1. Tort Law and Climate Change

Tort law entitles a person who has suffered harm to a legally recognised interest to seek a civil law remedy from the person to whose conduct that harm can be attributed, usually in the form of damages, though sometimes in the form of an injunction or declaration of interests. It is a part of the field of private law and is paradigmatically concerned with interpersonal (relational) responsibilities in the context of one-to-one social encounters. For this reason, tort law can be viewed as an inapt legal tool for dealing with collective societal challenges such as climate change — challenges that are instead viewed as primarily political or regulatory in nature. Certainly, tort law presents an array of doctrinal barriers to climate litigation success. As Kysar notes:

Built as it is on a paradigm of harm in which A wrongfully, directly, and exclusively injures B, tort law seems fundamentally ill-equipped to address the causes and impacts of climate change: diffuse and disparate in origin, lagged and latticed in effect, anthropogenic greenhouse gas emissions represent the paradigmatic anti-tort, a collective action problem so pervasive and so complicated as to render at once both all of us and none of us responsible. Thus, courts will have ample reason — not to mention doctrinal weaponry — to prevent climate change tort suits from reaching a jury.^[1]

Nevertheless, around the world litigants are turning to tort law as a legal avenue that might help to hasten governmental and private sector action on climate change in the face of regulatory failure or help to fund efforts to adapt to, or mitigate, climate harms. At the international level, especially prominent have been attempts to use the tort of nuisance (particularly in the United States) and the tort of negligence, though other torts may also be relevant.^[2] While Australia is a leader in climate litigation, there have been few tort-based climate cases here so far. This is predicted to change, however, as part of a second generation of climate litigation in this country.^[3]

There is a longstanding debate over the social functions of tort law, and the theory of tort law one adopts has implications for how one views the legitimacy of climate litigation through tort law.^[4] Much of tort law is best explained through the lens of corrective justice or civil recourse theory. Both theories posit that, at its core, tort law is a mechanism to empower one person to enforce another’s duty of repair to them for wrongful harms, a duty personally owed. It is, in that sense, principally backward looking.^[5] Other theories emphasise the forward-oriented regulatory or deterrence functions of tort.^[6] Unlike those other theories of tort law, however, corrective justice and civil recourse theory seem to best explain the dyadic structure of tort law — why it is that one person, as a private individual, is entitled to make a claim against another specific person for the harm they have caused or may cause.^[7] This structure, however, also underpins why tort-based climate litigation is expected to be difficult.

Critical challenges raised by tort law’s relational structure have been neatly summarised into the plaintiff problem, the defendant problem and the causation problem.^[8] The first is the question of why these plaintiffs — why is it that some victims of climate change should be entitled to a personal remedy in light of the fact that we will all, ultimately, be victims of climate change. The second is the question of why these defendants — why is it that some actors should be civilly liable for climate harms above others, given our collective enmeshment in a carbon economy. And the third is the question of how to causally link the two in a way that properly reflects the responsibility of repair owed by the second person to the first. While developments in attribution science are going some way to addressing these questions, they loom large in tort-based climate litigation.

Whether, and how, tort law can and should evolve in response to the challenges of climate change also ties to how we view the role of judges in our constitutional context. In Australia, tort law is a combination of common law and statute. While many tort principles are malleable, in order to ensure their appropriate application to a wide variety of factual matrices, Australian judges are likely to be wary of stepping too far into the domains of the legislature and executive when dealing with climate change. This raises the question of whether, and to what extent, the nature of the threat of climate change and the scale of regulatory failure to date warrant a more interventionist judiciary, as well as the risks of such a policy.

If some commentators are right and the prospects of successful torts claims for climate change harms in Australia is low,^[9] this prompts the question of whether such cases should be discouraged. Certainly, civil litigants in Australia face costs risks in pursuing cases that are unlikely to succeed.^[10] However, the appeal of tort law as part of a broader climate litigation strategy is understandable for a number of reasons. First, tort law has the capacity to evolve, sometimes radically, in the face of unprecedented new societal challenges, and it has done so before. For example, new realities brought about by the industrial revolution (such as the enlargement of risks of accidents and widespread pollution) resulted in developments in nuisance law and the emergence of the tort of negligence, a fact that may give cases from that era a renewed relevance today.^[11] Moreover, the failure of tort law to evolve appropriately in response to a pressing new social need may prompt the legislature to intervene. In Australia, examples include the emergence of alternative statutory compensation schemes in settings where risks of injury are particularly acute and the introduction of statutory institutional duties of care to protect against child abuse, each of which resulted in part to address perceived deficiencies in the common law of torts.

Increasingly, climate change is understood as a human rights problem. This links to a second factor that renders torts appealing in the Australian context, which is our lack of a federal human rights instrument to enable an alternative route to accountability. Tort law has sometimes been used to fill that gap, operating as a quasi human rights mechanism, for example in relation to the rights of asylum seekers.^[12] There are features of tort law that render it appealing for this role, including its concern with the protection of human interests considered either inviolable or fundamental to social order. Moreover, tort principles delimit broader normative spheres of public rights and wrongs.^[13] At the same time, the lack of a human rights instrument in Australia through which to frame and influence tort law development may make torts climate claims more challenging.

A third factor that can explain the turn to tort law as a part of a broader climate litigation strategy is the ways in which tort litigation can create desirable secondary social effects, irrespective of formal litigation success. For example, in the context of climate change, tort litigation might help to render better known factual histories of how we find ourselves still dependant on a carbon economy regardless of longstanding science about its risks; it might produce authoritative normative frameworks for thinking about the relationship of different actors to climate change and its harms; and, as discussed above, it might prompt policy reforms. For example, while the claim in Sharma v the Minister for the Environment, discussed below, formally failed, there is a political strategy building on that litigation towards the introduction of a statutory duty of care to protect against climate change.^[14]

Finally, it has been argued that the reason why tort law must engage with climate harms ties as much to the future of the field itself as to the interests of specific litigants. Arguments along these lines suggest that if tort law fails to evolve so as to be capable of grappling with the challenges of climate change, it will lose some of its social relevance. Courts will be forced to ‘deem nontortious activities that nevertheless threaten core interests tort law claims to protect’.^[15] The ability of tort law to adapt to the new realities of climate change is thus critical to ensure the future integrity of the field itself. In short, to survive, tort law ‘will need to be climatised’.^[16]