Negligence in the air: the duty of care in climate change litigation.

• Author: Hunter, David

INTRODUCTION

The past eighteen months have witnessed a remarkable surge of popular interest in climate change and its impact. Sensitized by the devastation of Hurricane Katrina in New Orleans and the heavy hurricane season through the Gulf states, the public has gained a new-found appreciation for the remote-sounding predictions that global warming may increase severe storm activity. (1) Timing is everything, and the recent releases of the disaster movie The Day After Tomorrow (2) and Al Gore's documentary An Inconvenient Truth (3) have spurred wide-spread interest from the workplace to the blogosphere over a topic that long seemed the exclusive province of tree-huggers and policy wonks.

Indeed, just six years ago, soon after his election in 2000, President Bush reversed his campaign position on climate change and suffered no political fallout. (4) Since refusing to send the Kyoto Protocol to the Senate for ratification, the Bush administration has maintained a consistent policy of opposition to any "targets and timetables" or similar approach to climate change that would involve mandatory reduction or stabilization of greenhouse gases (GHGs). Instead, the administration has called for voluntary commitments by industry and increased efforts in research and development. (5) To date, this inaction at the federal level has not resulted in any clear political cost. Indeed, during the 2004 presidential election, John Kerry deliberately avoided the topic of climate change--an issue focus groups apparently deemed too remote or politically damaging on which to run. (6)

While not making a noticeable difference at the ballot box, failure to take significant action at the federal level to address climate change concerns has triggered three significant responses. The first has been increased corporate activity. Companies have begun rebranding themselves to suggest a more climate-friendly agenda--such as British Petroleum's new tag line "Beyond Petroleum" (7)--and a wide range of corporations are establishing corporate GHG reduction targets, (8) while entrepreneurs look to profit from people's desires to do something about the climate problem. (9)

The second response has taken the form of increased political activity at the subnational level. (l0) Communities around the nation have created climate action plans." States have joined the action, as well. Twenty-two states and the District of Columbia require utilities to obtain a specific percentage of their electricity from renewable sources, while Washington and Oregon require offsets for utilities' greenhouse gas emissions. (12) California has taken the strongest actions, requiring greenhouse gas emissions to be reduced to 1990 levels by 2020. (13) And seven northeastern states have joined together in the Regional Green-house Gas Initiative (RGGI)--a regional strategy that mandates a ten percent reduction in carbon dioxide emissions from electric power generators by 2019. (14)

The third response to federal inaction has come through increased litigation, including legal actions brought by environmental groups, tobacco class action attorneys, municipalities, state attorneys general, and others. Some litigation has focused on suits against public bodies. For example: Massachusetts and eleven other states sued the EPA under the Clean Air Act to require the agency to regulate carbon dioxide as a pollutant; (15) cities and environmental groups filed suit against the Overseas Private Investment Corporation (OPIC), demanding that it produce environmental impact statements considering the climate impacts of its loans; (16) and representatives of the Arctic Inuit people filed a petition against the United States government before the Inter-American Commission on Human Rights. (17) Most of these cases are still pending, although the Supreme Court recently reached a decision in the plaintiffs' favor in Massachusetts v. EPA. (18)

Likely far more important in the future will be tort actions filed against private parties. We are aware of four such cases thus far, but observers (including the organizers of this Symposium) expect the number to increase significantly. (19) If successful, these and future cases will have a huge impact on the industries sued and, as hopeful lawyers have mused, could make the tobacco litigation look small by comparison. (20) For example, the most recent case--filed in September 2006 by the Attorney General of California against six major car manufacturers--requests damages for, among other things, "such future monetary expenses and damages as may be incurred by California in connection with the nuisance of global warming." (21) That could be a whopper of a check, but will the case succeed?

As law students all dutifully learn in their first-year Torts classes, a prima facie negligence claim must satisfy four elements: duty, breach, causation, and injury. (22) Our sense is that most of the discussion and analysis of climate change cases to date have focused on the third and fourth elements. (23)In terms of causation, for example, how can plaintiffs persuasively link the particular emissions of cars driven in California with reduced snowpack in the Sierra Nevada? And even if a causal link can be established between the offending action and the harm, what is the proper measure of the car companies' liability in the face of multiple sources of greenhouse gases over an extended time period?

These are challenging issues, and surely deserve careful attention. What remains surprising, though, is that little beyond passing mention has been written about the first two elements of negligence--the duty of care and its breach. Suppose one could establish that emissions from a utility company or an automobile manufacturer's cars proximately caused greater storm surges that, in turn, harmed a particular coastal community, or proximately caused reduced snowpack that led to water shortages for a specific farming community. Key questions would still remain. Did the utility or car manufacturer owe a duty of care to these specific communities? If so, what was the nature of that duty and was it breached?

To improve our understanding of the short-term and long-term potential for climate change tort litigation, this Article focuses on these first two elements of a tort action--the duty of care and its breach. Part I addresses general doctrine. What role does the duty of care play in tort actions? Part II then explores the likely scenarios for climate-based tort actions, including a summary of the tort-based actions brought thus far. Who are the likely plaintiffs and defendants? How have litigants attempted to satisfy the duty of care elements in climate litigation? The final Parts assess the duty of care for a range of tort actions--negligence (Part III), products liability (Part IV), and private and public nuisances (Part V)--that may in the future form the basis of climate-based claims.

1. DUTY OF CARE

   As the Restatement (Second) of Torts explains, (24)

   [t]he word "duty" is used ... to denote the fact that the actor is required to conduct himself in a particular manner at the risk that if he does not do so he becomes subject to liability to another to whom the duty is owed for any injury sustained by such other, of which that actor's conduct is a legal cause. Parsing this definition, the duty element can be seen to imply two separate questions: (1) to whom is the duty owed?, and (2) what does the duty entail? Put another way, a successful plaintiff must demonstrate that the defendant "was obligated to the plaintiff to take care to avoid causing the type of injury plaintiff suffered." (25)

   In most negligence cases, the answer to both questions is related to the foreseeable risks under the circumstances. The general duty owed is to act reasonably under the circumstances (i.e., not to create unreasonable risks), and that duty is owed to those who are foreseeably at risk from the defendant's behavior. In many tort cases, the answers to these questions are clear, and neither the litigants nor the judge need dwell on them. Consider, for example, a driving accident. Drunk is driving down the road after downing a six-pack and hits Bystander, who is minding her own business waiting for a bus. It goes without saying that Drunk (1) owes a duty to bystanders (2) not to drive on the sidewalk. For this reason, the duty element is often conflated with the related question of breach of duty. (26)

   The duty of a driver to pedestrians and other motorists is obvious. But as the links of causation (and thus the foreseeability of the injury) become attenuated, the analysis of duty also becomes more complicated. To modify our example above, assume that while driving down the road, Drunk is pulled over for driving under the influence. Tow Truck Driver arrives to pick up Drunk's car and is injured when hit by a passing car. Drunk's driving clearly was negligent, and if she had struck someone while driving she surely would have been liable. But does she owe a duty to Tow Truck Driver for his injuries? (27) Or imagine if Drunk, while weaving down the road, notices in her mirror that Victim, standing on the side of the road, is suffering a heart attack, but she keeps driving. Does Drunk owe a duty to Victim? (28)

   In both cases, the law would say no. Drunk's driving was clearly negligent, but she owes a duty only to the class of victims put at risk by her negligent activity--pedestrians, not people stopping to tow her car or suffering heart attacks on the sidewalk. Neither Tow Truck Driver nor Victim is in the zone of foreseeable parties to whom Drunk owes a duty of care.

   When framed in this manner, it is apparent that the function of duty in tort claims is relational. It is not enough to focus solely on whether the actor exercised reasonable care or whether the resulting harm was proximately caused by the activity. A duty must also be owed by the party to the victim. A duty is owed to another...