1. Causes of Action

C. Tort Law: iv Tresspass

1. OVERVIEW

The tort of trespass to land 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 of trespass is broadly the same: a direct, voluntary interference (physical entry) with land that is in the exclusive possession of another. It is also noted that in the Philippines - a legal system with elements of both civil and common law - trespass to land is recognised as a specific cause of action under the Revised Penal Code and, contrary to other jurisdictions, it is common for a civil claim to be instituted as part of a criminal action for trespass. The other case study countries do not specifically recognise trespass as a discrete cause of action, but it remains possible to bring similar claims based on general provisions on civil liability for unlawful acts (e.g. Article 2043 of the Italian Civil Code).

This comparative legal research explores established legal avenues for utilising trespass 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

There is currently little insight into how courts will apply trespass in climate cases. Thus far, trespass claims have only been brought in corporate climate litigation in the United States: One of the first cases to assert a trespass claim was Comer v Murphy Oil USA, Inc but, as with many so-called First Wave cases (those initiated in the US from approximately 2006-2012), it was dismissed for raising non-justiciable political questions. Approximately 15 Second Wave cases (initiated from summer of 2017 to present day) have raised trespass claims, but these cases have nearly all been delayed by jurisdictional arguments, save for New York v Chevron [1] which reached the merits stage but was dismissed as the court found the claims were governed by federal common law and, in turn, were either displaced by the Clean Air Act or were non-justiciable for reasons of foreign policy (see detailed discussion in Section on Standing, Justiciability and Jurisdiction).

However, arguments that have been effective in trespass claims in other contexts might be applied in corporate climate litigation. Perhaps most notably, courts have accepted that air pollution can trespass onto a claimant's land (see e.g. the Alberta Supreme Court case Kerr v Revelstoke Building Materials Limited in which ash and dust from a lumber company that entered a neighbour's land constituted trespass). While there remains some uncertainty as to the extent to which courts are willing to accept that intangible substances like greenhouse gases can give rise to trespass to land, this has been possible in some jurisdictions (see e.g. McDonald & Ors v Associated Fuels Ltd & Ors, in which the British Columbia Supreme Court suggested, obiter, that carbon monoxide blown into a house from an exhaust pipe could constitute trespass to land).

2. Hurdles and Challenges

As discussed below, the case study reports envisage two types of trespass claim in the corporate climate context: first, that greenhouse gas emissions directly invaded a claimant's land, giving rise to a trespass claim; second, that greenhouse gas emissions caused and contributed to climate change, which then caused trespass to land in the form of, for example, flooding from sea level rise. There are challenges facing both these claims.

It is well-established that, regardless of whether any damage is caused, a defendant can be held liable for trespass if they cause a thing to enter someone else's land. Arguably, an example of this in the context of corporate climate litigation could be the dispersal of greenhouse gases by a defendant company that enter a claimant's land. However, there remains a degree of uncertainty across and even within jurisdictions regarding the extent to which courts will be willing to extend trespass to include invasions by intangible substances.[2]

Claims based on the impacts of climate change, such as sea level rise resulting in the entry of sea water into the claimant's land, face the challenge that trespass requires direct interference (see e.g. the seminal case of Entick v Carrington).

3. Potential Legal Avenues in Future Litigation

Corporate climate litigation based on trespass to land is still unknown in most jurisdictions. Light may be shed on the potential of trespass claims as more Second Wave cases in the United States progress to the merits stage.

There are clear precedents in a number of jurisdictions for extending trespass to intangible incursions, such as gases. Although there is significant uncertainty on the issue, there is obvious potential for courts in future climate litigation to recognise that greenhouse gases that enter a claimant's property can constitute a trespass.

[1] This litigation was brought against five multinational oil companies and is often cited as New York v BP Plc.
[2] See e.g. TJ Centner, 'Damages from Pesticide Spray Drift under Trespass Law' (2014) 41 Ecology Law Quarterly 1; RH Cutting and LB Cahoon, 'The "Gift" That Keeps On Giving: Global Warming Meets The Common Law' (2008) 10 Vermont Journal of Environmental Law 109.

2 GRAPHIC SUMMARY

3. RELEVANT DEFINITIONS AND ESSENTIAL ELEMENTS

Trespass to land is direct, voluntary interference (physical entry) with land that is in the exclusive possession of another. Unlike nuisance, trespass is actionable per se, that is, the claimant does not have to prove that the trespass has caused any damage. A classic example would be parking a car in a neighbour's garden. The defendant does not have to be aware that they are trespassing.

The elements of trespass are broadly the same across the common law world. As clearly set out in Section 158 of the United States' Second Restatement of Torts:

One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally
(a) enters land in the possession of the other, or causes a thing or a third person to do so, or
(b) remains on the land, or
(c) fails to remove from the land a thing which he is under a duty to remove.[3]

Subsection (a), liability for trespass by intentionally causing a thing to enter another's land, could have particular relevance for corporate climate litigation. Indeed, with respect to potential litigation against corporations that contribute to climate change, the case study countries envisage two types of trespass claim:

The defendant caused air pollution, including greenhouse gases, to enter the claimant's land and this in itself amounted to a trespass to land.
The defendant's greenhouse gas emissions caused and contributed to climate change that precipitated an extreme weather event, or sea level rise, or a forest fire etc that caused an invasion of the claimant's land, e.g. by inundation.

As to whether the defendant can have the requisite intent, the Second Restatement is again instructive. The commentary on subsection (a) states as follows:

i. Causing entry of a thing. The actor, without himself entering the land, may invade another's interest in its exclusive possession by throwing, propelling, or placing a thing either on or beneath the surface of the land or in the air space above it. Thus, in the absence of the possessor's consent or other privilege to do so, it is an actionable trespass to throw rubbish on another's land . . . In order that there may be a trespass under the rule stated in this Section, it is not necessary that the foreign matter should be thrown directly and immediately upon the other's land. It is enough that an act is done with knowledge that it will to a substantial certainty result in the entry of the foreign matter.

As further clarified by Section 8A of the Second Restatement, intent does not require that the defendant desired to cause the particular consequence by their actions. Rather the requirement is that they knew that the consequence was 'certain, or substantially certain' to result from their actions.[4] Thus, in Bradley v American Smelting and Refining Co, the defendant was deemed to have the requisite intent to commit trespass because they had to have known that emitting gas and particulates out of a tall smokestack would invade land possessed by others.

[3] Restatement (Second) of Torts (American Law Institute 1979) § 158.
[4] Restatement (Second) of Torts (American Law Institute 1979) § 8A.

4. SOURCES OF LAW

I. International

(n/a)

II. Regional

(n/a)

III. Domestic

The tort of trespass to land its origins in English common law. While there is some inconsistency in how different courts have interpreted certain issues, such as whether intangible substances can give rise to a trespass claim, the core definitional features of trespass are the same across the common law case study countries.

A. Constitutional Provisions

(n/a)

B. Legislative Provisions and Common Law

Key cases and legislative provisions that provide a legal basis for the tort of trespass to land are cited here. Landmark English common law cases such as Entick v Carrington are cited across the common law world as authoritative legal sources for applying the tort of trespass.

CANADA

Entick v Carrington [1765] EWHC KB J98

This famous case is authority for the rule that no one - not even agents of the State as was the factual scenario in this case - may enter someone else's land without permission from the landowner or some legal authority to enter the land. Furthermore, trespass does not require proof of harm: 'every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing'.

'The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by private law, are various. Distresses, executions, forfeitures, taxes etc are all of this description; wherein every man by common consent gives up that right, for the sake of justice and the general good. By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books; and if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.'[5]

Salmond on the Law of Torts:

'It is a trespass to place any chattel upon the plaintiff's land, or to cause any physical object or noxious substance to cross the boundary of the plaintiff's land'.

GERMANY

Claimants can seek compensation for damage arising from a trespass under the general tort liability provision in Section 823(1) of the German Civil Code. Additionally, it is possible to seek injunctive relief with respect to interferences with land under Section 1004.

German Civil Code

Section 823: '(1) A person who, intentionally or negligently, unlawfully injures the life, limb, health, freedom, property or some other right of another person is liable to provide compensation to the other party for the damage arising therefrom.'

Section 1004: '(1) If the ownership is interfered with by means other than removal or retention of possession, the owner may demand that the disturber remove the interference. If there is the concern that further interferences will ensue, the owner may seek a prohibitory injunction. (2) The claim is excluded if the owner is obliged to tolerate the interference.'

ITALY

The tort of trespass as found in common law systems does not exist in Italy. However, trespass can broadly be assimilated to the general duty to compensate damage caused by wrongful acts under Article 2043 of the Italian Civil Code .

Italian Civil Code

Article 2043: 'Any intentional or negligent act, which causes unjust harm to others, obliges the one who committed the act to pay for the damage.'

NETHERLANDS

Under Dutch law, trespass is not a specific cause of action. However, the general provision on tortious/unlawful acts in Article 6:162 of the Dutch Civil Code could provide a legal basis for a similar claim.

Netherlands Civil Code

Article 6:162 (Definition of a 'tortious act'): '- 1. A person who commits a tortious act (unlawful act) against another person that can be attributed to him, must repair the damage that this other person has suffered as a result thereof. - 2. As a tortious act is regarded a violation of someone else's right (entitlement) and an act or omission in violation of a duty imposed by law or of what according to unwritten law has to be regarded as proper social conduct, always as far as there was no justification for this behaviour. - 3. A tortious act can be attributed to the tortfeasor [the person committing the tortious act] if it results from his fault or from a cause for which he is accountable by virtue of law or generally accepted principles (common opinion).'

NIGERIA

Oyewusi v Olagbami [2018] 14 NWLR (Pt 195) at 297

The Supreme Court of Nigeria defined trespass as follows:

'Trespass to land is a wrongful entry into the land in actual or constructive possession of another, a claim which is rooted in exclusive possession of the land in dispute.'.

PHILIPPINES

In the Philippines, it may be possible to base a claim for trespass on various provisions of the Philippine Civil Code. However, trespass is specifically defined as a cause of action in the Revised Penal Code - the definition does not match the common law understanding - and it is common for a civil claim for trespass to be instituted as part of a criminal action for the offence of trespass.

Civil Code of the Philippines

Article 19: 'Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.'
Article 21: 'Any person who wilfully causes loss or injury to another in manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.'
Article 26: 'Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:

(1) Prying into the privacy of another's residence;
(2) Meddling with or disturbing the private life or family relations of another;
(3) Intriguing to cause another to be alienated from his friends;
(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition.'

Article 32: 'Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:

...

(6) The right against deprivation of property without due process of law;
(7) The right to a just compensation when private property is taken for public use;
(8) The right to the equal protection of the laws;
(9) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures;
(10) The liberty of abode and of changing the same;

...

In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence.

The indemnity shall include moral damages. Exemplary damages may also be adjudicated.

The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute.'

Revised Penal Code

Article 281: 'Other Forms of Trespass. — The penalty of arresto menor or a fine not exceeding 200 pesos, or both, shall be imposed upon any person who shall enter the closed premises or the fenced estate of another, while either of them are uninhabited, if the prohibition to enter be manifest and the trespasser has not secured the permission of the owner or the caretaker thereof.'

Revised Rules of Criminal Procedure

Rule 111: 'Section 1. Institution of criminal and civil actions. — (a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action.'

● POLAND

The Polish Civil Code does not include a tort of trespass. A claim alleging an intentional invasion of another's property by greenhouse gas would have to be based either on Articles 144 and 222 § 2 of the Polish Civil Code that address interference with the enjoyment of property; or on Article 415 which is the general provision on civil liability for a tortious act that causes damage.

Polish Civil Code

Article 144: 'Immissions. In exercising his right, a real estate owner should refrain from actions which could disrupt the use of neighbouring real estate beyond a normal scope, arising from the social and economic purpose of the real estate and local relations.'
Article 222 §2: 'An owner is entitled to claim restitution of the lawful status and for violations of the law to be ceased, against a person who violates his ownership otherwise than by depriving him of actual control of the thing.'
Article 415: 'Fault. Anyone who by a fault on his part causes damage to another person is obliged to remedy it.'

A claim could also be based on Article 323 of the Environmental Protection Law Act which provides that a polluter may be required to cease an activity that threatens to cause environmental damage.

Environmental Protection Law Act (EPLA)

Article 323: 'Anyone who is directly threatened or harmed by an unlawful impact on the environment, may demand that the entity responsible for the threat or violation restore the lawful state of affairs and take preventive measures, in particular by installing installations or devices to prevent the threat or violation; if this is impossible or excessively difficult, he may demand the cessation of the activity causing the threat or violation.

(2) If the threat or violation concerns the environment as a common good, the claim referred to in paragraph 1, may be filed by the State Treasury, a local government unit, as well as an environmental organization.'

UNITED KINGDOM

In English law, trespass to land involves the unjustifiable interference with land in immediate and exclusive possession of another. It is not necessary to prove that harm was suffered to bring a claim, and is instead actionable per se.[6] The famous case of Entick v Carrington (quoted above under Canada) is, of course, a leading authority for the tort of trespass to land in the UK. A more recent case, with potential relevance to climate-related litigation, is Star Energy Weald Basin Limited and another (Respondents) v Bocardo SA (Appellant) in which the UK Supreme Court held that drilling for oil beneath another's land constituted a trespass.

Star Energy Weald Basin Limited and another (Respondents) v Bocardo SA (Appellant) [2010] UKSC 35

'6. It is common ground that a trespass occurs when there is an unjustified intrusion by one party upon land which is in the possession of another: Blackstone, Commentaries on the Laws of England, vol 3, p 209; Clerk & Lindsell on Torts, 19th ed (2006), para 19.01.'

UNITED STATES

Restatement (Second) of Torts (American Law Institute 1979) § 158

'One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally
(a) enters land in the possession of the other, or causes a thing or a third person to do so, or
(b) remains on the land, or
(c) fails to remove from the land a thing which he is under a duty to remove.'

Newstone Development, LLC v. East Pacific, LLC, 140 A.3d 100 (R.I. 2016)

'torts such as trespass are intentional and do not require a plaintiff to have sustained an actual loss—instead, the invasion of one's property alone gives rise to the cause of action. See Bennett v. Napolitano, 746 A.2d 138, 141 (R.I.2000) ("A trespasser is '[o]ne who intentionally and without consent or privilege enters another's property.' ") (quoting Ferreira v. Strack, 652 A.2d 965, 969 (R.I.1995) ).'

Smith v Carbide and Chemicals Corp, 507 F.3d 372, 172 O.G.R. 85 (6th Cir. 2007)

The claimants brought a claim for intentional trespass based on contamination of soil and groundwater caused by imperceptible particles emitted by a uranium enrichment facility in the forms of gas, liquid and waste. The court explained that the claimants did not have to prove that they suffered actual damage such as decreased property values in order to bring a trespass claim; indeed, an award of nominal damages could be permissible.

'it is now settled that Appellants may bring a claim for intentional trespass without proof of actual harm' ... The Kentucky Supreme Court went on to explain ...

Property owners are not required to prove contamination that is an actual and verifiable health risk, nor are they required to wait until government action is taken. An intrusion (or encroachment) which is an unreasonable interference with the property owner's possessory use of his/her property is sufficient evidence of actual injury.'

[5] RFV Heuston, Salmond on the Law of Torts (15th edn, Sweet & Maxwell 1969) 53
[6] J Steele, Tort Law: Text, Cases, and Materials (5th edn, Oxford University Press 2022) Chapter 18.

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 trespass. 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.

CANADA

Trespass can apply when noxious substances are released onto the claimant's land, which could have relevance to climate litigation. Examples of this sort of trespass in Canada have included, among others, the release of ash and sawdust from a lumber company onto a motel (Kerr v Revelstoke Building Materials Limited); and the aerial release of pesticides onto an organic farm (Friesen et al v Forest Protection Limited) .

Kerr v Revelstoke Building Materials Limited [1976] AJ No 637, 71 DLR (3d) 134

In Kerr v Revelstoke, damages were awarded for the interference caused by a lumber company that was situated across the road from the claimants' motel. The Alberta Supreme Court held that fly ash[7] and sawdust emitted by the company that crossed the boundary of the claimants' land amounted to 'a physical invasion' that constituted trespass.

'I am satisfied on the evidence that they have established a cause of action founded in trespass ... The physical invasion of their premises by sawdust and fly ash was so severe on occasion that it interfered with their use and enjoyment of their property. Actual samples of fly ash were collected and placed in vials by the plaintiff, James Runciman Kerr, and were entered in evidence as exhibits.
'"very invasion of property, be it ever so minute, is a trespass": Entick v. Carrington (1765), 19 St. Tr. 1030 at p. 1066; Salmond on the Law of Torts, 15th ed. (1969), at p. 49; Boyle v. Rogers, [1921] 2
W.W.R. 704, 31 Man. R. 263; affirmed [1922] 1 W.W.R. 206, 31 Man. R. 421 (Man. C.A.).
"It is a trespass to place any chattel upon the plaintiff's land, or to cause any physical object or noxious substance to cross the boundary of the plaintiff's land ...": Salmond on the Law of Torts, 15th ed. (1969), at p. 53.'

While tangential to corporate climate litigation, Kerr v Revelstoke provides insight into how Canadian courts deal with toxic torts with respect to industrial operations. A corporate climate litigation claim in trespass might claim that noxious substances or waste dumping that enters a claimant's land is harmful to the environment.

Interestingly, the Court also held that the defendant was liable under the tort of nuisance due to the noise emanating from the sawmill operations. This is an example of the subtle nuances that can distinguish trespass from nuisance: trespass requires direct interference with the land itself - while there need not be any damage caused, there must be a physical intrusion onto the land; nuisance requires interference with the use or enjoyment of land, thus in the Kerr case, it was deemed that noise that 'seriously interfered with their rest and sleep and with that of their motel guests' was a nuisance.

Friesen et al v Forest Protection Limited [1978] NBJ No 30, 22 NBR (2d) 146

The claimants asked the defendant not to spray their farm with pesticide, but a week later the company went ahead. The Court found the company had trespassed onto the land:

'To throw a foreign substance on the property of another, and particularly in doing so to disturb his enjoyment of his property, is an unlawful act. The spray deposited here must be considered such a foreign substance, and its deposit unquestionably amounted to a disturbance, however slight it may have been, of the owners' enjoyment of their property. I therefore must conclude that the defendant, in depositing the spray did in fact commit what would, in the absence of statutory authority, be considered a trespass. This of course does not involve any question of whether or not the spray may have been toxic or non-toxic, because even to have thrown water, or garbage, or snow, or earth tippings, or any substance on the property would equally have amounted to an act of trespass.'

It is also noteworthy that the defendant argued that they had been authorised by the government to carry out the spraying programme. This defence was rejected as the relevant underlying legislation did not authorise the Minister of Natural Resources to spray private land without consent:

'Nowhere in the Act is given to the Minister the authority to enter, for the purpose of combatting forest insects or disease, upon private property either by spraying or otherwise.'

INDIA

In India, substantial fines have been imposed by the National Green Tribunal on companies that carry out construction work without the requisite environmental clearances. These fines are designed to provide compensation for environmental and ecological damage, as well as to support the cost of measures to control degradation caused by these projects. See, in particular, Forward Foundation v State of Karnataka, and SP Muthuraman v Union of India (OA No. 37/2015).

Forward Foundation v State of Karnataka (pronounced by the National Green Tribunal on 7 May 2015)

'The project proponents are liable to pay compensation under the Polluter Pays Principle, for the illegal and unauthorised construction carried on in violation of the environmental laws and prior to the grant of Environmental Clearance.'

SP Muthuraman v Union of India (OA No. 37/2015)

'All the Project Proponents shall pay environmental compensation of 5 per cent of project value for restoration and restitution of the environment and ecology as well as towards their liability arising from impacts of the illegal and unauthorized construction carried out by them.'

UNITED STATES

A series of Second Wave corporate climate cases have asserted trespass claims. The focus of these claims is on climate change impacts, e.g. (1) the defendants caused climate change; (2) the climate change caused an event such as sea level rise; (3) the event in turn caused things, such as saltwater, to invade the claimant's land. For instance, City & County of Honolulu v Sunoco LP:

City & County of Honolulu v Sunoco LP

The defendants 'caused flood waters, extreme precipitation, saltwater, and other materials, to enter the City's real property, by distributing, analyzing, recommending, merchandising, advertising, promoting, marketing, and/or selling fossil fuel products [with the knowledge that ...] those products in their normal or foreseeable operation and use would cause global and local sea levels to rise ... among other adverse environmental changes, and the associated consequences of those physical and environmental changes.'

[7] Fly ash (also known as pulverised-fuel ash) is a fine powder that is a hazardous by-product of burning coal (M Ghassemi et al, 'Hazardous Waste from Fossil Fuels' in CJ Cleveland (ed), Encyclopedia of Energy, Volume 3 (Elsevier 2004) 119).

6. HURDLES AND CHALLENGES

As discussed in Part 3 on Definitions and Essential Elements, the case study reports envisage two types of trespass claim in the corporate climate context: first, that greenhouse gas emissions directly invaded a claimant's land, giving rise to a trespass claim; second, that greenhouse gas emissions caused and contributed to climate change, which then caused trespass to land in the form of, for example, flooding from sea level rise. There are challenges facing both these claims.

1. Can invasion of land by greenhouse gases constitute trespass?

Indeed, while the distinction is not always clear, in some jurisdictions nuisance is the preferred cause of action to remedy invasion by intangible substances. For example, in Johnson v Paynesville Farmers Union, the Minnesota Supreme Court (also citing precedents from the Michigan Court of Appeals and the Vermont Supreme Court) held that the defendant company could not be liable in trespass when some of the pesticide they were spraying on one farm drifted onto the claimant's farm, but such intangible substances could give rise to a nuisance claim:

'When people or tangible objects enter the plaintiff's land without permission, these entries disturb the landowner's right to exclusively possess her land. W. Page Keeton et al., Prosser & Keeton on the Law of Torts, § 13, at 70 (5th ed.1984). But the disruption to the landowner's exclusive possessory interest is not the same when the invasion is committed by an intangible agency, such as the particulate matter at issue here. Id. § 13, at 71. Such invasions may interfere with the landowner's use and enjoyment of her land, but those invasions do not require that the landowner share possession of her land in the way that invasions by physical objects do. See Adams v. Cleveland-Cliffs Iron Co., 237 Mich.App. 51, 602 N.W.2d 215, 218-19 (Mich.Ct.App.1999) ("[P]ossessory rights to real property include as distinct interests the right to exclude and the right to enjoy, violations of which give rise to the distinct causes of action respectively of trespass and nuisance." (citing Keeton, supra, § 87)); John Larkin, Inc. v. Marceau, 184 Vt. 207, 959 A.2d 551, 555 (Vt.2008) (holding that landowner who sprayed pesticide on his land that drifted onto plaintiff's land did not commit trespass because there was no evidence that the pesticide interfered with the plaintiff's right to exclusive possession of his land).'

However, this delineation of tangible trespass versus intangible nuisance is not followed in other jurisdictions, e.g. the pesticide spray case of Friesen et al v Forest Protection Limited, and the release of ash and sawdust from a lumber company onto a motel (Kerr v Revelstoke Building Materials Limited)[9] (discussed above under Current Applications in Canada).

In the United States, there is also ample case law demonstrating that air pollution can amount to trespass in a number of states; however, some courts have adapted the traditional trespass requirements in cases concerning intangible substances to require actual damage to have occurred. For example, Bradley v American Smelting and Refining Co, in which various gases and microscopic particulate matter from the defendant's copper smelter blew onto the claimant's land. The Washington Supreme Court, upheld by the United States District Court for the Western District of Washington, accepted that such substances could constitute trespass; however,

'one of the necessary elements of a trespass claim based on emission of imperceptible airborne pollutants is substantial damages to the res upon which the trespass occurs.'.

If claimants will have to prove actual damage then this removes the key advantage of trespass being actionable per se.

Ultimately, what is clear is that we must await further case law in the corporate climate context to shed light on whether courts in the various case study countries will extend trespass to greenhouse gases.

2. Are claims based on the impacts of climate change, such as flooding due to sea level rise, sufficiently direct to constitute trespass?

Trespass requires direct, intentional, and physical interference with a claimant's land (see e.g. the seminal case of Entick v Carrington). Satisfying these elements represents a challenge. It is generally held that the invasion of the claimant's land must be a direct result of the defendant's activities. Indeed, while the distinction is not always clear cut, the requirement of direct interference with the land is a key feature that separates trespass from nuisance. As explained by Lord Denning in Southport Corporation v Esso Petroleum, in relation to oil discharged from a ship:

'In order to support an action for trespass to land the act done by the defendant must be a physical act done by him directly onto the plaintiff's land ... This discharge of oil was not done directly onto their foreshore but outside in the estuary. It was carried by tide on to their land but that was only consequential, not direct. Trespass, therefore, does not lie'.

Given the dearth of corporate climate judgments assessing claims of trespass to land, we are largely in the realms of the hypothetical. However, claimants asserting that greenhouse gas emissions have caused climate change that has then caused, for example, a forest fire, that has then caused particulates to enter a claimant's land, arguably have a steep hill to climb. It may be that nuisance or negligence provide more viable causes of action.

[8] See e.g. TJ Centner, 'Damages from Pesticide Spray Drift under Trespass Law' (2014) 41 Ecology Law Quarterly 1; RH Cutting and LB Cahoon, 'The "Gift" That Keeps On Giving: Global Warming Meets The Common Law' (2008) 10 Vermont Journal of Environmental Law 109.
[9] However, in that case the court seemed moved by the fact that the claimants were able to collect physical samples of dust deposited on their land. It is also noteworthy that there was also a noise pollution claim in this case and noise was considered to fall under the tort of nuisance, illustrating a common approach to intangible interferences.

7. POTENTIAL FUTURE APPLICATIONS

Corporate climate litigation based on trespass to land is still an unknown in most jurisdictions. It is anticipated that more Second Wave cases in the United States will progress to the merits stage in numerous state courts. These judgments will shed light on how court treat trespass claims in the climate change context.

Based on trespass judgments in other contexts, we can see that there is significant uncertainty with respect to the willingness of courts to extend trespass to cover intangible incursion to land by, for example, gases. There are clear precedents for doing so in a number of jurisdictions and we must wait to see if these are taken up in corporate climate litigation. One potential avenue raised in the scholarship is that advances in science may identify more direct deleterious health and environmental effects of certain emissions that would bolster claims of physical trespass.[10]

[10] RH Cutting and LB Cahoon, 'The "Gift" That Keeps On Giving: Global Warming Meets The Common Law' (2008) 10 Vermont Journal of Environmental Law 109.

8. COUNTRY SUMMARIES

AUSTRALIA

To date, negligence is the only tort that has been raised in corporate climate litigation in Australia. The tort of trespass to land exists in Australian law and might be invoked in future litigation, particularly given that tort law has gained prominence as a potential cause of action for climate litigation following multiple high-profile climate cases in negligence. However, the difficulty of establishing causation and attributing liability for climate change impacts to individual companies or projects remains a significant hurdle for litigants.

CANADA

Trespass can apply when toxic substances are released. Trespass requires direct, intentional, and physical interference with a plaintiff's land. Related to climate impacts, trespass can involve discharges of ash, smoke or other by-products, as well as runoff or aerial pesticides. In theory, a new action arises each day interference occurs. With trespass, mistake is not a defence. And unlike nuisance, there must be physical trespass onto the land. With that said, trespass does not require proof of harm. In corporate climate litigation, the difficulty with utilizing trespass is that the act must be intentional and there must be direct interference. Therefore, nuisance or negligence claims may be more appropriate.

In Kerr v Revelstoke, damages were awarded for the interference caused from machinery operations by a lumber company that was situated across the highway from the plaintiffs' motel. The machinery emitted smoke, dust, flying ash and noise onto the plaintiffs' property. The defendant was found not to be negligent as he had attempted to mitigate the effect on the plaintiff's business. While tangential to corporate climate litigation, Kerr v Revelstoke provides insight into how Canadian courts deal with toxic torts with respect to industrial operations. A corporate climate litigation claim in trespass might claim that noxious substances or waste dumping that enters a plaintiff's land is harmful to the environment.

NETHERLANDS

Under Dutch law, civil conspiracy is not a specific cause of action. However, there are provisions of the Dutch Civil Code that could be used to impose liability for a conspiracy. Under Article 6:162, when two or more parties cooperate to commit an unlawful act that causes damage to another person, they may be held jointly and severally liable. Related is Article 6:166 which provides that when more than one person of a group commits a tort, the members of the group, under some circumstances, can be held jointly and severally liable for the entire damage unless they prove that the damage is not attributable to them. To date, there is no litigation on civil conspiracy in the climate change context.

GERMANY

Cases of trespass could be addressed under general provisions on tort liability, particularly Section 823(1) of the German Civil Code:
'(1) A person who, intentionally or negligently, unlawfully injures the life, limb, health, freedom, property or some other right of another person is liable to provide compensation to the other party for the damage arising therefrom.'

Section 1004 of the Civil Code may allow a claimant to seek injunctive relief against trespass:
'(1) If the ownership is interfered with by means other than removal or retention of possession, the owner may demand that the disturber remove the interference. If there is the concern that further interferences will ensue, the owner may seek a prohibitory injunction. (2) The claim is excluded if the owner is obliged to tolerate the interference.'

INDIA

In India, substantial fines have been imposed by the National Green Tribunal on companies that carry out construction work without the requisite environmental clearances. These fines are designed to provide compensation for environmental and ecological damage, as well as to support the cost of measures to control degradation caused by these projects. See, in particular, Forward Foundation v State of Karnataka, and SP Muthuraman v Union of India (OA No. 37/2015); along with Manoj Mishra v Union of India.

ITALY

Generally speaking, in the Italian legal system, trespass can be assimilated to the general duty to compensate damage caused by wrongful acts under Article 2043 of the Italian Civil Code. In Italy, the only climate litigation grounded on Article 2043 is Greenpeace, Re:Common et al v ENI).

JAPAN

Japan has no concept of trespass, but uses the umbrella torts concept following the European continental legal concept. (Japanese Civil Code Article 709ff).

KENYA

While it may be possible to bring a claim based on torts, such as trespass, such litigation is rare in Kenya due to the availability of specific environmental provisions upon which environmental suits can be anchored.

NETHERLANDS

Under Dutch law, there is no specific action of trespass under civil law. However, the general provision on tortious/unlawful acts in Article 6:162 of the Dutch Civil Code could provide a legal basis for a similar claim.

NIGERIA

Trespass to land is committed where a defendant without lawful justification enters, or remains upon land in possession of the plaintiff, or directly places or projects any material or substance on or above or beneath such land. Only persons who are in actual or constructive possession of the land can bring an action in trespass. As trespass is actionable per se, the party bringing the action will not - unlike nuisance, for example - have to prove that the trespass has caused actual damage. In deserving cases, this characteristic would make it a relatively easier route to justice for climate litigants. While it has not been the basis for a corporate climate claim in Nigeria, the utility of trespass to land in climate cases in the country will largely depend on the readiness of the Nigerian court to extend trespass to intangible incursion, in order to cover activities like GHG emissions.

PHILIPPINES

It is possible that a claim for trespass to land could be made based on provisions of the Civil Code of the Philippines that address civil liability for (1) causing loss or injury contrary to public policy (Articles 19 and 21); (2) for violating the privacy of another's residence (Article 26); (3) for, among other property rights, violating the right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures (Article 32).

However, trespass to land is explicitly covered in Article 281 of the Revised Penal Code which is how trespass is often litigated:
'ARTICLE 281. Other Forms of Trespass. — The penalty of arresto menor or a fine not exceeding 200 pesos, or both, shall be imposed upon any person who shall enter the closed premises or the fenced estate of another, while either of them are uninhabited, if the prohibition to enter be manifest and the trespasser has not secured the permission of the owner or the caretaker thereof.'

Although a criminal action, a civil action for the recovery of civil liability arising from the offence charged is also impliedly instituted.[17]

POLAND

The Polish Civil Code does not include a tort of trespass. In relation to greenhouse gas emissions, a claim alleging an intentional invasion of another's exclusive right to possession of property would have to be based either on Articles 144 and 222 § 2 of the Polish Civil Code, in case of interference with the enjoyment of one's property; or on Article 415 which is the general provision on civil liability for a tortious act that causes damage. A claim under Article 415 could also be based on harms such as stress, inconvenience or anxiety caused by the trespass. Additionally, Article 222 allows for an abatement claim to stop violations of ownership rights.

In case of environmental pollution, a claimant in Poland could also act based on Article 323 of the Environmental Protection Law Act which provides a polluter may be required to cease an activity that threatens to cause environmental damage.

UNITED KINGDOM

In English law, trespass to land involves the unjustifiable interference with land in immediate and exclusive possession of another.[18] It is not necessary to prove that harm was suffered to bring a claim, and is instead actionable per se.[19] There have been actions in trespass brought in the context of climate change, but most of these are prosecutions of climate change activists, and as such fall beyond the scope of the project.

UNITED STATES

Trespass to land is an invasion into another's exclusive right to possession of property. It is a direct unlawful interference with another's property. Generally, the main elements of trespass are: (1) an unlawful intrusion or invasion upon a property; (2) intent of intrusion; (3) force; and (4) consequent injury to an owner.[20] As an intentional tort, the intent is required. Instead of intent to trespass, intent to enter or remain on the land is required, regardless of whether the trespasser knows the land is owned by others.[21] The owner need not prove that they suffered actual damages of value decreasing or property repairing.[22] A nominal damage claim is permissible.[23]

One of the first cases to claim trespass was the Murphy Oil case in the First Wave, but it was dismissed. A series of Second Wave cases claiming trespass have been brought by states, cities, counties and municipalities. For instance, in City & County of Honolulu v. Sunoco LP, Honolulu asserts that the defendants 'caused flood waters, extreme precipitation, saltwater, and other materials, to enter the City's real property, by distributing, analyzing, recommending, merchandising, advertising, promoting, marketing, and/or selling fossil fuel products' with the knowledge that 'those products in their normal or foreseeable operation and use would cause global and local sea levels to rise [...] among other adverse environmental changes, and the associated consequences of those physical and environmental changes.' As with many other Second Wave cases, the litigation has been delayed by arguments over whether the case belongs in state or federal courts. The case has now been remanded to the state courts and the Hawai'i Supreme Court will likely be the first state court to decide whether climate change tort claims are pre-empted by federal common law and the Clean Air Act. Furter discussion of these issues can be found in the Section on Standing, Justiciability and Jurisdiction (hyperlink to be added).

[17] RULES OF COURT, Rule 111, § 1.
[18] J Steele, Tort Law: Text, Cases, and Materials (5th edn, Oxford University Press 2022) Chapter 18.
[19] ibid.
[20] 75 Am. Jur. 2d Trespass § 26.
[21] Newstone Development, LLC v. East Pacific, LLC, 140 A.3d 100 (R.I. 2016).
[22] See e.g., Smith v. Carbide and Chemicals Corp., 507 F.3d 372, 172 O.G.R. 85 (6th Cir. 2007).
[23] Id.

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