Tort Litigation and Greenhouse Gas Emissions: Changing the Climate of Opinion

• Author: Noel Semple
• Date: June 06, 2019

Climate change is probably the single greatest threat to the security and prosperity of Canadians, as well as the rest of the human race. The most effective, least painful way to mitigate climate change is to impose a price on greenhouse gases worldwide, either through carbon taxes or tradable emission permits. However, carbon pricing is as politically difficult as it is economically efficient. In most countries, voters and political leaders have so far refused to support prices high enough to keep the risk of catastrophic climate change within an acceptable band. In Canada, there is also real risk that the federal carbon pricing backstop will be derailed on constitutional grounds.

A Natural Tort

Tort litigation has a role to play in this epoch-defining fight for a livable planet. Climate change is compatible with logic of tort law, which exists in order to compensate “injuries suffered by a party as a result of the wrongful conduct of others” (Hall v. Hiebert). Climate change will injure the health, property, and life prospects of those who will live on this earth in coming centuries. Causing the emission of greenhouse gases without offsets is the conduct that causes this injury. It makes sense as a tort.

If the details of tort law (causation, duty of care, etc.) do not allow the law to recognize the problem, then courts can simply change those rules. Ability to evolve is one of the virtues of the common law, and tort is one of the faster-evolving areas of law in our system. The most important tort — negligence — was effectively invented in 1932 after Mrs. Donoghue was served a snail in her ginger beer. Tort law evolved dramatically again in landmark cases establishing the liability of tobacco companies in the 1990s. Statutory reform to tort law, such as the Liability for Climate-Related Harms bill introduced in the 2018 Ontario legislature, can speed the process.

In a superb recent Slaw piece, Jessica Clogg and Andrew Gage of West Coast Environmental review law suits against fossil fuel companies around the world. These suits are typically brought by municipal governments against corporate “carbon majors.” No landmark judgments or settlements have been produced yet, and no funds have been produced to compensate these plaintiffs for what they will have to spend dealing with climate change. Clogg and Gage show that the defendants are fighting back aggressively, both inside and outside court.

Nevertheless, Clogg and Gage identify positive effects of tort litigation on fossil fuel...