In the last decade a series of tort claims have been brought in the US against oil, gas and coal producers, power companies and car manufacturers seeking compensation for loss and damage said to be the result of climate change caused by GHG (GreenHouse Gas) emissions. To date, none has succeeded. The imposition of private law liability for climate change “has been seen as a kind of holy grail by environmental campaigners and as an unacceptable disaster scenario by sectors of industry which might have to bear the cost” (Lord et al. Climate Change Liability: Transnational Law and Practice (2012)).
In January 2018 it was widely reported that New York City has filed a lawsuit against five major oil companies, claiming for the costs of modifying city infrastructure (coastal defences, storm drains, air conditioning in public buildings etc.) to cope with rising sea levels, extreme weather events and increased summer heat attributed to global warming. Coastal cities in California began similar claims in 2017.
No such claims have been brought in England, but the question of whether such a claim could succeed in England under English law has been the subject of books, book chapters, journal articles and academic conferences.
The present article considers what the approach of an English court would be if factual allegations analogous to those in the New York case were to be proved in English litigation: i.e. that sometime between 1968 and 1988 a fossil fuel producer knew / ought reasonably to have known that its “fossil fuel products were causing a buildup of GHG pollution in the atmosphere that would cause dangerous global warming” and continued thereafter to produce fossil fuels, to advertise them and to publish or procure the publication of material which over-emphasised the uncertainties of climate science. This should not, of course, be taken to imply an endorsement of any aspect of New York’s factual case. This article also does not discuss the legal merits of the New York or California cases, as these are not subject to English law. Even with respect to English law, climate change tort claims are an enormous subject touching on many aspects of the law of torts, and it is not possible to deal with every issue in an article such as this.
Ten ‘inconvenient truths’ about climate change tort claims appear in numbered text boxes throughout the discussion below. This article concludes that, even if the alleged facts were to be proven in English litigation, the claim would have little chance of succeeding, including for reasons which appear largely to have been overlooked by other authors, particularly as regards how damages would be calculated. It is submitted that claimants would be required to account for benefits they have themselves enjoyed through the continued use of fossil fuels beyond the date that they say fossil fuels should have been abandoned, that these benefits are likely to be very substantial, and may even cancel out the losses claimed.
New York’s complaint
New York alleges:
“By the late 1970s or early 1980s, if not earlier, Defendants knew that averting dangerous climate change required reducing the use of their fossil fuel products.”
“For decades, Defendants have known that their fossil fuel products pose risks of “severe” and even “catastrophic” impacts on the global climate through the work and warnings of their own scientists and/or through their trade association, the API. Defendants, large and sophisticated companies devoted to researching significant issues relevant to fossil fuels, also were aware of significant scientific reports on climate change science and impacts at the time they were issued.”
“The majority of emissions resulting from fossil fuels produced and marketed by the fossil fuel industry have occurred since 1988, by which time the Defendants knew that their fossil fuel products were causing a buildup of GHG [GreenHouse Gas] pollution in the atmosphere that would cause dangerous global warming.”
New York complains that, despite having this “early knowledge” (as New York puts it) the Defendants did three things:
- “each Defendant decided to continue its conduct and commit itself to massive fossil fuel production” “Defendants continue to produce, market, distribute, and sell fossil fuels in massive quantities”. New York does not say in terms: (i) whether the Defendants should have ceased fossil production, marketing, sale etc. and if so, from what date; or (ii) whether the Defendants should only have frozen, or reduced, fossil fuel production and, if they should have reduced production, to what degree and over what time period.
- “Defendants misled the public about climate change by over-emphasizing the uncertainties of climate science despite their knowledge that the fundamental science of climate change was well established and amply sufficient to warrant reductions in fossil fuel usage, including by using paid denialist groups and individuals. Defendants’ campaign inevitably and intentionally encouraged fossil fuel consumption at levels that were (as Defendants knew) certain to severely harm the public”. Most of New York’s allegations in this regard are directed at ExxonMobil. It is said that “Exxon played a lead role in the campaign of deception and denial”.
- “Defendants promoted fossil fuels through frequent advertising, including promotions claiming that consumption at current and even expanded levels is “responsible” or even “respectful” of the environment. These promotions encouraged continued fossil fuel consumption at levels that Defendants knew would harm the public.”
New York claims that doing the above things amounted to private nuisance, public nuisance and trespass. New York does not identify any particular date from which it became incumbent on the Defendants to refrain from doing these things. By inference, New York seems to be saying that the relevant date might fall anywhere within a period spanning two decades, from 1968 to 1988:
- The word “severe” which appears in quotes in New York’s description of the Defendants’ state of knowledge is taken from a report which a scientist made to the API, a trade association of which the Defendants were members, in 1968.
- New York refers to the defendants having had the requisite knowledge “by the late 1970s or early 1980s”.
- The word “catastrophic” in quotes is from a 1980 API document and also appears in two Exxon internal documents from 1981 and 1982.
- New York refers to the defendants as having known “that their fossil fuel products were causing a buildup of GHG pollution in the atmosphere that would cause dangerous global warming” by 1988. That was the year Dr. James Hansen of NASA told a US congressional hearing that “global warming is at hand”, something which is given particular emphasis in the complaint The UN founded the Intergovernmental Panel on Climate Change (“IPCC”) the same year.
New York does not say what would have happened if sometime between 1968 and 1988 the Defendants had ceased “massive fossil fuel production”, ceased advertising and promoting fossil fuels and refrained from the (alleged) campaign to over-emphasise the uncertainties of climate science. In particular, New York does not say in terms that, if the Defendants had taken those steps, the damage complained of by New York would not occur.
New York claims damages. These are not quantified, though the complaint refers to costs of “many billions of dollars”. New York does not expressly seek any injunctive relief.
Anthropogenic climate change
Any climate change tort claim starts from the basic premise that global warming is occurring and that GHG emissions (principally CO2 and CH4) from human activities are the dominant cause. Today such anthropogenic global warming represents the scientific consensus. Only four out of 69,406 (0.005%) of authors of peer-reviewed articles on global warming published in 2013 and 2014 rejected anthropogenic global warming (Powell Climate Scientists Virtually Unanimous Bulletin of Science, Technology and Society Vol 35, Issue 5-6, 2015). In its latest (Fifth) Assessment Report (2015) the IPCC reports:
“Warming of the climate system is unequivocal, and since the 1950s, many of the observed changes are unprecedented over decades to millennia. The atmosphere and ocean have warmed, the amounts of snow and ice have diminished, and sea level has risen.”
“Anthropogenic greenhouse gas emissions have increased since the pre-industrial era, .... This has led to atmospheric concentrations of [GHGs] that are unprecedented in at least the last 800,000 years. Their effects, together with those of other anthropogenic drivers, have been detected throughout the climate system and are extremely likely to have been the dominant cause of the observed warming since the mid-20th century.”
“Continued emission of greenhouse gases will cause further warming …”
“Projections of greenhouse gas emissions vary over a wide range, depending on both socio-economic development and climate policy.”
“Surface temperature is projected to rise over the 21st century under all assessed emission scenarios. It is very likely that heat waves will occur more often and last longer, and that extreme precipitation events will become more intense and frequent in many regions. The ocean will continue to warm and acidify, and global mean sea level to rise.”
This scientific consensus seems generally to be accepted by the world’s governments, the public and, indeed, by fossil fuel producers. The world’s governments recognised the threat of anthropogenic climate change in 1990 in the UN Framework Convention on Climate Change (discussed further below). A 2015 study found 97.4% of adults in the UK were “aware” of climate change. Awareness in the US was even higher, at 97.7%. (Lee et al. Predictors of public climate change awareness and risk perception around the world Nature Climate Change volume 5, pages 1014–1020 (2015)). The latest UK government survey, published 1 February 2018 found 97% of those surveyed believe climate change is occurring and 86% believe it is partly, mainly or entirely caused by human activity.
In its complaint, New York points to various statements which the defendants have made suggesting an acceptance of the position. For example one defendant, ExxonMobil, describes the IPCC as “the leading international scientific authority on climate change” (A case for readers to read for themselves, ExxonMobil Perspectives 5 November 2015) and says elsewhere on its website:
“We have the same concerns as people everywhere – and that is how to provide the world with the energy it needs while reducing greenhouse gas emissions … The risk of climate change is clear and the risk warrants action. Increasing carbon emissions in the atmosphere are having a warming effect”.
New York points to similar statements made some of the other defendants.
It therefore seems unlikely that the focus of defendants to a climate change tort claim would be on disputing the basic premise of anthropogenic climate change. Rather, the factual disputes are likely to be about (for example):
- what defendants knew/believed, in the past, with what degree of confidence and when;
- what they should have known/believed, with what degree of confidence and when;
- for a given state of knowledge/belief, what action it would have been reasonable/proportionate to take;
- what the effect of any such action would have been; and
- given the range of possible future emissions scenarios, and that for each such scenario there is a range of possible effects in terms of e.g. sea level rise, what climate change effects is it reasonable to plan and build for?
Evidence New York relies upon to show the defendants had “early knowledge” of climate change
As previously described, this article proceeds on the assumption that factual allegations analogous to New York’s are proved in English litigation. A detailed assessment of all the evidence New York has referred to is thus beyond the scope of this article and would, in any case, be premature, given that the case is still at a pre-discovery stage and the defendants have not even filed their responses yet.
At the same time, having taken the time to look at some of the main documents on which New York relies, it would be remiss not to at least give a flavour of them, and the use which New York seeks to make of them.
New York’s case seems to be that sometime between 1968 and 1988 the Defendants had “early knowledge” that “fossil fuel products pose risks of “severe” and even “catastrophic” impacts on the global climate”. Much of the evidence cited by New York consists of published research, public statements by scientists, and the successive IPCC reports which reflect a developing scientific consensus on climate change. It is said that the Defendants would have been aware of these.
The first public document referred to by New York is an 1896 paper by Nobel prize winner Svante Arrhenius in which he predicted temperature increases that would be caused by burning fossil fuels. New York omits that Arrhenius believed this would take centuries, and benefit humanity: “by the influence of the increasing percentage of carbonic acid [CO2] in the atmosphere, we may hope to enjoy ages with more equable and better climates, especially as regards the colder regions of the earth, ages when the earth will bring forth much more abundant crops than at present, for the benefit of rapidly propagating mankind”.
New York refers to three public documents from the 1950s / 1960s:
- “By 1957, scientists at the Scripps Research Institute published a warning in peer-reviewed literature that global warming “may become significant in future decades if industrial fuel combustion continues to rise exponentially” and that “[h]uman beings are now carrying out a large scale geophysical experiment on the planet.”. This is a much quoted passage in discussions of global warming, taken from what was, at the time, a relatively obscure paper by Roger Revelle. Revelle reported that the oceans absorbed atmospheric CO2 at a lower rate than had previously been assumed. But Revelle predicted CO2 would nonetheless level off, a few centuries hence, with a total increase of 40% or less. And while Revelle’s reference to an “experiment” seems ominously prescient, he did not actually advocate any action beyond further research. As late as 1966, Revelle wrote that people’s attitude towards the rise of CO2 “should probably contain more curiosity than apprehension”.
- “By 1960, published data established that carbon dioxide concentrations in the atmosphere were in fact rising”. This is a reference to the work of Charles Keeling who, in 1960, published data collected in the Antarctic which showed that, over the preceding two years atmospheric CO2 had risen (the “Keeling curve”). The rate of the rise was approximately what would be expected if (as Revelle had posited) the oceans were not absorbing most industrial emissions.
- New York quotes a 1965 report by the President’s Science Advisory Committee that “[p]ollutants have altered on a global scale the carbon dioxide content of the air”, that the effects “could be deleterious from the point of view of human beings”, that fossil fuel combustion is “measurably increasing the atmospheric carbon dioxide” and (echoing Revelle) that humans are “conducting a vast geophysical experiment” due to their massive fossil fuel consumption. New York omits to mention the report’s recommendations: more funding for “basic research” and, in particular, that CO2 monitoring of the kind undertaken by Keeling should continue “for at least the next several decades”. The report did not recommend (say) the abandonment of fossil fuels.
In addition to such published research New York also relies on some private documents produced by the API (an industry body of which the Defendants were members) which record what the API was being told by scientists. None of these seems to refer to any unpublished, original research commissioned by the Defendants. Rather, the scientists were always reporting upon the emerging consensus in the published literature.
The earliest API document referred to by New York is a report from 1968 by a scientist called Elmer Robinson. He is said by New York to have reported “that carbon dioxide emissions were “almost certain” to produce “significant” temperature increases by 2000, and that these emissions were almost certainly attributable to fossil fuels”. These words do not seem to appear in the document which is linked to in the footnote to New York’s complaint. In the linked extract, Robinson refers to “major changes which are speculated about as possibly resulting from a change in atmospheric CO2”. Robinson reported it was “likely” that the latest research “overestimate[s] the effects on temperature of an increase in CO2”.
New York’s complaint continues: “[Elmer’s] report warned: “If the Earth’s temperature increases significantly, a number of events might be expected to occur including the melting of the Antarctic ice cap, a rise in sea levels, warming of the oceans and an increase in photosynthesis. . . . It is clear that we are unsure as to what our long-lived pollutants are doing to our environment; however, there seems to be no doubt that the potential damage to our environment could be severe … [*] … [T]he prospect for the future must be of serious concern”.
This is the source of the word “severe” which in quote marks in New York’s description of the Defendants’ knowledge, and so presumably it is New York’s case that the Defendants had the requisite knowledge from 1968, the date of this report. The words which New York omitted (where the asterisk appears in the quote above) were: “Whether one chooses the CO2 warming theory … or the newer cooling prospect ..”. This was a reference to a theory which sought to explain why, despite increases in atmospheric CO2, there had nonetheless apparently been large scale cooling since 1955. The theory was that particulate pollution was serving to reflect a greater proportion of the Sun’s light, and that this had (as Robinson put it) “already reversed any warming trend due to CO2”. This competing hypothesis is not mentioned in New York’s complaint, though it seems to have featured in the scientific and public discourse well into the 1970s. According to Weart The Discovery of Global Warming (2008) “… neither scientists nor the public could be sure in the 1970s whether the world was warming or cooling…”.
New York claims that: “… as far back as 1970, Defendants Shell and BP began funding scientific research in England to examine the possible future climate changes from greenhouse gas emissions” but offers no further detail as to what this research showed.
New York refers to a public document from 1979, being a report by the National Academy of Sciences which is charged with providing independent scientific advice to the US government. Per New York this:
“… concluded that there was “incontrovertible evidence” that carbon dioxide levels were increasing in the atmosphere as a result of fossil fuel use, and predicted that a doubling of atmospheric carbon dioxide would cause a probable increase in global average surface temperatures of 3ºC …”
This is one of two public documents on which New York places particular emphasis, the other being Dr. James Hansen’s testimony to Congress in 1988 (see further below).
A further category of documents New York relies upon are private documents in which scientists reported to Exxon’s management on published research. The earliest such private Exxon document is a 1977 presentation by an Exxon scientist, J.F. Black to Exxon’s management. Unfortunately the link to this document in New York’s complaint does not work. According to New York “Exxon management was informed by its scientists in 1977 that there was an “overwhelming” consensus that fossil fuels were responsible for atmospheric carbon dioxide increases. The presentation summarized a warning from a recent international scientific conference that “IT IS PREMATURE TO LIMIT USE OF FOSSIL FUELS BUT THEY SHOULD NOT BE ENCOURAGED.” The scientist presenting the material warned management, “Present thinking holds that man has a time window of five to ten years before the need for hard decisions regarding changes in energy strategies might become critical”.
From this description, Exxon was not being advised to abandon fossil fuel production, but was being told that it was premature to do so (i.e. no immediate action was needed) and that it would be five or ten years (i.e. 1982 to 1987) before a decision on the issue of whether to do so is even required. Again this was not the result of any original research. Exxon was being informed that there was already “an overwhelming consensus”.
The second Exxon document relied on by New York is from the following year. “In a 1979 Exxon internal memo, an Exxon scientist [W.L. Ferrall] calculated that 80% of fossil fuel reserves would need to remain in the ground and unburned to avoid greater than a doubling of atmospheric carbon dioxide”. Some news stories have seized on this same document to suggest 1979 as a critical date for Exxon’s knowledge of climate change (Hall Exxon Knew about Climate Change almost 40 years ago Scientific American 26 October 2015).
The link to the document in New York’s complaint does not work, but a copy was available elsewhere online:
- Ferrall was reporting on work which had been done by a summer intern called Steve Knisely. Knisely’s report was based on published materials, not unpublished Exxon research. Knisely’s report does state: “…it [is] very difficult to analyse the fossil fuel impact on the overall carbon cycle … if one half of the CO2 released by fossil fuels remains in the atmosphere, only about 20% of the recoverable fossil fuel could be used before doubling the atmospheric [CO2] content”. But this was not mentioned in Ferrall’s summary to management. Knisely’s report also contains several qualifications, e.g.: “…the quantitative effect [of increased CO2 concentrations] is very speculative because the data base supporting it is weak”.
- Knisely’s report stated that “if it becomes necessary to limit future CO2 emissions without practical removal/disposal methods, coal and possibly other fossil fuel resources could not be utilized to an appreciable extent”. Knisely’s advice was that if it was necessary to limit future CO2 emissions, the use of coal would have to cease.
- Knisely’s overall conclusion, which Ferrall did include in his summary to management, was (original emphasis): “The potential problem is great and urgent. Too little is known at this time to recommend a major U.S. or worldwide change in energy type usage but it is very clear that immediate research is necessary to better model the atmosphere/terrestrial/oceanic CO2 Only with a better understanding of the balance will we know if a problem truly exists”.
Between 1979 and 1983, the API formed a task force to monitor and share climate research. Minutes from a 1980 meeting record that the task force received a presentation by a Dr. J.A. Laumann “a consultant and recognised expert in the field of CO2 and climate”. New York says Laumann reported:
“that there was a “SCIENTIFIC CONSENSUS ON THE POTENTIAL FOR LARGE FUTURE CLIMATIC RESPONSE TO INCREASED CO2 LEVELS.”. That though the exact temperature increases were difficult to predict, the “physical facts agree on the probability of large effects 50 years away.” He warned of a 2.5°C global temperature rise by 2038, which would likely have “MAJOR ECONOMIC CONSEQUENCES” and a 5°C rise by 2067, which would likely produce “GLOBALLY CATASTROPHIC EFFECTS.” He also suggested that, despite lack of certainty, “THERE IS NO LEEWAY” in the time for acting.”
This document is presumably the source of the word “catastrophic” which appears in quotes in New York’s description of the state of the Defendants’ knowledge. Again, Laumann was reporting on what was said to be an existing scientific consensus - not upon private research by the Defendants or the API.
The term “catastrophic” is also said to appear in an Exxon document from 1981 (the link in New York’s complaint is broken) in which New York says that a scientist called Roger Cohen reported to Exxon’s management “it is distinctly possible” that CO2 emissions from Exxon’s fifty-year Corporate Planning Department scenario of fossil fuel use “will later produce effects which will indeed be catastrophic (at least for a substantial fraction of the earth’s population)”.
New York describes an API commissioned report from 1982 as having “estimated the average increase in global temperature from a doubling of atmospheric concentrations of CO2 and projected, based upon computer modelling, global warming of between 2°C and 3.5°C … The report projected potentially “serious consequences for man’s comfort and survival,” and noted that “the height of the sea level can increase considerably”.
Again, this document was a review of published data. As regards the effect of doubling CO2, it is not clear how New York has derived a lower limit of 2°C from this document. The report states that “Climate model predictions range from 0.6oC to over 4oC … several empirical studies give a lower estimate of 0.26oC” and derives “outside limits of global warming of 0.1oC to 3.5oC from a doubling of CO2”. It is only with respect to a 4°C increase (i.e. an increase greater than what is claimed to be the “outside limit”) that it is said (emphasis added): “[s]uch a warming can have serious consequences for man’s comfort and survival since patterns of aridity and rainfall can change, the height of the sea level can increase considerably and the world food supply can be affected”.
New York refers to two further Exxon documents from 1982 (both links are broken):
- A memo to Exxon’s management from Roger Cohen in which he is said to have reported (the link is broken) a “clear scientific consensus” that “a doubling of atmospheric CO2 from its preindustrial revolution value would result in an average global temperature rise of (3.0 ± 1.5)°C in temperature” and that “[t]here is unanimous agreement in the scientific community that a temperature increase of this magnitude would bring about significant changes in the earth’s climate, including rainfall distribution and alterations in the biosphere”.
- A report to Exxon’s management by a scientist called M.B. Glaser which is said to have “warned that “Substantial climatic changes” could occur if the average global temperature rose “at least 1 °C above  levels” and that “[m]itigation of the ‘greenhouse effect’ would require major reductions in fossil fuel combustion.” The report then warned Exxon management that “there are some potentially catastrophic events that must be considered” including the risk that “if the Antarctic ice sheet which is anchored on land should melt, then this could cause a rise in sea level on the order of 5 meters.”
New York states that:
“By 1983, Exxon had created its own climate models, which confirmed the main conclusions from the earlier memoranda. Starting by at least the mid-1980s, Exxon used its own climate models and governmental models to gauge the impact that climate change would have on its own business operations.”
As with the reference to Shell/BP in-house research from the 1970s, no further detail of this research is provided. These seem to be the only references to any private research by the Defendants prior to 1988.
The last document which New York refers to in the period 1968 to 1988 is a public document:
“In 1988, NASA scientist Dr. James E. Hansen testified to the U.S. Senate that “the greenhouse effect has been detected, and it is changing our climate now.”
Development of public international law since 1988
The IPCC was founded in 1988. In 1990, the IPCC reported that the planet had warmed by 0.5°C in the preceding century and that only strong measures to halt rising greenhouse gas emissions would prevent serious global warming.
In 1992 the US, UK and EU were among the signatories to the UN Framework Convention on Climate Change (“FCCC”). The FCCC came into force on 21 March 1994, once a sufficient number of the signatory countries had ratified it.
Article 2 sets out that the objective of the FCCC is “to achieve … stabilisation of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.” What is considered “dangerous” anthropogenic interference is not defined.
Article 4(1)(b) provides that the Parties (emphasis added) “shall … formulate [and] implement … national … programmes containing measures to mitigate climate change by addressing anthropogenic emissions by sources … of … greenhouse gases … and measures to facilitate adequate adaptation to climate change”.
Note that in the IFCCC the word “mitigate” is used in a different sense to that which is usual in English law. “Mitigate climate change” means something akin to “prevent climate change from occurring” not “reduce the impact of such climate change as does occur”. The IFCCC calls that “adaptation to climate change”.
In Article 4(2), the “Annex I” countries (essentially the developed countries, including the UK, EU and US) recognised the aim of stabilising their GHG emissions at 1990 levels by the year 2000.
Parties to the FCCC have since taken part in a series of “conferences of the parties” (“COP”). In 1995 the COP adopted the “Berlin Mandate”. This established that the commitments in Article 4.2 of the IPCCC were “not adequate” and that new binding emissions targets should be agreed.
In 1997 the COP adopted the Kyoto Protocol. This committed the Annex I countries to binding GHG reductions in the period 2008-2012. The US signed the Kyoto Protocol but it was never ratified by Congress, and so is not binding on the US.
In 2012 the COP adopted the Doha Amendment, amending the Kyoto Protocol to impose new binding GHG reductions for the period 2013-2020. The Doha Amendment has never entered into force, as it has not been ratified by at least 75% of the parties.
In 2015 the COP adopted the Paris Agreement. Article 2(1) set a long term goal of:
“holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change”
In Article 4, the parties record that, in order to achieve that long-term temperature goal they: “aim to reach global peaking of greenhouse gas emissions as soon as possible, … and to undertake rapid reductions thereafter in accordance with best available science, so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century”. Each party agrees to set “nationally determined contributions that it intends to achieve” and that “each ... successive nationally determined contribution will represent a progression beyond the Party’s then current nationally determined contribution and reflect its highest possible ambition”.
Since the Paris Agreement provides only for self-imposed emissions targets with no enforcement mechanism, the US regarded it as an executive agreement rather than a legally binding treaty, removing the need for ratification. In April 2016, the US became a signatory to the Paris Agreement, and accepted it by executive order in September 2016. It entered into force on 4 November 2016, a few days before President Trump was elected.
In June 2017 President Trump announced that the United States would withdraw from the Paris Agreement. Under the terms of the Paris Agreement, the earliest date on which the US could withdraw is 4 November 2020, one day after the 2020 US presidential election.
A claim in England: overview of the issues
Preliminary points to address in respect of any prospective claim are:
- Jurisdiction. Would the English court have jurisdiction to hear the claim against each prospective defendant?
- Alternative forum. Is there any other forum in which the claim could be brought instead which would be more advantageous to the claimant?
- Choice of law. What law would govern the claim (i.e. would the English court apply the laws of England, or those of some other country)?
- Enforcement. If an English court judgment were to be obtained, will the prospective defendant have sufficient assets to meet that judgment, either in England or in some other jurisdiction where that judgment could be enforced?
Assume that, for a climate change tort claim based on a given hypothetical set of facts, the answers were, respectively, “yes”, “no”, “English law” and “yes”.
Usually one would then move to consider the merits of the case: how likely is it that the claim will succeed, how much could the claimant expect to recover, how much will it cost if they lose. But, in the case of climate change litigation, it is necessary to recognise that these may not be the only considerations when deciding whether to proceed with a claim, nor the only metric by which the ‘success’ of such a claim falls to be judged. There is inevitably a political element to the decision whether to pursue such a claim. Even a claim which was thought to have little chance of securing substantial damages could conceivably be pursued if a claimant felt it to be a good means of publicising climate change issues or expected it to be popular with voters.
Having considered any alternative goals which might be served by bringing the claim, it then becomes necessary to consider the merits of the claim.
The first legal issues are whether the defendant owed the claimant a legal duty, whether the conduct complained of would constitute a breach of that duty and whether any defences apply. Most previous discussions have focused on nuisance and negligence as possible causes of action.
Assume it were to be established that, as from a certain date, producing fossil fuels, promoting fossil fuels and/or disputing anthropogenic climate change were breaches of a relevant duty. It then becomes necessary to consider whether that breach was / will be causative in the relevant legal sense of the sea level rise, increased summer temperatures and extreme weather events which are complained.
A further issue, which overlaps to some degree with causation, is as to how damages should be calculated. What, if any, damages are required to put the claimant in the same position they would have been in if the defendants had refrained from producing fossil fuels, advertising fossil fuels and disputing anthropogenic climate change from the relevant date?
The defendants in the New York case and their alleged CO2 emissions
The five defendants to the New York claim are oil and gas companies: BP, Chevron, ConocoPhillips, ExxonMobil and Royal Dutch Shell. New York says:
- That these companies have extracted raw fossil fuels from the ground, refined and processed them into forms that can be combusted, and marketed those products to consumers.
- That when combusted the fuels emit CO2, also that the natural gas (methane) produced by the defendants routinely escapes into the atmosphere (“fugitive methane”).
New York goes on to claim that the five defendant companies are collectively responsible “for over 11% of all the carbon and methane pollution from industrial sources that has accumulated in the atmosphere since the dawn of the Industrial Revolution”.
The source of this allegation is Heede Tracing anthropogenic carbon dioxide and methane emissions to fossil fuel and cement producers, 1854–2010 Climatic Change 2014. Heede’s paper appends a table showing what are said to have been the top 90 investor and state-owned producers of CO2 and CH4 in the period 1751-2010 (“Carbon Majors”). All are oil, gas, coal or cement producers. The ‘top twenty’ are extracted below, with the defendants in the New York case shaded grey.
New York omits any detail about the timing of the Defendants’ emissions. You cannot see how much of any individual company’s emissions took place before, and how much after, a given date. And yet this is obviously important if, say, liability were to attach not to all a defendant’s emissions, but only to those emissions which took place after a certain date, or in a particular range, bearing in mind that the Defendants have been in operation since the 19th century.
The chart below is from Heede’s separate “Methods and Results Report” (archived at climateaccountability.org) and it does show the companies emissions over time.
Unfortunately, the underlying data does not seem to be available online in a spreadsheet, so it is not possible to say exactly how much CO2 any particular company is said to have produced before or after a particular date. What does appear from this chart, though, is that, for four out of the five Defendants (BP, Chevron, ExxonMobil and Royal Dutch Shell) their CO2 emissions seem to have peaked in around 1970 or 1971 and then reduced. Why was that? It was probably not the result of any conscious decision on the Defendants’ part to reduce their CO2 emissions. Rather, 1970 / 1971 was simply the peak of US domestic oil production. And since the defendants were US-focused, as production from their fields in the US slowed, so did their emissions.
1. For many Western shareholder-owned oil companies it so happens that most, or a large part, of their GHG emissions will have taken place before 1968 (the earliest date from which liability could attach, on New York’s case). Hence a much lesser proportion of such defendants’ historical GHG emissions may be in issue in any climate change tort claim than the headline figures in New York’s complaint might suggest.
The fact that the New York defendants’ emissions fell after 1971 does not mean that global emissions reduced. On the contrary, global emissions continued to increase after 1971, supplied by the other “carbon majors” as shown in Heede’s graph below:
This shows how the total CO2 emitted by the 70 “carbon majors” continued to climb after 1971, even though the Western, shareholder-owned companies’ emissions were falling. Heede notes that “Of the emissions traced to carbon major fossil fuel … production, half has been emitted since 1986”.
After 1970/71 demand for fossil fuels was increasingly supplied from outside the US. While the defendants participate in overseas production operations it is typically in joint ventures with foreign oil companies, and so a lesser proportion of the production from those foreign sources is attributed to the Defendants. A second factor in reducing the Western shareholder-owned companies’ emissions was the growth of China, India and other economies where demand was frequently met by expanding local production, with a lesser role for the Western, shareholder-owned companies.
A further reason why the Western shareholder-owned companies’ emissions may have reduced is that not all fuels are created equal. Fuels comprise principally carbon and hydrogen. When carbon burns it produces heat and CO2 whereas when hydrogen burns it only produces heat and water. Wood is about 10:1 carbon to hydrogen, coal is 2:1, petroleum fuels are about 1:2 and gas is 1:4. The history of the developed world is of climbing a ladder from the most polluting fuels (wood) to the least polluting (gas). The chart below (from ourworldindata.org) shows CO2 emitted per dollar of GDP (in 2011 dollars) worldwide, and for individual countries (China, India, US, UK and France):
From the start of industrialisation up to about the 1950s, the US, France and the UK emitted ever increasing amounts of CO2 per dollar of GDP. From the 1950s these countries’ emissions of CO2 per dollar then consistently fell as they became more carbon efficient. This reflects a shift away from coal and, latterly, oil, and towards gas and nuclear power generation. Again, of course, this was not the result of some coordinated attempt to reduce CO2. Rather, the drivers were some combination of consumer demand and political pressure to reduce urban air pollution from coal smoke, and slowing oil production in the US coinciding with the discovery of gas fields and the development of improved technology required to exploit them.
India and China follow roughly the same pattern, with an initial rise in CO2 per $GDP, then a decline as their economies become more carbon efficient. The huge spike in China’s emissions per capita in the mid-1950s reflects China’s very rapid industrialisation, but also a misconceived policy of promoting steel production using small wood-fired community furnaces operated by amateurs. These produced little economic value and enjoyed no economies of scale while diverting workers from more productive activities.
The result of gasification has been that, in the US and UK, emissions per capita plateaued from the 1950s, whilst population and GDP per capita increased and living standards improved (illustrated in the chart below, from Grubb et al The relationship between carbon dioxide emissions and economic growth):
In the US from the 1990s, emissions per capita and emissions per $GDP fell, while GDP, GDP per capita and population continued to rise (see the chart below, from the US Environmental Protection Agency’s Inventory of U.S Greenhouse Gas Emissions and Sinks (2017)). No doubt efficiency savings, wind and solar power made a contribution, but gasification will have been the main driver.
Everyone has produced GHG emissions. But the only defendants worth considering would be those who (i) can be argued to have caused GHG emissions on a material scale; (ii) are still extant and have substantial resources with which to meet any judgment; (iii) are subject to the jurisdiction of the English courts; and (iv) against whom a judgment could realistically be enforced.
Entities which could be argued to have produced CO2 emissions on a material scale are those which have:
- produced fossil fuels on a large scale (i.e. oil, gas and coal producers);
- burned fossil fuels on a large scale (i.e. electricity suppliers and those who operate ships and aircraft, also fossil fuel producers who themselves burn fuels at source through flaring or in order to power the production process);
- manufactured cement on a large scale (because a key component in cement is quicklime (calcium oxide CaO) which is produced by heating calcium carbonate (CaCO3) to release CO2); or
- manufactured products which use fossil fuels (i.e. cars, aircraft and ships).
For present purposes it is most convenient to limit the discussion to major Western shareholder-owned producers of fossil fuels like the companies which are defendants to the New York case. Most such companies would at least have a place of business in England, and establishing jurisdiction to hear a climate change tort claim is unlikely to be problematic.
For ease of reference the table below summarises when the English courts will have jurisdiction to hear a tort claim. Note that some of these rules may change following Brexit. Cases where the English court has jurisdiction are shaded green, cases where the English court has jurisdiction subject to forum non conveniens are shaded yellow. The forum non conveniens doctrine provides that the court will decline to hear the case if there is another forum in which the case could be heard, England is not a clearly more appropriate forum and justice does not require that the case be tried in England. Cases where the English court has no jurisdiction are shaded pink.
Once jurisdiction has been established against one defendant, it may be possible to join other defendants over whom the court would not normally have jurisdiction. PD6B paragraph 3.1(3) and (4), allow someone who is a “necessary and proper party” to a claim where the court’s jurisdiction has already been established to be served outside the jurisdiction. Article 8 of Regulation 1215/2012 which provides that: “A person domiciled in a Member State may … be sued … where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings”.
It can be seen that, in theory, a claimant could seek to bring a claim in England for loss or damage incurred in some other country, perhaps suing English-domiciled companies, and then using those as ‘anchor defendants’ to establish jurisdiction against other companies based elsewhere.
This opens up the theoretical possibility of claims being brought in England by (say) public authorities from small island nations or by indigenous peoples affected by climate change. But it needs to be borne in mind that any prospective claimant is also likely to have other forums available to it - the prospective defendants have places of business in many different jurisdictions. Some of those forums are likely to be more attractive for prospective claimants than England would be (see below under “Forum choice and systemic differences between England and the US”).
An English court judgment is only valuable insofar as it can be enforced. Even if the English court has jurisdiction over a given defendant, there is little point in suing them in England unless they have assets in England, or in some other jurisdiction where an English judgment could readily be enforced (such as within the EU - though this may cease to be the case post Brexit).
Shareholder-owned Western companies like the New York defendants would tend to be the most attractive defendants because they and their assets will generally be within reach of the English courts. Non-Western companies, and those owned by states, are much less attractive defendants because even if they are subject to the jurisdiction of the English courts, a large proportion of their assets may well be beyond reach, given the difficulties of enforcing foreign judgments in their home countries.
New York’s case is that the Defendants had the necessary knowledge about climate change by the late 1970s or early 1980s. A point to mention at this stage in the discussion, which is explained in more detail below, is this: it so happens that, for many of the Western privately-owned fossil fuel companies, their GHG emissions peaked in the 1970s and have since generally declined. Since the risks of climate change became apparent, the bulk of emissions appear to have been attributable to non-Western and state-owned fossil fuel producers, and this will continue to be the case for the foreseeable future.
Forum choice and systemic differences between England and the US
Kaminskaite-Salters Constructing a Private Climate Change Lawsuit under English Law: A Comparative Perspective (2010) suggests that the lack of climate change tort claims in England to date is due to “systemic constraints”:
“… climate change litigation has not taken off in the UK to date; this is in contrast to the US where a number of landmark cases have been or are being considered by the Courts. There are significant systemic constraints accounting for the status quo. However, those constraints are neither entrenched nor static, and it is feasible that, with the evolution of the English judicial system as well as the failings of the regulatory framework, in the future pioneering cases alleging climate change damage will be brought to the English courts”
“Systemic constraints” said to make England an unattractive place to bring a climate change tort claim compared to the US are:
- Loser pays. The general rule is that the unsuccessful party will be ordered to pay the reasonable costs of the successful party (CPR 44.2(2)(a)), which is not the case in the US. The cost of losing is therefore greater in England than in the US.
- Opt-in class actions. US law allows a named plaintiff to bring certain claims on behalf of a class of claimants, with the judgment or settlement binding members of that class unless they have opted out of the action. The position in England remains markedly different, with only people who have opted-in being bound. The result is that in any English case, the class will tend to be smaller (people who have opted in rather than people who have neglected to opt-out) and it is more costly to bring such claims, because it is necessary to spend more time identifying and signing up class members.
- Low rewards. For the relevant torts, damages awards are purely compensatory whereas in the US there is scope for punitive damages. Therefore the most a claimant is ever going to recover in England is: (i) the amount they have already lost; and (ii) some (but not all) of the legal costs they have had to spend in order to establish that claim. So, not only is the cost of losing higher in England, the rewards for winning are lower.
It is, with respect, wrong to suggest that such constraints are “neither entrenched nor static”. There is no reason to think that England will abandon the loser pays principle, switch to US-style opt-out class actions or permit punitive damages. Since Kaminskaite-Salters’ book was published in 2010, all these principles have become more entrenched, since we have had a comprehensive review of the English approach to costs, and all these principles have been preserved. If anything, England has become an even less claimant-friendly jurisdiction, since successful claimants can no longer recover success fees charged by their lawyers, or the costs of ATE insurance (i.e. insurance against losing and having to pay the other side’s costs).
A further point is that litigation outcomes in the US are less predictable and uniform than in England. This, combined with the fact that US litigation is lower risk / higher reward, tends to encourage novel or speculative claims. As to why litigation outcomes are more uniform and predictable in England:
- No juries. In England claims are determined entirely by professional judges with no juries.
- Small, relatively homogenous judiciary. England is so much smaller than the US and has so many fewer judges that there is simply a smaller pool of possible decision makers and less scope for any geographical divergence, with little advantage to be gained for bringing a claim in one place rather than another in terms of substantive outcomes.
- Less politicised judiciary. Since no English judges are elected, they need have no regard for what will be popular or unpopular with their electorates.
- Single route of appeal. Whereas in the US there are different courts of appeal for different regions, all appeals in England are essentially made to a single court so there is also less scope for divergent approaches at the appellate level.
These factors are even more static and entrenched than the systemic restraints discussed above.
Given these facts, it seems unlikely that small island nations, indigenous peoples and the other foreign claimants most affected by climate change will be rushing to the English courts any time soon. Even an English local authority which was contemplating bringing a climate change claim might prefer to do so in the US or elsewhere. If that is correct then a detailed discussion of how English law / an English court would address such a claim seems academic.
2. Any discussion of whether a tort claim for damage due to climate change could succeed in England under English law needs to acknowledge that a prospective claimant may have other forums available where the risks of bringing such a claim will be lower. If other forums are available, the chance of a claim being brought in England is remote.
Objectives other than compensation and tort liability as a public policy mechanism
The latest US claims may not be entirely the result of a dispassionate risk/reward calculation though. As Corsi puts it (New York City v. Big Oil A - New Opportunity to Address Climate Change in the Trump Era? (2018)):
“The lawsuit conveys a powerful political message, particularly by shining the public spotlight onto a range of arguments regarding climate science and the behaviour of fossil fuel companies. The case is also perceived as sending a strong message of resistance, with a city standing up to the federal government …”
There would seem to be at least four possible reasons for a public authority to pursue a climate change tort claim:
- As a means of publicising the threat of climate change and, in particular, the health impacts and costs of modifying public infrastructure which will follow if GHG emissions are not addressed. This in order to secure public support for painful measures to reduce GHG emissions.
- As a means of garnering short-term political capital. No doubt the New York and California claims, whatever their legal merit turns out to be, would be popular with voters who are frustrated by the present administration’s ambivalence about climate change. Bringing a climate change lawsuit represents a cheap way to at least appear ‘tough on climate change’ without resorting to more painful and divisive measures like a carbon tax or subsidising the nuclear industry. Such claims also present a convenient narrative: that climate change is not the fault of those who bought the fossil fuels and the energy they generated, nor of the governments they elected.
- As a genuine attempt, which a claimant believes has good prospects of success, to recover substantial compensation to cover the cost of adapting infrastructure to cope with rising sea levels, more extreme precipitation and increased summer heat caused by anthropogenic climate change.
- In order to pursue the public policy goal of trying and prevent/reduce anthropogenic climate change by attaching tort liability to fossil fuel production, so that producing fossil fuels becomes uneconomic, and the defendants reserves remain in the ground.
As regards political capital and publicity as motives for pursuing a climate change tort claim it can be seen that, again, the position in the US differs somewhat from that in England. In England, although we may question the efficacy and adequacy of climate policy, the need to address climate change is generally accepted by national and local government. In 2015, for example, pursuant to the Paris Agreement, the EU (including the UK) did commit to reduce its emissions by 40% below 1990 levels by 2030. Local authorities thus have less need to publicise climate change and less to gain in terms of political capital by pursuing climate change litigation.
A local authority in England is thus only likely to pursue a New York style climate change tort claim if it believes that this will genuinely lead to compensation or advance the public policy goal of reducing GHG emissions.
3. Pursuing climate change tort claims principally as a means of publicising climate change or garnering political capital rather than with a view to recovering compensation is not without risk. If public bodies spend years insisting that fossil fuel companies are liable they risk creating a false sense of reassurance - that the costs of adapting to climate change will ultimately be met by fossil fuel companies - thereby reducing public appetite for substantive, painful, measures to reduce GHG emissions.
It is worth recognising that, even if climate change tort claims do turn out to be well founded, imposing tort liability on fossil fuel companies is probably not going be viable as a long-term, scalable source of funding to cover the costs of climate change and is probably not going to prevent climate change either. Anthropogenic climate change imposes costs in three ways. Using the IFCCC terminology these are:
- Costs of climate change mitigation - i.e. any costs of reducing GHG emissions so as to reduce climate change. For example, insofar as wind, solar or nuclear power generation is more expensive than fossil fuel power generation, that is a cost of climate change mitigation.
- Costs of climate change adaptation - i.e. the costs of adapting infrastructure to such climate change as does occur.
- Damage to property - e.g. by extreme weather events attributed to climate change. Also the inundation of land by sea level rise.
Estimates of the global costs of climate change vary greatly, but are typically of the order of trillions of dollars:
- New York is just one coastal city among thousands worldwide and its costs of climate change adaptation are claimed to be “many billions of dollars”.
- The UK government’s Stern Review on the Economics of Climate Change (2006) suggested that without action, the overall costs of climate change will be equivalent to losing at least 5% of global gross domestic product (GDP) each year, now and forever, increasing to 20% in some scenarios. A 2008 update advised that 2% of GDP would be required to be invested each year to avoid the worst costs of climate change. According to the World Bank, global GDP in 2008 was approximately $63.4 trillion, so the Stern Report seems to indicate that the global cost of climate change will be of the order of $3.17 trillion to $12.68 trillion per year forever, as against which the cost of avoiding the worst effects would be $1.268 trillion per year.
- Watson et al. The Economic Case for Climate Action in the United States (2017) estimates that the cost to the US economy alone of weather events influenced by anthropogenic climate change and health damage due to air pollution caused by fossil fuel energy production is currently $240 billion per year, rising to $360 billion per year by 2020.
Ritchie How much will it cost to mitigate climate change (ourworldindata.org, 27 May 2017) features an interesting chart based on a study by McKinsey & Company (Pathways to a low-carbon economy (2013)). This shows the costs of CO2 reduction measures which would cost less than €60 per tonne of CO2 saved. It can be seen that some CO2 abatement measures (e.g. switching to LED lightbulbs) have a negative cost (i.e. they save money):
“If we utilized all of our <€60 per tonne abatement opportunities to their full potential (which is an important assumption), McKinsey estimates the total global cost to be €200-350 billion per year by 2030. This is less than one percent of the forecasted global GDP in 2030.
This cost is however, made more complex by the timing of investment. This timing component is important for financing and capital investment. Our average annual cost is calculated as a balance of how much money we need to invest, and how much we get in return based on efficiency gains and reduced running costs relative to our current technologies. However, as we noted earlier, we often need an initial capital investment to implement the technology; this initial capital can be high, but begins to pay back over time (resulting in a reduction in the average annual cost through time). The upfront capital investment needed is €530 billion per year by 2020 and €810 billion by 2030. Although these figures may seem substantial, many estimates project that the economic costs of not taking action to avert climate change would greatly exceed investments in mitigation.”
As against these costs, the present combined equity value of all five defendants to New York’s claim is ‘only’ $652 billion according to their latest financial statements (BP $100.4 billion, Chevron $155 billion, ConocoPhillips $35.23 billion, ExxonMobil $167.3 billion, Royal Dutch Shell $194.3 billion). And it should not be forgotten that the underlying assets on which those valuations are based mostly consist of oil and gas and the means of extracting, processing and delivering them, so these valuations assume the continued use of fossil fuels.
All the indications seem to be that imposing tort liability for climate change on Western shareholder-owned companies would not cover all the costs of climate change mitigation or adaptation. Realistically, effective climate change mitigation probably requires coordination at a global, or at least regional or national, level. It is not realistic to expect the cost of measures such as those identified in the McKinsey study (e.g. nuclear power, CCS) to be funded by way of piecemeal ad hoc tort claims.
4. Imposing tort liability for climate change would not be a complete solution to the problem of how to fund climate change mitigation / adaptation. Those costs are liable to exceed the assets of the Western shareholder-owned fossil fuel producers which are within reach of courts in England and the US. Also, fossil fuel producers’ assets largely consist of unburned fossil fuels, which can only be realised if they are extracted, sold and burned.
Tort liability may not offer a complete solution to the problem of how to pay for climate change. But, as a matter of public policy, would imposing tort liability on Western shareholder-owned fossil fuel businesses nonetheless be a good way to reduce global GHG emissions? This is relevant because other commentators have suggested that such public policy considerations support the imposition of a duty of care under English law.
On one view if, from a given date, a sufficient tort liability attaches to the production and sale of fossil fuels that will make it uneconomic for businesses to continue producing and selling fossil fuels, with the result that these reserves remain in the ground, unburned.
But imposing tort liability could have some unintended consequences. A substantial proportion of the Western businesses’ reserves will be in jurisdictions which are beyond the reach of the English or US courts. One example of an unintended consequence of imposing tort liability might be if Western businesses are forced to sell their interests in those foreign reserves which they can no longer exploit (at a knock-down price) to businesses which are beyond the reach of the Western courts. Those businesses continue to extract the fuel and sell it in (say) India and China. The low cost of acquiring the reserves might even allow the new owners to sell fossil fuel more cheaply, making it even more competitive compared to lower carbon technology, and further prolonging the use of fossil fuels in India and China.
On a similar note, it should not be assumed that reduced sales of fossil fuels in the West would translate into a 1:1 reduction in global fossil fuel sales. It might be that global fuel production remained similar, but reduced demand in the West meant that fuel became cheaper so buyers elsewhere could afford to purchase more.
Even if one’s public policy goal was limited to reducing fossil fuel use in the West, relying exclusively on piecemeal tort claims would seem to be a singularly inefficient and uncertain means of achieving it. Suppose a claim is brought against A which is incorporated in England, and an English court finds that A committed a tort when it produced / sold fossil fuels. A ceases selling fossil fuels. But the sale and consumption of fossil fuels in England is still legal. B, which is incorporated in Russia, steps in and sells fossil fuels to A plc’s former customers in England. To dissuade B from selling fossil fuels in England it is necessary to bring a new claim, obtain a judgment against B, and then enforce it either against assets in Russia (which is difficult) or against payments which B has received in England, which have not yet been removed from the country. Once B is dissuaded from selling fuel in England, C steps in, and the process begins again. This incremental approach is inefficient compared to public law measures which are universally applicable like (say) emissions licensing and trading, a carbon tax, subsidising lower carbon alternatives, mandating lower vehicle emissions and so on.
Some commentators on climate change litigation have suggested that, if it were to be established that fossil fuel companies were liable in tort for climate change, the Western shareholder-owned fossil fuel companies might be forced to enter into something akin to the tobacco Master Settlement Agreement (“MSA”). From 1954 until around 1993 more than 300 claims were brought by smokers against cigarette manufacturers in the US, seeking compensation for illness claimed to have been caused by smoking. Manufacturers spent an estimated $600 million defending these claims. None of the claims was successful. In 1996 an individual claimant won $750,000 in Tampa, Florida. Tobacco company shares immediately fell by more than $10 billion. The tobacco companies shifted strategy, and in 1998 the major manufacturers entered into the MSA with 48 US states. The manufacturers agreed to refrain from certain advertising practices and also to pay the states $206 billion over the ensuing 26 years.
Would an analogous settlement by Western shareholder-owned fossil fuel producers reduce global GHG emissions? Much would depend on the detail. But such settlements risk creating a set of perverse incentives because, if claimants want to receive their settlement payments, it is in their interests that the producers remain free to produce and sell fossil fuels for decades to come. The MSA did not halt the rise of global tobacco consumption.
5. It is unclear whether imposing tort liability would serve to advance a public policy goal of reducing GHG emissions. In some scenarios imposing tort liability might even increase emissions. In any case, relying on private law claims to achieve reductions in emissions (‘regulation through litigation’) is an inefficient alternative to public law measures.
Choice of law
Assuming a climate change tort claim were brought in England, the applicable law would fall to be determined under Regulation 593/2008 (“Rome II”) (the position may change after Brexit). Rome II provides:
“Article 4 General rule
1. Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.
2. However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply.
3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.”
“Article 23 Habitual residence
1. For the purposes of this Regulation, the habitual residence of companies and other bodies, corporate or unincorporated, shall be the place of central administration. Where the event giving rise to the damage occurs, or the damage arises, in the course of operation of a branch, agency or any other establishment, the place where the branch, agency or any other establishment is located shall be treated as the place of habitual residence.”
It can be seen that if an English city sues a defendant which has its central administration in England, English law will apply. Where an English city sues a defendant which is incorporated elsewhere, the applicable law is that of the country where the damage occurs, which would also be England.
Article 4(3) raises an interesting possibility whereby a foreign claimant (e.g. a small island nation severely affected by rising sea levels) could bring a claim in England, but subject to its own local laws. The claim could not be said to be manifestly more closely connected with any other country, and so there would be nothing to displace that system of national laws.
What do other authors think of climate change tort claims in England?
In an article entitled Climate Change Litigation: a possibility in the UK? 29 January 2009 an unnamed author from Nabarro LLP opined:
“The possibility of claims based on the direct link between a company’s action and damage caused by climate change is … given scientific developments and the Court’s willingness to accept group liability in asbestos cases, not out of the question.”
Kaminskaite-Salters Constructing a Private Climate Change Lawsuit under English Law: A Comparative Perspective (2010) is a book-length analysis born out of the author’s doctoral research (the author also expressed a similar view in a chapter in Faure et al Climate Change Liability (2011)). Her conclusion was as follows (counterintuitively, the author refers to a situation in which a claim succeeds / is upheld as one where the claim is “successfully defended” - as in defending one’s thesis):
“There is scope for a pioneering climate change-related claim to be brought to and potentially successfully defended in the English courts. Such a case would most likely be brought by a central of local municipal authority for long term damage through climate change … The case would be brought against several entities that … supply fossil fuels … the most likely cause of action on which the case would be based is public nuisance. Exercise of judicial discretion and flexibility on the part of the courts would be required when establishing causation, including in relaxing the test for proving factual causation and considering the possibility of introducing proportionate (as opposed to joint and several) liability. … the complexity of the problems and the relevant policy considerations inevitably mean that progress in bringing and successfully defending such pioneering cases would be slow. However the importance of climate change, arguably, warrants the feasibility of such cases to be tested in real life.”
Burton et al. Climate Change: What Chance a Damages Action In Tort? UKELA e-LAW 55 January 2010 is an article by three barristers in the journal of the UK Environmental Law Association (“Making the law work for a better environment”). Their conclusion:
“If the predicted consequences of climate change do eventuate and are seen to do so, then judicial attitudes will gradually harden in relation to events that occurred many years before the matter comes before the courts.”
“For now, the prospect of a successful action in tort in respect of damage due to climate change brought in this jurisdiction in accordance with English law seems remote. However, in our view, when and if the effects of climate change begin to truly manifest themselves, not only in fact but in the public consciousness, the position could change very rapidly indeed.”
A more nuanced view is expressed in Lord et al’s book Climate Change Liability: Transnational Law and Practice (2012):
“The authors see no reason to suppose that [a private law claim in England based directly on allegations of actual or anticipated damage from climate change] could be brought today with any realistic chances of success. … the prospect of this kind of liability being established is widely thought to become more likely if and when the impacts of climate change become more severe, especially if no satisfactory international regulatory regime is agreed.”
“One can envisage a failure of the regulatory approach and a ‘business as usual’ scenario over ten, twenty or fifty years, with major emitters carrying on in the knowledge of likely consequences in terms of contribution to climate change, and serious progressive climate change damage becoming manifest. In such a case, the defences discussed above against private law claims based on well-established tort principles may turn out to be ineffective against arguments made in the second half of this century that: (i) serious damage has occurred; (ii) it was known that it would occur (as per the IPCC reports) and could have been prevented (as per the Stern review); and (iii) the principal emitters chose not to act effectively, primarily for reasons of short-term economic benefit.”
New York’s case is that the principal emitters had the requisite knowledge and chose not to act from sometime between 1968 and 1988. The position of Lord et al would seem to be that there is no fundamental principle of tort law which rules out the possibility of such a claim succeeding - it is a question of timing and judicial attitudes.
Buckley Climate change litigation - too hot to handle (17 October 2017) focuses on the possibility of class action style claims, as distinct from claims by a well-financed public body like New York. He concludes:
“The possibility of class action style claims being brought in UK courts against fossil fuel companies … remains remote. Claimants would face near insurmountable legal hurdles, in addition to difficulties securing funding for such claims. However, the pace of climate change litigation is picking up around the world, and the science that links the effects of climate change to human activity is improving …”
The prevailing view thus seems to be that establishing duty / breach is less problematic than causation, but that all the relevant principles of English tort law are sufficiently mutable, or else allow such a role for judicial discretion, that for a climate change tort action to succeed all that is required is judicial willing, and judges will be ever more sympathetic to such claims once climate change begins to bite. It is not suggested that there is any really fundamental principle of tort law which would operate to prevent such a claim succeeding.
Insofar as any of these authors refers to the measure of damages - the fundamental principle that tort damages seek to place the claimant in the position which they would have been in if the wrong had not been committed - they do so only in passing. None seems to have discussed the issue of whether a claimant would have to give credit for the benefits which it has itself enjoyed through the use of fossil fuels.
Finally, although not concerned with English litigation, it is worth mentioning the similar conclusion in Hunter and Salzman Negligence in the Air: The Duty of Care in Climate Change Litigation 155 University of Pennsylvania Law Review (2007). This is a detailed article by two US academics, and concerns the position in the US, focusing on questions of breach and duty rather than causation:
“To argue that a defendant should be morally blamed for its contribution to climate change, and thus that conduct ignoring climate change impacts has been unreasonable, arguably requires placing the defendant’s conduct in the context of what was known or suspected about climate change at the time. Perhaps a plan to expand oil development … was not blameworthy or “unreasonable” in 1990. But what about 2000? Or 2005? Given the emerging understanding of climate change, determining what an appropriate response should have been at any specific time is difficult. It is, in fact, a subjective judgment about reasonableness - one that usually is left, in the tort context, to juries. Although a judge might declare allegations of defendants’ conduct before 1990 to be non-negligent as a matter of law, after that point the determination would seem to be better left to juries. And certainly a reasonable jury could determine that a company … that openly plans to increase its dependence on coal and anticipates significantly expanded and unmitigated climate impacts is behaving unreasonably given the state of knowledge in 2007.”
“… changes over time in our understanding of climate change impacts are increasing the foreseeable costs of GHG emissions. At the same time, alternatives to inefficient technologies or practices are increasingly well known, and the avoidance costs are declining. This suggests that the relative risk-utility balance of climate-changing activities is shifting, and with that shift comes an increased likelihood that a defendant’s activities or products will be found to present an unreasonable risk of foreseeable injury. Whether under theories of negligence, nuisance, or products liability, such trends in the risk-utility ratio are moving toward a finding of liability.”
Negligence - duty of care
The essence of the duty of care appears from Lord Atkin’s speech in Donoghue v Stevenson  AC 562, 580:
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who … in law is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
Several attempts have been made to refine this. Law students, citing Lord Bridge in Caparo Industries Plc. v Dickman  2 AC 605, will recite that a duty of care is owed if damage is foreseeable, it is fair, just and reasonable to impose a duty of care and there is also sufficient proximity between the parties. But, in the next breath, his Lordship accepted that this was not a practical test:
“… in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of “proximity” or “neighbourhood” and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope.”
Lord Oliver identified this same circularity:
“Proximity” is, no doubt, a convenient expression so long as it is realised that it is no more than a label which embraces not a definable concept but merely a description of circumstances from which, pragmatically, the courts conclude that a duty of care exists.”
Lord Roskill said:
“It has now to be accepted that there is no simple formula or touchstone to which recourse can be had in order to provide in every case a ready answer to the questions whether, given certain facts, the law will or will not impose liability for negligence or in cases where such liability can be shown to exist, determine the extent of that liability.”
Lord Atkin preceded his famous test in Donoghue v Stevenson by saying:
“… in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence … is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy.”
A similar sentiment was expressed by Lord Bingham in X (Minors) v. Bedfordshire CC  2 AC 633: “the public policy consideration which has first claim on the loyalty of the law is that wrongs should be remedied and that very potent counter considerations are required to override that policy”. Statements such as these lead Lord et al. (Climate Change Liability: Transnational Law and Practice (2012)) to conclude on the duty of care issue simply that:
“… such uncertainty about the scope of a duty of care … lends credence to those who take the ‘broad brush’ view that whether and when a duty will be found to exist will depend on how seriously people or property are damaged in future, and how those said to be in part responsible have conducted themselves. Different possible scenarios in ten, twenty or fifty years’ time may provide different answers to the question whether GHG emission is at least in some circumstances and for the purposes of the law of tort ‘moral wrongdoing for which the offender must pay.”
It would be naïve to insist that there is zero chance of an English court ever finding that it is negligent to produce GHG emissions. But a number of factors militate against such a finding.
To impose tort liability for GHG emissions is the paradigm example of a decision which would open “the floodgates of litigation” (something the courts are traditionally wary of). There is an immense number of prospective defendants (everyone has produced GHG emissions) and an immense number of prospective claimants (almost everyone will be affected by climate change). Once liability is established, it is hard to see where any qualitative / principled distinction could thereafter be drawn between claimants who were legally entitled to recover and those who were not.
Throughout the relevant period (1968/1988 onwards) the production of fossil fuels was of enormous social utility and that remains the case today. If the use of fossil fuels suddenly ceased today the consequences would be immense: the lights would go out, cars, HGVs, trains, ships and planes could no longer be used. It seems unthinkable that an unelected, English judge would take it upon themselves to impose what amounts to a de facto (retrospective!) ban on fossil fuels, when the utility of fossil fuels was and is such that no government anywhere in the world has yet taken such a step or anything approaching it. This is despite those same governments having known about the dangers of climate change for decades. Consider that the English courts have likewise never taken it upon themselves to impose tort liability on cigarette manufacturers for smoking related illness when, compared to fossil fuels, cigarettes have zero, or only marginal, social utility.
As previously described it is unclear to what extent imposing tort liability for GHG emissions will advance the public policy goal of reducing GHG emissions. Perhaps the savings would be modest, being largely offset by increased emissions elsewhere. Imposing tort liability under those circumstances would do considerable harm to Western companies, and benefit suppliers elsewhere, while achieving only modest reductions in emissions. Given the complexity and the risk of unintended consequences courts will probably give little weight to such public policy arguments.
English law already imposes a regulatory framework in the form of the Kyoto Protocol, Paris Agreement, the EU emissions trading scheme and the implementing national legislation. Arguably, where parliament has imposed a statutory regime which contemplates the continued use of fossil fuels (albeit in gradually reducing quantities), it is not for the courts to ‘legislate by litigation’ and impose further restrictions.
Negligence - statements about climate science
A key allegation in the New York case is that the Defendants published material which overemphasized the uncertainties of climate science. A commentary on New York’s case published by the Climate Institute (Corsi New York City v. Big Oil A - New Opportunity to Address Climate Change in the Trump Era? (2018)) opines:
“The lawsuit resorts to traditional argumentation regarding public negligence, private negligence, and trespass. These arguments are, however, complemented by a novel and potentially powerful new one – namely, the assertion that the companies in question knowingly misled the public about climate change. This argument was not utilized in the past cases that ultimately failed and may therefore represent a significant legal innovation.”
Whatever the merits of this argument turn out to be in New York law, one can foresee very considerable difficulties with pursuing such an argument under English law.
New York’s pleaded case appears to be that the Defendants, in making / procuring those statements, breached a duty of care in negligence which they owed to New York. The argument (presumably) is not that New York itself relied on these statements to its detriment but, rather, that if these statements had not been made, the world’s governments would have taken effective steps to limit global GHG emissions, and done so earlier, and that this would have prevented, or reduced, the sea level rise and other climate change effects which New York complains of.
When it comes to publishing negligent statements, English law is slow to impose a duty of care. As Lord Denning put it in his minority judgment in Candler v Crane Christmas & Co  2 KB 164:
“A scientist or expert … is not liable to his readers for careless statements in his published works. He publishes his work simply for the purpose of giving information, and not with any particular transaction in mind at all. … when a scientist or an expert makes an investigation and report for the very purpose of a particular transaction, then, in my opinion, he is under a duty of care in respect of that transaction.”
Lord Denning’s approach was later approved by the House of Lords in Hedley Byrne & Co Ltd v Heller & Partners Ltd  AC 465 (see Lord Hodson at p. 509, Lord Devlin at p. 530 and Lord Pearce at pp. 538-539.
New York’s case has some similarity to Suradhar v Natural Environment Research Council  UKHL 33. C claimed to have become ill as a result of drinking water from the wells which was contaminated with arsenic. D had carried out a study of the hydrochemistry of groundwater in Bangladesh, not for the purpose of assessing potability, but for other purposes. C alleged that D’s report nonetheless impliedly represented that the water was safe to drink because, by omitting to test for arsenic, D impliedly represented that such a test was unnecessary. C had never seen the report. But he claimed that if D’s report had not given the impression that the water was safe, the public health authorities in Bangladesh would have taken steps to ensure that it was. Lord Hoffmann referred to Lord Denning’s minority judgment in Candler, and concluded that D did not owe any relevant duty to the population of Bangladesh:
“[It] is not that a duty of care is owed in all cases in which it is foreseeable that in the absence of care someone may suffer physical injury. There must be proximity in the sense of a measure of control over and responsibility for the potentially dangerous situation. Such a principle does not help the claimant. In [Perrett v Collins  2 Lloyd's LR 255] the inspector had complete control over whether the aircraft flew or not. If he refused a certificate it could not fly. … For my part, therefore, I have no difficulty with the proposition that the inspector owed a duty to potential passengers to exercise due care … (Compare also Clay v AJ Crump & Sons Ltd  1 QB 533 in which an architect had complete control over whether a dangerous wall was left standing … [D] had no control whatever, whether in law or in practice, over the supply of drinking water in Bangladesh, nor was there any statute, contract or other arrangement which imposed upon it responsibility for ensuring that it was safe to drink.”
The world’s governments did not commission the defendants to investigate climate change for the purposes of deciding what policy to adopt. A claimant running New York’s argument in England would face the daunting prospect of persuading a court that the defendants nonetheless had such a “measure of control and responsibility” over the world’s population (many of whom will never have seen the publications in question) their governments and those governments’ climate policy that they owed a duty of care to the world’s entire population, to take care that such statements as they did make / procure about climate change science were accurate. Of course, having established such a duty, the claimant would also need to prove that such statements as a defendant did make / procure fell so far outside the boundaries of legitimate scientific debate that they were actually negligent - i.e. that no reasonable climate scientist could have reached those conclusions.
6. As a matter of English law, at least, it will be particularly difficult to establish that a duty of care was owed in respect of claims which attribute climate change damage to statements by fossil fuel companies questioning climate science. Such a claim also faces special difficulties in terms of proving causation of loss (see below).
Consumer Protection Act 1987
Section 2(1) of the Consumer Protection Act 1987 (“CPA 1987”) imposes strict liability on the producer of a product for “damage caused wholly or partly by a defect in a product”.
“3 Meaning of “defect”.
(1) … there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes “safety”, in relation to a product, shall include … safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury.
(e) that the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect …”
The argument would be that any fossil fuel is “defective” insofar as burning it releases CO2 which is liable to contribute to climate change. A product is defective “if the safety of the product is not such as persons generally are entitled to expect; and for those purposes “safety”, in relation to a product, shall include … safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury”.
In respect of fuel supplied before a certain date, suppliers will have a defence under section 4(1)(e) because up to that date “the state of scientific technical knowledge was not such that a producer … might be expected to have discovered that defect”.
After a certain date, the fact that CO2 emissions cause climate change becomes common knowledge. From that point on, the issue is whether the “safety of the product is not such as persons generally are entitled to expect”. Producers would argue that, after that date, fossil fuels are dangerous only in the sense that (e.g.) knives are dangerous: they are no less safe than one would expect them to be.
For present purposes a detailed discussion of that issue is unnecessary, however, because CPA 1987 is subject to an important restriction which means that it would not assist a claimant which was seeking to bring a New York-style claim in England. Section 5(3) of CPA 1987 provides that a person shall not be liable under section 2 for loss of or damage to property which is not “intended by the person suffering the loss or damage mainly for his own private use, occupation or consumption”. This would seem to rule out a New York style claim based on (threatened) damage to public property.
It should also be noted that:
- Section 50(7) of CPA 1987 provides that nothing in the act shall make any person liable for damage caused wholly or partly by a product supplied before 1 March 1988. Arguably, all climate change damage is partly caused by products supplied before 1 March 1988.
- Section 11A(3) of the Limitation Act 1980 imposes a long-stop limitation period, whereby claims under CPA 1987 also cannot be brought after the expiration of ten years from the date that the product was supplied. Hence any climate change claim which relied upon CPA 1987 would be limited to climate change attributed to fossil fuels which a producer had supplied in the preceding ten years.
Like negligence, private nuisance is a slippery concept, since it too depends upon an assessment of what is reasonable in the circumstances of a given case. Per Lord Neuberger in Coventry & Ors v Lawrence & Anor  UKSC 13:
“A nuisance can be defined, albeit in general terms, as an action (or sometimes a failure to act) on the part of a defendant, which is not otherwise authorised, and which causes an interference with the claimant’s reasonable enjoyment of his land, or to use a slightly different formulation, which unduly interferes with the claimant’s enjoyment of his land As Lord Wright said in Sedleigh-Denfield v O'Callaghan  AC 880, 903, “a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society”.
“As Lord Goff said in Cambridge Water Company v Eastern Counties Leather plc  2 AC 264, 299, liability for nuisance is “kept under control by the principle of reasonable user – the principle of give and take as between neighbouring occupiers of land, under which those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action””
Per Carnwath LJ in Barr & Ors v Biffa Waste Services Ltd  EWCA Civ 312:
“There is no absolute standard; it is a question of degree whether the interference is sufficiently serious to constitute nuisance. That is to be decided by reference to all the circumstances of the case …”
There is no liability in nuisance unless the type of damage claimed for was reasonably foreseeable (Cambridge Water Co. v Eastern Counties Leather plc  1 All ER 53). Also, damages are not recoverable for personal injury: the interest which is protected is the claimant’s right to use land, not their bodily integrity. This would seem to rule out a claim in private nuisance for the health impacts of global warming.
Kaminskaite-Salters Constructing a Private Climate Change Lawsuit under English Law: A Comparative Perspective (2010) suggests that private nuisance is not a viable cause of action for climate change litigants, principally because of what she terms the “nexus test”:
“… nuisance requires a very close nexus - or pollution pathway - between the property which is causing the nuisance and the property suffering from the nuisance: this inevitably restricts the scope of the tort to “neighbouring” properties”
“… consistent with the principle of a direct nexus between the polluting and the polluted property, the claimant must be able to show that the nuisance physically came onto his/her land. Thus interruption of a gas supply or presence of a large building blocking television reception was deemed not to amount to nuisance in the absence of nuisance coming onto the claimant’s land”.
Lord et al do not recognise this need for a geographical nexus between claimant and defendant:
“One of the difficulties applying the nuisance analysis to climate change damage is that unlike the classic nuisance cases involving noise, smells, smokes etc., there will be no geographic connection between C and D. This however is simply an unusual consequence of the nature of climate change rather than a fundamental requirement of nuisance.”
As to the requirement that nuisance “come onto” property, it is not clear that interrupting a gas supply (preventing gas coming onto property) or blocking a television signal (preventing a television signal coming onto property) are really analogous to: (i) producing fossil fuel; (ii) which produces GHG emissions; (iii) which causes global warming; (iv) which causes sea level rise; (v) which encroaches upon New York’s property. In New York’s case the end of the chain is a physical encroachment upon New York’s property.
The important issues (which overlap to some degree) do not seem to be “geographical nexus” and “coming onto property” but, rather:
- whether fuel production caused the damage complained;
- whether that damage was reasonably foreseeable; and
- whether the defendant’s use of land to produce fossil fuels was a reasonable use, notwithstanding that such damage was reasonably foreseeable.
The issues of causation and foreseeability are discussed separately below. On the question of reasonable use, some academic commentaries suggest that an activity which it can reasonably be foreseen will cause physical damage to another person’s land is automatically an unreasonable use, and that it is only interference which falls short of physical damage (e.g. bad smells, noise) which requires a consideration of whether the defendant was a reasonable user. There does not appear to be any express statement to this effect in the case law, however.
Was it / is it (to use Lord Goff’s phrase) “reasonable according to the ordinary usages of mankind living in society” to produce fossil fuels? It is impossible to say for certain what a court would decide. But many of the same arguments which have been discussed above in respect of the duty of care in negligence would seem to apply. Ours is, after all, a society which grants licenses for oil and gas exploration and production, has in place a comprehensive taxation regime with respect to the products of such activities (which contributes substantially to the exchequer), permits the sale and supply of electricity generated using fossil fuels, permits the sale and use of diesel and petrol, and of diesel and petrol vehicles, regulates those vehicles’ characteristics and licenses and grants planning permission for power stations and pipelines etc.
Private nuisance was developed to protect the right of an occupier of land to enjoy it without unreasonable interference. The interference complained of may take any one of many different forms. The tort’s unifying feature is the general type of harm caused, interference with the beneficial occupation and enjoyment of land, not the particular conduct causing it.
It became clear over time that there were some acts and omissions which were socially objectionable but could not found an action in private nuisance because the injury was suffered by the local community as a whole rather than by individual victims and because members of the public suffered injury to their rights as such rather than as private owners or occupiers of land. Interference with the use of a public highway or a public navigable river are examples. Conduct of that kind came to be treated as criminal.
Halsbury’s Laws of England states:
“Public nuisance is an offence at common law. A person is guilty of a public nuisance (also known as common nuisance), who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects.”
This definition was approved by the House of Lords in R. v. Rimmington  1 A.C. 459.
Public nuisance is thus primarily a crime. But, unusually, conduct which could found a criminal prosecution for causing a common nuisance can also found a civil action in tort, if a claimant can show that it has suffered damage over and above that suffered by the public generally. Public nuisance is not land based, and so claims for death and personal injury can be made in public nuisance, and claims can be made by people other than property owners of land. As with private nuisance, the type of damage must be reasonably foreseeable.
Those commentators who have discussed the possibility of English climate change tort claims place great emphasis on public nuisance as a potential cause of action. This is because public nuisance is not tied to interests in land and so:
- the pool of potential claimants is not limited to those whose property has been affected;
- claimants can claim for bodily injury; and
- (Per Kaminskaite-Salters) “public nuisance is not wedded to the neighbouring property principle”.
It is not at all clear whether this emphasis on public nuisance is really justified.
An enormous range of acts might be considered to endanger the life, health, property or comfort of the public or obstruct them in the exercise or enjoyment of their common rights. In Rimmington their Lordships cited as examples of public nuisance: “using a shop in a public market as a slaughter house, erecting a manufactory for hartshorn [aqueous ammonia], erecting a privy near the highway, placing putrid carrion near the highway, keeping hogs near a public street and feeding them with offal, keeping a fierce and unruly bull in a field through which there was a footway, keeping a ferocious dog unmuzzled … baiting a bull in the King’s highway”, “impregnating the air with “noisome and offensive stinks and smells”, taking a child suffering from smallpox through a public street, and running “a rifle range in Bayswater where customers shot at pigeons, causing a crowd to assemble outside and in neighbouring fields to shoot at the pigeons which escaped, causing noise, damage, disturbance and mischief”.
Whether any particular conduct constitutes a public nuisance, however, would ultimately seem to depend on the same sort of factors which apply to decide whether conduct constitutes a private nuisance.
Per Carnwath LJ in Barr & Ors v Biffa Waste Services Ltd  EWCA Civ 312
“Statutory authority may be a defence to an action in nuisance, only if statutory authority to commit a nuisance is express or necessarily implied. The latter will apply where a statue authorises the use of land in a way which will “inevitably” involve a nuisance, even if every reasonable precaution is taken …”
In that case D had been granted a permit to use certain land for waste disposal. Absent such a permit it would have been a crime to use the land in that way. Local residents brought a claim in private nuisance in respect of smells emanating from the land. The permit did not amount to statutory authority. The reasoning would seem to be that D could have used, and previously had used, the land differently (by dumping different, less odorous, waste).
Insofar as a claimant complains that merely producing oil and gas constitutes nuisance, and insofar as that production was from the UK continental shelf, the defendants might be able to argue statutory authority. Statutory licences will have authorised that that land be used to produce oil.
But producing oil & gas does not cause climate change - that is caused by burning them (or, in the case of gas, allowing it to escape). Insofar as the nuisance complained of consists of selling fossil fuels to be burned, it may be that statutory authority would not assist a defendant.
Causation of loss
Assume that, as from a certain date, producing fossil fuels, marketing them and publishing statements questioning climate science were breaches of duty (whether that was negligence, CPA 1987, private nuisance, public nuisance, Rylands v Fletcher or trespass). The next question is whether these breaches, or any of them, were causative of the losses which are claimed.
Previous commentaries have suggested that establishing causation would be the main obstacle to bringing a successful climate change tort claim in England. But also that causation is not necessarily an insurmountable obstacle, because of the flexibility which the courts have shown in their approach to novel causation problems. For a detailed discussion of the causation issues, reference should be made to the other commentaries. The discussion below simply seeks to bring out some further points.
There are, broadly, two different kinds of climate change effect:
- Long Term Effects (“LTE”). This refers to things like mean temperature increase and sea level rise. It might be provable to the necessary legal standard that such phenomena are attributable to climate change caused by a given level of atmospheric GHG.
- Extreme Weather Events (“EWE”). This refers to things like storms, floods and heatwaves. It is impossible to say that any particular EWE would not have happened ‘but for’ the defendant’s emissions. The best that the scientific evidence can hope to show is that GHG emissions increased the likelihood of such EWEs occurring / frequency with which they occur.
Recall that New York’s claim is for the costs of adaptation measures, for the purposes of avoiding / reducing the damage caused by LTEs and EWEs. This avoids the problem of claiming for damage caused by a specific EWE, which would require proving that that EWE was attributable to GHG emissions.
It is not possible to do justice to the complexities of the scientific position in an article such as this. Broadly:
- The relationship between GHG emissions and any given climate change effect is not directly proportionate. In other words, reducing atmospheric GHG by 1% does not mean 1% less sea level rise or that EWEs are 1% less frequent. Rather certain levels of atmospheric GHG potentially represent “tipping points” below which there may be little climate change, and beyond which there may be a substantial impact.
- It is not possible to say categorically that “increasing atmospheric GHGs by x% will raise the sea level by 1m” or “increasing atmospheric GHGs by x% will make EWEs 1% more frequent”. Rather, any such prediction is liable to be expressed in terms of confidence intervals and ranges - that there is x% chance of a 10cm rise, y% chance of a 20 cm rise and so on.
The starting point for any analysis is the ‘but for’ test. ‘But for’ the breach would the damage complained of have resulted, on the balance of probabilities?
A simple example is Barnett v Kensington & Chelsea Hospital Management Committee  2 WLR 422. C attended hospital complaining of vomiting and stomach pains. D, the doctor, failed to examine him and sent him home. C died of arsenic poisoning. Failing to examine C was negligent, but it was held that C would have died anyway, even had he been examined and admitted to hospital, and so causation was not established.
A slightly more complex case illustrates the importance of the ‘balance of probabilities’ in assessing causation. In Gregg v Scott  UKHL 2 D, a doctor, negligently assessed a cancerous lump to be benign. Had his cancer been diagnosed at that point, C’s chance of surviving for a further ten years would have been 42%. As a result of the negligent assessment, C’s treatment was delayed for nine months, such that his chance of surviving a further ten years had dropped to 25%. Their Lordships held that C had no claim to damages for his likely premature death. C’s initial prospects were less than 50% and so the likely outcome (dying) would always have been the same. C’s claim failed on causation.
It is instructive to apply the but for test to the question of whether the breaches alleged could actually be said to have caused an increase in atmospheric GHG:
- Ceasing publication of material questioning climate science. New York does not say what would have happened if the defendants had refrained from publishing this material. Is it that, absent this material, the public would have reduced their energy/fossil fuel consumption on their own initiative? Or that, absent this material, governments would have committed to more extensive emissions reductions in international instruments, and legislatures would have given effect to such commitments in domestic legislation? If so, what would these commitments have been? This line of argument presents huge evidential difficulties in terms of proving, on the balance of probabilities, what relevant members of the executive / legislature believed, what they had based that opinion on and how they would have acted if it were not for the publications complained of. Obtaining such evidence would also likely give rise to issues as to compellability of witnesses, parliamentary privilege, public interest immunity and sovereign immunity (consider the difficulties of compelling people who formerly held high political office in the US to give evidence in English proceedings).
- Ceasing production. It cannot be assumed that, if a defendant had ceased production in (say) 1988, there would be any less GHG in the atmosphere today. The sale of oil and gas would have remained lawful. People would still have bought fuel for their cars, energy suppliers would still have bought fuel for their power stations. They would just have bought it from someone else. Other suppliers would have ramped up their production to meet that demand. There might have been some impact on consumption, if fuel had to be imported with the result that it became more expensive (although fuel has a high price elasticity), but it is naïve to assume that reducing the defendants’ production would translate directly into an equivalent reduction in consumption.
- Ceasing advertising / promotion. People don’t put fuel in their cars, or use it to heat their homes and cook their meals because adverts tell them to. When it comes to commodities which people are always going to use anyway, advertising and promotional schemes are much less about increasing overall consumption, and more about persuading people to buy the commodities they would have bought anyway from your company rather than from a competitor. Advertising might affect which brand of fuel people buy, but not whether they buy it.
- A further issue is that not all fossil fuels are created equal. Refraining from producing gas and oil just as gasification was beginning to reduce GHG emissions in the developed world might actually have been a retrograde step, driving up emissions by increasing the use of coal.
7. CAUSATION I. Oil and gas are commodities. It is naïve to suggest that, if a given company had ceased producing / advertising fossil fuels in (say) 1988 there would necessarily be less GHG in the atmosphere today. Fossil fuel which would otherwise have been supplied by that company would simply have been supplied by others. GHG in the atmosphere today would be the same. If demand for energy could not be supplied using substitute oil and gas sourced from elsewhere, GHG emissions could actually have increased, as energy which had previously been generated using the defendant’s gas and oil had to be generated using coal.
Suppose a claimant were to overcome these hurdles, and a court found that if a defendant had refrained from producing/advertising fossil fuels in (say) 1988 then the level of GHG present in the atmosphere today would be (say) 1% lower. Call that 1% difference the “defendant’s emissions”. The question then becomes whether, or to what extent, that 1% difference can be said to have caused - in the relevant legal sense - the LTE and/or EWE.
Recall that the current trend is of increasing global emissions, and that the defendants’ contribution to those emissions is shrinking. On the balance of probability any given level of climate change complained of will still occur even absent the defendant’s emissions. It will just take longer to reach the required level of atmospheric GHG.
8. CAUSATION II. Even if ceasing production / advertising in (say) 1988 would have eliminated a given defendant’s GHG emissions as from that date (an unrealistic assumption), the effect would be that it takes longer before the concentration of GHG in the atmosphere reaches a given level and the climate change associated with that level of GHG occurs. Insofar as a given defendant’s GHG emissions cause loss, it is arguably not the cost of carrying out climate change adaptations which is in issue - it is the cost of carrying them out earlier than would otherwise have been the case.
Of course, the prompt for carrying out any given works is a function of what one is advised. Suppose the present GHG level in the atmosphere was 1% less, and global GHG emissions were accelerating slightly less steeply (because the defendant’s emissions were discounted). Would the advice about what climate change adaptations should be undertaken differ?
Previous commentaries have tended to focus upon the issue of causation not in terms of how emissions could be said to have affected the timing of climate change, but instead on the fact that such climate change as does occur is the cumulative effect of multiple entities’ GHG emissions, and how responsibility is to be allocated between them.
The leading English law cases on multiple causes concern personal injury and industrial disease. A division emerges as between ‘divisible’ and ‘indivisible’ injuries.
- Divisible injuries are those where the severity of the condition corresponds to the dose of the agent which causes them (like asbestosis). The more asbestos one is exposed to, the worse one’s asbestosis.
- Indivisible injuries, on the other hand, are not dose related. Mesothelioma occurs once just one cell in the lungs has been altered through contact with asbestos. The severity of the disease does not depend on the duration or amount of subsequent exposure.
Climate change is arguably more like a divisible injury than indivisible injury - climate change is the result of the cumulative effect of GHGs, not any single GHG molecule, and (broadly) the more GHGs the worse the effect.
Provided a defendant’s breach has made a “material contribution” to a divisible injury, the defendant will be liable for a corresponding proportion of the injury. An example can be seen in Carder v University of Exeter  EWCA Civ 790. C had asbestosis. D was responsible for 2.3% of D’s total asbestos exposure. The Court of Appeal held that this was sufficiently material, and upheld a judgment awarding C 2.3% of the full liability value of his claim. C had discontinued a claim against another defendant, which had contributed 0.3% of his asbestos exposure, as de minimis.
That approach might make sense where a claim was for the cost of adaptation measures to prevent damage from LTEs like sea level rise which can confidently be attributed to GHG emissions. If your breach generated 1% of a given level of atmospheric GHG attributable to emissions, you are responsible for 1% of the cost of the associated LTEs.
Is it necessary to apply a further discount where the claim relates not to LTEs but to EWEs, where some of EWEs would always have occurred even without anthropogenic climate change?
Suppose a given type of EWE used to happen every 20 years in a pre-emissions scenario and, with a given level of atmospheric GHG , it now happens every five years. There is thus a 75% chance that any given EWE was caused by climate change.
Novartis Grimsby v. Cookson  EWCA 1261 concerned the question of whether C’s cancer had been caused by his smoking, or by occupational exposure to carcinogens. It was held that there was a 70-75% of its having been caused by occupational exposure and a 25%-30% of its having been caused by smoking. D was liable for 100% of C’s cancer.
In Ministry of Defence v. AB  EWCA 1317, at 153 C claimed to have developed cancer having been negligently exposed to radiation. It was said that causation would have been established if C had shown that the risk of the cancer arising from radiation was at least twice that of its having arisen from other sources (this case was the subject of an appeal to the Supreme Court, but the appeal was largely concerned with a different issue).
Based on these cases, Lord et al. appear to suggest that, provided the frequency of EWEs at least doubles, then any EWE is assumed to be caused by climate change, because the chance of its having been caused by climate change is at least double the chance of its having occurred naturally. Hence a claimant which was responsible for 1% of emissions should likewise be liable for 1% of EWE adaptation costs.
This is an unsatisfactory result, because it gives claimants a ‘free ride’ - they enjoy the benefit of protection against the one EWE in four, which the defendant had no role in causing. This free ride problem is addressed in calculating the measure of damages (see further below).
In a series of cases concerned with “indivisible” diseases, their Lordships have recognised some cases where alternatives to ‘but for’ causation may apply. There is much discussion in the literature of the potential relevance of these cases, particularly Fairchild v Glenhaven Funeral Services Limited  UKHL 22 to climate change, but it is hard to see why it would be necessary to resort to these cases since the mechanism of climate change is unlike the “indivisible diseases” with which those cases are concerned.
Measure of damages and accounting for benefit
It is a fundamental principle of English law that tort damages seek to place the claimant in the position they would have been in if the wrong had not been committed. Per Lord Hope in Longden v British Coal  AC 653 (HL):
“The purpose of the award of damages is to compensate him for his loss, not to enrich him. It should leave him no worse off than he was before, nor should he be any better off. As Lord Bridge of Harwich said in Hussain v. New Taplow Paper Mills Ltd  A.C. 514, 527, the rule is that prima facie the only recoverable loss is the net loss. Financial gains which accrue to the plaintiff which he would not have received but for his accident are prima facie to be taken into account in mitigation of the losses which he has sustained. The principle is that the compensation which he receives by way of the payment of a sum of money as damages should as nearly as possible put him in the same position as he would have been in if he had not sustained the wrong for which he is to be compensated: Lord Blackburn in Livingstone v. Rawyards Coal Co. (1880) 5 App.Cas. 25, 39. In Hodgson v. Trapp  A.C. 807, 819 Lord Bridge summarised the law in this way:
“My Lords, it cannot be emphasised too often when considering the assessment of damages for negligence that they are intended to be purely compensatory. Where the damages claimed are essentially financial in character, being the measure on the one hand of the injured plaintiff’s consequential loss of earnings, profits or other gains which he would have made if not injured, or on the other hand, of consequential expenses to which he has been and will be put which, if not injured, he would not have needed to incur, the basic rule is that it is the net consequential loss and expense which the court must measure. If, in consequence of the injuries sustained, the plaintiff has enjoyed receipts to which he would not otherwise have been entitled, prima facie, those receipts are to be set against the aggregate of the plaintiff’s losses and expenses in arriving at the measure of his damages.””
The result is that a claimant in a climate change claim would have to give credit for whatever benefits it has enjoyed by reason of the defendants having produced and marketed fossil fuels during the period when the claimant says the defendant should have refrained from doing so.
The posited tort claim must assume both that the defendants would have ceased producing and selling fossil fuel sometime between 1968 and 1988 and (unrealistically) that competitors would not have stepped in to supply the unmet demand. Consider the following:
- Any claimant would have to give credit for its own increased costs of gas and electricity in this scenario of reduced supply.
- The same day that New York announced it was bringing its climate change tort claim, it also announced that it was divesting its pension funds from fossil fuels. No doubt New York has enjoyed considerable returns from its investments in fossil fuels during the years in question and will have to give credit for these. Many prospective English claimants would be in a similar position.
- According to the Office of National Statistics, in the period 1968/69-2016/17 the UK government received £189,785,000,000 or around £3.95 billion per year in tax revenue from oil and gas production (the sum of the figures in ONS table 11.11 Government Revenues from UK oil and gas production, with no adjustment for inflation). This does not include related taxes such as vehicle excise duty, VAT on fuel, income tax paid by oil industry workers etc. If defendants had suddenly ceased their North Sea production, and it had not been taken over by other companies, then substantially less money would have been available from central government to subsidise local authority expenditure.
- Over the last few decades, a large proportion of fuel sold in the UK will no doubt have been sold by the Western shareholder-owned fossil fuel companies. Removing all that fuel from the market without any substitute supply would have had widespread economic impacts. In September 2000 protestors, angered by a threatened rise in fuel prices, blockaded some oil refineries and distribution depots for just a few days. The effects were dramatic, with thousands of filling stations forced to close, major supermarkets rationing some items, NHS Trusts cancelling non-essential operations, a reduced ambulance service, schools closing, mail deliveries being suspended and so on. The loss to the wider economy was estimated at around £1 billion.
9. MEASURE OF DAMAGES I. Any claimant would have to give credit for the savings / benefits it has enjoyed by reason of the defendants having produced and marketed fossil fuels during the period when it is said a defendant should have refrained from doing so. Such savings / benefits are likely to be very significant.
On the question of EWEs, consider the following hypothetical:
- A given type of EWE used to happen on average every 20 years and now it happens on average every five years. Thus 3 out of 4 EWEs is the result of climate change.
- At a rate of 1 EWE every 20 years, the cost of building flood defences (amortised over their lifetime) and maintaining them exceeds the loss that such flood defences would prevent.
- At a rate of 4 EWEs every 20 years, the loss that flood defences would prevent exceeds the cost of building and maintaining them, so the city builds flood defences.
- The claimant has incurred the cost of building and maintaining the flood defences but, in doing so, it has also protected itself against 1 EWE worth of damage every 20 years which it would otherwise have incurred. In claiming for the cost of the flood defences, does the claimant also have to give credit for the non-climate change related EWE damage which it has avoided?
A claimant would have to give credit for these kinds of savings / benefits which it enjoys as a result of taking steps to mitigate its climate change losses (British Westinghouse v Underground Electric Railways Co of London  3 KB 128 (CA)).
10. MEASURE OF DAMAGES II. Any claimant which carried out improvements to its infrastructure to protect against extreme weather events (EWE) would have to give credit for the non-climate change-related EWE damage which it would thereby avoid.
There is little chance of a New York-style climate change tort claim being brought in England, and still less of such a claim succeeding.
Previous commentators who have considered such claims have identified that they might face difficulties in establishing a relevant duty of care, breach and causation of loss, but have highlighted the relative flexibility of English law in these regards, leaving open the possibility that such a claim might succeed.
One issue which previous commentators have not focused on is how damages would fall to be calculated. It is a fundamental principle of English law that tort damages seek to place the claimant in the position they would have been in if the tort had not been committed. There may be some flexibility around issues of duty of care, breach and causation, but there is no reason to think that a court would depart from the fundamental principle of tort damages.
The fact is that the fortunes of places like New York - the wealthiest places on Earth - are intimately tied to fossil fuels. They might well be substantially poorer places today if, 40-50 years ago, the Western shareholder-owned oil companies had altruistically decided to cease production and to leave their reserves in the ground.
New York’s claim presents a convenient, simplistic, message: the public need feel no guilt for the last 40-50 years of rapacious energy use, and the wealth and comfort it has brought them. The governments they elected, with their vast scientific resources and power, who were warned of climate change from the 1960s, and took no steps to curtail that use, are equally innocent. As New York puts it:
“It is a myth that everyone is responsible for climate change and therefore that no one is responsible.”
“Defendants are not only quantitatively different from other contributors to climate change given their massive and dangerous levels of fossil fuel production over many years—they are also qualitatively different from other contributors to climate change because of their inhouse scientific resources, early knowledge of climate change impacts, commercial promotions of fossil fuels as beneficial despite their knowledge to the contrary, efforts to protect their fossil fuel market by downplaying the risks of climate change, and leadership roles in the API and other organizations that undertook a communications strategy for the fossil fuel industry.”
It remains to be seen whether such an argument has any traction. As a matter of English law, at least, it seems unlikely that such a simplistic narrative would be accepted. The fact is that the use of fossil fuels has brought enormous benefits, and these must be brought into account in any claim to recover for the costs.