1. Causes of Action

1. OVERVIEW

The tort of negligence is a recognised cause of action in all of the common law systems surveyed (Australia, Canada, India, Kenya, Nigeria, United Kingdom, United States) and the legal definition is broadly the same. Similar negligence claims can also be brought under the civil codes of Germany, Italy, Netherlands, Philippines and Poland, as well as some specific environmental law provisions in Poland.

This comparative legal research explores established legal avenues for utilising negligence as a cause of action in the case study countries, as well as the hurdles and challenges that might be encountered by litigants attempting to utilise this cause of action in corporate climate litigation. It also highlights potential legal avenues in future litigation.

1. Established Legal Avenues from Past Litigation

In Milieudefensie v Shell, a group of NGOs brought a negligence claim against Shell arguing that the corporation was liable for hazardous negligence and should reduce its emissions in line with the Paris Agreement. The District Court of The Hague found that the corporation owed a duty of care to the claimants to reduce emissions from its operations by 45% by end of 2030 relative to 2019 emissions levels.[1] In interpreting the scope of the duty of care, the Court referred to the Paris Agreement, non-binding instruments (the UN Guiding Principles on Business and Human Rights and the OECD's Guidelines for Multinational Enterprises) and the human rights of right to life and right to family life. The use of international standards and the common factual basis of the case have led to a number of successor cases in other civil law countries.[2]

There have been multiple high profile climate cases based on negligence in Australia. Highly noteworthy is Sharma v Minister for Environment,[3] which was brought by eight Australian children who argued that the Federal Environment Minister owed them a novel duty of care to avoid causing them personal injury when exercising her powers to decide whether or not to approve the extension of a coal mine. The trial Judge found that the Federal Environment Minister owed the children a duty of care on the basis that the risk of harm to Australian children from the mine emissions was reasonably foreseeable, that the Minister had control over the risk, that Australian children are vulnerable to the risk of harm from climate change, and that they are reliant on the Minister for assistance. The ruling was overturned on appeal. However, the trial Judge's findings of fact about the risk of harm from climate change to young people were not overruled. Moreover, Justice Beach indicated that the law on negligence could be adapted by the Australian High Court in the future to 'engineer new seed varieties for sustainable duties of care, modifying concepts such as "sufficient closeness and directness" and indeterminacy to address the accelerating complexity, multiple links and cross-links of causal relations.'

2. Hurdles and Challenges

As set out in Part 3 Relevant Definitions and Essential Elements below, a negligence claim must satisfy four elements: 1) The defendant owed a duty of care to the claimant; 2) the defendant breached that duty; 3) the claimant suffered damage as a result; and 4) the damage was not too remote.

Each of these elements presents its own challenges, particularly in actions for negligent failure to mitigate. Aside from causation, which will be addressed in a dedicated section of the Toolbox, establishing a duty of care represents a significant hurdle for corporate climate litigation based on negligence. In particular litigants will have to prove that it was reasonably foreseeable that the defendant's acts or omissions would cause them harm. While it might be comparatively easy to argue that the general impacts of climate change are foreseeable, it remains a challenge to establish that a defendant could reasonably foresee specific harm to a claimant from a specific climate impact, such as a specific hurricane.[4] Courts will also consider whether there was sufficient proximity between the parties, which is often conceived in spatial and temporal dimensions. In climate litigation, the claimant and defendant could potentially be on opposite sides of the world (see e.g. Lliuya v RWE), and greenhouse gases can accumulate over many years before causing a damaging event.

3. Potential Legal Avenues in Future Litigation

Goldberg and Lord allude to the fact that courts have developed the law of negligence based on the prevailing moral views of society and on considerations of public policy. They suggest that the rules on negligence might be adapted by courts as the impacts of climate change are increasingly felt. The possibility to adapt the rules of negligence fits neatly with the appellate court judgment in Sharma v Minister for Environment, in which Justice Beach indicated that the law on negligence could be adapted by the Australian High Court in the future to 'engineer new seed varieties for sustainable duties of care, modifying concepts such as "sufficient closeness and directness" and indeterminacy to address the accelerating complexity, multiple links and cross-links of causal relations.'

Another avenue being increasingly explored is to target the businesses that fund high emitting corporations (see e.g. Milieudefensie v ING, discussed in Part 7 below).

[1] Milieudefensive v Shell ECLI:NL:RBDHA:2021:5339.
[2] Joana Setzer and Catherine Higham, 'Global Trends in Climate Change Litigation:2022 Snapshot' (Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy, London School of Economics and Political Science 2022) 33-35.
[3] Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for Environment 
[4] D Hunter and J Salzman, 'Negligence in the Air: The Duty of Care in Climate Change Litigation' (2007) 155 University of Pennsylvania Law Review 1741, 1769.

2 GRAPHIC SUMMARY

3. RELEVANT DEFINITIONS AND ESSENTIAL ELEMENTS

The elements of the tort of negligence are broadly the same across the case study countries:

1. The defendant owed a duty of care to the claimant;
2. the defendant breached that duty;
3. the claimant suffered damage as a result;
4. and the damage was not too remote.

Whether a duty of care exists, depends on the relationship between the parties. Special relationships such as that of a doctor to a patient or a lawyer to a client automatically impose a duty of care. Beyond such well-established situations, a duty of care must be determined based on the circumstances of the individual case, relying on principles including reasonable foreseeability of harm and sufficient proximity of relationship. The classic statement of the elements of negligence comes from the UK House of Lords case Donoghue v Stevenson [1932] AC 562:

'You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.'

In determining whether an act or omission is negligent, courts consider what a 'reasonable man' would have done in the same situation. As set out in the Principles of European Tort Law:

'Article 4:101: Fault
A person is liable on the basis of fault for intentional or negligent violation of the required standard of conduct.

Article 4:102: Required standard of conduct
(1) The required standard of conduct is that of the reasonable person in the circumstances, and depends, in particular, on the nature and value of the protected interest involved, the dangerousness of the activity, the expertise to be expected of a person carrying it on, the foreseeability of the damage, the relationship of proximity or special reliance between those involved, as well as the availability and the costs of precautionary or alternative methods.
(2) The above standard may be adjusted when due to age, mental or physical disability or due to extraordinary circumstances the person cannot be expected to conform to it.
(3) Rules which prescribe or forbid certain conduct have to be considered when establishing the required standard of conduct.'

As set out in Section 291 of the US Restatement (Second) of Torts:

'[w]here an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done.'

4. SOURCES OF LAW

I. International

II. Regional

III. Domestic

A. Constitutional Provisions

B. Legislative Provisions and Common Law

5. CURRENT APPLICATIONS

This section provides an overview of the case law that has been identified by national rapporteurs from each case-study country as providing relevant illustrations of the current application of the tort of negligence. This cause of action has not yet been applied in corporate climate litigation in most countries. Therefore, the cases analysed are not limited to litigation against corporations, nor to cases where climate change is the central issue. Rather, a broad approach is adopted whereby the focus is on identifying legal arguments and principles that could be applied in a corporate climate litigation case.

● AUSTRALIA

Sharma v Minister for Environment 

There have been multiple high profile climate cases based on negligence in Australia. Highly noteworthy is Sharma v Minister for Environment,[5] which was brought by eight Australian children who argued that the Federal Environment Minister owed them a novel duty of care to avoid causing them personal injury when exercising her powers to decide whether or not to approve the extension of a coal mine. The trial Judge found that the Federal Environment Minister owed the children a duty of care on the basis that the risk of harm to Australian children from the mine emissions was reasonably foreseeable, that the Minister had control over the risk, that Australian children are vulnerable to the risk of harm from climate change, and that they are reliant on the Minister for assistance.

'257 In sum, this is a case where the foreseeability of the probability of harm from the defendant's conduct may be small, but where the foreseeable harm, should the risk of harm crystallise, is catastrophic. The consequent harm is so immense that it powerfully supports the conclusion that the Children should be regarded as persons who are "so closely and directly affected" that the Minister "ought reasonably to have them in contemplation as being so affected when...directing [her] mind to the acts...which are called in question": Donoghue v Stevenson at 580 (Lord Atkin). Accordingly, 'reasonable foreseeability' is a strong salient feature in support of the posited duty of care being recognised by the law of negligence.'

Justice Bromberg made a declaration that this duty required the Minister to take reasonable care to avoid causing personal injury or death to Australian children arising from carbon emissions into the Earth's atmosphere:

'1. The first respondent has a duty to take reasonable care, in the exercise of her powers under s 130 and s 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) in respect of referral EPBC No. 2016/7649, to avoid causing personal injury or death to persons who were under 18 years of age and ordinarily resident in Australia at the time of the commencement of this proceeding arising from emissions of carbon dioxide into the Earth's atmosphere.'

However, despite success at first instance, this ruling was unanimously overturned on appeal. All three judges on appeal provided different reasons for overturning the finding of a novel duty of care, including that there was an insufficient 'closeness' between the Minister and the children, that harm to the children from the extension of the coal mine was not reasonably foreseeable, and that a novel duty of this kind would be inconsistent and incoherent with the purpose and duties in the Environment Protection and Biodiversity Conservation Act 1999 (Cth), under which the Minister was required to make a decision. Despite reversal on appeal, the trial Judge's findings of fact about the risk of harm from climate change to young people were not overruled. The Court also recognised the complexity of the climate change policy debate given there were multiple layers of scientific, social and economic considerations inherent to national and State policy making in a framework of internationally agreed commitments. Moreover, Justice Beach indicated that the law on negligence could be adapted by the Australian High Court in the future to

'engineer new seed varieties for sustainable duties of care, modifying concepts such as "sufficient closeness and directness" and indeterminacy to address the accelerating complexity, multiple links and cross-links of causal relations.'

● CANADA

Burgess v Ontario Minister of Natural Resources and Forestry 

Property owners filed a class action suit seeking damages from the provincial government for failure to fulfil its duty to avoid foreseeable flooding despite knowing that water levels had reached dangerously high levels. The claimants discontinued the action, but nonetheless the case is a useful example for potential corporate climate litigation, which might argue that a corporation knew or should have known that its activities were causing climate impacts.

● INDIA

Hindustan Zinc Ltd v Rajasthan Electricity Regulatory Commission [6]

In this case, the Supreme Court upheld new government regulations that impose an obligation on captive power plant companies to purchase a minimum amount of energy from renewable resources. Among other reasons, the Court highlighted that, as with all citizens, the corporations have a constitutional duty to protect the environment and in light of climate change this imposed a duty to mitigate climate change.

This is a landmark judgement and an example of Horizontal Climate Litigation as the Supreme Court observed India's commitment to 'the National Action Plan on Climate Change' and the importance of generation and consumption of green energy. The Court held that the Regulations are consistent with the international obligations of India, since India has ratified to Kyoto Protocol.

'50. Article 51A(g) of the Constitution of India cast a fundamental duty on the citizen to protect and improve the natural environment. Considering the global warming, mandate of Articles 21 and 51A(g) of the Constitution, provisions for the Act of 2003, the National Electricity Policy of 2005 and the Tariff Policy of 2006 is in the larger public interest, Regulations have been framed by RERC imposing obligation upon captive power plants and open access consumers to purchase electricity from renewable sources. The RE obligation imposed upon captive power plants and open consumers through impugned Regulation cannot in any manner be said to be restrictive or violative of the fundamental rights conferred on the appellants under Articles 14 and 19(1)(g) of the Constitution of India.'

● ITALY

Greenpeace, Re:Common et al v ENI 

This case argues that individuals have a right to climate stability, the violation of which entitles them to compensation. Under Article 2043 of the Civil Code, it is argued that the emission of greenhouse gases by corporations causes 'unfair damage' to third parties for which the corporations can be held liable. This implies that there is a duty of care regarding such emissions.

● NETHERLANDS

Milieudefensie v Shell 

In Milieudefensie v Shell, a group of NGOs brought a negligence claim against Shell arguing that the corporation was liable for hazardous negligence and should reduce its emissions in line with the Paris Agreement. The District Court of The Hague found that the corporation owed a duty of care to the claimants to reduce emissions from its operations by 45% by end of 2030 relative to 2019 emissions levels.[7] In doing so the court relied on an unwritten duty of care under Article 6:162 of the Dutch Civil Code, which provides that a duty of care can be imposed according to the unwritten law of 'proper social conduct'.

In interpreting the existence and the scope of the duty of care, the court used viewpoints that are derived from the (national) doctrine of negligence, international (human rights) treaties and soft law provisions. It assessed the lawfulness of Shell's current policies on the basis of;

1. The policy-setting position of RDS in the Shell Group
2. The Shell group's CO2 emissions
3. The consequences of these emissions for the Netherlands
4. The right to life and the right family life of Dutch residents
5. The UN-Guiding principles
6. RDS' control and influence of CO2 emissions of the Shell group and its business relations
7. The measures that are needed to prevent dangerous climate change
8. Possible reduction pathways
9. The challenge of preventing dangerous climate change on the one hand, and meeting the demand for energy worldwide on the other
10. The ETS system and other cap and trade emissions systems that apply outside the EU, as well as permits and other (statutory) obligations of the Shell group
11. The effectiveness of the reduction obligation
12. The responsibility of States and society
13. The onerousness for RDS and the Shell group to meet the reduction obligation
14. The proportionality of the reduction obligation

Soft law and human rights law (see point 4 and 5 above) are important building blocks in the reasoning of the court, in particular with respect to the scope of Shell's obligation to reduce emissions. On the basis of an analysis of the various protocols and guidelines for climate change for non-state actors, drawn up by the University of Oxford in 2020[8] the court concluded that it is internationally endorsed that companies bear responsibilities for scope 3 emissions (as stressed in part 1 B iii, this circumstance can be an indication that the specific soft law provision can be used in specifying the rule of national law). The court has included this - according to the court - widely endorsed starting point in its interpretation of the unwritten standard of care. In literature, however, there is debate about the question whether in this case the soft law provisions can provide a basis for legal obligations.[9]

In order to eliminate the risk of violating its duty of care, the court ordered that

"RDS, both directly and via the companies and legal entities it commonly includes in its consolidated annual accounts and with which it jointly forms the Shell group, to limit or cause to be limited the aggregate annual volume of all CO2 emissions into the atmosphere (Scope 1, 2 and 3) due to the business operations and sold energy-carrying products of the Shell group to such an extent that this volume will have reduced by at least net 45% at end 2030, relative to 2019 levels".[10]

The use of international standards and the common factual basis of the case have led to a number of successor cases in other civil law countries.[11]

● PHILIPPINES

National Power Corporation et. al. v. The Court of Appeals, Gaudencio C. Rayo, et. al.,[12] ("Rayo")

This case is an example of how negligence can be applied to the failure to adapt to climate impacts. The claimants sought damages from the National Power Corporation ("NPC"), a government-owned and controlled corporation, and its then plant supervisor Benjamin Chavez, which sought to recover damages for the loss of lives and the destruction to property caused by flooding of the claimants' town.[13] The claimants alleged that NPC caused the flooding by negligently releasing water through the spillways of a dam operated by the corporation.[14] Specifically, the claimants argued that the defendants had prior knowledge that a typhoon was going to enter the area, and that despite such knowledge the defendant failed to exercise due diligence in monitoring the water level at the dam and carefully slowly releasing water over time to maintain safe levels.[15] Thus, when the said water level went beyond the maximum allowable limit, the defendants suddenly and recklessly opened the dam's spillways and flooded the town.[16]

The Supreme Court found that with the early knowledge of NPC and its plant supervisor, a reasonable person in their position should have closely monitored the water levels, and released the water early and gradually to prevent the damage caused by the flooding that would follow when the water is released in one go. Not having done this, the Supreme Court ruled in Rayo - citing a previous case involving NPC, the same typhoon and similar injuries to different residents - that NPC and the plant supervisor were negligent and that such negligence was a proximate cause of the injury:

'These same errors were raised by herein petitioners in G.R. No. 96410, entitled National Power Corporation, et al., vs. Court of Appeals, et al., which this Court decided on 3 July 1992. The said case involved the very same incident subject of the instant petition. In no uncertain terms, We declared therein that the proximate cause of the loss and damage sustained by the plaintiffs therein — who were similarly situated as the private respondents herein — was the negligence of the petitioners, ... We thus cannot now rule otherwise..., but also because of the fact that on the basis of its meticulous analysis and evaluation of the evidence adduced by the parties in the cases subject of CA-G.R. CV Nos. 27290-93, public respondent found as conclusively established that indeed, the petitioners were guilty of "patent gross and evident lack of foresight, imprudence and negligence in the management and operation of Angat Dam," and that "the extent of the opening of the spillways, and the magnitude of the water released, are all but products of defendants-appellees' headlessness, slovenliness, and carelessness."'[17]

● UNITED STATES

There have only been a few cases regarding failure to mitigate or adapt to climate change in the US.

York County v Rambo 

In York County v Rambo, York County, representing bond investors such as the York Retirement Fund; City of Warren Police & Fire Retirement Commission; and Mid-Jersey Trucking Industry & Local No. 701 Pension Fund, filed a complaint against the directors and officers of PG&E. It is a class action securities claim which involves an alleged failure to disclose, in offering documents and SEC filings, by directors and officers of PG&E of the heightened risk of wildfires due to PG&E's own misconduct during the time they sold notes to investors. Essentially they claim that PG&E was in violation of California regulations to manage vegetation and reduce the risks of the ignition of wildfires from their operations. It is based on several reports which found that PG&E was responsible for igniting some of the deadliest wildfires in California's history.

[5] Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for Environment 
[6] (2015) 12 SCC 611
[7] Milieudefensive v Shell ECLI:NL:RBDHA:2021:5339
[8] See footnote 62 of the judgment.
[9] E.g., A. Hammerstein, 'Vraagtekens bij een vonnis', in: W.J.M. van Veen e.a., De klimaatzaak tegen Shell: schriftelijke uitwerking van het seminar over het vonnis van de rechtbank Den Haag van 26 mei 2021 inzake Milieudefensie tegen Royal Dutch Shell Plc (ZIFO-reeks nr. 35), Deventer: Wolters Kluwer 2022, p. 11-17 en B.M.H. Fleuren, 'Het Shell-vonnis bezien vanuit internationaalrechtelijk perspectief: UN-soft law als potentiële bron voor afdwingbare rechtsplichten voor bedrijven?', in: J. van Bekkum e.a. (red.), Geschriften vanwege de Vereniging Corporate Litigation 2022-2023, Deventer: Wolters Kluwer 2023, p. 421-438.
[10] District Court The Hague, 26 May 2021, ECLI:NL:RBDA:5339, par 5.3.
[11] Joana Setzer and Catherine Higham, 'Global Trends in Climate Change Litigation:2022 Snapshot' (Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy, London School of Economics and Political Science 2022) 33-35.
[12] NPC v. CA, G.R. Nos. 103442-45 (1993).
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] G.R. No. 96410, July 3, 1992. Citations omitted; emphases supplied.

6. HURDLES AND CHALLENGES

As set out in Part 3 Relevant Definitions and Essential Elements above, a negligence claim must satisfy four elements: 1) The defendant owed a duty of care to the claimant; 2) the defendant breached that duty; 3) the claimant suffered damage as a result; and 4) the damage was not too remote.

Each of these elements presents its own challenges, particularly in actions for negligent failure to mitigate.

A. Causation:

Given that greenhouse gases emanating from disparate sources are 'well mixed',[18] and that some types of gases emitted decades, even centuries, ago have a cumulative effect that continues to affect the climate today,[19] establishing a causal link between specific harm suffered and the actions of any particular corporation represents a significant hurdle. Causation is analysed in detail in a dedicated section of the Toolbox and will not be further considered here.

B. Duty of Care:

Even if causation could be established, the claimant would still face the challenge of establishing that a duty of care was owed to them by the defendant and that that duty was breached.

Whether there exists a duty of care, and the scope of the duty, depends on the relationship between the parties. As noted by Justice Brian Preston, 'Duties of care are not owed in the abstract. Rather, a duty of care is relational; a duty is owed to another person or class of persons, not to the world at large'.[20]

Most jurisdictions recognise a duty of care in situations where a special relationship exists, such as doctor and patient or employer and employee. It seems clear that the relationship between a corporation that contributes to climate change and a claimant who suffers loss as a result of a climate impact is far removed from these established types of relationship.

Beyond such established situations, a duty of care must be determined based on the circumstances of the individual case, relying on principles including reasonable foreseeability of harm and sufficient proximity of relationship. A classic articulation of these principles were provided by Lord Atkin in the UK House of Lords case Donoghue v Stevenson [1932] AC 562:

'You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.'

The climate change context poses novel difficulties in this regard. Climate change is 'a global environmental tort' that poses some degree of risk to everyone in the world.[21] Therefore, defining a claimant or class of claimants that is owed a duty of care by a defendant corporation is extremely challenging.

With respect to reasonable foreseeability, while it might be comparatively easy to argue that the general impacts of climate change are foreseeable, it remains a challenge to establish that a defendant could reasonably foresee specific harm to a claimant from a specific climate impact, such as a specific hurricane.[22] Establishing sufficient proximity is also a challenge in the climate context. Proximity is often conceived in spatial and temporal dimensions. In climate litigation, the claimant and defendant could potentially be on opposite sides of the world (see e.g. Lliuya v RWE), and greenhouse gases can accumulate over many years before causing a damaging event. A traditional approach is illustrated by Ned Comer v Murphy Oil USA, 839 F Supp 2d 849 (SD Miss 2012):

'the assertion that the defendants' emissions combined over a period of decades or centuries with other natural and man-made gases to cause or strengthen a hurricane and damage personal property is precisely the type of remote, improbable, and extraordinary occurrence that is excluded from liability'.

C. Breach of Duty

Assuming that a court accepts a duty of care exists, the next hurdle is establishing that the defendant breached that duty. In most of the case study countries, to prove a breach of duty, the court will consider whether the defendant acted as a 'reasonable man' would have acted in the circumstances. This involves balancing several factors, including the magnitude of the potential harm, the likelihood of the harm occurring, and the costs of avoiding the negligent behaviour/taking adequate precautions.[23] As highlighted by Preston, in an action for failure to mitigate, the court would consider 'the magnitude of the risk of damage or loss by a climate change-induced event being caused by the defendant's GHG emissions, the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action (such as the defendant stopping all production causing GHG emissions or completely offsetting its GHG emissions) and any other conflicting responsibilities the defendant may have. Balancing such considerations may tend against any conclusion of breach of duty by the defendant.'[24]

D. Remoteness of Damage

Broadly speaking, remoteness concerns how much of the claimant's damage can reasonably be attributed to the defendant. Even though a defendant might reasonably foresee that their acts will cause damage, the extent and type of damage might not be reasonably foreseeable. Again, citing Preston 'There is a policy question raised by the spectre of defendants being exposed to "a liability in an indeterminate amount for an indeterminate time to an indeterminate class," to use Cardozo J's words in Ultramares Corp v Touch.'[25]

D. Burden of Proof

In addition to the difficulties of establishing each of the elements of negligence outlined above, cases like Chinda & Ors v Shell Petroleum Development Co Ltd (1974) 2 RSLR 1 in Nigeria highlight that the huge burden of proving negligence rests on the claimant and this is usually not easy to discharge. In Chinda, the claimants brought a negligence claim to attempt to stop the defendant's gas flaring activities. The claimants alleged that negligent management and control of the gas flaring infrastructure had resulted in heat, noise, vibration and damage to properties. The court dismissed the case because the claimants were unable to prove negligent management of the gas flaring equipment. According to Frynas, while not impossible, it is difficult to prove negligence in cases of gas flaring, not least because of the 'technical nature of oil operations' over which the 'oil industry normally has a superior technical knowledge compared to individual litigants. Consequently, it may often be difficult for the plaintiff to argue [successfully with proof] that the oil company was unreasonably negligent or did not adopt accepted standards during its operations',[26] the proof of which may be within the exclusive knowledge of the oil company.

E. Another hurdle, which is noted as being particularly prominent in Germany, is that an effective defence often raised by corporations is that they acted in accordance with the regulatory framework. Indeed, in most case study countries it seems that claimants would have difficulty establishing that a corporation was negligent if all relevant regulations and due diligence requirements were adhered to.

[18] IPCC, '2021: Summary for Policymakers' in V Masson-Delmotte et al (eds), Climate Change 2021: The Physical Science Basis. Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (CUP 2021) 5.
[19] M Allen, 'The Scientific Basis for Climate Change Liability' in R Lord et al (eds), Climate Change Liability: Transnational Law and Practice (CUP 2011) 9-10. 
[20] BJ Preston, 'Climate Change Litigation (Part 1)' (2011) 5 Carbon & Climate Law Review 3, 6.
[21] D Hunter and J Salzman, 'Negligence in the Air: The Duty of Care in Climate Change Litigation' (2007) 155 University of Pennsylvania Law Review 1741, 1748.
[22] D Hunter and J Salzman, 'Negligence in the Air: The Duty of Care in Climate Change Litigation' (2007) 155 University of Pennsylvania Law Review 1741, 1769.
[23] D Hunter and J Salzman, 'Negligence in the Air: The Duty of Care in Climate Change Litigation' (2007) 155 University of Pennsylvania Law Review 1741, 1756; United States v Carroll Towing Co 159 F.2d 169, 174 (2d Cir. 1947).
[24] BJ Preston, 'Climate Change Litigation (Part 1)' (2011) 5 Carbon & Climate Law Review 3, 8.
[25] BJ Preston, 'Climate Change Litigation (Part 1)' (2011) 5 Carbon & Climate Law Review 3, 8.
[26] JG Frynas, 'Legal Change in Africa: Evidence from Oil-Related Litigation in Nigeria' (1999) 43(2) Journal of African Law 121, 124.

7. POTENTIAL FUTURE APPLICATIONS

Goldberg and Lord allude to the fact that in England, and other common law jurisdictions, courts have developed the law of negligence based on the prevailing moral views of society and on considerations of public policy. They suggest that a possible response to the difficulties of establishing and delimiting the scope of a duty of care in the context of corporate climate litigation is to adopt a 'broad brush' approach, whereby 'whether and when a duty will be found to exist will depend on how seriously people or property are damaged in future, and how those said to be in part responsible have conducted themselves. Different possible scenarios in ten, twenty or fifty years' time may provide different answers to the question whether GHG emission is at least in some circumstances and for the purposes of the law of tort "moral wrongdoing for which the offender must pay".'[27] In other words, as the impacts of climate change are increasingly felt, courts may be compelled to adapt the rules of negligence in order to provide a remedy.

The possibility to adapt the rules of negligence fits neatly with the appellate court judgment in Sharma v Minister for Environment, in which Justice Beach indicated that the law on negligence could be adapted by the Australian High Court in the future to 'engineer new seed varieties for sustainable duties of care, modifying concepts such as "sufficient closeness and directness" and indeterminacy to address the accelerating complexity, multiple links and cross-links of causal relations.'

Another litigation avenue that is increasingly being explored is litigation against companies that invest in polluting companies. Highly noteworthy in this regard is Milieudefensie v ING. In January 2024, Milieudefensie announced litigation against ING, a Dutch bank. It demands that ING must halve its total emissions and stop cooperating with polluting companies (such as oil and gas companies). According to Milieudefensie, ING should take three type of measures to avoid contributing to dangerous climate change:

1. ING aligns its climate policy with the 1.5°C goal of the Paris Agreement;
2. ING reduces its CO₂-emissions by 48% and at least 43% by 2030 compared to 2019;
3. ING will ensure that it is not involved in the negative climate impact of large corporate customers. To that end ING must, according to Milieudefensie:
   a. require a proper climate plan from all large corporate customers;
   b. stop financing and supporting large corporate customers who do not have a good climate plan within a year;
   c. require fossil fuel customers to stop using fossil fuels and to draw up a good phase-out plan;
   d. stop new financing and support for fossil fuel customers who continue with fossil fuel expansion or do not have a proper phase-out plan;
   e. stop all financing and support of fossil fuel customers who after one year still continue with fossil fuel expansion or do not have a proper phase-out plan.

Partly on the basis of the Shell case, Milieudefensie argues that companies in the Netherlands have a legal responsibility to respect human rights and adhere to their duty of care. According to Milieudefensie, contributing to dangerous climate change leads to a violation of the duty of care under Article 6:162 CC.

[27] S Goldberg and R Lord, 'England' in R Lord QC and others (eds), Climate Change Liability: Transnational Law and Practice (Cambridge University Press 2011) 463-464.

8. COUNTRY SUMMARIES

• AUSTRALIA

To date, negligence is the only tort that has been pursued within the context of corporate climate litigation in Australia. The difficulty of establishing causation where the climate change impacts attributable to an individual company or project are considered "but a drop in the ocean" in the context of the global climate change problem remains a significant hurdle for litigants pursuing this cause of action.

In Sharma v Minister for Environment the trial Judge found that the Federal Environment Minister owed the claimants (eight children) a duty of care when deciding whether or not to approve the extension of a coal mine. The court reasoned that the risk of harm to Australian children from the mine emissions was reasonably foreseeable, that the Minister had control over the risk, that Australian children are vulnerable to the risk of harm from climate change, and that they are reliant on the Minister for assistance. The ruling was unanimously overturned on appeal. All three judges on appeal provided different reasons for overturning the finding of a novel duty of care, including that there was an insufficient "closeness" between the Minister and the children, that harm to the children from the extension of the coal mine was not reasonably foreseeable, and that a novel duty of this kind would be inconsistent and incoherent with the purpose and duties in the EPBC Act, under which the Minister was required to make a decision. Despite reversal on appeal, the trial Judge's findings of fact about the risk of harm from climate change to young people were not overruled. The Court also recognised the complexity of the climate change policy debate given there were multiple layers of scientific, social and economic considerations inherent to national and State policy making in a framework of internationally agreed commitments.

Additional examples of Australian climate actions in tort (all using the tort of negligence) include Pabai Pabai v Commonwealth,[28] Sanda v PTTEP Australasia.[29] A class action in negligence (Mathews v AusNet Electrical Services)[30] was also launched in 2014 against an electricity provider in the wake of the 2009 'Black Saturday' bushfires.

• CANADA

Like other common law jurisdictions, negligence requires a duty of care, a breach of the standard of care, damages, and factual and legal causation.[31] In corporate climate change actions, proximity would likely be one barrier to a successful claim. Also, courts would likely conclude that corporations met the applicable standard of care where regulations are followed and due diligence requirements are fulfilled. Relatedly, corporations may argue that the standard of care around climate impacts differs by industry. In this regard, a heightened standard may manifest when companies fulfil applicable regulations, but fall short of industry practices. Moreover, foreseeability plays a central role in establishing the duty of care. Corporations with the knowledge of the potential adverse climate impacts of their practices may be expected to take reasonable measures to mitigate such foreseeable harms.

Burgess v Ontario Minister of Natural Resources and Forestry concerned a provincial government's failure to respond to a rise in flooding, despite knowing that water levels had reached dangerously high points.[32] While the plaintiff discontinued the action, a similar claim could be launched against a corporation that knew or should have known that its business practices are causing climate impacts. For example, in Rio Tinto, the plaintiffs could have argued that the corporation knew or should have known that its operations harmed the fish population.[33] There may be a viable argument that a corporation is negligent when it knows its emissions contribute to rising temperatures.

• GERMANY
  

Compensation claims could be based on Section 823 (1) and (2), and Section 826 (1) of the German Civil Code.

1. Sec. 823 (1) BGB

Sec. 823 (1) BGB imposes fault-based liability for the unlawful infringement of a protected interest.[34]

The key elements for a claim under Sec. 823 (1) BGB are (a) the violation of a protected interest, (b) causation, (c) unlawfulness and (d) fault, i.e. intent or negligence.[35] The protected legal interests are specifically listed and contain life, health, bodily integrity, freedom of movement as well as property and "other rights". "Other rights" in the sense of Sec. 823 (1) BGB are therefore only those which the legal system specifically protects erga omnes, such as real rights (right in rem) and industrial property rights, but also some specific rights like right to one's name or picture and finally the general right of personality.[36]

A pertinent case for climate damages might be framed as follows: by emitting greenhouse gases, a public utility or other major emitter of carbon dioxide negligently cause the climate to change.[37] While this does not constitute an infringement of a protected right under Sec. 823 (1) in itself, rising sea levels, more serious and more frequent thunderstorms, floods caused by heavy rainfalls, and drought due to long periods without precipitation have led to damages of private property such as agricultural land, forests, residential and commercial real estate, production sites etc.[38] Moreover, the physical well-being of individuals can be affected by climate change. Accidents caused by exceptional weather disturbances such as thunderstorms may cause injuries; higher temperatures will set the human body under more stress, impairing overall health.[39] Therefore, Sec. 823 (1) BGB is in principle well suited as a cause of action for climate claims.

2. Sec. 823 (2) BGB

Sec. 823 (2) BGB attaches liability to the breach of a protective statutory norm (Schutzgesetz). Any statute that is valid and binding may qualify as such a protective norm, regardless of whether it was passed at the federal, the state or the municipal level. However, the violated protective law must be one that is specifically intended to protect the claimant.[40] Whether and to what extent this is the case can only be determined by interpreting the norm whose violation is asserted in the individual case.[41]

Inter alia, the statuary framework that regulates greenhouse gas emission in Germany does not qualify as a protective norm in the interest of others. Rather, it aims at preserving the global climate, but not at protecting certain individuals who stand to suffer damage as a consequence of shifts in climate conditions.[42] Moreover, defendants typically act in accordance with the regulatory framework, so there is no breach of any statutory norm.

3. Sec. 826 BGB

Sec. 826 BGB imposes liability for any kind of harm sustained if the tortfeasor acted both with the intention to cause harm and against good morals (bonos mores).[43]

These two requirements are not satisfied in typical climate cases concerning greenhouse gas emissions as by-products of industrial activity.[44] With regard to the energy industry, in particular, it can be argued that companies run their business to satisfy the public's energy needs, not with the goal of hurting anyone.[45]

However, Sec. 826 BGB could possibly apply in cases of fraudulent misrepresentation.

• INDIA
  

In the landmark case Hindustan Zinc Ltd. v. Rajasthan Electricity Regulatory Commission,[46] the Supreme Court upheld new government regulations that impose an obligation on captive power plant companies to purchase a minimum amount of energy from renewable resources. The Court reasoned that the regulations were consistent with India's international legal obligations to combat climate change and the National Action Plan on Climate Change enacted by the government. This combined with the constitutional duty of all citizens to protect the environment meant that the corporation was under a duty to adopt measures to mitigate climate change.

• ITALY

The applicability of the tort of negligence to climate change requires establishing a general duty of care corresponding to a specific right of individuals to climate stability. This general approach is the basis of the Greenpeace, Re:Common et al. v ENI case. It may be possible to conceptualise the damage caused by greenhouse emissions to third parties as "unfair" damage that is protectable under Article 2043 of the Civil Code. In which case, a duty of care might be imposed on corporations.

• NETHERLANDS

The unwritten standard of care, as laid down in Section 2 of Article 6:162 of the Dutch Civil Code resembles the broadly accepted reasonable person yardstick.[47] This unwritten standard of care provides a basis for several potential claims, for instance in relation to mitigation, adaptation, and duties to inform and warn about climate change related (financial and physical) risks. The standard is applicable in horizontal and vertical tort law litigation.

As a rule of Dutch unwritten law actors have a duty to take into account, and potentially act on behalf of the interests of another. In the context of the creation of dangers to life, health and the environment actors have an obligation not to impose unacceptable risks on others. The basis for examining the wrongfulness in the context of endangerment is laid down in the leading judgement Kelderluik,[48] which provides a formula that is similar to other Western legal systems.[49]

This list of relevant circumstances is non-exhaustive and varies according to the characteristics of the risk involved, the nature of the parties involved and their, if any, relationship. In general, relevant criteria are the likelihood of the materialization of the risk, the level of (un)certainty about the risk, the severity and nature of the risk, the nature of the risk creating act and the burden of taking precautionary measures.[50]

The unwritten standard of care provided a legal basis for the Milieudefensie v Shell litigation.

• NIGERIA

The tort of negligence arises from (1) the breach (2) of legal duty to take care (3) resulting in damage to the plaintiff (4) which, though not intended by the defendant, was nevertheless foreseeable.[51] To be successful in a suit in negligence, these four elements must be successfully proved by the injured party. In this respect, a duty of care is owed whenever it is foreseeable that if the polluter/defendant does not exercise due care (through acts and omissions), the injured party/plaintiff will be harmed. To prove breach of the duty, the court will consider whether the defendant acted as a 'reasonable man' would have acted in the circumstances.[52] For a party to prove breach of duty, it might also be relevant to show that the polluter/defendant failed to establish good industry practice coupled with non-observance of industry standards and guidelines. To prove that the breach caused the damage, the injured party/plaintiff must clearly establish the nexus between the action/inaction of the polluter/defendant and the damage suffered, usually through scientific evidence.

The huge burden of proving negligence rests on the plaintiff, and is usually not easy to discharge. In Chinda & Ors v Shell Petroleum Development Co. Ltd,[53] the claimants were unsuccessful in claiming that the defendant company had caused heat, noise, vibration and damage to properties through its negligent management and control of gas flaring infrastructure. Frynas highlights that it is difficult to prove negligence in cases of gas flaring because of the 'technical nature of oil operations' over which the 'oil industry normally has a superior technical knowledge compared to individual litigants. Consequently, it may often be difficult for the plaintiff to argue [successfully with proof] that the oil company was unreasonably negligent or did not adopt accepted standards during its operations',[54] the proof of which may be within the exclusive knowledge of the oil company.

• PHILIPPINES

Philippine tort law encompasses a wide array of potential causes of action. The cause of action that provides the most potent possibility for climate change litigation is the tort of negligence, which is called a quasi-delict in this jurisdiction. Article 2176 of the Civil Code of the Philippines ("Civil Code") specifies the following elements of a quasi-delict: (a) act or omission, (b) the presence of fault or negligence in the performance or non-performance of the act, (c) injury, (d) causal connection between the negligent act and the injury, and (e) that there is no pre-existing contractual relation between the parties.

The Civil Code defines negligence based on the standard of a how a fictional reasonable person would act:

ARTICLE 1173. The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. When negligence shows bad faith, the provisions of articles 1171 and 2201, paragraph 2, shall apply.
If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a good father of a family shall be required.

Negligence was the legal basis for the case of National Power Corporation et. al. v. The Court of Appeals, Gaudencio C. Rayo, et. al.,[55] ("Rayo"), which illustrates the use of a tort or quasi-delict as a cause of action in the context of a climate change impact.

• POLAND

In case brought against the energy company PGE, ClientEarth[56] and then Greenpeace[57] have invoked Article 323 of the Environmental Protection Law At (EPLA), which provides that anyone who is directly threatened with damage by an unlawful impact on the environment, or has suffered such damage, may demand that the entity responsible for the threat or infringement restore the lawful situation and take preventive measures, such as installing devices protecting against a threat or breach. If this is impossible or excessively difficult, the claimant may demand the cessation of the activity causing the threat or infringement. Paragraph 2 of the said provision provides standing for, inter alia, environmental organisations.

Claimants must prove that three conditions exist: an unlawful impact on the environment, a damage or a threat thereof, and the causal link between the damage and the unlawful impact.[58] There is ongoing debate in the literature with respect to the exact meaning of an 'unlawful' impact on the environment. While scholars unanimously agree that this will exist in cases where the activity that resulted in damage to the environment was conducted without, or in violation of, a proper administrative decision, in cases where the activity is conducted in accordance with law, some scholars contend that the requirement of unlawfulness will not be fulfilled.[59]

• UNITED KINGDOM

Corporate actors will have some kind of legal duty to take mitigation actions with respect to climate change, but it is unclear what the basis of any enforceable obligations might be.[60] In Milieudefensie v Shell, the District Court of the Hague found that oil major Shell owed a duty of care to the claimants to reduce emissions from its operations by 45% by end of 2030 relative to 2019 emission levels.[61]  In doing so the court relied on the open standard of negligence in Dutch civil law - a social standard of due care - read with climate duties and human rights law. This has yielded a number of successor cases, with mixed results, all in other civil law countries.[62]

However, commentators have argued that establishing a duty of care in relation to climate change would be much more challenging in English tort law.[63] In order to establish negligence under English law the claimant would have to establish a breach of duty and foreseeable damage resulting form that breach. The very specific framings of duty and harm present significant jurisprudential hurdles.[64]  The likely defendants do not owe any kind of duty to the claimants, and causal tests which have been developed are constrained in application.[65]

• UNITED STATES

There have only been a few cases regarding failure to mitigate or adapt to climate change in the US.

In York County v Rambo, York County, representing bond investors such as the York Retirement Fund; City of Warren Police & Fire Retirement Commission; and Mid-Jersey Trucking Industry & Local No. 701 Pension Fund, filed a complaint against the directors and officers of PG&E. It is a class action securities claim which involves an alleged failure to disclose, in offering documents and SEC filings, by directors and officers of PG&E of the heightened risk of wildfires due to PG&E's own misconduct during the time they sold notes to investors.

There have been cases brought by the Conservation Law Foundation under the Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) that claim failure to adapt, but this is in the context of for violations of permits issued under Coastal Zone Management Acts.

[28] Pabai Pabai v Commonwealth.
[29] Sanda v PTTEP Australasia (Ashmore Cartier) Pty Ltd.
[30] [2014] VSC 663.
[31] Mustapha v Culligan 2008 SCC 27.
[32] Ontario Public Service Employees Union v Ontario (Ministry of Natural Resources) (Burgess Grievance), [2004] OGSBA No 83.
[33] Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council, 2010 SCC 43 [Rio Tinto].
[34] Cf. Regional Court of Munich I, judgment of 07.02.2023 - 3 O 12581/21, BeckRS 2023, 2861; Regional Court of Braunschweig, judgment of 14.02.2023 - 6 O 3931/21; Regional Court of Stuttgart, judgment of 13.09.2022 - 17 O 789/21, juris; Wagner/Arntz, in: Kahl/Weller (Eds.), Climate Change Litigation, 2021, p. 408.
[35] Wagner/Arntz, in: Kahl/Weller (Eds.), Climate Change Litigation 2021, p. 412; Teichmann, in: Jauernig (Ed.), 18th ed. 2021, BGB Sec. 823 para. 1.
[36] Van Gerven, Tort Law, 2001 p. 63; German Federal Court of Justice, judgment of 25.05.1954 - I ZR 211/53, BGHZ 13, 334.
[37] Wagner/Arntz, in: Kahl/Weller (Eds.), Climate Change Litigation, 2021, p. 412.
[38] Wagner/Arntz, in: Kahl/Weller (Eds.), Climate Change Litigation, 2021, p. 412.
[39] Wagner/Arntz, in: Kahl/Weller (Eds.), Climate Change Litigation, 2021, p. 412.
[40] Geselle/Falter, KlimaRZ 2022, 181, 184.
[41] Geselle/Falter, KlimaRZ 2022, 181, 184.
[42] Wagner/Arntz, in: Kahl/Weller (Eds.), Climate Change Litigation, 2021, p. 423.
[43] Cf. Wagner/Arntz, in: Kahl/Weller (Eds.), Climate Change Litigation, 2021, p. 408.
[44] Wagner/Arntz, in: Kahl/Weller (Eds.), Climate Change Litigation, 2021, p. 423.
[45] Wagner/Arntz, in: Kahl/Weller (Eds.), Climate Change Litigation, 2021, p. 423.
[46] (2015) 12 SCC 611
[47] See e.g., 4:102 Principles of European Tort Law.
[48] Supreme Court 5 November 1965, ECLI:NL:HR:1965:AB7079; See further C.C. van Dam, Aansprakelijkheidsrecht (BJu, The Hague 2020),p. 68 et. seq.
[49] E.g., the Principles of European Tort Law, Article 4:102. See also C.C. van Dam, European Tort Law, Oxford: University Press 2013, nr. 805 en 806.
[50] In literature, there is some debate about the exact formulation (and hence content) of the relevant criteria to be applied. K.J.O. Jansen, 'Hoe luiden de kelderluik factoren?', NTBR 2018/14.
[51] Donoghue v Stevenson (1932) A.C. 562.
[52] To be sure, the standard of the "reasonable" man is not that of a man of exceptional skill or mental agility, just as it is not that of a man of subnormal skill or mentality. A person may fall short of the highest standard of care, and not be negligence in law.
[53] (1974) 2 RSLR 1.
[54] JG Frynas, 'Legal Change in Africa: Evidence from Oil-Related Litigation in Nigeria' (1999) 43(2) Journal of African Law 121, 124.
[55] NPC v. CA, G.R. Nos. 103442-45 (1993).
[56] The mandatory mediation stage in the proceedings between ClientEarth and PGE GiEK ended without any settlement, therefore, the case proceeded to the merits. However, the last information thereon was issued on 9 August 2021, available at https://www.clientearth.pl/najnowsze-dzialania/artykuly/zakonczyly-sie-negocjacje-pomiedzy-fundacja-clientearth-prawnicy-dla-ziemi-a-pge-giek/, last accessed on 29 August 2023.
[57] Greenpeace v. PGE GiEK, available at https://climate-laws.org/geographies/poland/litigation_cases/greenpeace-poland-v-pge-giek, last accessed on 3 March 2023; See also K Guzek, "Greenpeace and Polish Energy Group will meet in court", 17 May 2022, available at https://www.greenpeace.org/poland/aktualnosci/31728/greenpeace-and-polish-energy-group-will-meet-in-court/, last accessed on 1st March 2023.
[58] M Bar, "Art. 323" in M. Górski et al. (eds.), Prawo ochrony środowiska, C.H. Beck 2014, p. 859.
[59] A Lipiński in J Jendrośka (ed), Ustawa - Prawo ochrony środowiska. Komentarz, Wrocław 2001, pp. 811-812.
[60] Wentz and others (n 97), Section 2.3.2.
[61] Milieudefensive v Shell ECLI:NL:RBDHA:2021:5339.
[62] Setzer and Higham (n 99), 33.
[63] Josephine van Zeben, 'Establishing a Governmental Duty of Care for Climate Change Mitigation: Will Urgenda Turn the Tide?' (2015) 4 Transnational Environmental Law 339, 349 - 352.
[64] ibid, also see; Silke Goldberg and Richard Lord QC, 'England' in Richard Lord QC and others (eds), Climate Change Liability: Transnational Law and Practice (Cambridge University Press 2011), 457 - 475.
[65] van Zeben (n 122). See my discussion about causation below.