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Private Property and the Climate Future of Negligence

By Paul Babie
Posted: 22nd August 2016 07:53
Private property consists of a bundle of rights comprising three primary powers of choice: use, exclusivity, and disposition. These three rights allow their holder to choose how to use, who to exclude, and how to dispose of whatever good or resource, tangible or intangible (from land, to shares, to trademarks and patents, to money, to reputation), is said to comprise the subject-matter of property.
All common law systems provide two avenues for preventing the unfettered exercise of choice pursuant to property in ways suiting only personal preferences: (i) the law of tort, particularly nuisance, trespass and negligence; (ii) environmental legislation providing remedies for those harmed by the actions of those exercising choice pursuant to private property. In either case, the issue of damage is paramount to success, and actions are typically founded upon harm retrospectively caused.
Climate change, though, may force us to reconsider whether an action may lie only for harm already suffered, or it can be brought in respect of harm that may occur at some future time. The decision of the United States District Court of Eugene, Oregon, in Kelsey Cascade Rose Juliana et al v The United States of America, denying a motion to dismiss a suit brought on the basis of future harms, suggests that both common law and legislation could develop so as to allow claims on the basis of future climate harms.
Kelsey Cascade Rose Juliana et al v The United States of America
Kelseyinvolves a class action brought in 2015 by a group of young individual activists (aged between 8-19) and James Hansen as guardian for plaintiff ‘future generations’, who contend that the United States government, through the alienation of public trust land, has allowed fossil fuel exploitation resulting in carbon pollution of the atmosphere, climate destabilisation and ocean acidification which had resulted in concrete harm to the plaintiffs as the beneficiaries of the federal public trust in public land. The plaintiffs assert a novel theory exhibiting characteristics of both a civil rights action and one based upon National Environmental Policy Act/Clean Air Act/Clean Water Act. The plaintiffs seek to force the government to take action to reduce harmful pollution now and, in a novel outcome, in respect of future generations. In short, the basis of the claim depends upon demonstrating harm to future generations. This is relevant to the future of negligence and to the interpretation of environmental legislation which prohibits such harm.
In rejecting the motion to dismiss, Magistrate Judge Coffin of the United States District Court in Eugene, Oregon, found that because climate change is already damaging human and natural resources it is sufficiently concrete and imminent and traceable to the challenged conduct that the plaintiffs consequently possess standing to bring an action against the defendants. While personal harms are a consequence of broader harms, that does not discount concrete harms already suffered by individual plaintiffs or likely to be suffered by plaintiffs in particular in the future.
Judge Coffin relied upon the test of harm found in Federal Election Commission v Akins: ‘often the fact that an interest is abstract and the fact that it is widely shared go hand in hand. But their association is not invariable, and where harm is concrete, though widely shared, the Court has found ‘injury in fact.’’However, Judge Coffin found that ‘the Constitutional limits on standing eliminate claims in which a plaintiff has failed to make out a case or controversy between himself and the defendant’. Rather, the plaintiff must show that he has personally suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant. As such, ‘while the FAC identified numerous climatic, meteorologic, and political harms that the earth and its inhabitants will suffer as a result of the government’s action and failure to act with respect to CO2 emissions, the plaintiffs differentiate the impacts by alleging greater harm to youth and future generations.’ Thus, ‘plaintiffs give this debate justiciability by asserting harms that befall or will befall them personally and to a greater extent the older segments of society.’
In addition to specifying the harm, though, a plaintiff must also make out a causal connection between the injury and the conduct of which plaintiffs complained. The defendants’ assertion in Kelsey was, of course, that the association between the complained of conduct (namely, subsidising the fossil fuel industry, favourable revenue code provisions, allowing transport of fossil fuels and authorising fossil fuel combustion) was too tenuous and filled by intervening actions to amount to a sufficient causal connection to the harm sustained. On the facts, however, Judge Coffin found that ‘there [was] an alleged strong link between all the supposedly independent and numerous third party decisions given the government’s regulation of CO2 emissions.’

Will the approach taken by Judge Coffin to the future harms of climate change mean that corporations or others are liable for future harm in the case of climate change choices? The Kelsey litigation is far from over. But it ought to give both individuals and corporations pause for thought concerning the nature of their activities that may contribute to GHG emissions.
Only time will tell if liability might attach to individual and corporate defendants for tort or statutory claims for future climate harms. In the case of climate change, though, time seems an increasingly scarce commodity.
Paul Babie holds a Personal Chair of Law in the Adelaide Law School of The University of Adelaide. He is currently Associate Dean of Law (Research) of the Adelaide Law School, and Associate Dean (Research) of the Faculty of the Professions. He holds a BA in sociology from the University of Calgary, a BThSt from Flinders University, a LLB from the University of Alberta, a LLM from the University of Melbourne, and a DPhil in law from the University of Oxford. He is a Barrister and Solicitor (inactive) of the Court of Queen’s Bench of Alberta (Canada), and an Associate Member of the Law Society of South Australia. His primary research interests are legal theory, especially the nature and concept of property and the relationship between law and theology, and law and religion, especially the relationship between constitutions and religious freedom. He has published extensively in both fields. He teaches property law, tort, property theory, law and religion, and Roman law.
Adelaide Law School, The University of Adelaide. Thanks to Emily Carr (LLB, 2016) for providing outstanding research assistance.
Paul can be contacted on +61 8 8313 5521 or by email at

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