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"Liability for carbon emissions - unprecedented challenges for tort law"

What role can judges play in tackling the climate crisis? Professor Jörg Fedtke discusses this question and other issues of tort liability for carbon emissions with an international panel in his Crossroads-Series. Guests include an Australian judge, a former advocate general to the Dutch Supreme Court, a former judge at the Higher Regional Court of Hamburg and students from the University of Passau.

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Crossroads is a series of events hosted by the Chair of Common Law and funded by the University of Passau. It focuses on systems in transition and aims at audiences both within and outside the University. The events seek to trace and critically discuss contemporary developments in law and society across the globe. Past topics range from Brexit and the Catalan secession movement in Spain to the United States under President Trump and the contemporary U.S. debate about restitution for slavery.

This Crossroads Talk took place in January 2020 on occasion of a meeting of international legal experts in Passau, some of whom have worked on questions of liability resulting from the climate crisis for some time. In 2018, they published the Climate Principles for Enterprises, in which they conclude, “many companies around the world may well already be in breach of existing laws in relation to their impact on climate change.” The panel discussion at the University of Passau was a “Crossroads for planet Earth,” as Professor Fedtke put it. Students were actively involved - both on the panel and behind the scenes. "", a student group based at the University of Passau, collaborated in the production of this Crossroads event.

The guests on the panel were:

  • Brian Preston, Chief Justice at the Land and Environment Court in New South Wales, Australia
  • Jaap Spier, former advocate general at the Dutch Supreme Court and Professor for Law and Global Challenges at the University of Amsterdam
  • Bastiaan Kock, a close collaborator of Jaap Spier based at the University of Leiden
  • Ulrich Magnus, Professor emeritus for Private Law, Private International Law and Comparative Law at University of Hamburg, former judge at the Higher Regional Court of Hamburg and consultant for several European and international institutions such as the European Commission and the United Nations Commission on International Trade Law (UNCITRAL)
  • Bernhard Koch, Professor for Private Law and Deputy Director of the Institute of Private Law at the University of Innsbruck
  • Markus Kiermayer, student in the Master of European Studies Programme at Passau and a local Fridays-for-Future activist
  • Yaroslav Kyselov, a fifth semester law student at Passau with a special interest in comparative tort law

Cases and legal concepts discussed by the panel include:

Lliuya (Peru) vs RWE

We switch on the lights in Germany and the glaciers in Peru start melting. How do you disentangle that connection?”

(Jörg Fedtke)

Professor Fedtke refers here to the case of a Peruvian farmer who has sued German energy giant RWE with the support of the environmentalist group Germanwatch. The case is striking from a legal point of view as this is the first time that a German court did not rule out the possibility that a company could be held liable for losses caused by climate change many thousands of miles away. Although the plaintiff lost at first instance, the Higher Regional Court in Hamm allowed the case to proceed to the evidence stage on appeal. Lawyers for the Peruvian farmer invoke section 1004 of the German Civil Code (BGB), which protects property owners from loss caused by third parties. The same idea is found in other legal systems; if successful, the case could thus set an influential international precedent for similar fact patterns litigated in other jurisdictions. The outcome of the dispute, watched closely by the international legal community, will depend in large part on questions of causation.

Judicial Activism

We can only hope that judges will assume responsibility for problems all of us are unwilling to solve."

(Jaap Spier)

The thing about courts is that, generally, they are respected. When they speak, they speak with an authority that can make a difference.

(Brian Preston)

The Crossroads panel focuses on the role that judges could and should play in order to solve questions of liability for climate change. In one of his responses, Professor Spier uses the term judicial activism. It refers to judicial rulings that overturn legal precedent or past constitutional interpretation in favour of highly innovative and, with respect to the separation of powers and the authority of the legislator, potentially controversial positions (more details). One of the best known examples is the landmark American abortion case Roe v. Wade, in which the U.S. Supreme Court in 1973 struck down the criminal abortion law of Texas (here is an analysis why, 40 years later, Roe may be trouble). Professor Fedtke describes this attitude as follows: “American judges are willing to say we’re making the law rather than just discovering it (as their common law colleagues in England).” Supporters of more active judges also point out that politics inevitably have a role to play in many legal decisions, and that American courts, in particular, have a tradition of openly discussing (and deciding) controversial policy issues underlying their decisions. Critics argue that judicial activism damages democracy as unelected judges usurp powers of the elected branches of government.

Tort Law

The basic idea is essentially, that losses should be allocated in a fair, reasonable and equitable manner. And that should always be the guiding force behind everything.”

(Bernhard Koch)

In Anglo-American systems, the term tort describes a civil wrong that results in legal liability (usually compensation of the victim for losses caused by the wrongdoer). Tort derives from the Latin tortum, meaning something twisted, wrung or crooked. According to Encyclopaedia Britannica, tort law is “primarily concerned with liability for behaviour that the legal order regards as socially unacceptable, typically warranting the award of damages to the injured party.” Many rules go back to Roman times. Professor Koch acknowledges that liability for activities related to climate change raise a number of difficulties in this area of the law: “In a problem with such a global dimension, with so many players involved, connecting the dots is a huge challenge.” Much depends, in his experience, on the particular wording and interpretation of national tort law.

Case of the DES daughters

In the United States, doctors prescribed DES (a synthetic version of the female hormone oestrogen) to pregnant women in an effort to reduce miscarriages. It was administered to millions of women between 1938 and 1971. Many years later, female offspring suffered increased risks of cancer and other illnesses. Research found that these conditions could be linked to DES. However, victims (children who were harmed by the substance ingested by their pregnant mothers many years earlier) were typically unable to identify the manufacturer of the DES product used in their specific case. This was a major difficulty in attributing liability under traditional tort law principles. In the Crossroads Talk, Professor Koch refers to a court ruling that “successfully struck a sword into this Gordian knot” and disentangled the multiple claims. The key idea behind the solution of the DES cases was the notion of market share liability. Liability was, in essence, calculated by determining each defendant's share of the national DES market. In Hymowitz v. Eli Lilly & Co., the Court of Appeals of New York justifies this approach as follows:  "Use of a national market is a fair method, we believe, of apportioning defendants' liabilities according to their total culpability in marketing DES for use during pregnancy. Under the circumstances, this is an equitable way to provide plaintiffs with the relief they deserve, while also rationally distributing the responsibility for plaintiffs' injuries among defendants."

The BP Oil Spill

In 2010, one of BP’s oil wells off the coast of Louisiana exploded. This lead to the sinking of the oil rig, the Deepwater Horizon, and caused the worst offshore oil disaster in U.S. history. Eleven workers were killed and millions of barrels of crude oil spilled into the Gulf of Mexico. Litigation began almost immediately (see litigation timeline). Thousands of lawsuits were filed. Economic, environmental and personal injury claims were grouped together under a process known as multidistrict litigation and transferred to Judge Carl Barbier of the U.S. District Court for the Eastern District of Louisiana, who held BP responsible and grossly negligent in causing the spill. In 2015, the U.S. Department of Justice and five U.S. states reached an historic settlement with BP.  The company agreed to pay at least USD 12.8 billion in fines for violations of the Clean Water Act and losses caused to natural resources as well as USD 4.9 billion to Alabama, Florida, Louisiana, Mississippi and Texas, and 400 local government entities.

Existing international conventions

Industry and commerce is quite content with the situation, they don’t want to be made liable for events very far away in other countries."

(Ulrich Magnus)

Professor Magnus from the University of Hamburg doubts that there will be an international convention on climate liability comparable to the United Nations Convention on Contracts for the International Sale of Goods (CISG). This multilateral treaty establishes a uniform framework for international commerce and has currently been ratified by 93 states. Professor Magnus serves as German National Correspondent to the United Nations Commission on International Trade Law (UNCITRAL), which developed the CISG in the 1980s. The Convention is regarded one of the most successful international instruments. Professor Magnus is pessimistic when it comes to learning lessons from this success story. For one, the process of preparing and negotiating the CISG was a lengthy process that started in the 1920s. Professor Magnus also finds it telling that the Convention focuses on “the facilitation of international trade,” which is in the interest of global commerce and industry. While he sees strong lobby groups defending the idea of global free trade without limits, Magnus does not see any driving forces strong enough to push a convention on climate liability at a global level.

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