Climate change litigation: Public nuisance strategy latest to fail

By Doug Beazley July 13, 201813 July 2018

Climate change litigation: Public nuisance strategy latest to fail

 

You’ve got to give him credit — he did the homework.

Last March, U.S. District Court Judge William Alsup was hearing a lawsuit filed by the cities of San Francisco and Oakland against five major oil firms on a claim of “public nuisance”, seeking compensation for the damage done by human-driven climate change. Alsup ordered the defendants and plaintiffs to take part in a five-hour tutorial explaining the ins and outs of climate science. By the end of it, he was arguably more qualified to hold forth on the topic than any member of Congress.

From the plaintiffs’ point of view, it didn’t help. Last month, Alsup threw out the lawsuit, saying the question of whether private firms can be held accountable for the climate effects of consuming a legal product is one for politicians to answer, not judges.

Previous attempts to pursue climate change nuisance claims under American federal law had foundered at the U.S. Supreme Court, which ruled in 2011 that the federal common law of ‘nuisance’ had been displaced by the passage of the Clean Air Act in 1963. Activists in the U.S. and Canada hoping to use the courts to do what most governments seem reluctant to do — hold energy companies directly accountable for the consequences of carbon pollution — have to see Alsup’s decision as a setback (even if it’s a symbolic one in Canada’s case).

“I wasn’t surprised. I was disappointed, though,” says Jacqueline Wilson, an environmental lawyer with the Canadian Environmental Law Association. “It shouldn’t be the argument that because climate change is such a huge problem, because the damage is so widespread and significant, we can’t get compensation through the courts.

“But this case is just one precedent among many. This is still a legal question for courts to tackle. And I’d hope to see it appealed.”

Martin Olszynski, an associate professor of law at the University of Calgary, has written extensively on the idea of holding corporations directly accountable for the effects of carbon pollution. He says he thinks San Francisco and Oakland could have done more to press the argument that the defendants deliberately downplayed the science of climate change for decades, robbing consumers of the right to make informed choices about their use of fossil fuels.

“I think future cases are going to have to double down on that argument as an example of misfeasance and bad behaviour,” he says. “Once the risk becomes apparent, you have an obligation to acknowledge that risk. In basic tort terms it’s a ‘duty to warn’.”

Still, the California case points directly at the key challenge facing plaintiffs seeking damages from oil and gas firms as compensation for the effects of a warming planet: courts are reluctant to set policy. And climate change is a policy problem. Lawsuits are always going to be a tough sell — unless governments themselves change the ground rules.

Olszynski thinks he knows how that could happen. In 1997, British Columbia passed the Tobacco Damages and Health Care Costs Recovery Act. The law created a “new civil cause of action,” allowing the government to directly recoup from tobacco companies healthcare costs associated with smoking-related disease.

The law did a few things that would be relevant to a climate change lawsuit. It allowed the provinces to sue cigarette makers — no matter where they were based — for breaching their “statutory duty” to British Columbians. It allowed the province to prove causation on an aggregate basis through the use of statistical, epidemiological and sociological evidence. It based an individual tobacco firm’s liability on its market share. And it was retroactive.

Imperial Tobacco challenged the law. In 2005, the Supreme Court dismissed all of its arguments, including the key one of extraterritoriality: the court ruled that it didn’t matter that the law might “capture, to some extent, activities occurring outside of British Columbia” since “the recovery permitted by the action is in relation to expenditures by the government of British Columbia for the health care of British Columbians.” B.C.’s law has since been adopted by almost every other Canadian province.

Could the same legislative template be applied to climate change? Could Canadian governments use it to force fossil fuel companies to pay the public costs of climate change — everything from seawalls and irrigation systems to flood control and hurricane recovery?

Olszynski thinks it’s worth a try. For one thing, it would allow plaintiffs to get around the hurdle of proving that a particular harm was directly “caused” by the defendant. That’s tough to do when you’re talking about the effect of one company’s products on something as complex as Earth’s climate — what environmental law academic Jacqueline Peel calls the “drop in the ocean” problem.

It wouldn’t be easy, though. Plaintiffs might have a hard time proving sufficient proximity between the corporations being sued and the public at large to establish a ‘duty of care.’ The range of corporations implicated in climate change is vast, covering everything from oil and gas firms to gasoline retailers, energy utilities and car makers. After decades of health warnings and social pressures, tobacco use is no longer ubiquitous — while hydrocarbons fuel run the global economy. Defendants in climate change lawsuits tend to have deep pockets and a good deal of influence over provincial governments — especially in provinces where oil and gas and auto manufacturing are major employers.

So Olszynski says he doesn’t expect to see provinces lining up to pass their own versions of a Climate Change Damages and Cost Recovery Act — not until the costs of coping with a warming planet start to outweigh the costs of taking on the energy sector.

“Governments and individuals are going to have to experience the effects of climate change in a far more direct way before we start looking around for tools like this to address the problem,” he says. “Look at how long it took for the knowledge that smoking causes cancer to turn into a legal tool to hold tobacco companies accountable.

“In five or ten years’ time, when parts of Vancouver are under water because of rising seas, I’m predicting the legal analysis is going to change somewhat.”

Doug Beazley is a regular contributor based in Ottawa.

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