ozelaw: Australian environmental law

News, commentary, analysis and discussion of environmental law in Australia

Wednesday, November 01, 2006

Suing the government for climate change

I've been meaning to write some detailed posts about the prospects of civil litigation claims related to climate change, in Australia and overseas. I've got quite a bit of stuff to trawl through (the statement of claim in the US case where the State of California is suing car manufacturers for their contribution to GHG emissions, for example).

But ABC news online today brings this story:
A researcher at the University of Adelaide believes a legal case could be made against the Australian Government and businesses for contributing to climate change.

Legal researcher Dr Joseph Smith has been analysing scientific evidence for the effects of global warming and the legal basis for court action... Dr Smith believes scientific evidence linking climate change to pollution is now sound enough to make a civil case against businesses and governments.

"I think there's an arguable case in so far as Australia is a per capita major polluting nation," he said. "It is not a signatory to the Kyoto protocol, so there's a prima facie case there that could addressed in the courts."

He points to a case in the US state of California where six car manufacturers face compensation claims for contributing to global warming.

Dr Smith says progress on legal action based on climate change mirrors actions against tobacco companies. "This field is one which is moving much faster than the 1950s where tobacco and the asbestos and mesothelioma cases first came," he said.

I'll try and find out more on this story - I'm very curious about what the cause of action might be - but I'm pretty dubious about it. Some initial thoughts:
  • How does being a high per capita emitter give rise to a legal cause of action?
  • Australia is a signatory to the Kyoto Protocol, it hasn't ratified it. There's a difference. In any case, I can't see how either failing to sign or ratify would give rise to any legal action.
  • The fact that a case has been instituted against car comapnies in the US doesn't mean it has decent prospects of success, and certainly doesn't mean that some similar kind of action would have prospects of success in Australia.
  • Suing car manufacturers for creating cars which we use and which then emit greenhouse gases which contribute to climate change is very different to suing tobacco companies for concealing evidence that smoking increased the risk of illness and death. I'm not aware that tobacco companies have been sued for producing cigarettes - they've been sued for lying about their effects or for deliberately taking measures to try to get kids hooked on them.

I'm not against climate change litigation altogether. Countries like Australia and the US which are being irresponsible in their failure to take reasonable measures to address the risk of climate change are going to find that they will increasingly face people taking political and legal measures to force action.

But climate change litigation is an incredibly inefficient way to deal with the problem of global warming (although perhaps relatively efficient as a publicity-generating tool, which I think is its main aim - and a legitimate aim) and I think there are very great doubts as to whether any of this kind of litigation could ever be successful.


After a bit of googling, it seems this story was to promote Smith's book on climate change litigation, which looks pretty interesting I must say. You can download the table of contents and introduction here (pdf). The Sydney Morning Herald has a more restrained and informative article than the ABC one.


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At 4:49 PM, Blogger aglu said...

"Australia is a signatory to the Kyoto Protocol..."
Unless from it something will change?

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At 6:38 AM, Anonymous Government Regulation said...

Great post! Been reading a lot of different thoughts on the government's role on the environment. Thanks for writing this!


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