Slaw.ca Legal Ethics Column, June 6, 2019.
Climate change is probably the single greatest threat to the security and prosperity of Canadians, as well as the rest of the human race. The most effective, least painful way to mitigate climate change is to impose a price on greenhouse gases worldwide, either through carbon taxes or tradable emission permits. However, carbon pricing is as politically difficult as it is economically efficient. In most countries, voters and political leaders have so far refused to support prices high enough to keep the risk of catastrophic climate change within an acceptable band. In Canada, there is also real risk that the federal carbon pricing backstop will be derailed on constitutional grounds.
A Natural Tort
Tort litigation has a role to play in this epoch-defining fight for a livable planet. Climate change is compatible with logic of tort law, which exists in order to compensate “injuries suffered by a party as a result of the wrongful conduct of others” (Hall v. Hiebert). Climate change will injure the health, property, and life prospects of those who will live on this earth in coming centuries. Causing the emission of greenhouse gases without offsets is the conduct that causes this injury. It makes sense as a tort.
If the details of tort law (causation, duty of care, etc.) do not allow the law to recognize the problem, then courts can simply change those rules. Ability to evolve is one of the virtues of the common law, and tort is one of the faster-evolving areas of law in our system. The most important tort — negligence — was effectively invented in 1932 after Mrs. Donoghue was served a snail in her ginger beer. Tort law evolved dramatically again in landmark cases establishing the liability of tobacco companies in the 1990s. Statutory reform to tort law, such as the Liability for Climate-Related Harms bill introduced in the 2018 Ontario legislature, can speed the process.
In a superb recent Slaw piece, Jessica Clogg and Andrew Gage of West Coast Environmental review law suits against fossil fuel companies around the world. These suits are typically brought by municipal governments against corporate “carbon majors.” No landmark judgments or settlements have been produced yet, and no funds have been produced to compensate these plaintiffs for what they will have to spend dealing with climate change. Clogg and Gage show that the defendants are fighting back aggressively, both inside and outside court.
Nevertheless, Clogg and Gage identify positive effects of tort litigation on fossil fuel company behaviour. They credit the cases for the disclosure of climate-related risks to investors, and increased investments in renewable energy, by companies such as Chevron and Shell. Crucially, climate litigation seems to encourage fossil fuel companies to support carbon pricing politically. Pricing is a more predictable and less risky alternative to litigation liability, even for those motivated purely by profit. By making the seas of unpriced pollution choppier, litigation increases the appeal of carbon pricing’s safe harbor.
The “Public” Aspects of Climate Litigation
In addition to changing fossil fuel company behaviour, climate tort litigation can build a public opinion foundation for rapid decarbonization. In her terrific article “Lawyers, Snails, and Bottles : the Creeping Pace of Change in the Law,” BC litigator Melina Buckley (a veteran of several major constitutional cases) explains her approach to public interest litigation. It begins with “critical imagination,” which means clearly identifying the problems with the status quo and “imagining an alternative reality.” Legal strategies are then evaluated based on their potential to get the law from where it is now, to where it needs to go. Public interest test cases, Buckley argues, can “have an impact not solely on the law, but also on public understanding and awareness of an issue, and on political dialogue and policy-making.”
Public interest litigation can offer a platform and microphone to victims of injustice. Judges are only part of the audience for a test case on an important public issue. Voters and legislators will also be watching, if the case is well-designed and well-publicized. Whether or not there is an ovation from the judicial section, legislators can create justice if they are so moved. If legislators don’t, then voters can choose legislators who will.
A Human Face for the Damage
A climate tort suit can put a real human face on the damage done by climate change. A striking example is Lliuya v. RWE, which is currently before the German courts. Saúl Lliuya is a resident of the town of Huaraz, in Peru. Huaraz is threatened with flooding caused by the melting of a glacier. The glacier is melting measurably faster than it otherwise would, due to anthropogenic climate change. The defendant RWE is a European utility which is responsible for 0.47% of global CO2 emissions. Lliuya (supported by a coalition of NGOs) is arguing that nuisance law requires RWE to pay 0.47% of the cost involved in mitigating the new climate-related flooding risk. Saúl Lliuya is already experiencing the concrete risks and losses to which climate change will eventually expose us all. The publicity accompanying his case has great potential to educate people around the world and build the necessary consensus for rapid decarbonization. Although governments are the primary plaintiffs in most climate tort suits, the PR value of deploying a real human victim as plaintiff is considerable.
The final step in beating climate change — if we do manage to beat it — will almost certainly be a comprehensive world-wide regime applying a very high price to carbon and other greenhouse gases. There is nothing new or technically complicated about this; it’s basically the same thing the global community did in Montreal in 1987 to save the ozone layer. Of course building the consensus and preventing defection are much more difficult, because fossil fuels are so much more economically valuable than the ozone-destroying chemicals were.
Climate change is the fight of our lives; it’s what World War II was to a different generation. Tort litigation can only be an auxiliary strategy in this fight. Nevertheless, it has undeniable potential — both to change the economics of fossil fuel extraction, and to change the hearts and minds of human beings responsible for the crucial political decision to save our planet.