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Climate of litigation? Why climate science will disrupt public and private law

What will the weather be like tomorrow? A quick look on your smartphone will tell you whether to expect rain or sunshine, wind or fog. It would be reasonable, therefore, to expect someone to be prepared for the weather — to take an umbrella, for example, if heavy rain is forecast, or slap some suncream on if a heatwave is on the horizon.

But what about those extreme weather events classified for centuries as "Acts of God"? Is it reasonable to expect companies, countries and local authorities to foresee hurricanes, tornadoes or floods, and prepare accordingly?

For years, that has not been the case. The science has been simply unable to prove whether decision-makers in business and government should have been able to foresee a natural disaster and act to reduce harm to people and infrastructure.

But dramatic improvements to climate attribution science in recent years — the techniques that are able to tell us the extent to which a particular flood or hurricane might be blamed on human-caused climate change — soon could have consequences far beyond university research departments.

According to a new legal paper published last month in the Journal of Energy and Nature Resources Law, these improvements could have serious implications, not just for lawyers but for a whole host of professions, from company directors and investment managers to architects and engineers.

A number of studies have demonstrated that certain climatic events would not have happened without the impact of human-caused climate change, including the record-breaking temperatures of 2016, an oceanic heatwave off the coast of Alaska and the recent heatwave across Asia.

A number of studies have demonstrated that certain climatic events would not have happened without the impact of human-caused climate change.
"By identifying and quantifying the human influence on the extreme weather events that are increasingly causing more severe and widespread loss, damage and human suffering, this branch of science should prompt consideration of the legal implications of a world where more frequent and severe extreme weather events are not only preventable, but demonstrably reasonably foreseeable," the paper explained.

In short, if science is able to point to weather events and show they were caused by climate change, it is reasonable for business and government to expect more of the same, and to take steps to protect clients, customers and members of the public from the impacts of this changing climate. And with every heatwave, hurricane or devastating flood that is linked to climate change, the expectation there will be another somewhere down the line grows, adding weight to this argument.

The findings build on research published last summer by environmental lawyers Sophie Marjanac and James Thornton of ClientEarth and Lindene Patton, a partner at Earth & Water Law. Marjanac and Patton co-authored the new paper as well. It is notable that while last year's paper appeared in the scientific journal Nature Geosciencethis time the conclusions appears in a legal journal, along with a fleshed-out analysis of the legal impacts.

Speaking to BusinessGreen, Marjanac said this is an area lawyers cannot afford to ignore. "We think that lawyers should be advising their clients to be aware of and abreast of these issues," she said. "And lawyers that are acting for infrastructure providers, lawyers that are advising on public procurement, for new projects … they need to make sure that the environmental management plans they receive from bidders are climate proof."

The paper is clear that attribution science will also have ripple effects well beyond legal circles, claiming it will be "highly relevant" to professionals working on public infrastructure projects, often owned and managed by large companies rather than public authorities. Buildings which "crack, flood or blow over, dams, flood defenses and firebreaks which fail, roads or railways which buckle in extremes of heat or droughts — these are all likely to be sources of climate change liability," it warned. That would mean clients potentially would be able to bring suits for professional negligence or breach of duty of care.

Buildings which crack, flood or blow over, dams, flood defenses and firebreaks which fail, roads or railways which buckle are likely to be sources of climate change liability.
Engineers, planners and architects well may be forced to change their working practices to prepare for this increased legal risk, in a shift that fundamentally could reshape the look of our towns and cities the world over. "Because improvements in attribution science will likely affect the foreseeability of physical climate change effects, attribution science will likely change the reasonableness of following existing design methods, which have, at their core, assumptions about the continued relevance of stationarity," the paper concluded.

For example, buildings in flood-prone areas will need to have flood prevention measures at their core, while apartments or hospitals in areas where extreme heatwaves are set to become increasingly common will need to employ mitigation measures such as cross-ventilation, green shading and other cooling systems.

Likewise, company directors also could be at risk for failing to shield their clients from the foreseeable impacts of climate change. One recent legal opinion cited by the paper, from Australian barristers Noel Hutley and Sebastian Hartford-Davis, suggests a director's failure to manage and mitigate climate risks could result in personal liability if their actions harm corporate value in the future.

All this could lead to huge legal tussles, Marjanac said, particularly as lawsuits are all but guaranteed after many major projects are completed. "Every major project I was ever involved in ended in some kind of litigation," she said. "Often it is for design flaws and issues. There's always litigation after major projects."

But, although climate attribution science may shift the needle on what is deemed a foreseeable event, it doesn't mean that future litigation based on this evidence suddenly will be termed "climate litigation," said Marjanac, which she said could prove a distracting label.

"What matters is the scale of losses is increasing, the predictability of those losses is increasing," she said. "The litigation post [Hurricane] Harvey won't be labeled 'climate change litigation,' it will just be failures to prepare and there will be claims under hundreds of insurance contracts.

"We think that those kinds of arguments will increasingly be made."

So don't expect a tidal wave of specific "climate lawsuits" any time soon — more a steady realization that failure to bolster climate resilience increases legal risk across the board. It soon could be expected that any infrastructure decision-maker, from engineers and town planners to pension managers and architects, understands and prepares for the potential financial and physical impacts of climate change — not by moral choice, but legal requirement.

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