27 September 2006
The latest in a line of cases brought over climate change has just been filed in California against six vehicle manufacturers, raising the question of whether Australian companies could be at risk from this sort of litigation.
Californian State Attorney-General Bill Lockyer is claiming that the vehicles made by the companies emit carbon dioxide, a major greenhouse gas. Vehicles are responsible for 20 percent of these emissions in the US, and 30 percent in California. Greenhouse gases cause global warming, and global warming affects California in various ways, including reduced snow pack (which in turn reduces water resources), coastal and beach erosion, increased ozone pollution, sea water intrusion into Sacramento Bay-Delta drinking water supplies, and endangering wildlife. Additionally the State has already incurred, and will continue to incur, costs in monitoring ongoing and inevitable impacts.
The case uses a strategy already successfully used by US State Attorneys-General against tobacco companies to recover the health care costs caused by smoking.
Could this action be brought in Australia?
As we've seen over the last few years, public nuisance cases such as this one have not succeeded (yet) overseas. Theoretically a similar public nuisance case could be brought here.
Australian common law also recognises the action of public nuisance. There are two main requirements for this action: standing (ie. an interest that is affected) and damage to a public right. Attorneys-General would have standing to bring an action in public nuisance, (although they are unlikely to launch such a claim here). The emission of carbon dioxide which contributes to climate change could be the subject of a nuisance claim by particular classes of persons especially vulnerable to the effects of climate change (for example, farmers, wine growers, insurers).
As the regulation of greenhouse gases becomes more likely, so too does the prospect of civil enforcement proceedings of environmental laws by Green interest groups and individuals. One group has already put local companies on notice; Climate Action Network Australia (CANA), represented by plaintiff law firm Maurice Blackburn Cashman, wrote to the directors of selected Australian companies in 2003 of the financial risks which climate change posed to the companies.
There are however a number of legal and political hurdles in the way. For a claim to be successful it would however need to show actual damage had been suffered, amass compelling expert evidence of the defendant’s role in causing climate change, and make a causal connection between the defendant’s actions, climate change, and the alleged damage.
These cases have (so far) not succeeded, but Australian companies whose activities generate greenhouse gases need to assess how they would respond to a public nuisance action if it is brought in Australia and the likelihood of the emission of such gases being more stringently regulated.
