Climate Change Litigation

17 October 2006

By Kellie Tranter

The beauty of science is its predictive power; the tragedy of humanity is our failure to heed those predictions. Climate change as a result of human activity was forecast in 1896 by Svante Arrhenius, a Swedish chemist, but only now, over 100 years later, when reality has superseded prediction, are the skeptics among us--including, sadly, our own Federal government--finally accepting that climate change is a clear threat. If it has taken us over 100 years to accept the reality of climate change, how long will it take our governments to agree on how to tackle it? And even then will they look for the best way of tackling it, or for the most politically expedient way?

Our governments seem to have forsaken objective inquiry, blinkered any capacity for sensible foresight and long ago abandoned intelligent planning, lapsing into a mode of thinking that Albert Camus described in post-war Europe: "We no longer say as in simple terms: "This is my opinion. What are your objections?".........For the dialogue we have substituted the communique. "This is the truth," we say. "You can discuss it as much as you want; we aren't interested. But in a few years there'll be the police to show you I'm right." Fortunately, not everyone is prepared to accept that approach.

Absent political will and leadership, and mandatory requirements that companies and governments reduce greenhouse gas emissions, people find their own solutions to official inaction. All over the world public interest advocacy groups and individuals, and even governments themselves, are looking at legal mechanisms to compel corporations and governments to address global warming issues. In Australia we look at the American experience as a predictive indicator of local litigation trends. Tobacco and asbestos litigation are probably the best known American exports on that front, but a new genre of litigation --environmental litigation--is about to join them.

The State of California recently began litigation against the world's big car manufacturers about costs the state government will face because of climate change, such as the cost of building massive new water reservoirs because the Sierra snow pack, which stores half the State's water supply, is shrinking. The State claims that the car manufacturers are causing a public nuisance by selling cars that emit greenhouse gases which are contributing to global warming, which in turn is impacting directly on the State of California. The car companies argue that they're simply responding to market demand; the State of California says in reply that the car companies don't respond to the market, they create it through advertising and lobbying.

In March 2002, Michael Kerr (Legal Advisor, Australian Conservation Foundation) noted that:

tort based litigation is fertile ground for climate change litigation in Australia. This is clear because the law of torts and climate change litigation have three common basic aims: compensation, deterrence and prevention.
potential plaintiffs to Australian tort based climate change litigation could include persons such as:

- persons who, whilst present in Australia, suffer personal injury as a consequence of climate change.

- persons (including corporations) who suffer damage to, or interference with, their Australian based proprietary interest(s) as a result of climate change.

- persons (including corporations) who whilst resident in Australia suffer pure economic loss as a result of climate change.

potential defendants include any person or legal entity (foreign or Australian) that has caused, or materially contributed to, climate change.
negligence and nuisance are the two tort based actions that are the most appropriate basis for climate change litigation in Australia, and plaintiffs could seek remedies including damages or injunctions.

Four years later, associated with emerging climate change (or global warming) and its deleterious environmental impact, we are hearing about significant class action litigation being threatened against prominent energy and resource companies. The suits, analogues of the "mass tort claims" filed in the United States, are potentially to be brought seeking compensation (presumably on behalf of a class of effected persons) for damage suffered as a result of global warming (personal injury, property damage or other manifestations of environmental damage). Other claims may be brought as class actions by disaffected shareholders under established corporate governance principles asserting that companies or their directors failed adequately to address the emerging climate change phenomenon.

So as the earth heats up, the rivers run dry, the dams empty and the icecaps melt --as we experience "the breath of stagnant waters, the smell of dead leaves in the canal, and the funeral scent rising from the barges"--we may see the litigious road taken by persons who suffer personal injury in Australia as a consequence of climate change; or by victims of diseases or viruses the incidence of which has increased because of climate change; or by people who suffer damage to their Australian property as a consequence of rising sea levels; or even by commercial interests, such as operators of businesses connected with the Great Barrier Reef who suffer economic loss when coral bleaching caused by climate change decimates the Reef's value as a tourist attraction. As Michael Kerr predicted "there is the potential for climate change and its consequences to be the subject of litigation on a scale that could eclipse anything yet witnessed in any domestic or international jurisdiction."

And so continue the frolics of humankind. But what shall become of our dear old planet?

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