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causal connection between their activities and the adverse environmental impacts
cited by the applicants.43 Shell and NNPC then engaged in a series of procedural
maneuvers apparently designed to delay a decision on the merits, but that instead
seemed only to irritate the trial judge.
When their attempt to convince the trial judge to delay a ruling on the merits in
order to dispose of certain procedural motions failed, the lawyers representing Shell
and NNPC initiated multiple proceedings in the court of appeals. They then made
repeated motions before the trial court for stays pending appeal. The trial judge
denied these motions and repeatedly directed defense counsel to present argument
in response to the merits of plaintiffs™ claims. At each successive hearing, however,
defense counsel avoided arguing the merits by making additional motions for stays,
continuances, and even recusal, all of which the judge denied. At one hearing,
relations between defense counsel and the judge became so strained that defense

Gbemre Pleadings, supra note 2, Statement at B.2, C.1, C.2.
38

Id., Verifying Af¬davit at 11(b), (f), (g).
39

Id. at 11(a), (c).
40

See Gbemre Pleadings, supra note 2. The court granted Mr. Gbemre permission to bring his case on
41

July 21, 2005. See Gbemre v. Shell Petroleum Dev. Co., Suit No. FHC/CS/B/153/2005, Judgment 1
(Nov. 14, 2005) [hereinafter Gbemre Judgment], available at http://www.climatelaw.org/cases.
Gbemre Pleadings, supra note 2.
42

See Gbemre v. Shell Petroleum Dev. Co., Suit No. FHC/CS/B/153/2005, Counter Af¬davit of Mrs.
43

Enobong Ozor (Aug. 30, 2005); Gbemre v. Shell Petroleum Dev. Co., Suit No. FHC/CS/B/153/
2005, Counter Af¬davit for 2nd Defendant by Mary Akujobi (Sept. 15, 2005) [on ¬le with
author].
Amy Sinden
180


counsel abruptly stood up and, with all his junior associates in tow, walked out of
court “without,” in the words of the court, “the usual courtesy of bowing to the
bench.”44
The trial judge™s growing irritation with these maneuverings comes through in the
¬nal judgment, in which he accuses the lawyers for Shell and NNPC of acting “in
bad faith” and calls their repeated motions for stays “an abuse of the process of this
Court.”45 Ultimately, the court ruled that Shell and NNPC were “hereby foreclosed
from presenting any further Reply” to the applicants™ claims,46 and on November
14, 2005, the court issued its ¬nal judgment.
The court ruled that the constitutional rights cited by plaintiffs “inevitably
include[] the rights to [a] clean poison-free healthy environment,” and that the
defendants™ gas ¬‚aring constitutes “a gross violation of [the plaintiffs™] fundamental
[constitutional] right to life and dignity.”47 While the court™s judgment referenced
the plaintiffs™ assertions in their af¬davit that gas ¬‚aring leads to the emission of
greenhouse gases and “contributes to adverse climate change,”48 the court made no
speci¬c ¬ndings with respect to climate change and offered no analysis of whether
the climate change impacts of gas ¬‚aring in particular formed part of the basis for
its holding that a violation of constitutional rights had occurred. The court™s order
“restrained [Shell and NNPC] from further ¬‚aring of gas in Applicant™s Community”
and ordered those defendants “to take immediate steps to stop the further ¬‚aring
of gas.”49
After the court™s order, the ¬‚ares continued to burn. The companies took no
steps to stop gas ¬‚aring as they had been directed to do by the court and pro-
vided no indication that they intended to do so. In December 2005, the appli-
cants went back to the trial court with a motion seeking to have certain of¬cials
of Shell and NNPC held in contempt.50 When the court ruled on this motion it
softened its original order somewhat, giving the defendants an additional year, until
April 2007, to stop the ¬‚aring. But the judge also ordered of¬cials of Shell and
NNPC to personally appear before the court on May 31, 2006, to present a quarterly
program for ending the ¬‚aring by the April 2007 deadline.51 That hearing never
occurred, however. Shortly after the trial court™s ruling, Shell and NNPC™s repeated
attempts to get the appeals court involved in the case ¬nally bore fruit. The appeals
courts actually issued an order restraining the trial court from sitting on May 31,
2006, thus halting the contempt proceedings.52 Subsequently, the trial judge was

Gbemre Judgment, supra note 4, at 27.
44

Id. at 24.
45

Id. at 28.
46

Id. at 29.
47

Id. at 4“5.
48

Gbemre Order, supra note 3, at 4.
49

See Climate Justice Programme, Contempt of Court Proceedings Against Shell, http://www.
50

climatelaw.org/media/nigeria.shell.contempt.dec05 (posted Dec. 16, 2005).
See id.
51

Conversation with Peter Roderick, July 28, 2006.
52
An Emerging Human Right to Security from Climate Change 181


removed from the case and transferred to a different district in the north of the
country.53
The April 2007 deadline has now come and gone, but Shell and NNPC have not
stopped the ¬‚aring, nor have they submitted a plan for doing so.54 Meanwhile, the
procedural issues as well as Shell™s and NNPC™s appeal of the trial court™s ruling on
the merits are in front of the court of appeal and a ruling is expected some time this
year. The case will then likely make its way to the Nigerian Supreme Court. Thus,
as a legal matter, the trial court™s ruling stands, though it has had little practical
effect.
While the trial court™s judgment in Gbemre contains broad and de¬nitive language
reading an environmental right into the Nigerian Constitution™s right to life, it does
not explicitly analyze the question of whether and under what circumstances climate
change impacts can provide a basis for ¬nding a violation of that right. The sparseness
of the court™s analysis may re¬‚ect the fact that the respondents defended the case
almost entirely on procedural grounds and presented little to the court in the way of
substantive opposition to the applicants™ claims. Nonetheless, the court™s judgment
does make reference to the evidence submitted by the applicants linking gas ¬‚aring
to greenhouse gas emissions and climate change.55 On that basis, one could read it
as implicitly recognizing a right to security from climate change. Under any reading,
though, the court™s opinion leaves a lot of questions about the justi¬cations for and
scope of such a right unaddressed. The following analysis begins to explore these
questions.


2. LOCATING A RIGHT TO SECURITY FROM CLIMATE CHANGE
IN THE HUMAN RIGHTS TRADITION

2.1. The Human Rights Tradition
While there are clearly important distinctions between domestic constitutional rights
and international human rights, for purposes of this analysis, the similarities are
more important than the differences.56 Both constitutional rights and international
human rights are traditionally understood to encompass a particular set of rights
that individuals enjoy against the State.57 As such, they are fundamentally different

See Friends of the Earth, Shell Fails to Obey Gas Flaring Court Order (May 2, 2007), available at
53

http://www.foe.co.uk/resource/press_releases/shell_fails_to_obey_gas_¬‚_02052007.html.
See id.
54

See supra note 48.
55

Constitutional rights and international human rights obviously differ in important respects. See gener-
56

ally Gerald L. Neuman, Human Rights and Constitutional Rights: Harmony and Dissonance, 55 Stan.
L. Rev. 1863 (2003). International human rights, for example, stand even more ¬rmly outside the State
than do constitutional rights, since they are de¬ned by international law and have the capacity to be
enforced by international rather than domestic tribunals.
See Rex Martin, Human Rights and Civil Rights, in The Philosophy of Human Rights 75, 79“81
57

(Morton E. Winston ed., 1989).
Amy Sinden
182


from the private rights of tort and contract that government enables individuals to
enforce against each other.58 Constitutional and international human rights come
into play when for some reason we cannot trust the political system to protect certain
individual interests through the usual forms of private law. Usually that occurs
when there is some reason to worry about abuse of power by the State itself. In
those instances, because we cannot trust the State to police itself, we need some
higher source of authority to act as a check on State power. Within domestic legal
systems, that higher source of authority is the constitution.59 In international law,
it is international human rights norms.60 Accordingly, both constitutional rights
and international human rights share this key characteristic of standing outside and
above the State in order to constrain abuses of State power.61 I use the term “human
rights” to refer to both kinds of rights.
Human rights have evolved roughly in three waves. Civil and political human
rights arose during the Enlightenment and form the basis for the U.S. Bill of Rights
and the French Declaration of the Rights of Man. They are rooted in a conception of
the person as an autonomous individual, and they stress the protection of individual
dignity and autonomy from government interference. Economic and social rights,
by contrast, arose in the mid-twentieth century and are grounded in the notion that
government has af¬rmative obligations to protect individuals from deprivation of
the basic material necessities of life.62 Finally, in the last several decades, a “third
generation” of human rights has begun to emerge. These rights attach to groups
rather than individuals and are aimed at the preservation of cultural identity and
self-determination.63
Second and third generation rights may seem at ¬rst blush more amenable to
the accommodation of a climate change right. Economic and social rights typ-
ically include a right to health and sometimes even an explicit right to a healthy
environment,64 and third generation rights often include a right to the free use of nat-
ural resources. But second and third generation rights are generally less enforceable


See Locke: Two Treatises of Government 271“72, 357“63 (Peter Laslett ed., 1988) (government™s
58

purpose to protect rights of individuals against invasion by each other, but in serving that function,
government necessarily accrues power, which it has duty to citizens not to abuse).
See, e.g., Stanley v. Illinois, 405 U.S. 645, 656 (1972) (observing that the Bill of Rights was “designed to
59

protect the fragile values of a vulnerable citizenry” from overbearing government of¬cials); Wolff v.
McDonnell, 418 U.S. 539, 558 (1974) (“The touchstone of due process is protection of the individual
against arbitrary action of government.”).
See Steven Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 Yale L.J.
60

443, 466 (2001); Louis Henkin, International Rights as Human Rights, in The Philosophy of Human
Rights 129, 131 (Morton E. Winston ed., 1989).
See Tom Campbell, Rights: A Critical Introduction 37“39 (2006).
61

See The Philosophy of Human Rights 4“5, 18“19 (Morton E. Winston ed., 1989); Campbell, supra
62

note 61, at 5“10.
See generally Philip Alston, A Third Generation of Solidarity Rights: Progressive Development or
63

Obfuscation of International Human Rights Law? 29 Neth. Int™l L. Rev. 307 (1982).
See 1988 Protocol to the American Convention on Human Rights, Art. 11 (“Everyone shall have the
64

right to live in a healthy environment”).
An Emerging Human Right to Security from Climate Change 183


than civil and political rights.65 First, they are typically expressed in less binding
terms. For example, the International Covenant on Economic, Social, and Cul-
tural Rights only calls on States to “take steps” to achieve the enumerated rights
“up to the maximum of available resources.”66 The International Covenant on
Civil and Political Rights, by contrast, directs each State to “undertake to respect
and to ensure [the enumerated rights] to every individual within its territory.”67
Moreover, second and third generation rights are often framed in explicitly
nonjusticiable terms. Many constitutions, for example, include them in a sepa-
rate section designated for nonjusticiable rights.68 Indeed, the Nigerian constitution
includes an environmental rights provision, but it is in a separate section of the
constitution that the courts have interpreted as nonjusticiable.69 For this reason,
the applicants in Gbemre did not even cite the environmental rights clause in their
pleadings.70 They did cite certain second and third generation rights from the African
Charter on Human and Peoples™ Rights, but rather than relying on these rights as
the basis for a free-standing claim, they simply referenced them as “reinforce[ing]”
the civil and political rights in the Nigerian constitution.
In sum, civil and political rights, with their centuries-old pedigree, enjoy far more
acceptance and are far more likely to be viewed as enforceable by the courts than
second and third generation rights. Accordingly, a climate change right is likely to
be far more effective both rhetorically and legally if it is grounded in traditional civil
and political rights.
Additionally, the values and concerns that underlie our civil and political rights
tradition are of particular salience in the context of climate change. As I have argued
elsewhere, civil and political rights are grounded fundamentally in concerns about
power imbalance and its distorting effect on government decision making. Thus,
many of the rights that we consider central to our civil and political rights tradition
aim at counteracting the disparity of power between the State and the individual in


See Robin R. Churchill, Environmental Rights in Existing Human Rights Treaties, in Human Rights
65

Approaches to Environmental Protection 89, 100 (Alan E. Boyle & Michael R. Anderson eds.
1996) (calling the environmental rights provision in Article 11 of the 1988 Protocol to the American
Convention on Human Rights “rather weak, since it requires party States essentially to do no more
than what they feel able to do, in the light of their available resources”).
International Covenant on Economic, Social and Cultural Rights, Art. 2(1).
66

International Covenant on Civil and Political Rights, Art. 2(1).
67

Barry E. Hill, Steve Wolfson & Nicholas Targ, Human Rights and the Environment: A Synopsis and
68

Some Predictions, 16 Geo. Int™l Envtl. L. Rev. 359, 381“82 (2004); Michael R. Anderson, Individual
Rights to Environmental Protection in India, in Human Rights Approaches to Environmental
Protection 199, 213“14 (Alan E. Boyle & Michael R. Anderson eds., 1996) (discussing constitution
of India).
The environmental provision states: “The state shall protect and improve the environment and
69

safeguard the water, air and land, forest and wildlife of Nigeria.” Constitution of the Federal Republic
of Nigeria, Art. 20. It is contained in a chapter entitled “Fundamental Objectives and Directive
Principles of State Policy” rather than the chapter entitled “Fundamental Rights,” which contains
civil and political rights including those on which the Gbemre applicants relied.
Conversation with Peter Roderick, Climate Justice Programme, July 28, 2006.
70
Amy Sinden
184


criminal proceedings.71 Similarly, the right to free speech is often justi¬ed on the
ground that by allowing public criticism of government of¬cials, it provides a crucial
check on government power.72 And the equal protection guarantee was added to
the U.S. Bill of Rights after the Civil War in response to what is perhaps the most
extreme example of power imbalance in society “ the institution of slavery.73 Indeed,
Cass Sunstein argues that much of modern constitutional doctrine re¬‚ects “a single
perception of the underlying evil: the distribution of resources or opportunities to
one group rather than another solely because those bene¬ted have exercised the raw
power to obtain government assistance.”74 By acting as “trumps,” civil and political
rights aim to counteract that underlying evil by effectively putting a thumb on the
scale in favor of the weaker party.75
In the context of climate change, there is an enormous power imbalance between
the interests that stand to gain from climate change regulation and those that stand “
in the short run at least “ to lose. Those who stand to lose are those who pro¬t
from the extraction and combustion of fossil fuels. These are some of the wealthiest
and most powerful corporations in the world. Multinational oil companies and
car manufacturers dominate the list of the top revenue-producing corporations in
the world. Shell, for example, earned more than $25 billion in pro¬ts in 2006,
second only to Exxon Mobil.76 The in¬‚uence that these corporate giants wield over
government decision making is undeniable even in the developed world.77 But the
power that a company like Shell exerts over a poor cash-strapped government like
Nigeria, that derives more than 80 percent of its revenues from oil production, is
monumental.
On the other side, those who stand to gain from climate change regulation are
primarily individual people, like the people of the Niger Delta who will be inundated
by rising seas and battered by increasingly severe storms as the Earth warms. These
“gainers” from climate change regulation are large in number, disproportionately

See United States v. Gouveia, 467 U.S. 180, 189 (1984) (right to counsel aimed at correcting the
71

imbalance of power between the government and the accused); Miranda v. Arizona, 384 U.S. 436,
460 (1966) (right against self incrimination aimed at ensuring “the proper scope of governmental
power over the citizen . . . and maintaining a fair state-individual balance”); Susan Bandes, “We the
People” and Our Enduring Values, 96 Mich. L. Rev. 1376, 1389, 1391 (1998) (arguing that the criminal
procedure amendments “serve to address the inequality of power between the government and the
individual and the need to curtail abuse of that power.”).
See Vincent Blasi, The Checking Value in First Amendment Theory, Am. B. Found. Res. J. 521
72

(1977).
Since then, the Equal Protection Clause has been interpreted to address the subordination of other
73

stigmatized groups as well. See Ruth Colker, Anti-Subordination Above All: Sex, Race, and Equal
Protection, 61 N.Y.U. L. Rev. 1003, 1007 (1986); Owen M. Fiss, Groups and the Equal Protection
Clause, 5 Phil. & Pub. Aff. 107, 154“55 (1976).
Cass R. Sunstein, Interest Groups in American Public Law, 38 Stan. L. Rev. 29, 50“51 (1985).
74

See Ronald Dworkin, Taking Rights Seriously 234“35, 184“205 (1977).
75

Terry Macalister, Exxon and Shell See Pro¬ts Rocket, Guardian Unlimited, Feb. 1, 2007, available
76

at http://business.guardian.co.uk/story/0,2003392,00.html.
See Richard B. Stewart, Pyramids of Sacri¬ce? Problems of Federalism in Mandating State Implemen-
77

tation of National Environmental Policy, 86 Yale L.J. 1196, 1213 (1977).
An Emerging Human Right to Security from Climate Change 185


poor,78 widely dispersed, and have interests that are often hard to measure in precise
economic terms and not likely to be felt until well into the future. In contrast to
the oil companies, this is just the kind of group that has a particularly hard time
organizing politically.79
This kind of power imbalance has the capacity to grossly distort government
decision making. Arguably, this is exactly what has happened in Nigeria, where
the government has been unable to effectively regulate the widespread practice of
gas ¬‚aring despite a long-standing recognition of its devastating environmental and
health effects. This is precisely the kind of situation that human rights are intended to
address. Indeed, the trial court™s ruling is a classic, triumphal human rights story, in
which the politically powerless communities of the Niger Delta use human rights to
beat back the Goliath of corporate-backed government power. In the end, of course,
¬ghting vast and well-entrenched power disparities is a dif¬cult business, and the
human rights tool is only as strong as the judiciary that enforces it. The impunity with
which Shell and the NNPC have ignored the trial court™s orders and their apparent
ability to inspire the court system to take extraordinary measures to prevent the trial
judge from issuing further rulings in the case is a testament to just how enormous
and intractable this particular power imbalance has become. Even if the lawsuit does
not ultimately result in an enforceable order ending gas ¬‚aring, however, framing
this con¬‚ict as a human rights issue still serves an important rhetorical purpose by
bringing into stark relief the power imbalance at its root.


2.2. Security from Climate Change as a Civil and Political Right
A number of decisions from international and domestic tribunals have already begun
to ¬nd a basis for environmental rights in certain well-established civil and political
rights, like the right to life, the right to privacy and family life, and the right to
information. These precedents may also provide support for a right to security from
climate change.
The right to life, dignity, and personal security (or some variant thereof) appears
in every human rights document. It is, perhaps, the most fundamental of all human
rights. A number of domestic and international tribunals have found this right
implicated in the context of environmental harms.80 In a case brought by the Ogoni
people against the Nigerian government, for example, the African Commission on

See Intergovernmental Panel on Climate Change, Climate Change 2001: Synthesis Report, Summary
78

for Policymakers 12 (2001), available at http://www.grida.no/climate/ipcc_tar/vol4/english/005.htm.
See Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of
79

Groups 16“23 (1965).
See generally Hari M. Osofsky, Learning from Environmental Justice: A New Model for International
80

Environmental Rights, 24 Stan. Envtl. L.J. 71 (2005). In 1972, the Stockholm Declaration was the
¬rst international instrument to draw an explicit connection between environmental protection and
the right to life: “Both aspects of man™s environment, the natural and the man-made, are essential to
his wellbeing and to the enjoyment of basic human rights “ even the right to life itself.” Declaration
of the United Nations Conference on the Human Environment, 11 I.L.M. 1416 (1972).
Amy Sinden
186


Human and Peoples™ Rights held that the pollution and environmental degradation
caused by oil production in the Niger Delta constituted a violation of the Ogoni™s
right to life under Article 4 of the Charter.81 Similarly, in a study on the human
rights situation in Ecuador, the Inter-American Commission on Human Rights
found that environmental degradation connected with oil development activities
in that country violated the residents™ right to life under the American Convention
on Human Rights.82 In a case brought by Canadian citizens challenging a radioac-
tive waste facility near their homes, the United Nations Human Rights Committee
found that the case raised “serious issues” regarding the right to life under Article
6(1) of the International Covenant on Civil and Political Rights, even though it
ultimately dismissed the case for failure to exhaust domestic remedies.83 Addition-
ally, domestic courts in India,84 Columbia, and now Nigeria, have found enforce-
able rights to a clean environment under constitutional guarantees of the right
to life.85
Thus, where plaintiffs can show they will suffer some risk of death or personal
injury from the impacts of climate change, they may be able to claim a violation of
the core civil and political rights to life, dignity, and personal security.86 These are
the rights the plaintiffs relied on in Gbemre and in which the Nigerian court found
a generic “right to a clean poison-free, pollution-free and healthy environment.”87
The pleadings do not speci¬cally describe any particular climate change impacts
that would cause personal injury to the residents of the Niger Delta and thereby
potentially violate this right. But, as discussed earlier, rising sea surface temperatures
associated with climate change are expected to trigger increasingly severe storms in
the Niger Delta. Especially in combination with the Delta™s increasing vulnerability
to ¬‚ooding due to climate change“induced sea level rise, such storms could well
result in personal injuries and loss of life.88


Social and Econ. Rights Action Ctr. for Econ. and Social Rights v. Nigeria, African Commis-
81

sion on Human and People™s Rights, Comm. No. 155/96, ¶ 70 (2001), available at http://www1
.umn.edu/humanrts/africa/comcases/155“96b.html.
Inter-Am. C.H.R., Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96, doc. 10
82

rev. 1 (1997).
EHP v. Canada, Communication No. 67/1980, CCPR/C/17/D/67/1980 (U.N. Human Rights Comm.
83

Oct. 27, 1982).
See Charan Lal Sahu v. Union of India, AIR 1990 SC 1480, 717; Michael R. Anderson, Individual
84

Rights to Environmental Protection in India, in Human Rights Approaches to Environmental
Protection 199, 215“16 (Alan E. Boyle & Michael R. Anderson eds., 1996).
Barry E. Hill, Steve Wolfson & Nicholas Targ, Human Rights and the Environment: A Synopsis and
85

Some Predictions, 16 Geo. Int™l Envtl. L. Rev. 359, 382“87 (2004).
See Prue Taylor, An Ecological Approach to International Law: Responding to the Chal-
86

lenges of Climate Change 197“200 (1998).
Gbemre Judgment, supra note 41, at 29. See id. at 19 (noting applicant™s argument that right to life
87

should be broadly construed as “not just [a right not] to have one™s head cut or guillotined, but
also . . . [as] the right of a human being to have his organs function properly and to the enjoyment of
all his faculties”).
See supra notes 27 to 31 and accompanying text.
88
An Emerging Human Right to Security from Climate Change 187


Even where the injuries associated with climate change are not life threatening,
they may violate the right to privacy and family life.89 The European Court of
Human Rights (ECHR) has found this right violated where pollution prevents
people from living in their homes. In Lopez-Ostra v. Spain, for example, pollution
and fumes from a tannery waste treatment plant that the government allowed to
operate without a license forced the plaintiffs to move from their homes.90 The
court held that “severe environmental pollution may affect individuals™ well-being
and prevent them from enjoying their homes in such a way as to affect their private
and family life adversely, without, however, seriously endangering their health.”91
Similarly, in Guerra v. Italy, the ECHR found the Italian government violated the
right to privacy and family life of residents living near a chemical factory by failing to
provide them with information on the risks posed by the factory.92 Thus, under these
precedents, if rising sea levels caused by climate change displace people from their
homes even without causing them physical injury, the right to privacy and family
life might well be violated.
Activities contributing to climate change may also implicate a right to information.
The right to information is often contained in statutes requiring the preparation
of environmental impact assessments, but it sometimes also appears in human
rights instruments93 and is increasingly viewed as derivative of the long-standing
and fundamental civil and political right to freedom of expression.94 While no
explicit right to information appears in the Nigerian constitution, in Gbemre, the
applicants made an effort to derive such a right from the right to life. They alleged
that Shell™s and NNPC™s failure to prepare an environmental impact assessment
violated Nigeria™s Environmental Impact Assessment Act and “contributed to the

International Covenant on Civil and Political Rights, Art. 8(1).
89

20 EHRR 277, ECHR 16798/90 (1994).
90

Id. at 51.
91

26 EHRR 357, ECHR 14967/89 (1998). The African Commission on Human and Peoples™ Rights also
92

found a violation of the rights to property and family in connection with the destruction of Ogoni
homes and villages and forced evictions perpetrated by the Nigerian military in retaliation for protests
against the environmental harms caused by oil development. See Social and Econ. Rights Action Ctr.
for Econ. and Social Rights v. Nigeria, African Commission on Human and People™s Rights, Comm.
No. 155/96, 61“66 (2001).
See International Covenant on Civil and Political Rights, Art. 19(2) (freedom of expression includes
93

“freedom to seek, receive and impart information and ideas of all kinds”). The yet-to-be-rati¬ed
Charter of Fundamental Rights of the European Union also contains a right of access to Euro-
pean Parliament, Council, and Commission documents at Article 42. See Charter of Funda-
mental Rights of the European Union, Art. 42, 2000/C 364/01, 2000 O.J., (C 364), available at
http://www.europarl.europa.eu/charter/pdf/text_en.pdf.
See Patrick Birkinshaw, Freedom of Information and Openness: Fundamental Human Rights?, 58
94

Admin. L. Rev. 177 (2006). In its Resolution of the General Assembly of December 14, 1946, the
United Nations declared that “[f]reedom of information is a fundamental human right and is the
touchstone for all freedoms to which the United Nations is consecrated.” G.A. Res. 59(I), at 95,
U.N. Doc. A64 (Dec. 14, 1946). Many international environmental treaties and declarations also
contain explicit provisions requiring governments to provide access to environmental information.
See Alexandra Kiss, The Right to Conservation of the Environment, in Linking Human Rights & the
Environment 31, 33“36 (Romina Picolotti & Jorge Daniel Taillant eds., 2003).
Amy Sinden
188


violation of the Applicant™s . . . fundamental rights to life and dignity” under the
Nigerian Constitution.95
An explicit right to information appears in Article 10 of the European Convention
on Human Rights and Fundamental Freedoms, but the European Court of Human
Rights has construed this provision narrowly, as simply imposing a duty on the State
not to interfere with efforts to obtain information from public or private entities
willing to share it.96 This crabbed reading has been widely condemned and many
commentators have argued that a broader interpretation of the right to information is
more in keeping with foundational principles of democracy and open government.
The right can easily be interpreted, for example, as creating an obligation on the
part of government to release information about its own projects. An even broader
but still reasonable interpretation would impose a duty on the government to both
obtain and disseminate information on public and private projects that may impact
the environment.97
While it has the potential to be broadly applicable in a variety of contexts, the right
to information is particularly important with respect to environmental harms, the
causes of which are often not super¬cially apparent.98 Understanding such causes
frequently requires access to sophisticated scienti¬c and technical information that
may often be in the control of government or corporate of¬cials. Ensuring public
access to such information is thus crucial to the proper functioning of democratic
processes. These concerns are particularly salient in the context of climate change,
where the causal chain between the activities triggering the harm and the harm itself
is extremely complex and nonintuitive.
In sum, there is a signi¬cant potential for existing civil and political rights to form
the basis for a claim arising from climate change“induced harms. In particular,
there is precedent ¬nding the right to life, dignity, and personal security, the right
to privacy and family life, the right to information, and a number of the other core
rights implicated in the context of environmental harms. Such precedent may be
persuasive in the context of a climate change claim.


2.3. The State Action Problem
Much of the activity around the world that is contributing most signi¬cantly to
climate change is conducted by private actors, often multinational corporations.
Indeed, gas ¬‚aring in Nigeria provides a case in point. Yet human rights have
traditionally been understood as rights that individuals enjoy against governments,


Gbemre Pleadings, supra note 2, Statement at B.3.
95

See Leander v. Sweden, ECHR (1987); Guerra v. Italy, 26 EHRR 357, ECHR 14967/89 (1998).
96

See Kiss, supra note 94, at 33“36.
97

See Claudia Saladin, Public Participation in the Era of Globalization, in Linking Human Rights &
98

the Environment 57 (Romina Picolotti & Jorge Daniel Taillant eds., 2003).
An Emerging Human Right to Security from Climate Change 189


not private actors.99 Certainly, the climate change“inducing activities of private
parties can be constrained to some extent by the private law of tort and contract. But
where the governments that de¬ne such private rights themselves face incentives
to encourage the very activities that drive climate change, such private rights may
be ineffective. Where that is so, can human rights of the sort alleged in Gbemre be
invoked to constrain the actions of private parties directly?
The court in Gbemre did not explicitly address this issue but, depending on
the circumstances, such direct liability against private corporate actors for their
contributions to climate change may be possible. First, under existing doctrine in
some jurisdictions, private actors can be held liable for human rights violations
where they act in concert with State actors. Moreover, there has in recent years been
an increasing chorus of voices in the academic literature calling for an extension of
existing doctrine in order to impose human rights duties directly on multinational
corporations even in the absence of concerted action.100
Under existing U.S. constitutional law101 and international human rights law
as interpreted by U.S. courts,102 for example, a private actor can be held liable for
violations of constitutional or international human rights where it acts in concert with
State agents. The plaintiff must show that the private actor is a “willful participant
in joint action with the State or its agents” in violating such rights,103 or that “there
is a substantial degree of cooperative action between the State and the private actors


See Tom Campbell, Moral Dimensions of Human Rights, in Human Rights and the Moral Respon-
99

sibilities of Corporate and Public Sector Organisations 14 (Tom Campbell & Seamas Miller
eds., 2004); Ratner, supra note 60, at 465“66. There are a few exceptions. Human rights against
genocide, war crimes, and crimes against humanity have, since the aftermath of World War II, been
enforceable against private individuals. See id. at 466“68; Kadic v. Karadzic, 70 F.3d 232, 239“44 (2d
Cir. 1995); Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948,
art. 4, S. Exec. Doc. O, 81“1 (1949) (“[P]ersons committing genocide shall be punished whether they
are constitutionally responsible rulers, public of¬cials, or private individuals.”).
See Ratner, supra note 60; Campbell, supra note 99, at 11; Menno T. Kamminga, Holding Multina-
100

tional Corporations Accountable for Human Rights Abuses: A Challenge for the EU, in The EU and
Human Rights 553 (Philip Alston ed., 1999); Nicola Jagers, Corporate Human Rights Obliga-
tions: In Search of Accountability (2002); Rebecca M. Bratspies, “Organs of Society”: A Plea for
Human Rights Accountability for Transnational Business Enterprises and Other Business Entities, 13
Mich. St. J. Int™l L. 9 (2005); Amy Sinden, Power and Responsibility: Why Human Rights Should
Address Corporate Wrongs, in The New Corporate Accountability: Corporate Social Respon-
sibility & the Law (Doreen McBarnet, Aurora Voiculescu & Tom Campbell eds.) [forthcoming,
Cambridge Univ. Press].
Dennis v. Sparks, 449 U.S. 24, 27 (1980) (articulating standard for establishing violation of U.S.
101

constitutional rights under 42 U.S.C. § 1983).
See Kadic, 70 F.3d at 245 (adopting § 1983 “under color of law” test for establishing violation of
102

international human rights law by private actor under Alien Tort Claims Act); see also Doe v.
Unocal, 963 F. Supp. 880, 891 (C.D. Cal. 1997); Wiwa v. Royal Dutch Petroleum Co., No. 96
Civ. 8386, 2002 WL 319887, at — 10 (S.D.N.Y. 2002) (quoting Dennis and Unocal). See generally Hari
M. Osofsky, Environmental Human Rights under the Alien Tort Statute: Redress for Indigenous Victims
of Multinational Corporations, 20 Suffolk Transnat™l L. Rev. 335 (1997).
Dennis, 449 U.S. at 27.
103
Amy Sinden
190


in effecting the deprivation of rights.”104 Such tests have not generally been applied
by international human rights tribunals because the jurisdictional rules of those
forums only permit suits against States, but Steven Ratner has argued that a similar
test should be applied to hold corporations accountable where they act in concert
with government agents to commit human rights violations.105
The plaintiffs in Gbemre should be able to make a strong showing that this test is
met with respect to Shell. There is certainly good reason to believe that there has been
a close relationship between Shell and the Nigerian government, at least in the past.
Indeed, signi¬cant evidence exists that joint action between them has led to human
rights violations. Although the allegations have yet to be proved in court, in the
Alien Tort Claims Act suit against Shell for human rights violations connected with
Ken Saro Wiwa™s death, petitioners have successfully defeated a motion to dismiss
in a U.S. district court in New York based on the “joint action” theory.106 While the
acts that form the basis for that suit were committed by the Nigerian government
itself, evidence indicates that Shell assisted in those efforts by helping to plan attacks
against the Ogoni, providing ¬nancial and logistical support to the Nigerian military,
and participating in bribing witnesses. The climate change claims alleged in Gbemre
would arguably present an even clearer case of joint action. There, the culpable act
is the ¬‚aring of gas, which like all oil development activities in Nigeria, is conducted
as part of a joint venture between Shell and the NNPC. Since the legal entity that
is conducting the gas ¬‚aring “ the Shell Petroleum Development Company “ is
actually jointly owned by Shell and the Nigerian government, it is hard to imagine
a clearer case of “joint action.”107
Not all climate change activities involve such joint ventures between government
and private entities. But in a world in which a number of multinational corporations
wield more wealth than many countries and the power of multinationals to affect
the conditions of daily existence for individuals often rivals that of government, the
notion that human rights norms impose duties only on State actors may be grad-
ually losing traction.108 Indeed, multinationals often exercise considerable power
over States themselves, particularly in the developing world, where cash-strapped,
debt-ridden governments are desperate for the foreign investment that multination-
als can bring. In this environment, the ability of domestic governments to regulate
the activities of multinational corporations is signi¬cantly compromised, a situation
that is frequently exacerbated by the fact that a multinational may be incorporated
in a different country from the one in which it is conducting business.109 Thus, as
stories of environmental atrocities committed by powerful multinational corpora-
tions unchecked by domestic regulation continue to emerge from various corners of

Unocal, 963 F. Supp. at 891.
104

See Ratner, supra note 60, at 498.
105

See Wiwa v. Royal Dutch Petroleum Co., No. 96 Civ. 8386, 2002 WL 319887, at — 11 (S.D.N.Y. 2002).
106

See supra note 11 and accompanying text.
107

See Kamminga, supra note 100, at 553.
108

See Ratner, supra note 60, at 463.
109
An Emerging Human Right to Security from Climate Change 191


the globe, there have been increasing calls for the imposition of human rights duties
directly on such corporations.
I have argued elsewhere that the same concerns that animated the conceptualiza-
tion of civil and political rights in the eighteenth century as rights against government
warrant the imposition of such rights directly against multinational corporations in
the twenty-¬rst century.110 Civil and political rights were grounded largely in con-
cerns about power imbalances, and during the Enlightenment, when States were the
largest aggregations of power in society, such rights were crafted to protect individuals
from abuses of State power. But in today™s world, where the power of multinational
corporations rivals that of States, civil and political rights should protect against cer-
tain abuses of corporate power as well. Thus, I have argued that at least in situations
in which multinationals are not checked by any domestic government and thus
wield ¬nal unappealable power of the type that States traditionally wield, human
rights duties should be imposed directly on those corporations.111 Indeed, gas ¬‚aring
in Nigeria presents a classic example of a weak, cash-strapped government unable or
unwilling to rein in corporate power.112 A series of feeble attempts by the Nigerian
government to regulate gas ¬‚aring over the past several decades has been entirely
ineffectual.113
In sum, while many of the actors contributing most signi¬cantly to climate change
are private rather than State actors, even under traditional doctrine, such private
actors may face human rights liability where they participate in joint action with
the State. And even where such joint action cannot be shown, emerging theories of
human rights eventually may justify the imposition of liability directly on multina-
tional corporations, at least in situations in which they exercise State-like power.


CONCLUSION

Climate change may well be the most profound moral issue ever to confront the
human species. While humans have altered their environment on a local scale
probably for as long as they have walked the Earth, the impact of anthropogenic
greenhouse gas emissions on the fundamental forces that drive the global climate
system marks the ¬rst time that human activity can literally be said to have altered
every spot on Earth. In the words of Bill McKibben, global climate change may
indeed signal “the end of nature.”114 Such a profound moral issue demands a pro-
found response from law. Human rights, with all the gravity and moral weight they

See Sinden, supra note 100.
110

Arguably, this justi¬cation for the imposition of human rights duties on multinational corporations is
111

even more salient in the context of climate change, where governments are disabled from regulating
corporate behavior not only because of the inordinate power wielded by corporations themselves but
because of the inescapable logic of the tragedy of the commons.
See Rowell, supra note 7, at 96“112.
112

The Associated Gas Reinjection Decree, enacted by the Nigerian government in 1979 was supposed
113

to stop all ¬‚aring by 1984 but has had little or no effect. See Okonta supra note 7, at 73“74.
Bill McKibben, The End of Nature (1989).
114
Amy Sinden
192


have come to express, may well be an appropriate part of that response. The Gbemre
case holds out hope that the recognition of a human right to security from climate
change may provide a vehicle for courts to issue orders that begin to nudge those
actors responsible for substantial greenhouse gas emissions toward more responsible
behavior. And, just as importantly, Gbemre suggests how treating climate change as
a human rights issue may serve to imbue it with a sense of gravity and moral urgency
that has been too often missing from the public debate.
9

Tort-Based Climate Litigation

David A. Grossman—




INTRODUCTION

Discussions about how to address climate change usually focus on politics, policies,
and programs. Until recently, the potential role of climate change litigation had been
virtually ignored. But in the past few years, the idea of using litigation as a tool to
address the causes and impacts of climate change has picked up steam, as illustrated
in many chapters of this book. Perceiving a lack of meaningful political action “
and given the increasing scienti¬c evidence that “[m]ost of the observed increase
in global average temperatures since the mid-20th century is very likely [greater
than 90% likelihood] due to the observed increase in anthropogenic greenhouse
gas concentrations”1 “ lawyers around the world have begun exploring litigation
strategies and, in some cases, initiating actions.2 This chapter evaluates the viability
of one type of climate change litigation “ what some see as the most novel or
radical idea “ namely, applying tort law to hold companies emitting substantial
amounts of greenhouse gases liable for at least some of the harms caused by climate
change.

— President and founder of Green Light Group, a consulting practice that provides research, writing,
and strategic advice on climate and energy projects related to policy, politics, law, and international
development. More information is available at http://www.GreenLightGroup.org. This chapter is
based on an article ¬rst published in 2003, before any tort-based climate change suits had been ¬led.
The research has been updated and the argument re¬ned for this book. The original article is David A.
Grossman, Warming Up to a Not-So-Radical Idea: Tort-Based Climate Change Litigation, 28 Colum.
J. Envtl. L. 1 (2003).
1 Working Group I, Intergovernmental Panel on Climate Change (IPCC), Climate Change
2007: The Physical Science Basis, Summary for Policymakers, Fourth Assessment Report 10
(2007) (emphasis original).
See generally Climate Justice Programme, http://www.climatelaw.org, for a description of various
2

climate change“related legal efforts around the world. For another account of climate change“related
legal efforts, see Kristin Choo, Feeling the Heat: The Growing Debate over Global Warming Takes on
Legal Overtones, ABA J., July 2006, at 29“35. For an account of relatively early explorations of climate
change litigation, see Katharine Q. Seelye, Global Warming May Bring New Variety of Class Action,
N.Y. Times, Sept. 6, 2001, at A14.




193
David A. Grossman
194


There are those who argue that it is not useful to pursue such climate change
claims in the courts.3 But harm caused by human activity is a central concern of
tort law,4 and many of climate change™s costs are harms produced at least partially as
a result of human actions. Further, because of the uneven nature and distribution
of the effects of climate change, some localized groups (e.g., those living in coastal
areas or at high latitudes) are bearing, and will continue to bear, the brunt of climate
change™s harms and costs. This existing allocation raises the question of whether
we should continue to ask the victims of climate change to bear these costs or
transfer them to those who have most substantially contributed to creating the harm.
Allocation of the costs of harms is another central tort concern.5
There may be several areas of tort law that could be relevant in the climate change
context. This chapter focuses on two that may seem most applicable at ¬rst blush.
Section 1 examines the applicability of public nuisance to climate change, looking
at both pending and potential cases. The section explains some of the public rights
that defendants have arguably unreasonably infringed upon and the importance of
defendants retaining control of the mechanisms of harm.
Section 2 explores the applicability of products liability. Although at least some
products liability climate claims are probably viable, the defenses available to defen-
dants and the need to extend the manufacturers™ duty of care ultimately make
products liability a weaker tort claim than public nuisance, which could explain
why no plaintiffs have ¬led a products liability climate case yet.
The chapter then turns to some of the general issues underlying all climate tort
suits. For instance, although a tort framework might be applicable, some would
dispute the propriety of such litigation, contending that climate change requires a
political solution. Ultimately, it is surely correct that litigation alone will not solve
the problems posed by climate change. But the point of tort-based climate change
litigation is to provide redress for harms caused or to provide injunctive relief to
prevent further harms “ tasks that courts are well equipped to address. Section 3
analyzes this question of justiciability, as well as other jurisdictional hurdles such as
standing and preemption that climate change plaintiffs must overcome to reach a
hearing on the merits. It is possible that some climate tort claims could overcome
these hurdles.
Plaintiffs will face other challenges when dealing with the merits of the claims.
Section 4 explores how a plaintiff in climate change litigation might establish
generic, speci¬c, and proximate causation. The section also explains the basis for
naming certain types of companies as defendants. Section 5 then describes the

See, e.g., Associated Press, To Curb Global Warming, Eight States and New York City Vow to Sue
3

Nation™s Largest Power Companies, July 21, 2004 (quoting AEP spokesman: “A lawsuit is not a con-
structive way to deal with climate change.”).
See Eduardo M. Penalver, Acts of God or Toxic Torts? Applying Tort Principles to the Problem of
4

Climate Change, 38 Nat. Resources J. 563, 569 (1998).
See id.
5
Tort-Based Climate Litigation 195


standards for injunctive relief or damages, the types of damages that plaintiffs could
allege in their tort claims, some rules that might restrict damage recovery, and the
extent to which defendants could be liable for the total costs of climate plaintiffs™
harms.
This chapter therefore lays out several of the key elements involved in climate
tort suits. Courts have already encountered a few of these cases, and there probably
will be more. The cases are not as radical as some may think, and they are part of
the new reality of climate change in the courts.


1. PUBLIC NUISANCE

Public nuisance claims focus on “unreasonable injury” “ in other words, such claims
are generally more concerned with the harm caused than with defendants™ conduct
or intentions.6 Accordingly, plaintiffs have used public nuisance suits for decades
to address pollution.7 The application of nuisance law to the problem of climate
change does not appear to be that novel an extension.8


1.1. Existing Climate Change Public Nuisance Cases
Plaintiffs have already ¬led climate suits under a public nuisance theory, and this
section focuses on the three most prominent examples.
In Connecticut v. American Electric Power Co.,9 eight state attorneys general
and the City of New York, plus three private land trusts, brought suit against the
¬ve largest electric utilities in the United States10 seeking injunctive relief in the
form of an order “(i) holding each of the Defendants jointly and severally liable for
contributing to an ongoing public nuisance, global warming, and (ii) enjoining each
of the Defendants to abate its contribution to the nuisance by capping its emissions
of carbon dioxide and then reducing those emissions by a speci¬ed percentage each
year for at least a decade.”11 The District Court dismissed the case, holding that the
“actions present non-justiciable political questions that are consigned to the political

See, e.g., Wood v. Picillo, 443 A.2d 1244, 1247 (R.I. 1982) (“Distinguished from negligence liability,
6

liability in nuisance is predicated upon unreasonable injury rather than upon unreasonable conduct.”).
See, e.g., Georgia v. Tenn. Copper Co., 206 U.S. 230 (1907) (interstate air pollution); Illinois v.
7

Milwaukee, 406 U.S. 91 (1972) (Milwaukee I) (interstate water pollution).
See Cox v. City of Dallas, Tex., 256 F.3d 281, 291 (5th Cir. 2001) (“The theory of nuisance lends itself
8

naturally to combating the harms created by environmental problems.”).
406 F. Supp. 2d 265 (S.D.N.Y. 2005), appeal docketed, No. 05-5104-cv (2d Cir. 2006).
9

The plaintiffs are the states of Connecticut, New York, California, Iowa, New Jersey, Rhode Island,
10

Vermont, and Wisconsin, the City of New York, and the Open Space Institute, Open Space Con-
servancy, and Audubon Society of New Hampshire. The defendants are AEP, Southern Company,
Tennessee Valley Authority, Xcel Energy, and Cinergy.
406 F. Supp. 2d at 270 (quoting Complaint, California ex rel. Bill Lockyer, Attorney Gen. v. Gen.
11

Motors Corp., Case No. C06-05755 ¶ 6 (N.D. Cal. Sept. 20, 2006), available at http://ag.ca.gov/
newsalerts/cms06/06“082 0a.pdf).
David A. Grossman
196


branches, not the Judiciary.”12 As of the writing of this chapter, the case is on appeal
with the Second Circuit.
California ¬led another public nuisance climate change suit, California v. General
Motors Corp., in September 2006 against six automakers.13 Unlike the relief sought
in Connecticut v. AEP, California “seeks a judgment holding each Defendant jointly
and severally liable for contributing to a public nuisance” and requests monetary
damages, attorneys™ fees, and declaratory judgment for future monetary expenses
and damages “incurred by California in connection with the nuisance of global
warming.”14 As of the writing of this chapter, the district court has dismissed the case
(also because of “non-justiciable political questions”), and the case is on appeal with
the Ninth Circuit.15
In February 2008, the Native Village of Kivalina and the City of Kivalina, located
in northwest Alaska, ¬led a public nuisance suit against twenty-four oil, gas, and
power companies.16 As in California, the plaintiffs seek a judgment that holds “each
defendant jointly and severally liable for creating, contributing to, and maintaining
a public nuisance,” attorneys™ fees, and “declaratory judgment for such future mon-
etary expenses and damages as may be incurred by Plaintiffs in connection with
the nuisance of global warming.”17 Plaintiffs also allege civil conspiracy and concert
of action.18 As of the writing of this chapter, the Kivalina case has not yet been
heard.


1.2. Basics of Public Nuisance
The basic elements of a public nuisance claim are quite uniform throughout the
country, since most states follow the approach embodied in the Restatement (Sec-
ond) of Torts. To be liable, defendants must carry on, or participate to a substantial


Id. at 274. For more on justiciability, see infra Section 3.3.
12

No. C06-05755, 2007 U.S. Dist. LEXIS 68547 (N.D. Cal. Sept. 17, 2007). The six defendants are
13

General Motors, Ford, Chrysler, Toyota North America, Honda North America, and Nissan North
America. The insurance implications of this case are explored in depth by Jeffrey W. Stempel in his
chapter Insurance and Climate Change Litigation, this volume.
Id. at — 4.
14

Id. at — 17; James Boles, Appeals Pending for Public Nuisance Climate Change Litigation, Global Cli-
15

mate L. Blog, Jan. 28, 2009, available at http://www.globalclimatelaw.com/tags/california-v-general-
motors-co/. Hurricane Katrina victims in Mississippi also ¬led a class action in U.S. District Court
in April 2006 against oil and coal companies for contributing to global warming, which plaintiffs
assert contributed to the severity of the hurricane; claims include unjust enrichment, civil conspiracy
(against the American Petroleum Institute), public and private nuisance, trespass, negligence, and
fraudulent misrepresentation. The plaintiffs also sued chemical companies for contributions of halo-
carbons to climate change. The case was dismissed in August 2007. Comer v. Murphy Oil, Case No.
1:05-cv-00436-LG-RHW (S.D. Miss. 2007). For more on the challenges such a claim faces, see infra
note 158.
Native Vill. of Kivalina v. ExxonMobil Corp., No. CV-08-1138 (N.D. Cal. ¬led Feb. 26, 2008).
16

Complaint, Native Vill. of Kivalina v. ExxonMobil Corp. at 67, available at http://www.
17

globalclimatelaw.com/uploads/¬le/Kivalina Complaint.pdf .
Id.
18
Tort-Based Climate Litigation 197


extent in carrying on, activities that create “an unreasonable interference with a right
common to the general public.”19
The ¬rst critical element of the de¬nition of public nuisance is “a right common
to the general public.” Such a right is collective; if, for instance, pollution prevents
the use of a public beach or kills the ¬sh in a navigable stream and thus potentially
affects all members of the community, it impinges on a public right and can be
characterized as a public nuisance.20 Pollution, in fact, often impinges on public
rights. In one of the early public nuisance cases, the Supreme Court recognized
the right of “a sovereign that the air over its territory should not be polluted on a
great scale by sulphurous acid gas, that the forests on its mountains . . . should not
be further destroyed or threatened by the act of persons beyond its control, that the
crops and orchards on its hills should not be endangered from the same source.”21
Similarly, courts have recognized “the right of the public in the waters of Lake
Champlain to have those waters preserved from oil-spill pollution,”22 the right of
the public against “great harm, annoyance and discomfort” caused by “continuing
and unreasonable discharges of malodors,”23 and other such rights. In Connecticut
v. AEP, the plaintiffs claimed interference with “the right to public comfort and
safety, the right to protection of vital natural resources and public property, and the
right to use, enjoy, and preserve the aesthetic and ecological values of the natural
world.”24 California asserted interference with the same rights in its case against
the automakers.25 Kivalina alleged “substantial and unreasonable interference with
public rights, including, inter alia, the rights to use and enjoy public and private
property in Kivalina.”26
The second critical element of a public nuisance claim is that the defendants™
interference with the public right is unreasonable. The Restatement recognizes
three independent and suf¬cient grounds for establishing unreasonableness: (1)
defendants™ conduct signi¬cantly interferes with the public safety, health, peace,
comfort, or convenience; (2) it is continuing conduct, or has produced a permanent
or long-lasting effect, and defendants know or have reason to know that it has a
signi¬cant effect upon the public right; or (3) defendants™ conduct is unlawful.27

Restatement (Second) of Torts §§ 821B(1), 834 (1979); see also infra Section 4.2 for more on
19

substantiality.
Restatement (Second) of Torts § 821B cmt. g (1979). Some states have statutes de¬ning a public
20

nuisance to be an interference with “any considerable number of persons,” under which no public
right as such need be involved. Id.
Georgia v. Tenn. Copper Co., 206 U.S. 230, 238 (1907).
21

United States v. Ira S. Bushey & Sons, Inc., 363 F. Supp. 110, 120 (D. Vt. 1973).
22

Concerned Citizens of Bridesburg v. Philadelphia, 643 F. Supp. 713, 722 (E.D. Penn. 1986).
23

Complaint, Connecticut v. Am. Elec. Power Co. ¶ 154, available at http://www.ct.gov/ag/
24

lib/ag/press releases/2004/enviss/global%20warming%20lawsuit.pdf.
Complaint, supra note 11, ¶ 59.
25

Complaint, supra note 17, at 62.
26

Restatement (Second) of Torts § 821B(2) (1979). Liability for a public nuisance may arise even
27

though a party complies in good faith with laws and regulations. See City of Boston v. Smith & Wesson
Corp., No. 1999-02590, 2000 Mass. Super. LEXIS 352, at — 60 (Mass. Super. July 13, 2000).
David A. Grossman
198


The ¬rst and second grounds just listed seem readily applicable to the climate
change context. Defendants™ greenhouse gas emissions substantially contribute to
climate change and its resulting effects, thereby threatening public safety, health,
comfort, and convenience. Climate change is also a “permanent or long-lasting
effect” that defendants could have foreseen would interfere with these public rights.28
In California v. GM, for example, California claimed that the automakers “knew
or should have known, and know or should know, that their emissions of carbon
dioxide and other greenhouse gases contribute to global warming and to the resulting
injuries and threatened injuries to California, its citizens and residents, environment,
and economy,”29 and the plaintiffs in Connecticut v. AEP made similar claims,
adding that the electric utilities “are knowingly, intentionally or negligently creating,
maintaining or contributing to a public nuisance “ global warming “ injurious to
the plaintiffs and their citizens and residents.”30 Kivalina made comparable claims
as well.31
Courts also sometimes consider a third element, namely that the defendants failed
“to take reasonable actions within their control that would eliminate, ameliorate, or
minimize the harm.”32 It is not clear whether this element is required, so long as
defendants™ conduct creates or contributes to the nuisance.33 Nevertheless, in many
instances, it is clear that defendants failed to take meaningful mitigating action, and
that some in fact acted to prevent public pressure for such mitigation.34


For instance, the ¬rst IPCC assessment report came out in 1990. Courts appear to be in agreement
28

that manufacturers are held to the knowledge and skill of an expert, at a minimum keeping abreast of
scienti¬c knowledge, discoveries, and advances. See, e.g., Borel v. Fibreboard Paper Prods. Co., 493
F.2d 1076, 1089 (5th Cir. 1973), cert. denied, 419 U.S. 869 (1974).
Complaint, supra note 11, ¶ 61.
29

Complaint, supra note 24, ¶ 153.
30

Complaint, supra note 17, at 63.
31

David Kairys, The Governmental Handgun Cases and the Elements and Underlying Policies of Public
32

Nuisance Law, 32 Conn. L. Rev. 1175, 1177 (2000).
Id. at 1177 n.7.
33

See, e.g., Ross Gelbspan, Beyond Kyoto, Amicus J. 22, 24 (Winter 1998) (“To date, fossil fuel inter-
34

ests, with few exceptions, have been devoting enormous resources to confounding the public with
an appalling public relations campaign of deception and disinformation”). For a detailed account
of fossil fuel companies™ early efforts to shape public debate, see generally Ross Gelbspan, The
Heat Is On: The High Stakes Battle over Earth™s Threatened Climate (1997). Misinforma-
tion efforts have declined in recent years as many companies have started taking actions to address
climate change, but misinformation and obfuscation continue. The Competitive Enterprise Insti-
tute “ a conservative think tank funded at times partly by ExxonMobil, Ford, and other business
interests “ released TV ads in May 2006 questioning the existence of global warming. See Exxon
Blinks in the Global Warming Debate: Oil Giant Gives No Money to Group That Denies Global
Climate Change “ For Now, CNNMoney.com, Sept. 20, 2006 available at http://money.cnn.com/
2006/09/20/news/companies/exxon funding/index.htm; David Adam, Royal Society Tells Exxon: Stop
Funding Climate Change Denial, Guardian, Sept. 20, 2006, available at http://environment.guardian.
co.uk/climatechange/story/0,,1876538,00.html; Andrew Leonard, How the World Works: Is That Cli-
mate Change Egg All over Ford™s Face?, Salon.com, May 18, 2006, available at http://www.salon.com/
tech/htww/2006/05/18/ford/index.html.
Tort-Based Climate Litigation 199


Some courts, particularly in handgun decisions, have held that public nuisance
is inapplicable in the context of products, whether they are defective or not.35
They have contended that nuisance law is, at its heart, not about products but
rather about wrongful use of property.36 (Other courts addressing handgun actions,
however, have rejected the idea that public nuisances must arise from activities on
or related to property and have allowed public nuisance claims to proceed.)37 If
climate plaintiffs pursue claims focused on the rami¬cations of the use of products
such as motor vehicles, these holdings could be relevant. However, courts rejecting
the applicability of nuisance law to products have seemed primarily concerned about
the issue of control.38 As explained further in Section 4, with respect to proximate
causation, climate plaintiffs likely could establish that defendants retained control
of the mechanisms of harm at all steps of the causal chain (i.e., there are no
intervening third parties using products such as automobiles in some unintended
way).39 Accordingly, the “products” issue might not pose an obstacle to some climate
nuisance suits “ although it does raise the question of whether a doctrine designed
speci¬cally for harmful products could apply in the climate context.


2. PRODUCTS LIABILITY

Products liability is another tort theory potentially applicable to climate change,
although it seems to be a signi¬cantly weaker claim than public nuisance, which
may be why no plaintiffs have ¬led climate change products liability suits to date.
The basic elements of a products liability claim are: (1) a product has a defect that
makes it unreasonably dangerous; (2) this defect existed when the product left the
defendant™s control; and (3) the defect proximately caused plaintiff™s injuries.40
Under either a strict liability or a negligence theory, three types of defects can
result in an unreasonably dangerous product.41 A warning defect occurs when there
is reason to anticipate that danger may result from a product, but the manufacturer

See, e.g., Camden County Bd. of Chosen Freeholders v. Beretta, U.S.A. Corp., 273 F.3d 536, 540“41
35

(3d Cir. 2001); Tioga Pub. Sch. Dist. v. U.S. Gypsum Co., 984 F.2d 915, 920 (8th Cir. 1993); City of
Philadelphia v. Beretta U.S.A., Corp., 126 F. Supp. 2d 882, 909“10 (E.D. Pa. 2000). See also Kairys,
supra note 32, at 1182. For more on defective products, see infra Section 2.
City of Philadelphia, 126 F. Supp. 2d at 910 (citing Detroit Bd. of Educ. v. Celotex Corp., 493 N.W.2d
36

513, 521 (Mich. Ct. App. 1992)).
See City of Boston v. Smith & Wesson Corp., No. 1999-02590, 2000 Mass. Super. LEXIS 352, at — 61
37

(Mass. Super. July 13, 2000).
See Camden County Bd. of Chosen Freeholders, 273 F.3d at 541 (“[T]he limited ability of a defendant
38

to exercise control beyond its sphere of immediate activity may explain why public nuisance law has
traditionally been con¬ned to real property and violations of public rights.”); City of Philadelphia,
126 F. Supp. 2d at 910“11 (noting that harms are from intervening third-party criminals over whom
defendants exercise no control).
See infra Section 4.2.
39

See, e.g., Gebhardt v. Mentor Corp., 191 F.R.D. 180, 184 (D. Ariz. 1999) (citing Gosewisch v. Am.
40

Honda Motor Co., 737 P.2d 376, 379 (Ariz. 1987)).
See id.
41
David A. Grossman
200


fails to warn users of that danger. The warning defect inquiry thus focuses more
on how the manufacturer acted than on the physical state of the product.42 A
manufacturing defect occurs when a manufacturer makes a product in a way that
does not accord with its intended design.43 A design defect occurs when the harm
arises from the design of the product itself.44 In both manufacturing and design
defect cases, the focus of the inquiry is more product oriented than conduct oriented.
Manufacturing defects do not appear to be relevant here, since the harms caused by
products that have contributed to climate change (e.g., cars) do not stem from shoddy
manufacture. As elaborated subsequently, and using motor vehicles as an example,
warning and design defect claims do not seem like a particularly good ¬t either.


2.1. Warning Defects
Generally, a product has a warning defect “when the foreseeable risks of harm posed
by the product could have been reduced or avoided by the provision of reasonable
instructions or warnings by the seller [or manufacturer] and the omission of the
instructions or warnings renders the product not reasonably safe.”45 Manufacturers
warn the user about the risk so that he or she can avoid harm either by appropriate
conduct during use or by choosing not to use the product.46 Climate plaintiffs might
thus seek to bring a warning defect claim against defendants for failure to warn
users of the climate-changing dangers associated with their products™ carbon dioxide
emissions. They could argue, for instance, that if car manufacturers had advertised
fuel ef¬ciency standards as early as they could have,47 consumers could have chosen
more fuel-ef¬cient cars or other transportation alternatives.
But climate change plaintiffs are unlikely to prevail on a warning defect theory
for at least three reasons. First, some state statutes provide that liability for a warn-
ing defect attaches only if the absence of the warning makes the product “not
reasonably ¬t, suitable or safe for its intended purpose.”48 Failure to warn about
climate-changing impacts in no way makes products such as cars un¬t for their
intended purposes.
Second, other states have determined that warning defect liability attaches only if
the manufacturer knew or should have known about the risk and failed to provide
a warning that a manufacturer exercising reasonable care would have provided, in

James T. O™Reilly & Nancy C. Cody, The Products Liability Resource Manual 5 (General
42

Practice Section, American Bar Association 1993).
Id.
43

Id. at 6.
44

Restatement (Third) of Products Liability § 2(c) (1998).
45

See id. § 2 cmt. i; see also Borel v. Fibreboard Paper Prods. Co., 493 F.2d 1076, 1089 (5th Cir. 1973),
46

cert. denied, 419 U.S. 869 (1974).
See generally Jack Doyle, Taken for a Ride: Detroit™s Big Three and the Politics of Pollu-
47

tion (2000) (explaining how the automobile industry failed to do so).
See, e.g., Dennis v. Pertec Computer Corp., 1996 U.S. Dist. LEXIS 18906, at — 22 (D.N.J. Nov. 18,
48

1996) (N.J. law) (citing N.J. Stat. Ann. § 2A:58C-2).
Tort-Based Climate Litigation 201


light of the likelihood that the product would cause harm of the plaintiff™s type and
in light of the likely severity of that harm.49 Potential climate change defendants
probably have been aware of the climate-changing risks posed by their products for at
least several years,50 and the likelihood and severity of harm is fairly high.51 However,
even reasonable manufacturers may not have seen the need to provide warnings,
under the belief that they would not make a signi¬cant difference in consumers™
practices with regard to the purchase and use of products such as cars.
This ties into the third weakness in a climate change warning defect claim,
namely that a plaintiff must show that the failure to provide adequate warning was a
proximate cause of the harm.52 Even if manufacturers provided warnings about the
climate-changing emissions of their products, most consumers™ behavior probably
would not have changed meaningfully. There would still be few viable alternatives
to these products available to consumers. Given these considerations, warning defect
claims do not seem readily applicable in the context of climate change.


2.2. Design Defects
As a general rule, a product is defective in design “when the foreseeable risks of
harm posed by the product could have been reduced or avoided by the adoption of a
reasonable alternative design and the omission of the alternative design renders the
product not reasonably safe.”53 Inherent features of a product, such as a knife™s sharp
edge, are not design defects.54 This fact would seem to rule out design defect suits
against oil or coal companies, since there is no feasible way to burn their products
without producing carbon dioxide.55 For a product such as an automobile, however,
greenhouse gas emissions are not an “inherent” feature, since manufacturers can
design cars and engines in ways to reduce or eliminate carbon dioxide emissions.
Accordingly, climate plaintiffs might be able to bring a design defect claim against
car manufacturers, arguing that the “defect” of the automotive designs is the unnec-
essary production of signi¬cant amounts of greenhouse gases, which substantially
contribute to plaintiffs™ harms from global climate change.56

See, e.g., Hisrich v. Volvo Cars of N. Am., Inc., 226 F.3d 445, 450 (6th Cir. 2000) (Ohio law).
49

See supra note 28.
50

See William C. G. Burns & Hari M. Osofsky, Overview: The Exigencies That Drive Potential Causes
51

of Action for Climate Change, this volume.
See Port Auth. v. Arcadian Corp., 189 F.3d 305, 320 (3d Cir. 1999); Gebhardt v. Mentor Corp., 191
52

F.R.D. 180, 185 (D. Ariz. 1999).
Restatement (Third) of Products Liability § 2(b) (1998).
53

O™Reilly & Cody, supra note 42, at 7 (citing Restatement (Second) of Torts § 402A (1965));
54

McCarthy v. Olin Corp., 119 F.3d 148, 155 (2d Cir. 1997).
See, e.g., Doyle, supra note 47, at 238 (describing how reformulating gasoline might help air pollution
55

but would have no effect on global warming, since any form of gasoline contains the same amount of
carbon as another).
The standard for legal causation is substantiality, and a court can ¬nd all actors that are substan-
56

tial causes jointly and severally liable for the harm, subject to apportionment if feasible. See infra
Sections 4.2 and 5.4.
David A. Grossman
202


Most jurisdictions seem to use some variant of a risk-utility or risk-bene¬t test
in design defect cases,57 balancing the severity and the likelihood of the potential
harm against the product™s bene¬ts and the burden that effective precautions would
impose.58 If the risk outweighs the utility, a court can consider the product to
have a design defect.59 Climate change™s present and projected impacts are quite
severe, involving loss of land, buildings, infrastructure, species, ecosystems, and
communities, and the likelihood of these harms occurring is fairly high.60 The
“foreseeable risk” is thus substantial.61 Undeniably, the bene¬ts of motor vehicles
are also high, but the existence of potential alternatives might detract from the weight
of these bene¬ts.
To better evaluate the “bene¬t” side of the equation, most courts require plaintiffs
to prove the existence of an alternative design that is feasible and that could have
avoided the injury in question.62 Courts often look to whether the alternative design is
safer, is technologically and economically feasible, does not impair the usefulness of
the product, and does not create other equal or greater risks.63 For automobiles, such
alternative designs probably do exist; manufacturers can design cars to use cleaner
energy sources and to use fossil fuels more ef¬ciently.64 A court cannot judge past
and alternative designs, however, by contemporary expectations; it must measure
a design defect against standards as of the time of marketing.65 Some alternative


Some states apply the “consumer expectation test” in design defect cases, assessing whether the risk of
57

harm from the product is greater than the ordinary consumer would have expected. See, e.g., Kelley
v. Rival Mfg. Co., 704 F. Supp. 1039, 1042 (W.D. Okla. 1989). Some other states look to whether a
reasonably prudent manufacturer who knew the product™s risks would have placed the product on the
market. See, e.g., Nichols v. Union Underwear Co., 602 S.W.2d 429, 433 (Ky. 1980).
O™Reilly & Cody, supra note 42, at 64“66; see also Andrew J. McClurg, The Tortious Marketing of
58

Handguns, 19 Seton Hall Legis. J. 777, 779 (1995) (citing Prentis v. Yale Mfg. Co., 365 N.W.2d 176,
183 (Mich. 1984)). Bene¬ts of the product that a court may consider include its cost, effectiveness for
an intended function, utility for multiple uses, durability and strength, convenience of use, collateral
safety (protecting against some other risks), and appearance and aesthetics. O™Reilly & Cody, supra
note 42, at 66. The burden includes engineering costs to change the current design. See Caterpillar
Tractor Co. v. Beck, 593 P.2d 871, 885“86 (Alaska 1979).
O™Reilly & Cody, supra note 42, at 64.
59

See Burns & Osofsky, supra note 51.
60

See supra note 28; see also Putman v. Gulf States Utils., 588 So. 2d 1223, 1228“29 (La. Ct. App. 1991)
61

(noting that the standard of knowledge, skill, and care in design defect cases is that of expert).
O™Reilly & Cody, supra note 42, at 67. See, e.g., West v. Searle & Co., 806 S.W.2d 608, 612 (Ark.
62

1991).
See, e.g., Barker v. Lull Eng™g Co., 573 P.2d 443, 455 (Cal. 1978); Wilson v. Piper Aircraft Corp., 577
63

P.2d 1322, 1326 (Or. 1978).
In 2000, for instance, Toyota and Honda introduced gas-electric hybrids with greatly improved fuel
64

ef¬ciency. Since then, choices have expanded from two models to at least eleven. See Tara Baukus
Mello, Hybrid Popularity Skyrockets, Edmunds.Com, Oct. 17, 2007, available at http://www.edmunds
.com/advice/hybridcars/articles/101677/article.html.
See Quintana-Ruiz v. Hyundai Motor Corp., 303 F.3d 62, 72 (1st Cir. 2002); Cover v. Cohen, 461
65

N.E.2d 864, 866 (N.Y. 1984); O™Reilly & Cody, supra note 42, at 69. Some state courts have even
held that alternative designs that “are feasible but not demanded or expected by consumers or external
standards” at the time “are not retrospectively held to be necessary in the context of a later design
defect trial.” O™Reilly & Cody, supra note 42, at 72.
Tort-Based Climate Litigation 203


vehicle designs, such as the gas-electric hybrid cars currently on the market, are
recent developments. That these designs may not have been technologically or
economically feasible until recently may ultimately defeat a claim of defectiveness.
Two points are worth noting here, however. First, other designs, such as electric
cars, multivalve engines, and lighter automotive components, have been around for
decades, were known by consumers, and were put into commercial production, if at
all, later than they could have been.66 Second, the fact that companies continue to
make and market products that do not employ alternative designs “ car manufacturers
are still producing fuel-inef¬cient vehicles such as SUVs “ may facilitate design
defect suits targeting recent products.


2.3. Negligence, Breach of Duty, and Defenses
In products liability, plaintiffs can sue under either a strict liability or negligence
theory. A manufacturer will be held strictly liable in tort when it places a product
on the market, knowing that it is to be used without inspection for defects, and the
product proves to have a defect that causes injury to a person.67 If the risks of a
design outweigh its utility, pure strict liability would impose liability without regard
to whether the manufacturer knew or should have known about those risks.68 Most
courts have eschewed this approach, however, often looking at reasonableness even
in what are ostensibly strict liability cases.69
To establish a traditional negligence case, plaintiffs must prove (1) a duty of care
owed to plaintiffs by the defendants; (2) breach of that duty by the defendants; (3)
defendants™ breach as a proximate cause of plaintiffs™ damages; and (4) cognizable
injury or harm to the plaintiffs.70 That the harms alleged by plaintiffs such as the
states in California v. GM and Connecticut v. AEP are cognizable is addressed in
Section 3,71 so only the ¬rst three elements are discussed here.
Reasonable foresight and knowledge of a product™s potential risks usually de¬ne
the scope of a manufacturer™s duty in product design.72 At the level of expert

See generally Doyle, supra note 47.
66

Greenman v. Yuba Power Prods., Inc., 377 P.2d 897, 900 (Cal. 1963); see also Kennedy v. S. Cal.
67

Edison Co., 268 F.3d 763, 771 (9th Cir. 2001).
O™Reilly & Cody, supra note 42, at 137.
68

See McClurg, supra note 58, at 800“01. See also Port Auth. v. Arcadian Corp., 189 F.3d 305, 313 (3d
69

Cir. 1999) (“[U]nder New York law, theories of negligence and strict liability for design and warning
defects are functionally equivalent.”) (citations omitted).
O™Reilly & Cody, supra note 42, at 135. Judge Learned Hand considered a party to be negligent if
70

the expected costs of accidents, discounted by the likelihood that the accident will occur, are greater
than the costs of avoiding those accidents. See Penalver, supra note 4, at 576“77. This is essentially
a risk-balancing test. The costs of climate change are and will be enormous, and the likelihood of
destructive effects is fairly high. See Chapter 1. The costs to defendants of avoiding or minimizing
these harms, while potentially large, are likely to be less than the costs of climate change. Under
Learned Hand™s approach, therefore, courts would likely deem climate change defendants negligent.
See infra Section 3.1.
71

O™Reilly & Cody, supra note 42, at 30; see also McClurg, supra note 58, at 796. In some states, the
72

ultimate determination of the existence of a duty is more “a question of fairness and public policy”
David A. Grossman
204


knowledge, potential climate change defendants likely have known of the climate-
changing risks of their products for quite some time.73 Manufacturers™ duties are
usually restricted to those who foreseeably would consume or use their products.74
When the products in question are something like motor vehicles, it seems fair to say
that virtually everyone is a foreseeable user.75 Climate change plaintiffs, however,
are not harmed in their capacity as users or consumers of vehicles.
Nevertheless, two cases indicate that plaintiffs might still be able to demonstrate
a duty on the part of defendants. In a case involving the contamination of plaintiffs™
wells by MTBE in gasoline, the court found that the defendant oil companies could
owe the plaintiffs a duty to warn.76 The court acknowledged that some courts have
extended the duty to “third persons exposed to a foreseeable and unreasonable risk
of harm by the failure to warn.”77 The court then found that despite the fact that
the contamination “was [not] the direct result of [plaintiffs™] own use of gasoline
containing MTBE, [plaintiffs™] allegations are suf¬cient to show that the harm
suffered by the plaintiffs was a foreseeable result of defendants™ placement of gasoline
containing MTBE in the marketplace.”78 Although climate plaintiffs probably will
not pursue a duty-to-warn claim, the logic of extending defendants™ duty to all those
foreseeably exposed to risk seems equally applicable to design defects.
A 2000 handgun case supports the extension of this duty-to-warn logic. In that case,
the court noted that defendants owed a duty of care to all people “to whom injury
may reasonably be anticipated as a probable result of manufacturing, marketing, and
distributing a product with an alleged negligent design.”79 Since climate plaintiffs™
harms are arguably a foreseeable result of placement of defendants™ products in the
marketplace, defendants might owe plaintiffs a duty of care.
Plaintiffs™ second requirement in establishing a negligence claim is to prove a
breach of the relevant duty of care. In the products liability context, breach occurs
when a product is defective; so the risk-bene¬t test described earlier is also a test for
breach.80 To preclude a ¬nding of breach, defendants in a negligence suit can assert
that their actions were reasonable. The most important such defense in products
liability is that the defendants took due care by meeting the “state of the art.”81
To proffer the “state of the art” defense, manufacturers do not have to operate at

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