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Climate Change Liability Some issues from a London perspective. Richard Lord Q.C. 13 September 2012. Why might this be of interest ?. Looking backwards – analysis of rights and responsibilities for past actions Looking forward – a key driver for future behaviour

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climate change liability some issues from a london perspective

Climate Change LiabilitySome issues from a London perspective

Richard Lord Q.C.

13 September 2012

why might this be of interest
Why might this be of interest ?
  • Looking backwards – analysis of rights and responsibilities for past actions
  • Looking forward – a key driver for future behaviour
  • A part of the matrix of scientific, political, economic and ethical considerations
what do we mean by liability
What do we mean by liability
  • Determination of legal rights and obligations
  • But narrowed to leave out contractual obligations
  • Widened to include soft law
  • No such thing as climate change law
the ultimate cross cutting issue
The ultimate cross cutting issue
  • Interlocks with security, food, water, all sorts of CPRs/ESCRs and economic issues
  • Not everything which may affect or be affected by CC
  • Still a broad mix of public/administrative law, private law, constitutional and trust law, criminal law, competition law
law and politics
Law and Politics
  • Not here looking at liability under UNFCCC. But its provisions very relevant
    • Driven by scientific imperatives
    • But only so far – it is what is politically possible and not what is necessary
  • Litigation is a blunt instrument – but more effective than a soft one.
  • Convergence of public and private law concepts (CBDR, Inter and intra generational equity, precautionary principle, “no harm”)
risk quadrant further thoughts 1
Risk quadrant – further thoughts (1)
  • Iterative – effective regulation is often challenged but should lead to less damage
  • BUT in 2012 past that stage – UNFCCC framed round mitigation – now more and more focus on adaptation and even compensation within UNFCCC
  • Irony that “political question” and “pre-emption” doctrines rolled out in US which has done least to legislate at least at federal level.
risk quadrant further thoughts 2
Risk quadrant – further thoughts (2)
  • Also iterative because CREDIBLE THREAT of liability drives behaviour change
  • Business often has
    • Longer time lines
    • Less clouded vision

than Government

insurance persepctive
INSURANCE PERSEPCTIVE
  • Key roles of insurers - property and liability – (Steadfast v AES) so first and third party risks
  • Also
    • significant costs exposure under “duty to defend”
    • Increase in liability claims for “secondary liability” claims – architects, engineers, public authorities etc.
insurers not just business as usual
Insurers – not just “Business as Usual”
  • Significant opportunities for insurers who understand the market
    • Conventional products (CGL/EIL) adapted to Climate Change Risks
    • New products – CAT bonds, microinsurance
  • Leaders – Swiss Re:, Munich Re: Zurich, Geneva Association etc
liability 1 public
Liability (1) - Public
  • Numerous
  • Often unglamorous - though see
    • Platform, People and Planet v HM Treasury (2009)
    • FSM v Prunerov(2010)
public law continued
Public law (continued)
  • Varied
    • Pendulum swing or type of action (claim by or against industry) swings with regulatory climate
    • Environmentalists shut down coal fired power stations
    • Civil society actions wider than traditional environmentalism
war of attrition
War of attrition ?
  • Business challenges to regulation. See
    • Decision of 26 June by USCA (DC Circuit) – Coalition for Responsible Regulation v EPA – EPA Rules upheld
    • Decision of 21 August 2012 by USCA (DC circuit) EME Homer v EPA. EPA Rules held to be invalid
public international law
Public International Law
  • Largely concerned with Treaty Rights but
    • Question of invocation of “no harm” principle at a state/state level (FIELD report October 2010)
    • September 2011 Palau called for an ICJ advisory opinion on the obligations and responsibilities of states under international law to avoid transboundary harm caused by greenhouse gas emissions
liability 2 private primary
Liability (2) Private (primary)
  • Holy Grail of environmentalists
  • Claims in negligence and nuisance
  • Interesting and difficult questions of causation, foreseeability, negligence.
  • US claims have actually run into the sands on questions of justiciability and standing – AEP, Comer, Kivalina
  • But for other problems see Gerrard (2011) Yale Law Journal 135
liability 3 information
Liability (3) Information
  • Disclosure and information and risks (Client Earth invocation of Financial Review Reporting Panel, US S-K 101). Pressures from
    • Regulators
    • Environmentalists/Civil Society
    • Shareholders
  • R2I (Right to Information)
    • Art 10 ECHR
    • Art 19 ICESCR
the wrong information
The wrong information
  • False information – advertising regulations
  • False information – conspiracy claims as advanced in Kivalina and Comer
liability 4 secondary private liability
Liability (4) – Secondary private liability
  • Failure to take account of effects. Primary target – public authorities, engineers, builders and professionals
    • Dams Katrina Canal Breaches Litigation (2009)
    • Fire breaks
    • Buildings
liability 5 competition and anti trust
Liability (5) -Competition and anti-trust
  • Still in infancy
  • But possible rise of liability in relation to unfair competition by “high carbon” economies externalising cost
liability 6 public trust
Liability (6) – Public Trust
  • An ancient doctrine
  • Reinvigorated with US “Youth Filings” May 2011
  • But no success yet – eg Montana Supreme Court decision refuses to declare the atmosphere to be subject to a public trust (June 2011)
liability 7 soft law
Liability (7) Soft law
  • Key driver
  • “Who cares wins”
    • OECD
    • Equator Principles
    • Explosion of corporate conduct charters
  • Lateral thinking – problems in Uganda, solutions in New York
liability 8 rights based
Liability (8) Rights based
  • Constitutional
  • New constitutions have express environmental rights –
    • Kenya,
    • Ecuador (plus standing for “Pacha Mama”)
  • Human Rights
  • “Ubiius.....” – BUT is this true ???
  • Climate change is a Human Rights issue – but will this translate into remedies ?
other possible trends
Other possible trends
  • Convergence of private and public law standards
  • Incremental status of Human Rights standards such as Ruggie principles from guidelines to de facto benchmarks of reasonable conduct
developing country muscularity
Developing country muscularity
  • Frustration – Developing countries impacted, developed countries emissions
  • But lines blurred – many are both emitters and “victims” – India, China, etc. etc.
  • Judicial activism in India, Philippines etc (1993 Oposa v Factoran – Rights of future generations)
and more teeth
And more teeth ?
  • More damages ?
  • Enforcement abroad ?
  • Assets at home ?
  • Chevron v Ecuador – the shape of things to come ?