In the US, two major types of global warming claims are starting to emerge:
- regulatory actions seeking to compel government authorities to adopt environmental rules that require corporate entities to reduce their greenhouse-gas emissions; and
- tort claims against corporate entities and professionals on a variety of grounds, including negligence, product liability, nuisance, fraud and intentional misconduct.
However, global warming cases as seen in the US have not as yet been seen in the UK or Europe. This seems to be due to a more proactive governmental stance on tackling the global warming problem. For example, the European Union has created a court to hear cases against member states if they do not comply with EU emission standards. These standards are sets of requirements defining the acceptable limits for exhaust emissions of new vehicles sold in EU member states. They are defined in a series of European Union directives staging the progressive introduction of increasingly stringent controls
Climate change bill
In the light of these European emission standards, the UK parliament has introduced (March 2007) a proposed climate change bill that will set a legally binding target of reducing UK carbon dioxide emission by at least 26% by 2020 and by at least 60% by 2050, compared to 1990 levels.
The climate change bill:
- requires the government to publish five yearly carbon budgets as from 2008;
- creates a committee on climate change;
- requires the committee on climate change to advise the government on the levels of carbon budgets to be set, the balance between domestic emissions reductions and the use of carbon credits, and whether the 2050 target should be increased;
- places a duty on the government to assess the risk to the UK from the impact of climate change;
- creates powers to establish (1) trading schemes for the purpose of limiting greenhouse-gas emissions, and (2) waste reduction pilot schemes;
- amends the provisions of the Energy Act 2004 dealing with renewable transport fuel obligations.
Despite these legally binding requirements, it is likely to prove very difficult in practice to hold the government accountable and to impose appropriate remedies for non-compliance.
As far as individual companies are concerned, the UK Companies Act 2006 requires directors to act in a way that is most likely to promote the success of their company for the benefit of its members as a whole. In doing so, they must have regard to the likely consequences of any longterm decisions and how they may impact on the community and environment. In order to comply with these obligations directors will need to consider global warming issues or at least their companies emissions of green-house gases in the future.
The rules on multiparty or class actions in the UK also make litigation trickier for potential claimants. However, proving causation will be the hardest hurdle to clear when conducting global warming litigation. Links between certain environmental occurrences (for example, a hurricane and mankind’s activities) have not yet been established. To prove a link between any one company and the weather/climate would be very difficult.
However, English common law is constantly evolving and adapting to meet the needs of the time and difficult causation issues have already been overcome in other areas of law by the English courts. For example, in the case of Fairchild v Glenhaven Funeral Services Ltd , the claimant had been exposed to asbestos by multiple defendant employers. The House of Lords ruled that, providing the claimant could prove that each employer's breach of duty materially increased his risk, he could pursue a claim against any of them.
Perhaps of greater importance is the potential regulation of emissions of companies leading to substantial fines for companies and potential liabilities for directors and officers.
The need to insure
So, following on from the Fairchild approach, if several companies are found to have contributed to global warming, it may be possible for a court to try and apportion blame between them in a related claim. Although this is unlikely to happen in the near future, the Fairchild case clearly shows how the English judiciary can shape the common law to overcome factual difficulties and allow claimants to recover damages where such a result is desirable for policy reasons.
Companies and their insurers should therefore be aware that global warming claims for their past, present, and future misconduct could get them burnt if they do not have adequate coverage in place.