Abstract
The purpose of this paper is to assess the potential legal issues in establishing liability for large-scale emitters of greenhouse gases, in Australia, for resulting harms caused from changes to the climate system. This paper assesses the legal principles and policy issues associated with potential negligence claims against industrial emitters in Australia such as large coal mines and coal-fired electricity plants. This paper identifies a range of significant obstacles in successfully bringing claims in negligence for climatic harms. These include issues in foreseeability, causation and the operation of public policy principles. It is concluded that the distribution of risk from climate change, and associated allocation of liability, is more appropriately addressed through consistent, national legislation rather than through the ad hoc adaptation of the common law.
Highlights
Humans play a pivotal role in contributing to climate change through the burning of fossil fuels, the use of products that emit greenhouse gases and land-use changes such as urbanisation, deforestation and agricultural practices
The purpose of this paper is to assess the potential legal issues in establishing liability for large-scale emitters of greenhouse gases, in Australia, for resulting harms caused from changes to the climate system
This paper identifies a range of significant obstacles in successfully bringing claims in negligence for climatic harms
Summary
Humans play a pivotal role in contributing to climate change through the burning of fossil fuels, the use of products that emit greenhouse gases and land-use changes such as urbanisation, deforestation and agricultural practices. Both the UNFCCC and the Kyoto Protocol are silent on the allocation of responsibility for damage caused as a result of anthropogenic greenhouse gas emissions This means that, at an international level, reparation of harm must be addressed through existing international law principles including the principle of State responsibility for transboundary harm.[10] At a national level, and in the absence of specific legislation regulating emissions and climate harm, the allocation of liability for losses must fall to be addressed by the common law. In the emerging area of climate losses, the Courts must develop and adapt legal principles to identify wrongdoers, recognise the wrong done, allocate blame and distribute losses It is debatable whether the common law of torts is able to adapt sufficiently to apply to the modern, global, environmental, problem of climate change which cuts across the public and private arenas.[14]
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