Developing a new tort for climate change
27 March 2024
Michael John Smith (appellant) v Fronterra Co-operative group Ltd and others [2024] NZSC 5
This appeal to the New Zealand Supreme Court concerned strike out of a claim in tort (comprised of three causes of action) relating to damage caused by climate change. The question was whether the
plaintiff’s claim should be allowed to proceed to trial, or whether, regardless of what might be proved at trial, it is bound to fail and should be struck out now.
The implications of this ruling could be enormous, particularly if the English courts decide to follow the New Zealand model. In its conclusion to this lengthy judgment, the New Zealand Court observed that “the principles governing public nuisance ought not to stand still in the face of massive environmental challenges attributable to human economic activity. The common law, where it is not clearly excluded, responds to challenge and change in a considered way, through trials involving the testing of
evidence.”
The plaintiff was an elder of a Maori tribe and climate change spokesman for a national forum of tribal leaders. The defendants were all New Zealand companies involved in an industry that either emitted greenhouse gases or which released GHG when burned.
Arguments before the Court
The plaintiff alleged that the respondents has contributed materially to the climate crisis and had damaged, and would continue to damage, his lands, including places of customary, cultural, historical, nutritional and spiritual significance to him and his “whānau”, (a Maori concept for the extended family group). He based his claim on three causes of action in tort: nuisance, negligence and a proposed new tort involving a duty to cease materially contributing to damage to the climate system. He also sought a declaration that the respondents had unlawfully either breached a duty owed to him or caused or contributed to a public nuisance, and have caused or will cause him loss through their activities.
Injunctions were also sought requiring the respondents to peak their emissions by 2025, to achieve a particularised reduction in their emissions by the ends of 2030 and 2040, and zero net emissions by 2050.
The respondents applied to strike out the proceeding as disclosing no reasonably arguable cause of action. The claim, they said, related to complex policy matters best addressed by Parliament.
The High Court had struck out the claims in public nuisance and negligence but allowed the claim based on the proposed climate change system tort. The Court of Appeal dismissed all three causes of action. That Court concluded that “the magnitude of the crisis which is climate change simply cannot be appropriately or adequately addressed by common law tort claims pursue through the courts. It is quintessentially a matter that calls for a sophisticated regulatory response at a national level supported by international co-ordination”
In relation to the proposed climate system damage tort, the CA said that the
“bare assertion of the existence of a new tort without any attempt to delineate its scope was insufficient to withstand strike out, on the basis of speculation that science may evolve by the time the matter gets to trial”.
The lower court concluded that climate change raised insurmountable problems for liability—particularly ones of standing and causation—where everyone both contributes to, and is adversely affected by, GHG emissions, and where it is not possible to link, evidentially, emissions to the harm suffered by plaintiffs. The appeal judges also said that for the law to evolve in the way advanced by Mr Smith would introduce open-ended liability for defendants and dramatically disrupt economies. They also asserted that the courts are ill-suited to deal with a systemic problem of this nature with all the complexity entailed. Instead, it was best left to Parliament; indeed, Parliament could be seen already to have addressed the situation and settled upon a detailed and coherent legislative response.
Climate Change
The fact of climate change caused by human activities was common ground between the parties and there was no dispute over the question that human-induced climate change has caused adverse impacts to nature and people. Vulnerable communities, which historically have contributed the least to the problem, are being disproportionately affected by climate change. To limit warming to 1.5 degrees C or at best 2 degrees requires “rapid, and deep, and, in most cases, immediate greenhouse gas emissions in all sectors this decade”.
In northern New Zeland, where the plaintiff’s tribal lands lie, wildfire conditions have increased and the area has become drier whilst also seeing more extreme flooding. The Kyoto Protocol and the Paris Agreement oblige signatory states – of which New Zealand is one – to transition to low-carbon societies. The New Zealand Parliament has responded by passing a motion setting a target of a 50% reduction of net emissions by 2030 (the Climate Change Response Act 2002, “the CCRA”). This Act establishes targets for emissions reductions to be zero by 1 January 2050. An emissions trading scheme hs been set up, as it has been in many other countries and the EU, to drive efficient behaviour change by rewarding sellers of surplus units (allocated by the government) and encouraging them to further reduce emissions to obtain more sellable units. This, argued the respondents, was a statutory scheme that should not be interfered with by the common law; such intervention from the courts would create a parallel and inconsistent regulatory regime.
The Plaintiff’s case
- Customary law
The plaintiff claimed customary interests in lands and other resources situated in Mahinepua in Northland, northern New Zealand. This land, he submitted possesses sites of customary, cultural, historical, nutritional and spiritual significance to him and those he represented including fishing places, pathways to the ocean, burial caves, rivers, wetlands and other sites of historical significance. He alleged that the dairy factories owned by two of the respondents and the combustion of coal, petroleum and oil by others, constituted one third of New Zeland’s total GHG emissions.
The plaintiff maintained that the respondents had failed credibly to commit to measures that would contribute to the minimum required emissions reductions, and that they had “actively lobbied” against any regulatory measures that would require them to reduce emissions.
“The consequence, in fact and law, of the [respondents’] actions is that [the plaintiff and his tribe], his descendants and others will bear the cost of dealing with harms contributed to by the [respondents’] historical, current and future GHG emissions”.
He also relied upon principles of Maori customary law, which include a connection to the land which entails an obligation to care for the environment.
- Public nuisance
The plaintiff submitted that he would suffer harm from the effects of dangerous anthropogenic interference with the climate system caused by the respondents. The respondents’ activities interfered with a number of public rights, such as the right to public health, safety, public peace and a habitable climate system. He sought a declaration that the respondents had unlawfully caused a public nuisance through their emitting activities, and injunction requiring each of the defendants to attend to their emissions reduction obligations.
- Negligence
The plaintiff alleged that the respondents owed him a duty to take reasonable care not to operate their business in a way that would cause him loss by contributing to dangerous anthropogenic interference in the climate system. Underlying this claim was the plaintiff’s submission that the respondents knew that their activities would contribute such an interference, and that despite that knowledge they had continued to emit GHGs into the atmosphere. The relief sought was cast in similar terms to the public nuisance cause of action above.
- The novel “proposed climate system damage tort”
It was said that the respondents owed a duty to cease materially contributing to damage to the climate system, dangerous anthropogenic interference with the climate system, and the adverse effects of climate change through their emission of GHGs into the atmosphere.
The relief sought was the same as 2 and 3 above.
Strike out
Any court considering a strike out claim has to be certain that the claim is so untenable that it cannot succeed. The court should be slow to strike out claims in a developing area of law. In New Zealand courts it has become established that a claim should be struck out on the ground that policy militates against a duty of care only if it can be said that this is undoubtedly so. Everything depends on whether it is necessary for the case to go to trial to “enable a faire and fully informed policy determination to be made”.
The Supreme Court in this case relied upon the House of Lords in X (Minors) v Bedfordshire County Council where Lord Browne-Wilkinson observed that where “the law is not settled but is in a state of development … it is normally inappropriate to decide novel questions on hypothetical facts”—and particularly so where the question is whether a common law duty of care exists. If it was not possible for the court to give a certain answer whether the claim was maintainable, it would not be appropriate to strike it out.
In this case the Supreme Court considered it significant that the claim, though novel, was “at least founded on seriously arguable non-trivial harm”.
Private redress v statutory scheme
The plaintiff argued that there was nothing uncommon in using private tort law to support statutory regulation. The respondents countered by submitting the the pleaded claim invited judicial criticism of the statutory framework, creating a parallel and inconsistent regulatory regime.
A famous example of a statutory regime replacing private claims for personal injuries in New Zealand is the Accident Compensation Ace 2001. This (and its predecessors) proscribes such claims by providing a legislative compensation scheme, and is taught in law schools all over the world as a successful form of no-fault compensation. On the other hand the NZ regulatory scheme relating to environmental harm does not exclude common law actions; it has a provision which expressly preserves access to common law rights of action. As for the CCRA and its effect on tort actions, the Court noted that there was no clear language in that Act
`As the Court observed, “this is perhaps unsurprising given the antiquity of environmental nuisance actions and the continuing resort to them.”
For this reason, the Supreme Court found that unless there was reasonably clear language in the CCRA to that effect, or it was a necessary implication of the CCRA’s operation, it was inherently unlikely to exclude private common law actions. And the Emissions Trading Schemes set up under the Act neither authorises nor immunises GHG emissions. It merely facilitates state-introduced market signals via a trading scheme in emissions units. “Parliament has not pre-emptively excluded a common law response to damage caused by GHG emissions” (para 100)
The Court’s conclusions
1) Public Nuisance
In the early years of the common law, it became clear that there were socially objectionable actions and omissions that could not found a private nuisance action because the harm was suffered by a “community as a whole rather than by individual victims and because members of the public suffered injury to their rights as such rather than as private owners or occupiers”.
There are a number of important limits to the tort of public nuisance.
First, while the tort is one of strict liability, meaning negligence is not required, a defendant will only be liable if the kind of harm suffered was a reasonably foreseeable consequence of the defendant’s conduct, meaning there was a real risk of damage.
Second, the defendant’s act or omission must substantially and unreasonably interfere with public rights.
Third, the tort does not generally depend on any particular person suffering damage. However, private actionability may be limited to persons who can demonstrate they have suffered some damage particular to them arising from the interference. This is the so-called “special damage” rule.
As far as the plaintiff in this case was concerned, the High Court had found that the damage he claimed was neither particular nor direct, and not more serious or substantial in degree than that suffered by the public generally. Nor, given the nature of climate change, the plaintiff could not plead that but for the respondents’ activities, he would not suffer the claimed damage.
The role of the common law in relation to climate change
The respondents submitted that the Court ought not to engage in a judicial response to climate change, because it is not equipped to design or implement one. The problem is polycentric and political; there are a broad range of interests and trade-offs at issue; and complex scientific and economic judgements are required. It would be a departure from the common law’s “incremental method of development”, and an invitation to the judiciary to “rewrite the foundations of tort law, and to step beyond tort law and into the domain of the political branches”. (Para 131)
The respondents further argued that the plaintiff’s pleaded damage was not sufficiently particular or direct; it was no different in kind from damage that will be suffered by many thousands of others. This claim bore no similarity with the private nuisance sewage cases where there is a relational and causal connection between plaintiff an defendant. Defendants in such actions must have made a direct and serious contribution to the relevant harm. Whereas here the respondents were not responsible for at least 99.8 % of global emissions.
For the plaintiff and the intervening climate campaign groups, it was argued that the plaintiff’s claims were based on the unremarkable proposition that those causing him harm should be held responsible. One of the functions of tort law is to promote efficiency by requiring people to internalise the costs of harms from accidents and pollutants. To that end, holding a polluting factory owner responsible for damage the factory causes to the environment will encourage appropriate steps to be taken to reduce that damage.
The plaintiff’s nuisance claim, it was argued, fell within the orthodox principles of public nuisance. Even if the Court considered that “but for” causation is a requirement of the current law, it should expressly recognise that those who materially contribute to environmental harm should be responsible even if the harm would still have been suffered but for their individual contributions.
Finally it was argued on behalf of the plaintiff that the courts apply a strong presumption that New Zealand’s domestic law, including the common law of torts, should be compatible with New Zealand’s international obligations, including the international law of environmental protection as well as human rights.
The Supreme Court decided that the plaintiff should have his day in court; the requirements for strike out had not been met in this case. The appeal was allowed and the plaintiff’s claim was reinstated.
Reasoning behind the Court’s decision
1) The rights pleaded by the plaintiff —the rights to public health, public safety, public comfort, public convenience and public peace—fall tenably within (or bear sufficient relation to) the particular rights identified in the leading nuisance case of Rimmington as providing foundation for a public nuisance pleading: i.e. public rights to life, health, property or comfort.
2) Although the tort of public nuisance grew out of the criminal law – at least in England – parallel unlawfulness is not a rerequisite in New Zealand “and it may be doubted that it still is in England” (para 147). What matters is that the act or omission causes common injury.
3) The ‘special damage’ rule: this is a rule of standing, and comes down to a simple question of whether the damage suffered by the plaintiff is different from that suffered by other members of the community.
The Supreme Court was of the view that the special damage rule required reconsideration in a 21st century context, in which the “implications of ubiquitous harms such as pollution (including from GHGs) are more evident and better understood, and in which class actions and active judicial case management have developed and are better able to meet fears of an oppressive multiplicity of actions.”
In any event, regardless of whether the standing rule was revoked, retained or reformed, the Court considered that the plaintiff had a tenable claim to meeting its present requirements because of his pleading of damage to coastal land in which he and others he represents claim both a legal interest and distinct “tikanga” interests.
“The pleaded effects [of climate change], including inundation of coastal land and impacts on fishing and cultural interests, go beyond a wholly common interference with public rights.” (Para 152)
“It may indeed be beyond the capacity of the common law to resolve climate change in fact, but we are not presently convinced, at this stage of the proceeding, addressing only strike out, that the common law is incapable of addressing tortious aspects of climate change.” (Para 154)
Comment
This is an important development of the common law in relation to the harms caused by anthropogenic climate change. The Court found that it was “beyond question that the respondents are either very substantial emitters of GHGs or are (or have been) very substantial suppliers of fossil fuels that release GHGs when burned by others.”
The Court observed that the common law has not previously grappled with a crisis as all-embracing as climate change. But in the 19th and early 20th centuries it had to deal with another existential crisis, albeit one of lesser scale, when the industrial revolution dramatically enlarged the risk of accidents through the mechanisation of factories, transportation and mining. The landmark decision in Donoghue v Stevenson creating the notion of a duty of care based on non-physical neighbourhood. In another creative application of the common law (St Helen’s Smelting Co v Tipping), the House of Lords held a factory owner liable in private nuisance for noxious discharges from a copper smelting chimney that diffused over the plaintiff’s country estate on the outskirts of the heavily industrialised town of St Helens. In these activities (sewage disposal and smelting)
“there is a mix of public and private harm and public and private good, and the common law (revised
sometimes by statute) has had to mediate liability for the former. Climate change engages comparable complexities, albeit at a quantum leap scale enlargement.” (Para 157)
Defendants cannot, in other words, hide behind other polluters and get away with adding to the former foul state of the water, air, or in this case, the CO2 contributions to the atmosphere. This would make the defendants’ GHG emitting activities lawful. It is no answer to a complaint of nuisance that a great many others are committing similar acts of nuisance upon the stream. Each and every one is liable to a separate action, and to be restrained.
“How the law of torts should respond to cumulative causation in a public nuisance case involving newer technologies and newer harms (GHGs, rather than sewage and other water pollution) is a matter that should not be answered pre-emptively, without evidence and policy analysis exceeding that available on a
strike out application.” (Para 166)
To get home on a public nuisance action there must be a substantial and unreasonable interference with public rights. “Patently, ordinary domestic activities involving individuals travelling, warming their houses and cooking food, will not do so and may be de minimis, albeit collective actions of individuals are causative of climate change…. Such actions undertaken by individuals, may simply be a part of living in society” (para 168). But this was a matter for a court to decide with all the evidence before it, not on a strike out application.
The Court’s conclusions regarding Maori customary law, though interesting, lie outside the scope of this article.
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