Climate change litigation in the UK: Its feasibility and prospects

Climate Change Liability

Volumn , Issue , 2011, Pages 165-188

  Kaminskaite Salters, Giedre ^a  

^a Department for International Development ^*  (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84863475734     PISSN: None     EISSN: None     Source Type: Book    
DOI: None     Document Type: Chapter

References (77)

1. R.Verheyen, Climate Change and International Law. Prevention, Duties and State Responsibility, Martinus Nijhoff Publishers, 2005.
2. J. Smith and D. Shearman, Climate Change Litigation: Analysing the law, scientific evidence and impacts on the environment, health and property, Presidian Legal Publications, 2006.
3. D.A. Grossman, Warming up to a Not-So-Radical idea: Tort-Based Climate Change Litigation, 28 Colum.J.Envtl.L. 2003.
4. In this chapter, references to the laws and /or the Courts of England or the UK are used interchangeably to denote the legal and judicial system of England and Wales.
5. The key evidence and analysis of climate change and its global impacts are contained in the Assessment Reports (and, in particular, the Third Assessment Report (2001) and Fourth Assessment Report (2007)) issued by the Intergovernmental Panel for Climate Change. See, for example, IPCC, Summary for Policymakers. In: S. Solomon et al. (eds.), Climate Change 2007: The Physical Science Basis. Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, Cambridge University Press, 2007.
6. UK Climate Impacts Programme (UKCIP), Climate Change Scenarios for the United Kingdom, the UKCIP02 Scientific Report, DEFRA, April 2002, p.iv. This and other UKCIP reports are consistent with the methodologies and findings of IPCC reports.
7. In this regard, effects on human health and agriculture have not been covered here, as these are unlikely to be significant issues in the UK in the short to medium term.
8. It should be noted here that estimating future impacts of climate change is a necessarily approximative exercise, as the complexity of climate models; the unpredictability of the volumes of future greenhouse gas emissions; and the lack of clarity as regards the so-called feedback effects that would occur if global temperatures were to rise above 5°C combine to undermine the accuracy of future projections (see F. Ackerman and E. Stanton, Climate Change-the Costs of Inaction, Global Development and Environment Institute, Tufts University, Report to the Friends of the Earth England, Wales and Northern Ireland, October 11, 2006.
9. UKCIP, Climate Change Scenarios for the United Kingdom, the UKCIP02 Scientific Report, DEFRA, April 2002, pp. 53, 71, 80. See also Marine Climate Change Impacts Partnership (MCCIP), Annual Report Card 2007-2008 (available at www.mccip.org.uk/arc) for a detailed account of the expected impacts of rising sea levels in the UK.
10. Association of British Insurers, Financial Risks of Climate Change, Summary Report, June 2005.
11. Allianz Group and WWF, Climate Change and the Financial Sector: an Agenda for Action, June 2005, p. 27.
12. EEA, Impacts of Europe's Changing Climate: An Indicator-Based Assessment, Office for Official Publications of the European Communities, 2004, pp. 24-25.
13. UKCIP, MONARCH2-Modelling Natural Resource Responses to Climate Change: a Local Approach, University of Oxford, 2006, p. 8.
14. IPCC, Summary for Policymakers. In: S. Solomon et al. (eds.), Climate Change 2007: The Physical Science Basis. Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, Cambridge University Press, 2007, p. 8.
15. This is not to say, however, that the agreement with the IPCC's conclusions is universal across the scientific community; an active (although comparably small) group of scientists have voiced concerns over some of the methodologies and findings contained in the IPCC reports. See S. McIntyre and R. McKitrick, Hockey Sticks, Principal Components, and Spurious Significance, Geophysical Research Letters 32, 2005; also see D. Holland, Bias and Concealment in the IPCC Process: The 'Hockey-Stick' Affair and Its Implications, Energy and Environment, vol. 18, no.7-8, 2007; I. Castles and P.D. Henderson, The IPCC Emissions Scenarios: an Economic-Statistical Critique, Energy and Environment, 14, no. 2-3, 2003. For a general overview, see J.P. Bluemle, Global Warming: A Geological Perspective, 29 Ariz.Geology, Winter 1999, and J.P. Bluemle et al., Rate and Magnitude of Past Global Climate Changes, 6 Envtl. Geosciences, June 1999, 63-75.
16. See T. Relis, Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs and Gendered Parties, Cambridge University Press, 2009, for a detailed overview of the functions of litigation.
17. M. Kerr, Tort Based Climate Change Litigation in Australia, Climate Change Litigation Forum materials, London, March 2002.
18. W.K. Viscusi, The Regulation-Litigation Interaction, AEI-Brookings Joint Center for Regulatory Studies Working Paper 01-13, October 2001, p. 5.
19. Ibid., p. 5.
20. Ibid., p. 20.
21. Some of these instruments are briefly discussed below.
22. J. Smith and D. Shearman, above, note 2, p. 12.
23. This is to be contrasted with the US, where pioneering cases such as Connecticut v American Electric Power et al., No. 05-5104cv, 05-5119-cv; State of California v General Motors et al., No. 3:06-cv-05755-MJJ and Native Village of Kivalina v ExxonMobil Corp. et al., CV 08-1138 (N.D.Cal. filed Feb. 26, 2008) have been filed and are in different stages of being defended.
24. Department for Constitutional Affairs, Legal Aid: the Way Ahead, The Stationery Office, November 2006.
25. A. Barton, Conditional Fees: Privatising Access to Justice, Litigation Annual Review, January 2002; see: Society of Advanced Legal Studies, The Ethics of Conditional Fee Arrangements, London 2001; N. Andrews, English Civil Procedure: Three Aspects of the Long Revolution, Centre for Comparative Law, Rome, 2001.
26. C. Hodges, Multi Party-Actions, Oxford University Press, 2001.
27. N. Fagan and M. Gottridge, Defending Class and Group Actions: the Key Issues, Practical Law, September 2004.
28. F. Furedi, The Compensation Culture, presentation transcripts from Litigating Britain: The Causes and Consequences of Litigious Activity, seminar hosted by Global Futures' Litigious Society Project, 13 May 1999.
29. The Greenhouse Gas Emissions Trading Scheme Regulations 2005. D. Freestone and C. Streck, Legal Aspects of Implementing the Kyoto Protocol Mechanisms, Oxford University Press, 2005 and M. Faure and M. Peeters (eds.), Climate Change and European Emissions Trading, Edward Elgar, Cheltenham, UK and Northampton, MA, USA, 2008 for a detailed analysis of the EU ETS.
30. M. Bramley and A. Gouge, The Civil Justice Reforms One Year On, Butterworths, 2002.
31. In May 2009, the Commission issued a stakeholder consultation on a number of options for a more effective collective redress system (http://ec.europa.eu/consumers/redress_cons/collective_redress_en.htm).
32. A.M. Dougdale et al. (eds.), Clerk & Lindsell on Torts, Sweet & Maxwell, 2006, p. 257.
33. A. Geddes, Locus Standi and EEC Environmental Measures, 4(1) Journal of Environmental Law, 1992, pp. 29-39, at 30.
34. Similarly, in the US context, Grossman puts forward state governments as the more likely claimants in climate change litigation law suits. See D.A. Grossman, Warming up to a Not-So-Radical Idea: Tort-Based Climate Change Litigation, 28 Colum.J.Envtl.L., 2003, p. 25.
35. Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters.
36. See J. Hill, International Commercial Disputes in English Courts, Hart Publishing, 2005.
37. [2000] All ER 268.
38. J. Smith and D. Shearman, Climate Change Litigation: Analysing the law, scientific evidence and impacts on the environment, health and property, Presidian Legal Publications, 2006, p. 17.
39. Please see Chapter 6 for a detailed discussion of causation issues.
40. For a detailed discussion of types and recoverability of loss under English law, see D.K. Allen, Damages in Tort, Sweet & Maxwell, 2000.
41. A.M. Dougdale, et al. (eds.), above, note 32.
42. Per Lord Blackburn, Livingstone v Rawyards Coal Co (1880) 5 App.Cas. 25, at 39.
43. F. Ackerman and E. Stanton, Climate Change-the Costs of Inaction, Global Development and Environment Institute, Tufts University, Report to the Friends of the Earth England, Wales and Northern Ireland, October 11, 2006, p. 3. Also see M. Allen, Liability for Climate Change, Nature, Vol. 421, February 2003.
44. Directive 2004/35/EC of the European Parliament and of the Council on environmental liability with regard to the prevention and remedying of environmental damage.
45. For a detailed discussion on the Environmental Liability Directive, see C. Blatch, Environmental Liability Directive-Remediation of Damage, ELM 16 [2004] 5; V. Fogleman, The Environmental Liability Directive, Environmental Liability, Vol. 12 (3), July 2004.
46. Article 4(5) of the Directive.
47. M.G. Faure and A. Nollkaemper, International Liability as an Instrument to Prevent and Compensate for Climate Change, SELJ Volume 26A and SJIL Volume 43A, Number 1, June 2007, p. 149.
48. Per Alderson J, Blyth v Birmingham Waterworks Company (1856), 11 Exch. 781 at 784.
49. A.M. Dougdale et al. (eds.), above, note 32, p. 381.
50. M.Kerr, Tort Based Climate Change Litigation in Australia, Discussion paper prepared for the Climate Change Litigation Forum, London, March 2002 (Friends of the Earth).
51. J. Deane, Sutherland Shire Council v Heyman (1985) 60 A.L.R. 1 at 55-56.
52. See W.V.H. Rogers, Keeping the Floodgates Shut, in J. Spier (ed.), The Limits of Liability, Kluwer Law International, 1996, pp. 75-92.
53. Under English law, the defendant will be regarded as being in breach of duty of care if his conduct falls below the standard required by the law, which is that of a reasonable and prudent person (Blyth v Birmingham Waterworks Company (1856), 11 Exch.781 at 784).
54. P. Stookes, A Practical Approach to Environmental Law, Oxford University Press, 2005.
55. Consumer Protection Act 1987 is now a more important head of recovery than the traditional negligence-based product liability; hence it is surveyed here, despite the overall focus of the chapter on tortious liability. Although overshadowed by it, due to certain limitations of the statutory scheme negligence-based product liability remains a valid cause of action and is also briefly touched upon in this section.
56. A.M. Dougdale et al. (eds.), above, note 32, p. 719.
57. Section 3 of the Consumer Protection Act 1987.
58. The appropriateness or otherwise of the risk-utility analysis in the context of product liability was considered (but not decided) in A v National Blood Authority [2001] 3 All ER 289.
59. W.V.H. Rogers, Winfield & Jolowitz on Tort, Sweet & Maxwell, 2006, p. 346.
60. (1866) LR 1 Ex 265.
61. B. Pontin points out that 'nuisance is an agrarian tort which has altered little to accommodate modern environmental risks'. B. Pontin, Beyond Nuisance? Enforcing the Right to a Healthy Environment within the Framework of the Human Rights Act 1998, ELM 13 [2001] 6.
62. J. Bates et al., Liability for Environmental Harm, Reed Elsevier, 2004, para. 2.72.
63. A.M. Dougdale et al. (eds.), above, note 32, p. 1163.
64. Most recently, the Kivalina complaint has alleged that certain members of the oil and electric utility industries contribute to the 'global warming public nuisance' by emitting large quantities of greenhouse gases (Native Village of Kivalina v ExxonMobil Corp et al., CV 08-1138 (N.D.Cal. filed Feb. 26, 2008).
65. A.M. Dougdale et al. (eds.), above, note 32, p. 1199.
66. Marcic v Thames Water Utilities [2003] UKHL 66.
67. J. Lowry and R. Edmunds (eds.), Environmental Protection and the Common Law, Hart Publishing, 2000, p. 77.
68. M. Faure and A. Nollkaemper, International Liability as an Instrument to Prevent and Compensate for Climate Change, SELJ Volume 26A and SJIL Volume 43A, Number 1, June 2007, p. 157.
69. The 'but for' test asks: 'would the damage of which the claimant complains have occurred "but for" the negligence (or other wrong-doing) of the defendant?' (Rich v Pierpoint (1862) 3 F&F 35).
70. See, for example, R. Warren et al., Understanding the Regional Impacts of Climate Change: Research Report Prepared for the Stern Review of the Economics of Climate Change, Tyndall Centre for Climate Change Research, Working Paper 90, September 2006; M. Ruth et al., Regional Climate Change and Variability: Impacts and Responses, Edward Elgar, Cheltenham, UK and Northampton, MA, USA, 2006; D. Crichton, Climate Change and Its Effects on Small Businesses in the UK, Axa Insurance, 2006.
71. M. Allen, Liability for Climate Change, 421 Nature, 27 February 2003, p. 891.
72. [1956] AC 613.
73. [1972] 3 All ER 1008.
74. [2002] UKHL22.
75. The Fairchild decision importantly replaced the requirement of 'material contribution' by the defendant to the claimant's harm with the arguably easier requirement of a 'material increase in risk' of such harm occurring. Regardless of whether the applicability of the Fairchild decision is limited to mesothelioma cases or not, it is clear that it would be extremely difficult if not impossible to meet the 'material increase in risk' in the context of climate litigation where even several joint tortfeasors' emissions are unlikely to cross the materiality threshold.
76. There was an attempt to restrict the application of Fairchild to mesothelioma cases only-see Lord Hoffmann's dictum, for example.
77. D.A. Grossman, Warming up to a Not-So-Radical idea: Tort-Based Climate Change Litigation, 28 Colum.J.Envtl.L. 2003, p. 32. On proportionate liability generally and market share liability specifically, see A. Porat and A. Stein, Tort Liability under Uncertainty, Oxford University Press, 2001.