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Whither climate change litigation and compensation?

September 8, 2013

Many people seem surprised when I mention the possibility that greenhouse gas emitting companies may one day be held liable for the damages caused by climate change.  And yet, there is no other context in which businesses could cause billions of dollars of damages in Canada each year ($5 Billion per year by 2020 and trillions annually worldwide) and not expect to be sued.  Indeed, in most other contexts, you’d expect lawyers to be lining up to bring claims.

But that hasn’t been the case for climate change damages (with the notable exception of a number of lawsuits that have been filed in the U.S., but which have not, to date, been successful).  This is in large part due to a number of unanswered legal and scientific questions. In particular, there is a lot of uncertainty over how to prove that one group of emitters (among many, globally) are legally responsible for climate change-related damages suffered by one particular plaintiff or group of plaintiffs. 

But here at West Coast we’re doing our part to provide some answers.  The Journal of Environmental Law and Practice, a peer reviewed law journal, has just published an article that I wrote, Climate change litigation and the public right to a healthy atmosphere [Link updated 7 Nov 2014], that relies on Canadian and English law regarding water pollution to tackle the human activities that contribute to climate change. 

Water Pollution and the Law

Water pollution, like atmospheric pollution, can come from many diffuse sources, with no single polluter significantly harming the watercourse or the economic interests of downstream water users.  As a result, people living alongside rivers and lakes who turned to the courts to address water pollution were often faced with claims that a given defendant’s pollution was not, by itself, causing a financial loss to the plaintiff.  The courts rejected the argument: 

… [I]t is not in my opinion necessary, in the case of a natural stream polluted under a claim of right by another … owner further up the stream, to show actual damage. In cases of pollution it is oftentimes difficult to show it -- in fact, it may be impossible to do so. It exists all the same -- it may be to an extent detrimental to the health of those who have a right to use the water. If it were otherwise what would be the effect? Take the present case. The defendant says, 'I have had this water tested by experts and they report that it is not polluted.' Suppose that within the next ten years ten other riparian proprietors erect houses with water closets discharging into the lake but in no greater volume than is discharged from the defendant's hotel now. An application of the same test then shows a positive pollution. Against whom are the plaintiffs to proceed? Each has the same answer as that now set up by this defendant, and if one can succeed why not all? And in this way the plaintiffs would be without remedy, and the water supply secured to them for public uses would be injurious to health and unfit for use. (St. Johns (City) v. Barker (1906), 3 N.B. Eq. 358 (N.B. S.C.))

In a long line of cases, the courts have essentially held that owners of lands bordering stream had a right to the naturally occurring flow and quality of water past their property, and, as such, any significant act of pollution – even if by itself apparently harmless – could give rise to an action in court. 

Addressing climate change

In my article, I suggest that the courts should adopt a similar approach in climate change cases.  The largest of the greenhouse gas polluters – while only driving up global temperatures in conjunction with other polluters – are by themselves measurably altering the global composition of the atmosphere.  

I begin the article by asserting that the public has a right to a healthy global atmosphere.  If that rings a bell, it may be because last year we ran a “Twitter Moot” competition focused on that very question: Do Canadians have a right to a healthy atmosphere.

[W]hat if the people of the world have a legally recognized right to a healthy global atmosphere? That would mean that large scale emissions of greenhouse gases, by negatively impacting the health of the global atmosphere, are illegal in that they violate this public right.  The legal recognition of such a right would raise a wide range of legal and political questions including the possibility of … lawsuits being filed against large-scale emitters of greenhouse gases, as is already occurring in the U.S. …

If large-scale GHG pollution is itself a violation of this right to a healthy global atmosphere (much like water pollution is itself a violation of the right of adjacent land owners), then this means that establishing legal responsibility for GHG pollution becomes a lot simpler.  As I write in the article:

If a court can be persuaded to adopt this approach in a climate change case, then it is quite arguable that large-scale emitters are directly violating the public’s rights in respect of a healthy global atmosphere, irrespective of whether the damages caused to a particular plaintiff can be tied to that defendant’s emissions.

There is no doubt that the public has suffered a measurable depreciation in the quality of the global atmosphere, with global concentrations of carbon dioxide rising from a natural level of about 300ppm (at the high point) to a current level, in 2011, of 388 ppm, and showing no sign of leveling off.  Carbon dioxide emissions levels in 2010 were the highest ever.

Of course, this is not to suggest that my article will result in litigation tomorrow.  Even if this approach is adopted by the courts, there remain many questions facing would be climate change litigants, such as: 

  • who can bring such a claim,
  • who are the appropriate defendants,
  • how to fund such a mammoth piece of litigation against deep-pocketed defendants are all daunting questions, and
  • how to claim damages for particular climate-related losses in the context of such a case. 

On this last point, even if my approach is adopted, claiming compensation for a particular climate-related weather event (for example, from flooding in Alberta) will require significant climate science to establish a connection between climate change and the weather event.  That being said, the science that allows those links to be made is improving every year.  Just this past Wednesday (September 4th, 2013) the National Oceanic and Atmospheric Administration (NOAA) released a study examining the link between climate change and 12 weather events that occurred in 2012, concluding that some, although not all, of the events could be shown to be linked to climate change.

The report shows that the effects of natural weather and climate fluctuations played a key role in the intensity and evolution of many of the 2012 extreme events. However, in several events, the analyses revealed compelling evidence that human-caused climate change was a secondary factor contributing to the extreme event.

It’s about compensation

However, climate impacts are going to be increasing, climate science improving, and greenhouse gas emissions are showing no sign of stopping.  As the impacts of climate change become more and more significant, you can bet that the public will want polluters to pay. 

Although I’m a lawyer, West Coast does not directly litigate, but instead presses for stronger environmental laws.  So it may not be surprising to hear that we don’t believe that litigation is the only way that laws requiring GHG polluters to pay climate compensation could develop.  It’s a fair bet that we will be hearing more calls for legislation requiring GHG polluters to pay for climate change adaptation and other climate compensation in coming years.  We’re also going to continue calling for the protection of the right of all Canadians to a healthy global atmosphere. 

By Andrew Gage, Staff Lawyer

[Updated 7 Nov 2014] Note: Due to the Journal of Environmental Law and Practice licensing rules, we are not able to make the article available at this time.  An early draft of the portions of the paper related to the public right to a healthy atmosphere is available on our website in Appendix A of the Twitter Moot Problem, published prior to our November 2012 Twitter Moot.  Copies of the Journal of Environmental Law and Practice are available from most law libraries or from West Coast Environmental Law’s offices. 

Photo by Ryan L.C. Quan under the Creative Commons Attribution-Share Alike 3.0 unported licence (obtained from Wikimedia Commons).