Causing climate change…a new tort? A cross-jurisdictional review

In Smith v Fonterra Co-operative Group Limited [2021], the plaintiff, Mr. Smith, is an elder of two Maori tribes Ngāpuhi and Ngāti Kahu, and he is also the climate change spokesperson for the Iwi Chairs’ Forum. In summary, he claimed that seven large New Zealand companies were causing climate change by emitting greenhouse gases, and that they owed him a duty of care not to cause such damage.

The plaintiff issued proceedings in the High Court.

The plaintiff sought declarations and an injunction to stop the defendants from producing such greenhouse gases, effectively seeking zero emissions. The defendants applied to strike out the claim on the basis that it had no prospect of success. The Court of Appeal agreed.

The plaintiff, in support of asking the court to uphold the new tort to prevent climate change, urged the Court of Appeal to be bold, submitting that it was part of the tradition and strength of the common law that it was responsive to changing times. 

The Court of Appeal held that to accede to such a request, “would in fact be contrary to the common law tradition which i­s one of incremental development and not one of radical change...”.

From a liability perspective this decision will be welcomed by a number of companies and their insurers in New Zealand. The niggly issue however, is that the High Court has signalled that the task of imposing liability for greenhouse emissions, thereby causing climate change, sits with parliament. 

This decision may result in New Zealand’s legislators imposing more harsh and strict statutory liabilities on companies and their directors for greenhouse gas emissions.

The approach to the welcoming of a new tort of climate change is in its infancy in New Zealand. It is focused on common law principles rather than specific regulations, which appear to have greater influence on countries located in Europe and Northern America.

Most recently, a group of Torres Strait Islanders have filed proceedings against the Commonwealth Government, claiming it owes a duty to protect them, their traditional way of life and the marine environment from the current and projected impact of climate change.

The claimants argue that the Commonwealth assumed responsibility for its protection by reason of a number of programs, and should have taken reasonable steps to avoid the risk of climate harm by having regard to the best possible science. However, as one of the most prolific emitters of greenhouses gases worldwide, the claimants argue the Commonwealth has failed in that duty.

Outside of negligence, we are also seeing a raft of new and novel claims against corporations, including for misleading conduct, non-disclosure, regulatory breaches and discovery requests.

While the focus may well shift to the private sector in Australia, such claims will be dependent on the common law for the time being, with The Greens’ Liability for Climate Change Damage (Make the Polluters Pay) Bill 2021 (Cth) having been withdrawn on 30 November 2021.

Plan B was also the leading claimant in the Supreme Court decision of Plan B Earth and Others v. Secretary of State for Transport [2020]. This decision considered the proposed expansion of London’s Heathrow airport by way of a third runway.

The claimants alleged that the secretary violated implicit obligations under the UK Planning Act to consider:

• The advice of the Committee on Climate Change.
• The UK Government's obligations under the Paris Agreement.
• The commitment to review its national climate change targets in light of the Paris Agreement.

The claimants additionally alleged violations of the Human Rights Act 1998.

The Supreme Court reversed that decision, allowing the approval process for a third runway at Heathrow Airport. This was on the grounds that the government sufficiently took into account climate impacts with regard to its previous, and less stringent, climate change goals, which was the legal position at the time the Airports National Policy Statement was drafted.

Since this Supreme Court decision, we have seen more claims made against both the government and corporates for alleged breaches in climate change legislation and the Human Rights Act.

Direction of travel is that these claims will increase, as evidenced by ClientEarth who issued proceedings against the government in January 2022, alleging that the UK Net Zero Strategy itself is in breach of climate change legislation. In addition, ClientEarth argues that the government has failed to meet legal carbon budgets and in doing so, has contravened the Human Rights Act by impacting on young people’s right to life and family life.

Additionally, the coroner’s inquest of Ella Adoo-Kissi-Debrah [2020] resulted in the coroner finding that air pollution was a significant factor of the child’s death. In his report to the government, the coroner argued that the government needed to go further in its attempt to decrease existing legal binding targets to reduce particulate matter pollution.

With regard to social activist group litigation, there have been two recent developments in two cases that are being closely watched in the press.

In Juliana et al. v. Unites States of America et al. filed in 2021, a group of youths from Oregon and their guardian (climatologist James Hansen) sued the United States. They alleged that the government’s practices of encouraging and permitting the combustion of fossil fuels violates the government’s public trust-related obligations, along with the public’s right to due process.

The case was eventually dismissed on appeal by the Ninth Circuit on the grounds that the plaintiffs lacked proper standing to bring the case, in that the relief being sought exceeded the court’s powers. However, rather than attempt to appeal the case to the United States Supreme Court, the plaintiffs moved to amend their case by narrowing the relief sought.

The Oregon Federal District Court is now considering that new complaint. In the interim, several other cases similar to the Juliana case have been filed in various state courts. For example, in January 2022, the Alaska Supreme Court issued a decision dismissing a case filed by 16 Alaskan youths who were attempting to sue the state over its climate policies. In that lawsuit, the plaintiffs alleged that the state government’s practices of supporting fossil fuels violated their constitutional rights, in that it was increasing the impact of climate change.

However, the decision was close, with the court being split 3-2, with the dissent specifically recognising a constitutional right to a “liveable climate”.

With regard to cases brought by cities and states against corporations, there will be considerable focus on the case of BP P.L.C. et al. v. Mayor and City Council of Baltimore. In this case, Baltimore’s Mayor and City Council (City) sued various energy companies in Maryland state court alleging that they concealed the environmental impacts of the fossil fuels they promoted.

In this lawsuit, the Fourth Circuit Court of Appeals heard oral arguments in January 2022 about whether the case properly belonged in federal court or the more plaintiff-friendly state court. In fact, this is the second time the Fourth Circuit has heard oral argument on this question.

While BP and the other gas company defendants argued that federal courts should have exclusive rights to hear climate change cases against such companies, the Fourth Circuit reportedly appeared to have reservations about the argument.

Other government entities have tried to bring about change by bringing lawsuits against oil companies under state false advertising laws and/or Consumer Protection Acts. In fact, Vermont’s Attorney General TJ Donovan filed such an action in September 2021, joining a growing group of similar cases filed by Attorney Generals in Rhode Island, New York, Massachusetts, Minnesota, Delaware, Connecticut and the District of Columbia.

The new Vermont action alleges that the defendants misled consumers about their respective company’s contributions to climate change in violation of state laws.

Finally, given the nature of the cases being filed against corporations in the United States by cities and state governments, as well as the increased regulatory oversight and scrutiny, it is entirely foreseeable that other follow-along litigation could be filed against such companies. For example, derivative or even potentially securities fraud litigation could be filed against a company and its D&Os to the extent there is any type of a finding that the company misrepresented the impact that its products or operations had on climate change generally.