there are few real alternatives. Plaintiffs will have difficulty showing that the lack of provision of an adequate warning was the proximate cause of the injury. Kaminskaitė-Saltersargues given that:161

affordable measures to counter product risks – such as warnings – would be of little or no benefit in the absence of a radical shift towards a low-[greenhouse gas] economy, the Courts would have to carry out the risk-utility analysis to examine whether more costly steps, such as the adoption of alternative designs… ought to have been [adopted].

With respect, such warnings may well be a small but significant step towards changing consumer behaviour. This argument is further developed in chapters four and six relating to business disclosure and energy efficiency.

IX.Defences

The defence of contributory negligence or voluntary assumption of risk buttress causation and policy arguments. For contributory negligence, the argument would be that the plaintiff’s injuries were caused partly by the defendant’s negligence but also partly by the plaintiff’s own negligence for using products or services that emit greenhouse gases. The plaintiff, in such circumstances, would be able to show that one person’s contribution to greenhouse gas emission is negligible compared to the defendant’s emissions.162A stronger counter-argument associated with a plaintiff’s voluntary assumption of risk is that there are few practical options available to consumers as alternatives, which would mean that the consumers acted reasonably.163Over time as climate change risks become defined with greater specificity, products and services that are carbon neutral will increasingly become available. For a voluntary assumption of risk defence, the plaintiff must be aware of the potential harms that such products or services would cause and chose to assume that risk anyway.164

Consent, naturally, involves a full knowledge of the facts. A consumer is unlikely to be fully appraised with climate change risks whereas a corporate defendant could be

X. Conclusion

Regulating greenhouse gas emissions through tort law has, thus far, been “insurmountable.”165The science of climate change provides a complex link between greenhouse gas emissions and climate change which has not yet permeated tort law. If a climate change tort is fashioned, any court will have to consider applicable statute law such as environmental legislation. Although tort law should in theory provide a remedy for harm done through property damage, policy already correctly points away from injunctions. If a vulnerable plaintiff such as Tokelau which has suffered actual harm sued a greenhouse gas emitter defendant such as an oil company in public nuisance action, a court should tackle the intersection of greenhouse gases with property damage directly rather than dodging the problem with procedural arguments. This thesis argues that climate change presents an unreasonable interference with the comfort and convenience of the public. Even so, any court would have to consider the reasonableness of the defendant’s conduct and foreseeability. Similarly, the tort of negligence could be expanded to fit climate change. Arguments of causation are not scientific but legal impediments that can be moulded to fit a climate change tort. Toxic torts provide authority to recognising the scope of a tort which rejects defences of contributory negligence and voluntary assumption of risk. However, the judiciary may well prove impervious to proportional risk-based law reform.


 



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