Climate Change Litigation. Analysing the Law, Scientific Evidence and Impacts on the Environment, Health and Property

Climate Change Litigation. Analysing the Law, Scientific Evidence and Impacts on the Environment, Health and Property

by Joseph Smith and David Shearman

This text analyses the grounds of potential legal liability of companies and governments for their roles in global warming and concludes that law suits are likely to continue and have high prospects of success in the near future. 

The potential grounds of liability are now quite clear and the scientific evidence is at a point where, in many cases, it is sufficient to meet legal requirements regarding civil standards of proof. This is certainly an issue that companies need to be concerned about, particularly in view of recent developments in the US.
Recently, California filed a law suit in the US District Court against six major car manufacturers seeking monetary damages for their contributions to global warming and the harm it is causing California’s environment, economy and public health.  In March this year, the US Supreme Court allowed an appeal to proceed against the US Environmental Protection Agency regarding an alleged failure to regulate greenhouse gas emissions, setting up what could be one of the Court’s most important environmental decisions to date.

 In Australia on 27.11.2006 a landmark decision was handed down by Justice Nicola pain, Chief Justice of the NSW land and Environment Court. The details are given in an article on this web page
The grounds of potential liability identified by the book are broad.  Major grounds for action against companies include negligence, product liability, nuisance, breach of directors’ duties and liability under environmental pollution statutes.
For governments, actions are likely to be based in administrative laws for failing to fulfil statutory obligations to protect the environment.  The risk of liability for breaches of international environmental law obligations is also a real possibility, particularly as small island states become increasingly affected by rising sea levels and look for compensation and somewhere to re-locate their citizens as environmental refugees.  In 2002, we saw the Pacific island of Tuvalu threaten to file a law suit against Australia and the US on these grounds.
On the other side of the equation, global warming sceptics have some legitimate legal arguments that pose major obstacles to plaintiffs; for example, in relation to establishing specific regional harms, as opposed to general harms on a global scale.  
The research was funded by the Australian National Health and Medical Research Council.  This is a reflection of the major implications that global warming poses for public health.

ClimateChangeLitigationLeaflet.pdf296.3 KB