United States: Ten Inconvenient Truths About Climate Change Tort Claims

In the last decade a series of tort claims have been brought in the US against oil, gas and coal producers, power companies and car manufacturers seeking compensation for loss and damage said to be the result of climate change caused by GHG (GreenHouse Gas) emissions. To date, none has succeeded. The imposition of private law liability for climate change "has been seen as a kind of holy grail by environmental campaigners and as an unacceptable disaster scenario by sectors of industry which might have to bear the cost" (Lord et al. Climate Change Liability: Transnational Law and Practice (2012)).

In January 2018 it was widely reported that New York City has filed a lawsuit against five major oil companies, claiming for the costs of modifying city infrastructure (coastal defences, storm drains, air conditioning in public buildings etc.) to cope with rising sea levels, extreme weather events and increased summer heat attributed to global warming. Coastal cities in California began similar claims in 2017.

No such claims have been brought in England, but the question of whether such a claim could succeed in England under English law has been the subject of books, book chapters, journal articles and academic conferences.

The present article considers what the approach of an English court would be if factual allegations analogous to those in the New York case were to be proved in English litigation: i.e. that sometime between 1968 and 1988 a fossil fuel producer knew / ought reasonably to have known that its "fossil fuel products were causing a buildup of GHG pollution in the atmosphere that would cause dangerous global warming" and continued thereafter to produce fossil fuels, to advertise them and to publish or procure the publication of material which over-emphasised the uncertainties of climate science. This should not, of course, be taken to imply an endorsement of any aspect of New York's factual case. This article also does not discuss the legal merits of the New York or California cases, as these are not subject to English law. Even with respect to English law, climate change tort claims are an enormous subject touching on many aspects of the law of torts, and it is not possible to deal with every issue in an article such as this.

Ten 'inconvenient truths' about climate change tort claims appear in numbered text boxes throughout the discussion below. This article concludes that, even if the alleged facts were to be proven in English litigation, the claim would have little chance of succeeding, including for reasons which appear largely to have been overlooked by other authors, particularly as regards how damages would be calculated. It is submitted that claimants would be required to account for benefits they have themselves enjoyed through the continued use of fossil fuels beyond the date that they say fossil fuels should have been abandoned, that these benefits are likely to be very substantial, and may even cancel out the losses claimed.

New York's complaint

New York alleges:

"By the late 1970s or early 1980s, if not earlier, Defendants knew that averting dangerous climate change required reducing the use of their fossil fuel products."

"For decades, Defendants have known that their fossil fuel products pose risks of "severe" and even "catastrophic" impacts on the global climate through the work and warnings of their own scientists and/or through their trade association, the API. Defendants, large and sophisticated companies devoted to researching significant issues relevant to fossil fuels, also were aware of significant scientific reports on climate change science and impacts at the time they were issued."

"The majority of emissions resulting from fossil fuels produced and marketed by the fossil fuel industry have occurred since 1988, by which time the Defendants knew that their fossil fuel products were causing a buildup of GHG [GreenHouse Gas]pollution in the atmosphere that would cause dangerous global warming."

New York complains that, despite having this "early knowledge" (as New York puts it) the Defendants did three things:

  • "each Defendant decided to continue its conduct and commit itself to massive fossil fuel production" "Defendants continue to produce, market, distribute, and sell fossil fuels in massive quantities". New York does not say in terms: (i) whether the Defendants should have ceased fossil production, marketing, sale etc. and if so, from what date; or (ii) whether the Defendants should only have frozen, or reduced, fossil fuel production and, if they should have reduced production, to what degree and over what time period.
  • "Defendants misled the public about climate change by over-emphasizing the uncertainties of climate science despite their knowledge that the fundamental science of climate change was well established and amply sufficient to warrant reductions in fossil fuel usage, including by using paid denialist groups and individuals. Defendants' campaign inevitably and intentionally encouraged fossil fuel consumption at levels that were (as Defendants knew) certain to severely harm the public". Most of New York's allegations in this regard are directed at ExxonMobil. It is said that "Exxon played a lead role in the campaign of deception and denial".
  • "Defendants promoted fossil fuels through frequent advertising, including promotions claiming that consumption at current and even expanded levels is "responsible" or even "respectful" of the environment. These promotions encouraged continued fossil fuel consumption at levels that Defendants knew would harm the public."

New York claims that doing the above things amounted to private nuisance, public nuisance and trespass. New York does not identify any particular date from which it became incumbent on the Defendants to refrain from doing these things. By inference, New York seems to be saying that the relevant date might fall anywhere within a period spanning two decades, from 1968 to 1988:

  • The word "severe" which appears in quotes in New York's description of the Defendants' state of knowledge is taken from a report which a scientist made to the API, a trade association of which the Defendants were members, in 1968.
  • New York refers to the defendants having had the requisite knowledge "by the late 1970s or early 1980s".
  • The word "catastrophic" in quotes is from a 1980 API document and also appears in two Exxon internal documents from 1981 and 1982.
  • New York refers to the defendants as having known "that their fossil fuel products were causing a buildup of GHG pollution in the atmosphere that would cause dangerous global warming" by 1988. That was the year Dr. James Hansen of NASA told a US congressional hearing that "global warming is at hand", something which is given particular emphasis in the complaint The UN founded the Intergovernmental Panel on Climate Change ("IPCC") the same year.

New York does not say what would have happened if sometime between 1968 and 1988 the Defendants had ceased "massive fossil fuel production", ceased advertising and promoting fossil fuels and refrained from the (alleged) campaign to over-emphasise the uncertainties of climate science. In particular, New York does not say in terms that, if the Defendants had taken those steps, the damage complained of by New York would not occur.

New York claims damages. These are not quantified, though the complaint refers to costs of "many billions of dollars". New York does not expressly seek any injunctive relief.

Anthropogenic climate change

Any climate change tort claim starts from the basic premise that global warming is occurring and that GHG emissions (principally CO2 and CH4) from human activities are the dominant cause. Today such anthropogenic global warming represents the scientific consensus. Only four out of 69,406 (0.005%) of authors of peer-reviewed articles on global warming published in 2013 and 2014 rejected anthropogenic global warming (Powell Climate Scientists Virtually Unanimous Bulletin of Science, Technology and Society Vol 35, Issue 5-6, 2015). In its latest (Fifth) Assessment Report (2015) the IPCC reports:

"Warming of the climate system is unequivocal, and since the 1950s, many of the observed changes are unprecedented over decades to millennia. The atmosphere and ocean have warmed, the amounts of snow and ice have diminished, and sea level has risen."

"Anthropogenic greenhouse gas emissions have increased since the pre-industrial era, .... This has led to atmospheric concentrations of [GHGs] that are unprecedented in at least the last 800,000 years. Their effects, together with those of other anthropogenic drivers, have been detected throughout the climate system and are extremely likely to have been the dominant cause of the observed warming since the mid-20th century."

"Continued emission of greenhouse gases will cause further warming ..."

"Projections of greenhouse gas emissions vary over a wide range, depending on both socio-economic development and climate policy."

"Surface temperature is projected to rise over the 21st century under all assessed emission scenarios. It is very likely that heat waves will occur more often and last longer, and that extreme precipitation events will become more intense and frequent in many regions. The ocean will continue to warm and acidify, and global mean sea level to rise."

This scientific consensus seems generally to be accepted by the world's governments, the public and, indeed, by fossil fuel producers. The world's governments recognised the threat of anthropogenic climate change in 1990 in the UN Framework Convention on Climate Change (discussed further below). A 2015 study found 97.4% of adults in the UK were "aware" of climate change. Awareness in the US was even higher, at 97.7%. (Lee et al. Predictors of public climate change awareness and risk perception around the world Nature Climate Change volume 5, pages 1014–1020 (2015)). The latest UK government survey, published 1 February 2018 found 97% of those surveyed believe climate change is occurring and 86% believe it is partly, mainly or entirely caused by human activity.

In its complaint, New York points to various statements which the defendants have made suggesting an acceptance of the position. For example one defendant, ExxonMobil, describes the IPCC as "the leading international scientific authority on climate change" (A case for readers to read for themselves, ExxonMobil Perspectives 5 November 2015) and says elsewhere on its website:

"We have the same concerns as people everywhere – and that is how to provide the world with the energy it needs while reducing greenhouse gas emissions ... The risk of climate change is clear and the risk warrants action. Increasing carbon emissions in the atmosphere are having a warming effect".

New York points to similar statements made some of the other defendants.

It therefore seems unlikely that the focus of defendants to a climate change tort claim would be on disputing the basic premise of anthropogenic climate change. Rather, the factual disputes are likely to be about (for example):

  • what defendants knew/believed, in the past, with what degree of confidence and when;
  • what they should have known/believed, with what degree of confidence and when;
  • for a given state of knowledge/belief, what action it would have been reasonable/proportionate to take;
  • what the effect of any such action would have been; and
  • given the range of possible future emissions scenarios, and that for each such scenario there is a range of possible effects in terms of e.g. sea level rise, what climate change effects is it reasonable to plan and build for?

Evidence New York relies upon to show the defendants had "early knowledge" of climate change

As previously described, this article proceeds on the assumption that factual allegations analogous to New York's are proved in English litigation. A detailed assessment of all the evidence New York has referred to is thus beyond the scope of this article and would, in any case, be premature, given that the case is still at a pre-discovery stage and the defendants have not even filed their responses yet.

At the same time, having taken the time to look at some of the main documents on which New York relies, it would be remiss not to at least give a flavour of them, and the use which New York seeks to make of them.

New York's case seems to be that sometime between 1968 and 1988 the Defendants had "early knowledge" that "fossil fuel products pose risks of "severe" and even "catastrophic" impacts on the global climate". Much of the evidence cited by New York consists of published research, public statements by scientists, and the successive IPCC reports which reflect a developing scientific consensus on climate change. It is said that the Defendants would have been aware of these.

The first public document referred to by New York is an 1896 paper by Nobel prize winner Svante Arrhenius in which he predicted temperature increases that would be caused by burning fossil fuels. New York omits that Arrhenius believed this would take centuries, and benefit humanity: "by the influence of the increasing percentage of carbonic acid [CO2] in the atmosphere, we may hope to enjoy ages with more equable and better climates, especially as regards the colder regions of the earth, ages when the earth will bring forth much more abundant crops than at present, for the benefit of rapidly propagating mankind".

New York refers to three public documents from the 1950s / 1960s:

  • "By 1957, scientists at the Scripps Research Institute published a warning in peer-reviewed literature that global warming "may become significant in future decades if industrial fuel combustion continues to rise exponentially" and that "[h]uman beings are now carrying out a large scale geophysical experiment on the planet.". This is a much quoted passage in discussions of global warming, taken from what was, at the time, a relatively obscure paper by Roger Revelle. Revelle reported that the oceans absorbed atmospheric CO2 at a lower rate than had previously been assumed. But Revelle predicted CO2 would nonetheless level off, a few centuries hence, with a total increase of 40% or less. And while Revelle's reference to an "experiment" seems ominously prescient, he did not actually advocate any action beyond further research. As late as 1966, Revelle wrote that people's attitude towards the rise of CO2 "should probably contain more curiosity than apprehension".
  • "By 1960, published data established that carbon dioxide concentrations in the atmosphere were in fact rising". This is a reference to the work of Charles Keeling who, in 1960, published data collected in the Antarctic which showed that, over the preceding two years atmospheric CO2 had risen (the "Keeling curve"). The rate of the rise was approximately what would be expected if (as Revelle had posited) the oceans were not absorbing most industrial emissions.
  • New York quotes a 1965 report by the President's Science Advisory Committee that "[p]ollutants have altered on a global scale the carbon dioxide content of the air", that the effects "could be deleterious from the point of view of human beings", that fossil fuel combustion is "measurably increasing the atmospheric carbon dioxide" and (echoing Revelle) that humans are "conducting a vast geophysical experiment" due to their massive fossil fuel consumption. New York omits to mention the report's recommendations: more funding for "basic research" and, in particular, that CO2 monitoring of the kind undertaken by Keeling should continue "for at least the next several decades". The report did not recommend (say) the abandonment of fossil fuels.

In addition to such published research New York also relies on some private documents produced by the API (an industry body of which the Defendants were members) which record what the API was being told by scientists. None of these seems to refer to any unpublished, original research commissioned by the Defendants. Rather, the scientists were always reporting upon the emerging consensus in the published literature.

The earliest API document referred to by New York is a report from 1968 by a scientist called Elmer Robinson. He is said by New York to have reported "that carbon dioxide emissions were "almost certain" to produce "significant" temperature increases by 2000, and that these emissions were almost certainly attributable to fossil fuels". These words do not seem to appear in the document which is linked to in the footnote to New York's complaint. In the linked extract, Robinson refers to "major changes which are speculated about as possibly resulting from a change in atmospheric CO2". Robinson reported it was "likely" that the latest research "overestimate[s] the effects on temperature of an increase in CO2".

New York's complaint continues: "[Elmer's] report warned: "If the Earth's temperature increases significantly, a number of events might be expected to occur including the melting of the Antarctic ice cap, a rise in sea levels, warming of the oceans and an increase in photosynthesis. . . . It is clear that we are unsure as to what our long-lived pollutants are doing to our environment; however, there seems to be no doubt that the potential damage to our environment could be severe ... [*] ... [T]he prospect for the future must be of serious concern".

This is the source of the word "severe" which in quote marks in New York's description of the Defendants' knowledge, and so presumably it is New York's case that the Defendants had the requisite knowledge from 1968, the date of this report. The words which New York omitted (where the asterisk appears in the quote above) were: "Whether one chooses the CO2 warming theory ... or the newer cooling prospect ..". This was a reference to a theory which sought to explain why, despite increases in atmospheric CO2, there had nonetheless apparently been large scale cooling since 1955. The theory was that particulate pollution was serving to reflect a greater proportion of the Sun's light, and that this had (as Robinson put it) "already reversed any warming trend due to CO2". This competing hypothesis is not mentioned in New York's complaint, though it seems to have featured in the scientific and public discourse well into the 1970s. According to Weart The Discovery of Global Warming (2008) "... neither scientists nor the public could be sure in the 1970s whether the world was warming or cooling...".

New York claims that: "... as far back as 1970, Defendants Shell and BP began funding scientific research in England to examine the possible future climate changes from greenhouse gas emissions" but offers no further detail as to what this research showed.

New York refers to a public document from 1979, being a report by the National Academy of Sciences which is charged with providing independent scientific advice to the US government. Per New York this:

"... concluded that there was "incontrovertible evidence" that carbon dioxide levels were increasing in the atmosphere as a result of fossil fuel use, and predicted that a doubling of atmospheric carbon dioxide would cause a probable increase in global average surface temperatures of 3ºC ..."

This is one of two public documents on which New York places particular emphasis, the other being Dr. James Hansen's testimony to Congress in 1988 (see further below).

A further category of documents New York relies upon are private documents in which scientists reported to Exxon's management on published research. The earliest such private Exxon document is a 1977 presentation by an Exxon scientist, J.F. Black to Exxon's management. Unfortunately the link to this document in New York's complaint does not work. According to New York "Exxon management was informed by its scientists in 1977 that there was an "overwhelming" consensus that fossil fuels were responsible for atmospheric carbon dioxide increases. The presentation summarized a warning from a recent international scientific conference that "IT IS PREMATURE TO LIMIT USE OF FOSSIL FUELS BUT THEY SHOULD NOT BE ENCOURAGED." The scientist presenting the material warned management, "Present thinking holds that man has a time window of five to ten years before the need for hard decisions regarding changes in energy strategies might become critical".

From this description, Exxon was not being advised to abandon fossil fuel production, but was being told that it was premature to do so (i.e. no immediate action was needed) and that it would be five or ten years (i.e. 1982 to 1987) before a decision on the issue of whether to do so is even required. Again this was not the result of any original research. Exxon was being informed that there was already "an overwhelming consensus".

The second Exxon document relied on by New York is from the following year. "In a 1979 Exxon internal memo, an Exxon scientist [W.L. Ferrall] calculated that 80% of fossil fuel reserves would need to remain in the ground and unburned to avoid greater than a doubling of atmospheric carbon dioxide". Some news stories have seized on this same document to suggest 1979 as a critical date for Exxon's knowledge of climate change (Hall Exxon Knew about Climate Change almost 40 years ago Scientific American 26 October 2015).

The link to the document in New York's complaint does not work, but a copy was available elsewhere online:

  • Ferrall was reporting on work which had been done by a summer intern called Steve Knisely. Knisely's report was based on published materials, not unpublished Exxon research. Knisely's report does state: "...it [is] very difficult to analyse the fossil fuel impact on the overall carbon cycle ... if one half of the CO2 released by fossil fuels remains in the atmosphere, only about 20% of the recoverable fossil fuel could be used before doubling the atmospheric [CO2] content". But this was not mentioned in Ferrall's summary to management. Knisely's report also contains several qualifications, e.g.: "...the quantitative effect [of increased CO2 concentrations] is very speculative because the data base supporting it is weak".
  • Knisely's report stated that "if it becomes necessary to limit future CO2 emissions without practical removal/disposal methods, coal and possibly other fossil fuel resources could not be utilized to an appreciable extent". Knisely's advice was that if it was necessary to limit future CO2 emissions, the use of coal would have to cease.
  • Knisely's overall conclusion, which Ferrall did include in his summary to management, was (original emphasis): "The potential problem is great and urgent. Too little is known at this time to recommend a major U.S. or worldwide change in energy type usage but it is very clear that immediate research is necessary to better model the atmosphere/terrestrial/oceanic CO2 Only with a better understanding of the balance will we know if a problem truly exists".

Between 1979 and 1983, the API formed a task force to monitor and share climate research. Minutes from a 1980 meeting record that the task force received a presentation by a Dr. J.A. Laumann "a consultant and recognised expert in the field of CO2 and climate". New York says Laumann reported:

"that there was a "SCIENTIFIC CONSENSUS ON THE POTENTIAL FOR LARGE FUTURE CLIMATIC RESPONSE TO INCREASED CO2 LEVELS.". That though the exact temperature increases were difficult to predict, the "physical facts agree on the probability of large effects 50 years away." He warned of a 2.5°C global temperature rise by 2038, which would likely have "MAJOR ECONOMIC CONSEQUENCES" and a 5°C rise by 2067, which would likely produce "GLOBALLY CATASTROPHIC EFFECTS." He also suggested that, despite lack of certainty, "THERE IS NO LEEWAY" in the time for acting."

This document is presumably the source of the word "catastrophic" which appears in quotes in New York's description of the state of the Defendants' knowledge. Again, Laumann was reporting on what was said to be an existing scientific consensus - not upon private research by the Defendants or the API.

The term "catastrophic" is also said to appear in an Exxon document from 1981 (the link in New York's complaint is broken) in which New York says that a scientist called Roger Cohen reported to Exxon's management "it is distinctly possible" that CO2 emissions from Exxon's fifty-year Corporate Planning Department scenario of fossil fuel use "will later produce effects which will indeed be catastrophic (at least for a substantial fraction of the earth's population)".

New York describes an API commissioned report from 1982 as having "estimated the average increase in global temperature from a doubling of atmospheric concentrations of CO2 and projected, based upon computer modelling, global warming of between 2°C and 3.5°C ... The report projected potentially "serious consequences for man's comfort and survival," and noted that "the height of the sea level can increase considerably".

Again, this document was a review of published data. As regards the effect of doubling CO2, it is not clear how New York has derived a lower limit of 2°C from this document. The report states that "Climate model predictions range from 0.6oC to over 4oC ... several empirical studies give a lower estimate of 0.26oC" and derives "outside limits of global warming of 0.1oC to 3.5oC from a doubling of CO2". It is only with respect to a 4°C increase (i.e. an increase greater than what is claimed to be the "outside limit") that it is said (emphasis added): "[s]uch a warming can have serious consequences for man's comfort and survival since patterns of aridity and rainfall can change, the height of the sea level can increase considerably and the world food supply can be affected".

New York refers to two further Exxon documents from 1982 (both links are broken):

  • A memo to Exxon's management from Roger Cohen in which he is said to have reported (the link is broken) a "clear scientific consensus" that "a doubling of atmospheric CO2 from its preindustrial revolution value would result in an average global temperature rise of (3.0 ± 1.5)°C in temperature" and that "[t]here is unanimous agreement in the scientific community that a temperature increase of this magnitude would bring about significant changes in the earth's climate, including rainfall distribution and alterations in the biosphere".
  • A report to Exxon's management by a scientist called M.B. Glaser which is said to have "warned that "Substantial climatic changes" could occur if the average global temperature rose "at least 1 °C above [1982] levels" and that "[m]itigation of the 'greenhouse effect' would require major reductions in fossil fuel combustion." The report then warned Exxon management that "there are some potentially catastrophic events that must be considered" including the risk that "if the Antarctic ice sheet which is anchored on land should melt, then this could cause a rise in sea level on the order of 5 meters."

New York states that:

"By 1983, Exxon had created its own climate models, which confirmed the main conclusions from the earlier memoranda. Starting by at least the mid-1980s, Exxon used its own climate models and governmental models to gauge the impact that climate change would have on its own business operations."

As with the reference to Shell/BP in-house research from the 1970s, no further detail of this research is provided. These seem to be the only references to any private research by the Defendants prior to 1988.

The last document which New York refers to in the period 1968 to 1988 is a public document:

"In 1988, NASA scientist Dr. James E. Hansen testified to the U.S. Senate that "the greenhouse effect has been detected, and it is changing our climate now."

Development of public international law since 1988

The IPCC was founded in 1988. In 1990, the IPCC reported that the planet had warmed by 0.5°C in the preceding century and that only strong measures to halt rising greenhouse gas emissions would prevent serious global warming.

In 1992 the US, UK and EU were among the signatories to the UN Framework Convention on Climate Change ("FCCC"). The FCCC came into force on 21 March 1994, once a sufficient number of the signatory countries had ratified it.

Article 2 sets out that the objective of the FCCC is "to achieve ... stabilisation of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner." What is considered "dangerous" anthropogenic interference is not defined.

Article 4(1)(b) provides that the Parties (emphasis added) "shall ... formulate [and] implement ... national ... programmes containing measures to mitigate climate change by addressing anthropogenic emissions by sources ... of ... greenhouse gases ... and measures to facilitate adequate adaptation to climate change".

Note that in the IFCCC the word "mitigate" is used in a different sense to that which is usual in English law. "Mitigate climate change" means something akin to "prevent climate change from occurring" not "reduce the impact of such climate change as does occur". The IFCCC calls that "adaptation to climate change".

In Article 4(2), the "Annex I" countries (essentially the developed countries, including the UK, EU and US) recognised the aim of stabilising their GHG emissions at 1990 levels by the year 2000.

Parties to the FCCC have since taken part in a series of "conferences of the parties" ("COP"). In 1995 the COP adopted the "Berlin Mandate". This established that the commitments in Article 4.2 of the IPCCC were "not adequate" and that new binding emissions targets should be agreed.

In 1997 the COP adopted the Kyoto Protocol. This committed the Annex I countries to binding GHG reductions in the period 2008-2012. The US signed the Kyoto Protocol but it was never ratified by Congress, and so is not binding on the US.

In 2012 the COP adopted the Doha Amendment, amending the Kyoto Protocol to impose new binding GHG reductions for the period 2013-2020. The Doha Amendment has never entered into force, as it has not been ratified by at least 75% of the parties.

In 2015 the COP adopted the Paris Agreement. Article 2(1) set a long term goal of:

"holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change"

In Article 4, the parties record that, in order to achieve that long-term temperature goal they: "aim to reach global peaking of greenhouse gas emissions as soon as possible, ... and to undertake rapid reductions thereafter in accordance with best available science, so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century". Each party agrees to set "nationally determined contributions that it intends to achieve" and that "each ... successive nationally determined contribution will represent a progression beyond the Party's then current nationally determined contribution and reflect its highest possible ambition".

Since the Paris Agreement provides only for self-imposed emissions targets with no enforcement mechanism, the US regarded it as an executive agreement rather than a legally binding treaty, removing the need for ratification. In April 2016, the US became a signatory to the Paris Agreement, and accepted it by executive order in September 2016. It entered into force on 4 November 2016, a few days before President Trump was elected.

In June 2017 President Trump announced that the United States would withdraw from the Paris Agreement. Under the terms of the Paris Agreement, the earliest date on which the US could withdraw is 4 November 2020, one day after the 2020 US presidential election.

A claim in England: overview of the issues

Preliminary points to address in respect of any prospective claim are:

  • Jurisdiction. Would the English court have jurisdiction to hear the claim against each prospective defendant?
  • Alternative forum. Is there any other forum in which the claim could be brought instead which would be more advantageous to the claimant?
  • Choice of law. What law would govern the claim (i.e. would the English court apply the laws of England, or those of some other country)?
  • Enforcement. If an English court judgment were to be obtained, will the prospective defendant have sufficient assets to meet that judgment, either in England or in some other jurisdiction where that judgment could be enforced?

Assume that, for a climate change tort claim based on a given hypothetical set of facts, the answers were, respectively, "yes", "no", "English law" and "yes".

Usually one would then move to consider the merits of the case: how likely is it that the claim will succeed, how much could the claimant expect to recover, how much will it cost if they lose. But, in the case of climate change litigation, it is necessary to recognise that these may not be the only considerations when deciding whether to proceed with a claim, nor the only metric by which the 'success' of such a claim falls to be judged. There is inevitably a political element to the decision whether to pursue such a claim. Even a claim which was thought to have little chance of securing substantial damages could conceivably be pursued if a claimant felt it to be a good means of publicising climate change issues or expected it to be popular with voters.

Having considered any alternative goals which might be served by bringing the claim, it then becomes necessary to consider the merits of the claim.

The first legal issues are whether the defendant owed the claimant a legal duty, whether the conduct complained of would constitute a breach of that duty and whether any defences apply. Most previous discussions have focused on nuisance and negligence as possible causes of action.

Assume it were to be established that, as from a certain date, producing fossil fuels, promoting fossil fuels and/or disputing anthropogenic climate change were breaches of a relevant duty. It then becomes necessary to consider whether that breach was / will be causative in the relevant legal sense of the sea level rise, increased summer temperatures and extreme weather events which are complained.

A further issue, which overlaps to some degree with causation, is as to how damages should be calculated. What, if any, damages are required to put the claimant in the same position they would have been in if the defendants had refrained from producing fossil fuels, advertising fossil fuels and disputing anthropogenic climate change from the relevant date?

The defendants in the New York case and their alleged CO2 emissions

The five defendants to the New York claim are oil and gas companies: BP, Chevron, ConocoPhillips, ExxonMobil and Royal Dutch Shell. New York says:

  • That these companies have extracted raw fossil fuels from the ground, refined and processed them into forms that can be combusted, and marketed those products to consumers.
  • That when combusted the fuels emit CO2, also that the natural gas (methane) produced by the defendants routinely escapes into the atmosphere ("fugitive methane").

New York goes on to claim that the five defendant companies are collectively responsible "for over 11% of all the carbon and methane pollution from industrial sources that has accumulated in the atmosphere since the dawn of the Industrial Revolution".

The source of this allegation is Heede Tracing anthropogenic carbon dioxide and methane emissions to fossil fuel and cement producers, 1854–2010 Climatic Change 2014. Heede's paper appends a table showing what are said to have been the top 90 investor and state-owned producers of CO2 and CH4 in the period 1751-2010 ("Carbon Majors"). All are oil, gas, coal or cement producers. The 'top twenty' are extracted below, with the defendants in the New York case shaded grey.

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Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions