Public Nuisance and Climate Change: The Common Law's Solutions to the Plaintiff, Defendant and Causation Problems
| Published date | 01 September 2022 |
| Author | David Bullock |
| Date | 01 September 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12732 |
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Modern Law Review
DOI:10.1111/1468-2230.12732
Public Nuisance and Climate Change: The Common
Law’s Solutions to the Plainti, Defendant and
Causation Problems
David Bullock∗
Litigation relating to climate change is on the rise, yet outside the United States few eorts
have been made to bring private actions in public nuisance seeking injunctive relief to require
a defendant to reduce its emissions. This article examines three key doctrinal challenges facing
a plainti in a public nuisance action connected to climate change: qualifying as a plainti;
delineating a defendant class; and dealing with multiple sources of emissions.It argues that the
tort of public nuisance has well-developed mechanisms able to solve these challenges in the
context of other collective action problems,which can also be deployed in the context of climate
change. These challenges facing a plainti in a climate changed-based public nuisance case can
be overcome without creating new law, enhancing the prospects of a successful claim being
brought in a common law jurisdiction.
INTRODUCTION
A profound and often identied problem with proposals for tortious liability
associated with climate change is how to address the conceptual ubiquity of
perpetrators and victims of human caused greenhouse emissions.1Every person
on earth contributes to the release of greenhouse gases as they go about their
daily lives – even the most committed Luddite will be unable to prevent the
greenhouse gases produced by their body entering the atmosphere.2At the same
time, every person must exist within the atmosphere, and the climate system it
∗SJD Candidate,University of TorontoFaculty of Law and Vanier CGS scholar.I would like to thank
Arthur Ripstein and Jutta Brunnée for their comments on an earlier version of this article.My thanks
also to the anonymous reviewersfor their comments. I have acted as one of the counsel for the plainti
in the Smith vFonterra litigation, discussed in the article.The views expressed here are my own.
1 See for example M. Spitzer and B. Burtscher, ‘Liability for Climate Change: Cases, Challenges
and Concepts’ (2017) 8 J of European Tort L 137, 166 and following.
2 See E. Williams,‘Attr ibuting blame? – climate accountability and the uneven landscape of im-
pacts, emissions and nances’ (2020) 161 Climate Change 273, 280-281, obser ving that the com-
mon assertion that ‘emissions are so intertwined with the global economy that they cannot
be assigned to an agent maintains that both everyone and no one is responsible for the prob-
lem’. However, and as will be explored later, ‘while [greenhouse gas] emissions are pervasive
throughout society, that does not necessarily mean that responsibility is similarly distributed’ and
that ‘identifying one “responsible agent”does not imply that other agents bear no responsibility’.
See also, D.Hunter and J. Salzman, ‘Negligence in the Air: The Duty of Care in Climate Change
Litigation’ (2007) 155 U Penn L Rev 1741, 1750 (noting that the defendant class ‘is potentially
an enormous category … and includes every citizen who drives a car or a Boy Scout troop that
sings around a campre’).
© 2022 The Author.The Modern Law Review © 2022 The Modern Law Review Limited. (2022)85(5) MLR 1136–1167
David Bullock
creates, such that all are aected by the release of greenhouse gases into the
atmosphere,albeit asymmetrically.3One of the diculties seeming to constrain
tort’s application to climate change is that it is built on ‘a paradigm of harm in
which A wrongfully, directly, and exclusively injures B’ whereas climate change
is ‘a collective action problem so pervasive and so complicated as to render at
once both all of us and none of us responsible’.4As Thomas Merr ill bluntly
diagnosed one early climate-related public nuisance claim: ‘the citizens cannot
establish that they have suered injury in fact; they cannot show that any injury
they have suered has been caused by the defendants’ emissions; the relief they
seek would not redress the injury of which they complain;and their suit asserts
generalised grievances shared by all citizens’.5
Expressed another way, climate change poses a plainti problem and a defen-
dant problem for the application of tort law. If inherent interconnectednessmeans
that everyone in some way contributes to the problem of climate change and
everyone also experiences its eects, then how does one sensibly dene a co-
herent class of plaintis and defendants without those classes being so broad and
overlapping that concerns about party indeterminacy are only avoided by the
categories being all encompassing? The question, then,is can tort law draw con-
ceptual boundaries as to parties that enable it to be both workable and relational?
Closely tied to the plainti problem and the defendant problem is the causation
problem. The har m from greenhouse gas emissions is mediated through natu-
ral processes, and those emissions are derived from many geographically varied
sources over substantial time periods. The challenge of drawing a legally su-
cient causal connection between the defendant’s conduct and a wrong seems
legion and may be the most signicant diculty for a tortious response to cli-
mate change.6
The argument advanced in this article is that the tort of public nuisance
contains long established mechanisms that enable each of these three doctri-
nal problems7to be overcome in the context of climate change,8at least in
3 The nature and eects of climate change are detailed extensively in the Synthesis Report pro-
duced as part of the Intergovernmental Panel on Climate Change’s (IPCC) Fourth Assessment
Report. See IPCC, Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and
III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Geneva:IPCC,
2014).
4 D.A.Kysar, ‘What Climate Change Can Do About Tort Law’ (2011) 41 Envtl L 1, 3-4.
5 T.W. Merrill,‘Global Warming as a Public Nuisance’ (2005) 30 Colum J Envtl L 293,295.
6 See for example Kysar, n 4 above, 29.
7 These problems form part of what Kysar calls the courts’ ‘doctrinal weaponry’ to nd against
plaintis in climate change cases, ibid,4.
8 The approach adopted to the analysis of doctrine in this article is pan-jurisdictional. Rather than
focusing on the law of any one jurisdiction, it draws on doctrinal principles evidenced across
common law jurisdictions including England and Wales,Scotland, Canada, the United States,
Australia and New Zealand. This approach is made possible by the status of public nuisance as
a common law tort and the relatively uniform approach taken to these issues across the com-
mon law world,der ived from early English authorities that inuenced the development of the
common law in England’sformer colonies. Where material divergences exist and bear on matters
addressed in this article, those dierences are identied and discussed.
© 2022 The Author.The Modern Law Review © 2022 The Modern Law Review Limited.
(2022) 85(5) MLR 1136–1167 1137
Public Nuisance and Climate Change
cases where the relief sought is an injunction.9While there is some discussion
of early United States cases, the focus of the article is on the legal position in
other common law jurisdictions, a subject frequently neglected by both plain-
tis and commentators.10 By demonstrating that these hurdles can be cleared
without the need for the common law to break new ground, it is argued that
the prospects of a claim seeking an injunction restraining a defendant’s ongoing
emission of greenhouse gases are stronger than prevailing views suggest. Other
potential obstacles might well remain, and those will need to be addressed.11
The intention of this article is to take the rst step, by showing that core doc-
trinal issues said to limit the application of public nuisance in the context of
climate change do not do so.
SOLVING THE PLAINTIFF PROBLEM
The standing rule
A public nuisance arises from an ‘injury to the public as a whole caused by
way of an interference with some or other public right’.12 Unlike other torts, a
private plainti in a public nuisance action must establish standing by showing
that it has suered an injury from the nuisance over and above that suered by
9 Claims for damages produce additional hurdles of proof that are outside the scope of this article.
10 Ironically,the only use the England and Walescourts have made of public nuisance in the context
of climate change has been to grant injunctions to fossil fuel producers to prospectively restrain
protest actions by climate change protesters,see Boyd vIneos Upstream Limited [2019] EWCA Civ
515. The crime of public nuisance has also been used to prosecute and even imprison climate
change protestors who blocked a road giving access to a hydraulic fracking facility, see Roberts
vR[2018] EWCA Crim 2739 (overturning custodial sentences made in the Crown Court at
rst instance).
11 Other challenges are likely to include establishing that the emission of greenhouse gases consti-
tutes an interference with a public right, issues of statutory authorisation and displacement, and
general judicial reticence about the courts’ ability to addressclaims connected to climate change
at all. The New Zealand Cour t of Appeal in Smith vFonterra Co-Operative Group Ltd [2021]
NZCA 552 identied all these obstacles, before holding that the public rights and statutor y
authorisation issues could be overcome by a plainti, but that claims in tort law were broadly
non-justiciable where they are connected to climate change because they were beyond the in-
stitutional competence of the courts. These matters are beyond the scope of this article.
12 J. J. Murphy, The Law of Nuisance (Oxford: OUP, 2010) 138. In RvRimmington [2005] UKHL
63,[2006] 1 AC 459 at [10], the House of Lords referred to the denition in the 2005 edition of
Archbold Criminal Pleading, Evidence and Practiceof the cr ime of public nuisance: ‘A person is guilty
of a public nuisance (also known as common nuisance),who (a) does an act not warranted by
law, or (b) omits to discharge a legal duty,if the eect of the act or omission is to endanger the
life,health, property,morals, or comfort of the public, or to obstr uct the public in the exercise or
enjoyment of rights common to all Her Majesty’ssubjects.’ The tort can be similarly understood.
The reference to an ‘act not warranted by law’recognises that a nuisance may be authorised by
law and therefore made lawful,and the second limb is an elaboration of the sort of eects that
will constitute an interference with public rights.
1138 © 2022 The Author.The Modern Law Review © 2022 The Modern Law Review Limited.
(2022) 85(5) MLR 1136–1167
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