Friday, April 20, 2007

Lawyers leading the way on climate change?

People around the world are starting to sue each other over climate change. There have been some interesting cases and there are more in the pipeline: probably the biggest is California's action against car manufacturers.

There's an article by Richard Ackland in today's Sydney Morning Herald that's worth a read:

It stands to reason that if governments, or their pals in business, don't fix things up, lawyers will enter the void and sue the pants off anyone they can get their hands on. We see it all the time with litigation against cigarette manufacturers, the miners and purveyors of asbestos, and the pushers of fatty foodstuffs ("cheeseburger litigation")...

So it's only a matter of time before a global warming litigation industry builds up a decent head of steam. One would think the scientific evidence is sufficiently in to meet a civil standard of proof.

I've written before about climate change litigation, both here and at the now-dormant Australian environmental law blog, ozelaw.

I have two main thoughts on climate change litigation:

  • It's a lousy way to influence climate change policy or to do anything about climate change;

  • Climate change cases will become less common, not more common.

Litigation, if it's good for resolving any disputes, is good for resolving simple disputes between two parties. Climate change is a big, global, complicated problem, where everyone in the world is a potential plaintiff (we'll all be affected to some extent by climate change) and everyone is a potential defendant (we all contribute to it). Attributing blame and working out damages is fraught to say the least.

In my view, climate change litigation will not do much to prompt good policy. And I think there's a danger if sympathetic judges overreach and these cases are successful.

Take the California vs car-makers case, for example. California argues that it will incur costs due to global warming contributed to by people driving cars made by car-makers. I don't doubt that's true. But should car-makers compensate the Californian government for that?

I'm sure the Californian government itself has undertaken a lot of action and made a lot of decisions over the last century that has contributed to global warming. Should the government of Tuvalu, low-lying Pacific island that's greatly affected by climate change, sue the US for the industry support it has provided to car manufacturers in the past? Should it sue the State of California for not banning cars as soon as global warming hit everyone's radar? Would California then seek a contribution from Brazil or Indonesia or Australia for allowing forests to be felled?

This is a problem that requires global co-operative solutions and I don't think legal blame games are going to help.

Climate change cases have been a good way to get climate change on the agenda, because the media seems to love a good legal stoush: where big global dramas get played out in the microcosm of a courtroom, reduced to some bite sized legal arguments and decided neatly by a judge. (If you ever actually read these cases though, they tend to come down to something arid like whether section 35ZZ requires a consideration of all "relevant" factors or only all "pertinent" factors and whether there's a difference between "pertinent" and "relevant". The big issues of principle are notably absent). Anyway, there's no doubt that climate change is on the agenda now - I'm not sure what more these cases will achieve.

Still, I'll be watching with interest...

1 comment:

Nick Wilson said...


On the litigation point: it depends on what type of litigation you're considering. Of the usual suspects (tortious actions etc) - well, I'm sure America will set the tone, pace and volume. In Australia, I anticipate an increase in environmental administrative law proceedings (whether judicial review or merits appeals).

The handful of very recent decisions in Commonwealth and State jurisdictions (Wildlife Whitsunday, Hazelwood, Anvill Hill, and Xstrata decisions) suggest that approval authorities in Australia will increasingly consider the impacts of greenhouse gas emissions directly and indirectly (including cumulative downstream impacts) accruing from development. My view is that this will be done by incrementally building on the growing body of jurisprudence and placing increasing emphasis on the principles of ESD.

ESD is pivotal to the development of climate law in Australia. Through a small but growing body of jurisprudence, the principles of ESD are beginning to be applied by Australian courts, particularly the precautionary principle. ESD is also emerging as a decisive factor in influencing the outcome of appeals brought before the court, particularly in New South Wales.

My view is that climate change will be the trigger for the comprehensive implementation of ESD principles in Australian environmental planning law that may ultimately realise a paradigm shift from a world in which the development of the environment occurs without regard to environmental consequences to one where a culture of sustainability extends to government, private development interests, communities and individuals.

Incidentally, the very recent US Supreme Court decision in Massachusetts v EPA made a finding which, although it seemed insignificant at the time compared to some of the headline findings, may prove to be the most interesting of all: the science on climate change was unequivocally accepted as 'respected', viz., the IPCC 3rd Assessment Report. I think the ramifications of this are enormous.

Keep up your good work.