Could companies be liable to the public for the harm caused by their emissions?
Could companies be liable to the public for the harm caused by their emissions?
Tuesday 10 March, 2020
The High Court says that it’s arguable. In a recent decision, it dismissed the possibility that corporate emitters were committing a public nuisance or were liable for negligence but refused to strike out an argument that there was a new duty relating to climate change emissions.[1]
Background
The plaintiff is the climate change spokesperson for the Iwi Chairs’ Forum and has customary interests in lands and other resources situated in or around Mahinepua in Northland on which are situated sites of customary, cultural, historical, nutritional and spiritual significance to him. The plaintiff’s claim stated that climate change would irrevocably damage his family’s land at Mahinepua, impact coastal and freshwater fisheries that he customarily uses, and cause adverse health effects to which he and Māori communities are particularly vulnerable.
The plaintiff filed proceedings against Fonterra, Genesis Energy, New Zealand Steel, Z Energy, NZ Refining, BT Mining and a company operating a large number of dairy farms in the South Island.[2] The defendants are all involved in industries which emit greenhouse gases or supply products which emit greenhouse gases when burned. The plaintiff alleged three causes of action, all in tort: public nuisance, negligence, and breach of an ‘inchoate’ duty.
The defendants’ response
The defendants admitted that they were engaged in greenhouse gas-emitting activities, or the supply of greenhouse gas-emitting products, and generally admitted that climate change was occurring as result of global greenhouse gases causing warming of the earth’s surface and atmosphere. The defendants accepted that the reports released by Intergovernmental Panel on Climate Change detail current scientific consensus as to “the nature, effects and mitigation requirements of climate change on a global scale.” However, each defendant declared that their activities only produced a very small amount of greenhouse gases, insufficient to cause the harm claimed by Mr Smith. The defendants applied to strike out the plaintiff’s claims on the basis that none of them could succeed.
Public nuisance
The Court accepted that there was no chance of the plaintiff establishing that the defendants were committing a public nuisance; they were acting in accordance with the relevant statutory and regulatory requirements, so there was no unlawful act, as required for a claim in public nuisance.
Negligence
The Court also accepted that the plaintiff could not successfully establish a claim in negligence against the defendants, as the plaintiff could not prove that the defendants’ actions would cause the alleged harm nor would be possible to determine the extent to which each individual defendant’s emissions would contribute to the effects of climate change.
The Court also considered that imposing a duty of care would be inconsistent with the comprehensive legal framework that Parliament had already put in place to regulate emissions.
‘Inchoate’ duty
The plaintiff’s final argument was that there was an ‘inchoate’ duty, which is a new, emerging, and undefined duty, that the Court should recognise which makes emitters liable for their emissions. The Court thought that this argument was unlikely to succeed, particularly in light of the policy reasons against imposing a duty of care for negligence but refused to strike it out, as it was possible that it could result in new developments in tort law. The Court considered that the cause of action raised issues which needed to be considered with the benefit of a trial.
What’s next for climate change litigation in New Zealand?
The plaintiff’s claim that there is a new duty around climate change emissions will now go to a hearing. Given what is at stake, it is highly likely that we will see more climate change-related litigation in New Zealand, although the limited success in this case means that it may be directed against the Government, or public entities, in the first instance.
Climate change activists are likely to be encouraged by campaigners in the UK who succeeded in having the UK Government’s decision to approve construction of a third runway at Heathrow overturned by the Court of Appeal on the basis that the decision failed to adequately take into account the Government’s commitments to tackle climate change. Governments around the world who have made climate change commitments are likely to be following those events with interest.
If you would like to know more about recent climate change developments in New Zealand, you can read our articles on changes to the Climate Change Response Act and the Emissions Trading scheme below.
Will climate-related financial disclosures be compulsory for NZ businesses? | Climate Change Response (Zero Carbon) Amendment Bill passed | Climate Change Response (Emissions Trading Reform) Amendment Bill | Agricultural Emissions: Farm plans and measuring emissions
If you have any questions or concerns about your business, please get in touch with our experts below.
