New Zealand Supreme Court leads the way around groundbreaking environmental tort claims
In a significant judgment from New Zealand’s Supreme Court earlier this month, a groundbreaking climate case being brought against large greenhouse gas emitters has survived strike out and can now proceed to trial. This could have important implications for private law claims seeking to address climate change across common law jurisdictions.
Background
The proceedings are being brought by Michael Smith – an elder of two Māori iwi (tribes) and a climate change spokesperson for the national forum of tribal leaders – against seven large corporates. These companies operate in the agricultural, energy, mining and steelmaking sectors, and allegedly account for one-third of New Zealand’s greenhouse gas emissions.
Mr Smith bases his claim in three common law causes of action – public nuisance, negligence and a novel “climate system damage” tort. He is seeking, firstly, a declaration that the defendants have committed the relevant torts, and, secondly, an injunction requiring the defendants either to peak their emissions by 2025 and gradually reduce them by 2050, or immediately cease putting out net emissions. The New Zealand High Court struck out two of the grounds of claim and the Court of Appeal struck out all three, holding that any response to climate change was more appropriately the responsibility of government. Mr Smith then appealed to the Supreme Court.
Supreme Court decision on strike out
The Supreme Court unanimously allowed Mr Smith’s appeal, finding that the claim was not “bound to fail” at trial. The Court stressed that this decision was merely in the context of strike out, “is not a commentary on whether or not the claim will ultimately succeed” and that various legal issues would need careful examination in a full trial. Nevertheless, the Court’s judgment is important. Firstly, and most directly connected with the question of strike out, the Court emphasised that a “measured approach” to strike out applications is the correct approach where a claim is “novel” but does ostensibly involve serious harms: an encouraging finding for similarly innovative climate-related cases.
The scope for climate-related torts
The New Zealand Supreme Court discussed these serious harms, and the scientific evidence for them, in detail. Drawing heavily on the findings of the Intergovernmental Panel on Climate Change, the judges recognised that the “window of opportunity to ensure a liveable and sustainable future for all is rapidly closing” and that vulnerable communities who “historically have least contributed” to climate change are being disproportionately affected by it.
The Court rejected the respondents’ arguments that climate-related tort claims are excluded by statute – recognising instead that the regulatory matrix applicable to climate may still have gaps for the courts to address. The Court also rejected the lower court’s finding that such polycentric [1] issues are “not amenable to judicial resolution”. It then considered the case law and legal principles relevant to public nuisance, in particular.
Four issues were held to be important in determining liability in public nuisance. First, the Court found that Mr Smith had plausibly identified and pleaded public rights (rights of public health, safety, convenience etc.) relevant to a claim of public nuisance. Second, the Court confirmed that acts or omissions giving rise to public nuisance need not be illegal for a claim of public nuisance to arise from them. It would therefore not be fatal to a public nuisance claim that the defendants were compliant with climate and environmental statutes and regulations.
Third, the Court considered the “special damage” rule, whereby public nuisance claims can only be brought by claimants who have suffered harm that exceeded the harm suffered by the general public. The judges held that:
…the special damage rule requires 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.
This will be an important issue for trial. However, in any case, the Court held that Mr Smith’s interests were sufficiently plausibly “special”. In particular, the Court noted that the “ubiquitous impacts of climate change are also “distributed and different”, and that Mr Smith’s interest in coastal land is especially affected.
The final issue was that of causation; this has frequently arisen as an impediment to climate cases on the basis that is difficult to attribute climate harms as being connected to the actions of a specific defendant. The Court examined the case law on other public nuisance claims involving multiple defendants, including water pollution cases, holding that climate-related cases were quantitively but not qualitatively different, and this should be examined at trial. A crucial legal question remains, for now, whether and how to differentiate these defendants and their contribution to greenhouse gas emissions and climate change on the one hand from all other emitters worldwide on the other, especially where the impacts of climate change are diffuse, cumulative and global.
Having determined that the public nuisance case should not be struck out, the Court permitted the two other causes of action - negligence, and “climate system damage” tort - to proceed without further detailed analysis. This was for a number of reasons, including because their inclusion in the claim would be unlikely to add significantly to costs or the hearing time.
Remedies
The Court briefly turned to another important issue in climate cases, that of remedies. While noting that Mr Smith’s attempt to secure an injunction may face difficulties, the Court did observe that a request for an injunction might allow for a less restrictive approach to causation (compared to a claim for compensation that requires analysis and allocation of specific losses). The Court also recognised the potential value of a declaration.
Comment
New Zealand’s Supreme Court’s assessment of these tort claims as plausible could have important implications for similar cases in other common law jurisdictions. While tikanga Māori (indigenous customary law) did give rise to points that will be unique to New Zealand, there is much in this case which has relevance beyond the country. The comments around the role of the judiciary and common law more generally in addressing climate harms, the “special damage” rule and causation could certainly be of wider application. How these issues are explored at trial in New Zealand or raised in cases elsewhere will be very important to the development of tort law in climate change litigation.
With special thanks to Ilia Sigarev for their invaluable assistance in drafting this article.
Footnotes
[1] In the context of governance, "polycentric" issues refer to issues that are not tackled by any one central decision-maker, but rather through collective decisions involving several sources of authority.