Claimants are testing the waters with civil claims and novel duties

Claims based in civil law are an additional source of potential liability. Whilst the extent of this liability remains uncertain, civil claims are progressing in foreign courts, and an action just filed in the Federal Court of Australia against the Federal Minister for Environment suggests that Australian litigants are alive to this possibility.

On 8 September 2020 a group of school students, representing all Australian children born before September 2020, brought proceedings against the Federal Minister for the Environment.[30] The claimants are seeking an injunction preventing the Minister from approving the Vickery Extension Project in northern New South Wales, on the basis that the Minister has a duty to exercise her approval powers under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) with reasonable care to not cause the children harm. According to the claimants, approval of the Vickery Extension Project in northern New South Wales is likely to cause significant climate change-related harm due to the increase in carbon dioxide emissions that will result from extracting, exporting and burning the coal from the project.

The claimants seek to persuade the Court that the Minister owes them a duty of care. The claimants are relying on arguments that the Minister knew or should have known of the rates of increase in carbon dioxide concentration and surface temperatures, that the claimants are vulnerable to a known foreseeable risk of serious harm that the Minister can control but they cannot, and that the Minister has special responsibilities to the claimants by reason of her position in the Commonwealth Executive. Such a duty has not been recognised before and is likely to be challenging for the claimants to establish, especially having regard to the level of specificity with which the Federal Minister's duties and powers are prescribed under the EPBC Act. The issue of causation is also likely to present a considerable hurdle for the claimants, notwithstanding that recent decisions suggest that courts on the whole may be more willing than previously to draw the necessary causal link.

Civil suits have been brought overseas, including a number in the US. For example, in 2017 the County of San Mateo, the City of Imperial Beach and the County of Marin filed separate but nearly identical complaints in the California courts against 30 other fossil fuel companies, raising claims of strict liability and negligence for failing to warn, strict liability for a design defect, negligence, trespass, private and public nuisance. The case has been remanded from the federal court to the state court.[31] Similarly, in City of Oakland v. BP p.l.c, the Ninth Circuit held on appeal that a state law claim for public nuisance does not arise under federal law. [32] The effect of the Ninth Circuit's decisions is also that Pacific Coast Federation of Fishermen's Associations, Inc v Chevron Corp & Ors, in which the Pacific Coast Federation of Fishermen's Associations is claiming damages arising out of nuisance, failure to warn and negligence, can also proceed in the US state courts.[33]

In New Zealand, Climate Change Iwi Group spokesperson Mike Smith is currently suing seven New Zealand companies, each of which is either involved in an industry which releases greenhouse gases into the atmosphere, or supplied products which release greenhouse gases when burned. Smith's claim is brought in tort, and argues that those companies should be held responsible for adverse effects of climate change.

The statement of claim initially raised three causes of action – public nuisance, negligence and breach of an inchoate duties. Injunctions were sought requiring each defendant to produce or cause net-zero emissions from its activities by 2030. In a decision published on 6 March 2020, the New Zealand High Court held that the public nuisance and negligence claims should be struck out.[34] However, Justice Wylie did not strike out the novel tortious duty which would make corporates responsible to the public for their emissions. According to Justice Wylie, it might be that the special damage rule in public nuisance could be modified, and/or that climate change science would lead to an increased ability to model the possible effects of emissions. These were issues which could only properly be explored at trial. The inchoate duty claim is yet to proceed to full hearing.

European action led by German courts

Another example of climate litigation based in civil law is the proceeding currently pending in the German courts against Germany's largest electricity producer, RWE AG. In November 2015, Peruvian farmer Saúl Luciano Lliuya brought a claim against RWE seeking damages, as well as declaratory and injunctive relief from the German Court. Lliuya alleged that RWE bore a level of responsibility for the melting of mountain glaciers near his home town of Huaraz, because RWE knowingly contributed to climate change by emitting substantial volumes of greenhouse gases. The claim was dismissed by the District Court of Essen, holding that it was not possible to identify:

'...a linear chain of causation from one particular source of emission' to the particular damage alleged. However, on 30 November 2017, the Higher Regional Court of Hamm recognised that the complaint was well-pled and admissible. According to GermanWatch – the NGO providing financial backing for Lliuya's legal case – the court has made a request to the State of Peru for permission to inspect the area the subject of the Lliuya's claim and is 'awaiting response from the competent authorities, which could (sic.) take some time to process'.[35]

The decision of the Higher Regional Court in Lliuya is a significant development in climate litigation, and has been hailed by climate campaigners as a 'historic breakthrough'. That said, the history of the Lliuya claim in the lower District Court proceeding, and the Smith claim in New Zealand, illustrate some of the difficulties litigants encounter in attempting to hear and determine climate change claims according to recognised causes of action.

Closer to home: a new bill raises new questions

In Australia, the Liability for Climate Change Damage (Make the Polluters Pay) Bill 2020, introduced by Adam Bandt on 24 February 2020, attempts to remove these types of barriers by replacing common law causes of action with a statutory cause of action for climate-related damage.[36] The Bill provides for an Act that would provide a right for persons who have suffered climate change damage to recover damages from major emitters of greenhouse gases, including fossil fuel producers and the owners or operators of coal-fired power stations. The Bill is of particular note for its proposed retrospective operation: major emitters of greenhouse gases would be liable for climate change damage if their emissions were greater than 1 million tonnes in any 12-month period on or after 1 September 1990 (which was when the first Intergovernmental Panel on Climate Change report was released).

The bill may be unlikely to be passed, but the bill, as well as the New Zealand and German cases, gives rise to an interesting question of policy: assuming a plaintiff can succeed in making out a civil claim (or its statutory analogue), to what extent should emitters face retrospective liability?