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Is climate change nuisance litigation a potential US export?, asks Gordon Wignall in the New Law Journal
  • Common law climate change claims.
  • Displacement by statute: placing limitations on environmental degradation.
  • Public nuisance: the main thrust in the US municipality-led climate changes.
  • Causation: breathtaking theories.

Common law nuisance claims in the US as a species of climate change litigation are little known in England & Wales. Are they likely to have any relevance here?

A symposium at the British Institute of International and Comparative law (BIICL) in January presented a wide range of impressive speakers commenting on various aspects of climate change litigation.

At an early stage, two prominent slides formed part of a presentation by Michael Gerrard, Director of the Sabin Center for Climate Change Law (Columbia Law School). The first showed the number of ‘climate change’ cases being prosecuted around the globe. The US comes in well ahead (in excess of 1,000), with the UK a moderate second (in excess of 50).

The second slide, available for a few seconds, flashed up the titles of the most prominent common law claims being litigated in the US. The common law actions attracted no attention from the various speakers, whose contributions were concerned mainly with domestic judicial review and with public international law.

The common law claims are remarkable by any standard. What are they about, is there any scope, or likelihood, that such cases might occupy the time of Her Majesty’s judges, what can we learn from them and why did they attract no attention at all from the distinguished speakers?

The US Climate Change Litigation website at the Sabin Centre currently lists a total of 21 common law claims (see climatecasechart.com). The major documents in the cases are posted on the website. It is worth describing a few examples.

Examples of these common law claims

One of the older cases (filed in 2008) is a claim by the Native Village of Kivalina and the City of Kivalina against 18 oil majors (Exxon Mobil, BP PLC, BP America, Chevron etc). The plaintiffs were the governing bodies of an Inupiat village of about 400 people located on the tip of a six-mile barrier reef on the North West coast of Alaska. They sought damages, including ‘future monetary expenses and damages as may be incurred by plaintiffs in connection with the nuisance of global warming’. The US Army had concluded that Kivalina had to be relocated and that the estimated cost was somewhere between $95m and $400m.

Among a number of much more recent cases, on 20 July 2018 the Mayor and City Council of Baltimore filed a complaint against BP PLC and 25 other defendants (Chevron, Exxon Mobil, Shell, etc) running to some 137 pages. This complaint has been made on the basis that ‘defendants individually and collectively extracted a substantial percentage of all raw fossil fuels extracted globally since 1965’. This is the battleground for all of these cases—extraction and supply, not consumption.

In the Baltimore claim, the plaintiff complains that the defendants are the proximate cause of rising sea levels, increased coastal erosion, increasing drought, heat waves, and consequent social and economic injuries. The likelihood of extreme floods in Baltimore has increased by 20%, the port and waterfront being important assets to the City. The plaintiffs seek a declaration and damages by reason of increased risk to infrastructure, electrical and communications utilities, increased public health needs, etc and the compensation needed to fund the development of a ‘Climate Adaptation Plan and Disaster Planning and Preparedness Project’.

The list of parties now extends to include a variety of amicus briefs, including one filed by the National League of Cities (19,000 cities and towns), the US Conference of Mayors (1,400 cities) and the International Municipal Lawyers Association (2,500 members).

Then, in the City of New York v BP PLC, the plaintiff has sued BP, Chevron, ConocoPhillips, Exxon Mobil and Shell (complaint filed on 9 January 2019). A little after the complaint was filed, the Mayor of New York, appeared on the Bernie Sanders Show and said: ‘Let’s help bring the death knell to this industry.’ Exxon Mobil, in its Motion to Dismiss, took the opportunity to characterise the claim as ‘hypocrisy’.

In its claim, the City has alleged that the five defendants were 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’ and that the defendants were responsible ‘for leading the public relations strategy for the entire fossil fuel industry, also downplaying the risks of climate change and promoting fossil fuel use despite the risks’. In all of these claims it is argued that the defendants knew of the risks and hid them.

The plaintiff in the same case alleges that the defendants’ actions constitute a public and private nuisance and a trespass on its property. The City seeks compensation and an injunction to abate the public nuisance and trespass should the defendants fail to pay damages for past and permanent injuries.

A different type of case is that of Pacific Coast Federation of Fisherman’s Associations v Chevron Corp (filed on 14 November 2018). Most of the current US common law claims are taken by states or cities. In this case, a commercial fishing industry group has issued a complaint seeking damages and equitable relief from fossil fuel companies by reason of climate change impacts of the coast of California, resulting in ‘prolonged closures’ of certain crab fisheries. The main (but not the only) cause of action is in public nuisance caused by the increased surface water temperature and algal blooms and acid contamination.

Displacement by statute

The common law claims of trespass, private and public nuisance have an important role alongside public law claims in placing limitations on environmental degradation.

In England and Wales, the Environment Agency and planning authorities apply pre-defined statutory limits in order to secure some limitations to local risks to air quality. However, these rules cannot cut across the application of the common law torts, which allow individuals themselves their own ‘hard-edged’ form of control should the statutorily-derived limits be found ineffective.

This much we know, for instance, from Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312, [2013] QB 455, [2012] 3 All ER 380. The Court of Appeal was not prepared to equiperate regulatory standards with the standard of reciprocity—the guiding principle of private nuisance.

The rigour of the common law of nuisance, however, has been under threat. In Marcic v Thames Water Utilities Ltd [2003] UKHL 66, [2002] 2 AC 42, [2003] All ER (D) 89 (Dec) for instance, the House of Lords decided that the statutory scheme effected to deal with sewage flooding displaced the application of the common law. See also the long-standing rules as to statutory authority as a defence to a claim in nuisance (pushed to the limit in Allen v Gulf Oil Ltd [1981] AC 1001, [1981] 1 All ER 353), and its further extension by way of s 158 of the Planning Act 2008 (infrastructure planning).

In the US, the recent common law cases featuring on the Sabin Centre slide have not got much further than skirmishes about whether they are state or federal cases. In the federal courts the powers available to the EPA under the Clean Air Act displace claims at common law (see American Electric Power Co in v Connecticut 564 US 424 as applied in Kivalina 663 F Supp 2d 863, 869 and affirmed in 696 F 3d 849).

To this extent, the US climate claims also show that other jurisdictions are inclined to put pressure on the common law where the legislature has ostensibly passed laws in the area, even where those laws do not expressly abrogate common law provisions. It is an area where defendants in the UK should continue to find fertile ground in all nuisance cases, and it would no doubt be a first port of inquiry should these climate change claims be litigated here.

Public nuisance

The main thrust in the US municipality-led climate changes has been public nuisance.

In the US a long line of cases has recognised that municipal authorities enjoy a ‘parens patriae’ role on behalf of its citizens, whether in the context of pollution, the selling of guns or otherwise. In England and Wales, any local authority considering whether or not to take proceedings would have to take the decision to do so on the basis that it is expedient to do so for the benefit of the interests of the inhabitants of their area (Local Government Act 1972, s 222). Commercial undertakings (such as fisheries organisations) might conceivably be inclined to instigate these types of proceedings, but there would be the obvious costs. It is more difficult to see county councils or other such bodies limbering up individually to prosecute climate change claims. In any event, they have other (underused) powers, such as the use of traffic regulation orders to control environmental issues such as local air quality.

Further, US law has the benefit of the Restatement of the Law, which in the case of public nuisance, contains express provisions focusing both sides’ arguments. §821B describes public nuisance as an ‘unreasonable interference with a right to the common good’. This requires consideration as to whether a defendant’s conduct involves a ‘significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience’. It also brings into play the state of knowledge of a defendant: ‘whether … the actor knows or has reason to know, [that its conduct] has a significant effect upon the public right.’

The law of England and Wales is much more uncertain in its understanding as to what is and what is not a public nuisance. These laws stem historically from individual cases involving either particular highways or local issues of public health. This is despite judicial efforts to discover some unifying feature (see R v Rimmington [2006] 1 AC 459, [2006] 2 All ER 257). Public nuisance has convincingly been described as a ‘rag-bag of odds and ends’ (JR Spencer, ‘Public Nuisance – A Critical Examination’ (1989) CLJ 55). Any authority contemplating taking a leading role under the common law would have to expect a rather liberal interpretation from the judiciary, although it would surely not be impossible.

Causation

In dismissing a federal common law claim in City of Oakland and the People of the State of California v BP Plc (No.C 17-06012 WHA), the judge in question complained that ‘the scope of plaintiffs’ theory is breathtaking’, the claim being put on the basis of the extraction and promotion of fossil fuels to those who ultimately burn the fuel. The science was said not to have been in issue either by the court or the parties.

Since none of these cases has yet got to trial, no judge has had to grapple with detailed issues of causation. On the other hand, this issue has occupied the minds of academic lawyers above all others (see ‘The Law and Science of Climate Change Attribution’ available at the Sabin Centre website and the work of Erickson and Lazarus at Sei-International.org (2013)).

There is no real general dispute that climate change is linked to anthropogenic drivers, and there are plenty of studies which show that changes in the global climate system affect natural and human systems. When it comes to identifying the relative contributions of different emission sources, however, this is problematic. The IPCC reports themselves do not offer an approach to assist with source attribution.

In reality, there are value judgements to be made as to whether or not fossil fuel companies can or should be rendered liable on the basis of an extraction-led approach. While the existence of documentary material will provide hard evidence to assist with evaluation, the moral case is made that these companies have known about the consequences, and therefore have a degree of culpability. Making fossil fuel companies liable is also in line with the principle of producer responsibility.

Whether the legal test of ‘proximate cause’, as made in the US cases, will then be sufficient to accommodate such value judgments at common law is another level of complexity.

At the BIICL seminar there was a frank level of agreement that a proper function of climate change litigation is the exertion of moral pressure. If that is the case, then it might just be possible to see these issues being contested in the courts of England and Wales. But for the time being, the resultant complexities are no doubt the reason why the prominent Sabin centre slide was not the subject of any comment.

This article first appeared in the New Law Journal in February 2020 and is reproduced with the kind permission of the editor.

 
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