The Paris Agreement and Nationally Determined Contributions
The Paris agreement entered into force in 2016, with 147 countries having ratified it, including the world’s largest emitters of greenhouse gases, namely India, China, USA and the EU[i].Apart from keeping the temperature rise for this century well below 2 degrees Celsius above pre-industrial levels, the agreement aims to increase the ability of countries to deal with the impacts of climate change, and at making finance flows consistent with a low greenhouse gas emissions.[ii] To reach these ambitious goals, a new technology framework and enhanced capacity-building is to be put in place.
Thus, in order to implement all these goals, Article 4 of the Paris Agreement requires all Parties to put forward their best efforts through “nationally determined contributions” (hereinafter NDCs) and to strengthen these efforts in the years ahead.[iii]
Considering the fact that NDCs are the fundamental mechanism through which each country would implement the national efforts as provided by the Paris Agreement, the incidental and most relevant question which thus arises is that how could countries effectively implement these NDCs. This could either be done through implementation of statutes or through bringing these environmental violations within the ambit of law of torts. This paper is primarily aimed at the later, with a special focus on common law legal systems in general and India in particular.
The Need for Imposition of Liability to Curb Environmental Harm
International liability forms an essential part of transborder environment injury. Principle 22 of the Stockholm Declaration recognised the duty of the states to “develop further the international law of liability and compensation”.[iv]The same sentiment can be seen in Principle 13 of the Rio Declaration which reads as follows-
“States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage. States shall also co-operate in an expeditious and more determined manner to develop further international law, regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction.”[v]
While the end goal needed to be achieved is the imposition of liability, the means of doing so could be either specific environmental statutes or through law of torts.
Choosing Law of Torts over Environmental Law
Since the past few decades, there has been an exponential increase in regulations, treaties, general awareness and laws affecting environmental aspects in India as well as in other countries (recent one being the establishment of National Green Tribunal in 2010). Further, specific legislations exist for hazardous wastes, water and air pollution, oil pollution, and toxic spills. Before this time, the legal system relied principally on tort law to correct the environmental wrongs.[vi] Over time, and as a result of the enactment of other, more defined laws remedying alleged environmental harms, tort law has increasingly become relegated to what some courts and legal scholars have characterized as a “gap-filling” role.[vii]
However, environmental law faces shortfalls because of its non-uniform and ambiguous nature.[viii] It is generally accepted by courts, legal scholars, policy makers, and even the public as a distinct field of law, environmental law lacks a generally accepted definition.[ix] Rather, the term “environmental law” has come to include the universe of all the regulations, statutes and actions at common law impacting environmental interests. These interests include harm to humans from hazardous substances introduced into an environment, and harm to the natural habitat.The problem which thus arises is that environmental law applies to certain environmental harms, but not all environmental harms.
At the same time, these challenges of defining the field of environmental law and pinpointing its guiding principles do not exist with tort law. It is broad in scope, impacting many other areas and fields of law, its fundamental purpose has remained constant. In other words, tort law is intended to provide “a peaceful means” by which “to restore injured parties to their original condition” for harm caused by another’s wrongful conduct.[x] It is a fault based compensation for protecting individual rights. Also, in providing compensatory redress, tort law promotes other policy objectives, namely deterrence.[xi] While this deterrence effect is the secondary goal, tort law is principally concerned with “righting a wrong”[xii] This core purpose drives the development and evolution of tort law, and instructs what alleged harms tort law can and should address.
Hence, law of torts still resorted as an effective means for solving environmental disputes. This is evidenced by various case laws[xiii] and the fact that most of the of environmental harm and pollution cases of tort in India fall under four major categories –Nuisance, Negligence, Strict liability and trespass.[xiv]
Tort law deals with remedy for invasion of private rights. It talks about compensating a person for violation of his private right. A question thus arises about potential of tort law in regulating environmental violations and controlling pollution as it focuses on remedy for violation of private right. According to legal experts, tort law should be assessed in terms of the contribution it can make to the control of environmental and other risks because compensation can be achieved independently of tort law by other means, but in tort law, the compensation goals and risk control goals are harnessed together, hence making it a better option.
Torts in Environmental Cases: A Brief Outlook
While the torts of nuisance and public negligence are most commonly used in environment based tort litigations, there has been a considerable shift in this norm over the past few decades.
Strict and Absolute Liability
The Indian Supreme Court in Oleum Gas Leak case[xv] has preferred absolute liability in relation to accidents involving hazardous substances. Introduction of new ultra hazardous and abnormally dangerous technology has led to the world wide acceptance of the principle of strict liability.[xvi] It is not necessary for the injured party to establish negligence or other fault.
In the Trail Smelter dispute, Austrian hydroelectric facilities had polluted a river shared by Austria and Yugoslavia. Pollution of the river caused damage to paper mills and fisheries in Yugoslavia. Yugoslavia demanded compensation for the resultant damage, but it did not allege negligence on the part of Austria. There was also no treaty between the parties providing for payment of compensation. Austria nevertheless paid compensation because activities within its jurisdiction caused material damage to a neighbouring state.[xvii]
Several international treaties have incorporated the tort law rule of strict liability.[xviii] Also, The World Commission on Environment and Development (OECD) proposed strict liability as a legal principle for transfrontier pollution.[xix]
Actionable negligence consists in the neglect of use of ordinary care or skill as required in a particular circumstance.[xx] The rule of negligence had application even under traditional international law for the imposing of state responsibility. In a dispute between Mexico and United States, the Mexico – United States General Claims Commission established responsibility by determining “Whether what was done shows such a degree of negligence, defective administration of justice, or bad faith, that the procedure falls below the standards of international law.”[xxi]
‘Nuisance’ connotes anything which annoys, hurts or that which is offensive.[xxii]In William Aldred’s Case[xxiii] the court granted an injunction and awarded damage as redress of air pollution. In Ohio v. Wyandotte Chemical Corporation[xxiv] injunctive relief was granted against Canadian and Michigan corporations which were causing mercury pollution in Lake Erie. In another case, the court granted damages against several U.S.companies for causing air pollution in the United States.[xxv]
Liability of the State and the Urgenda Case
With the increasing amount of government activity the question of the liability of the state is also gaining momentum. The old rule of absolute sovereign immunity is gradually getting diluted.[xxvi]
States are liable for conduct of its various organs in violation of an international obligation.[xxvii] States are also liable for injurious consequences arising out of acts not prohibited by international law.[xxviii] States are also made liable for accidental transnational environmental damage by private persons.[xxix]
The recent judgement in the Urgenda Foundation case[xxx] has set a new benchmark for climate change tort litigations. In 2015, the Dutch court in The Hague established that the government had a duty of care to mitigate the dangerous effects of climate change and ordered a reduction of greenhouse gas emissions. The court interpretated the liability of the Dutch government on the basis of tort of negligence with reference to international obligations. This was considered as a landmark case as it was the first time a court ordered limitations on basis of sources other than statutory mandates through law of torts.[xxxi]
In today’s scenario, climate change has become a growing concern globally and states are taking measures to combat same. This includes independent measures as well as international treaties and agreements. The Paris Agreement was a landmark agreement to combat climate change and other environmental concerns. At the heart of this agreement are the NDCs which mandate the parties to follow certain obligations in order to meet these objectives.
Bringing all these environmental concerns and climate violations under the ambit of law of torts would be the best possible way to implement these NDCs and other mandates because of their broad scope and the ability to reduce harm, provide compensation and act as a deterrence.
This conclusion is further substantiated by recent case laws such as the Urgenda case, which prove that climate change based tort litigations is the way ahead.
[i]Paris Agreement, Everythong You need to know about Paris Agreement, National Resources Defence Council(Apr. 14 2020, 5:58 PM), https://www.nrdc.org/stories/paris-climate-agreement-everything-you-need-know#sec-summary,.
[ii] Paris Agreement to the United Nations Framework Convention on Climate Change (2015), Art. 2.
[iii]Paris Agreement to the United Nations Framework Convention on Climate Change (2015), Art. 4, cl. 12.
[iv] Declaration of the United Nations Conference on the Human Environment (1972), Principle 22.
[v] Rio Declaration on Environment and Development (1992), Principle 13.
[vi] Palma J. Strand, The Inapplicability of Traditional Tort Analysis to Environmental Risks: The Example of Toxic Waste Pollution Victim Compensation, Stanford Law Review 35; Mark Latham and Victor Schwartz, The Intersections of Tort and Environment Law, Fordham Law Review, (Apr. 142020, 1:20 AM)https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=4670&context=flr.
[vii] Connecticut v. Am. Electric Power Co., 582 F.3d 309, 330 (2d Cir. 2009), rev’d, 131 S. Ct. 2527 (2011); Marshall S. Shapo, Tort Law and Environmental Risk, 14 Pace Environmental Law Review.
[viii] Supra note 5; Elizabeth Fisher et al, Maturity and Methodology: Starting a Debate About Environmental Law Scholarship, 21 J. ENVTL. L. 213, 219 (2009)
[ix] Todd S. Aagaard, Environmental Law as a Legal Field: An Inquiry in Legal Taxonomy, 95 CORNELL L. REV. 221, 223, 226 (2010) ; Robert L. Fischman, The Divides of Environmental Law and the Problem of Harm in the Endangered Species Act, 83 IND. L.J. 661
[x] Warren A. Seavey, Principles of Torts, 56 Harvard Law Review;
[xi] Ibid; Ratan Lal and Dhirajlal, The Law of Torts(25th Ed., Wadhwa and Co. Nagpur, 2007).
[xii] Dan B. Dobbs, Law of Torts, 9.14 (2000).
[xiii]Ten Most Important Environmental Law Judgments in India, IPleaders Blog(Apr. 14 2020, 1:48 AM),https://blog.ipleaders.in/environment-law-judgment/.
[xiv] SS Dari, An Overview of Environmental Jurisprudence in India, Symbiosis Law Journal of Management Research 2014; Dr. Madhuri Parikh, Tortious Liability for Environmental Harm, SSRN (Apr. 16, 12:02 PM), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3121525
[xv] M.C.Mehta vs Union of India, AIR 1987 SC 965.
[xvi] Richard C Ausness, Public Tort Litigation: Public Benefit or Public Nuisance?, University of Kentucky Uknowledge 2004.
[xvii] Trail Smelter (U.S. Vs canada) 3 R. International Arbitral Awards 1905(1941).
[xviii] Supra note 3; Convention on the Liability of the Operators of Nuclear ship (1962); Vienna Convention on Civil Liability for Nuclear Damage(1963); Treaty Banning Nuclear Weapons Tests in the Atmosphere, in the Outer Space and under Water(1963).
[xix] Our Common Future (WCED), 1987, p.349.
[xx]RATAN LAL AND DHIRAJLAL, THE LAW OF TORTS (25th Ed., Wadhwa and Co. Nagpur, 2007).
[xxi] Mecham Vs United Mexican States (U.S Vs Mexico) 4 R.lnternational Arbitration Award, 440, 443 (1929).
[xxii] Durga Prasad v. State, AIR 1962 Raj 92.
[xxiii] 77 Eng. Rep. 816,821-22 (KB; 1611).
[xxiv] Ohio v. Wyandotte Chemical Corporation, No.904, 571 Court of Appeals, Ohio, 24 April, 1975.
[xxv]Michie v. Great Lakes Steel Division, F. 2d 495, 213,6th circuit, 24 April, 1974.
[xxvi] Oppenheim, International Law 290-91 (8th ed by H. Lauterpacht).
[xxvii] International Law Commision Draft, “International Liability for Injurious Consequences Arising out of Acts not Prohibited by International law”.
[xxviii] Gunther Handle, “State Liability for Accidental Transnational Environmental Damage by Private Persons”. American Journal of International Law”, vol. 74, no.3, July 1980, p.525.
[xxx]Urgenda Foundation v. State of the Netherlands, HA ZA 13-1396 (Official Case No): C/09/456689
[xxxi]Valentina Dotto, The use of tort law in climate litigation- The Urgenda case, IAPSS, (Apr. 16, 2020, 5:15 PM) https://www.iapss.org/2018/06/20/the-use-of-tort-law-in-climate-litigation-the-urgenda-case/; Eleanor Stein & Alex Geert Castermans, Case Comment—Urgenda v. The State of the Netherlands: The “Reflex Effect”— Climate Change, Human Rights, and the Expanding Definitions of the Duty of Care, Leiden University Repository, (Apr. 16, 2020, 5:21 PM).
ABOUT THE AUTHOR
Richik Dadhich is a first-year student pursuing B.B.A. LL.B (Hons.) from National Law University, Jodhpur and a copy-editor at NLUJ Law Review. He takes a keen interest in Environmental Law and Commercial Law and possesses a flair for legal research and writing
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