Courts should become “guardians of the environment” and accept civil proceedings when defendants are sued for contributing to climate change, according to a group of lawyers from the University of Otago.
In a newly published article in the Oxford Journal of Environmental Law, attorneys argue that a recent lawsuit against Fonterra and several other companies for their carbon emissions could pave the way for a new “environmental tort.”
The courts already accept multiple acts of tort – a case based on an act or omission that causes harm – such as negligence, abuse, and defamation.
The courts have been open to considering new measures, and a growing acceptance that people have an obligation to care for the environment should provide an opportunity to legally challenge polluters through civil actions, the article says.
“It would not be all environmental damage that gives rise to liability. The courts would have to consider the nature of the environmental damage that is involved and the circumstances under which a defendant could be held responsible.
“Our claim is simply that environmental damage – just like personal injury, property damage, economic loss, or impairment of the enjoyment of the countryside – can constitute a basis for liability.”
The article was written by Prof. Ceri Warnock, Associate Prof. Barry Allan, Dr. Maria Hook and Mihiata Pirini.
Prof. Warnock said the authors wanted to start a debate within the legal profession about environmental liability and a modernized approach to litigation.
“We’re trying to encourage discussion of all these types of topics with an international audience, hence the publication in the Journal of Environmental Law.
“Our goal was to get people to take the proposal seriously and discuss the best way forward because there is no doubt that litigation has a role to play. It’s just the best path they can take . “
The idea was inspired by two cases filed last year by Mike Smith, spokesperson for the Iwi Chairs’ Forum on Climate Change: one against the government for violating its obligations to Maori for inaction on climate change, and one against multiple companies .
The case against the government has yet to be heard, but the High Court denied a motion to entirely remove the case that Mr Smith had moved against Fonterra and others, for a court explanation that they will cease emissions by 2030 .
Judge Wylie said he was unwilling to rule out the possibility of the law recognizing a new tort: both sides have appealed the decision.
Scientists accepted that there were problems with the idea of harming the environment, including the scope of a duty of care, the breadth of liability, and the possibility of sparking an avalanche of litigation.
“But if a defendant’s conduct has the potential to literally harm the world, perhaps it is time to recognize that there are now circumstances in which those conflicting concerns do not serve us well.”
Prof. Warnock said she and her co-authors are considering holding a symposium to explore the idea further.