Originally published in ReNew Canada, September/October 2008.
In northern Canada it is well known that melting permafrost is leading roads and air landing strips to buckle. Research and increased knowledge has led to a general acceptance by scientists and environmental monitors that Arctic sea ice is shrinking, subjecting coastal communities to rising sea levels and battering storms, with the prospect of floods and dam overflows.
A parallel development is that concern for climate change's harmful physical effects is increasingly preoccupying governments, which have the power to implement legislation to deal with it, and the courts, which have the power to apply and develop the common law in this context.
Climate change may be to blame for buckling roads and flooding, but failure to adapt to a changing climate could soon have its own set of consequences. A variety of legal actions charging different types of actors for alleged actions or omissions have occurred (or are now underway)—all related in some way to greenhouse gas emissions. Our law, therefore, is evolving as our knowledge of climate change and its effects evolve.
Very little attention has been paid to potential legal liability for failing to adapt infrastructure to climate change-related risk. Amendments to laws, building codes and standards that would take into account the potential impact of climate change on infrastructure assets are still some time away.
But there is a real risk to infrastructure stakeholders. The legal framework in Canada currently permits a court, in the right circumstances, to find certain infrastructure stakeholders legally liable for personal injury and property damage suffered by third parties as a result of climate change effects. There are three bases: nuisance, negligence (including occupier's liability) and strict liability.
The law of nuisance is the basis of many American claims connected to climate change. In these cases, an owner or occupier of land uses the land in a way that causes damage to another person's land or interferes with the use of another person's land; or materially interferes with the rights of the public or a section of the public. The occupier may be liable to pay damages to the people whose rights were interfered with. An owner of the land who neither occupies nor controls the land could also be liable, as could an independent contractor who causes a nuisance.
In Canada, owners, occupiers and contractors could be liable where, for example, permafrost degradation causes a public bridge to collapse or where severe weather (such as a heavy rain storm) causes a dam to overflow resulting in flooding and damage.
On the basis of Canadian case law, it's easy to imagine circumstances in which liability could be extended to owners, design professionals, contractors and governmental authorities who negligently failed to adapt infrastructure to climate change-related risk or to warn of such risk.
Liability might even arise where an infrastructure stakeholder complies with the minimum standards set out in laws, codes and standards, but these standards fall below the standards of "a reasonable person" (in the legal sense). For example, an owner, design professional, contractor and governmental authority might be liable if a third party was injured because a bridge or hospital constructed on permafrost collapsed. Even if the bridge or hospital was constructed according to applicable laws and building codes, the design and construction methods might not have been modified to take into account the degradation of the permafrost—especially if other owners, design professionals and contractors were making the necessary modifications in those circumstances.
Strict liability affects a land owner or occupier who uses his or her land for a non-natural, unusual, exceptional or special purpose, causing something dangerous to escape from the land and injure either another person or their property. If these elements of strict liability exist, the land owner or occupier will be liable even if there was no negligence or intention to cause damage.
In the context of climate change, this means that lack of knowledge of, or any failure to take into account, a risk related to climate change is irrelevant. What is relevant is only that someone damage resulting from something escaping from neighbouring lands.
Strict liability is not commonly applied by Canadian courts and there is no comprehensive list of activities considered a non-natural use of land. However, recurring themes in the Canadian jurisprudence have shown that liability might arise where, for example, permafrost degradation causes toxic mine tailings to seep from a tailings pond into the land around the containment structure or causes a gas pipeline to shift and begin to leak, causing gas to seep into the land below and adjoining the pipeline. Here, the company that owns and operates the mine or facility may be liable.
Protecting Against Liability
To minimize these risks, governmental entities, design professionals, contractors, owners and occupiers should ask themselves whether climate change events will affect the project at any point in its life cycle. If the answer is yes, they should consider whether design and construction methods can be adapted to protect against extreme weather, and how other projects in similar conditions have been built.
While it may not be appropriate in all instances to adapt infrastructure to climate change risks—these risks will have to be balanced against other factors such as competitive bid pressures, project marketability and increased project costs—those who provide permits and conduct inspections should remember that, in certain circumstances, they have a duty to warn of climate change risk and adaptation methods.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.