"Tortious claims and climate change: Where are we now?", 31 Jan 2022

…[In the case from the] Court of Appeal of New Zealand in Smith v Fonterra…the court considered whether to strike out a cause of action based on a novel tortious duty of care to “cease contributing to damage to the climate system”…

The respondents were seven New Zealand companies that … included the operators of power stations, steel mills and dairy factories that burn coal; a coal mine; and an oil refinery.

… The claim contained three causes of action, all based on the law of tort: …public nuisance; …negligence; and a proposed new tort described as “breach of duty”; to “cease contributing to damage to the climate system”…

… the High Court struck out the public nuisance and negligence claims and refused to grant the injunction.3 But the court declined to strike out the claim based on a proposed new tort…

…[The legal] question [is] whether the law of tort is, in principle, the appropriate mechanism for dealing with the issue of climate change…

Though the English courts have not yet seen any climate-specific cases seeking to expand the use of tortious causes of action, there are some cases that suggest how the court may approach these issues.

…[T]he Federal Court of Australia found that a novel duty of care was owed by the Minister for the Environment to Australian children not to cause them harm resulting from the extraction of coal by approving an extension to the Vickery coal mine in New South Wales…

…[T]he Netherlands does not have the same system of incremental development in tort law as in New Zealand and other common law jurisdictions. Instead, the Dutch courts are able to consider the liability of defendants under an “unwritten duty of care” in the Dutch Civil Code

Civil litigation in the US related to the impacts of climate change lacks the human-rights component seen in a growing number of cases around the world. But it’s still a diverse and growing area of the law, often raising novel theories of liability under laws not crafted with climate in mind.

But as climate science allows for greater accuracy in attributing the effects of climate change to specific causes – or in factual circumstances where foreseeability, proximity and causation can more easily be shown – the courts may allow more claims to proceed, at least to evidential stages.