‘The cost of loss and damage of the 48 least developed countries is currently conservatively estimated to be USD$50 billion annually, while the 13 biggest fossil fuel companies made more than $100 billion in profits in 2014.’
Keely Boom, Julie-Anne Richards
‘Seeking direct civil liability against those responsible for greenhouse gas emissions – is the only [type of litigation] that holds out any promise of being a magic bullet. By targeting deep-pocketed private entities that actually emit greenhouse gases . . . a civil litigation strategy, if successful, skips over the potentially cumbersome, time-consuming, and politically perilous route of pursuing legislation and regulation.’
Professor Shi-Ling Hsu
Who pays the price for climate change? Should it be individual victims (whether in Kenya or Ecuador, India or the US); or the corporations whose products are causing the damage?
There is an economic and a justice aspect to the question. For as long as carbon majors can profit by displacing the social and economic costs of climate change onto others, they will continue to do so. Supporting the victims of climate change in bringing successful actions against the carbon majors simultaneously:
- promotes justice and accountability;
- harnesses market forces towards a timely decarbonisation.
The moral and policy case for establishing liability is itself a legally significant factor. Fair allocation of the costs of harms is a central concern of the law of tort. Courts do not like to leave victims without redress and, where necessary, may adapt existing legal principles to avoid this result, particularly where it is in the public interest to do so. When it comes to determining whether one party owes a ‘duty of care’ to another, courts will often explicitly consider whether the imposition of such a duty would be fair and reasonable.
For a time it was assumed that since everyone is responsible for at least some minimal level of greenhouse gas emissions, nobody could be found legally responsible. A number of factors now challenge that assumption:
- Research showing that a majority of human greenhouse gas emissions are attributable to just 90 ‘carbon majors’;
- Evidence that some fossil fuel companies have known about climate change risk since the 1970s, and deliberately sought to misrepresent it; and
- The increasing sophistication of scientific modellingwhich can now attribute not only changing weather patterns, but specific extreme weather events to anthropogenic greenhouse gas emissions to a high level of probability.
This section focusses on the potential liability of carbon majors for climate change loss and damage under:
- the law of tort (i.e. actions for negligence and / or nuisance);
- constitutional and human rights provisions (recognising the growing international tendency for such provisions to be applied ‘horizontally’).
Drawing on a 2014 ELAW report, the section also discusses the opportunities for commencing claims in some specific jurisdictions (Brazil, Columbia, Ecuador, India, Kenya, Mexico and Nigeria); and explains the potential for climate vulnerable countries (in particular) to establish their own conditions for liability.
Finally it considers the potential civil and criminal liability of fossil fuel companies for non / false disclosure regarding climate risk (an issue given topicality by the current investigation into ExxonMobil in the US).
Causes of action
Overview of torts of negligence and nuisance
A tort (or delict) involves action which causes injury to another, and entitles that other to seek compensation and / or other remedies through the courts.
In M.C. Mehta v. Kamal Nath the Supreme Court of India summarised the tortious nature of pollution as follows:
Pollution is a civil wrong. By its very nature, it is a Tort committed against the community as a whole. A person, therefore, who is guilty of causing pollution has to pay damages (compensation) for restoration of the environment and ecology. He has also to pay damages to those who have suffered loss on account of the act of the offender.
In common law systems, various categories of tort have been developed including:
- Negligence (i.e. causing harm to others in breach of a duty of care);
- Private nuisance, which has been defined as ‘any continuous activity or state of affairs causing a substantial and unreasonable interference with a [claimant’s] land or his use or enjoyment of that land’; and
- Public nuisance, which is an act or omission which endangers the life, health, property or comfort of the public, or obstructs the public in the exercise or enjoyment of common rights. Public nuisance is a crime, which becomes a tort where a particular individual (or class of individuals) shows they have been specially affected.
Each of these torts has potential application to climate change loss and damage. Prior to recent developments, a number of authors considered ‘nuisance’ to be the more viable approach. If, however, a claim where to include allegations that:
- carbon majors failed to take appropriate action despite their knowledge of climate change; and / or that
- they took positive steps to prevent others taking appropriate action on climate change,
then negligence is the more natural and flexible cause of action. The different elements of the different torts will be considered further below.
The law of negligence gives practical effect to a basic and essential idea of social responsibility: that people should take reasonable care to avoid causing harm to others.
In most common law jurisdictions establishing negligence requires proof of the following 4 elements:
i) Duty of care;
ii) Breach of duty;
iii) Causation; and
Duty of care
Different common law jurisdictions have adopted different approaches to establishing a duty of care. Central to the concept, however, is the ‘reasonable foreseeability’ of harm (indeed some jurisdictions, such as the US States of Florida and Massachusetts, make it the only test). Another key consideration will often be the overall fairness and reasonableness of imposing a duty of care.
From the time it becomes foreseeable that a company’s activities and products present a serious risk of harm to others, there will be a good argument that the company assumes a duty of care towards those others. From the time that fossil fuel companies (for example) became aware of their contribution to climate change, there is a good argument that they assumed a duty of care to those foreseeably affected (and in particular towards those most obviously in harm’s way).
Although a public law action, relevant in this context is the conclusion of the Dutch Court in the Urgenda case, regarding the Dutch Government’s duty of care (at 4.65):
The court also takes account of the fact that the State has known since 1992, and certainly since 2007, about global warming and the associated risks. These factors lead the court to the opinion that, given the high risk of hazardous climate change, the State has a serious duty of care to take measures to prevent it.
Breach of duty
Breach occurs where a person who owes a duty of care, fails to exercise the standard of care that might be expected of a reasonable person in that situation. In determining what steps are reasonable the court will consider factors such as:
- the defendant’s knowledge regarding the risks;
- the degree of risk (the greater the risk of substantial harm, the greater the precautions the defendant will be expected to have taken);
- the practicality of proposed precautions;
- the social utility of the activity in question; and
- common practice.
What steps would be expected of a reasonable company, in possession of information about the risks of climate change? Given the nature of the risks, and the implications for people generally, steps would include:
- sharing that information publicly;
- pursuing plans to establish a safe level of total emissions;
- appropriate levels of R & D into alternative technologies;
- assuming responsibility for those adversely affected by climate change.
The standard test for causation in tort is the ‘but for’ test – i.e. the claimant’s damage would not have occurred ‘but for’ the defendant’s negligence.
Where, however, scientific complexity makes the test unreasonably difficult for claimants to satisfy, courts have shown willing to adopt alternative formulations to ensure justice is served, such as whether the acts or omissions of the defendant ‘materially increased‘ the risks of the alleged damage occurring. A two stage test may be appropriate to the context of climate change:
i) Can the claimant show on the balance of probabilities that loss and damage is attributable / part attributable to the anthropogenic increase in atmospheric concentrations of greenhouse gases? If so,
ii) Has the defendant materially contributed to that increase?
For a claim in negligence to succeed, the Claimant must show that they have suffered a relevant form of damages in consequence of the defendant’s breach of duty. Primary damages may include injury to the person (including psychiatric harm), damage to property, and, in some circumstances, purely financial loss. Generally speaking, a duty of care is more readily recognised in relation to physical damage to person or property, than for purely financial interests. Secondary damage is that which follows as a consequence on the primary injury (for example, loss of income as a result of damage to land).
Injury to person or property resulting from climate change induced drought or flooding will fall within the scope of recoverable damages.
2. Private Nuisance
Apportioning responsibility for climate change damage has been made much easier by Rick Heede’s research into carbon majors. The general problem of attribution, however, has been addressed in other contexts; and courts have shown a willingness to develop principles to ensure complex issues of attribution do not prevent victims obtaining justice.
In Sindell v. Abbott Laboratories, 26 Cal. 3d 588 (1980), the Supreme Court of California pioneered the doctrine of ‘market share liability’.
The plaintiff in Sindell was a young woman who developed cancer as a result of her mother’s use of the drug diethylstilbestrol (DES) during pregnancy. A large number of companies had manufactured DES around the time the plaintiff’s mother used the drug. Since the drug was a fungible product and many years had passed, it was impossible for the plaintiff to identify the manufacturer(s) of the particular DES pills her mother had actually consumed.
The court decided to impose a new kind of liability, known as ‘market share liability’. The essential components of the doctrine are as follows:
- All defendants named in the suit are potential tortfeasors (that is, they did produce the harmful product at issue at some point in time).
- The product involved is fungible.
- The plaintiff cannot identify which defendant produced the fungible product which harmed her in particular, through no fault of her own.
- A substantial share of the manufacturers who produced the product during the relevant time period are named as defendants in the action.
If these requirements are met, a rebuttable presumption arises in favor of the plaintiff; if she can prove actual damages, then a court may order each defendant to pay a percentage of such damages equal to its share of the market for the product at the time the product was used.
It is notable that the problem of attribution in the Sindell case was in fact more pronounced than it would be in a case for climate change damages. In Sindell, the Plaintiff may have injured by the product of one Defendant, but not others. The doctrine involves companies who may have had no direct connection with the victim, paying her damages. By contrast, thanks to the work of Rick Heede, it is possible to determine a much more precise relationship between a particular fossil fuel company, and its contribution to climate change damages.
In 2005, the Federal Court for the Southern District of New York, considered the issue of attribution in the context of an allegation that a gasoline additive, MTBE, had contaminated water supplies (In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 379 F. Supp. 2d 348, 377 (S.D.N.Y. 2005)). It noted that some of the factors for applying the market share liability doctrine were absent, but stated:
[F]rom time to time courts have fashioned new approaches in order to permit plaintiffs to pursue a recovery when the facts and circumstances of their actions raised unforeseen barriers to relief.
It developed and applied a new doctrine, ‘commingled product theory.’ As summarised in 2013 proceedings:
Under this theory, when a plaintiff can prove that certain gaseous or liquid products (e.g., gasoline, liquid propane, alcohol) of many refiners and manufacturers were present in a completely commingled or blended state at the time and place that the harm or risk of harm occurred, and the commingled product caused plaintiff’s injury, each refiner or manufacturer is deemed to have caused the harm. Each defendant is then given the opportunity to exculpate itself by proving that its product was not present at the relevant time or in the relevant place, and therefore could not be part of the commingled or blended product.
Before the rebuttable presumption undergirding this theory is activated, a plaintiff must prove by a preponderance of the evidence that the defendant contributed-in-fact to the injury by showing that each defendant’s product was part of the commingled mass that injured the plaintiff. The theory thus requires the plaintiff to prove that each defendant’s gasoline was part of the commingled product, but relieves the plaintiff of the duty to prove that each individual defendant’s contribution to that product, in and of itself, was sufficient to have caused an injury. “Rather, to establish liability against a particular defendant with respect to an individual well, [the plaintiff] must show that (a) the defendant’s MTBE was present in a commingled product and (b) that the commingled product [rather than defendant’s product alone] caused plaintiff’s injury.”
The combination of ‘commingled product theory’ with Rick Heede’s research into the contribution of ‘carbon majors’ to total greenhouse base emissions, provide a sound technical basis for attributing climate change loss and damage to fossil fuel corporations and others.
Corporate liability for violations of human rights
ELAW report: ‘A rights-based approach to climate change litigation is most promising in countries where private entities are subject to accountability for violating an individual’s fundamental rights. Some courts, such as those in the United States, have broadened application to private entities when they are found to be acting as the state or meet a similar narrow exception.
Courts in at least a few countries have gone further. Professor Danwood Mzikenge Chirwa asserts that the basic rights found in the constitutions of Ireland and South Africa are directly enforceable against private entities. ELAW looked for other countries where fundamental rights are directly enforceable against private entities. As described below, we found that courts in Brazil, Colombia, Ecuador, India, Kenya, and Mexico will hold or are likely to hold private entities liable for violations of fundamental rights.’
Identifying favourable jurisdictions
ELAW: ‘Constitutions in some countries contain provisions that would support a climate damages case filed against a private corporation. Our research found clear indications that courts in Brazil and Colombia will hold private corporations liable for violating fundamental rights; and very likely that courts in Ecuador, India, Kenya and Mexico would do so, too. Because constitutional provisions can be coupled with strong laws in Brazil, Colombia, Kenya and Mexico, filing a case in one of these four countries gains even more appeal.
Finally, we identified two procedural strategies worth noting because they could complement climate litigation arising out of the countries mentioned above. The first is that plaintiffs could file a case in a European Union Member State against a corporation domiciled in that country for climate damages that take place outside of Europe. Moreover, courts in at least the Netherlands have asserted jurisdiction over corporations affiliated with the EU-domiciled corporation. And finally, it appears that EU courts would apply the substantive law from the country in which the damages occurred. Therefore, one potentially strong case would be to file a claim on behalf of impacted Brazilians in a court in the Netherlands against Royal Dutch Shell, and any affiliated corporations, based on the substantive domestic laws of Brazil.
The second strategy would be to use a U.S. law that allows parties engaged in litigation in a tribunal outside the United States to conduct discovery from entities based within the United States. This procedural tactic would allow litigants to gain access to important evidence to support their cases.
Country case studies
nb. these case studies are derived from the ELAW report, which contains full references to relevant legal provisions.
The Constitution of India incorporates the right to life in Article 21, and the right to equality in Article 14, as well as imposing duties on the state and citizens to protect the environment in Articles 48A and 51A(g). Courts in India have interpreted this collection of rights and duties to confer the right to live in a healthy environment on all Indians. In M.C. Mehta v. Kamal Nath, the Supreme Court discussed the interplay of constitutional rights in India and confirmed that courts have authority to award financial damages against entities that violate the right to live in a healthy environment. The Court explained:
One of the fundamental duties of every citizen as set out in Article 51A(g) is to protect and improve the natural environment, including forests, lakes, rivers and wildlife and to have compassion for living creatures. These two Articles have to be considered in the light of Article 21 of the Constitution which provides that no person shall be deprived of his life and liberty except in accordance with the procedure established by law. Any disturbance of the basic environment elements, namely air, water and soil, which are necessary for “life”, would be hazardous to “life” within the meaning of Article 21 of the Constitution …
In the matter of enforcement of Fundamental Rights under Article 21 under Public Law domain, the Court, in exercise of its powers under Article 32 of the Constitution has awarded damages against those who have been responsible for disturbing the ecological balance either by running the industries or any other activity which has the effect of causing pollution in the environment. The Court while awarding damages also enforces the “POLLUTER PAYS PRINCIPLE” which is widely accepted as a means of paying for the cost of pollution and control. To put in other words, the wrongdoer, the polluter, is under an obligation to make good the damage caused to the environment …
The powers of this Court under Article 32 are not restricted and it can award damages in [public interest litigation] or a Writ Petition as has
been held in series of decisions. In addition to damages aforesaid, the person guilty of causing pollution can also be held liable to pay exemplary damages so that it may act as a deterrent for others not to cause pollution in any manner.
Article 14 of the Ecuadorian Constitution recognizes a right to live in a clean and ecologically balanced environment that guarantees sustainability and good living. It also grants rights to nature itself, declaring that nature must be respected and has the right to maintain and regenerate its lifecycles, structure, functions, and evolutionary processes. Any person is allowed to petition public authorities to ensure these rights are fulfilled. Nature is also granted the right to its restoration, and this right is independent of other obligations requiring those responsible for damages to compensate individuals or communities that depend on the affected natural systems.
The Constitution requires that whomever causes environmental damage must restore the damaged ecosystem to its original state, regardless of whether the party intended to cause the damage. Article 396 declares that strict liability will govern claims alleging environmental damage and, in addition to any sanctions, the responsible party has an obligation to restore the ecosystem and compensate affected people and communities. The same article explains that no statute of limitations will apply to environmental cases.
In Article 397, the state pledges to permit any person, community, or legal entity, to bring legal actions without demonstrating a direct interest. In addition, the burden of proof as to whether real or threatened damage exists lies with the one carrying out the act or the defendant. Article 395 states that in case of doubt related to legal provisions on environmental matters, they will be interpreted in the light most favorable to protecting the environment.
In 2002, in the case of Guevara Batioja v. Petroecuador, the former Ecuadorian Supreme Court, noting a trend towards strict liability in environmental cases, especially in the jurisprudence of France, Argentina, and Colombia, stated:
we completely agree with this position, and this is the reason that we adopt it as the basis of this decision, in light of the fact that the production, industry, transport, and use of hydrocarbons constitute, without a doubt, activities of high risk or danger.
In 2012, an Ecuadorian Court stated that the right of Nature is:
a right of constitutional rank and that, due to its hierarchical superiority, directly binds everyone, whether they are public entities or private persons.
In Brazil, the Constitution grants any citizen the right to bring a legal action to nullify an act that causes harm to the environment. Such action will not incur judicial costs unless it has been brought in bad faith. A case invoking this provision may be filed as an Ação Popular under Lei no 4.717/65.4.
In addition, the National Environmental Policy Act of 1981, Lei 6.938/81,50 imposes liability on polluters to restore the environment or compensate for its damage. The Act defines a polluter as a public or private person (physical or juridical) that is responsible (directly or indirectly) for activity that causes environmental degradation. The Act defines degradation of the quality of the environment to be the adverse alteration of some characteristics of the environment; and pollution is the degradation of the environment by an activity that either directly or indirectly threatens the health, safety or well-being of the population; creates adverse conditions for social or economic activities; or adversely affects biota.
An objective of the National Environmental Policy Act is to impose on the polluter the obligation to restore the environment or pay economic damages for harmcaused to the environment. The Act declares “[w]ithout prejudice to the application of the sanctions foreseen herein, the polluter is obligated, independent of the existence of fault, to compensate or repair the harm caused to the environment and to third parties affected by the polluter’s activity.”
In one case (Recurso Especial No. 1.236.863 – ES (2011/0028375-0)), Minister Herman Benjamin declared that when more than one entity is responsible for damage, liability should be imputed to both entities. Arguing about which entity carries a greater responsibility will be a hurdle to facilitating access to justice for the victims.
Courts, including the Supreme Federal Court, have shifted the burden of proof to the defendant in environmental cases. Courts have required the defendant to demonstrate that it is not responsible for the damage caused rather than leaving the burden of affirmatively proving causation on the plaintiff. Courts have reasoned that the imposition of objective liability, the precautionary principle, the polluter pays principle, and the principle in dubio pro natura, all call for the evidentiary burden to be shifted.
In 2013 the Supreme Court explained (Supremo Tribunal de Justiça. AgRg RE No. 206.748/SP, Relator Min. Villa Boas Cueva (21 February 2013) that the Environmental Policy Act “adopted the system of objective liability … such that it is irrelevant, herein, to discuss the conduct of the agent (guilt or fraud) for the attribution of the duty to repair the harm caused.” The Court emphasized the appropriateness of objective liability where profits are gained by the potentially harmful activity at issue: “[I]f a given risky activity is performed and, above all, profits are gained from this [activity], the company must take responsibility for harms that it may eventually cause to others, independently of the evidence of fraud or guilt.”
It is clear that courts in Colombia have authority to hear a case against a corporation that has violated the right to a healthy environment. In addition, Colombian law uniquely allows an injured community to seek relief even if the community cannot identify the party responsible for the injury. This provision would allow a community that has been harmed by climate change (or is threatened with harm from climate change) to file a case and petition the judge to determine the party responsible for the damage or threat.
According to Article 79 of the Colombian Constitution, every person has the right to enjoy a healthy environment. Article 88 of the Constitution establishes that the right to a healthy environment is a collective right that may be protected through an Acción Popular. The Colombian Constitutional Court has declared that the right to a healthy environment is a right owed to all humanity including unborn future generations.
The ability to enforce the fundamental right to a healthy environment through an Acción Popular has been codified in Law 472 of 1998. Under this law, plaintiffs may bring an Acción Popular to prevent harm; stop the danger, threat, or infringement of collective rights and interests; or achieve restoration of circumstances to their original state, when it is possible. The Constitutional Court has noted that one of the characteristics of the Acción Popular is its preventive nature. Actual damage to a collective right is not needed because the Acción Popular was designed to prevent damage to public interests.
Any natural or legal person, a non-governmental organization, or the General Procurator of the Nation (Procurador General de la Nación), among others, may file an Acción Popular. Any member of an impacted group may bring a claim to defend the group from the threat or damage to a collective right.
The right to a healthy environment can be enforced against corporations. An Acción Popular may be brought against a natural or legal person, or against a public authority whose action or omission threatens, violates, or has violated the right or collective interest. An Acción Popular may even be brought against an unknown party. In this case, when the person bringing the claim does not know the person or entity that threatened or violated the collective right, the judge will be responsible for determining the identity of the party.
Because the right to a healthy environment is a collective right, it is a substantive right that the courts will protect by issuing orders enjoining or requiring action. According to the Constitutional Court, the Acción Popular is a mechanism that aims to reestablish the use and enjoyment of collective rights such as the right to a healthy environment. Further, Law 472 of 1998 establishes that the courts may, when protecting collective rights, order the defendant to do or not to do something, or to pay damages for the harm it caused. Any monetary damages are paid to the government entity charged with protecting the affected collective rights, provided that entity is not responsible for causing the injury. According to the Constitutional Court, this payment is necessary to enable the government to repair the threat or violation of the collective right
The Federal Code of Civil Procedures (‘CPFC’), following reforms in 2011, provides several promising causes of action including an acción colectiva en sentido estricto, which can be brought to remedy violations of collective rights and interests that have been suffered by a definable group of people; and an acción difusa to repair damages to the collective environment.
An acción colectiva en sentido estricto can be brought on behalf of a group of at least 30 people similarly injured. The individuals in the class can be identified before or after the case. Injured individuals can be identified up to 18 months after the final judgment. Each member of the class then must prove their individual damages through an independent procedure. The ability to form a class after the final judgment would save the expense of gathering the class if the action were to unexpectedly fail.
Such a case could be filed by a single representative of the injured group of people or by an appropriate civil society organization. The civil society organization does not need to allege harm to itself or be made up of injured individuals.
Any case brought under the CFPC must be filed within three years and six months of the action that caused the damage. However, for damages of a continuing nature, the time limit starts to toll from the last day that the damage is generated. This is a helpful principles for a case related to climate change; because of the ongoing nature of climate change damages, the statute of limitations never tolls.
Filing a case under the CFPC seems promising for many reasons. One is that the process for initiating an action under the CFPC is relatively simple. In addition, judges exercising jurisdiction under the code have broad authority to compel government officials or parties named in the case to produce evidence. Furthermore, a judge can bring in any person — of its own motion or at the request of a party — to resolve the case.
Under the CFPC, the court has the authority to order reparation of the damages to the individuals or community, as well as reparation of damages to the environment. Under an acción colectiva en sentido estricto, the focus is on remedying harm suffered by the injured individuals. The court has the authority to order payment of financial damages, as well as enjoining activities that would cause additional harm. Each member of the injured class must go through an individual process to prove specific damages to determine the amount that must be paid to that individual.
Under the alternative process – an acción difusa – the goal is to restore things to the way they were before the injury occurred. When it is not possible to achieve restoration, the court may require a payment be deposited in a fund. If the judge determines the case addresses a social interest, the fund may be used to pay the costs associated with bringing the case, as well as paying an honorarium to a public interest organization that initiated the case of up to 10-20% of the total damages awarded to the plaintiffs.
In addition to awarding damages, Mexican courts have the authority to issue injunctions to stop activities that cause or will cause imminent or irreparable damages to the class. Importantly, a plaintiff may seek a preliminary injunction without any obligation to post a financial guarantee to cover the cost of any monetary harm suffered by the defendant should the plaintiff’s case not succeed. Another helpful provision requires each side to bear their own costs in the case, which shields plaintiffs from the risk of having to pay the defendants’ costs if the plaintiffs lose.
ELAW identified Kenya as a favourable action to commence a claim for climate change damages even prior to the passing of its Climate Change Act 2016.
Kenyans suffering from climate impacts could file a strong case based on rights found in the Constitution of Kenya (2010) coupled with relevant sections of the Environmental Management and Co-ordination Act (1999). The opportunity to bring a case in Kenya became even more promising with the creation of the Environment and Land Court (further to 2011 legislation), which is specifically authorized to hear cases related to climate issues, and the passing of theClimate Change Act 2016.
Article 42 of the Constitution of Kenya, part of the Bill of Rights, recognizes that every person has the right to a clean and healthy environment. This right is further elaborated in Articles 69 and 70. Article 69 declares “Every person has a duty to cooperate with State organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources.” Article 70 ensures that a person whose right to a healthy environment has been violated, or is likely to be violated, may go to court to protect that right. The Constitution specifically grants Kenyan courts the power to award compensation and reduces the evidentiary hurdles for petitions enforcing the right to a healthy environment by relieving petitioners of the burden to demonstrate particular harm.
Article 70 states:
(1) If a person alleges that a right to a clean and healthy environment recognised and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter.
(2) On application under clause (1), the court may make any order, or give any directions, it considers appropriate––
(a) to prevent, stop or discontinue any act or omission that is harmful to the environment; . . .
(c) to provide compensation for any victim of a violation of the right to a clean and healthy environment.
Article 70 is expressed in broad terms, that appear to provide for an order directed against a particular company (for example). Further, Article 20(1) of the Constitution is explicit that:
The Bill of Rights applies to all law and binds all State organs and all persons.
The point is emphasised in recent case-law from Kenya.
In Satrose Ayuma v. Registered Trustees of Kenya Railway Staff Retirement Benefits Scheme, Judge Lenaola stated as follows:
I am . . . aware that [under the Constitution], this Court is obligated to develop the law to the extent that it gives effect to a right or fundamental freedom; and it must adopt an interpretation that favours the enforcement of a right or fundamental freedom, in order to promote the spirit and objects of the Bill of Rights . . . . It is thus clear to my mind that it would not have been the intention of the drafters of the Constitution and the Kenyan people who overwhelmingly passed the Constitution that the Bill of Rights would only bind State Organs. A purposive interpretation . . . would imply that the Bill of Rights binds all State Organs and all persons, whether they are public bodies or juristic persons.
It also seems clear to me therefore that from a wide definition of the
term “person” as contained in Article 260, the intention of the framers of the Constitution was to have both a vertical and a horizontal application of the Bill of Rights.
[t]he issue whether the Bill of Rights applies horizontally or vertically is beyond [doubt].
It went on to say:
A number of jurisdictions around the world recognise the horizontality of the bill of rights while others have confined themselves to the vertical application. Some Constitutions expressly specify whether the human rights provisions are enforceable against private individuals and bodies or only against the State. All in all, the doctrine of horizontal application has been likened to ‘a gifted but neglected child with huge potential that is seeking to be released.’
Nyamu J., in the Richard Nduati Kariuki v Leonard Nduati Kariuki and Another  Misc App. No. 7 of 2006  eKLR cites a quote by J. Balkan, The Corporation: The Pathological Pursuit of Profit and Power (New York, Free Press, 2004) where it is stated, “The diffusion of political authority in the context of the global economy has led to concerns about the ability of constitutionalism to operate as a check on political power if it speaks only to the state. Moreover, there is growing awareness-perhaps fuelled by recent examples of corporate corruption and wrong doing-that private power as much as public power has the capacity to oppress.”
I take the positions that the from the history of [the] country and the events leading up to the promulgation of the Constitution leave no doubt that it was intended to be a transformative document. I would be hesitant to adopt a hard and fast position that would prevent the principles and values of the Constitution being infused into the lives of ordinary Kenyans through application of the Bill of Rights to private relationships where necessary.
Abdalla Rhova Hiribae v. Attorney General clarifies that courts may enforce violations of the right to live in a healthy environment even if the activities complained of occurred before the adoption of the 2010 Constitution.
Section 3(1) of the Environmental Management and Coordination Act 1999, states:
Every person in Kenya is entitled to a clean and healthy environment and has the duty to safeguard and enhance the environment.
The Act also ensures that a person alleging a violation, or a likely violation, of this right “may apply to the High Court for redress[.]” The High Court has the power to require “the persons responsible for the environmental degradation to restore the degraded environment as far as practicable to its immediate condition prior to the damage; and . . . provide compensation for any victims of pollution and the cost of beneficial uses lost as a result of an act of pollution and other losses that are connected with or incidental[.]” In exercising its jurisdiction, the High Court must consider certain sustainable development principles, including the polluter pays principle.
Finally, similar to the Constitution, the EMCA grants broad standing, ensuring that any person “shall have the capacity to bring an action [under the EMCA] notwithstanding that such a person cannot show that the defendant’s act or omission has caused or is likely to cause him any personal loss or injury.”
Kenya’s Environment and Land Court Act 2011, establishes a specialist court, with (s.13(2)):
power to hear and determine disputes relating to environment and land, including disputes . . . relating to . . . climate issues.
Kenya’s Climate Change Act 2016, section 23, enables a person to bring an action to the Environmental and Land Court on the basis that:
a person has acted in a manner that has or is likely to adversely affect efforts towards mitigation and adaptation to the effects of climate change.
The applicant does not have to demonstrate that a person has incurred loss or suffered injury (s.23(3)).
In Jonah Gbemre v. Shell Petroleum Development Company of Nigeria, the applicant, representing the Iwherekan community, complained that Shell and a Nigerian state oil company were violating the community’s right to life and their right to live in dignity by flaring gas during oil production. The Court held that constitutionally guaranteed rights to life and dignity “inevitably includes the right to clean, poison-free, pollution-free healthy environment.” Without discussing whether it was appropriate to enforce a fundamental right against a private corporation, the Court found that both Shell and the state-owned corporation violated the applicant’s “fundamental right to life (including healthy environment) and dignity of human person as enshrined in the Constitution” by flaring gas.
A case to enforce fundamental rights in Nigeria may be brought under the Fundamental Rights (Enforcement Procedure) Rules of 2009 (FREP Rules). The FREP Rules grant “any person” the right to bring a case alleging a violation of fundamental rights. The Preamble to the FREP Rules encourages broad standing and asserts that courts cannot dismiss human rights cases for lack of standing:
The Court shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or struck out for want of locus standi. In particular, human rights activists, advocates, or groups as well as any non-governmental organisations, may institute human rights application on behalf of any potential applicant.
In addition, the FREP Rules ensure that fundamental rights cases “shall not be affected by any limitation Statute whatsoever.”
If a Nigerian court has jurisdiction to enforce fundamental rights against private corporations, the FREP Rules include provisions that could help applicants address the potential legal barriers of standing and statute of limitations. However, experience with the Gbemre case shows that it may be difficult to enforce a decision against an oil company in Nigeria.
Conflict of laws
While climate vulnerable countries may have favourable legislation for commencing a claim for climate change damages, there may be practical obstacles to enforcing claims against overseas companies through national courts. In some situations a good strategy may be to commence legislation in the country where the relevant defendant company (or its parent company) is domiciled, relying on the substantive law of the country where the harm is occurring.
Companies in Europe – filing under the Brussels Regulation
Communities impacted by greenhouse gas emissions traceable to a company domiciled in a European Union Member State could choose to file a case in a court of that EU country. Council Regulation (EC) No. 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (“Brussels Regulation”) allows foreign nationals to bring such a claim to the court of an EU Member State regardless of where the events leading to the claim took place.
The Brussels Regulation declares that “persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.” A company or other legal person is domiciled where it has its “(a) statutory seat, or (b) central administration, or (c) principal place of business.”
In Oruma v. Royal Dutch Shell, Nigerians filed a case in the District Court of The Hague against Royal Dutch Shell (“Shell”) and its Nigerian subsidiary, Shell Petroleum Development Company of Nigeria, Ltd. (“Shell-Nigeria”) for damages arising from an oil spill in Nigeria. The plaintiffs asked the Court to find the two companies jointly and severally liable for tortious conduct. The plaintiffs argued, “As ‘operator’ of the oil pipeline, [Shell-Nigeria] is liable to pay compensation to [the plaintiffs]. [Shell-Nigeria] breached its duty to exercise due care because it failed to prevent the oil spill, commenced the clean-up too late and conducted an incomplete clean-up. In addition to [Shell-Nigeria], [Shell] is jointly and severally liable to pay [the plaintiffs] compensation. As [Shell-Nigeria’s] parent company, [Shell] should have exercised its influence on and control over [Shell-Nigeria’s] (environmental) policy to prevent [Shell-Nigeria] from inflicting the damage at issue on people and the environment to the extent possible. According to [the plaintiffs], [Shell] breached this duty to exercise due care.”
The Court accepted that it had jurisdiction over claims related to Shell under the Brussels Regulation because Shell is domiciled in the Netherlands.
Shell-Nigeria argued that the Court did not have jurisdiction over claims against it. Shell-Nigeria argued additionally that the plaintiffs abused “procedural law by initiating claims against [Shell] on a patently inadequate basis for the sole purpose of creating jurisdiction with regard to [Shell-Nigeria] . . . .”.
Because Shell-Nigeria is not domiciled in an EU Member State, whether the Dutch court has jurisdiction over the company is governed by Dutch law, which states:
In the event that the Dutch court has jurisdiction over one of the defendants in matters that must be initiated by a writ of summons, the Dutch court also has jurisdiction over other defendants involved in the same proceedings, provided the claims against the various defendants are connected to such an extent that reasons of efficiency justify a joint hearing.
In considering whether the claims were connected to such an extent to justify a joint hearing, the Court noted, ‘that the case alleged the two companies were liable for the same damage, which also follows from the claim for a joint and several order for [Shell] and [Shell-Nigeria]. This means that the same complex of facts in Nigeria must be assessed in respect of the claims against both [Shell] and [Shell-Nigeria]. The court finds that this fact alone demonstrates a connection to such an extent that reasons of efficiency justify a joint hearing of the claims against [Shell] and [Shell-Nigeria]. That all or part of these facts and circumstances did not occur in the Netherlands is not exceptional in Dutch case law and does not lead to a different opinion on sufficient connection and efficiency.’
In addressing the complaint that the plaintiffs filed a case against Shell only to gain jurisdiction over Shell-Nigeria, the Court explained that “abuse of procedural law can only be assumed very rarely, in particular if a claim is based on facts and circumstances which the plaintiffs knew or should have known were (obviously) incorrect or based on arguments which the plaintiffs should have realised beforehand had no chance of success (whatsoever) and thus were completely unsound . . . .” The Court found there was no abuse of procedural law because the plaintiffs’ arguments were not unsound given that “the corporate veil in group relationships may be directly or indirectly pierced, albeit under exceptional circumstances.”
The Court found that it had jurisdiction over both Shell and Shell-Nigeria.
In a later proceeding, the Court consolidated the case with a related case and addressed the merits. The Court applied Dutch conflict of laws rules and determined that Nigerian substantive law would apply to the allegations that the companies had committed torts injuring the plaintiffs. Based on Nigerian law, the Court dismissed the plaintiffs’ claims.
In a related case, Akpan v. Royal Dutch Shell, the District Court of The Hague found Shell-Nigeria had committed a tort and required Shell-Nigeria to compensate the injured Nigerians. The Court found that “under Nigerian law, [Shell-Nigeria] committed a specific tort of negligence against Akpan by insufficiently securing the wellhead of the . . . well prior to the two oil spills in 2006 and 2007. . . and order[ed] [Shell-Nigeria] to compensate Akpan for the damage he suffered as a result . . . .”
On 27 May 2016, the High Court of England and Wales held that the English courts were the appropriate forum for 1,826 Zambian citizens (the Claimants) to sue Vedanta Resources Plc (Vedanta), one of the world’s largest mining companies, and its Zambian-domiciled subsidiary (KCM and, together with Vedanta, the Defendants) – underlining the growing trend for parent companies to be held to account in their home jurisdiction for the harmful acts of their overseas subsidiaries.
Vedanta, domiciled in the UK, argued that it did not owe a duty of care towards the Claimants, who alleged that they had suffered harm resulting from the Zambian operations of KCM, Vedanta’s Zambian-domiciled subsidiary.
The High Court noted that previous cases had established that a claim in negligence in the English courts against a parent company arising out of the operations of its subsidiary might give rise to liability. The Court noted a Zambian court’s conclusion in a previous case that KCM “was shielded from criminal prosecution by political connections and financial influence.” Consequently, the High Court concluded that even if it had not been obliged to find England to be the appropriate forum, the inability of the Claimants to access justice in Zambia would have led the High Court to exercising its discretion to reach the same conclusion.
U.S. Discovery in Foreign Proceedings
If a case is filed in a court outside of the United States, U.S. law allows parties to conduct discovery in the United States to obtain testimony, documents or other evidence for use in the foreign proceeding. This discovery law could prove to be an invaluable tool in climate cases. It could, for example, help gain access to documents held by corporations with a presence in the United States that might help support a plaintiff’s claim in a developing country.
The law, 28 U.S.C. § 1782, states, in part:
The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal . . . . The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. . .
In Intel Corp. v. Advanced Micro Devices, the U.S. Supreme Court held that district court judges have broad discretion in determining whether to grant a section 1782 request, subject to statutory requirements and prudential guidelines. Information that may be obtained under a section 1782 discovery request must be non-privileged information that is relevant to a party’s claim or defense, as required under Rule 26 of the Federal Rules of Civil Procedure.
Section 1782 discovery requests have proven powerful in other cases and are likely to be very helpful in any climate damages case filed against a multinational corporation in a court outside the U.S
Companies may be subject both to the environmental regulation of the states in which they operate and their home state (i.e. state of incorporation or registration).
States may apply their environmental legislation extra-territorially in relation to any activity which is having, or likely to have, an effect in that state (‘ the effects doctrine’).
The UK, in other words, could require BP to comply with UK environmental law in respect of all of its operations; and any country likely to be affected by BP’s operations might apply its laws to BP.