Climate Change Liability

Climate Change Liability
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NEW HORIZONS IN ENVIRONMENTAL AND ENERGY LAW
Series Editors: Kurt Deketelaere, Professor of Law, University of Leuven, Belgium and
University of Dundee, Scotland and Zen Makuch, Reader in Law, Barrister, Imperial College,
London, UK
Environmental law – including the pressing considerations of energy law and climate
change – is an increasingly important area of legal research and practice. Given the
growing interdependence of global society and the significant steps being made towards
environmental protection and energy efficiency, there are few people untouched by
environmental and energy lawmaking processes.
At the same time, environmental and energy law is at a crossroads. The command and
control methodology that evolved in the 1960s and 1970s for air, land and water protection
may have reached the limit of its environmental protection achievements. New life needs
to be injected into our environmental protection regimes – perhaps through the concept of
sustainability in its environmental, economic and social forms. The same goes for energy
policy and law, where Iiberalisation, environmental protection and security of supply are
at the centre of attention. This important series seeks to press forward the boundaries of
environmental and energy law through innovative research into environmental and energy
law, doctrine and case law. Adopting a wide interpretation of environmental and energy law,
it includes contributions from both leading and emerging international scholars.
Titles in the series include:
Climate Law and Developing Countries
Legal and Policy Challenges for the World Economy
Benjamin Richardson, Yves Le Bouthillier, Heather McLeod-Kilmurray and Stepan Wood
The Law and Governance of Water Resources
The Challenge of Sustainability
Douglas Fisher
Climate Change Liability
Edited by Michael Faure and Marjan Peeters
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Climate Change
Liability
Edited by
Michael Faure
Professor of Comparative and International Environmental
Law, Maastricht University and Professor of Comparative
Private Law and Economics, Erasmus University Rotterdam,
The Netherlands
Marjan Peeters
Professor of Environmental Policy and Law, Maastricht
University, The Netherlands
NEW HORIZONS IN ENVIRONMENTAL AND ENERGY LAW
Edward Elgar
Cheltenham, UK • Northampton, MA, USA
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© The editors and contributors severally 2011
All rights reserved. No part of this publication may be reproduced, stored in a

retrieval system or transmitted in any form or by any means, electronic,
mechanical or photocopying, recording, or otherwise without the prior
permission of the publisher.
Published by
Edward Elgar Publishing Limited
The Lypiatts
15 Lansdown Road
Cheltenham
Glos GL50 2JA
UK
Edward Elgar Publishing, Inc.

William Pratt House
9 Dewey Court
Northampton
Massachusetts 01060
USA
A catalogue record for this book

is available from the British Library
Library of Congress Control Number: 2010934043
ISBN 978 1 84980 286 4
Typeset by Servis Filmsetting Ltd, Stockport, Cheshire

Printed and bound by MPG Books Group, UK
04
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Contents
List of contributors ix
List of abbreviations xi
PART I INTRODUCTION
1 Introduction 3
Michael Faure and Marjan Peeters
1. Problem definition: reasons for this book 3
2. Methodology 5
3. Framework 8
4. Structure of the book 8
5. Contributors 10
6. Word of thanks 11
PART II CROSS-CUTTING THEMES
2 Liability with and liability from the precautionary principle in

climate change cases 15
Miriam Haritz
1. Scientific uncertainty in climate change 15
2. From scientific to legal uncertainty in climate change
liability 17
3. The scope of the precautionary principle as a tool to
handle uncertainty 19
4. The precautionary principle and climate change liability 21
5. The added value of the precautionary principle’s
application to climate change liability 29
6. Final considerations 32
3 High noon: prevention of climate damage as the primary goal
of liability? 47
Jaap Spier
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vi Climate change liability
PART III EUROPEAN PERSPECTIVE
4 Liability of Member States and the EU in view of the

international climate change framework: between solidarity
and responsibility 55
Javier de Cendra de Larragán
1. Introduction 55
2. The principles of solidarity and loyal cooperation 56
3. The Kyoto Protocol, the EU bubble and responsibility
for lack of compliance 59
4. Compliance and the burden-sharing agreement for the
period 2012–2020 69
5. Conclusions on the principle of loyal cooperation in
relation to burden sharing 72
6. Possible extensions to the notion of burden sharing 73
7. Concluding remarks 81
5 The regulatory approach of the EU in view of liability for
climate change damage 90
Marjan Peeters
1. Introduction 90
2. Fossil fuel: a major source for energy production 95
3. EU climate legislation targeting fossil-fuel fired energy
installations 99
4. Stipulating the responsibility of present polluters for
future damage 116
5. Conclusion 123
Appendix: List of EU climate legislation 133
6 Potential liability of European States under the ECHR for
failure to take appropriate measures with a view to
adaptation to climate change 134
Armelle Gouritin
1. Introduction 134
2. Background: climate change, adaptation measures and
human rights 135
3. The Court’s case law on positive obligations and the
environment 138
4. Adapting to climate change: a positive obligation? 146
5. Conclusion 151
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Contents vii
PART IV NATIONAL PERSPECTIVES ON CIVIL LIABILITY
7 Climate change litigation in the UK: its feasibility and prospects 165
Giedrė Kaminskaitė-Salters
1. Introduction 165
2. Climate change in the UK: current and future impacts 166
3. Why litigate? 168
4. Climate change litigation in the UK: status quo and
future developments 170
5. The building blocks of a climate-based tort case 173
6. Causes of action 176
7. Causation 182
8. Conclusion 184
8 Liability for climate change-related damage in domestic
courts: claims for compensation in the USA 189
Elena Kosolapova
1. Introduction 189
2. Claims for compensation 190
3. Analysis 194
4. Conclusion: claims for compensation in other
jurisdictions? 201
9 Civil liability for global warming in the Netherlands 206
Chris van Dijk
1. Introduction 206
2. Litigants 209
3. Interest in the proceedings and defending the rights of
future generations 211
4. The primacy of politicians 212
5. Negligence 213
6. Requirement of relativity 218
7. Causal link 219
8. Claims standing more chance? 221
9. Conclusions 222
10 Will civil society take climate changers to court? A
perspective from Dutch law 227
Phon van den Biesen
1. Access to civil and administrative courts in the
Netherlands 227
2. Access to European courts 229
3. Administrative litigation 229
4. Civil litigation 231
5. Concluding observations 234
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viii Climate change liability
11 Governmental liability: an incentive for appropriate

adaptation? 237
Ben Schueler
1. Introduction 237
2. Examples of damage caused by adaptation policies 238
3. Barriers to governmental liability based on fault 239
4. Liability based on the right to equal treatment 246
5. Is the Dutch system of governmental liability an
incentive for appropriate adaptation to climate change? 247
6. Conclusion 249
PART V CONCLUSION
12 Concluding remarks 255

1. Introduction 255
2. The importance of sound science 255
3. A broad approach to liability law 257
4. Goals of liability 258
5. Drawbacks 259
6. What to claim? 260
7. Hurdles (and potential solutions) 262
8. Regulation versus climate change liability 265
9. Causation 267
10. Who is liable? 268
11. Cases 270
12. Effectiveness? 271
13. Agenda: the way forward 273
Index 275
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Contributors
Phon van den Biesen, Attorney at Law in Amsterdam since 1979 (repre-
senting environmental organisations in various courts in numerous cases;
also represented several States in litigation before the International Court
of Justice); member of the Scientific Council of the Environmental Law
Centre of the University of Amsterdam.
Javier de Cendra de Larragán, Senior Research Associate at the UCL
Energy Institute/Faculty of Laws, University College London. Dr. of Law
(doctorate awarded by Maastricht University in March 2010).
Chris van Dijk, Attorney at Law, Kennedy Van der Laan, Amsterdam.
Furthermore, he serves as a deputy judge in the Court of The Hague and
deputy justice in the Court of Appeal of Arnhem.
Michael Faure, Professor of Comparative and International Environmental
Law and director of the Metro Institute, Law Faculty, Maastricht
University, and Professor of Comparative Private Law and Economics at
the Law Faculty of Erasmus University Rotterdam.
Armelle Gouritin, Researcher – Environment and Sustainable Develop-
ment. Institute for European Studies, Free University of Brussels.
Miriam Haritz, Ph.D. researcher, International & European Law
Department, Faculty of Law, Maastricht University. Her current appoint-
ment is at the Federal Office of Civil Protection and Disaster Assistance
(BBK), Bonn, Germany.
Giedrė Kaminskaitė-Salters, Senior Adviser on Climate Change, UK
Department for International Development; Dr. of Law (doctorate
awarded by Maastricht University in February 2010).
Elena Kosolapova, Ph.D. researcher (climate change liability), Centre for
Environmental Law, University of Amsterdam.
Marjan Peeters, Professor of Environmental Policy & Law, in particular
with regard to climate change issues, Law Faculty, Maastricht University.
Ben Schueler, Professor of Administrative Law, Law Faculty, Montaigne
Centre, Utrecht University.
ix
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x Climate change liability
Jaap Spier, Advocate General of Supreme Court of the Netherlands,

Professor (honorary chair) of liability and insurance in a comparative
perspective, Maastricht University.
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Abbreviations
1996 London Protocol 1996 London Protocol to the 1972 Convention
on the Prevention of Marine Pollution by
Dumping of Wastes and Other Matter
AAUs Assigned Amount Units
ABI Association of British Insurers
Awb General Administrative Law Act (in Dutch:
Algemene wet bestuusrecht, Awb)
AWG-KP Ad Hoc Working Group on Further
Commitments for Annex I Parties under the
Kyoto Protocol
AWG-LCA Ad Hoc Working Group on Long-term
Cooperative Action
BSA EC Burden-Sharing Agreement
CCS Carbon Capture and Storage
CDM Clean Development Mechanism
CER Certified Emission Reduction Credit
CERs Certified Emission Reduction Credits
CFCs Chlorofluorocarbons
CH4 Methane
CO2 Carbon dioxide
CO2-eq. CO2 equivalent
COP Conference of Parties
DEFRA Department for Environment, Food and Rural
Affairs
EC European Community
ECHR European Convention for the Protection of
Human Rights and Fundamental Freedoms
ECJ European Court of Justice
EEPR European Energy Programme for Recovery
ELD Environmental Liability Directive: Directive
2004/35/EC of the European Parliament and of
the Council of 21 April 2004 on environmental
liability with regard to the prevention and
remedying of environmental damage
EPA Environmental Protection Agency (US)
xi
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xii Climate change liability
ERU Emission Reduction Unit

EU European Union
EU ETS European Union Emissions Trading Scheme
GALA Dutch General Administrative Law Act
(Algemene wet bestuursrecht)
GDP Gross Domestic Product
GHG emissions Greenhouse gas emissions
GLOFs Glacier Outburst Floods
GNP Gross National Product
HR Hoge Raad (Dutch Supreme Court)
IAC InterAcademy Council
IEA International Energy Agency
IPCC Intergovernmental Panel on Climate Change
IPCC AR Intergovernmental Panel on Climate Change
Assessment Report
IPPC Integrated Pollution Prevention and Control
IPPC-directive Directive 2008/1/EC of the European
Parliament and of the Council of 15 January
2008 concerning integrated pollution prevention
and control
JI Joint Implementation
METRO Maastricht European Institute for
Transnational Legal Research
MRV Monitoring, reporting and verification
N2O Nitrous Oxide
NASA National Aeronautics and Space Administration
NGO Non-governmental organization
NJ Nederlandse Jurisprudentie (Dutch case law
journal)
O3 Ozone
ODA Official Development Assistance
OSPAR Convention Convention for the Protection of the Marine
Environment of the North-East Atlantic
Ph.D. Doctor of Philosophy
Ppm Parts per million
REIOs Regional economic integration organizations
RES Directive Directive 2009/28/EC of the European
Parliament and of the Council of 23 April 2009
on the promotion of the use of energy from
renewable sources and amending and subse-
quently repealing Directives 2001/77/EC and
2003/30/EC
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Abbreviations xiii
RMUs Removal Units

SUVs Sports Utility Vehicles
TEU Treaty on European Union
UKCIP United Kingdom Climate Impacts Programme
UN United Nations
UNFCCC United Nations Framework Convention on
Climate Change
USD US Dollar
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PART I
Introduction
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1. Introduction
1. PROBLEM DEFINITION: REASONS FOR THIS

BOOK
Climate change has undoubtedly been the most important topic in envi-
ronmental law and policy on the agenda of both policy makers and envi-
ronmental lawyers since the beginning of the 21st century. Moreover, it is
highly likely that this will continue to be the case for at least a large part
of the remainder of it as well. Lawyers critically accompany the political
process by commenting on instruments that are developed at interna-
tional, regional and local level to attempt to mitigate climate change and
to adapt to its consequences. Much research has therefore understandably
been devoted to the legal aspects of the document that constitutes the basis
for the international legal framework to fight climate change, being the
United Nations Framework Convention on Climate Change (UNFCCC)
and more particularly to its most important legal instrument, the Kyoto
Protocol.1 Much research has more particularly been focused on the
question of which would be the legal or policy instrument most suited
to provide incentives to industry and other sources to reduce greenhouse
gas emissions. In line with the use traditionally suggested by economists
of Pigovian taxes to internalize environmental externalities, the market-
based instrument of emissions trading has become very popular not only
in theory but also in practice. Economic literature is however still divided
on the preference for carbon taxes or carbon trading,2 and some still argue
for taxes, or even a hybrid system between emissions trading and a tax.3
Despite the fact that the best instrumental setting for climate change has
yet to be explored, we can see that with a few exceptions4 the main instru-
ment used worldwide has become emissions trading. While policy makers
interestingly enough have decided to apply this innovative regulatory
instrument, not least because they can distribute allowances for free, there
are still serious doubts with respect to its effectiveness. These doubts are
not caused by problems with the instrument as such, but are rather related
to short-falling environmental ambition on the part of the legislature, for

4 Climate change liability
instance with regard to the stringency of the cap on total emissions, and
design failures, such as grandfathering and overallocation of emission
rights as a result of which the system may not have generated incentives
sufficient for a reduction of emissions.5
As a result of enthusiasm for emissions trading as seemingly the most
attractive instrument to provide incentives to polluters to reduce emis-
sions, initially other possible instruments (largely used to internalize
other environmental externalities) seem to be to some extent forgotten.
Nevertheless as early as 2003 David Grossman published an often-quoted
article in the Columbia Journal of Environmental Law with the provoca-
tive title: ‘Warming up to a Not-so Radical Idea: Tort-based Climate
Change Litigation’.6 Another important publication followed, by Tol
and Verheyen, pointing to the possibility of using state responsibility as
a tool to prevent and compensate for consequences of climate change.7
Later Verheyen published her dissertation on this topic.8 Gupta devoted
her inaugural lecture at the Free University of Amsterdam to this topic9
and honorary chair Spier of the Hoge Raad (Supreme Court) in the
Netherlands also examined possibilities of climate change liability.10
Besides that, these studies by lawyers interested in the use of classic liabil-
ity law were supported by an important study from Allen, showing that
from a technical perspective it is possible to link specific damage (resulting
from extreme weather events) to climate change.11 Also, a special com-
bined issue of the Stanford Environmental Law Journal and the Stanford
Journal of International Law of June 2007 was devoted to climate change
liability and the allocation of risks.12 These legal studies not only addressed
possibilities of applying national tort law to the damage caused by climate
change, but equally examined the possibility for holding states liable under
international law if emissions originating from their country were to cause
damage to (the citizens of) other nations.13
Whereas earlier it seemed that the application of liability law to climate
change was merely of theoretical interest, this is surely no longer true
since climate change litigation has meanwhile really taken off. Several
public authorities or individuals have tried to sue large emitters of green-
house gases and in some cases claims were directed against governmental
authorities for failure to take measures to reduce emissions of greenhouse
gases. Most of these claims would probably not qualify as liability suits in
the strict sense, since it is usually not compensation for damage suffered
that is asked by the plaintiffs, but rather injunctive relief in order to obtain
a reduction of greenhouse gases.
Most of the claims brought so far (the majority of which were also
in the United States of America) were either not successful, were with-
drawn or have not yet led to a specific result. That, however, changed

Introduction 5
with the often-discussed decision of the US Supreme Court in the case

of Massachusetts v. EPA in which the US Environmental Protection
Agency was successfully sued by a coalition of states for the failure to
regulate emission of CO2 under the Clean Air Act. Again, this decision
shows that it is rather injunctive relief than compensation which is strived
for by plaintiffs. In the meantime, the regulation by the EPA will lead to
further case law since a petition for review has been filed by companies
and trade associations to the US Court of Appeals for the D.C. Circuit.14
In this procedure, it will be contested that new motor vehicles and engines
cause or contribute to greenhouse gases, and that greenhouse gases in
the atmosphere threaten public health and welfare of current and future
generations. This shows that fundamental questions will be posed in case
law with regard to the legality of public regulations, and that the case law
resulting from this will be of crucial importance for liability cases.
Even though some literature has now paid attention to the role of the
courts in mitigating climate change,15 until the present time there has
been no book in which climate change liability was discussed in a broader
perspective, not only looking at actual cases, but also at the potential role
under the law of various legal systems, and equally addressing the question
to what extent it is useful to use the civil liability system to strive for a miti-
gation of greenhouse gas emissions in addition to the existing framework
which largely relies on emissions trading and regulation. Filling that gap is
precisely the goal of this book.
The reader will by now have understood that the notion of ‘climate
change liability’, central to this book, has to be interpreted broadly: the
authors are not only interested in the question to what extent victims
of climate change could use the liability system to obtain compensation
for damages resulting from climate change (the more traditional liability
setting) but equally are looking at the question to what extent civil liability
and the courts in general may be useful to force potential polluters (or gov-
ernmental authorities) to take measures to reduce (the effects of) climate
change.
2. METHODOLOGY
2.1 Legal Interdisciplinary
It may be clear that the question of the precise role of climate change
liability in the general climate change legal framework is one which goes
beyond the classic tort law setting. Hence the contributors in this book will
address this question from a variety of legal disciplines. To some extent

climate change liability will indeed be addressed from the traditional tort
law perspective, asking the question whether traditional tort law can real-
istically assist potential plaintiffs in a claim against emitters of greenhouse
gases or governmental authorities that fail to take effective measures. Such
a traditional tort law approach is for example followed in the contribu-
tions by Kaminskaitė-Salters (Chapter 7), van Dijk (Chapter 9) and van
den Biesen (Chapter 10). However, even within these more traditional
approaches, questions have to be asked, for example, about who appropri-
ate plaintiffs may be to sue for climate change damage and whether NGOs
too may have standing.
Climate change liability is also to be addressed from a more public law
perspective, for example questioning whether public law in a particular
legal system could realistically be used by potential victims to call on a gov-
ernmental liability for a failure to take action to prevent climate damage
(for example short falling protection against flooding) by public authorities.
That question is more particularly addressed by Schueler in Chapter 11.
Specific liability questions also arise as far as the situation of member
states in the EU are concerned. After all, the EU may be held liable for
a failure to comply with the commitments of the Kyoto Protocol, which
raises important questions with respect to the liability of not only the EU
itself, but also of the specific member states in case of failure of the EU
as a whole to comply with the Kyoto Protocol commitments. This raises
questions of liability under European law (of the member states) but also
under international law, and equally raises questions of division of respon-
sibility between member states and the EU. These issues are addressed by
de Cendra de Larragán in Chapter 4. State liability could also arise under
the European Convention of Human Rights if a failure to take measures
could be considered to constitute a violation of human rights, as this has
been developed in the case law of the court in Strasbourg. That potential
liability of European states will be addressed by Gouritin in Chapter 6.
Important questions also arise in the interface between the liability regime
in private law and public law. For example, public law principles, such as
the precautionary principle, could impose duties upon public authorities
to take measures to mitigate climate change or could also impose similar
duties on emitters of greenhouse gases. The question then can be asked to
what extent a failure to fulfil these duties can give rise to liability in private
law, for example for failure to comply with the precautionary principle (or
for taking too harsh measures based on the precautionary principle). These
interfaces are discussed by Haritz in Chapter 2. It can however be doubted
if liability is the right instrument to address climate change. Jaap Spier in
Chapter 3 is very concerned about an overly traditional approach towards
liability claims in climate cases, and emphasizes the need to identify courts

Introduction 7
with innovative, brave judges. He is also very critical on too much empha-
sis on liability law solely, and argues that climate change should be tackled
from as many angles as possible, and he notably refers to the need to con-
sider criminal liability as well. Finally the question could also be addressed
to what extent the current regulatory system to control greenhouse gases,
which largely relies on emissions trading, totally excludes alternative
compensation regimes. After all, in comparable but different settings like
nuclear accidents or oil pollution a regulatory regime aiming at the preven-
tion of damage is accompanied by a liability and compensation regime in
case damage nevertheless occurs. This interface between measures aiming
at prevention on the one hand and liability and compensation issues on the
other hand are addressed by Peeters in Chapter 5.
2.2 Comparative Approach
As the above described problem definition makes clear, providing some

insight into the way the law handles climate change liability requires
not only a legal interdisciplinary approach, but equally a comparative
approach. It would of course be pointless to discuss possibilities of climate
change liability merely from the context of one national legal system. A
national legal system that is extensively discussed to analyse potentials of
climate change liability is the Netherlands, but within that system atten-
tion is paid to traditional tort law (Chapter 9), to NGOs using climate
change liability (Chapter 10) and to governmental liability (Chapter 11).
Similar questions are also addressed under the perspective of English law
in Chapter 7. Since most of the climate change cases that have actually
been litigated arose in the US an overview of climate change-related cases
in domestic courts is discussed in Chapter 8.
European law is also explicitly addressed, more particularly when the
EU regime (mostly the EU ETS) is compared with the possibilities of
liability and compensation claims (in Chapter 5) and when addressing the
potential liability of EU member states in case of a failure to comply with
international commitments (Chapter 4). That chapter equally addresses
the question of the liability of member states and the EU under interna-
tional law in case of violation of international commitments. Similar ques-
tions of state liability also arise under European human rights law and are
addressed in Chapter 6.
The only type of liability not explicitly addressed in this book is whether
in addition to the member state liability for non compliance with the
international regime (addressed in Chapter 4) there could also be interna-
tional liability for climate change. That is an issue that has, however, been
addressed earlier in the literature.16

3. FRAMEWORK
This book originated within the Maastricht European Institute for
Transnational Legal Research (METRO) to which the two editors of this
book and many of the authors are connected.17 Many of the researchers
who contributed to the book also participate within the Transboundary
Environmental Law Programme of the Ius Commune Research School.18
The Ius Commune Research School is a collaboration between the univer-
sities of Amsterdam, Leuven, Maastricht and Utrecht and focuses on the
role of law in integration processes. The contributions to this book were
originally presented as draft papers at a workshop organized at the annual
conference of the Ius Commune Research School on 27 November 2009.
The chapters in this book are the updated and improved versions of those
draft papers.
Many researchers connected to both METRO and the transbound-
ary environmental law group of the Ius Commune Research School are
interested in environmental law and more particularly climate change
issues. The current book is in that respect building upon earlier projects
with Edward Elgar. For example, after a conference on ‘Institutions
and Instruments to Control Global Climate Change’ held in Maastricht
in June 2001, resulting in a publication (M. Faure et al. (eds.), Climate
Change and the Kyoto Protocol. The Role of Institutions and Instruments to
Control Global Change, 2003) subsequent projects focused on the role of
environmental law in developing countries, more specifically paying atten-
tion to the role of market-based instruments (M. Faure and N. Niessen
(eds.), Environmental Law in Development. Lessons from the Indonesian
Experience, 2006) and on EU climate change policy (M. Peeters and K.
Deketelaere (eds.), EU Climate Change Policy. The Challenge of New
Regulatory Initiative, 2006). A critical analysis of the European Emissions
Trading Scheme was equally provided (M. Faure and M. Peeters (eds.),
Climate Change and European Emissions Trading. Lessons for Theory and
Practice, 2008). The current book focuses specifically on climate change
liability, thus to a large extent building upon this earlier research.
4. STRUCTURE OF THE BOOK
As the table of contents shows, the book is divided into five parts and
twelve chapters. The first part contains this editorial foreword drafted by
the editors to the book.
Part II discusses various cross-cutting themes. Miriam Haritz addresses
in Chapter 2 the role of the precautionary principle in climate change

Introduction 9
liability. She examines the possibilities of using the precautionary principle

to establish liability (liability with the precautionary principle) and deals
with the question to what extent actions taken (mostly by public authori-
ties) based on the precautionary principle could specifically lead to liability
(liability from the precautionary principle). Chapter 3 by Jaap Spier deals
with the prevention of climate change as the primary goals of liability and
urgently calls for an extensive use of liability, but not to seek compensa-
tion but rather to prevent damage resulting from climate change.
In Part III attention is paid to European law (in the broad sense as
including also the European Convention on Human Rights). In Chapter
4 Javier de Cendra de Larragán addresses liability of member states and
the EU in view of the international climate change framework, address-
ing both the liability of the EU and the member states for an eventual
failure to comply with Kyoto Protocol commitments as well as the duty
of individual member states to contribute to the compliance of the EU as
a whole. In Chapter 5 Marjan Peeters focuses on the interesting question
of whether the EU should not develop a climate change liability and com-
pensation regime to complement the current EU ETS. After all, even in
case of compliance with the EU ETS damage may be caused, whereas the
question as to how this damage should be compensated is largely unregu-
lated. Peeters argues that there could be a combination of individual
liability of CO2 emitters and an international or European compensation
fund (to be financed by emitters) in addition to the EU ETS. A failure of
European states to take appropriate measures to adapt to climate change
could under some circumstances be considered as a violation of human
rights. Armelle Gouritin addresses in Chapter 6 the detailed case law of the
European Court for Human Rights in this respect and asks the question
to what extent this case law could also lead to liability of states, member
of the European Convention of Human Rights in case they fail to take
appropriate measures to adapt to climate change.
Part IV addresses liability for climate change from various national per-
spectives. The first chapter in this part (Chapter 7) by Giedrė Kaminskaitė-
Salters addresses the potential of climate change liability from the
perspective of English law. Even though in England so far no real climate
change liability cases have been brought, the chapter analyses the potential
of climate change liability but also the hurdles potential plaintiffs could
face. Chapter 8 by Elena Kosolapova addresses the cases that have already
been adjudicated or are currently being brought in domestic courts. In that
respect she mostly addresses these cases from the perspective of American
law since that is where most of these cases have been conducted. Chapters
9–11 turn to the potential of liability law within the Netherlands. General
climate change liability under the perspective of tort law is addressed by

Chris van Dijk in Chapter 9. The question to what extent NGOs could
play an important role in climate change liability under Dutch law is
addressed in Chapter 10 by Phon van den Biesen and the (limited) role of
governmental liability for climate change damage in the Netherlands is
addressed by Ben Schueler in Chapter 11. Part V presents in Chapter 12
concluding remarks from the editors and an outlook to the future.
5. CONTRIBUTORS
As we mentioned above, many of the contributors have worked together

either on previous projects or with the editors within the framework
of the Ius Commune Research School and the Maastricht European
Institute for Transnational Legal Research (METRO). Javier de Cendra
defended his Ph.D. thesis successfully on 4 March 2010 at Maastricht
University, under the guidance of Michael Faure and Marjan Peeters.19
He is now Senior Research Associate at the UCL Energy Institute/
Faculty of Laws, University College London. Miriam Haritz holds a posi-
tion at the Department of Development Assistance in Bonn, Germany,
and she is finalizing her Ph.D. thesis on the precautionary principle and
climate change liability under the guidance of Michael Faure and Ellen
Vos. Giedrė Kaminskaitė-Salters has a position as a Senior Adviser on
Climate Change at the United Kingdom’s Department for International
Development and her chapter is a product of her Ph.D. project at
METRO with Michael Faure and Marjan Peeters. Her Ph.D. thesis was
successfully defended on 11 February 2010.20 Jaap Spier is equally honor-
ary chair at the Hoge Raad (Supreme Court) of the Netherlands and holds
at the Law Faculty of Maastricht University a honorary chair of liability
and insurance in a comparative perspective. They all participate in the Ius
Commune Research School as well. The same is the case for other contrib-
utors who are connected with partners within the Ius Commune Research
School like Ben Schueler (Utrecht University) and Elena Kosolapova
(University of Amsterdam). Chris van Dijk and Phon van den Biesen are
attorneys at law, both having a wide experience in environmental liability
litigation. Phon van den Biesen is also member of the Scientific Council
to the Centre of Environmental Law of the University of Amsterdam.
Armelle Gouritin is connected with the Vrije Universiteit Brussels. The
editors, finally, are both connected with the Metro Institute of the Law
Faculty of Maastricht University. Michael Faure is director of the insti-
tute and holds a chair in Comparative and International Environmental
Law, and Marjan Peeters holds a special chair in Environmental Policy
and Law, in particular climate change issues. Michael Faure is also a

Introduction 11
professor of Comparative Private Law and Economics at the Law Faculty

of Erasmus University Rotterdam. A complete list of contributors and
their affiliation is provided in this book.
6. WORD OF THANKS
As editors of this book we are grateful to all contributors for their will-
ingness to participate in this challenging project and for meeting the
deadlines we imposed upon them. We owe thanks to Marina Jodogne
and Marjo Mullers of the secretariat of the Maastricht European Institute
for Transnational Legal Research (METRO) for assistance in organizing
the workshop on environmental law at the Ius Commune conference on
27 November 2009 and to Chantal Kuijpers of METRO for editorial
assistance in the preparation of this book for publication. We owe special
thanks to our research assistant Laura Visser who reviewed the footnotes
and the referencing. Finally, we are most grateful to our publisher Edward
Elgar for kind professional and efficient support in the publication of this
book.
The texts of Chapters 2 to 11 were finalized on 1 January 2010, thus
developments after that date could not be taken into account.
NOTES
1. See for example Faure, M., Gupta, J. and Nentjes, A. (eds.), Climate Change and the
Kyoto Protocol. The Role of Institutions and Instruments to Control Global Change,
Cheltenham, UK and Northampton, MA, USA, Edward Elgar, 2003.
2. See for example Baldwin, R., ‘Regulation Lite: The Rise of Emissions Trading’, Law
Society Economy Working Papers, 3/2008, www.lse.ac.uk/collection/law/wps/wps.atm;
Driessen David M., The Economic Dynamics of Environmental Law, Massachussets
Institute of Technology, 2003; and see for a plea for the carbon market Wiener,
Jonathan B., ‘Radiative Forcing: Climate Policy to Break the Logjam in Environmental
Law’, Duke Public Law & Legal Theory Research Paper Series no. 225, November
2008.
3. Nordhaus, W., A Question of Balance: Weighing the Options on Global Warming
Policies, New Haven, CT and London, Yale University Press.
4. For example in the United Kingdom where a so-called climate change levy has been
introduced. For details see Makuch, K.E. and Makuch, Z., ‘Domestic Initiatives in
the UK’, in Faure, M. and Peeters, M. (eds.), Climate Change and European Emissions
Trading: Lessons for Theory and Practice, Cheltenham, UK and Northampton,
MA, USA, Edward Elgar, 2008, 257–296. Moreover, in France a carbon tax has
been foreseen for 2010, and the latest proposal includes appliance of that tax
also for the industries covered by the European emissions trading scheme as the
Conseil Constitutionell ruled that exemption of those industries would be in con-
flict with the principle of equality (more precisely, the French principle called
‘egalite devant les charges publiques’), see http://www.gouvernement.fr/gouvernement/

contribution-carbone-une-large-concertation, and http://www.conseil-constitutionnel.

fr/conseil-constitutionnel/francais/les-decisions/acces-par-date/decisions-depuis-
1959/2009/2009-599-dc/communique-de-presse.46805.html
5. This problem played more particularly with the European Emissions Trading Scheme
(EUETS) which runs from 1 January 2005 until 2013 (Directive 2003/87/EC of 13
October 2003 establishing a scheme for greenhouse gas emission allowance trading
within the community and amending Council Directive 96/61/EC, OJ L275/32 of 25
October 2003. For an analysis of the effectiveness of this EUETS see the contributions
in Faure, M. and Peeters, M. (eds.), Climate Change and European Emissions Trading:
Lessons for Theory and Practice, Cheltenham, UK and Northampton, MA, USA,
Edward Elgar, 2008.
6. Grossman, D.A., ‘Warming Up to a Not-so Radical Idea: Tort-based Climate Change
Litigation’, Columbia Journal of Environmental Law, 2003, Vol. 28, 1.
7. Tol, R.S.J. and Verheyen, R., ‘State Responsibility and Compensation for Climate
Change Damages – a Legal and Economic Assessment’, Energy Policy, 2004, Vol. 32,
1109.
8. Verheyen, R., Climate Change Damage and International Law: Prevention Duties and
State Responsibility, Martinus Nijhoff, 2005.
9. Gupta, J., ‘Who’s Afraid of Climate Change?’, 2005.
10. Spier, J., ‘Legal Aspects of Global Climate Change and Sustainable Development’,
Revista Para El Analysis del Derecho, April 2006, 346 (http://www.indret.com./
pdf/346_en.pdf).
11. See Allen, M., ‘Liability for Climate Change: Will It Ever Be Possible to Sue Anyone
for Damaging the Climate?’, Nature, 2003, Vol. 421, 891–892. See also Allen, M. et
al., ‘Scientific Challenges in the Attribution of Harm to Human Influence on Climate’,
University of Pennsylvania Law Review, 2007, Vol. 155, 1353–1400.
12. See Stanford Environmental Law Journal (SELJ), Vol. 26A and Stanford Journal of
International Law (SJIL), Vol. 43A, June 2007.
13. See on these possibilities of liability under international law Faure, M.G. and
Nollkaemper, A., ‘International Liability as an Instrument to Prevent and Compensate
for Climate Change’, SELJ, Vol. 26A / SJIL, Vol. 43A, June 2007, 124–179.
14. See the news report from John Wijckhoff on the ‘Global Climate Law’ website, www.
globalclimatelaw.com: EPA endangerment finding and petition for review - the court
battle over GHG regulation begins, 14 January 2010.
15. See more particularly the contributions in Osofsky, A. and Burns, W. (eds.), Ajudicating
Climate Change: State, National and International Approaches, Cambridge, Cambridge
University Press, 2009.
16. See more particularly Faure, M. and Nollkaemper, A., above, note 12, 124–179.
17. http://www.rechten.unimaas.nl/metro.
18. http://www.iuscommune.eu.
19. Javier de Cendra de Larragán, Distributional Choices in EU Climate Change Law and
Policy: Towards a Principled Approach?, Kluwer Law International, Alphen aan den
Rijn, The Netherlands, forthcoming 2010.
20. Giedrė Kaminskaitė-Salters’s book, Constructing a Private Climate Change Lawsuit
under English Law: A Comparative Perspective’ is due to be published by Kluwer Law
International in late 2010.

PART II
Cross-cutting themes

2. Liability with and liability from the
precautionary principle in climate
change cases1
Miriam Haritz
Is it appropriate to use the (precautionary) principle to answer the question, not

‘What should we do tomorrow’ but ‘What should you have done yesterday?’
and, depending on the answer, impose liability?2
1. SCIENTIFIC UNCERTAINTY IN CLIMATE

CHANGE
Over the past decade, an intensification of weather-related natural catas-

trophes has been experienced all over the world. Flooding and heat waves
struck almost every continent, and the names of hurricanes like Katrina,
Wilma, Rita and Stan, which hit with more frequency and increased
destructive force North and Central America and the Caribbean, received
wide media attention.3 Insurance statistics show that there has indeed been
an increase in the amount of damage resulting from that type of natural
catastrophe, be it insured or uninsured.4 Increasingly, these incidents are
being attributed to the consequences of global warming next to its long-
term effects on climatic patterns.5
The aim of this chapter consists of taking into account these perceived
and predicted effects to the extent relevant to a climate change liability
claim. As will be explained, many difficulties arise when trying to define
the exact range of such a claim in various ways. Scientific uncertainties
that surround climate change science reflect onto legal uncertainties when
trying to adjudicate the consequence of climate change. It is the context of
such uncertainties that this chapter then analyses the possible contribution
of the precautionary principle.
Whilst in particular the evidence presented in the consecutive reports of
the Intergovernmental Panel on Climate Change (IPCC)6 indicates with
ever-decreasing uncertainty that these changes are the result of anthro-
pogenic greenhouse gas (GHG) emissions, there are manifold persisting
15

uncertainties involved in the scientific assessment of climate change. The

measured and predicted factual effects of a general temperature rise lead
not only to an increased likelihood of extreme weather events as described
in the introduction, but also to rising sea levels, severe ecological harm
and numerous effects on human health, property and welfare with drastic
socio-economic and financial implications.7 Still, many of these predic-
tions and the exact nature and degree of causal distribution and interrela-
tions remain entangled in a web of numerous uncertainties.
Generally, the IPCC Reports reflect a qualitative and quantitative
assessment of uncertainty when referring to the level of agreement in rela-
tion to the level of evidence or the degree of confidence in relation to a
punctuation of X out of 10 or the probability of occurrence.8 What can
be seen is that more uncertainty exists with regard to the phenomena that
stem not from global warming as such but from the consequences induced
by climate change, such as extreme weather events like the frequency
and strength of storms, flooding from precipitation or sea-level rise and
extended drought periods.
From the uncertainty about future global emission scenarios, to the
exact response of nature’s capacity to absorb CO2 in relation to the range
of possible reaction of the climate system and down to regional changes in
the climate, the exact scope, timing and likelihood of possibly damaging
impacts becomes more and more difficult to predict. This has been referred
to as an ‘uncertainty explosion’ or ‘cascade of uncertainties’.9
Mainly, these climate change uncertainties result from the fact that it
is not clear how a system of such complexity and subject to natural vari-
ability and randomness will evolve per se in the future; in addition, varying
extents of human interference in form of GHG emissions as a result of
possibly changing energy policy choices and consumption behaviour,
determined by different risk perceptions, as well as changes in population
patterns and possible technological innovations (with their benefits and
possible down-sides, such as is the case with biomass production in the
field of renewable energies) increase uncertainty to the extent that it simply
cannot be predicted for sure how the climate will develop.10
Moreover, despite improved assessment methods, there remains an
uncertainty in measurements and predictions that ‘ranges from inexactness
to irreducible ignorance’11 or ‘from unreliability to more fundamental uncer-
tainty’.12 In fact, climate change confronts scientists and decision-makers
alike with novel features of uncertainty that make it different from and more
complex than any other environmental problem experienced before.13
Even though some uncertainties have been decreased over time due
to the availability of new scientific evidence and scientific predictions
methods, such as the question of anthropogenic contribution as such

The precautionary principle in climate change cases 17
(whilst uncertainty as to the exact causal amount of this contribution

remains), other types of uncertainties and uncertain factors have increased,
such as the quantity of future emissions of developing countries in tran-
sition, or have been discovered anew, such as the likelihood of abrupt
climate change. These uncertainties thus may belong to the category of
natural science, but may also stem from development factors that are dif-
ficult to estimate – regardless of the exact nature, these are uncertainties
that are likely to cloud climate change calculations in one way or another.
Generally, due to the various factors that contribute to how and when
predicted damage will manifest itself and as a result of the general non-
linearity of climate change, overcoming all uncertainties is never feasible,
while consequences manifest themselves and require regulatory action and
– due to resulting the damage – a compensatory response as well.14
2. FROM SCIENTIFIC TO LEGAL UNCERTAINTY

IN CLIMATE CHANGE LIABILITY
These uncertainties not only make the choice of adequate measures within
decision-making of concerned stakeholders difficult, but also translate
into legal uncertainties when adjudicating climate change consequences in
liability claims.
Until recently, it was often assumed that judges should simply acknowl-
edge their lack of expertise and fully refrain from handling any legal cases
dealing with climate change.15 However, when looking at the goals of liabil-
ity, such adjudication would be of relevance in view of two aspects: first, in
order to achieve ex post facto law enforcement as recognized in the polluter
pays principle16 next to compensation of the numerous victims that are and
will be affected by the damaging consequences of climate change. This argu-
ment is of significance especially because as of now, there is no direct com-
pensation available, with indirect means via property insurance and natural
disaster funds per se being rather limited in factual and geographical extent.17
Second, ex ante facto law enforcement by means of liability is achieved
through implicitly enhancing prevention and exercising a deterring effect,
whereby a complementary effect towards enhanced mitigation of future
consequences and adaptation to the inevitable consequences of climate
change could be attained by forcing political decision-makers in the leg-
islative and executive, as well as companies and other business sectors
responsible for GHG emissions, to abate emissions and to facilitate cau-
tious adjustment to prevent the worst from happening.18 In the absence of
necessary substantially enhanced efforts, climate change liability would
thereby contribute to the goals of mitigation and adaptation.

As a consequence, and despite the initial judicial reluctance and an

enduring restraint in dealing with cases involving climate change and its
consequences, more and more such cases have been brought to judicial
considerations in different parts of the world over the course of recent
years, especially in countries where there is a lack of effective climate regu-
lation.19 Albeit only a few of them thus far concern liability, many of these
can be considered as paving the way for actual liability claims against
those responsible for the consequences of climate change, be it govern-
mental decision-makers or operators. Of major influence here is the case
of Massachussetts v. EPA,20 in which the US Environmental Protection
Agency was successfully sued by a coalition of US federal states, cities
and environmental NGOs for the failure to regulate CO2 in its obligation
to deal with pollution control. Therein, CO2 was judged to be a pollutant
requiring regulation under the Clean Air Act and climate change was con-
sidered as a real threat with measurable damage stemming to a large extent
from human sources.21 It was also found that the particular emissions
conduct on behalf of the US could alter these effects despite the conduct of
other major emitters worldwide.22
Concrete liability claims until now have been brought only in the US,
be it as public or private nuisance claims or property damage claims.
Amongst these, California v. General Motors,23 Kivalina v. ExxonMobil24
or Comer v. Murphy Oil25 are notable examples of claims against com-
panies directly responsible for GHG emissions and their contribution
to climate change. Korsinsky v. EPA26 is an example of a claim against a
governmental authority for failure to protect against the consequences
of GHG emissions. Thus far, either affected individuals or states have
brought these claims on the plaintiff side.
All of these cases are either still ongoing or under appeal, and in all of
them the plaintiff’s standing and the political question doctrine have been
complex issues that until recently led to a dismissal of such cases. Yet, in
September 2009 a US Court of Appeals was the first court ever to grant
plaintiffs standing and to consider climate change as justiciable despite its
political implications on behalf of the executive and legislative.27
Nevertheless, no climate change liability claim that has been brought
so far has been granted any of the remedies that were applied for and the
most difficult legal hurdles in a climate change liability claim have not yet
been judged upon in substance. In practice, however, these cases are and
will be confronted by major obstacles stemming from the uncertainties
surrounding climate change, thereby inhibiting the described goals.
First, there is uncertainty as to the optimal basis of liability, i.e. the
choice between strict or fault liability. Within fault liability, determining
wrongfulness and the required standard of care in view of the adequate

threshold for probability (referring to the degree of likelihood required

necessary to establish legal certainty despite scientific uncertainty) poses
another legal hurdle.
Most fundamentally, establishing the chain of causation and the differ-
ent levels of causal uncertainty (effective causation in terms of general and
specific causation and the exclusion of the background risk) is to be con-
sidered as the biggest legal challenge in climate change liability claims,28
albeit with different levels of difficulty depending on who exactly is being
targeted on the defendants’ side.29
Subsequently, another legal uncertainty arises when distributing causal
responsibility in view of multiple actors, be it in following individual liabil-
ity, joint and several liability or proportional liability.
In addition, defining the temporal and remedial extension of liability,
namely the consideration of retroactivity and ex post liability in relation to
the available remedies such as damages and/or injunctions to reduce emis-
sions in view of both present and future damage that has not yet become
apparent are difficult questions that arise in that context.
Finally, defendants both from the public as well as the private sector
will try to rely on a number of defences should their conduct in climate
change prima facie be considered as giving rise to liability: essentially, the
element of foreseeability will be recurring in terms of the ‘state of the art’
defence, force majeure and the ‘regulatory compliance’ defence. In addi-
tion, defendants are likely to invoke the ‘risk-cost’ defence in light of the
cost-benefit and cost-effectiveness considerations. Similarly, defendants
could try to rely on the equitable defence of ‘unclean hands’ (also known
as contributory negligence in some jurisdictions) in so far as trying to
argue that, for instance, consumers themselves share the responsibility for
emissions resulting from their use of a particular product (such as energy-
inefficient cars, light-bulbs, excessive air-conditioning or heating).
These are only the most problematic elements of a climate change liabil-
ity claim that are clouded by a type of uncertainty where the precautionary
principle could play a role. Beyond this focus, there are numerous others
that need to be addressed separately, such as the optimal forum for bring-
ing climate change claims.30
3. THE SCOPE OF THE PRECAUTIONARY

PRINCIPLE AS A TOOL TO HANDLE
UNCERTAINTY
In relation to decision-making under conditions of uncertainty, increas-

ing reference has been made to the precautionary principle, a principle

that was originally designed as a regulatory measure to handle scientific

uncertainty and to enable risk regulation in spite of inconclusive scientific
evidence. Over the past decades, the precautionary principle has spread
from the national via the supra-national to the international level and vice
versa, and it is recognized in numerous jurisdictions within legislation and
case-law, accompanied by a wide array of literature covering the topic
from different academic angles.31
But even if the precautionary principle is not undisputed for several
reasons that are reflected in equally abundant academic debates,32 its appli-
cation and wide recognition in effect is real. As such, it is also enshrined
in climate change policy, where Art. 3.3 of the UN FCCC requires the
participating parties to take
. . . precautionary measures to anticipate, prevent or minimize the causes of

climate change and mitigate its adverse effects. Where there are threats of
serious or irreversible damage, lack of full scientific certainty should not be
used as a reason for postponing such measures, taking into account that poli-
cies and measures to deal with climate change should be cost-effective so as to
ensure global benefits at the lowest possible cost. To achieve this, such policies
and measures should take into account different socio-economic contexts, be
comprehensive, cover all relevant sources, sinks and reservoirs of greenhouse
gases and adaptation, and comprise all economic sectors.
Beyond this terminological recognition in the climate change treaty that

lies at the heart of international climate change policy, the application of
the precautionary principle to climate change has also been justified by a
number of authors, particularly from a law and economics perspective.33
It can be rightfully concluded that the precautionary principle ‘. . . must
thus guide analyses of environmental and human health impacts caused
by global warming’34 when it comes to deciding the path of climate change
policy, even if the exact extent of such policy may remain disputed.
Notwithstanding existing differences regarding the exact content of the
principle, it has to be stressed that it is rather the inconsistencies resulting
from the lack of a coherent, sometimes even contradictory, approach in
the choice of applying or disregarding the precautionary principle than the
principle itself that is to be criticized.35 Most notably, the precautionary
principle per se does not mandate any specific type of action, which is to
be determined on a case-by-case basis and in view of other factors such as
risk-trade-off balances, cost-benefit and cost-effectiveness considerations
instead.
At its most basic the precautionary principle only mandates that uncer-
tainty shall not be used as an excuse for remaining inactive in view of a
threat that is usually defined as ‘serious and irreversible damage’. Beyond

the lowest common denominator, the existing definitions vary in terms

of the degree of obligatory nature and the level of required precaution
in response, extending to the burden of proof in a modest, a proactive
or a risk-minimizing manner. As such, the precautionary principle, even
though primarily addressed to governmental regulators, is applicable to
both public bodies as well the private sector.36 In light of the role of the
precautionary principle in enabling risk containment in face of uncer-
tainty, companies should not use the failure of regulatory authorities as
an excuse for their own inaction, especially since placing the entire burden
of responsibility for due precaution on state intervention would dismiss
industry from its own share of obligation to contain risks emanating from
economically profitable activities.
As a matter of fact, companies have already started to actively consider
the meaning of the precautionary principle and how it is to be used within
their enterprises in the handling of uncertain risks.37 Also in the insurance
sector it has been recognized that companies are indeed required to follow
the precautionary principle, particularly in view of the ongoing and pre-
dicted rise in climate change related damage.38
In addition, the precautionary principle sets procedural requirements
on public bodies in the institutional context that are aimed at bringing in
an element of democratization in the assessment of scientific uncertainty.39
Necessarily, applying the precautionary principle deals with risk-trade-
offs in every concerned policy field, and as such it involves balancing errors
of so-called false negative (i.e. too little precaution, as later on the issue
proves to have harmful consequences) and false positive (i.e. too much
precaution, as later on the issue proves to be harmless) nature against each
other. Here, the precautionary principle mandates an environmental and
public health bias in the sense of ‘erring on the side of precaution’.40
4. THE PRECAUTIONARY PRINCIPLE AND

CLIMATE CHANGE LIABILITY
Now that the relevance of the precautionary principle to climate change

regulation has been explained, this section will look at the contribution
of the principle to the ex post legal scenario of a liability claim, primarily
based on insufficient regulation. Even though applying the precautionary
principle in an ex post context to liability law is an innovative approach
that has thus far only been considered by a limited number of scholars
from rather few jurisdictions,41 its effects on climate change liability are
substantial.
As will be explained, it can be observed that the precautionary principle

Table 2.1 The main interpretations of the precautionary principle
M2542 - FAURE PRINT.indd 22

Version Triggering Enabling action Degree of rigidity Affecting the To be found e.g. in:
threshold regulatory burden of
proof
1 (modest) Lack of full Allowing for Right to act Modification – Principle 15 Rio
scientific regulatory action Declaration
certainty – Art. 3 of the
UNFCCC
2 (Proactive) Higher degree Obliging to take Right to act + duty Modification up to – Swedish
of uncertainty regulatory action to act shifting the onus Environmental Code
(scientific –French
22
minority views) Environmental
Charter
3 (risk-minimizing) Anything Obliging to take Right to act + duty Reversal Final Ministerial
above a mere more stringent to act + necessity to Declaration, 3rd
suspicion regulatory action prove harmlessness International
of a conduct upon Conference on the
indication of Protection of the
harmfulness North Sea
Procedural N.A. Setting the N.A. Setting the N.A.
framework for procedure
precautionary depending on the
decision-making content of version
1–3
01/03/2011 15:51
links in a natural manner to uncertainty in all of its versions in this ex post

sense as well and, despite its diverse interpretations, on public and private
law on the national, European and international level alike. This is the
case when considering the consequences of a lack of due precaution when
adjudicating the consequences of climate change in terms of structuring
legal uncertainty resulting from scientific uncertainty surrounding climate
change and thereby facilitating a liability claim otherwise inhibited by
these uncertainties, which will be referred to as liability with the precau-
tionary principle. In addition, the precautionary principle can also be
viewed in terms of a normative principle whose violation can give rise to
climate change liability claims against public authorities in cases of insuf-
ficient precaution. On the other hand, the precautionary principle might
generate a new source of liability in cases of excessive precaution whilst
having followed a prescribed regulatory procedure. This is what will be
referred to as liability from the precautionary principle.
4.1 Climate Change Liability with the Precautionary Principle
First, the precautionary principle can be used as a judicial tool in claims

against emitters of GHG claimed to be directly responsible for climate
change. This is relevant in view of the legal uncertainties that have been
described as arising due to the scientific uncertainties surrounding climate
change. In the following, the main elements of uncertainty most significant
in a legal sense within such a climate change liability claim will be looked
at through the lens of the precautionary principle.
Paying attention to the main elements clouded by uncertainty in a
climate change liability claim, first the choice of the basis of liability is to
be considered. Yet, here the precautionary principle does not aid in advo-
cating for either fault or strict liability as the most appropriate basis of a
liability claim, since choosing between the two is affected by various other
considerations that fall outside the scope of the precautionary principle.42
Yet, within fault liability, it can be observed that the precautionary
principle does affect the required standard of care by imposing precaution
over inaction in its stricter interpretations, thereby facilitating the finding
of negligent behaviour and thus fault. But also in its modest interpreta-
tion the traditional bonus-pater-familias standard is extended towards
including additional information requirements that would have obliged
stakeholders to consider climate change evidence even before there was
international consensus after 1990 and to take into account mitigation of
climate change thereafter with more commitment.
Consequently, as far as the finding of fault in climate change liability
in view of the precautionary principle is concerned, it can be argued that

both governments as well as entrepreneurs should have been under the

obligation to question their conduct concerning CO2 emissions from the
moment that the risks in question amounted to more than a suspicion, as
from the 1950s onwards. This questioning requires proactive gathering of
information and investment into follow-up research instead of continuing
business as usual until further notice of certainty43 or even an active and
biased support of scientists suggesting that climate change is less of a
problem than, for instance, the IPCC Reports claim.44
As regards the conduct of governmental authorities, one could argue
that the participation in international climate change policy, including the
setting-up of a research body like the IPCC, and the active effort to reduce
emissions following the Kyoto Protocol or similar reductions approaches
partly reflects states’ efforts to comply with the requirements of at least the
modest precautionary principle. Uncertainty was not used as an excuse
for inaction. Still, this only covers the period as of 1990 (the year the 1st
IPCC report was released)/1992 (the year the United Nations Framework
Convention on climate change – UNFCCC – was agreed upon), whereas
scientific evidence beyond the level of suspicion was available already
prior to that, when governments remained inactive.
As a matter of fact, some evidence, albeit entangled in substantial uncer-
tainty, indicating the harmful effect of GHG on the climate, existed long
before international action to combat climate change started.45 For instance,
the so-called Keeling Curve that was commenced in 1956 and documents the
growing, continuing CO2 accumulation in the atmosphere based on samples
measured in a Hawaiian observatory,46 showed a striking resemblance to
the so-called Hockeystick Curve47 referred to in the 3rd IPCC Report of
2001 as far as the post-industrialized time period is concerned.
Moreover, despite the increasing evidence of the harmful effects, actual
measures to reduce emissions only started with the coming into force
of the Kyoto Protocol in 2005. In addition, the damage that is and will
be resulting from historic emissions cannot be covered by it any more.
Moreover, unabated or insufficiently reduced emissions are predicted to
cause damage on a global average nonetheless.
Since it is past emissions stemming from a fully unregulated time that
show their effects now and in the nearer future, the time before 1990/1992
can be taken into account to some extent also under a modest interpre-
tation of the precautionary principle for the finding of fault. Hence, the
precautionary principle in this backward-looking sense is particularly
useful in the case of a compensation claim where the remedy sought for
consists of damages (in contrast to injunctions with regard to reducing
future emissions where past emissions would not have to be taken into
account).

Moreover, the proactive interpretation of the precautionary principle

requires more action than the one taken in international climate change
policy, since the efforts undertaken so far will not lead to a substantial
reduction in temperature rise and will therefore not suffice to prevent a
large part of the predicted damage. Furthermore, the precautionary prin-
ciple generally facilitates alleviating or shifting the burden of proof of such
negligence.
In addition, the burden of proof is affected by the application of the
precautionary principle in terms of establishing the chain of causation.
Yet, a distinction needs to be made as far as the proof of general causa-
tion (where the overall causality of emissions-favouring conduct is to be
acknowledged in light of the precautionary principle), specific causation
(where the establishment of causation of a specific incident is facilitated by
the precautionary principle as well) and multi-party causation (where the
effect needs to be differentiated in view of opting for proportional or joint-
and-several liability) are concerned. More specifically, the effect of the
different interpretations of the precautionary principle ranges from a mere
facilitation of taking into account new methods of calculation in causal
evidence and thus alleviating the burden of proof requirements to shifting
the burden of proof, whereby the onus shifts onto the defendant once the
plaintiff has been able to prove an initial fault on the side of the tort-feasor
in its more stringent interpretations. As far as the strictest interpretation of
the precautionary principle is concerned, an even stronger modification of
the burden of proof is to be assumed, commonly referred to as a reversal
of the burden of proof. Yet, a full reversal without any prior indication of
harm would amount to the juridical translation of a zero-risk approach,
which is to be considered as an over-, or rather a misinterpretation of, the
precautionary principle.
Moreover, it is to be concluded that on grounds of the precautionary
principle liability could be established at least as from 1990, the date of
the release of the 1st IPCC Assessment Report, onwards, in its stricter
interpretations also with regard to earlier times, given that there was scien-
tific evidence of climate change available long before international action
on the topic really started, thereby facilitating the taking into account of
historic emissions.
In addition, the precautionary principle is found to have a deep impact
on the decisive criterion of foreseeability. In light of the principle’s obli-
gation for extended risk research, it can no longer be argued that it was
unforeseeable that the risk stemming from ongoing, unabated GHG
emissions could lead to the predicted or manifested damage. This way,
recourse to possible defences relating to force majeure, regulatory compli-
ance, development risk or state-of-the-art would be substantially limited.

Moreover, applying the precautionary principle as a principle that by

nature attaches a higher value to environmental considerations would
inhibit recourse to the risk-cost defence regardless of engaging in the
discussion of whether climate change mitigation involves substantial
economic cutbacks48 or whether it provides economically and socially
beneficial incentives for technological innovation and a more effective
energy consumption behaviour.49 Here, the application of the precau-
tionary principle is particularly justified since conventional cost-benefit
analysis is unable to take into account the factor of uncertainty to the full
extent – completely unmitigated emissions will increase climate change
beyond existing knowledge or estimates, and that coupled with the non-
linearity of the earth’s climate in general is a factor too risky so as not to be
assessed properly; yet, the inherent uncertainties as described are making
this assessment even more difficult and render a sole cost-benefit analysis
inefficient in these terms.50
In an interview at Stanford University in 2007, the climatologist
Schneider51 explained this inaptitude and stressed that despite the risk
of erroneously balancing false positives against false negatives, the pre-
cautionary principle should be mandatorily applied to climate change,
since the potential costs of climate change consequences clearly outweigh
the costs of choosing the wrong measures to counter the risk, especially
in view of the worldwide growth of GDPs. Within that precautionary
framework, justice and equity considerations subsequently can play a role
in so far as balancing, for instance, the effect of CO2 reductions with the
improvement of living conditions such as access to electricity and other
technologies directly responsible for GHG emissions, especially with
regard to developing countries or countries in economic transition.
However, the combat of climate change should not be limited to
a dichotomy between lowering emissions and economic prosperity.52
Overall, in determining which regulatory path to follow or not, other
implications and considerations have to be balanced against the scope of
possible damage, but not against the use of the precautionary principle as
such.53
Finally, it is to be concluded that the precautionary principle defines
the extent of the damage to be taken into consideration, including
expenses incurred for adaptation against present and future damage,
albeit with limitations as to the effect on compensation for future, uncer-
tain harm (unless concerning adaptation costs). Yet, in its stricter inter-
pretations, this could entail a justiciable obligation to stop or modify the
GHG emitting activity in question, thereby conferring the right to obtain
injunctions.

4.2 Climate Change Liability from the Precautionary Principle
On the other hand, the precautionary principle can aid in shaping the
liability of public authorities in view of insufficient or excessive precaution.
More concretely, the precautionary principle can be invoked as such
against governmental authorities, both for the failure to apply precaution-
ary measures, i.e. false negative errors leading to under-regulation as well
for the – in comparison – less likely and less damaging event of unneces-
sary and thereby harmful over-precaution leading to unwanted over-
deterrence, i.e. false positive errors leading to over-regulation.
However, with regard to the latter aspect, the procedural precau-
tionary principle is to be considered as freeing governmental institu-
tions from further liability as long as the correct procedure in terms of
decision-making requirements is followed, thereby enabling reliance on
the justificative effect of regulatory norms. Necessary precondition here
would be especially the proof of iterative decision-making, independent
risk assessment with synergetic stakeholder and public participation in line
with the respective interpretation of the precautionary principle as such.54
Still, relying on the precautionary principle in the sense of deriving
an individual right from its breach as such is to be considered as non-
justiciable for a lack of substantiation. The precautionary principle can
be relied upon for protecting fundamental rights, but it is not itself a right
in the sense of a vague right to precaution without being connected to a
concrete failure to protect such fundamental rights.
The precautionary principle has been termed a ‘higher-order legal prin-
ciple’55 that requires decision-makers to consider all possible alternatives
as well as all involved uncertainties resulting from an activity in question,
in particular in view of inter- and intra-generational equity and justice
contemplations.
Taken together, the ex ante and ex post dimension of the precaution-
ary principle impose the obligation to anticipate risks, thereby providing
a new framework for liability.56 In turn, it is only when applied in the
context of liability law that the precautionary principle can fully attain
its true objective, namely to avoid uncertain risks manifesting themselves
in damage, however uncertain. Climate change liability is an illustrative
example of this effect, particularly because it confronts liability systems
with previously unknown obstacles that cannot be overcome by tradi-
tional approaches towards liability law.
As a result, the precautionary principle implies ‘a shift in responsibil-
ity for damage to public goods towards potential polluters’, that needs to
be specified by legal scholars and practitioners in respective cases.57 The
example of climate change shows that if the precautionary principle has

Table 2.2 The effects of the precautionary principle(s) on climate change liability
M2542 - FAURE PRINT.indd 28

Version Choice of Determining the Time Available remedies Limiting recourse to *Affecting the legal
liability basis standard of care perspective defences burden of proof
1 (modest) (−) Due diligence 1990/ Damages for present Development Modification:
= active 1992 damage from historic risk. Regulatory alleviation of
information emissions as of 1992 compliance, evidence standards
duties + injunction to reduce force majeure,
emissions Risk-Cost(+)
2 (proactive) (−) Due diligence >1980 Damages for present (+) Shift: upon
= take into damage from historic initial onus on
account minority emissions as of 1980 the claimant, the
views and act + adaptation costs + burden shifts on the
accordingly injunction for stricter defendant
28
emissions reductions
3 (risk (−) Due diligence = >1960 Damages for present (+) Reversal: full onus
minimizing) follow minority damage from historic on the defendant
views and strict emissions as of 1960
counter-action + adaptation costs +
injunction for strictest
emissions reductions
Procedural N.A. Due diligence N.A. Damages can be Regulatory (−) the claimant
= obligation awarded for damage compliance defence must prove breach
to follow the resulting from a breach is allowed if of procedure
procedural of the procedural procedural steps
steps in requirements have been followed
decision-making
Note: * The burden of proof is to be distinguished into proof of negligence and proof of different aspects of causation, see text.
01/03/2011 15:51
not been applied correctly in the decision-making phase this will trigger
an application of the precautionary principle to questions of legal respon-
sibility, facilitating therein liability claims based on a failure to apply the
principle or an incorrect application of the principle.
5. THE ADDED VALUE OF THE PRECAUTIONARY

PRINCIPLE’S APPLICATION TO CLIMATE
CHANGE LIABILITY
Whilst an explicit application of the precautionary principle to liability
law in the way described in this chapter with regard to climate change has
not been undertaken so far, so-called ‘Toxic Tort’ cases in national juris-
dictions, particularly cases concerning chemicals exposure such as asbes-
tos or tobacco litigation, reflect a tendency among courts towards judging
in a way implicitly relating to demanding more precaution on behalf of
tort-feasors. In some cases, the judgments, even without explicit reference,
show some resemblance to elements of the prescriptions stemming from
the precautionary principle,58 therefore the question is of course whether
an explicit application of the precautionary principle would have any
added value.
Whilst this implicit demand of precautionary behaviour has led to an
improved adjudication of uncertainty, this is not to be equated with an
explicit and consistent application of the precautionary principle to liabil-
ity claims. Essentially, there are three important arguments against such a
simplification of the precautionary principle’s contribution to liability law
that are of particular relevance to the case of a claim over climate change
damage:
First, there is a difference in applying precautionary considerations on
a case-by-case basis upon the judge’s discretion and a systematic inclu-
sion of the precautionary principle as a judicial tool that prescribes these
considerations. Only the latter will provide some certainty in cases entan-
gled in uncertainty, for the benefit of the compensation-seeking victim,
the future liability-evading behaviour of potential tort-feasors and the
judicial guidance of judges in charge of such cases. Since climate change
is a problem of unprecedented scale, requiring international, European
and national regulation in a comprehensive and cooperative effort, there
would certainly be a benefit resulting from such a systematic application.
Second, most of the Toxic Tort cases share a recurring commonal-
ity: they arise after many years of inaction,59 in the course of which the
involved uncertainty grew into a level of certainty. Consequently, it is
rather knowledge as to past effects and prevention of future effects instead

of precaution in face of uncertainty that really triggered judicial action in

those cases. By that time, immense damage had already been caused, and
the precautionary considerations led to compensation, but did not provide
a real incentive in terms of the preventive and deterring effect as far as the
behaviour of potential tort-feasors was concerned. In contrast to that, the
application of the precautionary principle would allow courts to step in
at a prior stage, thereby enhancing the preventive effect of liability law in
face of uncertainty.
Third, the chain of causation is more complicated in climate change
liability claims than in any of the Toxic Tort cases, hence making climate
change cases more difficult to adjudicate than any previous case involv-
ing uncertainty. For example, tobacco consumption may lead directly to
specific types of diseases such as lung cancer and other diseases affecting
the cardiovascular system. These may have other causes as well, making it
difficult to establish the causal link between the specific disease developed
and tobacco consumption. Alternative causes could be genetic predis-
position, exposure to alternative toxic substances, or, in view of all the
potential dynamics that contribute to the human immune system that sci-
entists do not yet know, simple coincidence. Whilst in the case of asbestos,
mesothelioma and asbestosis are unique diseases that have no other cause
other than the substance in question, in most other Toxic Torts exposure
to the substance is a major criterion for suffering from the illness, but there
might well be others. Thus, the exclusion of the background risk and other
interfering factors is a difficult feature that can often be common to Toxic
Torts and climate change claims alike. Yet, under the climate change sce-
nario it is not the emissions that directly cause the damage in question but
it is emissions which cause global warming, which causes climate change,
which leads to an increased likelihood of changed climatic and weather-
related patterns, be they long-term or intermittent extremes. Thus, the
chain of causation from the defendant’s conduct to the individual damage
is much longer, especially in view of causal uncertainty regarding both
general (to what extent do emissions contribute to climate change), but
even more specific causation (to what extent did the activity of a particular
emitter contribute to the specific damage alleged by a victim of climate
change), and therefore more susceptible to the uncertain contribution
of other factors. In view of this enhanced scientific uncertainty, the legal
uncertainty courts are facing is much greater, which is why the applica-
tion of the precautionary principle would bring about judicial solutions
beyond what has been both feasible and necessary until now.
The effect of this is not extending the floodgates of liability law beyond
the reasonable, but instead an adequate response to the challenge posed
by a new type of litigation that has become necessary in view of the

environmental, economic and societal consequences and threats of a pre-

viously unknown scale resulting from climate change.60
The precautionary principle acts as a guide to the behaviour of the
potential public or private tort-feasor in the form of an incentive or stimu-
lus both ex ante and ex post in line with law and economics considerations.
Its essence in ethical terms is reflected in the sentence ‘mieux vaut prévenir
que guerir’61 – it is better to prevent than to cure. This essence needs to be
remembered when it comes to adjudicating the consequences of not having
adhered to this guidance and translating that failure into a viable liability
claim.
Applying the precautionary principle in its main interpretations has
varying effects on aspects of liability for climate change: a modest interpre-
tation of the precautionary principle contributes to putting the polluter-
pays-principle into practice by providing the necessary framework for the
finding of fault and causation and the requirement of damage, albeit in the
future. In the regulatory sphere this version implies that scientific uncer-
tainty is not to be used as justification for inaction, therefore it is only con-
sequent to apply this requirement of enhanced foresight retrospectively,
when a defendant is at fault for not taking precautionary measures against
at the time uncertain and not regularly foreseeable risks.62
In its more stringent interpretations entailing an obligation, the precau-
tionary principle could become a truly innovative normative principle of
liability law, obliging the need for preventive and collective action in the
field of uncertain environmental risks.63
It can be witnessed that judicial systems in all branches of the judici-
ary around the world seem to be characterized by the search for certainty
and are marked by the anxiety to avoid uncertainty;64 that said, our ‘risk
society’65 in general, and more particularly in view of climate change,
should rather mandate judges to seek an improved approach in judicially
handling uncertainties, since these will most likely never cease to exist in
one way or another. Particularly in the field of environmental damage,
liability law is generally affected by such uncertainty, and its effectiveness
in terms of compensation, reparation and prevention is enhanced when
applying the precautionary principle, thereby replacing the certainty
requirements set by traditional concepts of liability law with sufficiently
grounded probabilities.66 These probabilities could then be constructed in
a climate change liability claim along the lines of assessing uncertainty in
the IPCC Reports as previously described.
The precautionary principle in its different interpretations acts as a judi-
cial tool in claims against direct emitters of GHG responsible for climate
change as much as those indirectly responsible by their failure to regulate
GHG emissions or provide sufficient adaptation facilities (liability with the

precautionary principle). In addition, the precautionary principle can also

function as a normative principle whose violation can give rise to climate
change liability claims against public authorities should a lack or excess
of precaution occur in so far as the procedural requirements set by the
precautionary principle are concerned. This is what has been referred to as
liability from the precautionary principle in this book contribution.
It shall be stressed that just as the precautionary principle from an
ex ante perspective applies to both public and private actors, so does its
juridical value expand to legal disputes between public or private parties.67
6. FINAL CONSIDERATIONS
Even though not uncontested, and despite a lack of judicial decisions

explicitly making use of the precautionary principle in the suggested
manner, a growing number of legal scholars in different jurisdictions have
increasingly begun to attach importance to the preventive function of lia-
bility stemming from the precautionary principle’s application to liability
law.68 The precautionary principle even surpasses the distinction between
the compensative and the preventive effect of liability law.69
Therein, the precautionary principle needs to be considered in a triangle
of interacting principles of environmental law with operational interde-
pendency, namely the precautionary principle, the prevention principle
and polluter-pays-principle, which all modify the traditional structures of
civil liability in legal systems that are increasingly required to anticipate
environmental risks and distribute the responsibility for resulting damage
accordingly for the purpose of strengthening both the compensative and
the preventive goals of liability.70 It is in this sense that the precautionary
principle is to be considered as a judicial standard applicable to liabil-
ity claims.71 Thus, the precautionary principle’s contribution to climate
change liability can be considered of significant relevance to the path
that liability law is to take in the future on the national, European and
international level, with climate change being a prime example of an envi-
ronmental problem with severe effects on human health and property and
troubled by uncertainties. In light of the precautionary principle, these
uncertainties should not have been used and should certainly no longer be
used as an excuse not to substantially combat the causes and consequences
on behalf of governments and operators worldwide. One of the responses
to this failure lies in the development of climate change liability: ‘Over the
course of the last few years, climate change litigation has been transformed
from a creative lawyering strategy to a major force in transnational regula-
tory governance of greenhouse gas emissions.’72

Climate change liability has even been deemed to be ‘. . . the best tool
for addressing climate change in the foreseeable future’.73 Yet, liability can
neither be a goal on its own nor should it be considered the sole or even
best way to compensate victims of climate change or to prevent climate
change in the future. Liability for the consequences of climate change is
but one means of compensating for ongoing and predicted damage, next
to other proposals that deserve separate analysis in future research as for
example the idea of an international compensation fund74 or obligatory or
voluntary climate change insurance.75 Still, the development of a coherent
liability law system for climate change consequences is complementary to
these measures in forcing worldwide actors and stakeholders to enhance
their efforts, and it should form part of the necessary global response.
With regard to its different interpretations in practice, the precautionary
principle should be formulated on a case-by-case basis and depending on
the scale of potential damage.76 Nonetheless, it has to be mentioned that
this flexibility of the precautionary principle also generates new sources of
uncertainty. Primarily, this is the result of its diverse interpretations. Yet,
this interpretational variety is to be considered as an indispensable feature
in reflecting cultural diversities and different approaches towards risk and
risk perception.77 The resulting flexibility in interpreting the precautionary
principle when addressing problems generated by uncertainty is to be con-
sidered as an asset of the principle,78 even though adjudicating its content
requires a cautious handling so as not to be a possible source for flaws
when being used as pretext for an inconsistent application of the principle.
Nonetheless, this is not to be considered as an unsurpassable obstacle
towards its application to liability law.79 Rather, it is precisely because of
its flexibility that the precautionary principle’s potential to serve as a judi-
cial tool to determine the outcome of liability cases is to be recognized.80
In addition, the precautionary principle’s potential of generating so
called false positive errors leading to detrimental over-regulation and the
incurring of unnecessary costs in turn creates new uncertainties that need
to be balanced cautiously and prudently in inherent risk trade-offs.81
Despite these uncertainties, however, it has to be concluded that looking
at climate change liability through the lens of the precautionary principle
helps to structure the debate over the role of the precautionary principle
in liability law in general and the prospect of climate change liability in
particular, beyond what tort law has been capable of so far. The possibly
unwanted effects of applying the precautionary principle are outweighed
by its benefits overall in so far as reducing the legal uncertainties that stem
from scientific uncertainties, which would otherwise inhibit the depicted
preventive and compensative goals of climate change liability; it must
therefore be deduced that it is indeed appropriate to ask the question

‘what should you have done yesterday’82 and impose liability accordingly
in light of the precautionary principle in regard to climate change damage
also.
NOTES
1. Based on a presentation by the author at the Ius Commune Workshop Environmental

Law on the Topic of Liability for Climate Change Damage, 27 November 2009,
Maastricht, The Netherlands.
2. Quote taken from Pardy, B. (2002), ‘Applying the Precautionary Principle to Private
Actors: Is it Relevant to Civil and Criminal Liability?’, in Les Cahiers de Droit, Vol. 43,
pp. 63–78 [65].
3. Hurricane names in the Atlantic are chosen by representatives of the weather body of
the UN, the World Meteorological Organization (WMO), with names being withdrawn
and replaced when a storm has caused particularly devastating effects. In 2005, for the
first time since 1953, when the names were attributed, all 21 names were used up.
4. See data from Munich Re’s Geo Risk Department, available at http://www.munichre.
com/en/ts/geo_risks/natcatservice/long-term_statistics_since_1950/default.aspx.
5. See on the intensification of storms in particular Emanuel, K. (2005), ‘Increasing
Destructiveness of Tropical Cyclones over the Past 30 Years’, Nature, Vol. 436, 4
August 2005, pp. 686–688 and Webster, P. et al. (2005) ‘Changes in Tropical Cyclone
Number, Duration, and Intensity in a Warming Environment’, in: Science, Vol. 309,
No. 5742, 16 September 2005, pp. 1844–1846 and Elsner, J., Kossin, J. and Jagger, T.
(2008), ‘The Increasing Intensity of the Strongest Tropical Cyclones’, Nature, Vol. 455,
4 September, pp. 92–95. For the increased likelihood of natural catastrophes in general
see van Aalst, M. (2006), ‘The Impacts of Climate Change on the Risk of Natural
Disasters’, Disasters, Vol. 30, No. 1, pp. 5−18.
6. The reports were released in 1990, 1995, 2001, and 2007 and can be found at the website
of the Intergovernmental Panel on Climate Change at http://www.ipcc.ch/. The latest,
4th, Report is summarized in IPCC; Climate Change 2007: Synthesis Report – An
Assessment of the Intergovernmental Panel on Climate Change, adopted at IPCC
Plenary XXVII, Valencia, Spain, 12–17 November 2007.
7. See with a focus on the economic consequences Stern, N. (2007), ‘The Economics of
Climate Change – The Stern Review’, Cambridge, UK: Cambridge University Press.
8. Virtually certain >99% extremely likely >95%; very likely >90%; likely >66%; more
likely than not > 50%; about as likely as not 33% to 66%; unlikely <33%; very unlikely
<10%; extremely unlikely <5%; exceptionally unlikely <1%. See the explanation as to
the overall treatment of uncertainty in IPCC, Climate Change 2007: Synthesis Report
– An Assessment of the Intergovernmental Panel on Climate Change, adopted at IPCC
Plenary XXVII, Valencia, Spain, 12–17 November 2007, p. 27.
9. Schneider, S. (2002), ‘Can We Estimate the Likelihood of Climatic Changes at 2100?’,
Climatic Change, Vol. 52, pp. 441–451 [443]; Schneider, S. and Kuntz-Duriseti, K.
(2002), ‘Uncertainty and Climate Change Policy’, in S. Schneider (eds), Climate Change
Policy: A Survey, Island Press, pp. 53–87 [67f.].
10. Nordhaus, W. (2007), The Challenge of Global Warming: Economic Models and
Environmental Policy, Yale University, 24 July 2007, pp. 103f. Study available at http://
nordhaus.econ.yale.edu/dice_mss_072407_all.pdf. See for a detailed analysis of the sci-
entific climate change uncertainties in particular van Asselt, M. and Rotmans, J. (2002),
‘Uncertainty in Integrated Assessment Modelling’, Climatic Change, Vol. 54, No. 1–2,
July, pp. 75–105.
11. Ibid, p. 80.
12. Ibid, p. 81.

13. Farber, D. (2003), Probabilities Behaving Badly: Complexity Theory and the
Environmental Uncertainty, University of California, Davis Law Review, Vol. 37,
pp. 145–173 [149]; An illustrative differentiation of the most relevant uncertainty
factors can be found in Wibisana, A. (2008), ‘Law and Economics Analysis of the
Precautionary Principle’, Doctoral Dissertation defended 25 April 2008, Maastricht
University, Universitaire Pers Maastricht, p. 360.
14. Faulk, R. and Gray, J. (2009), ‘A Lawyer’s Look at the Science of Global Climate
Change’, World Climate Change Report, The Bureau of National Affairs, 44 WCCR,
10 March 2009, pp. 2–17 [16].
15. See for example Harper, B. (2006), ‘Climate Change Litigation: The Federal Common
Law of Interstate Nuisance and Federalism Concerns’, Georgia Law Review, Vol. 40
(2005–2006), pp. 661–698 [696].
16. This international environmental law principle says in essence that the one responsible
for a pollution shall bear the costs, see Sands, P. (2003), Principles of International
Environmental Law, Cambridge University Press, 2nd edition, p. 279; Lefeber, R.
(1996), Transboundary Environmental Interference and the Origin of State Liability,
Kluwer Law International, pp. 2ff.
17. For instance, few of the victims affected by Hurricane Katrina possessed property
insurance and this option is even less available to most inhabitants of those regions
most vulnerable to the consequenecs of climate change in the developing world.
18. Spier, J. (2006), ‘Legal Aspects of Global Climate Change and Sustainable
Development’, Revista Para el Análisis del Derecho, 2, 2–24 [p. 5].
19. For a recent overview of such cases see Osofsky, H. and Burns, W. (eds) (2009),
Adjudicating Climate Change: State, National, and International Approaches, Cambridge
University Press. The cases analysed in the context of this research are presented below.
20. Commonwealth of Massachussetts et al. v. EPA, 415 F.3d 50, 05-1120, 127 S. Ct. 1438
(2007).
21. Ibid, pp. 18ff. of the judgment.
22. Ibid, pp. 21f. of the judgment.
23. State of California on behalf of the People of California v. General Motors Corporation,
Toyota Motor North America Inc., Ford Motor Company, Honda North America Inc.,
Chrysler Motors Corporation and Nissan North America Inc., Case No. C 06-05755,
United States District Court for the Northern District of California, 20 September
2006.
24. Kivalina v. BP PLC, BP American, BP Products North America, Chevron, Chevron
USA, ConocoPhillips, Royal Dutch Shell PLC and Shell Oil, Peabody Energy, AES,
American Electric Power, American Electric Power Services, DTE Energy, Duke
Energy, Dynegy Holdings, Edison International, MidAmerican Energy Holdings, Mirant
Corp., NRG Energy, Pinnacle West Capital, Reliant Energy, The Southern Co. and Xcel
Energy, Case No. 4:2008cv01138, filed at the U.S. District Court San Francisco on 26
February, 2008.
25. Comer v. Murphy Oil, Case No. 05-CV-436, U.S. Southern District Court of Mississippi,
2006 WL 1066645.
26. Korsinsky v. U.S. EPA, Case 1:05-cv-00859-NRB, U.S. District Court for the Southern
District of New York, 2005. Case on appeal to the 2nd U.S. Circuit Court of Appeals.
27. State of Connecticut et al. v. American Electric Power Company Inc. et al., Docket
Nos. 05-5104-cv, 05-5119-cv, United States Court of Appeals for the Second Circuit,
Decision of 21 September 2009. See also the ongoing Ph.D. research on the general fea-
sibility and desirability of climate change liability in particular with regard to injunctive
relief under international law Kosolapova, E., Liability for Climate Change, Centrum
voor Milieurecht, University of Amsterdam (research project running 2008–2012).
28. See the assessment by Smith, J. and Shearman, D. (2006), Climate Change Litigation
– Analysing the Law, Scientific Evidence & Impacts on the Environment, Health &
Property, Presidian Legal Publications, 2006, pp. 107ff.
29. A differentiation that is explained by Grossman, D. (2009), ‘Tort-Based Climate

Litigation’, in Osofsky, H. and Burns, W. (eds) (2009), Adjudicating Climate Change:

State, National, and International Approaches, Cambridge University Press, pp. 193–229
[215ff.].
30. See on this for example Strauss, A. (2009), ‘Climate Change Litigation: Opening
the Door to the International Court of Justice’, in Osofsky, H. and Burns, W.
(eds), Adjudicating Climate Change: State, National, and International Approaches,
Cambridge University Press, 2009, pp. 334–356.
31. There is extensive literature covering the development and current status of the
precautionary principle from different perspectives, see for example: Douma, W.
(2002), The Precautionary Principle – Its Application in International, European
and Dutch Law, Doctoral Thesis, University Groningen; Trouwborst, A. (2002),
Evolution and Status of the Precautionary Principle in International Law, Kluwer Law
International; Cameron, J., Jordan, A. and O’Riordan, T. (2001), Reinterpreting
the Precautionary Principle, Cameron May; Morris, J. (2000), Rethinking Risk and
the Precautionary Principle, Butterworth-Heinemann Publications; de Sadeleer, N.
(2002), Environmental Principles – from Political Slogans to Legal Rules, Oxford
University Press, pp. 9–149; Raffensperger, C. and Tickner, J. (eds) (1999), Protecting
Public Health and the Environment – Implementing the Precautionary Principle, Island
Press, 1999; Faure, M. and Vos, E. (eds) (2003), Juridische afbakening van het voor-
zorgsbeginsel: mogelijkheden en grenzen, Den Haag, Gezondheidsraad publicatie
No. A03/03; Harremoës, P. et al. (2001), Late Lessons from Early Warnings: The
Precautionary Principle 1896–2000, Environmental Issue Report No. 22, European
Environment Agency, Copenhagen 2001; Scott, J. (2004), ‘The Precautionary
Principle before the European Courts’, and Krämer, L. (2004), ‘The Genesis of EC
Environmental Principles’, in Macrory, R. (ed.), Principles of European Environmental
Law, Europa Law Publishing; Peeters, M. (2005), ‘The Concept of Precaution as
Shaped by the Courts’, in F. Stroink and E. van der Linden (eds), Judicial Lawmaking
and Administrative Law, Intersentia, pp. 57–80.
32. See for example Sunstein, C. (2005), Laws of Fear – Beyond the Precautionary Principle;
Cambridge University Press; Burnett, H.S. (2009), ‘Understanding the Precautionary
Principle and Its Threat to Human Welfare’, Social Philosophy and Policy, Vol. 26,
Issue 2, July pp. 378–410; Marchant, G. and Mossman, K. (2004), Arbitrary and
Capricious. The Precautionary Principle in the European Union Courts, AEI Press;
Miller, H. and Conko, G. (2001), ‘The Perils of Precaution – Why Regulators’
“Precautionary Principle” Is Doing More Harm Than Good’, in Policy Review, No.
107, June–July, pp. 25–39; Whelan, E. (2000), ‘Can Too Much Safety Be Hazardous?
A Critical Look at the “Precautionary Principle”’, American Council on Science and
Health, available at http://www.acsh.org/healthissues/newsID.236/healthissue_detail.
asp; Holm, S. & Harris, J. (1999), ‘Precautionary Principle Stifles Discovery’, Nature,
Vol. 400, No. 6743, 29 July, p. 398; Kossovsky, N. and Brandegee, B. (1999), ‘Public
Policy and the Precautionary Principle’, Chemtech, Vol. 29, May, pp. 47–48; Gray, J.
and Bewers, M. (1996), ‘Towards a Scientific Definition of the Precautionary Principle’,
Marine Pollution Bulletin, Vol. 32, Issue 11, November, pp. 768–771.
33. See in particular the case study on the viability of the precautionary principle
in climate change in Wibisana, A. (2008), Law and Economics Analysis of the
Precautionary Principle, Doctoral Dissertation defended 25 April 2008, Maastricht
University, Universitaire Pers Maastricht, 2008. See also Resnik, D. (2003), ‘Is the
Precautionary Principle Unscientific?’, Studies in History and Philosophy of Biological
and Biomedical Sciences, Vol. 34, pp. 329–344 [339f.]; Gollier, C. Jullien, B. and Treich,
N. (2000), ‘Scientific Progress and Irreversibility: An Economic Interpretation of the
“Precautionary Principle”’, Journal of Public Economics, Vol. 75, 2000, pp. 229–253.
Still, also this aspect of the precautionary principle is not undisputed, since others fear
that the principle may be interpreted wrongly and lead to a zero risk approach that may
stifle any economic progress, see the references in the previous footnote.
34. Brown, D. (2002), ‘The Precautionary Principle as a Guide to Environmental Impact

Analysis: Lessons Learned from global warming’, in Tickner, J. (ed.), Precaution,

Environmental Science, and Preventive Public Policy, Island Press, pp. 141–155 [142].
35. See for a detailed comparison of these practical inconsistencies the case studies on
the precautionary principle’s application in Zander, J. (2009), ‘Different Kinds of
Precaution. A Comparative Analysis of the Application of the Precautionary Principle
in Five Different Legal Orders’, Doctoral Dissertation defended 17 April 2009,
Maastricht University. See also Trudeau, H. (2003), ‘Du droit international au droit
interne: l’émergence du principe de precaution en droit de l’environnement’, Queen’s
Law Journal, pp. 455–527.
36. Belei, B. (2009), Le Droit Répressif des Organimes Génétiquement Modifiés en France
et au Togo, Doctoral Thesis defended at University Jean Moulin, Lyon, 6 January,
pp. 318, 334; Pardy, B. (2002), ‘Applying the Precautionary Principle to Private
Actors: Is It Relevant to Civil and Criminal Liability?’, in Les Cahiers de Droit, Vol.
43, pp. 63–78; Seillan, H. (2003), ‘La precaution et la responsabilité civile et pénale des
entrepreneurs’, REE, No. 11, December 2003, pp. 28–33. Rouhette, T. and Derycke,
C. (2004), ‘The Precautionary Principle and Product Liability in France’, European
Product Liability Review, Issue 17, December 2004, pp. 22ff.
37. See for example the dossier in ‘Rendre opérationnel le principe de précaution dans
l’entreprise’, in Revue de la Société de l’Électricité, de l’Électronique et des Technologies
de l’Information et de la Communication, REE, No. 11, December 2003, pp. 19–53.
38. Rauch, E. (2007), ‘Effects of Climate Change on the Insurance Industry’, SELJ, Vol.
26A and SJIL, Vol. 43A, No. 1, June 2007, pp. 239–250 [248].
39. See Arcuri, A. (2006), ‘The Case for a Procedural Version of the Precautionary
Principle Erring on the Side of Environmental Preservation’, in: Boyer, M. Hiriart,
Y. and Martimort, D. (eds), Frontiers in the Economics of Environmental Regulation
and Liability, Ashgate Publishing, pp. 19–63 and Scott, J. (2004), ‘The Precautionary
Principle before the European Courts’, in Macrory, R. (ed.), Principles of European
Environmental Law, Europa Law Publishing, pp. 50–72. See also Everson, M. and Vos,
E. (2009), ‘The Scientification of Politics and the Politicisation of Science’, in Vos, E.
and Everson, M. (eds.), Uncertain Risks Regulated, Routledge-Cavendish, pp. 1–18 and
Fisher, E. (2009), ‘Opening Pandora’s Box: Contextualising the Precautionary Principle
in the European Union’, in Vos, E. and Everson, M. (eds.), Uncertain Risks Regulated,
Routledge-Cavendish, pp. 21–46 [23ff.].
40. Arcuri, A. (2006) above, note 39.
41. This recognition takes place to different extents and with emphasis on different aspects,
exemplary for some jurisdictions are the following authors: Pardy, B. (2002), above,
note 36 [for Canadian law]; Thibierge, C. (1999), ‘Libres propos sur l’évolution du droit
de la responsabilité. Vers un élargissement de la fonction de la responsabilité civile?’, in
RTD, pp. 561ff. and Tapinos, D. (2008), Prévention, précaution et responsabilité civile
– Risque avéré, risque suspecté et transformation du paradigme de la responsabilté civile
L’Harmattan, 2008, pp. 310f; and Boutonnet, M. (2005), Le principe de précaution en
droit de la responsabilité civile, L.G.D.J, collection bibliothèque de droit privé [for French
law]; Braams, W. (2002), Dank u, wij zijn al voorzien! De plaats van het voorzorgsbegin-
sel in het milieuaansprakelijkheidsrecht, AV&S 2002/6, pp. 171–177 and Franken, A.
(2008), Voorzorg: beginsel in het aansprakelijkheidsrecht?, in Nederlands Juristenblad
(NJB) 2008/33 and Spier, J. (2008), Het WRR-rapport Onzekere veiligheid: een welkome
stap voorwaarts, in NJB (Nederlands Juristenblad), jaargang 83, 14 November 2008, pp.
2521–2525 [for Dutch law]; Collins, L. (2005), ‘Strange Bedfellows? The Precautionary
Principle and Toxic Tort: A Tort Paradigm for the 21st Century’, in Environmental
Law Reporter, Vol. 35, June 2005, pp. 10361–10372 and Garrett, N. (2005), ‘Life Is the
Risk We Cannot Refuse: A Precautionary Approach to Toxic Risks We Can’, Georgia
International Environmental Law Review, Vol. 17, 2005, pp. 517–562 (for Common
Law); for a rather critical view on such an application see Bergkamp, L. (2001),
‘The Precautionary Principle’s Relevance to Liability Law’, Tijdschrift voor milieu
aansprakelijkheit (Environmental Liability Law Quarterly), Vol. 15, No. 4, pp. 91–95

[91]; Cousy, H. (2006), ‘Risks and Uncertainties in the Law of Tort’, in Koziol, H. and
Steininger, B. (eds), European Tort Law 2006, Tort and Insurance Law Yearbook, pp.
2–26 [3]; Craik, A., Siebrasse, N. and Culver, K. (2007), ‘Genetically Modified Crops
and Nuisance: Exploring the Role of Precaution, Private Law in Bulletin of Science,
Technology & Society, Vol. 27, pp. 202–214, June.
42. de Sadeleer, N. (2002), Environmental Principles, Oxford University Press, p. 217;
Kourilsky, P. and Viney, G. (2000), Le Principe de Précaution, Rapport au Premier
Ministre, pp. 181–185.
43. As of today, proposed strategies for companies to evade liability include proactive
research, monitoring and reporting, engagement in the quest for alternative technolo-
gies and development of a climate change action strategy, see Healy, K. and Tapick,
J. (2004), ‘Climate Change: It’s Not Just a Policy Issue for Corporate Counsel – It’s a
Legal Problem’, Columbia Journal of Environmental Law, Vol. 29, pp. 89–118 [101ff.].
44. It has been asserted with reference to internal documents that became public that
companies have funded one-sidedly scientific research on climate change with the goal
of suppressing evidence of the harmful effects in order to delay governmental regula-
tion obliging them to reduce emissions, similar to the conduct undertaken by tobacco
producers, see Union of Concerned Scientists, Smoke, Mirrors & Hot Air – How
ExxonMobil Uses Big Tobacco’s Tactics to Manufacture Uncertainty on Climate
Science, 2007; Report available at www.ucsusa.org/assets/documents/global. . ./exxon_
report.pdf; Müller, U. and Plehwe, D. (2008), Nicht öffentlichkeitsfähig – Wissenschaft
als Lobby-Instrument, in Mythos ‘Wissensgesellschaft – Verklärung oder Aufklärung?’
Forum Wissenschaft 2/2008, 15 May 2008. Others argue the reverse in that many issues
that raised doubts were also not published because they did not serve the agenda of the
climate change lobby simply because the financial interests of numerous climate sci-
entists, see for example Lomborg, B. (2007), Cool It: The Skeptical Environmentalist’s
Guide to Global Warming, Knopf Doubleday Publishing, 2007. Or over, the leaks
of controversial e-mails of climate scientists at the end of 2009, publicly known as
an alleged ‘climategate’, and the discovery of the use of questionable data regarding
Himalayan glacier melting in the IPCC 2007 report at the beginning of 2010 lead to
a major trust crisis as regards the findings of climate science and the extent of climate
change. Yet, these are incidents that do not discharge the existence of climate change,
but that – in line with the reasoning of the chapter – underline the existence of major
uncertainties.
45. An overview of the growing evidence of the anthropogenic nature of climate change
over the past 150 years can be found for example in Christianson, G. (1999), Greenhouse
– the 200-Year Story of Global Warming, Constable and Company, and Weart, S.
(2008), The Discovery of Global Warming, Revised and Expanded Edition, Harvard
University Press.
46. The curve was established by the oceanographer and climatologist Charles Keeling
and is still being used today, see the latest data from Scripps CO2 Program, Scripps
Institution of Oceanography, May 2009, http://scrippsco2.ucsd.edu/graphics_gallery/
mauna_loa_record/mauna_loa_record.html.
47. Based on the MBH98 reconstruction by Mann, M., R. Bradley and M. Hughes (1998),
‘Global-Scale Temperature Patterns and Climate Forcing over the Past Six Centuries’,
Nature, Vol. 392, 23 April, pp. 779–787 and Variations of the Earth’s surface tempera-
ture: years 1000 to 2100, in IPCC 3rd Assesment Report 2001, Synthesis Report. This
Hockeystick Curve is still considered to reflect the calculated temperature rise due to
CO2 over several centuries correctly, despite disputes concerning its calculation methods.
48. As done by Goklany, I. (2000), ‘Applying the Precautionary Principle in a Broader
Context’, in Morris, Julian (ed.), Rethinking Risk and the Precautionary Principle,
Butterworth-Heinemann, pp. 189–228 [221–222].
49. See on this Wibisana, A. (2008), Law and Economics Analysis of the Precautionary
Principle, Doctoral Dissertation defended 25 April 2008, Maastricht University,
Universitaire Pers Maastricht, pp. 378f.

50. Dasgupta, P. (2007), ‘A Challenge to Kyoto – Standard Cost-Benefit Analysis May

Not Apply to the Economics of Climate Change’, Nature, Vol. 449, 13 September 2007;
Ackerman, F. and Heinzerling, L. (2004), Priceless: On Knowing the Price of Everything
and the Value of Nothing, New Press, 2004.
51. Interview of the author with Stephen Schneider, 23 February 2007, Stanford University.
Schneider is a climatologist who has researched and published extensively for many
years in the field of climate change and contributes to the IPCC Reports.
52. Cullet, P. (2008), ‘The Gobal Warming Regime after 2012: Towards a New Focus’,
Economic & Political Weekly, 12 July, pp. 109–117 [114ff.].
53. Peel, J. (2005), The Precautionary Principle in Practice – Environmental Decision-
Making and Scientific Uncertainty, The Federation Press, p. 153.
54. See on the further procedural requirements Arcuri, A. (2006), above, note 39.
55. Steele, K. (2006), ‘The Precautionary Principle: A New Approach to Public Decision-
Making?’, in Law, Probability and Risk, Vol. 5, No. 1, March, pp. 19−31 [19, 30].
56. de Sadeleer, N. (2002), Environmental Principles, Oxford University Press, p. 213.
57. Steele, K. (2006), ‘The Precautionary Principle: A New Approach to Public Decision-
Making?’, Law, Probability and Risk, Vol. 5, No. 1, March 2006, pp. 19−31 [20, 25ff.,
30].
58. See for example the Dutch case Janssen v. Nefabas, Judgment of the Hoge Raad, 6 April
1990, NJ 1990, 573. In that case, the court ruled that a stricter standard of care and a
partial reversal of the burden of proof on behalf of the plaintiff in proving fault was jus-
tified, facilitating and thus paving the way for subsequent asbestos claims. The fact that
despite absence of regulation an employer was placed ex-post under the obligation to
investigate potential dangers for his employees even beyond the information available
in the Netherlands is explicitly regarded as an emanation of the precautionary principle
in de Sadeleer, N. (2002), Environmental Principles, Oxford University Press, pp. 212f,
in particular footnote 477.
59. See the twelve late lessons case-studies in Harremoës, P. et al. (2001), ‘Late Lessons
from Early Warnings: The Precautionary Principle 1896–2000’, Environmental Issue
Report No. 22, European Environment Agency, Copenhagen 2001.
60. See on the unfounded fear that the precautionary principle may lead to an exaggerated
increase in liability claims, Garrett, N. (2005), ‘Life is the Risk We Cannot Refuse: A
Precautionary Approach to Toxic Risks We Can’, Georgia International Environmental
Law Review, Vol. 17, 2005, pp. 517–562 [561f.]. The author therein convincingly argues
that the precautionary principle instead is justified particularly because victims that
have to struggle with uncertainties of the type presented in Toxic Torts suffer from
under-deterrence and insufficient justice.
61. Radé, C. (2000), Le principe de precaution, une nouvelle éthique de la responsabilité?,
in ‘Le principe de precaution’, in Revue Juridique de l’Environnement, numéro special,
pp. 75–89 [75].
62. Boutonnet, M. (2005), Le principe de précaution en droit de la responsabilité civile,
L.G.D.J., collection bibliothèque de droit privé, 2005, p. 438. de Sadeleer, N. (2002),
Environmental Principles, Oxford University Press, p. 212. See also Baudouin, J.-L.
and Deslauriers, P. (2003) La responsabilité civile 6th edition 2003, Éditions Yvon
Blais at paragraph 152; Khoury, L. and Smyth, S. (2007), ‘Reasonable Foreseeability
and Liability in Relation to Genetically Modified Organisms’, in Bulletin of Science,
Technology & Society, Vol. 27, No. 3, June, pp. 215–232 [228].
63. Boutonnet, M. (2005), above, note 62.
64. Belei, B. (2009), above, note 36, pp. 316, 325.
65. This notion has been coined by Beck, U. (1986), Risikogesellschaft: Auf dem Weg in eine
andere Moderne, Suhrkamp, and Beck, U. (2007), Weltrisikogesellschaft, Suhrkamp,
2007. In his latter work, the authors considers ‘manufactured risks’ as particularly
enlarged in the global context in consideration of climate change, where surrounding
scientific uncertainties expand in a legal sense also.
66. de Sadeleer, N. (2002), above, note 47, pp. 211f.

67. Boy, L. (1999), ‘La nature juridique du principe de precaution’, in Natures, Sciences,
Sociétés, Vol. 7, No. 3, July–September, pp. 5–11.
68. See also the conclusions and overview in Van Boom, W. and Pinna, A. (2008), ‘Le Droit
De La Responsabilite Civile De Demain En Europe: Questions Choisies’, in Winiger,
B. (ed.), La responsabilité civile européenne de demain – Projets de révision nationaux
et principes européens, Colloque international à l’Université de Genève, Schulthess,
pp. 261–277 [275]. See Lascoumes, P. (1997), La précaution, un nouveau standard de
jugement, in: Esprit, November, pp. 129–140; Baghestani-Perrey, L. (1999), Le principe
de précaution: nouveau principe fondamental régissant les rapport entre le droit et la
science, Dalloz, p. 461.
69. Tapinos, D. (2008), Prévention, précaution et responsabilité civile – Risque avéré,
risque suspecté et transformation du paradigme de la responsabilité civile L’Harmattan,
p. 599.
70. See de Sadeleer, N. (2002), above, note 42, pp. 225, 369. Stressing that the polluter-
pays-principle would establish responsibility for GHG emissions and thereby facili-
tating the finding of causation: Baer, P. (2006), ‘Adaptation: Who Pays Whom?’,
in: Adger, W. (ed.), Fairness in Adaptation to Climate Change, MIT Press, 2006,
pp. 131–154 [131f]. Cullet, P. (2007), ‘Liability and Redress for Human-Induced Global
Warming: Towards an International Regime’, in Stanford Environmental Law Journal
& Stanford Journal of International Law, Symposium: Climate Change Liability and the
Allocation of Risk, Vol. 26A/ 43A, No. 1, June 2007, pp. 99–121 [119f.]. See also the
thorough analysis of the contribution of the precautionary principle and the prevention
principle to liability law in particular in Tapinos, D. (2008), above, note 69.
71. See Lascoumes, P. (1997), above, note 68; Baghestani-Perrey, L. (1999), above, note 68.
72. Burns, W. and Osofsky, H. (2009), ‘Overview: The Exigencies That Drive Potential
Causes of Action for Climate Change’, in Osofsky, H. and Burns, W. (eds.), Adjudicating
Climate Change: State, National, and International Approaches, Cambridge University
Press, p. 1.
73. Quote from a US lawyer on the prospect of climate change litigation, see Grossman,
D. (2003), ‘Warming up to a Not-So-Radical Idea: Tort-Based Climate Change
Litigation’, Columbia Journal of Environmental Law, Vol. 28, 2003, pp. 1–61 [6].
74. See for example the analysis of the general feasibility and value of such funds in van
Langendonck, J. (2007), ‘International Social Insurance for Natural Disasters’, in van
Boom, W. and Faure, M. (eds.), Shifts in Compensation between Private and Public
Systems, Springer, pp. 181–198.
75. See for a discussion in the broader context: Richardson, B. (2002), ‘Mandating
Environmental Liability Insurance’, in Duke Environmental Law & Policy Forum,
Vol. 12, No. 2, 2002, pp. 293–329; Sugarman, S. (2006), Roles of Government in
Compensating Disaster Victims, Berkeley Electronic Press, available at www.bepress.
com/ils/iss10/1. More specifically on climate change see Benoist, G. (2007), ‘Climate
Change Impacts on Personal Insurance’, in The Geneva Papers, Vol. 32, 2007,
pp. 16–21. Hawker, M. (2007), Climate Change and the Global Insurance Industry, ibid,
pp. 22–28. Also Faure and Skogh discuss the limits to liability and the broader insur-
ance possibilities in the context of international risk sharing in cases such as climate
change in Faure, M. and Skogh, G. (2003), The Economic Analysis of Environmental
Policy and Law – an Introduction, Edward Elgar, Cheltenham, UK and Northampton,
MA, USA, pp. 262–286.
76. Spier, J. (2008), ‘Het WRR-rapport Onzekere veiligheid: een welkome stap voor-
waarts’, in NJB (Nederlands Juristenblad), jaargang 83, 14 November 2008, pp. 2521–
2525 [2523].
77. See on this also the conclusions on the role of the precautionary principle in civil liabil-
ity in de Sadeleer, N. (2002), above, note 42, pp. 221f.
78. See on this also the quote in COMEST – World Commission on the Ethics of Scientific
Knowledge and Technology (2005), The Precautionary Principle, United Nations
Educational, Scientific and Cultural Organization (UNESCO), March 2005, Paris,

p. 21: ‘Arguably, a strength of the PP being a principle is thus its open-endedness and
flexibility, which creates a possibility and an incentive for social learning.’
79. As can be deduced from Tinker, C. (1996), State Responsibility and the Precautionary
Principle’, in Freestone, D. and Hey, E. (eds), The Precautionary Principle in
International Law, Kluwer Law International, pp. 53–72 [53].
80. Leone, J. (1999), Les O.G.M. à l’épreuve du principe de precaution in Petites Affiches,
No. 164, pp. 12–16; Trudeau, H. (2003), ‘Du droit international au droit interne:
L’émergence du principe de précaution en droit de l’environnement’, Queen’s Law
Journal, Vol. 28, pp. 455–527.
81. Kourilsky, P. and Viney, G. (2000) Le Principe de Précaution, Rapport au Premier
Ministre, La Documentation Française, Editions Odile Jacob, 2000, p. 141.
82. See the quote taken from Pardy, B. (2002), above, note 2.
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The Netherlands.

3. High noon: prevention of climate
damage as the primary goal of
liability?
Jaap Spier1
Climate change has become a hot topic – for lawyers, too, and increas-
ingly so in the legal arena. In a very recent speech, President Nasheed of
the Maldives put it this way: we have a common enemy.2 He was generous
enough not to mention which countries he meant, but the point politely
left in abeyance – is obvious nonetheless: climate change is a problem stem-
ming from our part of the globe. The speaker was right: we are the enemy.
The worrying facts are well known. For our purposes, it is probably
sufficient to underscore the extremely serious threat of climate change for
the already most vulnerable countries.3 They are going to pay the price
for our recklessness, despite the fact that they did not cause the problem.
The emissions of most developing countries are still far below those of the
developed countries – that even goes for China, if counted per capita.4
The prospects are increasingly gloomy. Copenhagen did not bring
the bold and immediate actions that we desperately need.5 Scott Barrett
rightly put it as follows: ‘To many, the Copenhagen Accord will seem a
setback; but actually it is a continuation of a long history of failure.’6 The
major obstacles probably are a number of conservative states in the US.
According to the prevailing view among experts, climate change is a
violation of human rights.7 If that holds true – I think it does – it undoubt-
edly is the most serious violation ever.8 It is intriguing to note that we are
so very captivated by all kinds of relatively minor violations. And, if I may
say so, it is even more striking that we tend to focus in this respect on coun-
tries in Africa, Asia and the Middle East, despite the fact that not they but
the US and – albeit to a lesser extent – Europe are the greatest violators
of human rights ever.9 We know this, but few people are prepared to talk
openly about it. If that point were to be made more often, it might well
have an impact on the discussion.
Until a couple of years ago, I took the view that tort law might serve as
a crowbar to stimulate governments and enterprises to take a responsible
47

stance towards climate change. The assumption was that the fear of being
held liable in the future would create a change of mind-set. So far, this
has not worked. That may be due to the fact that those involved assess
as remote the chances of being held liable. It may also be due to the fact
that they care little about the future, or, more likely, that their focus – and
personal interests – are confined to the years or months to come.
I still believe that the threat of litigation – the chance of being ‘sued to
hell’ – may achieve positive results in the mid-long term. Seen from that
angle, it might be useful to paint a gloomy picture of a threatening litiga-
tion circus.
Since I arrived at the conclusions described above, the financial crisis
has set in. And since then, I have come to my senses. We have learnt that
a – comparatively speaking – series of minor events can greatly affect the
world economy for years. As so often, the people around the globe who
are already most vulnerable are going to suffer most.
This must affect our thinking about the role the law could play in the
realm of climate change. It shows, I think, that a cascade of claims against
(major) enterprises and governments cannot do any good. The choice is
between equivalent disasters: either the claims will be rejected, or they will
not. In the first case, that would be a major setback. The message would
be: you don’t have to be afraid of litigation. Alternatively, if courts were
to give verdicts for the plaintiffs, the message would be right, but the con-
sequences would not. This would only bring on further economic disaster,
which, in turn, would make it even more difficult to spend money on what
is urgently needed, i.e. significant reductions of CO2 emissions.
Claims for damages are not only a mistake seen from an economic angle.
Judges will realize the tremendously negative effects. This means that the
chances of victory on the plaintiff’s side are remote. Please don’t respond
by saying that we are ‘only’ talking about judgments of a few courts
against a few enterprises. That may or may not hold true in the very short
term. If it would turn out that some courts are willing to hold enterprises
liable, that will result in litigation worldwide. The inevitable effect is going
to be a truly crushing liability.
I am not suggesting at all that the law cannot, or should not, play any
role. It can, and it must. But we have to be realistic and have to think
about the best and most promising legal avenues. There are probably
many. I’ll focus on what I perceive as the most important one.
According to the prevailing view, we are running out of time. It is high
noon.10 Departing from the idea that something must happen right now,
our focus ought to be legal avenues that could have an effect in the very
near future. Putting it differently, our goal must be prevention. Seen from
that angle, injunctive relief springs to mind. If courts were willing to urge

Prevention of climate damage as the primary goal of liability? 49
(major) enterprises and (major) states to reduce CO2 emissions to the

bare minimum, that would be a major victory. Other courts could then be
expected to step in and show similar courage.
Admittedly, litigation for injunctive relief is by no means a walk-over.
The defendants will go out of their way to argue that, and why injunctive
relief is not an option. It is true that there are many legal hurdles to be
taken. One of these is that the court should be able to phrase its injunction
with sufficient precision. That requires in-depth knowledge and under-
standing of technical (and financial?) possibilities for cutting emissions.
This is certainly not the only hurdle. Research in this field is probably
necessary. We must realize the urgency of the disastrous consequences
climate change is going to bring. Considered honestly and seriously, this
means that we cannot lose time and that the research needed will have to
be conducted in the very short term.
Back to injunctions: much would already be gained if the (potential)
defendants could be brought to understand that cutting emissions is in
their best interests in the longer term and that it does not subject them to
unreasonable burdens as long as their competitors have to cut their emis-
sions too: the evergreen of the ‘level playing field’. This is not so much a
legal issue. We (may) need experts in the field of communication. But not
only that: if injunctive relief were to be granted by courts, that relief should
apply to enterprises worldwide, thus creating the necessary level playing
field.11
I already mentioned that our focus ought to be prevention. Even if
our actions were to have the desired effect, past emissions are going to
cause harm to a very substantial extent, particularly in the less wealthy
countries in Africa and Asia. Part of the damage can still be avoided, but
only at a substantial cost. What about these so called adaptation costs?
Quite frankly, I don’t know. Seen from the angle of fairness, the answer is
obvious: Europe, North America and Japan should bear (the greater part
of) those costs. It is not so difficult to find a legal basis for an obligation to
do so. But firstly, this may have an extremely negative effect on the world
economy, which would also affect the people already most vulnerable,
albeit in a different way. Secondly and more importantly: seen from a
legal perspective, it is not so very easy to explain why claims for damages
should be dismissed, while adaptation costs could be recovered. The idea
that the latter are not (so much) claims for damages – but measures aimed
at prevention, may not be persuasive enough for many judges. The recov-
erability of adaptation costs, too, is an area that will need to be explored
in detail.
To the best of my knowledge, quite a lot of the research in this field is
about re-inventing the wheel, despite the fact that there is a massive body

of doctrine already and, though to a far lesser extent, even case law. Given
the seriousness and the urgency of our topic, we should set truly ambitious
goals. And we need to be creative. We ought to break new ground and – to
the extent possible – to build new and promising alliances with prominent
lawyers who are willing to act as activists. That will not be easy, as I have
learnt over the past years.
To be somewhat more precise:
1. We should tackle climate change from as many angles as possible. If
the law is going to play a role, it must be a joint effort of lawyers in many
fields, such as international law, human rights, environmental law, private
law and criminal law. If we – and preferably individual academics too –
cannot or do not want to cross those bridges, our efforts are doomed to
be of little avail.
2. We must think about the best legal means of getting things moving.
I strongly believe that injunctive relief is one of the most promising ways
ahead. But criminal law and the possibilities of prosecuting leading people
in enterprises and governments has to be explored, from the angle of inter-
national law and human rights also. If not yet possible, this realm of the
law will have to change.
3. We have to consider who would be the best plaintiffs and who the
most appropriate defendants. We need to identify the most ‘suitable’
courts, i.e. courts with innovative, brave judges. There is no reason to
think only of the traditional ‘parties’. Insurers and supervisors may come
into the picture, maybe not (primarily) as defendants, but as allies to
spread the gospel. If they were to fail in that respect they would not be
living up to their fiduciary duties.
4. The law has developed over the centuries, more often than not, hap-
hazardly. Thus we have created a system that can accommodate ‘normal’
cases in a reasonable – though often not ideal – way. Lawyers tend to
ignore the inherent tensions. Why does the law care for x and not for y?
Why is there a legal basis for life-sentences for murderers and – arguably –
not for people who are wantonly putting at risk the lives and well-being of
over a billion people, to give just one example. We ought to look at the law
from such a perspective. Thinking along such lines we may hope to find the
perfect weapon to fight climate change.
We cannot afford to be narrow-minded. To give one example: many
leading lawyers apparently take the view that the Inuit case offers a good
perspective for succes in the Inter-American Court of Human Rights.
Highly sympathetic as we may find that case, it involves just a few
hundred or a few thousand people, and there is no question that the lives
of these people are in actual jeopardy. Seen from that angle, I seriously
doubt whether this case provides us with the best set of plaintiffs. Can we

Prevention of climate damage as the primary goal of liability? 51
reasonably expect courts to take (very) far-reaching decisions to accom-

modate such a small group? Strangely enough, hardly anybody seems to
be concerned with this question.
There unfortunately is no time left for extensive research, let alone on
relatively minor issues. Very much must be done in the very short term.
Given my discouraging experiences over the past years, I am pessimistic.
But our topic deserves the utmost attention and our very best efforts.
Climate change is not the ideal setting for ‘l’art pour l’art’.
NOTES
1. Honorary professor at the University Maastricht; Advocate-General to the Supreme

Court of the Netherlands. This contribution is written in the former capacity.
2. www.climatevulnerableforum.gov.mv/?p=94.
3. See for more information the subsequent – ever more alarming – IPCC reports and for
a concise summary of the state of affairs Giedrė Kaminskaitė-Salters, Climate change
litigation under English law (thesis Maastricht 2010) pp. 16ff.
4. After all, China has approximately 1.3 billion inhabitants.
5. An update of scientific findings stated that if society wants to stabilise greenhouse
gas concentrations at the level of global warming between 2.0 and 2.4 degrees
Celsius (already an increase of the previous upper level of 2 degrees), ‘then global
emissions should, theoretically, be reduced by 60–80% immediately, the actual amount
being dependent upon the amount that will be taken up by oceans and land’, Katherine
Richardson a.o., Synthesis report, Climate Change, Global Risks, Challenges and
Decisions, Copenhagen 2009, http://climatecongress.ku.dk/pdf/synthesisreport,
accessed 28 December 2009, p. 18.
6. Copenhagen: Yet Another Giant Beginning with an Uncertain End, Yale Global
online, http://yaleglobal.yale.edu/print/6109.
7. There is a massive body of doctrine on this point, too much to quote.
8. This statement is based on the overall human misery climate change is going to bring
about. This greatly exceeds any other series of violations so far. I am neither saying nor
suggesting at all that the suffering of any individual will be worse than the totally unac-
ceptable violations of human rights in other areas, such as torture.
9. This is, once again, based on the idea that unnecessary CO2 emissions amount to a
violation of human rights.
10. I am aware of the fact that opinions are divided on the question how much time we
still have. But according to the prevailing view (mentioned above), we don’t have much
time left, though it is not entirely clear how much. The urgency gets further emphasis
if we bear in mind that it will take at least many years before the necessary steps will
actually be taken, given that these require a series of time-consuming activities such as
manufacturing solar energy equipment and the like.
11. I realize, of course, that we may take it for granted that not all courts will go along these
lines. We have to think about the most compelling arguments to encourage them to do
so. One could imagine that products from countries where courts are reluctant in this
field would be ‘taxed’ in countries with more activist judges.

PART III
European perspective

4. Liability of Member States and
the EU in view of the international
climate change framework: between
solidarity and responsibility1
Javier de Cendra de Larragán
1. INTRODUCTION
The notion of ‘burden sharing’ (more recently referred to as ‘effort

sharing’2) has been at the core of EU climate change (mitigation) policy
since its inception.3 This notion expresses the idea that both the EU and
its Member States have a certain unity of purpose in combating climate
change and have thus decided to partake in the efforts which are necessary
to mitigate GHG emissions. The notion is also premised on the belief that
it is more cost-effective to act together than independently, and that it is
to the advantage of the EU to speak with one voice at international level.
The European Community (EC) followed this idea when negotiating the
Kyoto Protocol, by adopting a single mitigation target that would be later
redistributed among its Member States.4 With the advantages derived
from sharing the burden of mitigation comes also the responsibility to
ensure compliance with legal obligations derived from it under interna-
tional and EC law.
Moreover, the notion of burden sharing is not a static one, as will be
shown in this chapter; on the contrary, it has evolved in order to reflect the
developments that have taken place in climate change science and climate
change policy since the adoption of the United Nations Framework
Convention on Climate Change (UNFCCC) and the Kyoto Protocol. The
negotiations relating to a second commitment period under the Kyoto
Protocol after 2012, which started in 2005 in COP-11 in Montreal,5 and
which took further shape in COP-13 through the Bali Action Plan and
the creation of the Ad Hoc Working Group on Long-term Cooperative
Action (AWG-LCA),6 show that any future international climate change
regime needs to include at equal level mitigation, adaptation, financial
55

transfers and transfers of technology, if it is to stand a chance of being rati-

fied by a majority of parties, to be implemented and to be complied with.7
In light of the foregoing, this chapter has a double objective. The first is
to explore the responsibility of Member States and of the EU in relation to
the mitigation commitments adopted in the Kyoto Protocol. The second
objective is to explore the evolution of the notion of burden sharing in
EU climate change law and policy, in order to better reflect the increased
understanding of climate change and climate change policy, to discuss
legal consequences of such evolution and to suggest further expansions.
The analysis will be made from the perspective of two key principles of EU
law: the principles of solidarity and of loyal cooperation.
The chapter is organized as follows: section 2 discusses the principles of
solidarity and loyal cooperation, in order to set the scene for the analysis;
section 3 will explore the responsibilities of the EU and its Member States
for burden sharing in the context of the Kyoto Protocol from the perspec-
tive of the principle of loyal cooperation. Section 4 will explore the present
burden sharing agreement adopted by the EU in order to redistribute its
goal of reducing its emissions by 20 per cent in 2020 in comparison with
1990 levels, also from the perspective of the principle of loyal cooperation.
Section 5 presents some conclusions from the foregoing analysis. Section
6 will explore possible extensions to the notion of burden sharing in order
to reflect the evolution that has taken place in international climate change
law since the negotiations of the Kyoto Protocol. In doing so, it will reflect
upon the relevance of the principles of solidarity and loyal cooperation
therein. Section 7 will provide some concluding remarks.
2. THE PRINCIPLES OF SOLIDARITY AND LOYAL

COOPERATION
2.1 The Principle of Solidarity
The principle of solidarity has been defined as the firm and perseverant
determination of contributing to the common good. In the context of
international law, MacDonald considers that solidarity ‘identifies as the
goal of joint and separate state action an outcome that benefits all states’.8
Friedmann defines the principle of cooperation as ‘the organization and
implementation of joint endeavours on a bi-national, regional, or multina-
tional level directed to the human welfare’.9 What the principle of solidar-
ity seeks to convey is that the common good cannot be achieved without
the committed and perseverant participation of all the members of a
community. Hence, the principle of solidarity leads to the responsibility of

Liability of Member States and the EU 57
each state for the well-being of other states, which includes their sustain-
able development. Solidarity hence goes beyond justice, because it does
not stop at the level of distributing burdens in accordance with objective
criteria, but transcends it in order to request that all necessary efforts are
made to ensure the achievement of the common good. Solidarity is at odds
with the fundamental assumption that holds in international relations
theory that states act at the international level on the basis of selfishness
and self-interest.10
The principle of solidarity is a fundamental principle of EC law based
on sharing both the advantages, e.g. prosperity, and the burdens equally
and justly among its Member States.11 Solidarity is mentioned several
times in the EU Treaties, and the Lisbon Treaty places it at its apex.12
Article 2 TEU declares that the EU is based, e.g., upon the value of
solidarity. Article 4 TEU declares that the EU will promote, e.g., social
justice and protection and solidarity between generations. It shall also
promote economic, social and territorial cohesion, and solidarity among
Member States. This commitment to solidarity extends to its relations
with the wider world, where the EU ‘shall contribute to peace, security,
the sustainable development of the Earth, solidarity and mutual respect
among peoples, free and fair trade, eradication of poverty and the protec-
tion of human rights’. This commitment is expanded in Article 21 TEU,
which declares that: ‘The Union’s action on the international scene shall
be guided by the principles which have inspired its own creation, develop-
ment and enlargement [. . .] the principles of equality and solidarity.’
So the EU is committed by law to promote solidarity not only among its
Member States but also in its relations with the wider world. Although the
principle of solidarity is not defined in EU law, it has a role in important
areas aside from climate change.13 The principle of solidarity is constantly
renovated and given impulse by the EC through new legislation.14 In rela-
tion to external EC policies, the ECJ held in the ERTA case,15 that ‘dealing
with an objective relevant to a common policy, the Member States were
bound to act in solidarity to defend the interests of the Community’.16
However, the principle of solidarity at member state level has not been
so far the basis for much judicial activism,17 and therefore its value as a
general principle of EC law remains somewhat ambiguous. It has so far
served to reinforce important legal concepts, such as the Community
of law,18 the principle of loyal cooperation,19 the diverse mechanisms of
redistribution, European social law and certain aspects of the fundamen-
tal freedoms.20 In the context of energy policy, the meaning of solidarity
has been traditionally restricted to the mechanisms to ensure security of
energy supply in the event of an energy crisis. These include measures to
assist Member States that are very dependent on one gas supplier, or those

to ensure the maintenance of oil stocks mechanisms, and also those geared
to the increase and maintenance of electricity interconnections.21
2.2 The Principle of Loyal Cooperation
The principle of loyal cooperation is laid down in Article 10 EC Treaty,

which has been derogated by the Treaty of Lisbon and now appears, with
a slightly different wording, in Article 4.3 TEU. According to Article 10
EC:
Member States shall take all appropriate measures, whether general or particu-
lar, to ensure fulfilment of the obligations arising out of this Treaty or resulting
from action taken by the institutions of the Community. They shall facilitate
the achievement of the Community’s tasks. They shall abstain from any
measure which could jeopardise the attainment of the objectives of this Treaty.
According to Article 4.3 TEU as amended by the Lisbon Treaty:22
Pursuant to the principle of sincere cooperation, the Union and the Member
States shall, in full mutual respect, assist each other in carrying out tasks which
flow from the Treaties. The Member States shall take any appropriate measure,
general or particular, to ensure fulfilment of the obligations arising out of the
Treaties or resulting from the acts of the institutions of the Union. The Member
States shall facilitate the achievement of the Union’s tasks and refrain from any
measure which could jeopardise the attainment of the Union’s objectives.
The principle of loyal cooperation is probably the most important and

the most dynamic single principle of EC law, for at least three reasons:23
first, because the Community largely acts through national authorities;
second, because the EC Treaty says very little about the relationship
between Community law and national law, therefore many ‘constitu-
tional’ principles have been derived from it by the ECJ;24 third, because it
is very comprehensive in that it applies to all national authorities, legisla-
tive, executive, administrative, and judicial, national, local and regional.
In the ambit of international relations, Article 10 EC has given rise to
a large number of judgments; from those judgments, and in relation to
mixed agreements, the following principles can be ascertained: First, close
cooperation between Member States and the EC is essential during the
negotiation, conclusion, and fulfilment of the commitments; this results
from the requirement of unity in the international representation of the
EC.25 Second, Member States must not do something which would put
the EC in breach of a treaty to which the EC is a party.26
Nevertheless, the importance of Article 10 EC is limited in its effects for
the following reasons: First, Article 10 EC alone does not create duties,

but only together with another rule of EC law or principle of EC policy

which is to be facilitated or at least not jeopardized.27 Second, and related
to the first, Article 10 EC does not create any wholly new duties unrelated
to those which are already binding on Member States or to which they
have agreed pursuant to EC objectives or policies. However, Article 10
EC can, as any other general legal rule, lead to specific unforeseen conse-
quences stemming from existing duties. As Temple Lang shows:
A Member State cannot have a duty under Article 10 [EC] to which it has
neither agreed in principle (by agreeing to the measure, policy or objective
which Article 10 then obliges it not to frustrate) or become bound through
majority voting or under the treaties themselves. Since there are so many
ways in which different national authorities could frustrate an EC objective or
measure, the specific circumstances in which Article 10 could apply cannot all
be foreseen easily.28
Indeed, Article 10 EC has never been used by the ECJ to oblige a

Member State to ‘go the extra mile’. The relation between the principles
of solidarity and loyal cooperation in EU law lies in their function and
degree of legal bindingness. While the former is largely inspirational in
that it pushes for new and deeper modes of cooperation in order to achieve
shared goals, the latter constitutes a legal tool to guarantee that parties
comply with the cooperative agreements to which they have previously
agreed upon. In other words, it could be said that where the principle of
loyal cooperation ends, the principle of solidarity begins.
3. THE KYOTO PROTOCOL, THE EU BUBBLE AND

RESPONSIBILITY FOR LACK OF COMPLIANCE
3.1 The European Community in the Kyoto Protocol
The European Community (EC) ratified – together with its Member States
– both the UNFCCC and the Kyoto Protocol.29 The EC has committed
itself under the Kyoto Protocol – together with the 15 Member States of
which it was constituted at the time of ratification – to reduce its emis-
sions of six greenhouse gases by 8 per cent over the period 2008–2012
in comparison with 1990.30 This commitment was implemented in EC
law through Council Decision 2002/358/EC,31 which is known as the EC
burden-sharing agreement (hereinafter the BSA).
The Kyoto Protocol allows regional economic integration organizations
(hereinafter REIOs) to become parties and to have their own mitigation
targets. This possibility may generate unexpected complexities leading to

legal consequences regarding compliance within the REIO, for instance

when countries that are members of the REIO fail to comply with their
individual targets and as a result the REIO risks failing to comply with its
own aggregate target. Hence it is necessary to devote some attention to the
nature of those complexities, to the practical problems that could arise,
and to possible solutions. So far, the only REIO that is party to the Kyoto
Protocol is the European Community (EC), which has a mitigation target
of its own under the Protocol. This section will assess the position of the
EC under the Protocol.
One question that arises in this context concerns whether the EC could
be held responsible under the Kyoto Protocol compliance regime if one or
more of the 15 Member States were to fail to comply with their individual
targets, and, as a result, the EC were to fail to comply with its own target.
A related question is whether the EC has the necessary legal instruments
to avoid that outcome. In particular, the question arises whether Article 10
EC on the principle of loyal cooperation among the Community institu-
tions and the Member States can be relevant in this regard. A third ques-
tion concerns the possible legal avenues that could be implemented under
EC law to avoid a future failure of the EC to comply with its mitigation
targets under the Kyoto Protocol and potential successors to it.
This section is structured as follows: section 3.2 will examine the law
regarding the responsibility of the EC in public international law and
particularly in the context of the Kyoto Protocol; section 3.3 will consider
potential options that the EC has under EC law – in particular the princi-
ple of loyal cooperation – to ensure compliance with its mitigation target
under the Protocol.
3.2 Responsibility of the EC under International Law and under Article 4

of the Kyoto Protocol
3.2.1 The position of the EC under the Kyoto Protocol

When the EC concludes an international environmental agreement, it
normally does so together with its Member States,32 in what are known
as mixed agreements.33 This is due to the fact that, according to the EC
Treaty, the competence to enact environmental policies is shared by the
EC and its Member States.34
The legal basis for the EC to conclude mixed international environ-
mental agreements is two-fold. First, Article 300 EC Treaty regulates
the decision-making procedure.35 Second, because this provision only
regulates the procedure but does not grant the EC competence to act in
international negotiations, a substantive legal basis in another provision
of the Treaty is also necessary. Article 300(7) establishes that ‘agreements

concluded under the condition set out in this article shall be binding on
the institutions of the EC and on Member States’. In Kupferberg,36 the
European Court of Justice (ECJ) relied upon this provision to rule that ‘it
is incumbent upon the EC institutions, as well as upon the Member States,
to ensure compliance with the obligations arising from such agreements’.37
We must now consider the distribution of responsibilities between the
EC and the Member States, and the associated consequences in case of
a failure of a Member State or the EC to comply with its international
obligations.38 In the context of mixed international agreements, both the
EC and its Member States are competent to take measures to ensure com-
pliance. However, the precise distribution of competences among the EC
and the Member States cannot be specified, and is constantly evolving.39
In the absence of a precise statement on that distribution, its determina-
tion is a matter for EC law to clarify.40 The question of the EC dimension
of the obligations assumed by Member States in the context of mixed
agreements was expressly addressed by the ECJ in Commission v. Ireland.41
There the Court affirmed the right of the Commission to initiate enforce-
ment proceedings before the ECJ against a Member State for an obliga-
tion imposed under a mixed agreement because the obligation related to
an area covered in large measure by the EC Treaty.42 Later, in the MOX
Plant Case, the ECJ affirmed its exclusive competence in matters regulated
by international agreements to which the Community is a part, and ruled
that Member States may not take a dispute between them to another inter-
national court or tribunal if Community law is potentially at issue.43
From the perspective of EC law, the Kyoto Protocol is a mixed agree-
ment. It was, as mentioned above, ratified by Council Decision 2002/358/
EC, which redistributed the mitigation target of the EC among its then 15
Member States on the basis of expectations of economic growth, energy
mix, and the industrial structure of each Member. However, Decision
2002/358/EC did not precisely determine which obligations belonged
to the EC and which to Member States regarding compliance with the
Protocol. It made instead a passing reference to Article 10 EC on loyal
cooperation.
Article 4 of the Kyoto Protocol enables an Annex I party to comply
with its mitigation target jointly with other parties. The provision reads,
in relevant part:
1. Any Parties included in Annex I that have reached an agreement to fulfill

their commitments under Article 3 jointly, shall be deemed to have met those
commitments provided that their total combined aggregate anthropogenic
carbon dioxide equivalent emissions of the greenhouse gases listed in Annex A
do not exceed their assigned amounts calculated pursuant to their quantified
emission limitation and reduction commitments inscribed in Annex B and in

accordance with the provisions of Article 3. The respective emission level allo-
cated to each of the Parties to the agreement shall be set out in that agreement.
[. . .]
3. Any such agreement shall remain in operation for the duration of the com-
mitment period specified in Article 3, paragraph 7. [. . .]
6. If Parties acting jointly do so in the framework of, and together with, a
regional economic integration organization which is itself a Party to this
Protocol, each member State of that regional economic integration organiza-
tion individually, and together with the regional economic integration organi-
zation acting in accordance with Article 24, shall, in the event of failure to
achieve the total combined level of emission reductions, be responsible for its
level of emissions as notified in accordance with this Article.
Article 4.6 of the Kyoto Protocol was drafted to fit the specific situation
of the EC.44 During the negotiations of the Protocol some parties feared
that, due to the complicated distribution of responsibilities between the
EC and its Member States within EC law, a Member that failed to comply
with its individual targets could escape responsibility under the Protocol
where the EC failed to comply with its own target.45 Hence Article 4 of the
Protocol makes clear that both the EC and its Member States are responsi-
ble for achieving their mitigation targets. Article 4.6 can be read as stating
that when the collective target is not achieved, each Member State is
responsible for its own target; in addition, the EC is jointly responsible for
the Member State’s target, as well as for its own, overall, target.46
This does not answer the question of how that responsibility will be
apportioned among the EC and its Member States if the EC fails to
comply with its target. Can the responsibility of each be identified and
separated? It is not immediately obvious how this is to be done, since
both the EC and its Member States have competence to enact measures
to achieve compliance, and Decision 2002/358/EC has not established a
precise division of competences among them.
The fact that Decision 2002/358/EC has not established such a division
of competences is relevant regarding the responsibility regime that would
be applicable under public international law other than EC law. Under
public international law, in a situation where there appears to be more
than one responsible party for the fulfilment of a treaty-based obliga-
tion, there are three plausible solutions:47 (1) joint liability of the parties
and the possibility for the complainant to sue the non-compliant parties
together;48 (2) joint liability of the non-compliant parties and a choice on
the part of the complainant to sue the non-compliant parties together
or separately, but only for their share of liability;49 (3) joint and several
liability of the parties, and a choice either to sue the parties together or
the party of choice alone for all the damages.50 While the first two types of
liability assume that each party is only partly responsible for the damage

caused, the third assumes that each party is fully responsible and can at
best claim contributions after the fact from the other parties that may be
liable. Since the distribution of responsibility between the Member States
and of the EC has not been precisely delineated by Decision 2002/358/EC
it would seem, then, that options 1 and 3 represent the only plausible inter-
pretations of Article 4.6 of the Kyoto Protocol. It is therefore necessary to
have a look at the compliance regime of the Protocol in order to see which
consequences would arise in that particular context.
3.2.2 The compliance regime of the Kyoto Protocol and consequences for
the EC
The conference of the parties, at its seventh meeting in Marrakech, created
a compliance committee. According to Decision 27/CMP.1,51 the compli-
ance committee is divided into a facilitative branch and an enforcement
branch, a plenary and a bureau. The aim of the facilitative branch is to
promote compliance and provide an early warning of non-compliance with
emission targets, methodological and reporting commitments relating to
greenhouse gas inventories, and commitments on reporting supplemen-
tary information in a Party’s annual inventory. The primary responsibility
of the enforcement branch is to determine whether an Annex I party is in
compliance with its emission commitments, methodological and reporting
requirements, and the eligibility requirements to participate in the flexible
mechanisms.
Through its branches, the compliance committee considers questions of
implementation which can be raised by expert review teams under Article
8 of the Protocol, by any Party with respect to itself, or by one Party with
respect to another (supported by corroborating information).
In case of a lack of compliance with emission targets, an Annex I party
has 100 days after the expert review of its final annual emissions inventory
has been completed to make good any shortfall (e.g. by acquiring AAUs,
CERs, ERUs, or RMUs through emissions trading). If, at the end of
this period, a Party’s emissions are still greater than its assigned amount,
the enforcement branch will declare the Party to be in non-compliance
and apply the following consequences: (1) a deduction from the Party’s
assigned amount for the second commitment period of a number of tons
equal to 1.3 times the amount of excess emissions; (2) the obligation to
prepare a detailed compliance plan; (3) disentitlement to transfer Assigned
Amount Units under Article 17 of the Protocol.
Taking into account the aforementioned rules for liability in public
international law, it can be concluded that third parties could decide
to take to the compliance committee either any Member State that has
failed to comply with its own targets, together with the EC – assuming the

overall target has been missed – or the EC alone. The option of taking a
Member State alone for its share of responsibility when the overall target
has been missed would not seem in line with the spirit of Article 4.6 of the
Kyoto Protocol, which makes the EC jointly liable with its Member States
in order to specifically exclude the possibility that one Member State
escapes being held responsible.
Regardless of which interpretation of Article 4.6 of the Kyoto Protocol
is better, the conclusion seems inevitable that in case the EC fails to
comply with its mitigation target, it can be held responsible under the
Protocol. Therefore, and notwithstanding the possibility that the EC will
seek redress under EC law from the responsible Member State(s) at a later
date, it will try to avoid being placed in that situation to begin with. And
this leads to the question of which consequences this could have for the
Member States of the EC.
In order to answer this question, we should notice that the foregoing
analysis leads to the conclusion that the position of the EC under the
responsibility regime established by Article 4.6 of the Kyoto Protocol is
rather precarious. On the one hand, the EC is exposed to responsibility for
the failure of a Member State if the overall mitigation target is not met as
a result; on the other hand, although the Commission could as a measure
of last resort take a Member State to the ECJ for failure to comply with
its obligations under Council Decision 2002/358/EC, it is not clear that
this solution would allow the EC to return to compliance in time to avoid
enforcement branch sanctions. While Member States could in principle
escape responsibility as long as they comply with their individual targets,
the EC as a whole could not escape responsibility if the overall target is
missed. As a consequence, compliant and non-compliant Member States
would risk facing sanctions collectively.
The solution laid down in Article 4.6 allowed Member States to adopt a
strong common position in negotiations pursuant to the Kyoto Protocol,
one they would not have enjoyed negotiating separately. Arguably such an
advantage must be coupled with a corresponding responsibility in EC law
to ensure that the EC target is achieved.
If the EC fails to comply with its target, the consequences associated
with a declaration of non-compliance by the enforcement branch would
apply and they could impact all Member States. Nevertheless, it must be
stressed that this is in practice an unlikely outcome. The compliance com-
mittee would most probably focus on individual responsibility of those
Member States that are found to be out of compliance.52 Furthermore, the
purpose of the facilitative branch is to assist these Member States to come
back into compliance. Enforcement against them would only be applied
when those Member States fail to comply with their mitigation targets.

In that case, the EC allocation of AAUs for the next period would be
reduced by 1.3 times the amount of excess emissions.53 In relation to the
prohibition on transfers, two interpretations are possible. The first is that
the EC itself would be prevented from making transfers. However, even
if theoretically the EC could engage in international emissions trading, it
has not chosen to do so for the time being; therefore this option is not (yet)
relevant. The prohibition on transfers would apply only to the Member
States which are in non-compliance. The second interpretation is that
the prohibition on transfers would apply to all the Member States of the
EC, because the EC target is after all merely the sum of the targets of its
Member States. In this case, the consequence would be that no Member
State would be allowed to make transfers until compliance is restored.
Yet it can be argued that this second interpretation is unfair under EC
law, since Member States can only ultimately ensure that other Members
comply with their Kyoto targets by taking them to the ECJ. Some authors
consider that while Article 4.6 of the Kyoto Protocol imposes only joint
liability, failure of the EC to comply with the aggregate limit would have
consequences for Member States,54 and it could be argued that one of
those consequences could be that all Member States are prevented from
participating in emissions trading. Which remedial measures (including
preventive ones) the EC may have against its Member States is something
to be clarified under EC law. However, what seems clear is that, in this
situation, it will be in the interest of all Member States to re-establish the
EC’s compliance as soon as possible. This could be done by purchasing
the necessary amount of units in the international carbon market to cover
the gap of the non-complying Member State. Most likely, Member States
would wait to see whether there is an aggregate failure, and provided that
that is the case they could decide to make it up by purchasing units to
return the EC to compliance.
In light of the above, it is important to consider whether there is a legal
basis in EC law to oblige Member States either to prevent that the EC
fails to comply with its target or to return the EC to compliance as soon
as possible. Particular attention needs to be given in this context to Article
10 EC.
3.3 The role of Article 10 EC in ensuring EC compliance with its Kyoto

target
The EC has put in place a legal regime to ensure compliance with its
obligations under the Kyoto Protocol. This framework includes, aside
from Council Decision 2002/358/EC, a decision on monitoring, reporting,
and verification,55 as well as Directive 2003/87/EC on emissions trading56

– as amended by Directive 2004/101 linking the emissions trading scheme

with the flexible mechanisms of the Kyoto Protocol57 – and several other
sectoral measures.58 Despite the depth and breadth of this legal regime,
it is worthwhile to recall that, as the European Environment Agency has
pointed out, the EC composed of the ‘old’ 15 Member States will only
comply with its Kyoto mitigation target if: (1) all the measures that have
already been adopted under EC law are effectively implemented and
additional ones are introduced; (2) extensive use is made of the flexible
mechanisms; and (3) some Member States reduce their emissions below
their individual targets.59
Regarding point (2), the extent to which credits from the flexible mecha-
nisms can be used to comply with mitigation targets is limited by the
principle of supplementarity.60 This means that credits coming from the
JI and the CDM must be supplemental to domestic mitigation, something
which is generally understood to mean that those credits cannot be used
to cover more than 50 per cent of the emission reductions which are nec-
essary to comply with Kyoto targets. This principle applies to all parties
of the Kyoto Protocol, including the EC. Hence, a scenario is possible in
which Member States have made extensive use of the flexible mechanisms
and still the EC cannot comply with its mitigation target. Point (3) is even
more noteworthy, for it indicates that in practice it will likely be necessary,
in order to ensure EC compliance with the Protocol, that some Member
States reduce their emissions under their targets and put the additional
reductions at the disposal of the EC. If, however, they would decide either
to bank those excess credits – as allowed by Article 3.13 of the Kyoto
Protocol61 – or sell them to third parties – as allowed by Article 17 – the
EC could fail to comply with its target. From a practical perspective, we
can assume that those Member States would prefer to use those credits to
ensure that the EC complies with its own target, in order to avoid respon-
sibility under the compliance regime of the Protocol.
The previous considerations lead us to consider the potential relevance
of Article 10 EC. The main legal obligation stemming from the Kyoto
Protocol for the EC is that of achieving its mitigation target. In the context
of Article 10 EC, the question arises whether Member States are under
a legal obligation to assist the EC in complying with its own target, and
what could they be expected to do? For instance, could they be legally
required to over-achieve in respect to their individual targets in order to
compensate for the shortcomings of other Member States? For this, one
must take account of the relevant provisions of the Kyoto Protocol and
of the Council Decision ratifying the Kyoto Protocol, which in turn refers
to Article 10 EC. Council Decision 2002/358/EC, in recital 10, interpreted
this obligation in the following terms:

In deciding to fulfil their commitments jointly in accordance with Article 4 of

the Kyoto Protocol, the Community and the Member States are jointly respon-
sible,62 under paragraph 6 of that article and in accordance with Article 24(2)
of the Protocol, for the fulfilment by the Community of its quantified emission
reduction commitment under Article 3(1) of the Protocol. Consequently, and in
accordance with Article 10 of the Treaty establishing the European Community,
Member States individually and collectively63 have the obligation to take all
appropriate measures, whether general or particular, to ensure fulfilment of the
obligations resulting from action taken by the institutions of the Community,
including the Community’s quantified emission reduction commitment under
the Protocol, to facilitate the achievement of this commitment and to abstain
from any measure that could jeopardise the attainment of this commitment.
Recital 10 of Council Decision 2002/358/EC seems to establish a collec-

tive responsibility on the part of Member States to ensure compliance with
the EC’s target. The rationale would be that if the EC is jointly liable with
the Member States for failure to comply with their mitigation targets, then
it must also have the power to oblige Member States to do everything they
can to ensure that the EC complies with its own target. Member States
would not only be responsible for their individual targets, but in addition
they would be required to attempt to secure the EC target.
According to the case law of the ECJ, the legal value of a recital of an
EC legal instrument is limited and subordinated to that of the enacting
terms of that instrument. In case of litigation, the courts can take a recital
into consideration in order to ascertain the Council’s intentions when
drafting certain provisions.64
Moreover, there is a subtle difference in language between recital 10
of Council Decision 2002/358/EC and the wording of Article 10 EC that
may be of importance in answering the question posed above. The latter
does not refer to collective responsibility of Member States, but only to
individual responsibility. What is the correct interpretation of ‘Member
States individually and collectively have the obligation to take all appro-
priate measures, whether general or particular, to ensure fulfilment of
the obligations resulting from action taken by the institutions of the EC,
including the EC’s quantified emission reduction commitment under the
Protocol’? ‘Individually and collectively’ seems to allude to the fact that
the Kyoto Protocol is a mixed agreement.65 In areas which fall under the
competence of Member States, they are under an obligation to adopt
the measures which seem necessary to achieve their targets and the EC
target. The expression also alludes to the duty Member States have under
Article 10 EC to cooperate amongst themselves and with the EC. The rest
of the recital repeats the wording of Article 10 EC.
Moreover, it is clear that Council Decision 2002/358/EC does not
explicitly say that Member States have the obligation to make sure that

the EC fulfils its target. Article 2 of Council Decision 2002/358/EC reads

as follows:
The European Community and its Member States shall fulfil their commit-
ments under Article 3(1) of the Protocol jointly, in accordance with the provi-
sions of Article 4 thereof, and with full regard to the provisions of Article 10 of
the Treaty establishing the European Community. The European Community
and its Member States shall take the necessary measures to comply with the
emission levels set out in Annex II, as determined in accordance with Article
3 of this Decision.66 Hence, support for the argument that Member States are
under a legal obligation to assist the EC in complying with its own target could
be based on three arguments: first, the mention made of Article 10 EC in recital
10 of Council Decision 2002/358/EC, interpreted in the light of the negotiating
history of the Kyoto Protocol; second, from the great importance that Article
10 EC has been accorded in the case law of the ECJ and its deep impact in the
evolution of the EC legal order, as illustrated above; third, from the wording of
the principle of sincere cooperation in the Lisbon Treaty, according to which
the Union and the Member States shall, in full mutual respect, assist each other
in carrying out tasks which flow from the Treaties.
This legal obligation would be activated if it becomes clear that the EC

will not achieve its target. This undoubtedly could occur if the compli-
ance committee of the Kyoto Protocol were to determine that the EC is
not in compliance with its mitigation target.67 After non-compliance has
been declared, Section XIII of Kyoto Protocol Decision 27/CMP.1 gives
the Party one hundred days over which to continue to acquire Kyoto
units from the preceding commitment period in order to achieve compli-
ance, a time line which starts running after the completion of the expert
review process under Article 8 of the Protocol.68 This means that a Party
is unlikely to be declared non-compliant with its mitigation target before
mid-2015 at the earliest. Since it must acquire units from the preceding
commitment period, which ends in 2012, it will have to do so from other
Kyoto Parties. In order to ensure that this can be done, Article 10 EC
could be interpreted as meaning that Member States would be required
to hold on to excess Kyoto units until it is demonstrated that the EC is in
compliance with its target for the first commitment period. The concrete
application of this obligation could cover at least the three following cases:
First, when a Member State would be declared in non-compliance with
its emission target, it would then be obliged to purchase enough units in the
international market to cover its deficit, as long as it has not reached the limit
imposed by the principle of supplementarity. Other Member States that
have excess emission reductions would have either to wait for that purchase
to take place, or could sell their excess units to that Member State. Only then
would they be allowed to sell any remaining excess units to non-EC Parties.
Second, if the non-compliant Member State cannot purchase units in

the international market because it has already reached the limit imposed
by the supplementarity requirement,69 then other Member States would
be legally required either to hold on to their excess units or to purchase
extra units in the market, as needed. They could not sell them to the non-
complying State, but would be entitled to recover their value later either
through a bilateral agreement,70 or in court proceedings against that
Member State under the relevant EC Treaty procedures.
Third, in the case where no Member State has excess units, there would
be a collective legal obligation to fund the purchase, in the international
market, of the number of units required to ensure compliance. This could
be done in a number of ways; either the EC could purchase them directly
and pay from its own budget, or Member States could create a fund dedi-
cated for that purpose. The contributions to that fund could be distributed
on the same basis that the burden-sharing agreement was agreed upon.
For future burden-sharing agreements, such a fund could be set up ex ante,
and be administered by the European Commission. Of course, such a fund
would not eliminate the responsibility of non-complying Member States,
but would reduce the risk of EC non-compliance. An important question
concerns which types of units could be purchased: would it be seen politi-
cally acceptable to purchase AAUs from countries with available hot air?
Would this seem more acceptable if those AAUs were ‘greened’? Practice
of Member States seems to provide an answer to this dilemma. A number
of EC Member States have already committed themselves to purchasing
‘hot air’ in the international carbon market in order to ensure compliance
with their mitigation targets under the Kyoto Protocol. For instance, the
Czech Republic has agreed to sell a total of 8.5 million AAUs to Spain (5
million) and Austria (3.5 million). Emissions in the Czech Republic are
expected to be about 17 per cent below the country’s target, and the total
amount of its AAUs is 100 million (including those already sold). In both
cases, the AAUs sold are linked to a green investment scheme, a mecha-
nism by which proceeds from the sale of AAUs are invested by the Czech
Republic in activities that ensure greenhouse gas emissions reductions.71
This discussion has sought to illustrate how relevant Article 10 EC
could become, leading to a redistribution of the EC target, at least for the
purpose of compliance with the EC target under the Kyoto Protocol.
4. COMPLIANCE AND THE BURDEN-SHARING

AGREEMENT FOR THE PERIOD 2012–2020
Having examined the conditions for the determination of the responsibil-

ity of the EC under the Kyoto Protocol and the current BSA, as well as the

potential consequences on Member States in the light of Article 10 EC, we

may now consider the same issue in the context of the BSA adopted for
the period 2012–2020. This will be done by comparing generally the two
burden-sharing agreements, and then by assessing the compliance regime
introduced by later BSA. But in order to do that, the second burden-
sharing agreement will be briefly described.
In April 2009, the Council of the European Union formally adopted leg-
islation committing the EC unilaterally72 to reduce its emissions of 1990 by
20 per cent by the year 2020, and offering to increase that figure to 30 per
cent if other developed countries and major developing countries commit
themselves to, respectively, comparable and meaningful mitigation efforts,
in the context of the international negotiations on the post-2012 climate
change regime.73 Pursuant to that unilateral commitment, the EC adopted
a new BSA in order to share the new target among its 27 Member States
through Council Decision 406/2009/EC.74 This BSA, which will enter
into force 20 days after the date of its official publication, applies to the
period 2012–2020, thus substituting the current BSA, which expires, as
far as the target and the rules for its distribution among Member States
are concerned, in 2012. How, then, if at all, does the BSA for the period
2012–2020 deal with the above-mentioned possibility that failure of some
Member States to comply with their targets would cause the EC to fail to
comply with its own target?
There are a number of important differences between the two burden-
sharing agreements. First of all, they differ in their legal bases. Council
Decision 2002/358/EC had as its legal basis Articles 175 and 300 EC,
since it effected the ratification of the Kyoto Protocol by the EC. By
contrast, Council Decision 406/2009/EC adopting the BSA for the period
2012–2020 has as its legal basis Article 175 EC only, because it has been
adopted as a purely EC-law measure, for it is not known whether the
Kyoto Protocol will continue after 2012. Second, the current BSA covered
all the emissions from the 15 Member States, whereas the BSA for the
period 2012–2020 covers the 27 Member States, but includes only those
emissions from sectors not covered by the EU emissions trading scheme.
Third, while the current BSA does not make any reference to monitoring,
reporting and verification obligations, except in order to determine the
emissions of Member States in the base year and their targets, the BSA for
the period 2012–2020 has adopted a more developed approach. According
to it, Member States must report their emissions annually. The rationale
of this duty is to allow the Commission to assess whether Member States
are on track to comply with their targets. In addition, the Commission
will evaluate every two years the projected progress of the Community
towards meeting its mitigation obligations. If the Commission considers,

after performing the assessment, that Community compliance is at risk,

it can decide to propose to the Council and the European Parliament the
adoption of new measures.
Regarding specifically the enforcement mechanism, both burden-
sharing agreements rely indirectly on the ordinary infringement procedure
established in the EC Treaty. The European Parliament originally pro-
posed to complement this mechanism in the BSA for the period 2012–2020
with a system of penalties in order to provide more incentives to Member
States to comply with their targets.75 This system would work as follows:
Member States that fail to comply with their annual targets would have to
pay an excess emissions penalty equivalent to the amount determined in
Directive 2003/83/EC76 (ETS directive). The revenues would be destined to
a fund for the promotion of renewable energy and energy efficiency within
the EC. Further, the amount of excess emissions (measured in tons of CO2
eq.) would be deducted from the quantity of allowances that that Member
State would auction under the ETS. Those allowances would be auctioned
by the Commission and the revenues would go to the aforementioned EC
fund.77
The version of the BSA for the period 2012–2020 finally adopted does
not incorporate the suggestion made by the European Parliament, but
instead introduces in Article 7 a compliance regime similar to the one of
the Kyoto Protocol.78 If a monitoring report for a given year shows that
a Member State is not in compliance with the allowed amounts specified
in the BSA, it will have to take corrective action. Unachieved emission
reductions, multiplied by a factor of 1.08, will have to be made good in the
next year.79 On top of this, Member States will have to submit a corrective
action plan to the Commission detailing by which measures and by when
they intend to get back on track with a view to meeting their 2020 targets.80
The Commission and the EC Climate Change Committee (comprising the
Member States) can comment and give recommendations on the plans.
In addition, there will be a temporary suspension of the Member State’s
eligibility to transfer part of its emission budget and JI/CDM rights to
another Member State.81 As measure of last resort, the Commission could
launch an infringement procedure against the non-compliant Member
State.82 According to the Commission, the combination of the standard
EC infringement procedure and the mechanism for corrective action
under Council Decision 406/2009/EC goes beyond the compliance mecha-
nism available under the Kyoto Protocol.83 This combined approach
would serve to strengthen the credibility of the EC’s mitigation measures
and increase certainty for those Member States which achieve greater
emissions reductions than required under the BSA and which would like
to sell their surplus emission allocations to another party. This seems an

improvement over the current situation, where some Member States could
be forced to put their excess emissions reductions at the disposal of the EC
to ensure it complies with its Kyoto target.
However, it is still possible that, despite the new measures, some
Member States will fail to comply with their targets under a future inter-
national climate change agreement, and as a result the EC would risk
failing to comply with its own target. If such an agreement were to have a
compliance regime identical or similar to that of the Kyoto Protocol, the
problems assessed in this chapter could arise again. Therefore, it can be
concluded that the new BSA has not successfully addressed the particular
problem identified herein.
5. CONCLUSIONS ON THE PRINCIPLE OF LOYAL

COOPERATION IN RELATION TO BURDEN
SHARING
This section has investigated some complexities regarding the responsibil-

ity of the EC under the Kyoto Protocol. The main question has been what
consequences a failure to comply with the overall Protocol target could
have for both the EC and its Member States under EC law. Particular
attention has been paid to the role of Article 10 EC on loyal cooperation.
Two important conclusions stem from the analysis.
First, Council Decision 2002/358/EC does not specify the role of Article
10 EC regarding the distribution of competencies and responsibilities
between the EC and its Member States, and as a result unexpected ten-
sions may arise in case the EC fails (or is on track to fail) to comply with
its Kyoto Protocol mitigation target. However, this section has concluded
that Article 10 EC may nevertheless play an important role, a posteriori,
since the ECJ could impose upon Member States the obligation to either
give their excess AAUs to the EC or to purchase enough Kyoto credits in
order to ensure that the EC complies with its target.
Second, Decision 406/2009/EC adopting the BSA for the period 2012–
2020 has introduced more guarantees to ensure EC compliance with its
target, and has increased the regulatory certainty for Member States
that comply with their targets. Nevertheless, it has failed to deal with
the underlying problem, with the result that Article 10 EC would still be
equally relevant in relation to the successor BSA if the Kyoto Protocol
– or a treaty with a similar compliance regime – is applicable within that
period. Therefore, this section has suggested as one possible solution the
creation of an EC fund, possibly administered by the Commission, which
could be deployed to purchase AAUs to ensure EC compliance with

its target. Another possible solution – which can be complementary to

the former one – would be to state in the BSA that Member States have
the particular obligation – flowing from Article 10 EC – of putting their
excess emission reductions at the disposal of the EC in case this would be
deemed necessary to ensure the compliance of the latter with the aggregate
emission reduction target.
6. POSSIBLE EXTENSIONS TO THE NOTION OF

BURDEN SHARING
6.1 What Would a Future International Climate Regime Look Like and
What Consequences Could This Have for EU Burden Sharing?
The first commitment period of the Kyoto Protocol expires in 2012. COP-
15, which took place in Copenhagen in December 2009, was in principle
expected to deliver a legally binding international agreement that would
become applicable after 2012.84 However, this has not been the case – the
Copenhagen Accord is a brief political document devoid of any substan-
tive details85 – and at present the fate of such agreement is unclear.86 Some
consider that the chaotic unfolding of COP-15 has illustrated the diffi-
culty, if not impossibility, of reaching a global consensus on how to tackle
the climate change challenge under the auspices of the United Nations.
Others consider that its main outcome – the Copenhagen Accord – though
far from perfect, constitutes a crucial step forward in international climate
talks, as well as the only realistic outcome.87 In any case, the Copenhagen
Accord is unique because, for the first time, all major economies includ-
ing China and other key developing countries have shown willingness to
commit to reducing their greenhouse gas (GHG) emissions. However, the
Accord falls short of charting a path to, and the shape of, an international
legally binding climate change treaty. Indeed, there is still no agreement
about the form of a future climate change regime. There are basically four
possibilities: (a) that there is no agreement on a second compliance period
of the Kyoto Protocol – for instance because a number of parties do not
have any mitigation commitments therein – and no international agree-
ment is adopted to replace the Kyoto Protocol; (b) that the AWG-KP
and the AWG-LCA produce separate, legally binding outcomes; in other
words, that the AWG-KP results in an amended Kyoto Protocol and the
AWG-LCA results in the adoption of a new protocol; (c) that the results
of both tracks are brought together into a new protocol that will replace
the Kyoto Protocol; and (d) that the AWG-KP results in an amended
Kyoto Protocol, while the AWG-LCA adopts a series of COP decisions.

All these solutions have their supporters and opponents, and all of them
entail certain risks.88
In case there is a gap in international climate law after 2012, it is possi-
ble to imagine a regime that will be based entirely upon voluntary pledges
from countries, the breach of which would not lead to any binding con-
sequences. In this context it is still possible to imagine that some parties
would decide to make bubbles where they can trade emission reduction
units among each other, for instance through the linking of domestic
emission trading schemes. In those cases, compliance rules will have to be
decided by those parties.
If the Kyoto Protocol is replaced by an entirely new international climate
agreement, a number of important consequences regarding compliance
with its associated commitments may follow. The most important one
being that its widely praised strength of its compliance regime becomes
moot unless it is incorporated into the new agreement. This is because the
penalties contemplated therein have effect a futuro. Indeed, the deduction
from the party’s assigned amount, for the second commitment period, of a
number of tons equal to 1.3 times the amount of excess emissions becomes
toothless, as well as the obligation to prepare a detailed compliance plan
or the prohibition to transfer assigned amount units. Under a new regime
mitigation targets could be adopted through a bottom-up process whereby
each party would be free to decide its targets regardless of its degree of
compliance with their Kyoto targets; likewise, its obligations regarding
monitoring, reporting and verification (‘MRV’) would depend on the new
regime, which may leave this to the free determination of each party, may
adopt non-legally binding MRV guidelines or may adopt a fully fledged,
legally binding, MRV mechanism; finally, the prohibition to transfer
assigned amount units will also become useless, because parties will be
careful to avoid carrying the associated negative effects into the new regime.
Nevertheless, if a new international climate agreement replaces the
Kyoto Protocol, and if it includes legally binding obligations, then it is
logical to think that it will have some sort of compliance regime, which
could be taken from the Kyoto Protocol or could be designed anew.89 Such
a regime will need to refer not only to mitigation, but also to each of the
other key pillars of the Bali Action Plan and of the Copenhagen agreement.
While the compliance regime of the Kyoto Protocol is mainly focused on
ensuring compliance with the emission reduction commitments and with
the eligibility requirements for participation in the flexibility mechanisms
under Articles 6, 12 and 17,90 a future international climate agreement will
need to consider within the compliance regime responsibilities regarding
mitigation targets, financial transfers for adaptation and mitigation from
developed to developing countries, transfers of technology and adaptation.

The Copenhagen Accord makes a vague mention of a compliance regime

in paragraphs 4 and 5. There, Annex I parties would be obliged to deliver
on their mitigation targets and on their financing obligations, which would
be MRVed in a rigorous, robust and transparent manner. Non-Annex
I parties would put forward mitigation actions through national com-
munications. Those actions would be subjected to domestic MRV, and
reported through national communications every two years. The latter
will be reviewed through international consultations on the basis of clearly
defined guidelines that will ensure that national sovereignty is respected.
However, if non-Annex I parties seek international financing to implement
a number of mitigation actions, they will have to register them in an inter-
national registry, and will be subjected to international MRV in accord-
ance with guidelines to be adopted. The compliance regime sketched by the
Copenhagen Accord is extremely vague, since it does not mention any con-
sequences for lack of compliance. Some countries like the US have noted
their desire to leave the determination of compliance as a purely national
issue. The US followed the same approach during the negotiations of the
Kyoto Protocol, but its rejection allowed other parties to agree upon the
current compliance regime at COP-7 in Marrakesh.
Assuming an international climate agreement is adopted, the shift from
a narrow focus on mitigation to a strategy based on four pillars will neces-
sarily have an impact on the notion of burden sharing within the EU. From
the perspective of the EU, it seems clear that, regardless of whether an
international climate regime is adopted, and regardless of its architecture,
the EU will still maintain the choice of making a bubble whereby an EU-
wide mitigation target is adopted and redistributed among all its Member
States. But it is also possible that this burden-sharing arrangement would
be extended to include the other pillars of the Bali Action Plan. This would
be in line with the comprehensive view for an international climate change
agreement recently proposed by the EU, which incorporates those four
pillars at an equally important level.91
In order to fulfil its own vision, the EU will need, in addition to deliv-
ering its mitigation commitments, to step up its financial transfers and
transfers of technology to developing countries. And the same reasons
that justify adopting a burden-sharing agreement in relation to mitigation
would justify adopting similar arrangements regarding transfers of finan-
cial and technological resources in the context of a future international
climate agreement.
But burden sharing does not only need to expand to incorporate these
new pillars of an international regime; it will also need to take into account
the differing extents to which the 27 EU Member States will be affected by
climate change and therefore the costs of adapting to those impacts. The

next sections will explore how the notion of burden sharing has developed
so far in EU climate change law and policy and ways in which it could it
be extended.
6.2 The Expansion of ‘Burden Sharing’ in EU Mitigation Law and Policy
The target adopted by the EU at Kyoto was largely considered to be

within easy reach, given the emission reductions already achieved – for
non-climate change related reasons – in the United Kingdom and in
Germany. The target adopted by the EU unilaterally through Decision
406/2009/EC is widely considered to be much more ambitious, even if
many consider that it is well below what is required to achieve the long-
term target of keeping the increase of the global average temperature
under two degrees Celsius.92
In fact, an analysis of the evolution of EU climate change law and
policy shows that a large number of legally binding measures have already
been adopted to make the 20 per cent emissions reduction feasible. Those
measures include a more ambitious EU ETS, which will feature as from
2012 a EU-wide cap,93 a legally binding objective of producing 20 per cent
of energy needs from renewable energy,94 and an objective of improving
energy efficiency by 20 per cent in 2020. In addition, flanking measures
include legally binding emission limits for cars and more stringent energy
efficiency regulations for buildings and appliances. While it is not possible
to judge whether these measures will be sufficient to achieve the target, it
is however clear that they represent a clear increase in ambition vis-à-vis
all previous measures adopted within EU climate change law. Moreover,
within a number of those measures, the notion of burden sharing among
Member States is central. To start with, Decision 406/2009 shares the EU
mitigation target among Member States in order to reflect their differing
starting points, capacities and needs.95 This decision excludes however
those sectors covered by the EU ETS. Second, within the EU ETS there
is an element of burden sharing among Member States. Indeed, the EU
ETS will provide a much more important role for auctioning, and a share
of the revenues from auctions will be redistributed from richer to poorer
Member States.96 Third, the RES Directive, which introduces a 20 per cent
target, translates it into individual targets for each Member State in order
to ensure a fair and adequate allocation taking into account Member
States’ different starting points and potentials, including the existing level
of energy from renewable sources and the energy mix.97 This distribution
does not apply to renewable sources in transport, because transport fuels
are traded easily, so Member States with low endowments of the relevant
resources will easily be able to obtain biofuels from elsewhere and because

it is necessary to ensure consistency in transport fuel specifications and

availability.
In the now rather unlikely event that the EU would increase its miti-
gation target to 30 per cent, burden sharing would become even more
prominent than it is now. Article 8 of Decision 406/2009/EC mandates
the Commission to present a proposal to amend that Decision. The pro-
posal needs to be based upon the principles of transparency, economic
efficiency and cost-effectiveness, as well as fairness and solidarity in the
distribution of efforts between Member States. It is not clarified how the
additional emission reductions would be achieved, except for the fact that
half of the effort could be achieved through emission reductions achieved
abroad. For instance, Article 8(c) requests the Commission to consider
‘the Community manufacturing industries’ competitiveness in the context
of carbon leakage risks’, which could lead to the decision that those indus-
tries are not asked to shoulder any extra effort.
6.3 Introducing Adaptation Within the EU into the EU Burden Sharing

Agreement?
As stated in the Introduction, burden sharing has referred so far to the

decision of the EC to share its Kyoto Protocol mitigation target among
its Member States. This section will suggest that an expansion could be
considered in order to introduce therein adaptation costs within the EU.
The two EU BSAs adopted so far have ignored the issue of adaptation
to the impacts of climate change. This might look logical in the context
of the Kyoto Protocol, with its overwhelming focus on mitigation. But
adaptation has been steadily gaining attention and is currently seen as
important as mitigation. Moreover, the principle of solidarity within EU
law may be very relevant in order to confront jointly the impacts of climate
change when they threaten to endanger the goals of the EU as stated in the
Treaties. This section focuses therefore on the EU dimension of solidarity,
and relates it to the notion of adaptation to climate change impacts.
Climate change has the potential to impact upon the current living
conditions within the EU to an extent that some of the goals and objec-
tives of the EU may be endangered.98 According to the IPCC 4th AR,
wide-ranging impacts of changes in the current climate have been docu-
mented in Europe, and these changes will likely magnify regional differ-
ences of Europe’s natural resources and assets. Moreover, climate change
is estimated to pose challenges to many European economic sectors and
is expected to alter the distribution of economic activity. Aside from the
European environment, economic sectors such as energy, agriculture and
tourism will suffer, particularly in the Mediterranean Arc, where water

stress will also increase.99 Depending on the intensity of climate change

damage and of its distribution, Treaty goals such as achieving a high level
of environmental protection100 and a harmonious development among
Member States and regions101 may eventually be endangered.
In its Green Paper on adaptation, the Commission also approached
adaptation from a social perspective, ‘in order to ensure that the poorer
and disadvantaged regions and those regions that will be hit hardest by
climate change will be able to take the necessary measures’.102 Accordingly,
the Commission considers therein how adaptation programmes can be
taken into account in EU spending programmes, such as the Structural and
Cohesion Funds.103 Along similar lines, the new Cohesion Policy (2007–
2013) stresses the importance of climate change adaptation in the EU
cohesion policy.104 In its White Paper on adaptation, the Commission has
acknowledged that ‘adaptation will require solidarity among EU Member
States to ensure that disadvantaged regions and regions most affected by
climate change will be capable of taking the measures needed to adapt’.105
The Commission has proposed an approach to adaptation based on
four pillars:106 (1) early action in relation to adaptation. This covers
three issues: (i) integrating adaptation when implementing existing and
upcoming legislation and policies; (ii) integrating adaptation into existing
Community funding programmes; (iii) developing new policy responses
that take into account how adaptation will affect all Community policy
areas and legislation; (2) integrating adaptation into EU external actions;
(3) reducing uncertainty about the impacts of climate change; (4) involv-
ing European society, business and the public sector in the preparation of
coordinated and comprehensive adaptation strategies. The integration of
adaptation in Community funding programmes has an element of burden
sharing given by the relative contributions of Member States to those
funds and the destinations of those funds. The European Parliament has
also been active in relation to adaptation to climate change, particularly
on the international level, by proposing that the Community makes a
binding commitment to provide increasing and additional grant-based
financial assistance for developing countries.
The need to generate extra funds to fund adaptation policies has also
been recognized in EU secondary law. Directive 2009/29/EC amending
the EU ETS has created a new mechanism to generate extra income for
adaptation policies. Article 10.3 foresees the possibility of using revenue
generated from auctioning allowances for, e.g., adaptation purposes. In
particular, it provides that at least 50 per cent of the revenue generated
from auctioning allowances should be used, inter alia, for adaptation in
Member States and developing countries. A dimension of burden sharing
is not directly mentioned here, contrary to what happens in relation to

mitigation, where Articles 10.2(a) and 10.2(b) foresee that a share of

auction revenues will be redistributed from richer Member States to
poorer ones. Nevertheless, since Article 10.3(a) declares that auction
revenues can be used to finance adaptation, and given the redistribution
of auction revenues from richer to poorer countries, it can be seen that
burden sharing indirectly deals with adaptation.
Yet, the current approach falls short of proposing a burden sharing
arrangement for climate change adaptation among Member States. This
may seem somewhat surprising, given the enormous and costly impacts
that climate change might have across the EU, their uneven distribution,
and the different abilities of Member States and regions to deal with them.
A number of reasons can explain this dissimilar approach to mitigation
and to adaptation:
First, adaptation has been a latecomer in EU climate change policy.107
Adaptation has only recently gained attention in the EU,108 and many
Member States have not yet prepared national adaptation plans.109 Therefore,
there is still considerable uncertainty regarding the costs of adaptation and
the regional distribution of impacts, so the attention should go first to clarify
those impacts and the best responses before considering whether to include
adaptation more explicitly into burden sharing at EU level.
Second, there seems to be a crucial difference between mitigation
and adaptation that is relevant for burden sharing: poorer countries –
including poorer EU Member States – probably cannot be persuaded
to adopt mitigation policies unless they are compensated in some way
for doing so, because their perception is that those policies will impact
negatively on their economic prospects. And it is in the interest of richer
countries that the poorer ones mitigate to some extent their emissions, for
otherwise their own efforts will have no effect at aggregate level. Hence, for
an agreement to be achieved, it is essential to introduce an element of dif-
ferentiation along the lines of responsibility, capacity and need. However,
adaptation policies respond to geographically located impacts, and each
country has incentives to adapt to climate change, but not necessarily to
assist others to adapt. Hence, the self-interest rationale is weaker – or at
least more indirect – in this context than in the context of mitigation. Of
course it is possible for a poorer country to argue that it will not mitigate
its emissions unless it receives financial assistance to cope with climate
change impacts. But the strength of this argument is more difficult to
sustain because those impacts will take place particularly in the future, are
difficult to assess precisely and therefore to quantify in terms of costs, and
adaptation policies will be adopted by a multiplicity of actors regardless
of whether they receive assistance. Hence, linking mitigation and adapta-
tion in this way might not sound very credible. For this reason, the value

or principle of solidarity seems more crucial in respect to adaptation than

in respect to mitigation, at least as long as climate change does not impose
such costs on the EU internal market that it becomes an interest of all
Member States to agree on sharing the burden of adapting to it.
6.4 Including Financial Transfers to Developing Countries in Burden

Sharing?
The EU vision for a comprehensive climate change agreement describes,

with a remarkable degree of detail, the contributions that the EU will have
to make to mitigation and adaptation in developing countries, as well as
policies to promote technology transfer to and capacity building in devel-
oping countries.110 That vision also suggests some formulas to share those
burdens among EU Member States and with other developed countries,
and has probably influenced the text of the Copenhagen Agreement.111 It
is therefore clear that the notion of burden sharing has been expanded to
cover those pillars as well.
Nevertheless, the EU vision has so far been delineated in political docu-
ments, without giving rise to legally binding obligations. Clearly, there
is no obligation, under EU law as it currently stands, to substantially
increase funding toward developing countries to put in place ambitious
climate policies. Indeed, Directive 29/2009/EC does not oblige Member
States to earmark auction revenues to climate policies in developing
countries. And yet, it is clear that without substantially increased funding,
developing countries will never agree to a legally binding international
climate change agreement, and the EU efforts risk being irrelevant in
terms of aggregate emission reductions. Therefore, it could be sensible to
take a step further and introduce into legally binding norms financial com-
mitments towards developing countries as well as formulas to share those
costs among Member States. Even if that does not mean that other coun-
tries would necessarily accept the EU position for burden sharing, it would
at least send a strong signal that the EU is ready to deliver on its commit-
ments. But for the EU to legally commit to such an obligation, and for that
commitment to be credible, a number of issues would need to be clarified
from the outset. Those issues, as Timmons Roberts, Stadelmann and Huq
note112 include the definition of climate finance, the source of funding,
whether those sources are truly new and additional, how is climate finance
counted, and the predictability of the sources.
If in the future such an obligation were to be introduced into a legally
binding measure of EU law, there would be legally binding consequences
for Member States if they were to fail to comply. But moreover, if such a
commitment were to be reflected into a future legally binding international

climate agreement featuring a compliance regime similar to that of the

Kyoto Protocol (in particular incorporating the notion of bubbles as
envisioned in Article 4.6 Kyoto Protocol), then part of the analysis made
in section 3 regarding the responsibility of Member States would also
become relevant in relation to financial resources for developing countries.
In short, were one or more Member States to miss their obligations, other
Member States would need to increase their contributions to make sure
that the EU as a whole complies with its obligations.
7. CONCLUDING REMARKS
The notion of burden sharing in EU climate change law was initially

restricted to climate change mitigation. Also the Kyoto Protocol was
focused on mitigation, while dealing with adaptation in a residual manner.
This chapter has shown that the principle of loyal cooperation can have
surprising results therein, by forcing Member States that over-comply with
their targets to assist those Member States that fail to comply with theirs.
The international climate change negotiations have evolved to place
adaptation and financial and technology transfers at the same level as
mitigation. Hence the notion of burden sharing within the EU will prob-
ably need to expand to include all those elements, and ways will need to
be found to determine the contribution of each Member State. Finally,
adaptation within the EU will be expensive, and costs will be distributed
asymmetrically among Member States. This calls, under the logic of the
principle of solidarity, for financial redistributions between Member
States, following the principles of responsibility, capacity and need.
If the EU were to unilaterally pursue a 30 per cent mitigation target, and
were to legally commit to funding mitigation and adaptation policies in
developing countries – while clarifying the origin of those funds and also
clarifying their additionality over and above traditional ODA, the modes
for their disbursement and the methods to check their effective use – and if
it were to incorporate adaptation into internal effort sharing as well, then
the EU would go a long way in showing how principles such as solidarity
and loyal cooperation can be used in practice to shape effective and fair
solutions to the threats imposed by climate change.
NOTES
1. Javier de Cendra de Larragán, PhD researcher, METRO, Maastricht University.

Sections 3 and 4 of this chapter are based on Javier de Cendra de Larragán, ‘United

We Stand, Divided We Fall: The potential role of the principle of loyal cooperation
in ensuring the compliance of the European Community with the Kyoto Protocol’,
Climate Law, 1(1), 159–176.
2. The shift from the term ‘burden sharing’ to the term ‘effort sharing’ aims at dispelling
the view that sharing the burdens of climate change policy is a zero sum game whereby
if one gains, others must lose, and tries to present climate change mitigation policy as
a source of opportunities to achieve economic growth and improve competitiveness.
For an analysis of this transition, see Haug, C. and A. Jordan (2010), ‘Burden Sharing:
Distributing Burdens or Sharing Efforts?, in Andrew Jordan et al. (eds), Climate
Change Policy in the European Union: Confronting the Dilemmas of Adaptation and
Mitigation?, Cambridge, UK: Cambridge University Press, forthcoming.
3. See for instance Ringius, L. (1997), ‘Differentiation, Leaders and Fairness: Negotiating
Climate Commitments in the European Community’, Oslo: CICERO; Ringius, L.
(1999), ‘The European Community and Climate Protection: What’s behind the empty
retoric?’, Oslo: CICERO; Vogler, J. (2009), ‘Climate change and EU foreign policy:
the negotiation of burden sharing’, International Politics 46(4), 469–490.
4. See Article 4.6 of the Kyoto Protocol.
5. Article 3.9 of the Kyoto Protocol indicates that the negotiations for subsequent com-
mitment periods after the expiration in 2012 of the first commitment period must
start seven years before the end of the first commitment period, hence in 2005. The
Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol
established a working group in December 2005 called the Ad Hoc Working Group on
Further Commitments for Annex I Parties under the Kyoto Protocol (AWG-KP) to
discuss future commitments for industrialized countries under the Kyoto Protocol.
6. At its thirteenth session, the Conference of the Parties (COP), by its Decision 1/CP.13
(the Bali Action Plan) launched a comprehensive process to enable the full, effective
and sustained implementation of the Convention through long-term cooperative
action, now, up to and beyond 2012, in order to reach an agreed outcome and adopt a
decision at its fifteenth session. It decided that the process would be conducted under
a subsidiary body under the Convention, the Ad Hoc Working Group on Long-term
Cooperative Action under the Convention (AWG-LCA).
7. Decision 1/CP.13, Bali Action Plan, FCCC/CP/2007/6/Add.1. The Bali Action Plan
consists of five equally important pillars: (1) a shared vision for long-term coopera-
tion action, including a long-term goal for global emission reductions, (2) mitigation;
(3) adaptation; (4) technology development and transfer; (5) provision of financial
resources and investment to support action on mitigation, adaptation and technol-
ogy cooperation. For an analysis of the Bali Action Plan and more generally of
the international negotiations, see Spence, C. et al. (2008), ‘Great Expectations:
Understanding Bali and the Climate Change Negotiations Process’, Review of
Community and International Environmental Law 17(2), 142–153. See also L. Rajamani
(2008), ‘From Berlin to Bali and Beyond: Killing Kyoto Softly’, International and
Comparative Law Quarterly 57(9), 909–939. Mace, M.J., (2008), ‘The Bali Road Map:
Can It Deliver an Equitable Post-2012 Climate Agreement for Small Island States?’,
Review of Community and International Environmental Law 17(2), 183–192.
8. Macdonald, R.S.J. (1996), ‘Solidarity in the Practice and Discourse of Public
International Law’, Pace International Law Review 8(2), 259–302.
9. Friedmann, W. (1969), ‘The relevance of international law to the processes of eco-
nomic and social development’, in R.A. Falk and C.E. Black (eds), The Future of the
International Legal Order, Princeton, NJ: Princeton University Press, pp. 8–10.
10. See Burley, A.-M.S. (1993), ‘International Law and International Relations Theory: a
Dual Agenda’, American Journal of International Law 87(2), 205–240.
11. Dictionary of the European Foundation for the Improvement of Living and Working
Conditions, available at http://www.eurofound.europa.eu/areas/industrialrelations/
dictionary/definitions/solidarityprinciple.htm. Last accessed 26 October 2009.
12. This discussion is limited to solidarity between Member States, not between EU citizens.

13. The other prominent area where solidarity is the key normative principle is migra-
tion. Thielemann, E.R. (2005), ‘Symbolic Politics or Effective Burden-Sharing?
Redistribution, Side Payments and the European Refugee Fund’, Journal of Common
Market Studies 43(4), 807–824; Thielemann, E.R. (2003), ‘Between Interests and
Norms: explaining burden sharing in the European Union’, Journal of Refugee Studies
16(3), 253–273. It also plays an important role in the enlargement processes. See Jileva,
E. (2004), ‘Do norms matter? The principle of solidarity and the EU’s eastern enlarge-
ment’, Journal of International Relations and Development 7(1), 3–23.
14. See Azoulai, l. (2005), ‘The Acquis of the European Union and International
Organisations’, European Law Journal 11(2), 196–231, at p. 197.
15. Case C-22/70 Commission v Council [1971] ECR 281.
16. Ibid, at p. 283.
17. See Case C-149/96, Portugal v Council [1999] ECR I-8395, paras 83 et seq; Case 126/86,
Giménez Zaera [1987] ECR 3697, para. 11.
18. Case 39/72, Commission v Italy [1973] ECR 101, paras. 24 et seq.
19. Case C-72/95, Kraaijeveld [1996] ECR I-5403, para. 58; Case C-165/91, Van Munster
[1994] ECR I-4661, para. 32; Case C-378/98, Commission v Belgium [2001] ECR I-507,
para. 31.
20. See Kingreen, T. (2006), ‘Fundamental Freedoms’, in A.V. Bogdandy and J. Bast (eds),
Principles of European Constitutional Law, Oxford: Hart Publishing, pp. 549–584.
21. Communication from the Commission to the European Council and the European
Energy Parliament, ‘An Energy Policy for Europe’, COM(2007)1 Final, at p. 11.
22. Treaty of Lisbon amending the Treaty on European Union and the Treaty establish-
ing the European EC, signed at Lisbon, 13 December 2007, Official Journal No. C 306,
17.12.2007.
23. See Lang, J.T. (2008), ‘Article 10 EC – the Most Important General Principle of
Community Law’, in U. Bernitz et al.(eds), General Principles of EC Law in a Process
of Development, Kluwer Law International, pp. 75–114, at 76.
24. In the words of Temple Lang: ‘It is the basis of the principle that national courts must
give ‘effective’ protection to rights given by Community law, and must give remedies at
least ‘equivalent’ to those given for breach of corresponding rights under national law.
It is the basis for the principle that national courts must, as far as possible, interpret
national legislation in a way that is consistent with Community directives that the leg-
islation is supposed to implement. It is the basis for the principle that directives, even
if not implemented, create rights for private parties against authorities of the Member
State, although such directives create no duties for private parties (only the national
implementing legislation does that). It is also the legal basis for the principle that
national legislation which limits or regulates any of the freedoms guaranteed by the
Treaty (freedom of establishment and services, free movement of persons and capital,
freedom of competition) may limit them only for a legitimate (i.e., non-protectionist)
purpose in the general interest and only if the legislation is appropriately designed,
restricts them no more than is necessary to achieve that purpose, and is part of a con-
sistently applied national policy.’ See ibid.
25. Case C-25/94 Commission v Council [1996] ECR I-1469, at 1510. Ruling 1/78 Natural
Rubber [1978] ECR 2151, paras. 34–36. Opinion 2/91 ILO Convention on Safety in
use of Chemicals at work [1993] ECR I-1061, paras. 10–12 and 36. Opinion 1/91,
International agreements on intellectual property [1994] ECR I-5267 paras. 108–109;
Opinion 2/92 OECD national treatment decision [1995] ECR I-521; Case C-392/98 Dior
and Others [2000] ECR I-11307, at para. 36.
26. Case 104/81 Hauptzollamt Mainz v C.A. Kupferberg & Cie kg a.A Kupferberg, above,
note 14, at para.13. This is also required by the principle pacta sunt servanda, recog-
nized in Article 26 of the Vienna Convention on the Law of Treaties, signed at Vienna
on 23 May 1969, entered into force on 27 January, 1980.
27. See J.T. Lang (2001), ‘The Duties of Cooperation of National Authorities and Courts
under Article 10 EC: two more reflections’, European Law Review, 26, 84–93.

28. Id, at p. 91.

29. At the time of ratification of the Protocol, the EC was formed by 15 Member States.
Ten new Member States joined in 2004, and two more in 2007. Of the current 27
Member States, only two are non-Annex I parties under the UNFCCC (Malta and
Cyprus). This means that they do not have emission reduction commitments under
the Kyoto Protocol. The ten new Member States that joined in 2004 are economies in
transition under the UNFCCC, hence they have more lenient obligations than the old
Member States.
30. This means that if the emissions of the 15 Member States of the EC in the year 1990
were X, in order to comply with its target under the Protocol, the EC has to ensure
that its aggregate emissions between the years 2008 to 2012 are no more than the 1990
emissions times 0.92 times 5.
31. Council Decision of 25 April 2002 concerning the approval, on behalf of the European
EC, of the Kyoto Protocol to the United Nations Framework Convention on Climate
Change and the joint fulfilment of commitments thereunder, Official Journal No. L
130, 15.5.2002.
32. Delreux, T. (2006), ‘The European Union in International Environmental Negotia-
tions: a legal perspective on the internal decision making process’, International
Environmental Agreements: Law, Politics, Economics, 6(3), 231–248, at p. 236.
33. A mixed agreement can be defined as an international agreement to which both the EC
and one or more of its Member States are parties.
34. Treaty of Nice amending the Treaty on European Union, the Treaties establishing the
European Communities and certain related acts, Official Journal No. C 80, 10.3.2001,
Article 3.1(l). This provision has been replaced by Article 188 N of the Treaty on the
Functioning of the European Union.
35. According to this article, the Commission must make recommendations to the
Council, which in turn authorizes the Commission to open the negotiations. The
Commission is competent for conducting the negotiations in consultation with special
committees established by the Council to assist in the task and within the negotiating
framework established by the Council.
36. Case 104/81 Hauptzollamt Mainz v C.A. Kupferberg & Cie kg a.A [1982] ECR 3641.
37. Id., at para. 11.
38. This chapter does not examine all the consequences in EC law that stem from the fact
that the Kyoto Protocol is a mixed agreement. In that regard, see Eritja, M.C. et al.
(2004) ‘Compliance Mechanisms in the Framework Convention on Climate Change
and the Kyoto Protocol’, Revue Generale de Droit 34, 51–105. See also Jacquemont,
F. (2005) ‘The Kyoto Compliance Regime, the European Bubble: Some Legal
Consequences’, in E. Rehbinder and M. Bothe (eds), Climate Change Policy, the
Netherlands: Eleven International Publishing, pp. 351–406.
39. See ECJ Opinion 2/00 [2001] ECR I-9713. See also Delreux, T., ‘The European Union
in International Environmental Negotiations’, above note 32, at 236.
40. The Court of Justice has in fact discouraged the attempts to allocate the compe-
tences between the Member States and the EC. Instead, it has emphasized the need
for common action, or close cooperation which stems from the requirement of
unity in the international representation of the EC. See i.e., Ruling 1/78 (Re Draft
Convention on the Physical Protection of Nuclear Material) [1978] ECR 2151; Opinion
2/91 (Convention NO 170 ILO on safety in the use of chemicals at work) [1993] ECR
I-1061.
41. Case C-13/00 Commission v Ireland [2001] ECR I-2943.
42. Id., at para. 20.
43. Case C-459/03 (MOX Plant) [2006] ECR I-4635, at para. 121. See for an analysis of
this case, Lavranos, N. (2006), ‘The MOX Plant Judgment of the ECJ: How exclu-
sive is the jurisdiction of the ECJ?’, European Energy and Environmental Law Review
15(10), 291–296; Lavranos, N. (2009), ‘The Epilogue in the MOX Plant Case: an end
without findings’, European Energy and Environmental Law Review 18(3), 180–184.

44. Depledge, J. ‘Tracing the Origins of the Kyoto Protocol: An Article-by-Article

Textual History’, United Nations Technical Paper (1999/2000), at p. 135.
45. Article 4.3 has the effect that the new Member States cannot join the EU ‘bubble’
under Article 4.6.
46. In addition, Member States that fail to comply with their Kyoto Protocol targets
would be held liable under EC law.
47. See Steinberger, E. (2006), ‘The WTO Treaty as a Mixed Agreement: Problems with
the EC’s and the EC Member States Membership of the WTO’, The European Journal
of International Law 17(4), 837–862, at p. 860.
48. See case Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom
and United States of America) [1954] ICJ rep.19, at 32. See also case Certain Phosphate
Lands in Nauru (Nauru v Australia) [1992] IJC rep.240, at 260–262, paras. 54–57.
49. See case Ilascu and Others v Moldova and Russia, 48787/99 (2005) 40 EHRR 46, at
110–112, paras 484–490.
50. See case Oil Platforms (Islamic Republic of Iran v USA) [2005] ICJ rep. 802, Separate
Opinion of Judge Simma, at para. 65. See also Bartels L. (2005), Human Rights
Conditionality in the EU’s International Agreements, New York: Oxford University
Press, at p. 160.
51. Decision 27/CMP.1, Procedures and mechanisms relating to compliance under the
Kyoto Protocol, FCCC/KP/CMP/2005/8/Add.3. For an analysis of the compli-
ance regime of the Kyoto Protocol, see Ulfstein, G. and J. Werksman (2005), ‘The
Kyoto Compliance System: Towards Hard Enforcement’, in O.S. Stokke et al. (eds),
Implementing the Climate Regime: International Compliance, London: Earthscan, pp.
39–62; Werksman, J. (2005), ‘The Negotiation of a Kyoto Compliance System’, in
O.S. Stokke et al., ibid, pp. 17–35.
52. There is some precedent on this, although it does not focus on lack of compliance with
emission targets, but rather on lack of compliance with national system requirements
for countries with emission targets. This national system includes the institutional,
legal and procedural arrangements for estimating emissions and sinks covered by the
Kyoto Protocol, and for reporting and archiving this information. National systems
are required for a country to account for its emissions and demonstrate compliance.
What is of particular interest for this chapter is that this precedent concerns an EC
Member State, namely Greece. Greece was declared by the enforcement branch to be
in non-compliance with this obligation, which had the following consequences: it was
required to submit a plan to address its non-compliance within three months, and was
declared ineligible to participate in the market mechanisms (Articles 6, 12 and 17). On
13 November 2008, after considering the most recent report from the expert review
team, and the revised plan submitted by Greece, the enforcement branch declared that
Greece was again fully eligible to participate in the market mechanisms.
53. One must nevertheless doubt whether this would be a likely outcome. Some authors
have considered that parties facing this penalty could negotiate for themselves a very
generous target for the post-2012 period so that the practical consequences of the
penalty would be negligible. However, the EU has already unilaterally adopted a
legally binding target for 2020 consisting in reducing its 1990 emissions by 2020, hence
that scenario would seem not to apply in the case of the EC.
54. See Jacquemont, F., ‘The Kyoto Compliance Regime, the European Bubble: Some
Legal Consequences’, above, note 38, at 373.
55. Decision No. 280/2004/EC of the European Parliament and of the Council of 11
February 2004 concerning a mechanism for monitoring EC greenhouse gas emissions
and for implementing the Kyoto Protocol, OJ L 49, 19.2.2004; Commission Decision
of 10 February 2005 laying down rules implementing Decision No. 280/2004/EC of the
European Parliament and of the Council concerning a mechanism for monitoring EC
greenhouse gas emissions and for implementing the Kyoto Protocol (notified under
document number C(2005) 247), OJ L 55, 1.3.2005.
56. Directive 2003/87/EC of the European Parliament and of the Council of 13 October

2003 establishing a scheme for greenhouse gas emission allowance trading within the
EC and amending Council Directive 96/61/EC, OJ L 275, 25.10.2003.
2004 amending Directive 2003/87/EC establishing a scheme for greenhouse gas emis-
sion allowance trading within the EC, in respect of the Kyoto Protocol’s project
mechanisms, Text with EEA relevance, OJ L 338, 13.11.2004.
58. For an overview of these measures, see for instance Bruggeman, V. and B. Delvaux
(2005), ‘EU energy policy and legislation under pressure since the UNFCCC and the
Kyoto Protocol?’, in M. Peeters and K. Deketelaere (eds), EU Climate Change Policy –
the Challenge of New Regulatory Initiatives, Cheltenham, UK and Northampton, MA,
US: Edward Elgar, pp. 223–239.
59. European Environment Agency, Annual European EC greenhouse gas inventory
1990–2006 and inventory report 2008, Technical Report No. 6/2008. Nevertheless, it
must be noted that the economic and financial crises have led to a noticeable reduction
in the emissions of the old 15 Member States which may facilitate compliance with
the aggregate target. See European Environment Agency, Greenhouse gas emissions
trends and projections in Europe 2009 – Tracking progress towards Kyoto targets,
EEA Report No. 9/2009, at 51.
60. It is important to note that supplementarity is not a legally binding principle under the
Kyoto Protocol and EC law. Moreover, it has not been given a quantitative definition
under the Kyoto Protocol regime. However, the EC sought to introduce it in a legally
binding manner in the Kyoto Protocol and is committed to ensure that domestic emis-
sion reductions represent more than 50 per cent of its target.
61. This provision reads: ‘[I]f the emissions of a party included in Annex I in a commit-
ment period are less than its assigned amount under this Article, this difference shall,
on request of that party, be added to the assigned amount for that Party for subse-
quent commitment periods.’
62. My emphasis.
63. My emphasis.
64. See for example cases C-41/93 France v Commission [1994] ECR I-1829; T-105/95
WWF v Commission [1997] ECR II-313; C-378/00 Commission v European Parliament
and Council [2003] ECR I-937.
65. The fact that the word ‘individual’ goes before ‘collective’ is a significant issue.
66. My emphasis.
67. See Section IX of Decision 27/CMP.1. See discussion above in section 2.2.
68. Provided that the party has not been suspended from carrying on such acquisitions
under Section XV.4, and in accordance with the eligibility requirements of Articles 6,
12 and 17 Kyoto Protocol. If this would be the case, the Party can still request that its
eligibility be reinstated. This request can be made to the enforcement branch which has
to decide the matter as soon as possible.
69. Note however that the supplementarity requirement has not been given a quantitative
definition under the Kyoto Protocol regime.
70. Under that agreement, Member State X would purchase Kyoto units under Article 17
Kyoto Protocol for compliance and Member State Y would pay for them.
71. See ENDS Europe Daily, 14 October 2009. See also press releases from the Ministry
of the Environment of the Czech Republic, available at: http://www.mzp.cz/en/
news_pr091014aau_spain and http://www.mzp.cz/en/news_pr091013aau_Austria.
Last accessed 15 October 2009.
72. This means that the EC is adopting this target as a matter of EC law, before the inter-
national climate change negotiations dealing with the post-2012 climate regime are
concluded, and regardless of the mitigation targets agreed upon therein by all parties
within the UNFCCC. This constitutes an important difference in relation with the first
BSA, which was formally adopted after the Kyoto Protocol had been negotiated and
targets had been agreed upon for all Annex I parties. See section 4 below.
73. Council of the European Union, Conclusions of 6 April 2009, No. 8434/09. These

conclusions refer to the BSA as adopted by the European Parliament. See European
Parliament legislative resolution of 17 December 2008 on the proposal for a deci-
sion of the European Parliament and of the Council on the effort of Member States
to reduce their greenhouse gas emissions to meet the Community’s greenhouse gas
emission reduction commitments up to 2020 (COM(2008)0017 – C6-0041/2008
– 2008/0014(COD)).
74. Decision No. 406/2009/EC of the European Parliament and of the Council of 23 April
2009 on the effort of Member States to reduce their greenhouse gas emissions to meet
the Community’s greenhouse gas emission reduction commitments up to 2020, OJ L
140, 5.6.2009.
75. Report on the proposal for a decision of the European Parliament and of the Council
on the effort of Member States to reduce their greenhouse gas emissions to meet the
EC’s greenhouse gas emission reduction commitments up to 2020 (COM(2008)0017 –
C6-0041/2008 – 2008/0014(COD)) Committee on the Environment, Public Health and
Food Safety, Article 5a.
2003 establishing a scheme for greenhouse gas emission allowance trading within the
Community and amending Council Directive 96/61/EC, OJ L 275, 25.10.2003.
77. Report on the proposal for a decision of the European Parliament and of the Council
on the effort of Member States to reduce their greenhouse gas emissions to meet the
EC’s greenhouse gas emission reduction commitments up to 2020, Article 5a.
78. European Parliament, P6_TA-PROV(2008)0611 Shared effort to reduce greenhouse
gas emissions (A6-0411/2008 – Rapporteur: Satu Hassi) European Parliament legisla-
tive resolution of 17 December 2008 on the proposal for a decision of the European
Parliament and of the Council on the effort of Member States to reduce their green-
house gas emissions to meet the EC’s greenhouse gas emission reduction commitments
up to 2020 (COM(2008)0017 – C6-0041/2008 – 2008/0014(COD)).
79. Decision No 406/2009/EC of the European Parliament and of the Council of 23 April
2009 on the effort of Member States to reduce their greenhouse gas emissions to meet
the Community’s greenhouse gas emission reduction commitments up to 2020, OJ L
140, 5.6.2009, Article 7.1(a).
80. Ibid, Article 7.1(b).
81. Ibid, Article 7.1(c).
82. In accordance with Article 230 EC Treaty.
83. European Commission, ‘Questions and answers on the decision on effort sharing’,
MEMO/08/797, 17.12.2008.
84. Para. 1 of the Bali Action Plan reads: ‘The conference of the parties [. . .] to launch a
comprehensive process to enable the full, effective and sustained implementation of
the Convention through long-term cooperative action, now, up to and beyond 2012,
in order to reach an agreed outcome and adopt a decision at its fifteenth session.’
85. The advanced unedited version is available at: http://unfccc.int/files/meetings/cop_15/
application/pdf/cop15_cph_auv.pdf. Last visited 2 February 2010.
86. The Copenhagen Agreement asks Annex I parties to submit, by 31 January 2010,
economy-wide emission targets for 2020, and Non-Annex I parties to submit mitiga-
tion actions. For an analysis of the negotiations in the year prior to the Copenhagen
Agreement, see Kulovesi, K. and M. Gutierrez (2009), ‘Climate Change Negotiations
Update: process and prospects for a Copenhagen Agreed outcome in December 2009’,
Review of Community and International Environmental Law, 18(3), 229–243.
87. See for instance Robert Stavins, ‘What Hath the COP Wrought? A Preliminary
Assessment of the Copenhagen Accord’, Grist, 20 December 2009, available at
http://www.grist.org/article/2009-12-20-a-preliminary-assessment-of-the-copenhagen-
accord/. Last visited 10 January 2010. The EU has subscribed to this view in its
official position on the Copenhagen Accord. See the Press release ‘Climate change:
European Union notifies EU emission reduction targets following Copenhagen
Accord’, IP/10/97, 28 January 2010.

88. For an analysis of all these possibilities, see Kulovesi, K. (2009), ‘The Carbon Market
and the Post-2012 Climate Regime: Key Legal Scenarios’, Carbon and Climate Law
Review, 3(3), 270–279, at p. 277. See also Rajamani, L. (2009), ‘Addressing the Post-
Kyoto Stress Disorder: Reflections on the Emerging Legal Architecture of the Climate
Regime’, International and Comparative Law Quarterly 58(4), 803–834.
89. One important question from the perspective of this book is the potential relevance of
state and private liability claims to achieve mitigation and adaptation in the absence of
an international climate change regime with stringent mitigation targets. But this will
not be considered in this chapter.
90. See section 3.2.2. above.
91. See for instance Communication from the Commission to the European Parliament,
the Council, the European Economic and Social Committee and the Committee of
the Regions – towards a comprehensive climate change agreement in Copenhagen,
COM(2009)39 Final.
92. DG Internal Policies of the Union, Policy Department Economic and Scientific Policy,
‘The EU’s emission reduction target, intended use of CDM and its +2 C’, IP/A//ENVI/
NT/2008-14.
93. Directive 2009/29/EC, Article 9.
94. Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009
on the promotion of the use of energy from renewable sources and amending and
subsequently repealing Directives 2001/77/EC and 2003/30/EC, OJ L 140, 5.6.2009,
Article 3.1 and Annex I.
95. Decision 406/2009, Article 3 and Annex I.
96. Directive 2009/29/EC, Article 10.2.
97. Directive 2009/28/EC, Recital 15 and Annex I.
98. European Commission, White Paper ‘Adapting to climate change: Towards a
European framework for action’, COM(2009)147 Final, at p. 4.
99. Alcamo, J. et al. (2007), ‘Europe. Climate Change 2007: Impacts, Adaptation and
Vulnerability’, in Contribution of Working Group II to the Fourth Assessment
Report of the Intergovernmental Panel on Climate Change, M.L. Parry et al. eds.,
Cambridge, UK: Cambridge University Press, 541–580.
100. Treaty on the Functioning of the European Union, Article 191.2
101. Treaty on the Functioning of the European Union, Article 174.
102. Ibid., at p.12.
103. Treaty on the Functioning of the European Union, Article 177.
104. The Structural and Cohesion spending programmes are concentrated on Lisbon (inno-
vation, growth, jobs) and Gothenburg (sustainable development) goals. In the period
2007–2013, cohesion policy will amount to €308 billion, 62 per cent of which should
finance projects linked to the Lisbon objectives. See Aakre, S. and D.T.G. Rübbelke
(2008), ‘Adaptation to Climate Change in the European Union Efficiency vs. Equity
Considerations’, CEPS Working Document No. 301 CEPS, Brussels, at p. 31.
105. European Commission, White Paper ‘Adapting to climate change: Towards a
European framework for action’, COM (2009)147 Final, at p. 6.
106. Green Paper from the Commission to the Council, the European Parliament, the
European Economic and Social Committee and the Committee of the Regions –
‘Adapting to climate change in Europe – options for EU action’, COM(2007)354, at
pp. 14–26.
107. COM(2000)87 Final.
108. McEvoy, D. et al. (2008), ‘Adaptation and Mainstreaming of EU Climate Change
Policy: An Actor-Based Perspective’, CEPS Policy Brief 149, 1–14. A major research
project has dealt with both mitigation and adaptation in the context of EU climate
change policy. See the ADAM (adaptation and mitigation) project, available at http://
www.adamproject.eu/. Last accessed 28 October 2009.
109. Member States which have done so include Denmark, Finland, Germany, France,
Hungary, Netherlands, Spain, Sweden and the United Kingdom.

110. See European Commission, ‘Stepping up international climate finance: a European

blueprint for the Copenhagen deal’, COM(2009)475/3. The Council made clear
financial commitments during the negotiations at Copenhagen, where it committed to
contribute EUR 2.4 billion annually for the years 2010 to 2012. See the Conclusions of
the European Council of 10/11 December 2009, EUCO 6/09, at p. 13.
111. See Egenhoger, C. and Anton Georgiev (2010), ‘Why the Transatlantic Climate
Change Partnership Matters More Than Ever’, CEPS Commentary, 10 January 2010,
at p. 2.
112. Timmons Roberts J. et al. (2010), ‘Copenhagen’s Climate Finance Promise: Six Key
Questions’, IIED Briefing, February 2010.

5. The regulatory approach of the
EU in view of liability for climate
change damage
Marjan Peeters
1. INTRODUCTION
In the course of developing a European climate change policy package,

a variety of regulatory approaches have been established by the EU leg-
islature. These measures target directly and indirectly a wide range of
different greenhouse gas emitting sources, and aim at an overall reduction
of greenhouse gas emissions by 20 per cent in 2020 compared to 1990
emission levels.1 If full compliance with the obligatory emission reduction
measures is reached by the covered sources, they will by nature be contrib-
uting less to the overall problem of global warming and its possible forth-
coming damage compared to actors in legal systems where less intensive
or no obligatory emission reductions are provided and where industries
and other sources fail to make substantial voluntary efforts. Within the
given regulatory framework of the EU, it will however be the case that
some actors face stricter regulatory obligations than others.2 In fact, there
has already been a case before the European Court of Justice about the
question of why one sector (the steel sector) was covered by the principal
regulatory instrument known as the EU Emissions Trading Scheme (EU
ETS), but another competing sector (the aluminium sector) was not.3 The
court allowed however in principle the gradual expansion of such a regu-
latory instrument, which means that not all the sources will be covered at
the same time by the same regulatory approach, and that, hence, different
regulatory approaches and obligations towards sources are possible. The
sectors covered by stringent regulatory approaches will, if they comply, be
contributing less to the problem than those covered by laxer regulations or
even not covered by climate protecting legislation at all.
Compliance with public regulations does as such not automatically
exclude the regulated sources from liability for damage caused by climate
change resulting from their greenhouse gas emissions. The regulatory
90

The regulatory approach of the EU 91
approach within the EU in fact still allows carbon emissions – a zero emis-
sion approach would be too radical and perhaps not even necessary – and,
hence, compliant greenhouse gas emitting sources are still contributing to
the climate change problem, albeit less when compared to an unregulated
situation. The EU target is still, as already stated above, only aiming at a
20 per cent emission reduction in 2020, while a stronger target – like the
target of 30 per cent reduction in 2020 compared to 1990 which is foreseen
by the EU in case an international agreement is reached – would as such
be a more ambitious regulatory option.4 Given the fact that such an inter-
national agreement is not yet concluded, the EU sticks, at least for the
time being, to the less ambitious emission reduction target of 20 per cent
in 2020.5 But even if the 30 per cent target becomes part of the binding
regulatory framework, the issue of how to deal with the possible damage
caused by the greenhouse gas emissions still allowed needs to be addressed.
Carbon emissions come from a variety of sources. Notably, the fossil
fuel consuming industries are, since the start of the industrial revolution,
major greenhouse gas emitters and consequently, following the assess-
ments of the IPCC regarding the anthropogenic contribution to climate
change, are hence seen as major contributors to anthropogenic climate
change.6 Fossil fuel powered electricity generating industries are part of
them. As such, one can imagine that these industries will be a possible
target for liability claims (and so even more if retro-perspective liability
were to be accepted). Albeit still difficult to vest such a claim effectively, it
is increasingly argued that liability for climate damage is not unthinkable
any more.7
It is however not yet possible to predict when, how and where climate
change damage will occur and, hence, who the possible victims will be and
what kind of damage they will suffer. On the other hand, projections of the
IPCC suggest that action should not be postponed in order to avoid the
risk of dramatic climate change and resulting significant damage to nature
and people. In this respect, a precautionary emission reduction of minus
25–40 per cent in 2020 is given as a policy option by the IPCC.8 If the regu-
latory approach together with voluntary approaches doesn’t reach this
target, there is by its very nature a greater chance of future damage (in par-
ticular when dangerous tipping points are reached), and, hence, a larger
responsibility current emitters for such damage. The problem of climate
change is indeed a problem with a ‘long-tail’ problem, meaning that there
is a large amount of time between on the one hand the factual and deliber-
ate emission of the gases, and, on the other hand, the likely appearance of
its damaging effects. Future damage and, consequently, future victims are
not yet precisely known about, while it is widely recognized that present
anthropogenic greenhouse emissions very likely contribute to a further

global warming and that, hence, significant and other damage can be
expected.9 This ‘long-tail’ characteristic, in particular the fact that green-
house gas emissions emitted today have a long-term effect, distinguishes
climate change from other already regulated transboundary problems like
nuclear accidents, or like marine oil transport accidents that are sudden
single events leading to immediate severe (and possibly long-lasting)
pollution.
Hence, the climate change problem boils down to present polluters and
future victims – and the latter run the risk of not being able to hold the
polluters liable.10 Even if the legal hurdles of civil liability could be over-
come, victims still run the risk that if they want to claim for their damage,
the liable polluters simply no longer exist, or, if they were still active, don’t
have sufficient financial resources for paying the damage for which they
could be held liable.
This pressing characteristic of climate change – present polluters and
future victims – and, in this regard, the practical drawbacks of civil
liability, leads to the question of how the responsibility of the present
polluters for possible future damage could be addressed by the present
regulatory approach. Thus far, however, the question of how the regula-
tory approach as being adopted in the EU deals with the responsibility
of the present polluters for future climate change damage, and whether
there is a need to stipulate specific provisions in the regulatory package,
for instance in order to oblige polluters to provide for financial means in
order to be able to pay in case of future liability claims, has hardly been
addressed in literature. Much emphasis has gone on the adoption and
revision of the core instrument, the emissions trading instrument (called
the EU ETS), together with related measures like the geological storage of
carbon dioxide and the legal framework and instruments for the promo-
tion of renewable energies. The regulatory package of the EU however
isn’t, at least not yet, following the safer approach of minus 25–40 per
cent as stipulated by the IPCC, which means that the current regulatory
approach aiming at minus 20 per cent emission reduction in 2020 implies
that even in case of full compliance by the regulated sources, there is a
chance that harm resulting from climate change will occur. This observa-
tion leads to the question of how the regulatory package already deals
with or could deal with the responsibility of current polluters for future
harm. Indeed, with regard to nuclear and marine oil pollution accidents,
provisions for liability and financial securities has been established, albeit
not yet in a perfect sense. For damage resulting from climate change
such provisions have had hardly any attention, which means that future
victims are highly uncertain about their ability to hold polluters liable
and, moreover, to get financial compensation from the polluters held

liable. Present companies that contribute to greenhouse gas emissions

may perhaps no longer exist in 15, 30 or 50 years’ time, which means that
in such cases a future liability claim can no longer be effectuated simply
because of the fact that the polluter no longer exists. Given this long-
term characteristic, and hence the possibility that at a certain point in the
future the polluter no longer exists and therefore cannot be sued in court,
or given the possibility that he won’t have the financial capability to com-
pensate for the damage, it would make sense from a victim’s perspective if
the responsibility of present polluters to provide for resources in order to
pay for future damage were already incorporated, in one way or another,
into the regulatory approach.
Besides the characteristic of being a ‘long-tail’ problem with present pol-
luters and future victims, there are additional reasons for examining how
within the current regulatory framework present polluters could already
be approached with regard to their responsibility for possible future
damage. First, as already explained, the current European climate policy
and its subsequent legislation do not represent the highest ambition for the
prevention of significant and other damage resulting from climate change.
Here, it needs to be recognized that it is difficult for the legislator to
choose the right target, since science cannot predict which level of emission
reduction would prevent future damage caused by climate change. This
means that present targets can be too loose or, on the other hand, even
too tight. It can only be concluded afterwards whether the correct level of
stringency was laid down in the regulatory approach, and thus whether
the right commitments were targeted to polluters through the regulatory
approach. At present, however, the first option – too loose targets – seems
likely to be the case, given that, as has just been explained, the current
targets set by the EU are not strict enough compared to the assessments
of the IPCC that focus on a low stabilization level. The fact that there is a
lack of willingness of other major emitting countries to commit to binding
targets in an international legal framework, and hence the fear of carbon
leakage, is one, but nevertheless important, reason for that. This means,
however, that the fact that present polluters likely contribute to the future
occurrence of significant and other damage is implicitly accepted in the
current regulatory package of the EU (and even more in the approach of
other major economies). Given the current regulatory approach that is
not certain to prevent damage, thereby accepting that present polluters
contribute to future damage, it seems logical to address the question of
how to allocate responsibility to the present polluters for that and, for
instance, how not to leave the burden to the future victims, or not to pass
it on to a future governmental budget. Of course, such an examination
should not be done without questioning how to establish a real preventive

regulatory approach, but, as has been said, besides political unwilling-

ness to move to ambitious targets, there is a problem for the legislator as
to how to choose the right level of prevention. Hence, this contribution
focuses on the question of how the polluters’ responsibility for future
damage can be addressed if, for whatever reason, the overall target is not
the most stringent one. Second, in the economic literature, it is argued that
not the most precautionary option – avoiding all possible damage – but
rather an economic optimal ambition should be pursued. Nordhaus for
instance considers the economic optimal policy (aiming at a reduction of
global mean temperature relative to 1900 to 2.6°C in 2100), and notes that
after such a policy has been taken, there will still be substantial residual
damages from climate change.11 Hence, if indeed such an economic
optimal approach were to be taken, should it not then be considered what
ought to be done about the explicitly accepted chance of damage on the
part of victims? Third, in the case of climate change, the presence of many
polluters contributing to the same problem and who to a large extent are
already covered by regulation, notably through the European emissions
trading instrument, leads to the view that it seems efficient to approach the
polluters ex ante, through one policy approach targeting their responsibil-
ity towards victims, instead of a chaotic ex post liability approach through
which many victims in and outside the EU try to find some of the pollut-
ers liable for the damage they suffer. Now the EU ETS has been largely
harmonized, which as such may be criticized because it prevents many
flowers (different emissions trading schemes on the national level) from
blooming. It is on the other hand in line with the basic political motiva-
tion of this harmonization – which is to provide a level playing field for
competing industries in the EU – to consider addressing ex ante within
the European regulatory regime the responsibility of polluters for future
harm. Moreover, if this concern is not taken up by the EU legislature, it
is not unthinkable that concerned Member States will explore how to do
just that on the national level. And, finally, one can assume that the con-
cerns of the present industries (the polluters) are better represented in the
legislative process than those of future victims. Hence, it is necessary to
examine whether the responsibility of polluters for future victims has been
addressed at all in the regulatory package and, if lacking, how it could be
incorporated into the current package.
This contribution tries to launch a debate as to whether and how pro-
visions with regard to the responsibility of present polluters for future
damage should be considered within the applicable regulations. The
examination focuses on the European legal framework for climate protec-
tion, and gives some specific attention to the coal-fired electricity gener-
ating installations. The structure is as follows: section 2 gives a general

introduction to such fossil fuel-fired electricity generation, and section 3

describes present regulatory approaches to this industry. Section 4 will
then elaborate on the possibility of introducing provisions into the regula-
tory regime that make polluters responsible for future damage. In particu-
lar the possibility of action on the Member State level will be discussed,
although the debate is very explorative and other options, like notably an
improvement of the EU ETS itself, should get further attention. Section 5
concludes the paper with some initial observations.
2. FOSSIL FUEL: A MAJOR SOURCE FOR ENERGY

PRODUCTION
Energy production with fossil fuels is currently widely spread, and a swift
phasing out of this energy source would have quite far-reaching societal
and economic consequences in the near term. Hence, deep structural
changes are needed in order to transfer to a low-carbon society, including
low-carbon energy production. The global political level, the G-20, has
as such determined the phasing out of fossil fuel subsidies as a medium-
term policy goal.12 Furthermore, the International Energy Agency (IEA)
has accounted that by 2030 a cumulative incremental investment of
$10.5 trillion (€7 trillion; trillion stands for 1000 billion) will be needed
in low-carbon technologies and energy efficiency in view of limiting the
greenhouse gas concentration to 450 ppm.13 Interestingly, the G-20 has
launched a managerial approach towards reaching the conceived policy
goals, as they have agreed in September 2009 that the Energy and Finance
Ministers, based on their national circumstances, shall develop imple-
mentation strategies and timeframes, and report back to the G-20 at the
next summit. By doing so, the G-20 has in fact adopted an informative
approach about national strategies towards downsizing the fossil fuel
sector, also with regard to the phasing out of subsidizing coal.14
Besides attention to the question of how a transfer to a plain fossil
fuel economy can be made, important questions for the interim period
are whether the still-‘needed’ fossil fuel generated energy is produced as
cleanly and efficiently as possible, and whether energy is used efficiently
and frugally. In addition, there is the question of whether responsibility
will be taken for the possible damage caused by the greenhouse gas emit-
ting energy production.
It is nevertheless also the case that in the EU coal still plays a major role
in view of security of energy supply. According to the Commission, over
50 per cent of EU electricity comes from fossil fuels, mainly coal which
accounts for about 30 per cent of overall electricity generation in the EU.15

It is even the case that fossil fuels will remain a major source of energy in
the EU, which can be illustrated by the adopted legislative goal for renew-
able energy: today carbon-friendly energy sources account for around 9
per cent of the EU energy consumption, while there is a legally binding
commitment to reach only a 20 per cent contribution by 2020.16 This
means that from 2020 onwards 80 per cent of the energy consumption will
still most likely come from both nuclear and fossil fuels, among which are
the relatively clean natural gas and, to a larger extent, dirty coal.
The EU ETS as such could stimulate the shift to low-carbon electricity
through the replacement of existing electricity generation capacity, but by
2030 only half of these installations will have reached their end of life.17 In
view of the discretion left to polluters under an emissions trading scheme
it can hence be the case that for those plants for which a relatively long
life-time is still foreseen based on economic considerations – given already
made investments – allowances will be bought to cover the emissions and
facilitate the continuation of coal.
Regarding coal, around only a third of the existing coal-fired capacity
in the EU is expected to reach the end of its technical lifetime in the period
2017–2022. Hence, it seems reasonable to state that a major part of the
energy production in the EU will continue to come from fossil fuels. There
is however a fast-emerging technocratic solution for dealing with emissions
from fossil fuel energy production, which is the concept of carbon capture
and geological storage of CO2. The European Commission envisions that
starting from 2020, new coal-fired power plants will be applying carbon
capture and geological storage, commonly referred to as CCS, but only if
commercial viability is demonstrated.18 According to the UK government,
CCS has the potential to reduce carbon emissions by 90 per cent.19 In 2007,
cost estimates for CO2 capture from power generation and subsequent
storage ranged up to €70 per tonne of CO2, rendering the large-scale use of
these technologies prohibitively costly for the time being.20 The transition
period to viable sustainable coal technologies which aim at near zero emis-
sion power generation from coal is envisioned to run until around 2020 or
even beyond.21 By that time, according to the Commission the costs are
expected to be around €20–30/tCO2.
It is not yet clear to what extent – in economic and technological terms
– CCS is really an optimal policy choice. For example, the UK govern-
ment is indeed cautious in its consideration of how to be prepared for the
possibility that CCS will not become proven as early as expected, which is
2020 but which at the same time is qualified as an ambitious timetable.22
Section 3 will further elaborate on the established regulatory framework
for CCS in the EU, in particular with a view on the provided liability
provisions.

When discussing the role of coal in EU energy practice and EU policy,

a distinction must be made between energy consumption and energy
production: energy produced within the EU represents only 46 per cent
of the total consumed.23 This chapter focuses on energy production
within the EU, especially by coal. According to the Commission, coal is
a key contributor to the EU’s security of energy supply and will remain
so.24 Hence, the production of energy through burning of fossil fuels
will continue to be a major activity in the EU, even while greenhouse
gas emissions have to be reduced by 20 per cent in 2020. And, it is not
unthinkable that coal becomes increasingly attractive because of the high
dependency on imports of natural gas and the political problems related
to that. After all, the energy strategy of the Commission says that: ‘All
cost-effective measures that can be taken to promote the development
and use of indigenous resources should form an important element of
an EU Energy Security and Solidarity Action Plan.’25 In particular when
CCS is established, this might further promote the indigenous production
and import of coal.26
Besides the governmental policies, the fossil fuel energy sector also is
expressing its policy in view of the need to reduce carbon emissions. For
instance, chief executives from 60 of Europe’s leading electricity compa-
nies, representing jointly more than 70 per cent of total European power
generation, pledged to achieve a ‘carbon-neutral power supply by 2050’.27
The industries however ask for governmental support for achieving that
aim, like financial support for ‘clean fossil technologies’ such as carbon
capture and storage, and simplifying licensing procedures to enable the
development of the electricity generation and transmission infrastruc-
ture. Moreover, the industries want to offset any ‘unavoidable’ emissions
through reduction projects in developing countries.
Up till now, the European coal-mining industry has been financially
supported by the EU. The applicable law emphasizes the importance given
to indigenous coal production. Council regulation (EC) No. 1407/2002
of 23 July 2002 on state aid to the coal industry states that measures
should be provided ‘which will make it possible to guarantee access to
coal reserves and hence a potential availability of Community coal’.28
It is also said that starting from the precautionary principle, in view of
energy security, the maintenance of coal-producing capability supported
by state aid is justified, and that the subsidy rules take account of ‘the
need for maintaining, as a precautionary measure, a minimum quantity
of indigenous coal production to guarantee access to reserves’.29 The sub-
sidizing of coal-mining is also seen as supporting ‘the prominent position
of European mining and clean coal technology, enabling it in particular
to be transferred to the major coal-producing areas outside the Union.

Such a policy will contribute to a significant global reduction in pollut-

ant and greenhouse gas emissions.’30 The state aid to coal is thus seen as
a way to stimulate clean coal technologies that are deemed necessary for
combating climate change. It is upheld that state aid to the coal industry
does not affect the overall fuel mix, i.e. the share of coal in electricity pro-
duction.31 The current policy nevertheless aims at decreasing state aid to
coal and increasing aid to renewable energy. The state aid regulation for
coal applies until 31 December 2010. In the absence of new sector-specific
rules, state support to the coal industry will be governed by the general EC
Treaty rules on State aid. However, in the course of developing measures
with regard to the economic crisis in 2008–2009, the EU institutions have
established a new financing instrument entitled the ‘European Energy
Programme for Recovery’ (the EEPR).32 This instrument encourages the
development of projects in the field of energy in the Community by provid-
ing a financial stimulus inter alia to carbon capture and storage and (only)
off-shore wind energy. The funding for CCS entails 1.05 billion euro. In
addition, the greenhouse gas emissions trading scheme as amended by
directive 2009/29 provides that
Up to 300 million allowances in the new entrants’ reserve shall be available

until 31 December 2015 to help stimulate the construction and operation of up
to 12 commercial demonstration projects that aim at the environmentally safe
capture and geological storage (CCS) of CO2 as well as demonstration projects
of innovative renewable energy technologies, in the territory of the Union.33
At a price of 20 euro per allowance, this would represent a maximum

subsidy of 6 billion euro. Those allowances could otherwise have been sold
by the Member States to the EU ETS sources.
In conclusion, in view of security of energy supply, coal is seen as an
important energy source in the EU. In the near term, this fossil fuel will
continue to be a major source of electricity production, both coming from
indigenous production as – predominantly – from imports. It is envisioned
that starting from 2020 carbon capture and geological storage will be
applied, in particular by new coal-fired power installations, which would
mean mitigation of emissions of greenhouse gases to the atmosphere. The
feasibility and commercial viability of this technique is however yet to be
explored, while an appreciable amount of financial support is foreseen by
the EU for selected pilot projects. For the long term, the industry sector
itself has suggested becoming carbon neutral, inter alia meaning that
unavoidable emissions should be compensated for by emission reduction
projects in developing countries.

3. EU CLIMATE LEGISLATION TARGETING

FOSSIL-FUEL FIRED ENERGY INSTALLATIONS
3.1 Introduction
3.1.1 General regulatory framework

This section discusses the main regulatory approaches targeting carbon
emissions by fossil-fuel energy industries. These regulatory approaches
entail an important but yet only partly a reduction of greenhouse gases (the
overall EU goal is only 20 per cent in 2020 compared to 1990). The ques-
tion to what extent fossil-fuel powered energy installations may contribute
to the overall carbon emissions seems thus far hardly justiciable, hence this
question is in principle open to the discretion of the (European) legislator.34
In developing its policy, the legislator presumably balances the societal
need for energy, including the need for energy security, the effectiveness of
possible alternative renewable energies (also including their side-effects),
economic concerns and climate change concerns. As a result of these highly
political choices, it can be the case that some sectors need to reduce more
compared to other sources. Indeed, also in the EU a large margin of appre-
ciation goes to the legislator for determining the applicability of greenhouse
gas reducing regulatory instruments like the EU ETS to certain sectors.35
The EU target of minus 20 per cent emissions in 2020 compared to 1990
is implemented by two legal instruments, which are:
1. A revision of the greenhouse gas emissions trading directive, which

inter alia establishes an EU-wide cap for the industries covered by the
European emissions trading scheme (commonly called the EU ETS);36
2. An effort-sharing decision for additional emissions reductions to be
implemented by the member states.37
There are thus two laws (in the form of a directive and a decision) that
jointly aim to reach an emission reduction of 20 per cent in 2020.38 These
laws distribute the total effort for greenhouse gas reduction among (1)
the industries covered by the emissions trading scheme and (2) the other
sources. The EU legislature has opted for a larger burden for the industries
covered by the EU ETS compared to sources outside this regime. This
means that the fossil-fuel powered energy installations have to contribute
a higher emission reduction effort compared to industrial installations not
covered by the regime. This distribution is done as follows:
– A reduction of 21 per cent by 2020 compared to 2005 for the industries

covered by the emissions trading scheme, and

– A reduction of around 10 per cent by 2020 compared to 2005 for the

sectors that are not covered by the EU ETS.39
The European Commission explains that, taken together, this twofold

approach results in an overall reduction of 14 per cent in 2020 compared
with 2005, which is equivalent to an overall reduction of 20 per cent com-
pared with 1990. The choice that a larger reduction needs to be done by the
sector covered by the emissions trading scheme has been made because it is
according to the Commission cheaper to reduce emissions in the electricity
sector than in most other sectors.40
3.1.2 Specific regulatory approaches concerning the carbon emissions of

the fossil-fuel fired electricity sector
There is no single European legislative act that focuses solely on fossil-fuel
fired power installations. Hence, there is no specific cap or greenhouse gas
emission limit for the fossil-fuel fired energy installations. The obligations
for this sector can be found in the laws that target explicitly or implicitly
the reduction of carbon emissions. These are (1) the European emissions
trading scheme (EU ETS), according to which from 2013 onwards the
larger part of the fossil-fuel fired energy installations will no longer get
their allowances grandfathered, (2) the IPPC-directive (although the pos-
sibilities to address the greenhouse gas emissions seem to be quite limited),
and (3) the carbon storage directive. In addition, the environmental
liability directive (4) will briefly be discussed, and it will be explained that
it seems difficult to construct liability for climate change under the frame-
work of this directive.
3.2 The EU ETS: Auctioning of Carbon Allowances to the Electricity

Sector from 2013 onwards
3.2.1 Basic feature of the instrument

The instrument commonly called ‘emissions trading’, and, in the European
context, the EU ETS (European Union Emissions Trading Scheme) is in
fact the major climate change instrument within the EU. It facilitates
industries to choose between either investments in emission reductions
(like switching to other energy sources or taking energy efficiency meas-
ures) or investments in emission allowances in order to cover the remain-
ing emissions. Indeed, with emissions trading, industries can deliberately
choose to remain a relatively large emitter, as long as enough allowances
equal to the factual emissions are surrendered to the government. As the
emissions produced by each company covered by the emissions trading
regime are registered, it can easily be determined to what extent each

source has contributed to the amount of greenhouse gases in the atmos-

phere. Constructions like proportional liability for climate damage could
then in principle be more easily applied, as it is quite clear to what extent
the specific installation contributed to the global problem.41 Of course,
further accounting is needed in order to identify what exactly the propor-
tional contribution of a given source is compared to all other responsible
sources around the globe, but with the obligatory registration of the
emissions – combined with a legal framework for ensuring the trustworthi-
ness of the data – there is a point of departure for calculating the propor-
tionate share of an individual installation to the contribution to the global
greenhouse gas problem.42
3.2.2 Auctioning
The legal framework for the EU ETS contains a particular obligation that
applies to electricity generators, meaning that these installations shall be
covered by an auction regime.43 Through this provision, the fossil-fuel
fired power installations are targeted. In case of electricity generation
through oil, coal and natural gas the carbon emissions need to be covered
by the tradable greenhouse gas allowances, which can be bought at
auction or, if needed, on the secondary market.44 Each installation has the
obligation to surrender sufficient allowances to the government to cover
its yearly emissions. Also installations for the capture of CO2, pipelines for
transport of CO2 or CO2 storage sites, which need to have a greenhouse
gas emissions permit, are covered by the auction method.45 An obligation
to surrender allowances doesn’t however arise in respect of emissions
verified as captured and transported for permanent storage to a facility for
which a permit is in force in accordance with Directive 2009/31/EC of the
European Parliament and of the Council of 23 April 2009 on the geologi-
cal storage of carbon dioxide.46
The rule that allowances should be bought by fossil-fuel fired installa-
tions has some exceptions, like free allocation for district heating activities
and high-efficiency cogeneration. Moreover, a transitional free allocation
period is provided, for instance for countries where in 2006 more than 30 per
cent of electricity was produced from a single fossil fuel, and the GDP
per capita at market price did not exceed 50 per cent of the average
GDP per capita at the Community market price. However, in 2020 free
allocation to electricity installations should no longer apply.47
The obligation to buy tradable allowances in order to cover emissions,
in fact the core feature of the emissions trading instrument, is seen as an
incentive to reduce emissions, hence, it has a preventative aim. The price of
the tradable allowances should encourage industries to make an optimal
choice between investing in reduction measures or buying allowances to

cover the emissions. Of course, the electricity industries will try to put the
costs of the allowances or the costs of the investments on their consum-
ers. Energy is as such a fundamental need for citizens, and a crucial factor
for economic activities. Whether emissions trading brings along with it a
real incentive for power companies to start low-carbon activities is yet to
be investigated. Moreover, Member States are allowed to adopt financial
measures in favour of sectors or subsectors determined to be exposed to a
significant risk of carbon leakage due to costs relating to greenhouse gas
emissions passed on in electricity prices, in order to compensate for those
costs. Such financial measures need to be in accordance with state aid
rules.48 The fact that a renewable energy framework, with binding renew-
able energy commitments, has been established is as such an indication
that the price of the allowances is not expected to facilitate the transforma-
tion to such energies. The price development of the allowances is moreover
hard to predict. This means that industries are faced with large uncertain-
ties regarding these prices and thus face uncertainties when deciding about
emission reduction investments.49
The above has shown that auctioning will be the default procedure for
the electricity generating sector, but that Member States may adopt finan-
cial measures to compensate costs of sectors due to increased electricity
prices.
The EU ETS thus provides from 2013 onwards a sector-wide cap on the
emissions allowed. The obligation to reduce carbon emissions is targeted
to the whole group of sources covered by the EU ETS. The total amount
of allowances will be distributed along two allocation procedures, which
are the auction and free allocation. In principle, the electricity sector will
no longer get any allowances for free from 2020. Until 2020 only by excep-
tion may a free allocation to electricity installations occur.
The community-wide quantity of allowances will decrease in a linear
manner from 2013 onwards.50 The linear factor for this annual decrease is
1.74 per cent compared to the average annual total quantity of allowances
issued by Member States in accordance with the Commission Decisions
on their national allocation plans for the period from 2008 to 2012.
This decrease continues after 2020; the Commission however is asked to
review the linear factor and submit a proposal, where appropriate, to the
European Parliament and to the Council as from 2020, with a view to the
adoption of a decision by 2025.51 In developing the EU ETS framework,
including the amendment by Directive 2009/29, only little attention has
been paid to the possible need of governmental interventions into the
carbon market, for instance in case of a sharp price fall or price rise.
Hence, the legal framework of the EU ETS doesn’t give an active ‘manage-
ment’ position to guide the carbon market developments.

There is only a limited provision in case of a sharp price rise, which

obliges the Commission to convene a meeting with the already established
Climate Committee to take action if prices fluctuate to such an extent that
they exceed the average price level during the previous two years by 300
per cent for six consecutive months.52 The only possible action indicated
is related to auctioning, and a regulation needs to be adopted by the
Commission ultimately in June 2010 arranging the application of these
intervention measures. For the electricity sector, which is largely covered
by the auction method, this can mean that some relief will be given in case
of a sharp price rise. The awareness that some relief can be given could of
course lower the ex ante incentive for taking emissions reduction meas-
ures, as it is known by the electricity industries that in the case of a sharp
price rise interim measures may be provided. The effect of the possibility
of this ex post intervention on the ex ante incentive to industries is however
yet to be examined, and depends also on the further elaboration of the
application of the measures in the regulation of the Commission. The legal
framework of the EU ETS doesn’t refer to the possibility of a sharp price
decline, and hence no explicit competence has been provided to intervene
in order to steer the market in such a way that the incentive to reduce emis-
sions (i.e., the price of the allowances) will be improved. In addition to the
specific intervention in case of a sharp price increase, there is only a very
general obligation for the Commission to submit a report to the European
Parliament and to the Council if there is evidence that the carbon market is
not functioning properly. The report may be accompanied, if appropriate,
by proposals aiming at increasing the transparency of the carbon market
and addressing measures to improve its functioning.53
In sum, the EU ETS instrument provides an obligatory auction for most
of the fossil-fuel power plants producing electricity. The instrument has
been chosen as a cost-effective means to reach the overall climate policy
target, which for the EU is minus 20 per cent emissions in 2020 com-
pared to 1990. Initially, the EU ETS is not seen as an instrument aiming
to provide, at maximum, the prevention of possible climate damage,
but should be seen as an instrument to reach, in a cost-effective way, a
negotiated emissions reduction target.54 Indeed, article 1 of the directive,
frequently quoted by the European Court of First Instance, states that:
‘The Directive establishes a scheme for greenhouse gas emission allow-
ance trading within the Community [. . .] in order to promote reductions
of greenhouse gas emissions in a cost-effective and economically efficient
manner.’
This text has been concluded at a time when the entry into force of the
Kyoto Protocol was not yet certain. The amending directive, adopted
in 2008–2009, adds however the following sentence: ‘This Directive also

provides for the reductions of greenhouse gas emissions to be increased so

as to contribute to the levels of reductions that are considered scientifically
necessary to avoid dangerous climate change.’55
Clearly, the aim to avoid dangerous climate change – somewhat freely
translated this includes the goal of avoiding serious damage resulting from
climate change – through reductions of greenhouse gases has now been
added to the legal framework. Compensation for damage has as such not
been explicitly addressed. Moreover, the threshold that only dangerous
climate damage will be prevented seems quite high. The prevention of
climate change that causes damage, but as such does not qualify as being
dangerous, is thus not explicitly aimed at by the instrument. Nevertheless,
even in cases of non-dangerous climate change damage could occur to
victims and nature.
Despite the fact that the prevention of dangerous climate change is now
explicitly part of the instrument, the EU is only taking a modest approach
compared to what is needed according to the IPCC. The EU is neverthe-
less ready to ‘move to a 30 per cent reduction as its contribution to a global
and comprehensive agreement for the period beyond 2012 provided that
other developed countries commit themselves to comparable emission
reductions and that developing countries contribute adequately according
to their responsibilities and respective capabilities’.56 Even the 30 per cent
target is not enough in view of the IPCC, who has indicated that if the
target is set at 450 ppm CO2-eq. the Annex I countries should strive for an
emission reduction between −25 per cent and −40 per cent in 2020.
3.2.3 The price of the allowances

The price of the allowances to be paid by the electricity generating indus-
try will largely depend on the organization of the auction and the amount
of allowances that will be made available each period. The total amount
of allowances to be distributed in 2013 should be announced by the
Commission by 30 June 2010, and auctioning perhaps will start in 2011 or
2012.57 The European Commission needs to adopt a regulation concerning
the timing, administration and other aspects of auctioning to ensure that it
is conducted in an open, transparent, harmonized and non-discriminatory
manner.58 Importantly, the Commission has the power to determine
the estimated amount of allowances to be auctioned, which should be
announced ultimately by 31 December 2010.59 Also the rules for the free
allocation will be published by 31 December 2010.60 The amount of allow-
ances to be auctioned is made dependent on the allowances allocated free
of charge, as the directive says that the Member States shall auction all
allowances that will not be allocated free of charge.61 With respect to the
installations other than the electricity generating sector, in 2013 80 per

cent will be given for free, which number will decrease in equal amounts to
30 per cent in 2020.62
3.2.4 Revenues
The only provision that addresses funding in order to compensate future
damage are the non-binding statements on how the Member States should
spend 50 per cent of the revenues generated through the auction. About
the remaining 50 per cent nothing has been said in the directive. According
to the directive, Member States should (but not ‘shall’) use the revenues
inter alia for the Adaptation Fund as made operational by the Poznan
Conference on Climate Change (COP 14 and COP/MOP 4).63 As such,
the need already to spend money for adaptation, which can be seen as
compensation for measures needed in order to avoid damage, has been
recognized, albeit that it is a completely voluntary matter for the Member
States. Adaptation is moreover only one of the goals to which 50 per cent
of the revenues may be allocated. Moreover, the EU ETS is meant to be a
cost-effective and economically efficient tool to reduce emissions with the
aim only to prevent ‘dangerous’ climate change, rather than to provide a
duty for the emitting sources to take financial responsibility for possible
damage, like paying directly to an adaptation or compensation fund.
Here, Member States can develop policies to label the revenues coming
from the auction, and it would be worthwhile to investigate whether that
as such will be done, or whether the auction revenues simply go to the
treasury without any specific destination labelled. After all, the directive
emphasizes that ‘Member States shall determine the use of revenues gener-
ated from the auctioning of allowances’. It will be interesting to see what
kind of determinations will be made in this respect.
3.2.5 Conclusion
In sum, the present EU ETS instrument cannot qualify as being a provi-
sion for establishing a polluter’s responsibility for possible future damage.
First, the instrument aims only at avoiding dangerous climate change, and
the cap is moreover – according to the prevalent IPCC projections – not
stringent enough to prevent such future harm. The electricity generating
sector will be obliged to pay for the allowances, through the auction, but
the spending of revenues – like the compensation for damage, or compen-
sation for adaptation costs in order to avoid damage – falls under the dis-
cretion of the Member States. Indeed, those revenues from the auction can
even be used to recover the governmental budget that suffered from the
economic crises which began in late 2008. It is also not unthinkable that
the auction procedure will be set up in such a way to keep future prices
for the energy industries as low as possible, in order to protect the internal

economy. In addition, there is a modest competence to intervene in situa-

tions where the price might increase significantly; however, no competence
has been provided in situations where the price might drop and become
low. Moreover, the other sectors covered by the EU ETS will get free
allowances to quite a large extent. All in all, the EU ETS framework is
not ambitious enough to prevent polluters from contributing to possible
damage, and, moreover, the revenues spending is not linked to compensat-
ing damage or adaptation costs.
The EU ETS framework however does not indicate that the opera-
tors will be prevented from future liability claims. This could mean that
(especially the largest and richest) polluters might well face future liabil-
ity claims. It is yet to be explored whether this threat is felt to be so real
that this influences the decision-making of operators under the emissions
trading regime. One could assume that a rule, stipulating that the opera-
tors would be pre-empted from liability, could promote the cost-effective
functioning of the emissions trading instrument, as polluters can make
their decisions within the EU ETS framework without being burdened
with other concerns like future liability claims. But then, one could argue,
large polluters would not have taken any responsibility for future damage
as long as such damage had not been incorporated in the price of the
allowances and, moreover, such future costs would then naturally not
have played a role in the decision-making of the polluters. In this line
of thought, one could argue that the price to be paid for the allowances
should reflect the future damage, hence, should reflect in full the carbon
costs, including the future damage. Only then would pre-emption of liabil-
ity seem fit.
3.3 Integrated Permitting
In addition to the EU ETS instrument, the EU approach towards inte-

grated permitting, as provided by the directive on integrated pollution
prevention and control (IPPC), entails some requirements for power
plants, but does not establish any provision to provide for financial secu-
rity in case of damage following from the polluting activity.64 It is impor-
tant to note that the IPPC permit can not include an emission limit value
for direct emissions of that gas unless it is necessary to ensure that no
significant local pollution is caused.65 The rationale for this rule is that
the functioning of the carbon market, and hence the freedom of opera-
tors to decide whether to reduce emissions or to buy allowances, should
not be frustrated by ‘command and control’ emissions limits imposed by
the IPPC permit. As such, carbon dioxide has not been listed in Annex
III to the IPPC directive, which indicates the main polluting substances

which should be taken into account by the permitting authority by fixing

emission limit values.66 Energy industries have however explicitly been
listed in Annex I to the IPPC directive, which lists the installations that
need to have an IPPC permit. The competent authority may, according
to the directive, impose obligations with regard to energy efficiency of
carbon emitting utilities, but for instance the Netherlands has chosen
to exclude that possibility.67 The Dutch government has only concluded
a voluntary (hence, non-binding) agreement with representatives from
several industrial sectors that they shall develop and execute energy-
efficiency plans.68
There is a coordination obligation, which means that Member States
shall take the necessary measures to ensure that the conditions of, and
procedure for, the issuance of a greenhouse gas emissions permit are
coordinated with those for the permit provided for in the IPPC directive.
Specific requirements for the greenhouse gas permit may be integrated into
the procedures provided for the IPPC directive.69 However, as explained,
emissions limit values should according to the European secondary law not
be imposed through the IPPC permit unless it is necessary to ensure that
no significant local pollution is caused.70 It is still open for consideration
whether Member States would nonetheless be allowed to impose green-
house gas emission limits, in particular in view of article 176 EC Treaty,
now article 193 of the Treaty on the Functioning of the European Union.
That article states that Member States may adopt environmental laws that
go further. Such additional emissions limits may however frustrate the
overall functioning of the emissions trading market, and thus frustrate the
basic aim of the directive, since the possibility for industrial operators to
make cost-optimal decisions will be limited if they need to follow obligatory
emissions limit values. Clearly, both Directive 2003/87/EC and Directive
1996/96/EC state that emissions limit values shall not be prescribed for
direct carbon emissions from installations covered by the EU ETS. This
qualifies as a rule of total harmonization.71 If one would nonetheless argue
that Member States can always adopt such stringent measures – as long as
they are compatible with the EC Treaty (now: Treaty on the Functioning of
the European Union) and the case law of the ECJ,72 then another problem
arises: from 2013 onwards all these sources will fall under one EU-wide
cap, hence the limitation of emissions for instance from power installations
in one country will mean that other sources can use the allowances that
are no longer needed by these power installations. This effect – meaning
that despite emission limit values in one country, the greenhouse gas
emissions can still rise in another country – can only be prevented if the
emissions saved by the emission limitations will be covered by the with-
drawal of allowances: the government should then, for instance, decide

not to auction such rights. This option seems however not a very realistic
one.
Currently, the UK is nevertheless explicitly considering the imposi-
tion of Emission Performance Standards on individual coal-fired power
plants.73 These standards set thresholds for the acceptable level of carbon
dioxide emissions per unit of electricity generated for individual power
stations.74 In the consultation document, it has been argued that such an
Emission Performance Standard approach would have no net effect on
EU emissions, which would continue to be determined by the EU ETS
cap, but that the conformity with EU law has yet to be confirmed.75
Another approach could be to adopt EU-wide emission limit values,
which (1) probably could leave enough room for the emissions trading
instrument to function, or (2), if that is not the case, would lead to a with-
drawal of the application of emissions trading for that sector, which would
be a dramatic turn in EU climate policy. With regard to option 1, the
imposition of command-and-control-like rules will influence the emissions
trading market, as, by nature, less room will exist for operators to decide
on cost-minimizing options. It is expected that the price of the allowances
would change as a result of the intervention through emission limitations
since reduced demand can lead to lower prices (but in such a case the total
amount of allowances available should perhaps be adjusted too). Here,
economic projections are needed to obtain further insight into the possible
interference of command-and-control options with the emissions trading
market. It is anyway clear that the question of whether Member States are
allowed to adopt emission limit values deserves meticulous consideration.
In sum, the current approach as laid down within the EU legislation is
that power installations will not be confronted by emission limitations
with respect to the direct emissions of carbon dioxide. There is however
a debate whether Member States should be able to make use of such
emission limitations, for instance in particular with respect to coal-fired
power plants. All in all, the IPPC directive doesn’t contain any provision
with regard to how to compensate for possible damage deriving from
greenhouse gas emissions (not only carbon dioxide, but also for instance
methane) by an IPPC installation.
3.4 Carbon Capture and Storage
Besides the cost-effective reduction of carbon emissions through the

emissions trading instrument, the EU legislature has delivered a legal
framework facilitating carbon capture and storage (CCS). The geological
storage of carbon dioxide concerns emissions from fossil-fuel powered
installations, but also affects large industrial installations capable of

capturing CO2. CCS is seen as an interim approach for the transfer from
fossil-fuel power plants to renewable energy. The Strategic Energy Review
published by the European Commission in 2008, and largely endorsed by
the Council, mainly promotes the development of renewable indigenous
energy sources.76 In addition, it considers that the use of coal in the longer
run is only compatible with the climate challenge if highly efficient plants
predominate and carbon capture and storage (CCS) is widely available.
At the international level, legal barriers to the geological storage of CO2
in geological formations under the seabed have been removed through
the adoption of decisions under the 1996 London Protocol to the 1972
Convention on the Prevention of Marine Pollution by Dumping of Wastes
and Other Matter (1996 London Protocol) and under the Convention for
the Protection of the Marine Environment of the North-East Atlantic
(OSPAR Convention).
CCS is not regulated by a single European directive or regulation,
also here several laws are relevant. The most important one is Directive
2009/31/EC on the geological storage of carbon dioxide, formally adopted
on 29 April 2009. This directive provides a permit-obligation and liability
arrangements for the underground storage of CO2. Part of the discussion
during the co-decision procedure was whether fossil-fuel power plants
should be obliged to install carbon capture and storage technology. There
is however no rule adopted for doing so, but for new combustion plants
with a capacity of at least 300 megawatts it needs to be checked whether
certain conditions which are important for being able to conduct carbon
capture and storage will be met. Plant operators will have to assess whether
suitable storage sites are available, transport facilities are technically and
economically feasible, and whether it is technically and economically
feasible to retrofit for CO2 capture.77 If so, the industries have to include
suitable space for the equipment necessary to capture and compress CO2.78
This provision seems to leave open the possibility that if the technical and
economic requirements will not be met, the permit can still be issued, but
then without a ‘CCS-ready’ provision. It has not been explicitly stated that
each new combustion installation above the threshold of 300 megawatts
should be CCS-ready.79
As noted above, the EU ETS legal framework gives some specific provi-
sions for carbon capture activities, meaning that they are also covered by
the trading scheme and are not eligible for free allocation. Of course, the
avoidance of emissions into the air by storing the gas underground brings
along a financial benefit, as no allowances have to be bought covering the
air emissions. In case of leakage, the operator will be liable to cover
the emitted gases with allowances.
Moreover, it will be necessary to develop a policy and a legal framework

concerning the priority to be given when different and hence competing

underground activities become possible. One can think of giving prior-
ity to geo-thermal energy projects instead of carbon storage projects; the
underground can only be used once, which is already recognized during
the implementation process in Germany.80
3.4.1 Carbon capture and storage in view of liability

The use of coal together with CCS is often called: ‘clean coal’ or ‘sustain-
able coal’. This description is questionable for several reasons. First, the
mining of coal and its transport already cause greenhouse gas emissions.
Moreover, the burning of coal goes along with the emissions of pollutants
other than greenhouse gases. Third, the capturing of carbon dioxide costs
energy. And, fourth, the capture, transport and storage of this gas carries
with it other environmental and safety concerns.
In particular the storage of carbon dioxide is addressed by Directive
2009/31/EC: it intends to establish ‘a legal framework for the environ-
mentally safe geological storage of carbon dioxide (CO2) to contribute to
the fight against climate change’.81 The purpose of environmentally safe
geological storage of CO2 is ‘permanent containment of CO2 in such a way
as to prevent and, where this is not possible, eliminate as far as possible
negative effects and any risk to the environment and human health’. The
directive gives rules for the selection of storage sites and for an exploration
permit (art. 4 and art. 5). In addition, it provides an extensive framework
for storage permits, conditions for the issuance for the permit like a moni-
toring plan, an advisory role for the Commission on the issuance of such
permits, specific provisions in case of leakage, and operation closure and
ex post closure provisions. These rules specify liability and financial secu-
rity obligations. Indeed, apart from the EU ETS regime, which addresses
the global problem of climate change, and where the effects can be felt far
from the place where the emissions are done, the carbon storage regime
provides for liability and financial security provisions. The carbon storage
regime can indeed cause severe local effects, and without an adequate
permit system together with liability and financial security provisions
the public could resist even more the establishment of a storage site. In
particular, in densely populated areas where a storage site is planned the
public concerned will likely insist on specific provisions intended to protect
their safety.
With regard to possible damage, the directive provides that in the event
of leakage or significant irregularities, the operator is obliged to take
corrective measures, and, if he doesn’t do so, the authority is obliged to
take the necessary corrective measures itself.82 A ‘significant irregularity’
is broadly defined and means ‘any irregularity in the injection or storage

operations or in the condition of the storage complex itself, which implies

the risk of a leakage or risk to the environment or human health’.83 The
carbon storage directive takes a more stringent approach compared to the
environmental liability directive, as in the latter case such an obligation for
the government has not explicitly been stipulated.84
The carbon storage directive furthermore states that the competent
authority that takes corrective measures shall recover the related costs,
including drawing from the financial security which needs to be provided
by the operator of the storage site. Also after the closure of the site, which
can only be done with permission from the authority, the operator will
remain responsible for:
– monitoring, reporting and corrective measures.85

– all obligations relating to the surrender of allowances in case of
leakages.
– preventive and remedial actions pursuant to Articles 5 to 8 of the envi-
ronmental liability directive. This directive addresses only environ-
mental damage, and is only relevant as far as such damage is covered
by the definition provided by the directive, with its high thresholds.
– the sealing of the storage site and removing the injection facilities.
These obligations for the operator remain until the responsibility for the
storage site is transferred to the competent authority.86 The directive pre-
scribes conditions which should be met before such a transfer may occur.
These are, inter alia, that all available evidence indicates that the stored
CO2 will be completely and permanently contained, and that a minimum
period, which shall be determined by the competent authority but may
not be shorter than 20 years, has elapsed. This period may be shorter
only if the competent authority is convinced that the stored CO2 will be
completely and permanently contained before the end of that shorter
period. Also after this transfer the authority needs to recover costs from
the operator in cases where there has been fault on the part of the opera-
tor.87 It will be interesting to see which specific choices the Member States
will make when implementing the carbon storage directive. For instance
in Germany, it has been argued that a longer period should be chosen (30
years after the activity has ended).88
With regard to financial security, the storage permit needs to contain
the requirement to establish and maintain the financial security provision
or any other equivalent as allowed.89 The operator needs to prove, as part
of its application for a permit, that adequate monetary provisions can
be established, by way of financial security or any other equivalent. The
financial security needs to be valid and effective before commencement

of injection. The Member States have the task of deciding on the specific
arrangements of such a financial mechanism. Overall, the financial obli-
gation for the operator aims to ensure that all obligations arising under
the permit issued pursuant to the carbon storage directive as well as any
obligations arising from inclusion of the storage site under the EU ETS
directive can be met.
After the transfer, the competent authority bears responsibility. The
financial security obligation for the operator ends but is followed up by
an obligatory payment to a financial mechanism.90 Also here, the Member
State decides on the specific arrangement of the financial mechanism. One
of the conditions of the directive is that the contribution at least covers the
anticipated cost of monitoring for a period of 30 years.
3.4.2 Interim conclusion

In sum, the carbon storage directive provides for a permit system in order
to protect a safe and environmental friendly storage. The operator is liable
to take corrective measures, and is responsible after closure also, until the
government takes over that responsibility, in principle for 20 years after
closure or after a longer period. The operator needs to provide financial
security in order to ensure that the recovery of costs can happen. It is not
the case that all types of damage that might be caused by a storage activity
are covered, like economic damage caused by precautionary safety meas-
ures in case of an emergency. The precise scope and kind of protection
given by the directive are yet to be explored.
3.4.3 Funding of CCS

In the meantime, European politicians have chosen to set aside funding in
order to support the development of the CCS technology. This funding –
as already shortly referred to in section 2 – comes from two sources:
– the economic crises budget, as provided by Regulation (EC) No.

663/2009 of the European Parliament and of the Council of 13 July
2009 establishing a programme to aid economic recovery by granting
Community financial assistance to projects in the field of energy, OJ
EU 31.07.2009, L 200/31.
– the EU ETS allowances: art. 10a(8) of the new emissions trading
framework stipulates that up to €300 million allowances (being part
of the new entrants’ reserve) shall be available until 31 December
2015 to help stimulate the construction and operation of up to 12
commercial demonstration projects that aim at the environmentally
safe capture and geological storage of CO2 as well as demonstration
projects of innovative renewable energy technologies, in the territory

of the Union. The allowances shall be made available for support

for demonstration projects that provide for the development, in geo-
graphically balanced locations, of a wide range of CCS and innovative
renewable energy technologies that are not yet commercially viable.
Their award shall be dependent upon the verified avoidance of CO2
emissions. The projects shall be selected on the basis of objective and
transparent criteria that include requirements for knowledge-sharing,
for the selection criteria and the measures need to be adopted by the
Commission through the comitology procedure known as the regula-
tory procedure with scrutiny. Among other conditions, the support
must be complementary to substantial co-financing by the operator of
the installation. They could also be co-financed by the Member State
concerned, as well as by other instruments.
If the funding is to be used for the establishment of the financial security,

it is of course clear that this provision, in order to cover liability, is in fact
partly financed by public money.
3.5 Environmental Liability Directive
With respect to Directive 2004/35/CE of the European Parliament and

of the Council of 21 April 2004 on environmental liability with regard
to the prevention and remedying of environmental damage we can be
rather short: this directive isn’t explicitly designed in order to address
the responsibility of polluters causing damage resulting from greenhouse
gas emissions, and a liability claim for damage caused by the emission
of greenhouse gases might not be qualified by the European Court of
Justice as being covered by the directive. Especially the determination of
a causal link is seen by the EU legislature as a crucial element of a liability
approach as followed in the directive. Following along this view, liability
is not seen as ‘a suitable instrument for dealing with pollution of a wide-
spread, diffuse character, where it is impossible to link the negative envi-
ronmental effects with acts or failure to act of certain individual actors’.91
The intention of the EU legislature not to cover environmental damage
caused by greenhouse gas emissions can be further illustrated by the fact
that the list in Annex III to the Directive, which lists the activities to which
the non-fault regime applies, does not contain the EU ETS directive. On
the other hand, Annex III covers inter alia the operation of installations
subject to permits in pursuance of Council Directive 96/61/EC of 24
September 1996 concerning integrated pollution prevention and control.
Emitters of greenhouse gases – especially those not yet regulated by the
EU ETS directive, like methane – may very well be among them, but it is

clear that the primary instrument for dealing with such emissions is the
EU ETS directive which has not been mentioned in Annex III. Moreover,
Directive 2004/35/EC relates only to the environmental damage specified
in Article 2(1), namely damage to protected species and natural habitats,
water damage and land damage, with quite high thresholds. In sum, it can
be concluded that there was no clear intention of the EU legislature to
include damage resulting from climate change into the framework of the
environmental liability directive – the contrary is in fact true. While for
other environmental problems causing damage to nature, land and water
the responsibility of the polluter is stipulated by the environmental liabil-
ity directive, albeit not yet in an optimal sense, there is however no such
approach with regard to the responsibility of the polluter with respect to
possible damage resulting from greenhouse gas emissions.
3.6 Conclusion
In section 2, it has been explained that fossil fuels, in particular coal, will
continue to be a major source for energy production in the EU. In this
section, it has been made clear that fossil fuel energy production instal-
lations, already covered by the EU ETS regime, have to pay for their
tradable allowances from 2013 onwards. From then, the major part of
the fossil-fuel fired energy installations have to buy their allowances at
auction, or, if needed, on the secondary market. The development of the
price of the allowances is yet to be seen, as the procedures for the auction
have to be set up. The principal aim of the EU legislature in using the
emissions trading regime is to have a cost-effective regime for reducing
carbon emissions towards the overall target of minus 20 per cent emissions
compared to 1990 in 2020. There is no provision, let alone a consideration
with regard to the responsibility that polluters should take in view of the
possible damage that might still be caused by the pollution, since the regu-
latory package doesn’t set the most precautionary cap. The only provision
that is given is a non-binding one, targeted at the Member States: they
should, and are not obliged, to spend part of the auction revenues (50 per
cent) on a range of goals, among which are adaptation provisions. It is yet
to be seen which policy decisions the Member States will take with regard
to the spending of auction revenues, and whether such financial policies
will be put into legally binding rules.
With respect to permitting, the IPPC-directive provides the rule that
no emission limit values may be imposed on sources covered by the EU
ETS. The question of whether Member States may nevertheless impose
requirements that go further is yet to be answered. The UK is already
considering such requirements, in particular with regard to coal-fired

power installations. These requirements are linked to the CCS technique

which has yet to be proven: if CCS does happen to be an acceptable tech-
nique, emission limit values will not be imposed. In that case, the carbon
dioxide will be captured and stored underground. If so, the ‘emitter’ will
no longer be emitting and will therefore not be contributing to global
warming (if indeed the carbon dioxide does not leak from the under-
ground storage), but will, on the other hand, face responsibility for pos-
sible damage resulting from CCS, which has been stipulated by means of
liability and financial security provisions in the carbon storage directive.
Hence, a striking difference can be noticed between the carbon storage
and the emissions trading approach: in the first option, the responsibil-
ity of the polluter for possible damage is already addressed, while in the
latter case no such considerations or provisions are made within the EU
legislation. Of course, in the case of carbon capture and storage, the link
between the activity and the damage is far less difficult compared to the
complicated question of causality in case of carbon emissions and pos-
sible damage. In that sense, we can see that only the government, rather
than the polluters, is taking up some of the financial responsibility for
adaptation, although in a non-binding sense. The fossil-fuel powered
electricity generating installation covered by the EU ETS will hence only
feel a very indirect link between on the one hand payment for the allow-
ances and on the other hand its responsibility for future damage. After
all, the regime has not been set up with the clear intention of putting the
full carbon costs onto the emitters.
The EU ETS directive stipulates that Member States may decide where
the revenues should go – and they might simply go to the treasury. It will
be interesting to see how the developed countries that associate themselves
with the non-binding Copenhagen Accord will develop their funding poli-
cies and laws, especially with regard to how to collect the money for the
funding as envisioned on the international level.92 The Copenhagen Accord
states that funding will come from a wide variety of sources, public and
private, bilateral and multilateral, including alternative sources of finance.
It is however yet to be seen if any link will be built by the governments of
the developed countries between on the one hand the national regulatory
instruments, like in the EU the EU ETS, and on the other hand the secure-
ment of funding as promised in the Copenhagen Accord on the interna-
tional level. As the funding needs to be provided by the Member States
themselves, it is not unthinkable that they will explore how to extract the
budget for the international funding from the polluters themselves. Here,
a link could be made between on the one hand funding mitigation and
notably adaptation in developing countries, and on the other hand putting
the costs of the carbon emissions onto the polluters themselves.

4. STIPULATING THE RESPONSIBILITY OF

PRESENT POLLUTERS FOR FUTURE DAMAGE
4.1 Towards a Regulatory Approach
From the perspective of liability the main question is: how can the sources
that emit greenhouse gases be held liable for climate change damage?
In the case of climate change, the focus shifts to all kinds of damage.
The environmental damage itself, which is in fact global warming and
its resulting changing climate conditions, causes multiple effects ranging
from personal and economic harm to damage to nature. The question of
liability starts from the basic idea that natural or legal persons that cause
harm to others or to the environment can be held responsible for that,
and, hence, should pay compensation for such damage. Moreover, a solid
liability regime could provide ex ante incentives to operators to avoid
liability and, hence, damage.
Full compliance with regulatory requirements would in principle mean
that emission mitigation measures have been undertaken by the regu-
lated sources, at least to the extent as prescribed by law and under the
assumption of full compliance with that law. Such mitigation measures
possibly decrease the proportional contribution of the regulated source
to the damage, as its share in the total amount of globally emitted gases
might be less compared to unregulated sources. This of course depends
on the type and stringency of the commitments and on the commitments
imposed on other sources, and the voluntary actions taken by those
sources. The question of liability of the emitters would not be relevant
if the current regulatory approach were really able to prevent climate
damage, but that is not yet the ambition taken up by the regulatory
framework within the EU. The fact that damage might still be caused by
emitters that obey current regulatory commitments raises the question of
their civil liability.
Specifically for climate change, the possibility of liability of greenhouse
gas emissions is not yet fully developed, although there are good reasons
to assume that there is scope for successful claims.93 There are however
quite some difficulties, in particular with regard to the question of how to
establish the causal link between the activity and the damage. The fact that
it will be impossible to prove exactly which damage is caused by a particu-
lar polluter, demands alternative methods for constructing a causal link.
In that sense, abstract methods, like the establishment of causality based
upon the probability of causation, emerge. This would mean that if the
probability that certain harm was caused by the operator’s activity was 40
per cent, the victim would be compensated 40 per cent of her damage.94 It

is yet to be seen how this interesting idea will further evolve and how it will
exactly be applied in legal practice with regard to climate damage claims.
One of the major problems with liability for climate damage however is
that there is a big time-lap between the activity and the damage, and that
gases currently emitted can cause damage after many years.95 The fact that
there are multiple polluters and multiple victims, all over the world, means
that also for efficiency reasons an ex ante regulatory approach, address-
ing the group of current polluters for their proportional responsibility for
future liability, seems better suited than an ex post case-by-case approach
through law-suits. Here, perhaps, the legislator should come in, thereby
ensuring that the current polluters be given provisions that stipulate
their, at least financial, responsibility for future damage, meaning that the
cost of the possible future damage will be represented in the regulatory
approach. Moreover, such a regulatory approach could ensure that at
least some financial resources will be available for future victims to cover
the costs of the damage or, moreover, to finance necessary adaptation
measures in order to prevent such damage.
A collective approach towards gathering funding for compensating
future damage and necessary adaptation costs is not necessarily to be initi-
ated and designed by the government: also the operators themselves could
decide to establish such a collective approach for taking up responsibility.
Of course, the interesting but complicated question of how such a collec-
tive and voluntary approach should be designed has yet to be answered
and is due for further research. At this moment, however, it seems more
realistic to examine the option of how the government could take up
such an approach, since there are many polluters and it may therefore
be difficult for the operators to organize a collective voluntary approach
effectively.
Of course, another (but, given current practice, thus far only a theoreti-
cal) option would be that the legislature adopts an ambitious regulatory
approach that aims at the prevention of all possible damage caused by
climate change. The adoption of such an approach faces large complexi-
ties, like the setting of the proper threshold given scientific uncertainties,
the fear for and threat of carbon leakage together with the lack of a global
effective approach, and the question of whether all negative consequences
of possible climate change should indeed be prevented ex ante since, from
an economical point of view, it would not be optimal to avoid all damage
at all cost. Anyway, if such an ambitious approach is not adopted, which
is currently the case, and if the regulatory approach consequently implies
that the regulated sources might still contribute to the future harm, the
question at hand is how the polluters can be held responsible for that
within the regulatory approach. If this were not to be taken up, there

would be a lack in the regulatory package: on the one hand, the emitters
will not be forced to adopt an approach to prevent harm, while at the same
time they will not be made responsible for bearing the costs of that future
harm.
As has been explained in section 3, the EU ETS doesn’t seem to intend
to incorporate the cost of future damage caused by the emissions into
the price of the allowances. The directive itself doesn’t elaborate on this
option, and one of the principal goals of the directive is to provide a cost-
effective and economically efficient regime for lowering the greenhouse gas
emissions. Indeed, the EU ETS aims at mitigation, and has not established
a view on how to deal with damage possibly caused by the greenhouse
gas emitters in the EU. As the ambition of the EU ETS – given its cap –
is not the highest and most precautionary one, it is in fact accepted that
the allowed emissions will still cause damage. The responsibility for that
damage is not explicitly addressed in the current regulatory approach.
Other striking transboundary environmental problems, like possible
disasters with nuclear power plants or with marine oil ship transport, have
interestingly enough already been addressed with liability and financial
security provisions, which enable compensation for damage. In literature,
these provisions are still debated and criticized, thereby showing that the
legal regimes still show weaknesses, but the bottom line is that a defini-
tion of strict liability and the obligation to provide a financial security
have been established in legal practice.96 Also in the case of the geologi-
cal storage of carbon dioxide such provisions have been established by
Directive 2009/31/EC.
In the case of greenhouse gas emitting activities cases, however, these
basic victim and environmentally caring provisions are absent. A big dif-
ference is of course that with nuclear and marine oil transport a single and
sudden event causes damage, where the range of responsible actors is quite
small and the causality issue is seemingly less problematic as compared to
climate change damage. These difficulties however don’t justify denying
attention to the fact that current emitters might cause future damage. It is
in the interest of the future victims who might face severe difficulties when
filing civil liability claims to address now the responsibility of current
emitters.
The goal to prevent at this point all possible climate damage seems dis-
proportionate, as the costs to stop or to radically reduce greenhouse gas
emissions now, in order to avoid all kinds of future damage, very likely
exceed to a large extent the benefits of current activities. The option to
radically reduce greenhouse emissions on a short time-scale is hence unre-
alistic, also because of the still-present uncertainty with regard to the more
precise effects of climate change. Section 2 has shown the importance that

is still given to the role of coal within the EU energy policy framework –
but this seems to come into conflict with the ambitious reductions needed
for climate protection. The option to reduce in developed countries the
emissions along a time-frame like minus 30 per cent or 40 per cent emis-
sions in 2020 compared to 1990 and minus 80 or 90 per cent in 2050 is at
the moment largely supported by the scientific literature (although both
more stringent recommendations and doubts about the soundness of the
projections emerge). If that reduction path is deliberately not followed, it
seems to be a reasonable avenue for the legislator to expect the polluters
to provide for compensation for future damage in proportion to the emis-
sions blown into the air, which are expected to cause future damage.
One option to be considered could be that present emitters of green-
house gases will be obliged to contribute to a climate damage fund. This
idea has been proposed by Whitmore who has argued that despite their
advantages both taxes and tradable permits have severe limitations as
instruments for dealing with the risk of climate change. Both instruments
address only part of the problem, which is to put costs on, only, emission
abatement.97 Whitmore explains that carbon taxes and carbon emissions
trading may suffer from influences according to which the price will not be
properly set: the tax or the price of the emissions allowance does not prop-
erly price the risk of adverse consequences of these emissions. Indeed, in
the emissions trading literature much attention goes to the price signal to
industries which should lead to cost-efficient abatement options and tech-
nological innovation. The total cap on emissions, or the phase-out of emis-
sions, is furthermore indeed highly influenced by political negotiations and
industrial lobbying, which can result in the cap being set too laxly.98 If, in
such a case, no attention is paid to the fact that future damage is implied
within the somehow loose regulatory approach, then there is a lack in the
system. Civil liability is then the road for victims to follow, but given the
present polluters and future damage problem this avenue faces important
practical shortcomings. The position of victims seems better addressed
with an ex ante approach.
4.2 Allocation of Responsibility for Future Damage: Perhaps a Member

State Issue?
Within the EU ETS, it is completely clear which amount of greenhouse gas

emissions has been emitted by each covered source.99 Each installation is
obliged to surrender each year to the government an amount of allowances
equal to its emissions in the previous year. If there were to be an intention
to follow the idea of Whitmore and hence to establish financial respon-
sibility for future damage, the system is already very well suited to that,

meaning that in addition to the yearly surrender of allowances equal to

the amount of emissions, a formula can be applied meaning that a certain
financial amount needs to be paid by polluters linked up to the amount of
emissions actually caused.
Of course, one could also consider whether and how the financial
responsibility for future damage could be incorporated at the time of allo-
cation of the rights, preferably through an auction. It is however the case
that next to auctioning to the fossil fuel energy sector, free allocation of
allowances is – at the moment – still foreseen in the EU ETS approach. A
turn to full auctioning is not politically realistic at the moment.
What however is not unthinkable – but nevertheless still very theoretical
– is that on the level of the Member States the use of the EU ETS system
to extract (part of the) money needed for future victims from the industries
will be considered. In particular, now Member States need to consider how
to gather money for the funding as envisioned in the Copenhagen Accord,
it would be logical to consider whether the money can be extracted from
the polluting activities. The system is anyway available: it could be con-
sidered that for each tradable allowance surrendered to the government a
certain fee should be paid that would go to a climate damage fund.100 This
would mean that Member States establish an obligation in their national
law that when sources in their national system surrender allowances, they
should pay a fee that would go to a damage fund. The administrative costs
of gathering such a fee seem low, as the system of measuring emissions and
surrender of allowances is already in place.101
Of course, the disadvantage of such a hybrid approach (emissions
trading combined with a fee, primarily for those sources that obtained
the allowances for free or at unreasonably low prices) is that the system
becomes even more challenging than it already was. Moreover, the com-
plicating question of how to set the right price for the climate damage
fund must be answered. As long as, however, the regulatory approach
doesn’t aim at the prevention of damage by setting a more ambitious
emission reduction goal, there is from the perspective of future victims a
need to consider how to incorporate the responsibility of current polluters
into the regulatory approach. One option would be to use the auction-
ing revenues but then the system would need to apply auctioning as the
common allocation model which is not yet the case, as many installations
get allowances for free: emitters get the allowances completely for free (in
case of being determined as a carbon leakage sector) or partly (the other
sectors that will gradually be covered by the auction, starting with 20 per
cent in 2013). Hence, the emitters of greenhouse gases contribute to future
damage but bear no responsibility at all for the future damage. Moreover,
it has not been possible within the EU political context to agree about the

destination of the auction revenues. As a result of these regulatory choices,

the responsibility of the current polluter for the future damage has not yet
been properly addressed. Hence, given practice, it is not unthinkable that
Member States would consider connecting a fee to the EU ETS, which
perhaps will be done in relationship to the consideration as to how to
gather the money for international funding.
Of course, introducing the possibility of a damage fee on, for instance,
the Member State level raises the question of why then a tax should not
be preferred as the general instrument above the emissions trading system.
The advantage however of incorporating a damage fee into the emissions
trading and hence upholding that latter instrument is that with the cap
on the total amount of emissions, the environmental effectiveness (albeit
not the most ambitious one) is in principle ensured. When solely a tax is
used, there would be no cap on the total amount of emissions. In literature
the possibility of a hybrid instrument, a cap and tax instrument, is indeed
already raised, with an eye on an optimal carbon policy: with a tax a better
price setting can take place.102
This idea of how to use the market-based instrument for providing
compensation, and, more specifically, whether in the current EU ETS
Member States could or should incorporate a damage fee is here only very
exploratorily discussed. Many further questions – like the compatibility
with national and EU law, and the question of whether such a fee should
also be applied on sources outside the EU ETS in order to ensure a proper
distribution of the climate change efforts – have to be discussed. Further
research should show how the responsibility of current polluters for future
damage can be linked up with the emissions trading system either by the
EU legislature itself or by Member States. As a new and fast revision of
the just-revised EU ETS framework can hardly be expected, and as the
Member States have kept full discretion with regard to the spending of
the auction revenues, the most logical expectation at this moment is that
the consideration of a fee will be done at the Member State level.
The administrative costs of such an approach seem very modest, as the
system for monitoring and surrendering of allowances is already in place.
The only extra administrative effort is to link up a financial payment to the
surrender of allowances. Another effort however – and a very complicated
one – is how to decide about the destination of the climate damage fund.
That is an important question to be further explored, but discussions on
this topic will start soon since the Copenhagen Accord explicitly men-
tions the funding by developed countries towards developing countries,
also with respect to adaptation. In that Accord, funding for adaptation is
prioritized for the most vulnerable countries, especially the least developed
ones.

It is yet to be determined how the gathering of the funds will be organ-

ized, but would it not be strange if in a developed country, on the one
hand, a regulatory package were to exist, addressing the emitters but still
allowing them to contribute – often for free – to future damage, while on
the other hand money could be found in order to contribute to the fund
in proportion to their emissions? A promising approach seems indeed
to utilize revenues generated by carbon taxes or auctioning revenues to
address the needs of poorer nations to adapt.103 As explained before,
however, only part of the emitters are covered by auctioning, while all
the emitting sources covered by the EU ETS – hence also the ones who
get the allowances for free – have the obligation to surrender allowances.
Therefore, there seems to be a possibility here for linking up funding
towards victims and making emitters responsible for the damage.
4.3 And Civil Liability?
In general terms, liability remains important in the field of environmental

law as environmental regulation may be too lax, because of insufficient
standards or because of enforcement that falls short. As explained in
section 3, the EU legislature has not paid attention to the relationship
between on the one hand the regulatory commitments and on the other
hand the possible civil liability of the polluters for climate damage. It has
been argued in literature that if incentive-based mechanisms like emissions
trading truly reflect social costs, liability would be redundant or even coun-
terproductive.104 The translation of true social costs is however exactly the
problem with the case at hand. While it would be recommendable from the
perspective of emissions trading scheme functioning or the perspective of
legal certainty for the polluters joining the emissions trading programme, to
protect them from future liability, this is however negative from a victim’s
perspective, as, at least with free allocation and possibly also the case of
auctioning, the true social costs – including those of future damage – don’t
seem to be reflected in the current approach. It is hence too early to decide
to exclude the polluters covered by the EU ETS from liability because the
current approach does not impose the real carbon costs to the polluters.
A possible incorporation of financial responsibility in the EU ETS like
an allowance price that represents all the carbon costs, or a Member State
damage fee, will most likely play a role in the case law concerning civil
liability claims. The fact that the emitter has been covered by EU ETS
obligations ánd has contributed to funding for compensation for damage
that in view of the legislator was still acceptable, will most likely be taken
into account by the court. However, it seems too early to state whether
these regulatory circumstances, even such a fee, would always prevent

industries from civil liability. It might be very problematic to set the right
price that would reflect the extent of future damage, as probably too much
is yet unclear or is still unpredictable. This means that the possibility of
liability is still needed as a last resort option, in order to address such
situations in which victims would not have been sufficiently helped by the
regulatory ex ante provisions.
5. CONCLUSION
Of course, a move towards emission reduction targets that prevent damage

should be the first option to be considered. The greenhouse gas emissions
and many aspects of the climate are already changing near the upper
boundary of the IPCC range of projections.105 If, however, a country or
region like the EU chooses not to adopt such a target, the possibility of
severe and also less severe climate damage is in fact accepted. While liabil-
ity claims for climate change damage still face legal difficulties, mainly due
to problems with establishing the causal link between the emitting activity
and the specific personal, economic or environmental damage, regulatory
approaches to greenhouse gas emitting sources could already address the
responsibility of polluters for climate damage proportionally caused by
their emissions. In fact, present emitters know that they contribute at least
to some extent to the climate change problem, but the current regulatory
approach in the EU hardly addresses this responsibility. The EU ETS is
focusing on a cost-effective and economically efficient reduction of emis-
sions in the EU, but doesn’t establish the most ambitious emission reduc-
tion target. Given the fact that the regulated emitters hence still contribute
to global warming, it is striking that the regulatory framework does not
contain any binding provision caring for the future damage and hence,
caring for future victims. A large part of the allowances will be distributed
for free, and the destination of the auction revenues is up to discretion of
the Member States.
Other major environmental problems, like marine oil pollution and
nuclear accidents, are already addressed through strict liability and finan-
cial security provisions. Also the environmental liability directive of the
EU stipulates the responsibility of polluters preventing and remedying
harm to the environment, although the directive doesn’t prescribe that
operators of the activities should take financial securities in order to be
able to bear the costs of environmental damage caused by them. Literature
has firmly criticized this lack in the environmental liability directive.106 On
the other hand, the newly developed technological and yet to be explored
carbon capture and storage approach is already provided with liability

and financial security obligations for the operator, albeit the sufficiency
of such provisions needs further attention. Within the EU ETS, however,
an approach addressing the responsibility of polluters for the damage
to which they might contribute is missing. This examination has started
a debate about whether consideration should be given to building into
the EU ETS a financial obligation for polluters that would address their
responsibility for future damage. Given the fact that the emissions trading
instrument is applied, the most logical option seems to be to explore how
the revenues from selling the allowances could be used in order to com-
pensate adaptation costs. The current EU ETS obliges part of the emit-
ters – including the coal-fired power plants – to pay for the allowances,
but it is not yet clear (1) how the auctions will be organized and (2) what
the Member States will decide with regard to the spending of the revenues.
It would be interesting to see if and how within the development of the
relevant policies and procedures attention will be paid with regard to
the concern about compensation for future damage, including the payment
of necessary adaptation costs.
If at the EU level no further progress is to be made with ambitious
prevention or, as a second option, with the stipulation of the polluters’
responsibility as long as damage can still be expected under the regula-
tory framework, it is not excluded that the most ambitious Member States
will seek ways to complement the EU ETS system in order to take care
of future damage. One way of doing so, but yet to be explored together
with alternative options, is to establish in national law an obligation for
emitters who obtained the allowances for free (or at unreasonably low
prices) to pay a damage-fee linked up to the amount of allowances which
emitters need to surrender each year. By doing so, there would be a direct
link between the factual amount of emissions and providing money to a
damage fund. It would be logical to link this approach to the primarily
national discussion about how to secure the contribution to the funds
about which political agreements are emerging on the international level.
For the emitters that have to buy allowances at auction, the revenue of the
auction can in principle be used for funding of future damage.
Admittedly, it may not seem realistic to expect the European legislator
or national legislators of the EU Member States to ‘burden’ their indus-
tries with financial obligations, but, on the other hand, the emerging trend
to develop international funding might be a circumstance under which
this topic – how to address the question of the financial responsibility of
present polluters for future damage – might get serious attention. After
all, it seems logical to capture the funding from those who contribute to
the problem. Here, we face the difficulty that it is hard to assess the right
financial contribution that should be imposed now on present polluters,

but we assume that an assessment can be made to be approved ex ante by

a democratic legislative process.
One important question is whether such a financial provision, if estab-
lished at all in one way (full auctioning with the use of revenues for com-
pensation) or another (a provision at the Member State level like a fee at
the time of surrendering allowances), should prevent the operator from
being held liable in future. It has been argued that preventing polluters
completely from liability should not yet be considered by the legislator,
which means that civil liability should be kept as a means of last resort
for future victims. Because of current scientific uncertainties and hence
the lack of capability to predict the possible damage, both the regulatory
framework and the residual liability need to be determined gradually,
along with the development of science. This approach would indeed imply
some considerable uncertainty for the polluter, as he doesn’t know how
the future emission caps, the price of the allowances, a possible damage
fee, and the residual liability will develop. This uncertainty, however, is
a factor that understandably stimulates emitters even more to consider
alternative approaches to greenhouse gas emissions, like renewable energy
options, more seriously.
NOTES
1. Quite a large part of that emission reduction obligation can be covered by emission
reductions outside the EU. Both the European industries and the EU Member States
can compensate for their emissions through international emissions trading, see the
EU ETS directive (Directive 2003/87/EC of the European Parliament and of the
Council establishing a greenhouse gas emission allowance trading system, OJ 2003 L
275/32, as amended, see in particular art. 11a juncto art. 28) and the Effort Sharing
Decision (Decision 406/2009/EC of the European Parliament and of the Council of 23
April 2009 on the effort of Member States to reduce their greenhouse gas emissions to
meet the Community’s greenhouse gas emission reduction commitments up to 2020,
OJ L 140/136, 5.6.2009), art. 5.
2. See about the distributional aspects of EU climate policy, Javier de Cendra de
Larragán, Distributional aspects of EU climate policy: in search of legal principles,
PhD Maastricht, March 2010 (publication is forthcoming).
3. ECJ, Judgment of 16 December 2008, C-127/07 (Société Arcelor Atlantique et
Lorraine e.a. v. Premier Ministre, Ministre de l’Écologie et du Développement
durable).
4. See art. 28 as mentioned in Directive 2009/29/EC of the European Parliament and of
the Council of 23 April 2009, OJ EU 2009 L 140/63, and art. 8 of the effort sharing
decision (Decision 406/2009/EC). Both articles indicate that the Commission should
submit a report within three months of the signature by the Community of an inter-
national agreement on climate change leading, by 2020, to mandatory reductions of
greenhouse gas emissions exceeding 20% compared to 1990 levels, as reflected in the
30% reduction commitment as endorsed by the European Council.
5. Some Member States – like the UK and Germany – promote reductions that go further,
as currently adopted by the EU (minus 20% in 2020 compared to 1990). The UK has

already stipulated an emission reduction target of 26% in 2020 compared to 1990 in

its Climate Change Act 2008 (Part I sub 5), while in Germany an emission reduction
target of 40% in 2020 forms part of the political agreement of the current government
(Koalitionsvertrag zwischen CDU, FDP, CSU: ‘Wir werden für Deutschland einen
konkreten Entwicklungspfad festlegen und bekräftigen unser Ziel, die Treibhausgas-
Emissionen bis 2020 um 40% gegenüber 1990 zu senken.’). Within the Netherlands, the
emission reduction goal of minus 30% in 2020 is part of the political agreement of the
government formed by CDA, PvdA and ChristenUnie, albeit that it is expressed that this
target preferably should be followed within the EU (Coalitieakkoord tussen de Tweede
Kamerfracties van CDA, PvdA en ChristenUnie, 7 February 2007, http://www.regering.
nl/Het_kabinet/Beleidsprogramma_2007_2011, accessed 23 December 2009). However,
in the fifth national communication to the UNFCCC the 30% target has been mentioned,
see Ministry of Housing, Spatial Planning and the Environment Fifth Netherlands
‘National Communication under the United Nations Framework Convention on
Climate Change’ December 2009. It will be interesting to see what the pledges to the
Copenhagen Accord will be. Moreover, new national elections follow in June 2010.
6. The fourth assessment report of the IPCC stated: ‘Most of the observed increase
in global average temperatures since the mid-20th century is very likely due to the
observed increase in anthropogenic GHG concentration’, see IPCC, Climate change
2007: Synthesis Report – An Assessment of the Intergovernmental Panel on Climate
Change, adopted at IPCC Plenary XXVII, Valencia, Spain, 12–17 November 2007
(available at http://www.ipcc.ch/publications_and_data/publications_ipcc_fourth_
assessment_report_synthesis_report.htm, accessed 23 December 2009), p. 39.
7. There is a growing attention to developing effective liability approaches to greenhouse
gas emitters, thereby trying to solve problems like uncertainty with regard to causal-
ity. See the discussions in this book, in particular the contributions of Miriam Haritz,
Elena Kosolapova, Giedrė Kaminskaitė-Salters, Phon Van der Biesen and Chris van
Dijk. See for an earlier integrative discussion of aspects of liability for climate change
damage: Michael G. Faure and André Nollkaemper (2007), International liability
as an instrument to prevent and compensate for climate change, Stanford Journal
of International Law and Stanford Environmental Law Journal, Symposium issue:
Climate Change Risk (vol. 26A/23A), 123–179.
8. The IPCC fourth assessment report states that with a low stabilization goal of 450
ppm CO2 equivalent an emission reduction target of 25–40% in 2020 compared to 1990
should be followed by Annex I countries (which are the countries being mentioned in
annex I to the UNFCCC). See IPCC (2007), Fourth Assessment Report, Working
Group III, Chapter 13, Box 13.7, p. 776. See also http://www.ipcc.ch/presentations_
and_speeches/presentations_and_speeches_presentations.htm#2, slide 6. However,
if a less ambitious stabilization goal is to followed, which implies a greater risk, the
emission reduction target is, of course, less intense. An update of scientific findings
stated that if society wants to stabilize greenhouse gas concentrations at the level of
global warming between 2.0 and 2.4 degrees Celsius, ‘then global emissions should,
theoretically, be reduced by 60–80% immediately, the actual amount being depend-
ent upon the amount that will be taken up by oceans and land’, and: ‘The 400 ppm
CO2-equivalents target, about the same as today’s concentrations, is estimated to give
a 75% chance of confining global warming to less than 2°C’. Katherine Richardson
a.o., Synthesis report, Climate Change, Global Risks, Challenges and Decisions,
Copenhagen 2009, http://climatecongress.ku.dk/pdf/synthesisreport, accessed 28
December 2009, p. 18 and p. 20.
9. IPCC, Climate Change 2007: Synthesis Report – An Assessment of the
Intergovernmental Panel on Climate Change, adopted at IPCC Plenary XXVII,
Valencia, Spain, 12–17 November 2007, available at http://www.ipcc.ch/publica-
tions_and_data/publications_ipcc_fourth_assessment_report_synthesis_report.htm
accessed 23 December 2009 ‘Some systems, sectors and regions are likely to be
especially affected by climate change. The systems and sectors are some ecosystems

(tundra, boreal forest, mountain, mediterranean-type, mangroves, salt marshes, coral

reefs and the sea-ice biome), low-lying coasts, water resources in some dry regions at
mid-latitudes and in the dry topics and in areas dependent on snow and ice melt, agri-
culture in low-latitude regions, and human health in areas with low adaptive capacity.
The regions are the Arctic, Africa, small islands and Asian and African megadeltas.
Within other regions, even those with high incomes, some people, areas and activities
can be particularly at risk’. However: ‘Effects of climate changes on human and some
natural systems are difficult to detect due to adaptation and non-climatic drivers’,
p. 72.
10. It needs to be noted that in the communication to the citizens it is already rec-
ognized that ‘climate change is already a painful reality in some of the world’s
poorest countries, and funds are needed to start adapting immediately’, see Karl
Falkenberg (Director-General for Environment, European Commission), High Hopes
for Copenhagen, in: Environment for Europeans, no 36, 2009.
11. W. Nordhaus (2008). A Question of Balance: Weighing the Options on Global Warming
Policies. New Haven, CT and London, Yale University Press, p. 15.
12. See the G-20 Leaders’ statement developed during the Pittsburgh Summit in
September 2009: ‘To phase out and rationalize over the medium term inefficient fossil
fuel subsidies while providing targeted support for the poorest. Inefficient fossil fuel
subsidies encourage wasteful consumption, reduce our energy security, impede invest-
ment in clean energy sources and undermine efforts to deal with the threat of climate
change’. See http://pittsburghsummit.gov. accessed 23 December 2009, press release
25 September 2009 (Leaders’ statement).
13. See http://www.iea.org, press release 10 November 2009: ‘The time has come to make
the hard choices needed to combat climate change and enhance global energy security,
says the latest IEA World Energy Outlook’, accessed 23 December 2009.
14. See http://pittsburghsummit.gov. accessed 23 December 2009, press release 25
September 2009 (Leaders’ statement), A Framework for Strong, Sustainable, and
Balanced Growth, section 29.
15. See website http://europa.eu/legislation_summaries/energy/european_energy_policy/
l27068_en.htm accessed 25 August 2009, and European Commission (2007),
Communication from the Commission to the Council and the European Parliament:
Sustainable power generation from fossil fuels: aiming for near-zero emissions from
coal after 2020, COM(2006)843 final, Brussels 10.1.2007.
on the promotion of the use of energy from renewable sources and amending and
subsequently repealing Directives 2001/77/EC and 2003/30/EC OJ L 140/16, 5.6.2009.
17. European Commission (2008), Second Strategic Energy Review: An EU energy secu-
rity and solidarity action plan, Brussels, 13.11.2008, COM(2008) 781 final, p. 16.
18. European Commission (2007), Communication from the Commission to the Council
and the European Parliament: Sustainable power generation from fossil fuels: aiming
for near-zero emissions from coal after 2020, COM(2006)843 final, Brussels 10.1.2007,
p. 10.
19. See the Consultation document: A framework for the development of clean coal: con-
sultation document, posted on http://www.decc.gov.uk/en/content/cms/consultations/
clean_coal/clean_coal.aspx, accessed 27 August 2009, p. 33.
20. European Commission (2006), Communication of the Commission on sustainable
power generation from fossil fuels, COM(2006)781 final, p. 11.
21. European Commission (2006), Communication of the Commission on sustainable
power generation from fossil fuels, COM(2006)781 final, p. 6.
22. See http://www.decc.gov.uk/en/content/cms/consultations/clean_coal/clean_coal.aspx,
accessed 27 August 2009, and the consultation document: A framework for the devel-
opment of clean coal: consultation document, posted at this website, at p. 37 and p. 50.
23. European Commission, Second Strategic Energy Review: An EU energy security and
solidarity action plan, Brussels, 13.11.2008, COM(2008) 781 final, p. 15.

24. European Commission, Communication from the Commission to the Council and the
European Parliament: Sustainable power generation from fossil fuels: aiming for near-
zero emissions from coal after 2020, COM(2006)843 final, Brussels 10.1.2007, p. 4.
25. See the European Commission, Second Strategic Energy Review: An EU energy secu-
rity and solidarity action plan, Brussels, 13.11.2008, COM(2008) 781 final, p. 15.
26. European Commission, Communication of the Commission on Sustainable power
generation from fossil fuels, COM(2006)781 final.
27. http://www.eurelectric.org/CEO/CEODeclaration.asp, accessed 24 July 2009.
28. Council regulation (EC) No 1407/2002 of 23 July 2002 on State aid to the coal indus-
try. The regulation only applies to so-called hard coal, see ‘Consultation paper on
the aftermath of the expiry of Regulation (EC) No 1407/2002 on State aid to the coal
industry’ published on: http://ec.europa.eu/energy/coal/consultations/2009_07_15_
en.htm (accessed 24 July 2009) for a consultation period during 11/05/2009 –
15/07/2009. This regulation is applicable till the end of 2010.
try, preamble (7) and article 1.
try, preamble (18).
31. European Commission, Consultation paper on the aftermath of the expiry of
Regulation (EC) No 1407/2002 on State aid to the coal industry, published on: http://
ec.europa.eu/energy/coal/consultations/2009_07_15_en.htm (accessed 24 July 2009)
for a consultation period during 11/05/2009 – 15/07/2009. p. 10.
32. Regulation (EC) No 663/2009 of the European Parliament and of the Council of 13
July 2009 establishing a programme to aid economic recovery by granting Community
financial assistance to projects in the field of energy, OJ EU 31.07-2009, L 200/31.
amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emis-
sion allowance trading scheme of the Community, OJ L 140/63, 5.6.2009, introduced
the new article 10a, see section 8 of that article.
34. See in this respect the USA case law, as explained by Rosemary Lyster (2007), Chasing
down the climate change footprint of the private and public sectors: Forces converge,
Environmental Planning and Law Journal 24 281–321, p. 303 (referring to Connecticut
v American Electric Power 406 F supp ed 265 (SDNY 2005), but moreover more elab-
orately discussed, including recent developments in case law in the USA, by Miriam
Haritz and Elena Kosolapova in this book.
35. ECJ, Judgment of 16 December 2008, C-127/07, (Société Arcelor Atlantique et
Lorraine e.a. v. Premier Ministre, Ministre de l’Écologie et du Développement
durable).
amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emis-
sion allowance trading scheme of the Community, OJ EC 5.6.2009, L 140/63.
37. Decision of the European Parliament and of the Council on the effort of Member
States to reduce their greenhouse gas emissions to meet the Community’s greenhouse
gas emission reduction commitments up to 2020 (the Effort sharing decision), yet to be
published in the Official Journal of the EU.
38. It is to be noted that different views exist with regard to the gradual path that should
be taken to reduce the greenhouse gas emissions; in this chapter, the starting point
is Annex I countries should cut their greenhouse gas emissions by 25 to 40% below
1990 levels by 2020 to avoid dangerous climate change (see IPCC, Fourth Assessment
Report, Working Group III, Chapter 13, Box 13.7, p. 776).
39. European Commission, MEMO/08/797, Brussels, 17 December 2008, Questions and
Answers on the Decision on effort sharing.
40. European Commission, MEMO/08/797, Brussels, 17 December 2008, Questions and
Answers on the Decision on effort sharing, p. 1.
41. Proportionate liability means that a victim can get compensated for a proportionate

amount of its damage, based upon the probability of causation¸ see for further expla-
nation and literature references Michael G. Faure and André Nollkaemper (2007),
above, note 7, p. 164.
42. The adequateness and effectiveness of the established framework for the reliability
of the emission data is a point of concern. See Marjan Peeters (2006), Inspection
and market-based regulation through emissions trading: the striking reliance on self-
monitoring, self-reporting and verification, Utrecht Law Review, 2 (1) (http://www.
uu.nl/uupublish/homerechtsgeleer/onderzoek/utrechtlawreview/38361main.html),
http://ssrn.com/abstract=991293.
43. See the new art. 10a(3) of the EU ETS directive as provided by Directive 2009/29/EC
of the European Parliament and of the Council of 23 April 2009, amending Directive
2003/87/EC so as to improve and extend the greenhouse gas emission allowance
trading scheme of the Community.
44. ‘Electricity generator’ means an installation that, on or after 1 January 2005, has pro-
duced electricity for sale to third parties, and in which no activity listed in Annex I is
carried out other than the ‘combustion of fuels’, see the amendment of art. 3 of the EU
ETS directive as provided by Directive 2009/29/EC of the European Parliament and
of the Council of 23 April 2009, amending Directive 2003/87/EC so as to improve and
extend the greenhouse gas emission allowance trading scheme of the Community. Free
allocation shall however apply for district heating and high efficiency cogeneration, see
art. 10a(4).
45. The capture of greenhouse gases from installations covered by this directive for the
purpose of transport and geological storage in a storage site permitted under Directive
2009/31/EC, the transport of greenhouse gases by pipelines for geological storage in
a storage site permitted under Directive 2009/31/EC, and the geological storage of
greenhouse gases in a storage site permitted under Directive 2009/31/EC are listed in
annex I.
46. Art. 12a(3) of the EU ETS directive as provided by Directive 2009/29/EC.
47. Art. 10(c)(2).
48. Art. 10a(6).
49. Marjan Peeters and Stefan Weishaar (2009), Exploring Uncertainties in the EU
ETS: ‘Learning by Doing’ Continues Beyond 2012, Carbon and Climate Law Review,
1/2009, 88–101.
50. Art. 9 of the EU ETS directive (as provided by Directive 2009/29).
51. Art. 9 of the EU ETS framework, as provided by Directive 2009/29.
52. Article 29a(1) of the EU ETS (as provided by Directive 2009/29).
53. Article 29 of the EU ETS (as provided by Directive 2009/29).
54. See, very concise, preamble 1 of Directive 2008/29: Directive 2003/87/EC of the
European Parliament and of the Council establishes a scheme for greenhouse gas
emission allowance trading within the Community (Community scheme) in order to
promote reductions of greenhouse gas emissions in a cost-effective and economically
efficient manner.
55. Art. 1 of council Directive 2009/29/EC , amending art. 1 of Directive 2003/87/EC.
56. Council of the European Union, document 7128/09, Brussels, 3 March 2009
(Contribution of the Council (Environment) to the Spring European Council (19 and
20 March 2009): Further development of the EU position on a comprehensive post-
2012 climate agreement – Council conclusions –).
57. Directive 2009/29, introducing a new art. 9. Moreover, art. 10a(5) gives further rules
for determining the amount of allowances for free allocation. The total amount of the
allowances is to be based on the total quantities of allowances issued or to be issued
by the Member States in accordance with the Commission Decisions on their national
allocation plans for the period from 2008 to 2012.
58. Directive 2009/29, introducing art. 10(4)
59. Directive 2009/29, introducing art. 10(1).
60. Directive 2009/29, introducing art 10a.

61. Directive 2009/29, introducing art. 10(1). The directive points out in the same article
how the total amount of allowances to be auctioned by Member States should be
composed.
62. Directive 2009/29, introducing art. 10a(11).
63. Directive 2009/29, art. 10 (in particular section a).
64. Directive 2008/1/EC of the European Parliament and of the Council of 15 January
2008 concerning integrated pollution prevention and control (Codified version, the
original directive is Directive 1996/96).
65. Art. 9(3) Directive 2008/1 and art. 26 Directive 2003/87/EC. According to the
Commission this approach should be continued, see the Proposal for a directive of
the European Parliament and of the Council on industrial emissions (integrated pol-
lution prevention and control), Brussels, 21.12.2007, COM(2007) 844 final, the new
proposed article 10.
66. Also methane, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride are
listed in annex II of the EU ETS directive but not in the IPPC directive. Only nitrous
oxide is listed in both directives. The IPPC permit shall in particular include emission
limit values for polluting substances, in particular those listed in Annex III, likely to
be emitted from the installation concerned in significant quantities.
67. According to art. 8.13a (2)(b) of the Dutch Environmental Management.
68. Dutch Ministry of the Environment (VROM), Meerjarenafspraak Energie-efficiëntie
ETS-ondernemingen (MEE), 2 October 2009, posted at http://www.senternovem.nl/
mja/ accessed 23 December 2009.
69. Art. 8 of the EU ETS directive (not amended by directive 2009/29).
70. According to the definition in the IPPC directive, ‘emission limit values’ shall mean the
mass, expressed in terms of certain specific parameters, concentration and/or level of
an emission, which may not be exceeded during one or more periods of time. Emission
limit values may also be laid down for certain groups, families or categories of sub-
stances, in particular for those listed in Annex III of that directive.
71. See about the role of art. 176 EC Treaty (now article 193 TFEU) in view of total har-
monization, Jan H. Jans and Hans H.B. Vedder (2008), European Environmental Law,
3rd edition, Groningen: Europa Law Publishing, p. 107. See also the recent interesting
opinion of AG Kokott in case 378/08.
72. Jans and Vedder take a contrary position, see pp. 108–109.
73. See the Consultation document: A framework for the development of clean coal: con-
sultation document, posted on http://www.decc.gov.uk/en/content/cms/consultations/
clean_coal/clean_coal.aspx, viewed 27 August 2009, p. 32.
74. An Emission Performance Standard can be absolute, so that a power station would be
expected to operate within the standard minute by minute, or averaged over a period
of time, whether a year or a lifetime, so that average emissions over the period are
within the standard, see the consultation document, p. 34.
75. See the consultation document, p. 36, and also, with respect to CCS retrofit require-
ments, p. 54.
76. European Commission, Second Strategic Energy Review: An EU energy security and
solidarity action plan, Brussels, 13.11.2008, COM(2008) 781 final.
77. Art. 33 of Directive 2009/31 on geological storage of carbon dioxide amends Directive
2001/80, introducing these obligations.
78. The UK considers a policy that goes further, meaning that a new coal power station
could only gain development consent if it could show that it was designed and
intended to capture, transport and store at least 20 million tonnes of the carbon
dioxide emitted from at least 300MW net (around 400MW gross) of its capacity, see
the Consultation document: A framework for the development of clean coal: consul-
tation document, posted on http://www.decc.gov.uk/en/content/cms/consultations/
clean_coal/clean_coal.aspx, viewed 27 August 2009, p. 41. Furthermore, it is consid-
ered to require new coal-fired plants to retrofit CCS in full capacity as soon as this
becomes a proven technology (p. 46).

79. See also preamble 47 to directive 2009/31/EC.

80. As being debated in Germany in the course of the implementation of the Carbon
storage directive: BMU-Pressedienst No. 128/09 Berlin, 06.05.2009, ‘Gabriel: Kein
Blankoscheck für CO2-Abspeicherung’: quote: ‘Konkrete Geothermie-Projekte
werden Vorrang vor der Einlagerung von CO2 habe’.
81. Art. 1 Directive 2009/31.
82. Art. 16 Directive 2009/31; these obligations of course need to be implemented in
national law.
83. Art. 3(17) Directive 2009/31.
84. Directive 2004/35/EC of the European Parliament and of the Council of 21 April
2004 on environmental liability with regard to the prevention and remedying of envi-
ronmental damage. The operation of storage sites is now listed in Annex III of the
Environmental liability directive (see art. 34 of Directive 2009/31), which means that
that regime indeed applies too. However, this directive doesn’t oblige the operator to
take financial security with regard to environmental damage, and, as noted before,
does not contain an obligation for the authority to take corrective measures.
86. The transfer of responsibility is regulated.
87. Art. 18(7) Directive 2009/31.
88. BMU-Pressedienst No. 128/09 Berlin, 06.05.2009, ‘Gabriel: Kein Blankoscheck für
CO2-Abspeicherung’ http://www.klimawandel.de/news-klimawandel/aktuelles/2140-
ccs-gesetz-im-bundestag.html, accessed 23 December 2009.
89. Art. 9(9) Directive 2009/31.
91. Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004
on environmental liability with regard to the prevention and remedying of environ-
mental damage, OJ L 143/56, 30.4.2004, consideration 13 of the preamble. See also
art. 4(6) for the exception of pollution of a diffuse character; the regime established
by the directive only applies ‘where it is possible to establish a causal link between the
damage and the activities of individual operators’. However, the recent case C-378/08
is not too stringent on the way in which a causal link can be established. Whether this
would be an avenue for bringing greenhouse gas emissions under the scope of the
directive is a challenging question.
92. See the advance unedited version published on the UNFCCC website (accessed 20
December 2009).
93. See for example: Giedrė Kaminskaitė-Salters, Climate Change Litigation under
English Law, PhD thesis Maastricht University, 2010 (forthcoming) and her chapter
in this book.
94. Michael G. Faure and André Nollkaemper (2007), above, note 7, p. 164.
95. See for instance already in John Houghton (2004), Global Warming, The Complete
Briefing, 3rd edition, Cambridge University Press.
96. Michael Faure and Albert Verhey (eds.), Shifts in Compensation for Environmental
Damage, Wien: Springer, Wien, New York, 2007. See for instance, on p. 325, the criti-
cal discussion of the ‘Santa Claus’ model in the nuclear liability regime.
97. Adam Whitmore (2000), ‘Compulsory Environmental Liability Insurance as a Means
of Dealing with Climate Change Risk’, Energy Policy 28, 739–741.
98. As argued by Lesley K. McAllister (2009), ‘The Overallocation Problem in Cap-and-
Trade’, Columbia Journal of Environmental Law 43, 395–445.
99. Of course, under the condition of full compliance with reporting and verification
obligations,
100. The idea of combining emissions trading with fees – and thus establishing hybrid
schemes – is increasingly exploratory mentioned in the literature, see inter alia
Katherine Richardson a.o., Synthesis report, Climate Change, Global Risks,
Challenges and Decisions, Copenhagen 2009, http://climatecongress.ku.dk/pdf/syn-
thesisreport, accessed 28 December 2009, p. 20 and p. 21, Janet E. Milne, (2008),

‘Carbon Taxes in the United States: The Context for the Future’, Vermont Journal of
Environmental Law, 10, pp. 26–27, and Richard B. Stewart (2007), Instrument Choice,
in: Daniel Bodansky et al., The Oxford Handbook of International Environmental Law,
Oxford University Press, Oxford and New York, p. 157, re the possibility of selling
additional allowances at fixed prices as a hybrid solution between taxes and emissions
trading.
101. Linking the responsibility issue to the surrender of allowances would of course mean
that there is an extra reason for being very cautious with the trustworthiness of the
compliance system, as additional financial commitments can give a further incentive
for polluters to cheat with the emission data.
102. W. Nordhaus (2008), above, note 11, p. 25.
103. As stated by J. Timmons Robberts and Coleen Vogel in Katherine Richardson
a.o., Synthesis report, Climate Change, Global Risks, Challenges and Decisions,
Copenhagen 2009, http://climatecongress.ku.dk/pdf/synthesisreport, accessed 28
December 2009, p. 23.
104. S. Rose-Ackerman (1992), Re-thinking the Progressive Agenda, the Reform of the
American Regulatory State, New York: The Free Press. pp. 128–129.
105. Key message 1, Katherine Richardson a.o., Synthesis report, Climate Change, Global
Risks, Challenges and Decisions, Copenhagen 2009, http://climatecongress.ku.dk/pdf/
synthesisreport, accessed 28 December 2009.
106. Hubert Bocken (2006) ‘Financial Guarantees in the Environmental Liability Directive:
Next time better’, European Environmental Law Review, January 2006, 13–32, and, see
from the same author: Hubert Bocken (2009), ‘Alternative Financial Guarantees for
Environmental Liabilities under the ELD’, European Energy and Environmental Law
Review, June 2009, 146–170.

APPENDIX: LIST OF EU CLIMATE LEGISLATION

This list contains the legislation under discussion in this chapter.
Directive 2001/80 of 23 October 2001 on the limitation of emissions of

certain pollutants into the air from large combustion plants, OJ L 309/1,
27.11.2001.
Council regulation (EC) No. 1407/2002 of 23 July 2002 on State aid to the
coal industry, OJ L 205/1, 2.8.2002.
Directive 2003/87/EC of the European Parliament and of the Council
establishing a greenhouse gas emission allowance trading system,
OJ 2003 L 275/32, as amended (see the consolidated version of 25
June 2009 at http://eur-lex.europa.eu/LexUriServ/LexUriServ.
do?uri=CELEX:02003L0087-20090625:EN:NOT).
Directive 2004/35/EC of the European Parliament and of the Council of 21
April 2004 on environmental liability with regard to the prevention and
remedying of environmental damage, OJ L 143, 30.4.2004.
Directive 2008/1/EC of the European Parliament and of the Council of 15
January 2008 concerning integrated pollution prevention and control
(Codified version), OJ L 24/8, 29.1.2008.
Directive 2009/28/EC of the European Parliament and of the Council of
23 April 2009 on the promotion of the use of energy from renewable
sources and amending and subsequently repealing Directives 2001/77/
EC and 2003/30/EC OJ L 140/16, 5.6.2009.
Directive 2009/29/EC of the European Parliament and of the Council
of 23 April 2009 mending Directive 2003/87/EC so as to improve and
extend the greenhouse gas emission allowance trading scheme of the
Community, OJ L 140/63, 5.6.2009.
Directive 2009/31/EC of the European Parliament and of the Council of
23 April 2009 on the geological storage of carbon dioxide and amend-
ing Council Directive 85/337/EEC, European Parliament and Council
Directives 2000/60/EC, 2001/80/EC, 2004/35/EC, 2006/12/EC, 2008/1/
EC and Regulation (EC) No. 1013/2006, OJ L 140/114, 5.6.2009.
Decision No. 406/2009/EC of the European Parliament and of the Council
of 23 April 2009 on the effort of Member States to reduce their green-
house gas emissions to meet the Community’s greenhouse gas emission
reduction commitments up to 2020, OJ L 140/136, 5.6.2009.

6. Potential liability of European
States under the ECHR for failure
to take appropriate measures with
a view to adaptation to climate
change1
Armelle Gouritin
1. INTRODUCTION
This chapter addresses, from a human rights perspective, the opportunities

and possibilities for private persons to question the responsibility of States
as far as climate change is concerned. More precisely, it will focus on the
European Convention on Human Rights (hereinafter ‘the Convention’)2
as interpreted by the European Court on Human Rights (hereinafter ‘the
Court’). In this respect we will focus on positive obligations binding the
States. We will also limit this study to adaptation measures to climate
change. In other words we will not cover the mitigation aspect.
Linking environmental matters, and more particularly climate change
with human rights has already been explored before domestic and inter-
national courts.3 This path is also currently explored at the UN level. On
28 March 2008, the Human Rights Council adopted its first resolution on
‘human rights and climate change’ (res. 7/23).4 Following this resolution
the Office of the High Commissioner for Human Rights prepared and
submitted an analytical study on the relationship between climate change
and human rights (A/HRC/10/61) to the tenth session of the Council.
On 25 March 2009, the Council adopted resolution 10/4 ‘Human rights
and climate change’.5 In this Resolution the Council noted that ‘climate
change-related impacts have a range of implications, both direct and indi-
rect, for the effective enjoyment of human rights’ and recognized that the
effects of climate change ‘will be felt most acutely by those segments of the
population who are already in a vulnerable situation’, effective interna-
tional cooperation to enable the full, effective and sustained implementa-
tion of the United Nations Framework Convention on Climate Change
134

Potential liability of European States under the ECHR 135
(. . .) is important in order to support national efforts for the realization of

human rights implicated by climate change-related impacts’, and affirmed
that ‘human rights obligations and commitments have the potential to
inform and strengthen international and national policy-making in the
area of climate change’.6 In resolution 10/4 the Council decided to hold a
panel discussion on the relationship between climate change and human
rights. The panel discussion was held on 15 June 2009.
Legal scholars have already explored the linking of environmental
matters with the environment.7 They usually distinguish three forms of
the relationship between human rights and environmental protection.8 In
this study, which focuses on climate change, we will use the approach that
relies on existing human rights to cover environmental matters. We will
briefly touch upon the approach that relies on the recognition of a human
right to a healthy and secure environment since this right was recently
recognized by the Court. However, as we shall see, this recognition may
not currently rest on solid ground because it may not provide a course of
action, as such, for private persons.
To answer the question on how a human rights approach can provide
a remedy against climate change we will firstly elaborate on the chapter’s
background, i.e. climate change and adaptation measures (2). We will
secondly briefly expose the background of the study, i.e. the conditions for
private parties to seize the Court, the Court’s case law re positive obliga-
tions binding States to respect the rights enshrined in the Convention, the
horizontal effect of these rights, and how the Court has progressively inte-
grated environmental matters (3). Finally, we will try to determine if and
to what extent the Court could apply its case law to adaptation measures
(4).
2. BACKGROUND: CLIMATE CHANGE,

ADAPTATION MEASURES AND HUMAN
RIGHTS
2.1 Adaptation: a Concept to Face Concrete Challenges
On the one hand States aim at slowing down and diminishing climate
change, the measures at stake are then referred to as mitigation meas-
ures.9 On the other hand, States look after reducing the risks and damage
linked to the current and future effects of climate change. These measures
are then said to be adaptation measures.10 When it comes to adaptation
measures, the Intergovernmental Panel on Climate Change provides the
following definitions.11

Adaptation, as such, is defined as ‘Adjustment in natural or human

systems in response to actual or expected climatic stimuli or their effects,
which moderates harm or exploits beneficial opportunities. Various types
of adaptation can be distinguished, including anticipatory, autonomous
and planned adaptation’. Anticipatory adaptation is adaptation that ‘takes
place before impacts of climate change are observed. Also referred to as
proactive adaptation’. In other words, anticipatory adaptation assesses
the effects of climate change that have not materialized yet, but that can
be foreseen (ex ante aspect). As we will see below, this dichotomy between
the ex ante/ex post aspect is essential since environmental measures all
tend to prevent damage before hand, and this prevention/precaution
approach is enshrined by the Court. Planned adaptation is ‘adaptation
that is the result of a deliberate policy decision, based on an awareness
that conditions have changed or are about to change and that action
is required to return to, maintain, or achieve a desired state’. In other
words, planned adaptation refers to the impacts of climate change that are
observed or expected: when anticipatory adaptation refers to a proactive
adaptation, a planned adaptation refers to reactive adaptation, resulting
from a policy decision. Autonomous adaptation is adaptation ‘that does
not constitute a conscious response to climate stimuli but is triggered by
ecological changes in natural systems and by market or welfare changes in
human systems. Also referred to as spontaneous adaptation.’ This type of
adaptation will not be covered in the framework of this paper; we focus
on positive obligations, and such adaptation does not fit with these. The
Commission also defines adaptation assessment as follows: ‘The practice
of identifying options to adapt to climate change and evaluating them in
terms of criteria such as availability, benefits, costs, effectiveness, efficiency
and feasibility.’ It is usually accepted that, no matter what can be done
to mitigate climate change, we will have to suffer climate change effects.
So that type of adaptation is not referring to a theoretical possibility, but
rather to an expected, certain situation.12
2.2 Adaptation: Concrete Applications
As for the concrete effects of climate change to which adaptation measures

must echo, the European Commission describes them as follows:13
Climate change increases land and sea temperatures and alters precipitation
quantity and patterns, resulting in the increase of global average sea levels, risks
of coastal erosion and an expected increase in the severity of weather-related
natural disasters. Changing water levels, temperatures and flow will in turn
affect the food-supply, health, industry, and transport and ecosystem integrity.
Climate change will lead to significant economic and social impacts with some

regions and sectors likely to bear greater affects. Certain sections of society (the
elderly, disabled, low-income households) are also expected to suffer more.14
The climate impact is summarised as follows by the Maldives submis-

sion to the Office of the UN High Commissioner for Human Rights.15
Sea-level rise would lead to flooding, sea surges, erosion, salination of
water and land. Temperature increase would cause changes in disease
vectors, coral bleaching and impact on fisheries. Extreme weather events
would take the form of higher intensity storms and sea surges. Changes
in precipitation would cause erosion and change in disease vectors. The
report of the Office of the United Nations High Commissioner for Human
Rights on the relationship between climate change and human rights also
mentions the contraction of snow-covered areas and shrinking of sea-ice,
increased frequency of hot extremes and heat waves and an increase in
areas affected by drought.16
More concretely, the Maldives submission to the Office of the UN High
Commissioner for Human Rights17 is particularly clear when it comes to
the possible impact on humans from climate change.18 It mentions loss of
land, drowning, injury, lack of clean water, spread of disease, damage to
coastal infrastructure, homes, property, damage and loss of agricultural
lands, threat to tourism, lost beaches, changes in traditional fishing liveli-
hood and commercial fishing, lost coral and biodiversity, dislocation of
populations, contamination of water supply, damage to infrastructure
(delays in medical treatment), food crisis, psychological distress, disrup-
tion of educational services and depletion of agricultural soils.
The European Commission also refers to possible damage to infrastruc-
tures and lists as follows the sectors that are to be affected. Agriculture
(effect on crop yields, livestock management and the location of produc-
tion), forests (forests health and productivity), fisheries and aquaculture,
coasts and marine ecosystems, energy (effect on demand and supply),
infrastructure (buildings, transport, energy and water supply), tourism,
human health (weather-related deaths and diseases, spread of serious
infections), animal and plant health, water resources (quality and quan-
tity), ecosystem and biodiversity loss (when e.g. salt marsh and dunes
protect against storms, provision of drinking water, food production and
building materials).19
The European Commission also underlines that ‘most adaptation meas-
ures will be taken at national, regional or local level’.20 This reflects the fact
that climate change effects do differ according to the regional variability of
climate change.21 The consequence that can be drawn for this study is that
the Court would have to operate on a case-by-case basis, the facts being
fairly different from one State to another, from one region to another, and

from one locality to another. Also, the Court would probably have to assess,
against the Convention’s requirements, the failure to adopt national adap-
tation measures that were nevertheless required to comply with EU law.22
2.3 Climate Change and Human Rights
The following human rights are listed in the report of the Office of the
United Nations High Commissioner for Human Rights on the relation-
ship between climate change and human rights as being relevant in the
climate change – human rights nexus: right to life, to adequate food, to be
free from hunger, to safe drinking water, to the highest attainable stand-
ard of health, to adequate housing.23 The Maldives’ submission adds right
to means of subsistence, culture, property, health, adequate and secure
housing, and education.24
3. THE COURT’S CASE LAW ON POSITIVE

OBLIGATIONS AND THE ENVIRONMENT
We will first briefly provide an overview of the Court’s ‘system’ (3.1). We

will then elaborate on the positive obligations binding the States and the
Court’s control of these obligations (3.2). This will enable us to finally
expose the Court’s case law on positive obligations and ‘classical’ environ-
mental matters (3.3).
3.1 The Court’s ‘System’ and Climate Change: Key Features
3.1.1 The Court’s ‘system’: overview25

The Convention states that two kinds of applications may be submitted to
the Court. On the one hand, Article 33 of the Convention describes Inter-
State cases. A State may bring another State before the Court, claiming
that the latter did not respect the obligations of the Convention.26 On the
other hand, Article 34 mentions individual applications. These applications
are brought before the Court by a private person (physical person, legal
person, NGO, group of private persons) who claims to be the victim of a
breach by a State of the rights enshrined in the Convention. When reference
is made to the action (or inaction) of a State, one has to understand such
action from State agents, or any State body (be it legislative or judiciary).
3.1.2 Admissibility of individual applications

The fulfilment of admissibility conditions is a well-known element of the
procedure before the court. The great majority of cases do not pass the

admissibility test. Still, some aspects are particularly relevant for the appli-
cation of the human rights approach to climate change.
A crucial condition for a claim to be admissible is the exhausting of all
national remedies.27 This condition is an application of the subsidiarity
principle: as a principle, the Court can only examine a case once the occa-
sion has been given to States to repair and redress the claimed violation.
The national remedies to be exhausted are the effective, accessible and
certain remedies.28 The rights guaranteed by the Convention must be
invoked in substance. In other words, the fact that a right was invoked but
not invoked expressly as a right guaranteed by the Convention does not
rebut admissibility.29 The Court is not formalist. Furthermore, there are
a couple of exceptions to the exhausting of all national remedies require-
ment.30 The exhausting of all national remedies also steers the prescription
period: six months.
A second condition for an application to be admissible is the recognition
of the victim status.31 The victim notion is autonomous. As a principle,
only direct victims of a claimed violation can seize the Court. Here again
some exceptions temper the principle’s rigour. These exceptions prove to
be very relevant when it comes to adapting to climate change. Indeed, the
Court has recognized the status of potential victim. Potential victims are
those under the threat of having their rights violated and victims suffering
a violation (e.g. there are no doubts on the application of a given law).32
This is most important since it reflects the ex ante aspect mentioned above
(see 2. Background). Another feature that makes the link between the ex
ante aspect and the admissibility criteria is the possible recognition of the
victim status independently of the materialization of damage.33 In other
words, an individual claiming that the effects of climate change called
for the adoption of positive adaptation measures cannot be opposed by
the States on the grounds that the effects have not yet occurred. Still,
the problem that is posed here is one of an evidentiary nature. We will
elaborate on the evidence issue and uncertainty below. One should keep in
mind that when examining these exceptions, the Court would operate on
a case-by-case basis.
3.2 The Positive Obligations Theory and the Court’s Control of These
Obligations
3.2.1 Objective and ground

The theory of positive obligations is a case law creation. It was fully
expressed in the Affaire linguistique belge.34 The goal of the application
of this theory is to guarantee an effective application of the Convention
and an effective enjoyment of the rights guaranteed. J.-P. Marguénaud

qualifies it as a ‘decisive weapon’ (‘arme décisive’) to guarantee that the

rights enshrined in the Convention are effective.35 A State’s failure to fulfil
a positive obligation leads to the violation by this State to the Convention’s
obligations. From the most recent case law it seems as though the Court
grounds positive obligations on both the Convention’s provisions and the
‘supremacy of law’ or ‘state of law’ principle.36 The supremacy of law prin-
ciple is recognized by the Court as one of the fundamental principles of a
democratic society which flows in all the Convention’s articles.
3.2.2 Definition, distinction criteria and typology

By relying on case law we can advance the following definition: positive
obligations require that national authorities take the ‘necessary meas-
ures’ for a right to be safeguarded.37 More precisely, national authorities
must adopt reasonable and accurate measures to protect the individual’s
rights.38
Concretely, these measures can be of a legal nature (e.g. States must
sanction individuals who violate the Convention, put into place a legal
regime for a given activity). These measures can also be of a practical
nature (e.g. States must take measures to ensure that a demonstration can
take place).
Depending upon the circumstances of each case, it can be that States
have to adopt two kinds of measures: legal and practical. In other words,
positive obligations ensure the effective enjoyment of the rights guaran-
teed by the Convention. It can be mentioned here that when the State
adopts a measure but did not adopt all the necessary measures, the State’s
responsibility shall be recognized on the ground of positive obligations for
partial omission.39 Another important feature to underline is the applica-
tion of positive obligations to cases having a ‘horizontal effect’, i.e. in the
relations between private persons.40 This can prove to be very important in
this study, for the States would be bound by positive obligations re adap-
tation to climate change not only applied to the States’ relationship with
the individuals, but also by positive obligations re adaptation to climate
change applied to the relationship between individuals.
Positive and negative obligations are of a distinct nature. Positive
obligations require the State to intervene: passivity of the State leads to
the Convention’s violation. Negative obligations require the State not to
intervene: on the grounds that the State hampered or limited the rights
enjoyment, the Convention would be found to have been infringed.41 If the
distinction is clear in theory, its concrete application is more delicate to
operate; such as when in a given case a State’s behaviour comprises both
action and inaction features,42 when a fact of the State can be approached
under the angle of both positive or negative obligations,43 or when the two

kinds of obligation are distinct but spillover occurs: the State committed
an interference, but while operating the proportionality control the Court
unveils positive obligations.44
The distinction between the procedural and substantial, material aspect
of positive obligations is applied, among others, in the Öneryildiz v.
Turkey case (November 30th 2004, § 97). The Court then refers to the
content of the expected State measure. Substantial measures refer to the
substantive measures necessary for the full enjoyment of the rights guar-
anteed by the Convention (e.g. prohibiting bad treatment, legal recogni-
tion, transsexuality). Procedural obligations require the organization of
internal procedures in order to secure a better protection of persons or
the organization of adequate remedies to rights violations.45 For example,
in the Öneryildiz v. Turkey case the Court has recalled the requirement to
organize independent and impartial enquiries when death could fall under
the Convention’s right to life, in this case because of an accident.46
3.2.3 The Court’s control of positive obligations

The Court is more lenient towards positive obligations than toward nega-
tive obligations. This is justified by subsidiarity: positive obligations call
for States to adopt measures, and not only to assess the legality of an
abstention, while the subsidiarity principle calls for the possibility for
States to choose the means to fulfil their obligations. The Court will be
particularly careful not to impose on national authorities an excessive or
unbearable burden.47 States hence have a wider margin of appreciation
(that differs according to each case, e.g. according to the right guaranteed).
It is settled case law that in fields such as land management, planning and
the environment that call for State measures the Court respects the States
appreciation, unless this appreciation clearly lacks a reasonable basis.48
Accordingly, the Court’s case law was elaborated primarily in environ-
mental matters on the basis of positive obligations. Does this imply that
rights linked to environmental matters are less protected than others since
we just saw that the Court’s control is more lenient when it comes to
positive obligations than when it comes to negative obligations? The
answer may be nuanced: actually, the Court’s control is rather similar.49
But the control is nevertheless distinct: the core of the Court’s control
when assessing positive obligations will be on the requirement that a ‘fair
balance’ is found between the interests of the applicant and the interests
of the community.50 This is particularly true for environmental matters,
as we will further see below. Even though the Court recognizes a wide
margin of appreciation to States in land management and environmental
matters that reduces its control accordingly, the Court does not renounce
any control.51 In the Fadeïeva case the Court specified that it will firstly

determine if the decision-making process has been equitable and has duly
respected the interests of the individual.52 Only under exceptional circum-
stances is the Court meant to escape this frame and control the content of
the decisions adopted by the national authorities.53
This step of the control is rather unpredictable: it will depend upon the
circumstances of each case (the public interest at stake, practice of States
parties to the Convention, the applicant’s interests, the facts at stake – e.g.
the degree of pollution etc.). We can mention that the Court’s control is
stricter for procedural positive obligations and more lenient for substan-
tial positive obligations.
3.3 Positive Obligations and ‘Classical’ Environmental Matters: an

Overview
Above all, we can mention that the rules elaborated by the Court are not
static. The whole system of the Court is very dynamic. Still, in the frame-
work of this chapter we will limit ourselves to the settled rules when it
comes to positive obligations and the environment.
As far as the environment is concerned, one can note that the word
environment does not appear even once in the text of the Convention.
The Convention does not have any provisions that would expressly cover
environmental matters.54 There is no express right to a peaceful, healthy
and high-quality environment. Nevertheless, the Court has elaborated a
whole body of rules covering environmental issues, relying mainly on the
following grounds: right to life (Article 2); prohibition of torture (Article
3); right to a fair trial (Article 6 §1); right to respect for private and family
life (Article 8); freedom of expression (Article 10); freedom of assembly
and association (Article 11); right to an effective remedy (Article 13); and
protection of property (Article 1 of the first protocol – Article P1-1). The
Court has interpreted the Convention very dynamically in order that it
eventually assesses the protection of environment. The Court’s dynamism
deserves to be underlined. It has been acknowledged by many scholars in
all fields covered by the Convention, not only in environmental matters.
The Court has, for example, used a diverse range of legal sources, as it
has not restricted itself to literal interpretations of the Convention. It has
recently extended the applicable sources to international law texts, even
where the concerned States are not party to the international treaties in
question.55 Finally, the Court has very recently ruled in the Tatar case on
fairly important and new elements. We will elaborate on this case. We will
then review some positive obligations binding States in environmental
matters. If the States do not respect them, they will be found responsible
for having infringed the Convention.

3.3.1 The Tatar case56

The Tatar case will be mostly important in this study for several reasons.
First, in the Tatar case the Court recognized the right to a healthy and pro-
tected environment.57 Despite the fact that in this case the recognition of
such a right was coupled with positive obligations, the real effects of such
a right are highly debated and still ‘under construction’, be it for its mere
signification and the substantive implications it could entail for the Court.
Indeed, the Court did not elaborate on these points that are still debated
by legal scholars and within domestic law.
Second, the Court clearly enshrined the importance of the precaution-
ary principle in §§ 109 and 120. The Court refers to the International Court
of Justice Gabcikovo Nagymaros (Hungary Slovakia) case (27 September
1997),58 and at the European level to the European Commission’s
Communication on the precautionary principle in the Maastricht and
Amsterdam Treaties, and EC case law.59
Third, in this case the Court rules on causation in environmental
matters.60 The Court stated that when lacking proof elements because of a
plurality of causes61 the Court could apply a probability causation assess-
ment in the case of scientific uncertainties together with sufficient and
convincing statistical elements. Still, in this case and applying the prob-
ability causation assessment, the Court did not recognize causation to be
established. It could imply that the probability threshold to be met before
the Court is pretty high. But this has to be verified with other cases that
may present themselves before the Court.
3.3.2 States obligations and risk management

We will distinguish States failures for not having prevented impairments
that materialized (ex post aspect, the risk materialized) from States failure
for not preventing potential attempts (ex ante aspect, risk).
Firstly and as for the materialised risk (ex post aspect), we will underline
some examples of case law where the Court assessed a State’s violation
of the positive obligations to prevent the infringement of individuals’
interest that has materialised. The Court found the following nuisances
to fall under the scope of the Convention: noise and atmospheric pollu-
tion, among others when these nuisances resulted from airports’ activities
(Zimmerman and Steiner v. Switzerland, July 13th 1983, article 6 §1 vio-
lated; Powell and Rayner v. United Kingdom, February 21st 1990, article
13 violated; Hatton and others v. United Kingdom, July 8th 2003, article 8
not violated; Giani and others v. Italy, October 28th 2004, not admissible;
Moreno Gomez v. Spain, November 16th 2004, article 8 violated), water
pollution (Zander v. Sweden, July 13th 1993, article 6 §1 violated). Some
cases refer to a whole range of nuisances: in the Lopez Ostra v. Spain case

(December 9th 1994), the facts involved smoke, noise and smell cause by
a water treatment station nearby the applicant’s home (article 8 found
to be violated). Finally, we can mention a particularly dramatic case, the
above-mentioned Öneryildiz v. Turkey case: a methane explosion in a
waste landfill caused the death of 39 people living in nearby illegal houses.
The litigant, Mr Öneryildiz, lost nine family members in that accident. The
matter was not dealt with under the right to private life but the right to life
and physical integrity. In this case the Court found article 2 to be violated.
Secondly and as for risk as such (ex ante aspect), the Court has consid-
ered States’ failure to prevent or minimize the very risk of infringement of
individuals’ interests. In other words, what is at stake here is the actual or
perceived risk (as will be elaborated below), States being sanctioned for
their passivity or insufficient action.62
3.3.3 Positive obligations and access to information

We will distinguish the obligation resting on States to provide informa-
tion, be it without a formal request from the public, from the obligation to
guarantee access to documents.
Yet, we can underline that the Court does not recognize as such the right
to get environmental information in the possession of national authorities.
There must be a nexus between the environmental information and a right
guaranteed by the Convention.63
The first hypothesis covers cases where a risk exists, but the risk has
the particularity to be merely acknowledged or acknowledgeable by
national authorities, not by private persons. In other words, the ‘lay
citizen’64 cannot realize that such risk exists. This aspect is crucial for the
positive obligation at stake does not depend upon, is not triggered by a
formal request from the public (citizen or environmental NGO, being
granted that the latter one can be considered as a ‘lay citizen’). The States
(administrative authorities etc.) are then requested to spread the infor-
mation on the grounds that the State had, or should have had knowledge
of the risk. The essential case in that respect is Guerra v. Italy (February
19th 1998), later confirmed by the Öneryildiz v. Turkey case (November
30th 2004).65
Regarding access to documents, the State can be required to deliver
environmental information when the applicant requested them (on the
grounds that risk is created by activities performed by the State or per-
formed with its consent, or on the grounds that the public has a given
perception of risk and wishes to alleviate worries or evaluate danger).
A restriction to the communication or information on environmental
matters has to respect the fair balance requirements.
We can underline that the obligation of environmental information in

the context of article 8 covers both access to information and access to

procedures that allow the applicant to contest the refusal to deliver the
information. In the context of article 2 (right to life), this obligation is
limited by the very limitations of article 2: there must be a risk to life (pro-
tection of health and physical integrity) of the applicants.66
3.3.4 The obligation to adopt practical measures

The State can be bound to put in place a legal or administrative frame-
work that contains rules on the authorisation, the setting, the exploitation,
the security and control of dangerous activities according to the activities
at stake and the danger they create.67 In the framework of this presentation
we refer to the situations where the State has not modified its legislation to
integrate the risks generated by climate change. The respect on behalf of a
State of its obligations in terms of information does not justify the absence
of practical measures if practical measures are necessary.68
When it comes to permits and studies and the positive obligations (qual-
itative and procedural) linked to them, we will refer to the rules that have
been clearly exposed in the Taskin v. Turkey case (November 10th 2004).
On the one hand, the decision-making process must encompass accu-
rate studies and inquiries in order to foresee and evaluate in advance the
effects that can be expected from the activities that may create a danger
for the environment and infringe the individuals’ rights, to eventually
respect the fair balance requirement between all the interests at stake.69
The enquiries and studies must be appropriate. In the L.C.B. v. United
Kingdom case (June 9th 1998), the Court has specified that the moment
to take into account the evaluation of whether the States have respected
their obligations (consultation, information etc.) is the moment when
the study was undertaken or the facts occurred. For example, following
the construction of a dam, the effects on the environment that have to be
taken into account by the State follow the knowledge available at the time
of construction. Still, the State has the obligation to keep its knowledge
up to date.70
On the other hand, the studies’ conclusions and the information that can
enable the public to be aware of the danger it could face must be accessible
to the public. The issue at stake is access to documents. Following this line,
States can have the obligation to consult the public in order to take into
account the individuals’ interests when taking decisions in environmental
fields. This positive obligation is enshrined in the fair balance requirement
between the interests of the applicants and the community’s interests.
Finally, the individuals concerned must have remedies to contest a deci-
sion, act or omission, when they consider that their interests have not been
sufficiently taken into account in the decision-making process.

4. ADAPTING TO CLIMATE CHANGE: A POSITIVE

OBLIGATION?
We saw above that when elaborating on the climate change–human rights
nexus the following human rights are usually referred to: right to life, ade-
quate food, freedom from hunger, safe drinking water, the highest attain-
able standard of health, adequate housing, means of subsistence, culture,
property, health, adequate and secure housing and education.
Before elaborating on the analogy between ‘classical’ environmental
matters and adaptation to climate change (4.2) we will elaborate on the
particularities of climate change as calling for adaptation measures and
the ‘classical’ environmental matters (4.1).
4.1 Adaptation Measures to Climate Change: Particularities when

Compared to ‘Traditional’ Environmental Matters
4.1.1 Particularities resulting from the effects of climate change

Firstly, we must distinguish climate change effects from ‘traditional’ pol-
lutions that are direct impairments of the environment (1st step), vector
of an impairment to men (2nd step). In the framework of climate change
a supplementary step occurs: climate change (1st step) has an impact
on the environment (2nd step), which in turn has an impact on men
(3rd step). Hence, it is not the ‘mere’ pollution of the environment that
takes place, but the effects of climate change on the environment, and
eventually on men. This begs the problem of proving the causal link on
a first step between climate change and impairments of the environment,
and on a second step between this impact on the environment and the
claimed infringed enjoyment of the rights guaranteed by the Convention.
We cannot deal in this presentation with the proof threshold before the
Court,71 but this nevertheless leads us to the second specificity.
Indeed, the Court may have to consider the actions undertaken by the
European Union while cooperation at the EU level in the field of adapta-
tion measures is expected to become more and more important.72 These
developments can help the Court to appreciate the field of application, the
type and concrete shapes of adaptation measures. Hence, the Court will
have some indicators to appreciate if and to what extent States will have
infringed the Convention by not fulfilling their obligations, not respecting
the ‘fair balance’ mentioned earlier.73
4.1.2 Particularities and the field of application of articles 2, 3 and 8

The Court may cover certain aspects of climate change under the angle
of adaptation measures as it does for ‘classical’ environmental problems.

Still, it is necessary to mention the limits that the Court set as for the field
of application of the Convention and environmental matters, and a forti-
ori when applied to climate change and adaptation measures.
As we saw above, the Convention does not guarantee as such the right
to a healthy environment free from any pollution. Accordingly, it is not
possible, in principle, to look after States’ responsibility for interference
or a failure to fulfil a positive obligation on the only ground of an impair-
ment of the environment.74 The Court has not recognized an objective and
autonomous right to a healthy environment.75 In this examination we will
mainly rely on three articles that are crucial for the developments below:
article 2 (right to life), article 3 (prohibition of torture) and article 8 (right
to respect for private and family life). We will devote a couple of lines on
the applicability of these articles.
The rules applied to article 2 and the applicability of this article are
among others recalled in the Öneryildiz v. Turkey case. In the 69th para-
graph the Court recalls that the positive obligations doctrine applies to
article 2. The Court goes on by specifying that the possible impairments
into question must threaten right to life (protection of life, of health, of
physical integrity of the persons under the jurisdiction of States parties to
the Convention). Hence, on the one hand this article assesses some rights
underlined as relevant when it comes to climate change: health, life and
physical integrity while on the other hand the possible effects of climate
change would attain the threshold requirement, namely threat.
As for article 3, in the Valasinas v. Lithuania case the Court underlines
that a high threshold must be attained.76 As far as we know the Court has
never recognized the violation of article 3 in cases dealing with environ-
mental matters.
The rules concerning article 8 are presented in the Taskin v. Turkey
case: article 8 applies to serious impairments to the environment that can
affect a person’s well-being and deprive this person of the enjoyment of
a private home so that it can impair this person’s private and family life,
without seriously endangering the applicant’s health.77 In other words,
the factors linked with an impairment of the environment must impair or
risk impairing seriously and directly private and family life. A threshold
must be attained. This threshold is evaluated according to each case’s
circumstances (intensity and length of nuisances, physical and psycho-
logical effects of the nuisances, general environmental context, etc.).
Here again the rights mentioned above as elaborating the nexus between
climate change and human rights are a priori found in the framework
of the Convention: private and family life, health, adequate and secure
housing.

4.2 Analogy between ‘Traditional’ Environmental Problems and Climate

Change
We will now review the concrete cases in which the above-mentioned

rules would apply to climate change, and eventually lead to the recog-
nition of a State’s responsibility for their failure to adopt appropriate
positive measures, legal or practical. It is important to bear in mind
that for now the Court has not received cases applying to adaptation to
climate change: all the following developments are extrapolations.78 The
European Commission’s Impact Assessment accompanying the White
Paper ‘Adapting to climate change: Towards a European framework for
action’,79 is particularly useful for it provides a list of very concrete adapta-
tion measures.80
4.2.1 Risk management obligations

When establishing the nexus between the management of a risk that
materialized (ex post aspect) and the possible effects of climate change,
the hypothesis can be phrased as follows. Climate change impairs the
interests of applicants of State A. The impairment falls under the field of
application of articles 2, 3 or 8. These claimants seize the Court in order to
have recognized a failure of the State A, for State A should have adopted
adaptation measures (practical – e.g. displacing some persons from their
current location, or legal – e.g. forbidding the construction of a given land)
that should have, or at least could have, hampered the impairment. The
concrete possible cases are numerous: not keeping a dam in good condi-
tion despite the rise in sea levels (e.g. Venice), the dam breaks into parts,
many people would die. Similarly, a given area is susceptible to violent
fires because of droughts, but the mechanism meant to prevent fires is not
reinforced.
The same conclusion applies to risk in its ex ante aspect, i.e. when obli-
gations lying on States re risks have not yet materialized. It is common
sense and always underlined that both environmental impairments and
impairment to the rights guaranteed by the Convention should prefer-
ably be assessed when they have not yet materialized. Concretely, we can
think here about the cases where public authorities authorize the setting
of a waste treatment site nearby a river even though flood risks are real.
Such flooding could eventually lead to the contamination of underground
waters and the river.81 Similar examples can be found when considering
the whole range of activities under authorization requirements. Let us
consider the potentially most destructive activities, e.g. nuclear activities.
If a State wishes to install such an installation on severely eroded land,
applicants could challenge such a decision. Turning to less disastrous

possibilities, one can also think about infrastructures (e.g. the decision to
close a hospital or seriously restrict its activity in an area susceptible to
heat waves, the decision to build social houses in an area susceptible
to flooding or fire, the refusal to put into place stocks of drinking water
or not restricting the use of drinking water in high consumption activities
such as agriculture, or stocking medicines that could answer the diseases
linked to climate change etc.).82
Even though the national decisions listed above were in line with
national law, as we already mentioned above, this conformity does not
hamper questioning the State’s responsibility on the ground of the rights
guaranteed by the Convention.
4.2.2 States’ obligations in terms of information

We saw above the rules that apply with respect to information diffusion in
cases where a risk does exist, but the risk is particular in that only national
authorities can or must be aware of it. In these cases, the ‘lay citizen’
cannot be aware of risk.83 The State (administrative authorities etc.) is
then obliged to spread the information on the ground that the State knew
or should have known the risk. Here again we can easily picture some con-
crete applications: the risk of a heat wave has not been communicated, the
risk of particularly violent fires or of drinking water shortages, etc.
Turning toward access to documents, we saw earlier that the States can
be bound to grant access to information when the applicant requests them
(regarding risk generated by dangerous activities operated by the State
or authorized by it, or the public’s perception of risk, the public desire to
alleviate its doubts or evaluate danger). Any restriction to the communica-
tion or information on environmental problems has to respect fair balance
requirements. Here again numerous cases can appear. For example, an
environmental NGO asked to access studies on the effects of higher tem-
peratures on a given substance or organism that is spread in nature. We
can also wonder if and to what extent States are bound to provide access
to information protected by secret, be it industrial or security, as long as
the information requested concerns activities that might be affected by
climate change.
Once again, the positive obligations’ procedural aspect should not be
neglected: access to remedies allowing the applicant to contest the refusal
to provide the information should exist.
4.2.3 The obligation to adopt practical measures

We saw above that the States can have the obligation to set a regulatory
or legislative framework aimed at addressing the authorization, exploita-
tion, security and the control of dangerous activities according to the risk

they create.84 In this chapter, we refer to cases where the States have not
modified their legislation in order to integrate the risks created by climate
change. We also saw that the respect by a State of its obligations in terms
of information does not exempt it from adopting practical measures: its
responsibility would still be questioned.85
Here again numerous cases could be presented. For example, if a State
has not modified the security system of dangerous activities according to
climate change and the inherent risks, a State has neither foreseen nor
applies a rational water management plan, or an emergency system in
cases of natural disasters.
Turning to studies and enquiries and the procedural and qualitative
requirements, we saw that the decision-making process must encompass
accurate studies and enquiries, in order to be able to foresee and evaluate
in advance the activities’ effects that could impair the environment and
impair the individuals’ rights, and also to reach a fair balance between the
interests at stake.86 These studies and enquiries must be appropriate, and
the States must keep their knowledge up to date.87 In this respect, we can
mention here again that the Court referred, in the Tatar v. Romania case,
to the precautionary principle.88 Concrete applications could therefore
cover all the cases where the State has not proceeded to impact assess-
ments in the aftermath of the risks linked to climate change.
On the other hand, we saw that the studies’ conclusions and the
information that could allow the public to measure danger to which it
is exposed must be accessible, so that States can have the obligation to
consult the public in order to take into account the individuals’ interests
when taking decisions in environmental matters. Here again, numerous
cases can appear, such as the refusal to communicate the results of a study
showing the loopholes in the setting of a State emergency plan.
4.2.4 The Tatar case89

As we saw above the Court recognized the right to a healthy and protected
environment. In the Tatar case the Court ruled on the positive obligations
inherent to the Convention in the field of environmental matters. Still,
as emphasized above, the exact extent to which such recognition could
actually have an influence on such obligation is still to be unveiled by the
Court, in domestic law and to a large extent by legal scholars. That’s why
we will not elaborate on this point that deserves a study on its own. We
will rather focus on the two other key elements of the case.
As we also saw above the Court has ruled on causation in environmen-
tal matters. The Court stated that when causation could not be sufficiently
demonstrated it could apply a probability causation assessment in the case
of scientific uncertainties together with sufficient and convincing statistical

elements. This ruling could prove crucial if cases were brought before the
Court. Indeed, the uncertainties surrounding climate change have already
been mentioned earlier in this study. Hence, such a probability causa-
tion assessment could alleviate the difficulties inherent to litigation in the
field of climate change by overriding the certainty requirement and indi-
vidual dimension of effects that are mostly never individual.90 Moreover,
there tends to be more and more statistical studies on the possible effects
induced by climate change.91
Finally, we saw that the Court has recognized the importance of the
precautionary principle that is no longer to be seen as a ‘philosophical’
concept but rather is a ‘legal norm’.92 The consequences when it comes to
climate change are greatly discussed by legal scholars. Indeed, the prin-
ciple can have a significant role to play both for the positive obligations
binding States and the burden of proof lying on the individual seizing the
Court. On the one hand, the Court has recognized that positive obliga-
tions do cover the future possible though uncertain effects of environmen-
tal disasters.93 When it comes to climate change and the link with the scope
of this study, the positive obligations cover the future though uncertain
effects calling for adaptation measures: the ex ante aspect. On the other
hand, legal scholars have elaborated on the precautionary principle as
alleviating the burden of proof lying on the litigating person.94 There is no
reason why the Court could not apply such alleviation.
5. CONCLUSION
We have seen that the Convention as applied by the Court has the poten-
tial not only to receive the issue of adaptation to climate change, but also
to apply its rules when it comes to positive obligations. Indeed, settled
case law concerning access to information, to procedures, the steps States
have to undertake regarding climate ‘proofing’ or assessment both in
qualitative and quantitative terms, risk management both ex ante and ex
post could ground private persons’ claims to challenge States’ failures in
their obligation to deal with adaptation to climate change. Not only can
these obligations allow citizens and NGOs to follow and contest national
measures, but they can also override the conformity of national measures
to national law. Eventually, these obligations could hamper the number of
victims of climate change effects to be incremental through the adoption
of appropriate measures. This examination is not meant to answer the
worst possible scenario, to be a ‘Cassandra’. It is rather meant to ques-
tion the possible paths to be explored by private persons in order to face
a reality that will have to be faced, whether or not States are successful in

mitigating climate change. In this respect, in exploring this approach, the

human rights approach can be criticized, as much as can the European
Convention and Court on Human Rights. Indeed, the accuracy of litigat-
ing before the Court can be questioned, among other reasons, for the diffi-
culty in being able to satisfy admissibility criteria or, more precisely, when
it comes to environmental matters, for the strong anthropocentric and
individual dimensions of those criteria, which can be seen as inappropriate
to deal with environmental matters. Still, some paths do exist to question
States’ responsibility for having a legal, human rights approach. In this
respect, the Court’s dynamism must be acknowledged. The Court has
indeed elaborated a whole body of rules while not mentioning the word
‘environment’ once in the Convention. The Court eventually mentioned
the human right to a secure and healthy environment and enshrined the
precautionary principle, while diversifying its sources.
From all this potential one question remains: will private persons
exploit this potential?
NOTES
1. This presentation is largely based upon a former presentation ‘La Jurisprudence de la

Cour Européenne des Droits de l’Homme sur les obligations positives en matière envi-
ronnementale peut-elle s’appliquer aux changements climatiques?’, Journée d’études,
March 24th 2009, Université Paris 13, ‘Changements climatiques et défis du droit’,
organized by Christel Cournil and Catherine Fabregoule.
2. European Convention for the Protection of Human Rights and Fundamental Freedoms,
Rome, Nov. 4, 1950 (ETS No.5.), 213 U.N.T.S. 222, as amended by Protocol No. 11,
with Protocols Nos. 1, 4, 6, 7, 12 and 13, available at http://www.echr.coe.int/NR/rdon-
lyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf.
3. For an overview of these cases, see e.g. the Climate Justice website, page dedicated
to human rights: http://www.climatelaw.org/cases/topic/human-rights/, accessed 12
January 2010; and S. Kravchenko and J.E. Bonine, Human Rights and the Environment,
Cases, Law, and Policy, Carolina Academic Press, 2008, pp. 1–52 and 549–593.
4. Website of the UN High Commissioner for Human Rights http://www2.ohchr.org/
english/issues/climatechange/index.htm, accessed November 9th 2009.
5. Ibid.
6. Ibid.
7. See e.g. Karen MacDonald, ‘A Right to a Healthful Environment – Humans and
Habitats: Re-thinking Rights in an Age of Climate Change’, European Energy and
Environmental Law Review, 2008, Vol. 17, pp. 213–226; S. Kravchenko and J.E.
Bonine, above, note 2; in Changements climatiques et défis du droit, Christel Cournil
and Catherine Colard-Fabregoule (eds) Université Paris 13 (CERAP), Bruylant –
Bruxelles (to be released 15 January 2010, Part II ‘Justice Climatique’, Chapter 2
‘Droits de l’Homme et Changements Climatiques’; Human Rights and Climate Change,
Stephen Humphreys (ed.), The International Council on Human Rights Policy,
Geneva, Cambridge University Press, December 2009, M. Mukerjee, ‘Greenhouse
Suits: Litigation becomes a tool against global warming’, Scientific American, 3
February 2003; and on the Marangopoulos Foundation for Human Rights (MFHR) v.
Greece case, Complaint No. 30/2005, European Committee of Social Rights (E.C.S.R.)

(2006) dealing with the United Nations Framework Convention on Climate Change
and Kyoto Protocol, see M. Trilsch, ‘European Committee of Social Rights: The right
to a healthy environment’, I • CON, Oxford University Press, Volume 7, Number 3,
pp. 529–538.
8. For example, in ‘Human rights, health and environmental protection: linkages in law
and practice’, Health and Human Rights Working Paper Series No 1, A Background
Paper for the World Health Organisation, 2002, http://www.who.int/hhr/Series_1%20
%20Sheltonpaper_rev1.pdf (Accessed 9 October 2009), D. Shelton distinguishes the fol-
lowing approaches. Firstly, the recognition of a healthy environment as a condition for
the enjoyment of basic human rights. Secondly, some human rights ground the protec-
tion of the environment (the focus is then on procedural rights: access to justice, access
to the information, public participation). Thirdly, the recognition of an autonomous
right to a healthy environment. On the link between human rights and the environment
see e.g. A. Boyle and M. Anderson (ed.), Human Rights Approaches to Environmental
Protection, Oxford University Press, 2003.
9. In the Impact Assessment accompanying the White Paper ‘Adapting to climate change:
Towards a European framework for action’, SEC(2009) 387, dated April 1st 2009,
the European Commission defines p. 50 mitigation as follows: ‘An anthropogenic
intervention to reduce the anthropogenic forcing of the climate system; it includes
strategies to reduce greenhouse gas sources and emissions and enhancing greenhouse
gas sinks (IPCC, 2007)’. It can be reminded here that the EC is not party to the
European Convention on Human Rights. The Court cannot assess EC measures as
such against the Convention’s requirements. Still, the Court has recognized itself as
the jurisdiction to assess against the Convention’s requirements EU Member States’
measures adopted to comply with Member States’ obligations towards the EU. On this
point see Bosphorus Hava Yollari Turizm v. Ticaret Anonim irketi v. Ireland, 30 June
2006 (GC); on this ruling see C. Eckes, ‘Does the European Court of Human Rights
Provide Protection from the European Community? – The Case of Bosphorus Airways’,
European Public Law, Volume 13, issue 1, February 2007, pp. 47–67.
10. On adaptation measures, see J.B. Smith et al., ‘An architecture for government action
on adaptation to climate change. An Editorial Comment’, Climatic Change, 2009,
volume:95, no. 1, pp. 53–61, Iati I., ‘The Potential of Civil Society in Climate Change
Adaptation Strategies’, Political Science, 2008, volume 60, no. 1, pp. 19–30; S. Jagers
and G. Duus-Otterstrom, ‘Dual climate change responsibility: on moral divergences
between mitigation and adaptation’, Environmental Politics, 2008, Volume 17, no. 4,
pp. 576–591.
11. Contribution of Working Group II to the Fourth Assessment Report of the
Intergovernmental Panel on Climate Change, 2007, Appendix I: Glossary, available at
http://www.ipcc.ch/pdf/assessment-report/ar4/wg2/ar4-wg2-app.pdf (page accessed 13
January 2010). The glossary ‘defines some specific terms as the lead authors intend them
to be interpreted in the context of this Report’. The European Commission refers to
these definitions in the Impact Assessment accompanying the White Paper ‘Adapting to
climate change: Towards a European framework for action’, SEC(2009) 387, April 1st
2009. See also R. Verheyen, Climate Change Damage and International Law: Prevention
Duties and State Responsibility, Martinus Nijhoff Publishers, 2005, pp. 34–36, 85–88,
348.
12. In the Impact Assessment accompanying the White Paper ‘Adapting to climate change:
Towards a European framework for action’, SEC(2009) 387, April 1st 2009, p. 47, the
European Commission also provides with the definition of the adaptation policy frame-
work/guidelines as follows: ‘a structured process for developing adaptation strategies,
policies, and measures to enhance and ensure human development in the face of climate
change, including climate variability. The adaptation policy framework is designed to
link climate change adaptation to sustainable development and other global environ-
mental issues’.
13. It should be kept in mind that these are some possible impacts: exact predictions are

almost impossible to make. These are projections. On the uncertainties when it comes
to climate change and the inherent difficulties when it comes to liability claims, see
among others M.G. Faure, and A. Nollkaemper, ‘International liability as an instru-
ment to prevent and compensate for climate change’, Stanford Journal of International
Law and Stanford Environmental Law Journal, Symposium issue: Climate Change Risk
(vol. 26A/23A), 2007, p. 125.
14. European Commission, White Paper ‘Adapting to climate change: Towards a European
framework for action’, COM(2009) 147 final, April 1st 2009, p. 3; emphasis added.
15. Maldives submission to the Office of the UN High Commissioner for Human Rights,
September 25th 2008, Human Rights Council Resolution 7/23 – Final, available at http://
www.ohchr.org/EN/NewsEvents/Pages/OHCHRanalyticalstudyClimateChange.aspx,
website accessed on November 9th 2009.
16. Report of the Office of the United Nations High Commissioner for Human Rights on
the relationship between climate change and human rights, A/HCR/10/61, January
15th 2009, available at http://www2.ohchr.org/english/issues/climatechange/study.htm,
website accessed November 9th 2009.
website accessed on November 9th 2009.
18. Here again it should be kept in mind that these are some possible impacts; exact predic-
tions are almost impossible to make. These are projections only.
19. European Commission, White Paper ‘Adapting to climate change: Towards a European
framework for action’, COM(2009) 147 final, April 1st 2009, pp. 4–5.
20. Ibid. p. 6.
21. Ibid. ‘Due to the regional variability and severity of climate impact (. . .)’.
22. On this last point see above n. 10 on the Bosphorus case. The accuracy to adopt meas-
ures on a national basis rather than on an EU basis refers to the subsidiarity issue.
23. Report of the Office of the United Nations High Commissioner for Human Rights on
the relationship between climate change and human rights, A/HCR/10/61, January
15th 2009, available at http://www2.ohchr.org/english/issues/climatechange/study.htm,
website accessed November 9th 2009, pp. 31–32.
website accessed on November 9th 2009. It is interesting to note that the three human
rights ‘generations’ do cross when it comes to linking climate change and human rights:
political and civil rights; economic, social and cultural rights and finally ‘solidarity
rights’. The latter do encompass among others the right to a healthy environment,
and the right to enjoy the common patrimony of the humanity (among others perhaps
biodiversity, even though this is challenged point). The ‘solidarity rights’ are highly
debated as some legal scholars deny their qualification as human rights, i.e. judiciable,
for they would lack e.g. an identified and clear object or holder.
25. On the European Human Rights Convention, see among others Jean-Loup Charrier,
Code de la Convention européenne des Droits de l’Homme, LexisNexis, Litec, Paris, 2005;
Michele de Salvia, Compendium de la CEDH: les principes directeurs de la jurisprudence
relative à la Convention européenne des Droits de l’Homme: vol.1, jurisprudence 1960 à
2002, Kehl, Strasbourg; Arlington, VA, Engel, 2003; Frédéric Sudre, La Convention
européenne des Droits de l’Homme, Presses Universitaires de France, Paris, 1997, Que
sais-je?, no. 2513, 4th ed. corr.; Louis-Edmond Pettiti et al. (eds), pref. of Pierre-Henri
Teitgen, La Convention européenne des Droits de l’Homme: commentaire article par
article, Economica, Paris, 1999, 2nd éd.; Jean-François Renucci, Droit européen des
droits de l’homme, L.G.D.J., Paris, 2007; Frédéric Sudre [et al.], Les grands arrêts de
la Cour européenne des droits de l’homme, Presses Universitaires de France, Paris,
2007, 4th ed.; Vincent Berger; pref. Louis-Edmond Pettiti, Jurisprudence de la Cour

européenne des Droits de l’Homme, Sirey, Paris, 2007, 10th ed.; Manuel sur les droits de
l’homme et l’environnement – Principes tires de la jurisprudence de la Cour Européenne
des droits de l’homme, Editions du Conseil de l’Europe, 2006, http://www.echr.coe.int/
library/DIGDOC/DG2/ISBN/COE-2006-FR-9789287159793.pdf; and Jean-François
Akandji-Kombé, Les obligations positives en vertu de la Convention Européenne des
Droits de l’Homme – Un guide pour la mise en oeuvre de la Convention Européenne des
Droits de l’Homme, Précis sur les droits de l’homme no. 7, 2006, Editions du Conseil
de l’Europe, http://www.echr.coe.int/library/DIGDOC/DG2/HRHAND/DG2-FR-
HRHAND-07(2006).pdf.
26. These kind of cases are quite exceptional. See Ireland v. the United Kingdom, January
18th 1978, Denmark v. Turkey, April 5th 2000; Cyprus v. Turkey [GC], May 10th
2001. All the cases mentioned in this study are available on the website of the Court
(European Court of Human Rights, Search Portal Hudoc).
27. Article 35 §1 reads as follows: ‘Article 35. Admissibility criteria: 1. The Court may only
deal with the matter after all domestic remedies have been exhausted, according to the
generally recognized rules of international law, and within a period of six months from
the date on which the final decision was taken.’
28. Civet v. France, September 28th 1999, Selmouni v. France, July 28th 1999, Odièvre v.
France, March 13th 2003.
29. Fressoz et Roire v. France, January 21st 1999.
30. Selmouni v. France, July 28th 1999.
31. Article 34 reads as follows: ‘Article 34. Individual applications: The Court may receive
applications from any person, non-governmental organization or group of individu-
als claiming to be the victim of a violation by one of the High Contracting Parties of
the rights set forth in the Convention or the protocols thereto. The High Contracting
Parties undertake not to hinder in any way the effective exercise of this right.’
32. Ekin v. France, July 17th 2001.
33. Pine Valley v. Ireland, October 23rd 1991, § 53. On the objectivity shift, see Scordino v.
Italy, March 29 2006. Another exception to the direct victim requirement is the victim
by ‘ricochet’ case: the claimed violation concerned victim A as a first step before con-
cerning victim B as a second step. Victim B is the victim ‘by ricochet’ (e.g. the widow of
a detainee).
34. July 23rd 1968, see also Airey v. Irland, September 11th 1979.
35. J.-P. Marguénaud, La Cour Européenne des Droits de l’Homme, Dalloz, Paris, coll.
Connaissance du droit, 2nd Ed., p. 36; see also Frédéric Sudre: ‘Les obligations posi-
tives dans la jurisprudence européenne des droits de l’homme’, Revue trimestrielle des
Droits de l’homme, 1995, p. 363; A.R. Mowbray, The development of positive obligations
under the European Convention on Human Rights by the European Court of Human
Rights, Hart Publishing, Oxford, and Portland, OR, 2004.
36. Idem. Matheus v. France, March 31st 2005, spec. §70 and Broniowski v. Poland, June
22nd 2004, quoted in Jean-François Akandji-Kombé, ‘Les obligations positives en
vertu de la Convention Européenne des Droits de l’Homme – Un guide pour la mise en
oeuvre de la Convention Européenne des Droits de l’Homme’, op. cit., p. 9.
37. Hokkanen v. Finland, August 24th 1994.
38. Lopez-Ostra, December 9th 1994.
39. Ilascu and others v. Moldava and Russia, April 8th 2004, § 334.
40. Algür v. Turkey, October 22nd 2002, § 44; Odièvre v. France, February 13th 2003, X and
Y v. Netherlands, March 26th 1985, § 23 and Botta v. Italy, February 24th 1998, § 33.
41. See e.g. Gaskin v. United Kingdom, June 23rd 1989, § 41 and Sheffield v. United Kingdom,
June 30th 1998, § 31.
42. See e.g. Broniowski v. Poland, June 22nd 2004.
43. See e.g. Powell and Rayner v. United Kingdom, January 24th 1990, and Hatton and
others v. United Kingdom, July 8th 2003.
44. See e.g. McCann and others v. United Kingdom, September 27th 1995.
45. Jean-François Akandji-Kombé, Les obligations positives en vertu de la Convention

Européenne des Droits de l’Homme – Un guide pour la mise en oeuvre de la Convention

Européenne des Droits de l’Homme, op. cit., pp. 16–17; one can note here that, just as it
is the case for the distinction between positive and negative obligations, the distinction
between the material and procedural aspects can turn out to be difficult in practice.
They are not exclusive one from another one in practice. Some scholars refer to obliga-
tions ‘en cascade’: a same cause of action will be examined under the substantial and
procedural angle. See e.g. Tanis v. Turkey, August 2nd 2005.
46. Öneryildiz v. Turkey, November 30th 2004, § 91; the facts can be briefly described as this
case will be mostly important for this chapter. In the aftermath of an explosion in an
illegal waste treatment site, the precarious illegal shelters nearby suffered from a flood.
The accident caused 39 deaths, 9 being family members of the applicant and numerous
injured.
47. See e.g. Denizci v. Cyprus, July 23rd 2004, § 375, quoted in Jean-François Akandji-
Kombé, Les obligations positives en vertu de la Convention Européenne des Droits de
l’Homme – Un guide pour la mise en oeuvre de la Convention Européenne des Droits de
l’Homme, Précis sur les droits de l’homme no. 7, op. cit., p. 19.
48. Kapsalis and Nima-Kapsali v. Greece – admissibility, September 23rd 2004, §3.
49. Moreno Gomez v. Spain, November 16th 2004, § 55.
50. The rules applied by the Court have been recently recalled in the Fadeïeva v. Russia case,
May 9th 2005 (§§ 94–105).
51. See e.g. Fadeïeva v. Russia, May 9th 2005, §§ 104–105.
52. Ibid. § 105.
53. Ibid.
54. This can be explained by the fact that the Convention was adopted in 1950. At that
time, the priority was to build a sustainable peace and to rebuild the economies.
55. Demir and Baykara v. Turkey, November 12th 2008.
56. Tătar v. Romania, January 27th 2009.
57. Ibid. § 112: ‘protéger le droits de intéressés au respect de leur vie privée et de leur domi-
cile et, plus généralement, à la jouissance d’un environnement sain et protégé’, emphasis
added (‘and, more generally, the enjoyment of a protected and healthy environment’ –
translation mine).
58. P. 24 of the judgment, under d).
59. Ibid. pp. 27–28.
60. Ibid. §§ 105–107, reproduced below for they are very significant (the case is not available
in English):
105. En l’absence d’éléments de preuve à cet égard, la Cour pourrait éventuellement

se livrer à un raisonnement probabiliste, les pathologies modernes se caractérisant par
la pluralité de leurs causes. Cela serait possible dans le cas d’une incertitude scienti-
fique accompagnée d’éléments statistiques suffisants et convaincants.
106. La Cour considère cependant qu’en l’espèce l’incertitude scientifique n’est
pas accompagnée d’éléments statistiques suffisants et convaincants. Le document
réalisé par un hôpital de Baia Mare et attestant un certain accroissement du nombre
des maladies des voies respiratoires ne suffit pas, à lui seul, à créer une probabil-
ité causale. La Cour constate donc que les requérants n’ont pas réussi à prouver
l’existence d’un lien de causalité suffisamment établi entre l’exposition à certaines
doses de cyanure de sodium et l’aggravation de l’asthme.
107. Elle estime toutefois que malgré l’absence d’une probabilité causale en l’espèce,
l’existence d’un risque sérieux et substantiel pour la santé et pour le bien-être des
requérants faisait peser sur l’État l’obligation positive d’adopter des mesures raison-
nables et adéquates capables à protéger les droits des intéressés au respect de leur
vie privée et leur domicile et, plus généralement, à la jouissance d’un environnement
sain et protégé. En l’espèce, cette obligation subsistait à la charge des autorités tant
avant la mise en fonctionnement de l’usine Sasar qu’après l’accident de janvier 2000.
A cet égard, la Cour observe qu’en 1992 l’État roumain invita l’Institut de recherche

du ministère de l’Environnement à mener une étude d’impact sur l’environnement.

Sept ans plus tard, l’État défendeur, actionnaire de la société Aurul, décida
d’autoriser la mise en fonctionnement de celle-ci, en se basant principalement sur les
conclusions de cette étude, réalisée en 1993.
61. Or ‘complex factual scenarios’, under the terms used in M.G. Faure and A. Nollkaemper,
‘International liability as an instrument to prevent and compensate for climate change’,
Stanford Journal of International Law and Stanford Environmental Law Journal,
Symposium issue: Climate Change Risk (vol. 26A/23A), 2007, p. 167.
62. See Taskin v. Turkey, November 10th 2004; Fadeïeva v. Russia, May 9th 2005; Ledaïeva
v. Russia, October 26th 2006; McGinley and Egan v. United Kingdom, June 9th 1998;
and Guerra and others v. Italy, February 19th 1998.
63. Accordingly, the Court has made the nexus between environmental information and
article 8 (Guerra and others v. Italy, February 19th 1998) and article 2 (L.C.B. v. United
Kingdom, June 9th 1998, and Öneryildiz v. Turkey, November 30th 2004).
64. Öneryildiz v. Turkey, November 30th 2004: a distinction is made between the specialist,
officer of administrative authorities, and the lay citizen, non-specialist.
65. Öneryildiz v. Turkey, November 30th 2004, § 84.
66. Guerra v. Italy, February 2nd 1998, § 45: ‘In the instant case the grounds based on
Articles 8 and 2 were not expressly set out in the application or the applicants’ initial
recollections lodged in the proceedings before the Commission. Clearly, however, those
grounds were closely connected with the one pleaded, namely that giving information
to the applicants, all of whom lived barely a kilometre from the factory, could have had
a bearing on their private and family life and their physical integrity’.
67. See e.g. under article 2, Öneryildiz v. Turkey, November 30th 2004, §§ 89–90; and under
article 8 Ledyaeva and others v. Russia, October 26th 2006.
68. Guerra v. Italy, February 19th 1998, Öneryildiz v. Turkey, November 30th 2004.
69. Taskin v. Turkey, November 10th 2004, § 119.
70. Papastavrou v. Greece, April 10th 2003.
71. See Tatar v. Romania, January 27th 2009, §§ 103–107.
72. On the Court grounding its findings on international law texts, see Demir and Baykara
v. Turkey, November 12th 2008, §§ 60–86. In this respect see e.g. the European
Commission’s website:
Adaptation policy
Adaptation to climate change is a complex area. It involves considering climate

change impacts on a range of sectors, organizations and people. Making decisions
about adaptation policy involves risk assessments and assessments of costs and
benefits. The main goal of such policies is to ensure that decisions we make today do
not compromise the resilience of the European Union in the future.
The impacts of climatic changes will impact locally and regionally in different
ways. The majority of adaptation actions will therefore need to be decided and to be
undertaken at the local, regional and national level.
The European Commission is therefore exploring its role and the scope for a policy
strategy to adapt to the impacts of unavoidable climate change and how best to assist
local, regional and national efforts. As part of exploring options to improve Europe’s
resilience to climate change effects and defining the European Union role in climate
change adaptation the European Commission is undertaking the following activities
(. . .) http://ec.europa.eu/environment/climat/eccp_impacts.htm (emphasis added).
Over the last few years the EU has financed several large research projects on
regional climate modelling and impact assessment. Some projects have produced
high-resolution maps representing the projected changes in climate variables, such
as mean temperature and precipitation, and projected impacts, e.g. agricultural
yields, conditions for tourism, cold- and heat-related mortality and biodiversity
losses, http://ec.europa.eu/environment/climat/adaptation/index_en.htm.

This could have consequences for the European Court on Human Rights. For example,
the Court could take into consideration EU texts dealing with adaptation to climate
change to set standards or recognize discrepancies between EU texts and national meas-
ures, and if the Member States did adopt some national measures grounded on their
obligations towards the EC, the Court could ultimately assess these (please see above n.
9 on the Bosphorus case).
73. On the link between EU texts and the Court, see n. 9 and p. xxx.
74. See e.g. Gorraiz Lizarraga and others v. Spain, November 10th 2004.
75. See e.g. Kyrtatos v. Greece, May 22nd 2003, § 52:
With regard to the first limb of the applicants’ complaint, the Court notes that
according to its established case-law, severe environmental pollution may affect
individuals’ well-being and prevent them from enjoying their homes in such a way
as to affect their private and family life adversely, without, however, seriously
endangering their health (see López Ostra v. Spain, judgment of 9 December 1994,
Series A no. 303-C, p. 54, § 51). Yet the crucial element which must be present in
determining whether, in the circumstances of a case, environmental pollution has
adversely affected one of the rights safeguarded by paragraph 1 of Article 8 is the
existence of a harmful effect on a person’s private or family sphere and not simply
the general deterioration of the environment. Neither Article 8 nor any of the other
Articles of the Convention are specifically designed to provide general protection of
the environment as such; to that effect, other international instruments and domes-
tic legislation are more pertinent in dealing with this particular aspect.
76. Valasinas v. Lithuania, July 24th 2001, § 122.

77. Affaire Taskin v. Turkey, November 10th 2004, § 113:
The Court points out that Article 8 applies to severe environmental pollution which
may affect individuals’ well-being and prevent them from enjoying their homes in
such a way as to affect their private and family life adversely, without, however, seri-
ously endangering their health (see López Ostra v. Spain, judgment of 9 December
1994, Series A no. 303-C, pp. 54–55, § 51).
The same is true where the dangerous effects of an activity to which the individu-
als concerned are likely to be exposed have been determined as part of an environ-
mental impact assessment procedure in such a way as to establish a sufficiently close
link with private and family life for the purposes of Article 8 of the Convention. If
this were not the case, the positive obligation on the State to take reasonable and
appropriate measures to secure the applicant’s rights under paragraph 1 of Article 8
would be set at naught. Emphasis added.
78. Note that the European Court on Human Rights has nevertheless already addressed the
windmills issue in the Fägerskiöld v. Sweden case, 26 February 2008 (inadmissibility).
79. Impact Assessment accompanying the White Paper ‘Adapting to climate change:
Towards a European framework for action’, SEC(2009) 387, dated April 1st 2009.
80. Ibid. see particularly pp. 66, 69, 74, 80–81, 86–87, 91–92, 95, 99–100, 103–104 and 108.
81. Impact Assessment accompanying the White Paper ‘Adapting to climate change:
Towards a European framework for action’, SEC(2009) 387, dated April 1st 2009, pp.
95, 99–100.
82. Ibid. p. 108.
83. Öneryildiz v. Turkey, November 30th 2004 (Grande Chambre).
84. E.g. in the context of article 2 see Öneryildiz v. Turkey, November 30th 2004, §§ 89–90;
in the context of article 8 see Ledyaeva et autres v. Russia, October 26th 2006.
85. Guerra v. Italy, February 19th 1998, Öneryildiz v. Turkey, November 30th 2004.
86. Taskin v. Turkey, November 10th 2004, § 119.
87. Papastavrou v. Greece, April 10th 2003.

88. Tatar v. Romania, January 27th 2009, § 120.

89. Tatar v. Romania, January 27th 2009.
90. On the difficulties when it comes to climate change and causation, see M.G. Faure and
A. Nollkaemper, ‘International liability as an instrument to prevent and compensate
for climate change’, Stanford Journal of International Law and Stanford Environmental
Law Journal, Symposium issue: Climate Change Risk (vol. 26A/23A), 2007, pp. 157–165,
D.A. Grossman, ‘Warming up a not-so-radical idea: tort-based climate change litiga-
tion’, Colum. J. Envtl. L., 2003, 28, pp. 22–33, R. Verheyen, Climate Change Damage
and International Law: Prevention Duties and State Responsibility, Martinus Nijhoff
Publishers, 2005, pp. 8, 20–23.
91. See e.g. R. Verheyen, Climate Change Damage and International Law, ibid, pp. 23–26,
29–32.
92. Tătar v. Romania, January 27th 2009, p. 27.
93. Ibid, § 122 the Court refers to ‘past, present and future’ consequences of the ecological
accident (translation mine).
94. See e.g. M.G. Faure and A. Nollkaemper, ‘International liability as an instrument to
prevent and compensate for climate change’, Stanford Journal of International Law
and Stanford Environmental Law Journal, Symposium issue: Climate Change Risk (vol.
26A/23A), 2007 pp. 140–141 (and footnotes providing references, particularly to N. de
Sadeleer’s works), and pp. 158–159.
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Habitats: Re-thinking Rights in an Age of Climate Change’, European Energy
and Environmental Law Review, 17, 213–226.
Mowbray A.R. (2004), The Development of Positive Obligations under the European
Convention on Human Rights by the European Court of Human Rights, Oxford
and Portland, OR: Hart Publishing.
Mukerjee M. (2003), ‘Greenhouse Suits: Litigation becomes a tool against global
warming’, Scientific American, 3 February.
Pettiti L.E., E. Decaux and E. Pierre-Henri Imbert (eds) (1999), La Convention
européenne des Droits de l’Homme: commentaire article par article, Paris:
Economica.
Renucci J.F. (2007), Droit européen des droits de l’homme, L.G.D.J., Paris;
Frédéric Sudre [et al.], Les grands arrêts de la Cour européenne des droits de
l’homme, Paris: Presses Universitaires de France, 4th ed.
Shelton D. (2002), in ‘Human Rights, Health and Environmental Protection: link-
ages in law and practice’, Health and Human Rights Working Paper Series No
1, A Background Paper for the World Health Organization, http://www.who.int/
hhr/Series_1%20%20Sheltonpaper_rev1.pdf (Accessed 9 October 2009).
Smith J.B., J.M. Vogel and J.E. Cromwell (2009), ‘An architecture for govern-
ment action on adaptation to climate change. An Editorial Comment’, Climatic
Change, 95(1), 53–61.
Sudre F. (1997), La Convention européenne des Droits de l’Homme, Paris: Presses
Universitaires de France, Que sais-je?, no. 2513, 4th ed. corr.
Trilsch M., ‘European Committee of Social Rights: The right to a healthy environ-
ment’, I • CON, Oxford University Press, Vol. 7, no. 3, pp. 529–538.
Verheyen R. (2005), Climate Change Damage and International Law, Prevention
Duties and State Responsibility, Martinus Nijhoff Publishers.
OTHER LEGAL DOCUMENTS (CHRONOLOGICAL

ORDER)
UN
Contribution of Working Group II to the Fourth Assessment Report of the

Intergovernmental Panel on Climate Change, 2007, Appendix I: Glossary,
available at http://www.ipcc.ch/pdf/assessment-report/ar4/wg2/ar4-wg2-app.pdf

Maldives submission to the Office of the UN High Commissioner for

Human Rights, September 25th 2008, Human Rights Council Resolution
7/23 – Final, available at http://www.ohchr.org/EN/NewsEvents/Pages/
OHCHRanalyticalstudyClimateChange.aspx, website accessed on November
9th 2009
Report of the Office of the United Nations High Commissioner for Human Rights
on the relationship between climate change and human rights, A/HCR/10/61,
January 15th 2009, available at http://www2.ohchr.org/english/issues/climate-
change/study.htm, website accessed November 9th 2009
EU
European Commission, Impact Assessment accompanying the White Paper

‘Adapting to climate change: Towards a European framework for action’,
SEC(2009) 387, April 1st 2009
European Commission, White Paper ‘Adapting to climate change: Towards a
European framework for action’, COM(2009) 147 final, April 1st 2009
Council of Europe
European Convention for the Protection of Human Rights and Fundamental

Freedoms, Rome, Nov. 4, 1950, (ETS No.5), 213 U.N.T.S. 222, as amended
by Protocol No. 11, with Protocols Nos. 1, 4, 6, 7, 12 and 13, avail-
able at http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-
5C9014916D7A/0/EnglishAnglais.pdf
European Court of Human Rights (ECHR – Chronological Order)
All the cases mentioned in this presentation are available on the website of the
Court (European Court of Human Rights, Search Portal Hudoc)
Ireland v. the United Kingdom, 18 January 1978

Airey v. Ireland, 11 September 1979
X and Y v. Netherlands, 26 March 1985
Gaskin v. United Kingdom, 23 June 1989
Powell and Rayner v. United Kingdom, 24 January 1990
Pine Valley v. Ireland, 23 October 1991
Hokkanen v. Finland, 24 August 1994
Lopez Ostra v. Spain, 9 December 1994
McCann and others v. United Kingdom, 27 September 1995
Guerra and others v. Italy, 19 February 1998
Botta v. Italy, 24 February 1998
L.C.B. v. United Kingdom, 9 June 1998
McGinley and Egan v. United Kingdom, 9 June 1998
Sheffield v. United Kingdom, 30 June 1998
Fressoz et Roire v. France, 21 January 1999
Selmouni v. France, 28 July 1999
Civet v. France, 28 September 1999

Denmark v. Turkey, 5 April 2000

Ekin v. France, 17 July 2001
Cyprus v. Turkey, 10 May 2001
Valasinas v. Lithuania, 24 July 2001
Algür v. Turkey, 22 October 2002
Odièvre v. France, 13 March 2003
Papastavrou v. Greece, 10 April 2003
Kyrtatos v. Greece, 22 May 2003
Hatton and others v. United Kingdom, 8 July 2003
Ilascu and others v. Moldova and Russia, 8 April 2004
Broniowski v. Poland, 22 June 2004
Denizci v. Cyprus, 23 July 2004
Kapsalis and Nima-Kapsali v. Greece – admissibility, 23 September 2004
Taskin v. Turkey, 10 November 2004
Gorraiz Lizarraga and others v. Spain, 10 November 2004
Moreno Gomez v. Spain, 16 November 2004
Öneryildiz v. Turkey, 30 November 2004
Matheus v. France, 31 March 2005
Fadeïeva v. Russia, 9 May 2005
Tanis v. Turkey, 2 August 2005
Scordino v. Italy, 29 March 2006
Bosphorus Hava Yollari Turizm v. Ticaret Anonim irketi v. Ireland, 30 June 2006
Ledaïeva v. Russia, 26 October 2006
Fägerskiöld v. Sweden, 26 February 2008 (inadmissibility)
Demir and Baykara v. Turkey, 12 November 2008
Tătar v. Romania, 27 January 2009

PART IV
National perspectives on civil liability

7. Climate change litigation in the UK:
its feasibility and prospects
Giedrė Kaminskaitė-Salters*
1. INTRODUCTION
The debate taking place both within the context of the international climate
change negotiations and among national policy makers exploring the
options for switching their economies to low-carbon development paths
focuses on ex-ante regulatory measures and economic instruments, includ-
ing the consolidation and expansion of international carbon markets,
establishment of sectoral emissions trading regimes, national carbon
budgets and innovative insurance schemes to meet the challenge of climate
adaptation. However, ex-post instruments, such as private liability in the
law of torts, are also coming to the fore as potential means of redressing the
wrongs already caused, or that may be caused in the future, by the phenom-
enon of global warming. This is evidenced in the academic debate, where
analyses such as those by R. Verheyen,1 J. Smith and D. Shearman,2 and
D.A. Grossman3 have highlighted the importance of ex post liability instru-
ments in addressing liability between state actors and private parties. This
is also becoming evident in practice, whereby several pioneering climate
change litigation cases have been launched in the US (though not yet in
the UK or other European jurisdictions), signalling the fact that private
litigation for climate damage is likely to gain in prominence in the future.
In this context, the chapter examines the extent to which a claim brought
by a private, public or quasi-public claimant against a private defendant
(such as a producer of fossil fuels or major emitter of greenhouse gases)
alleging climate change-related damage, and based on one or more causes
of action under the English4 law of torts, can be brought to and success-
fully defended in the English Courts. The central assumption the chapter
sets out to test is as follows: provided the Courts are willing to exercise a
degree of judicial discretion, particularly as regards establishing causation,
there is scope (albeit in limited circumstances and assuming a number of
prerequisites are met) for a climate change-related claim to be brought to
and potentially successfully defended in the English Courts.
165

2. CLIMATE CHANGE IN THE UK: CURRENT AND

FUTURE IMPACTS
The climatic trends observable in the UK are consistent with the patterns
of warming observable globally.5 According to the UKCIP 02 Scientific
Report (the UKCIP report), ‘the UK climate has also changed [. . .] and
many of these changes are consistent with the warming of global climate’.
Central England temperatures rose by almost 1°C in the course of the 20th
century, with the 1990s being the warmest decade in central England since
records began in the 1660s. The warming over land has been accompanied
by warming of the UK coastal waters, leading to a rise in the sea levels of
approximately 1 mm a year. While summer temperatures now regularly
exceed 25°C, frost and snow in winter are becoming rarer, with heavy
downpours of precipitation in the winter becoming increasingly frequent.
The thermal growing season for plants is now the longest since the start
of records in 1772.6 The extreme flooding that took place in the winter of
2003 in western England occurred on a similar scale and in a geographi-
cally broader area in the summer of 2007, with almost annual flooding
taking place intermittently.
Thus, while it is clear that the United Kingdom stands to be affected by
climate change in line with the rest of the world, it is worth considering
what impacts of climate change can be expected to be particularly damag-
ing in the UK context,7 as this will help to identify the most likely victims,
and therefore potential future litigants.8
2.1 Industry, Infrastructure and Property
The industry, infrastructure and property sectors in the UK are likely to be

worst hit by climate change. The UKCIP report concludes that by the end
of the 21st century the UK can expect generally wetter winters and sub-
stantially drier summers (with a day-time temperature expected to exceed
about 42°C in lowland England at least once a decade by the 2080s) and
substantial increase in the incidence of storms and flooding, particularly
in south-eastern England. The sea-level rise is expected to reach up to 69
cm by the 2080s, and the sea-surface temperatures are expected to increase
around the entire UK coast.9 The ABI estimates that in the UK, climate
change could increase the annual costs of flooding almost 15-fold by 2080,
leading to potential total losses from river, coastal and urban flooding of
more than USD 40bn. Moreover, it expects that with up to 40 per cent loss
of moisture across large parts of England, property subsidence risk would
likely rise by approximately 5 per cent. Thirdly, the ABI notes that in addi-
tion to the average sea-level rises, extreme sea levels will be experienced

Climate change litigation in the UK 167
more frequently, particularly on the east coast, occurring between 10 and

30 times the current frequency, and raising further risks of coastal flood-
ing and erosion. Finally, it estimates that wind damage is likely to increase
insurance costs by 5 per cent.10 Insurance costs are indicative of the general
socio-economic costs climate change is likely to cause to the UK industry,
infrastructure and property sectors. For example, with an estimated 10 per
cent of British properties to a total value of €300bn at risk of flooding,11
the impacts of climate change have the capacity to acquire the status of a
national problem (as opposed to a problem that could be compartmental-
ized away as an insurance sector issue).
It is clear that in this context, the most likely victims of climate change
in the UK will include the insurance/reinsurance sector, the banking sector
(for example, banks with loans to entities whose credit worthiness is nega-
tively affected due to climate change impacts), central government and
local/municipal authorities (responsible for providing emergency services
in cases of flooding, building flood defences, providing medical services
during heat waves and other extreme weather events), private businesses
damaged by flooding, subsidence or coastal erosion, electricity consumers
and electricity-dependent businesses, private property owners, and asset
managers with property portfolios. Similarly, potential losses and damages
will include: loss of/damage to public or private property, loss of income,
increased insurance pay-outs, greater insurance premiums, and increased
public spending.
2.2 Fresh Water Resources
On average UK temperatures are predicted to increase by more than the

global mean, in line with most countries in the higher latitudes. Average
temperatures have already increased by nearly 1°C in the UK in the course
of the 20th century, and are expected to have increased between 1.5 and
2.5°C on average by 2050. This will inevitably have an effect on water
resources, particularly in the heavily populated south-eastern England.
Here, summer rains are expected to decrease by 20 to 30 per cent while
rains in winter will increase by only 10 to 30 per cent, thus leading to severe
shortages of water needed for drinking, sanitation, irrigation and indus-
trial processes.12 Businesses reliant on water processing, private companies
responsible for water supply, public organizations (e.g. the National
Health Service) and the agricultural sector are likely to be worst hit by
climate change, while loss of crops and business disruptions are likely to
be the most likely types of damage.

2.3 Natural Ecosystems
A recent report by UKCIP13 forecasts that more than 42 per cent of

the UK and Ireland’s territory will experience ecosystem deterioration
between now and 2050. As fish species are pushing northward due to the
critical increases in the water temperatures around the British coasts,
UK fish stocks are becoming depleted. This, in its turn, is threatening the
populations of seals and fin whales whose diet is fish-based. British popu-
lations of terns and wading birds are threatened by coastal erosion which
destroys their nests and food sources. Populations of ptarmigans are also
decreasing due to the disappearance of snow-cover in Scotland.
The fishing industry, governmental bodies and non-governmental
organizations (e.g. DEFRA, English Nature, National Trust, Friends
of the Earth, World Wildlife Fund) responsible for species conservation
and protected natural areas are likely to be most directly affected by the
deterioration in the natural ecosystems, while the potential damages may
include loss of income and biodiversity.
To sum up: the above analysis indicates that the UK is experiencing
and will experience in the future a number of climate change impacts. Its
response to those impacts, on the other hand, will be determined by its
socio-economic structure and relative wealth, as a result of which the insti-
tutions worst affected by climate change are likely to be private and public
entities other than individuals (although individuals will be affected to a
certain extent), and the worst effects of climate change are likely to escalate
by mid- to late 21st century, rather than immediately. Nevertheless, some
effects (e.g. flooding) are already being felt and are generating damage. It
is this damage, and the persons suffering it that may provide the basis for a
climate-change related case to be brought to the English Courts, as further
analysis will show.
3. WHY LITIGATE?
IPCC’s Fourth Assessment Report declared unequivocally that
most of the observed increase in globally averaged temperatures since the

mid-20th century is very likely due to the observed increase in anthropogenic
greenhouse gas concentrations. This is an advance since the [third Assessment
Report’s] conclusion that ‘most of the observed warming over the last 50 years
is likely to have been due to the increase in greenhouse gas concentrations.’14
Of key importance here is the IPCC’s usage of the terms ‘likely’ and ‘very
likely’: the terms are used to indicate the assessed likelihood, using expert

judgement, of an outcome or a result, with ‘likely’ denoting more than

66 per cent likelihood, and ‘very likely’ denoting more than 90 per cent
likelihood.
In light of the scientific consensus15 that the key source of global
warming is anthropogenic emissions of greenhouse gases, given that the
impacts of climate change are having both global and UK-specific effects,
as well as given the fact that the victims of climate change are clearly iden-
tifiable and its harms readily felt, it is not inconceivable that those affected
by climate change, whether UK-resident or not, may wish to litigate in
the English Courts on the basis that they have been, or may be in the
future, harmed by climate change and are therefore entitled to damages
or another available remedy. (Indeed, there is experience of such litigation
in the US, where a number of actions based on climate change have been
heard since the late 1990s.) This section of the chapter looks at the aims
such litigation would potentially serve.16
The most obvious purpose of litigation is receiving compensation: ‘it
is a function of the law of torts to determine when [. . .] harm is worthy
of compensation, and, if it is judged so worthy, to oblige the one that has
caused the harm to make the necessary reparation’.17 W.K. Viscusi classi-
fies litigation seeking compensation as ‘backward looking’ (i.e. seeking to
obtain reparations for damage done), and provides lead paint litigation in
the US as an example of this type of ‘conventional tort litigation’.18 In the
case at hand, claimants may wish to obtain damages for the specific harm
inflicted on them by climate change (e.g. loss of property due to flooding,
or damage to a public road due to subsidence). Due to the fact that com-
pensation in the law of torts traditionally serves the purpose of placing the
claimant in a position he would have been in had the tort not been com-
mitted, the English Courts would find it a relatively straightforward and
‘tried-and-tested’ aim to be attained by the litigants.
Deterrence – i.e. the objective of preventing a person from engaging
in a harmful activity, or even triggering a behavioural change in him
– represents another fundamental goal served by the law of torts. By
contrast to compensation, litigation aimed at deterrence can be classified
as ‘forward looking’, with guns litigation in the US providing a practical
example, in that restrictions on the distribution of handguns have been
one of the changes sought by the litigants.19 In the context of climate
change, the claimants would be seeking to achieve an outcome whereby
the negative reputational impacts of litigation, the risk of substantial
damages pay-outs and of increased liability insurance premiums would
either prevent the defendants from engaging in activities which harm the
climate (e.g. burning fossil fuels), or would encourage them to switch to a
less harmful activity (e.g. using a renewable source of energy). It should be

noted, however, that due to the reluctance of the English Courts to award
punitive damages, as discussed below, deterrence would be more easily
achieved if the cases launched in the English Courts were sufficiently large
in size or particularly numerous.
The third aim litigation may seek to achieve is regulatory change; in
other words, ‘in many instances, the litigation stems from a real or per-
ceived failure on the part of regulators to address potential harms to
society’.20 Given that there is a clear and growing regulatory framework
for regulating greenhouse gas emissions from economic activities, consist-
ing of participation in the EU Emissions Trading Scheme, the Climate
Change Act 2008 and a range of other instruments,21 the aim of litigation
would not be to originate regulatory change; rather, since the current
regulatory regime is very limited in its application, continues to suffer
from teething problems, and, at least to date, has failed to achieve a major
behavioural change, one of the aims litigation would serve would be to
escalate the development of the currently nascent regulatory regime.
Last but not least, one of the key aims of climate change litigation is
likely to be awareness-raising through media exposure. As Smith and
Shearman point out, ‘lawsuits, whether successful or not, focus public
attention upon key issues through media exposure and can be effective in
influencing governmental and corporate policies’.22 For an issue as univer-
sal in its scope as climate change, raising awareness of the general popula-
tion while putting pressure on the governmental and business institutions
may be a particularly worthwhile aim climate change litigants could hope
to achieve.
While a number of the above-listed aims of litigation may overlap in any
one claim, it is likely that compensation would be sought by individuals,
insurance, financial and asset management institutions as well as govern-
mental bodies. On the other hand, deterrence and regulatory change are
likely to be sought by environmental and issue groups, although insurance
companies may also hold this objective, given that in the absence of pro-
found behavioural change in the context of climate change their financial
exposure may become substantially increased.
4. CLIMATE CHANGE LITIGATION IN THE UK:

STATUS QUO AND FUTURE DEVELOPMENTS
Given the growing evidence of the harms arising from climate change,
why is tort-based litigation alleging climate-related damage not currently
taking place in the UK?23 And what are the prospects of such litigation
developing in the future? In light of the important functions climate

litigation could potentially serve, it may be surprising that no cases testing

the feasibility of climate-based litigation have been brought to the English
Courts to date. Several systemic constraints account for this.
To begin with, limited access to legal aid means that only financially
sound organisations can hope to bring and defend what is likely to be a
protracted case due to its inevitable factual complexity and legally pio-
neering nature. One of the key concerns underlying the reform of the legal
aid system in the UK that took place in the late 1990s was that a small
number of very expensive cases tended to take up a disproportionately
large share of the legal aid fund. As a result, section 5(6) of the Access
to Justice Act 1999 enables the Lord Chancellor to specify the amount
that the Commission may spend each year on cases that exceed a certain
threshold; as a result, the budgets for big, complex cases remain extremely
small.24 This effectively requires extremely careful assessment (i.e. passing
the merit test) and selection of cases which would be granted legal aid, as
in the absence of such a screening process there would be a risk of deserv-
ing cases being denied funding due to the fact that the budgetary caps
have been reached. Combined with means-testing, which lies at the heart
of the legal aid system, the new arrangements established by the Access to
Justice Act 1999 do not lend themselves to financing pioneering cases, such
as climate change litigation, from the public purse. This, in its turn, means
that claimants from the ranks of private property owners whose property
has been damaged by flooding, coastal erosion, wind damage or subsid-
ence; or farmers who may have suffered crop failure due to drought, would
be precluded from launching a claim unless they had sufficient resources
to finance it, or unless means-testing revealed that they could be entitled
to public funding (and the merits test and other conditions for receiving
public financing were passed successfully).
In the US, a similarly restrictive approach to granting legal assistance
has been counteracted by broad availability of conditional fee arrange-
ments. This, however, has also been slow to develop in the UK where
the principle ‘the loser pays the winner’s costs’ has restricted the use of
conditional fee arrangements to areas of litigation where case volume is
high and outcomes are predictable (i.e. personal injury);25 groundbreaking
climate change cases, by contrast, would be very unlikely to be supported
by a conditional fee arrangement. In addition, representative proceedings
and group litigation orders (two forms of group litigation adopted in the
UK) cannot compare to the US class action system which has accounted
for landmark litigation in such areas as tobacco manufacturing, and which
has been the chosen route for bringing climate cases in the US so far. The
group litigation order route for example, offers, at most, a more efficient
way of handling broadly similar cases, rather than a means of resolving

similar disputes in a single action26 and, according to N. Fagan and M.

Gottridge, should be viewed as ‘simply a form of Court proceedings’ and
not an equivalent of US class actions.27 Again, this is a clear drawback
from climate litigants’ point of view: the ranks of potential victims of
climate change are extremely extensive; in the absence of a judicial proce-
dure which would operate in a fashion similar to that of US class actions,
there is a very real risk of Courts dismissing climate change-related claims
on the basis of unmanageability.
The absence of punitive damages represents another obstacle to climate
litigation in the UK. In the UK, damages are not awarded by juries, but
rather by judges following established guidelines; as a result, punitive
damages are awarded only in exceptional circumstances. By contrast,
the possibility of large punitive damages awards remains a feature of the
American system. F. Furedi argues that the extremely limited availability
of punitive damages in the UK is one of the key reasons for the continued
absence of a culture of litigation and ‘juridification of social relations’.28
While this may indeed be the case, it is also undeniable that it acts as a
considerable disincentive to potential climate change litigants in the UK.
As noted above, one of the most important aims climate change litigation
would seek to achieve is deterrence, i.e. in holding the potential defend-
ants liable for the harm caused by their emissions of greenhouse gases, the
claimants would seek to deter the defendants and other emitters from con-
tinuing their harmful activities. This would not be automatically achieved
in circumstances where the damages awarded are compensatory rather
than punitive, because in certain cases (e.g., in a case alleging damage to
a single property affected by flooding, or the loss of a single property due
to coastal erosion) damages awarded will have limited financial repercus-
sions for the defendants.
Finally, by comparison to the US, the UK has a relatively developed
regulatory framework for regulating greenhouse gas emissions (including
the regulations implementing the EU Emissions Trading Scheme29 and
the Climate Change Act 2008) which, arguably, takes away some of the
urgency felt in the US regarding the need to address the issue of uncurbed
emissions (although, as indicated below, the UK regulatory framework is
not without its considerable failings).
In light of the factors listed here, it is not surprising that climate change
litigation has not made inroads in the UK, despite the growing evidence of
harms caused by the phenomenon. However, it is proposed that this may
change in the future for the following reasons. Legal aid has, in the past,
been granted to important test-cases and this may be repeated in relation
to climate litigation if the particular case is deemed to deserve aid on public
interest grounds. In any case, with the introduction of the civil procedure

rules, litigation in the UK has arguably become less time-consuming and

expensive,30 which may in due course make it a more attractive jurisdiction
for both domestic and foreign claimants seeking to bring a test climate
case, which may in turn reduce the need for legal aid to ensure such claims
can be successfully defended. While class actions are unlikely to become
a reality in most European jurisdictions, the EU is considering ‘collec-
tive redress mechanisms’ which may translate into more effective group
litigation in the UK as well.31 Lastly, while the greenhouse gas regulatory
frameworks in the EU and the UK are undeniably more sophisticated
than their (current) US counterpart, they are by no means exhaustive or
effective while also failing to establish a compensation mechanism for the
victims of climate change; consequently, litigation may become a means of
escalating the necessary regulatory reform in the future.
In summary, it is true that, despite its potentially important functions,
climate-based litigation has not taken off in the UK to date. There are
significant systemic constraints accounting for the status quo. However,
those constraints are neither entrenched nor static, and it is feasible that,
with the evolution of the English judicial system as well as the failings of
the regulatory framework, in the future pioneering cases alleging climate
change damage will be brought to the English Courts.
5. THE BUILDING BLOCKS OF A CLIMATE-BASED

TORT CASE
As a preliminary step to carrying out a detailed analysis of the potential

causes of action, it is important to consider the building blocks of a hypo-
thetical climate-based claim, looking, in particular, at the likely claimants
(including a consideration of standing and jurisdictional issues), defend-
ants, as well as the types of damage that may be claimed, and the types of
remedies that would be available.
The following key principles will apply in relation to the building blocks
of a potential climate-based litigation case that may be brought to the
English Courts:
● The requirements for establishing standing under English law are

relatively non-stringent (the general rule in English law is that all
persons are entitled to sue and are liable to be sued in tort actions,32
but that in order to claim relief, the claimant must have some private
legal right or legal interest recognized by law which has been vio-
lated by the defendant33), and are likely to be satisfied by the major-
ity of potential climate claimants, with the potential exception of

environmental NGOs. As there is no public right to protection of

the environment as such, such NGOs may be found to lack standing
unless they could claim direct injury to their members or damage to
their property.
● The following are the most likely categories of claimants in the
UK context: central government and local authorities, municipali-
ties, quasi-public organizations (such as the Crown Estate), NGOs
(albeit only those which can claim personal injury or property
damage to their members/property, rather than ones simply defend-
ing environmental causes, as the previous bullet point has indi-
cated), businesses (especially banks, asset managers and insurance
firms) and individuals. As discussed above, all of these categories of
claimants will have interests (such as land or property) that would
potentially be affected by climate change; alternatively, in the case
of insurance firms, they stand exposed to significant business losses
due to large insurance pay-outs. Among the potential claimants
identified, central government and local authorities/municipalities
are best placed to bring a pioneering, climate change-based claim.34
This is due to the fact that governments have long time-spans, and
the ability to aggregate claims for damage to governmental assets
over time helps to overcome some of the difficulties of causation
that would arise when attempting to prove the causal link between
individual weather events and the resulting damage (see below for a
discussion of causation issues).
● Crucially, the ranks of claimants may not be limited to UK resi-
dents; rather, there may be scope for foreign claimants’ actions
against UK-based companies under the Brussels Regulation35 or,
as regards claimants not resident in one of the EU member states,
under the common law rules.36 The landmark case of Lubbe v Cape
Plc37 is particularly important in this regard, as it established that
where a UK-based parent company is sued alongside a non-UK
based subsidiary, it is appropriate for the English Courts to accept
jurisdiction. In the context of climate change, this would offer an
important avenue for the most vulnerable victims of global warming
(such as residents of flooding-prone Bangladesh or the islands of the
Indian Ocean exposed to land-loss due to rising sea levels) who, for
a variety of reasons, may not be able to obtain justice for the climate
damage domestically and who may therefore decide to sue parent
companies of local entities for their greenhouse gas emissions and
the related climate damage.
● In a fossil-fuel driven global economy, the potential range of defend-
ants who could be subjected to a tort-based climate change claim is

potentially inexhaustible, as everyone – from a major oil producer

to a private owner of a petrol-fuelled vehicle – is contributing to
the phenomenon of climate change by emitting greenhouse gases.
However, due to the requirements of causation underlying tort
law, ‘likely defendants to climate change suits are persons who can
be shown to have helped cause or to have materially contributed
to, global warming’,38 i.e. it is only the entities whose contribution
to climate change can be shown to be material (and not just any
entity or individual emitting greenhouse gases) that are likely to be
subjected to a climate change-related action.39 Individual consum-
ers’ emissions would not cross that threshold of materiality as they
would be simply too insubstantial. Consequently, three groups of
potential defendants in a climate-based law suit can be singled out,
due to their potential ability to cross the materiality threshold in this
context, namely: entities that burn fossil fuels on a large scale; enti-
ties that supply fossil fuels; and manufacturers of products that rely
on fossil fuels.
● The types of loss that the claimants in a climate-based law suit
will want to recover from the potential defendants will most likely
include death and injury, as well as damage to land, buildings and
goods. Consequential loss stemming from the original damage will
also be claimed for, as will the cost of mitigation of the potential
harm.40 Pure economic loss (i.e. economic loss that is not linked to
damage to land or goods) will not normally be recoverable under
English law and is therefore unlikely to be claimed.41
● Damages will be the appropriate remedy in situations where climate
change-related harm has already occurred. Under English law, the
basic principle relating to damages is that the Court should award
‘that sum of money which will put the party who has been injured,
or who has suffered, in the same position as he would have been in if
he had not sustained the wrong for which he is not getting his com-
pensation and reparation’.42 In the short to medium term, however,
damages are likely to be secondary in importance to injunctions,
as the majority of climate change damage is expected to occur in
the future.43 Injunctions can assist with stopping activities that are
already occurring (prohibitory injunctions), thus preventing the
escalation of further climate change; mandating certain activities
(mandatory injunctions) – a tool claimants may seek to use e.g.
to catalyse a switch to low-carbon energy sources, and preventing
harms that are pending rather than actual (quia timet injunctions)
– this may be relied upon by claimants wishing to avoid the future
impacts of climate change on their persons and properties.

6. CAUSES OF ACTION
Whereas the previous section considered the building blocks of a potential
climate case, this section considers the potential causes of action under
which such a case could be brought. What causes of action would be
most suitable for bringing a climate change-based tort case to the English
Courts? What problems or obstacles would be encountered by the claim-
ants when constructing a claim under the traditional heads of tort? Do
other factors – such as the recent implementation of the Environmental
Liability Directive or the existence of a regulatory framework governing
emission of greenhouse gases – restrict the scope for tort-based litigation?
Due to space constraints, the causes of action will not be examined in great
detail; rather the key prerequisites for, and obstacles to, bringing a claim
under each individual cause of action will be surveyed.
6.1 Environmental Liability Directive: Setting the Context
The following paragraphs examine the viability of bringing a climate-

based claim under the specified causes of action. Prior to launch-
ing into the discussion, however, it is necessary to briefly review the
context in which tort-based environmental litigation is currently evolving.
Specifically, the Environmental Liability Directive (ELD)44 constitutes
a landmark development in environmental liability law, in that it gives
Member States the right to require operators to carry out remedial works
to restore the sites or environmental media harmed by their actions, or to
require them to take actions to prevent or minimize the risk of damage
arising; alternatively, Member States can carry out the remedial works
themselves and require operators to reimburse the costs incurred.45
Granted, given that the ELD does not apply to historical damage; given
the applicability of a number of defences; as well as given the fact that
the Directive does not, effectively, apply to damage through diffuse pol-
lution,46 its relevance to climate change damage is rather debatable. What
it does confirm, however, is a movement towards imposing strict liability
for environmental damage originating from ultrahazardous activities47 – a
trend which must be borne in mind when trying to gauge the potential
positions Courts may take when considering liability for climate change
damage.
6.2 Negligence
Turning to the issue at hand, negligence represents a potentially attrac-

tive cause of action for victims of climate change. Very briefly, negligence

can be defined as ‘the omission to do something which a reasonable man

guided by those considerations which ordinarily regulated the conduct
of human affairs would do or doing something which a prudent and
reasonable man would not do’.48 While recognized as a separate tort,
negligence, unlike other torts, is not limited to the protection of par-
ticular interests; rather, it is based on the conduct of the defendant and
may be imposed in respect of a wide range of interests harmed by that
conduct.49 Moreover, the categories of negligence are never closed, so
that in accordance with the changing social realities and standards, new
classes of persons legally bound or entitled to the exercise of care may
be established.50
In light of the above, it is possible to see how negligence could be con-
ducive to climate damage-based claim, whereby the defendants could be
accused of negligently emitting greenhouse gases and therefore harming
the claimants. However, a number of obstacles would need to be over-
come by those wishing to bring a negligence-based claim alleging climate
damage, as set out below:
● Establishing proximity between the defendant emitters of green-

house gases and their victims as part of imposing the duty of care
on the defendants would present a considerable, though not insur-
mountable, challenge. While physical proximity will rarely be prov-
able in the context of climate change (where the effect of emissions
is by definition global rather than local in nature), it is proposed
that causal, circumstantial or assumed proximity may nevertheless
exist in certain relationships which the Courts may be willing to rec-
ognize on a case-by-case basis. For example, causal proximity has
been defined as ‘the closeness or directness of a causal connection or
relationship between the particular course of conduct and the loss or
injury sustained’;51 it is feasible to see how, in light of this definition,
causal proximity may be shown to exist between claimants resident
in the Pacific islands suffering from land-loss due to rising sea-levels,
and the largest emitters of greenhouse gases whose individual con-
tribution to global markets can be easily identified. Similarly, it
is arguable that when car manufacturers supply fossil fuel-reliant
vehicles to their customers, assumed proximity between the parties
arises, with the manufacturer assuming responsibility towards the
customer and anyone else who may be potentially affected by the
greenhouse gases emitted by such vehicles.
● The ‘floodgates’ argument, which is often relied upon by the Courts
as a policy justification for not imposing the duty of care, may
also be deployed in the context of climate change liability, where,

arguably, wholesale imposition of the duty of care upon the three

categories of defendants may have catastrophic economic conse-
quences for society at large.52 Thus, the exercise of judicial discre-
tion in setting the limits to the extension of the duty of care would
be paramount in ensuring both that justice is upheld (and therefore
victims compensated), and that at the same time the economy is not
undermined through the inadvertent opening of the floodgates to
‘omnipresent plaintiffs’.
● Once the duty of care is extended to particular defendants, the
claimants will then have to prove that that duty was breached.
This, too, will be challenging as it will necessitate the identification
of the relevant standard of care that ought to have been met by
the defendants53 (is any emission of greenhouse gases necessarily
negligent? Or can a public utility which complies with all regula-
tory standards, including those setting the permissible quantities
of greenhouse gas emissions, be said to be meeting the applicable
standard of behaviour?). The Courts, consequently, will need to
address the applicable regulatory and other standards when assess-
ing whether or not the relevant standard of care had been breached.
In this context, regardless of whether or not their conduct is proven
to have fallen short of the standard required, the defendants will
aim to show that the utility of their conduct far outweighs the
harms currently caused by climate change, whilst also arguing
that the cost of curbing emissions exceeds the benefits that could
be gained through such investments.54 Requiring such costs to be
incurred, the defendants would argue, runs the risk of rendering the
defendants’ products commercially unviable and thus again threat-
ens the economic foundations of our society. The Courts would
therefore have to engage in a delicate balancing exercise, whereby
the (valid) economic arguments of the defendants would have to be
weighed against the actual or pending harms incurred by the claim-
ants with a view to establishing whether, indeed, the duty to the
claimants had been breached.
It is clear, therefore, that bringing a claim under negligence will be by no

means straightforward; nevertheless, in light of the general trend towards
imposing strict liability for environmental harms, and bearing in mind the
Courts’ ability to restrict the imposition of duty of care to certain (limited)
facts and circumstances, thus circumventing the ‘floodgates’ problem, it
appears possible to conclude that negligence offers a potentially attractive
avenue that claimants in a climate-based law suit may wish to explore.

6.3 Product Liability
Product liability, on the other hand, is a relatively less attractive cause

of action from climate change claimants’ perspective. A review of the
Consumer Protection Act 1987 (which imposes strict liability for ‘defec-
tive’ products)55 reveals that:
● The range of defendants that could be targeted and the types of

damage that would be recoverable are more limited in the product
liability regime set up by the Act than in negligence. This is due
to the exclusion of services from the scope of the Act.56 Thus, for
example, while fossil fuels or vehicles that rely on fossil fuels will be
included within the scope of the Act, aviation, shipping and electric-
ity will fall outside its scope.
● Although the obvious advantage of the statutory product liabil-
ity scheme (as opposed to negligence-based product liability) is
that it establishes a strict liability regime and therefore removes
the requirement to prove fault in relation to defectiveness of the
relevant product, proving defectiveness is in itself likely to pose a
considerable challenge in the climate context. This is because of the
‘legitimate expectation’ test adopted by the Act, which leaves it to
the Courts to decide whether ‘the safety of the product is not such
as persons are generally entitled to expect’.57 While it is uncertain
whether the Courts are allowed to engage in a risk-utility analysis
when assessing the safety of the relevant product,58 were such an
analysis to be carried out in relation to carbon-intensive products
(such as cars), it is likely that the products would be deemed safe.
Moreover, in judging safety, the Courts would take into account
the standards applicable at the time of supply of the product, rather
than the currently available alternative designs,59 which would result
in the defendants escaping liability in relation to at least the histori-
cally manufactured products (this would be further enhanced by the
‘development risk’ defence, which is also available under the Act,
and which comes very close to importing the reasonableness require-
ment into the strict liability regime).
● Finally, the Consumer Protection Act 1987 introduces a number of
limitations to the applicability of the scheme (including, crucially,
inability to recover for damage to business property, or damage
caused by products put into circulation prior to 1 March 1988).
Although it is due to the said limitations that negligence-based
product liability continues to be utilized, the attractiveness of the
latter cause of action for the hypothetical claimants in a climate

change-related law suit is questionable. This is because it requires

the overcoming of the same hurdles as the strict-liability statu-
tory scheme, while also necessitating proof of fault, inherent in all
negligence-based regimes.
In summary, viewed from the potential climate change claimants’ perspec-

tive, both the statutory and negligence-based product liability regimes
suffer from considerable limitations; however, the drawbacks are more
easily overcome in the case of the former.
6.4 Public Nuisance
Two causes of action – namely, private nuisance and the rule under the
case of Rylands v Fletcher60 – though representing mainstream causes of
action within the English law of torts, are not surveyed here in any detail.
This is because both are ‘agrarian’,61 land-based torts requiring a very
clear pollution pathway between the emitting defendant and the harmed
property, and therefore their relevance to climate litigation is deemed to
be limited.
The analysis is very different when one considers the compatibility of
public nuisance and the climate litigation scenario. The key elements of
public nuisance are as follows: there must be an actionable wrong (the
concept of an ‘actionable wrong’ being very broad in scope) which has
material effect on a large number of people sufficient to constitute a
class.62 Public nuisance is a criminal offence at common law, actionable
by the Attorney General or by local authorities; to bring a private action,
the relevant claimant must show that he suffered damage over and above
the general inconvenience suffered by the general public.63
It is clear that public nuisance offers a potentially relevant cause of
action to climate change claimants due, first of all, to the fact that it is
not a land-based tort and therefore an interest in the land is not required,
which broadens the ranks of potential claimants, as well as the recover-
able types of damage. Secondly, as public nuisance is not restricted to
encroachment upon or interference with the ‘neighbouring property’, it is
more suitable for the types of claims that are likely to arise in the context
of climate change – namely, claims for damage which affects large sections
of society, as opposed to a limited number of properties located in the
vicinity of an easily identifiable source of emissions (as would be the case
in private nuisance).
Not surprisingly, due to its broad scope and flexibility, public nuisance
has been the cause of action of choice in climate change litigation cases in
the US to date.64 However, two key limitations of this cause of action must

be restated here. Firstly, the requirement to prove ‘particular damage’, i.e.

damage that is clearly distinct from the rest of the affected class of society,
as a precondition to bringing a private claim in public nuisance is an
obviously limiting factor which will significantly restrict the ranks of the
potential claimants. Secondly, public nuisance has been to a large extent
overtaken by statutory nuisances, which means, on the one hand, that the
available precedents tend to be outdated, while, on the other, the Courts’
potential approach to analysing public nuisance-based claims alleging
climate change damage is difficult to gauge. With these caveats in mind,
however, it seems possible to conclude that public nuisance represents the
most flexible cause of action on which the majority of future climate litiga-
tion cases are likely to be based.
6.5 Applicability of the Statutory Authorization Defence
The defence of statutory authorization is available in nuisance as well as

negligence, and therefore has potentially broad applicability to the sce-
nario under examination; hence it is briefly discussed here.
The basic premise of the statutory authorization defence is that where a
statute has authorized a specific use of the land, any resulting nuisance is
not actionable, provided every reasonable precaution has been exercised
to prevent the occurrence of that nuisance.65 A distinction must be made
between a power and a duty imposed by statute, the Courts being obvi-
ously more likely to favour the defendant where he can show that he had
been placed under a duty to carry out the relevant act, as opposed to having
been given a power to that effect. Following the case of Marcic,66 further-
more, where the defendant is placed under a duty by a statute, the remedy
for breaching that duty provided by the statute will be the only remedy
available, other remedies coming into play only if the statute is silent on
the issue. (In this regard, it is important to note that one of the possible
outcomes of climate litigation, whether threatened or actual, could be the
institution of a specific statutory authorization defence for entities covered
by the EU ETS or any other international, regional or domestic emissions
reduction scheme. This would amount to regulatory change triggered by
litigation – one of the key objectives of climate litigants – yet, admittedly,
not the type of change the litigants would have hoped to achieve.)
Applying the above analytical framework to the case of hypothetical
defendants in the climate litigation scenario, it appears that the defence
is unlikely to be available to them for the following reasons: firstly, the
Greenhouse Gas Emissions Trading Scheme Regulations 2005 which
implement the EU Emissions Trading Directive in the UK aim to limit the
nuisance created by the operators’ use of the land, rather than authorizing

the use of the land itself. Secondly, following Marcic, the payment of fines
for excessive emissions cannot amount to the sole remedy for the nuisance
of greenhouse gas emissions, as the Regulations do not place the opera-
tors under a duty to emit – they merely give them the power to do so. A
similar analysis of other applicable statutes (i.e. the Electricity Act 1989,
the Utilities Act 2000, the Energy Acts 2004 and 2008 and Climate Change
Act 2008, as well as the statutory instruments adopted under them) con-
firms that statutory authorization to emit greenhouse gases would be
very difficult to prove; in any case, none of the statutes examined limits
the availability of remedies to those provided by statute. Consequently, it
seems possible to conclude that the statutory authorization defence would
not generally be available to the defendants in a climate change-based
legal action.
To recapitulate the key findings of this chapter relating to the poten-
tial causes of action: public nuisance appears to be the most promising
cause of action under the English law of torts, followed by negligence and
statutory product liability. Conversely, negligence-based product liability,
private nuisance and the rule under Rylands v Fletcher are unlikely to be
relied upon by the claimants wishing to bring pioneering law suits alleg-
ing climate-based damage. As the implementation of the Environmental
Liability Directive in the UK would seem to be indicative of the policy
makers’ and Courts’ increasingly strict approach to imposing liability for
serious environmental harms, the Courts’ potential willingness to impose
liability under one of the causes of action analysed here should, arguably,
be viewed in that context. Finally, the chapter has established that the
statutory authorization defence is unlikely to be relied upon by defendants
faced with climate change-related litigation.
7. CAUSATION
Finally, the following paragraphs examine issues of causation which per-

meate the entire topic of climate change liability, and are consequently of
relevance to every issue surveyed in this chapter, ranging from evidence of
climate change and the building blocks of the hypothetical climate litiga-
tion case to the individual causes of action.
Causation is a vital element of any case premised on the law of torts
(and criminal and civil law more generally), for it attributes liability by
establishing a causal connection between, on the one hand, the defend-
ant’s breach of duty of care, and, on the other, the damage suffered by
the claimant.67 Although causation issues have not been examined in
any detail in the climate-based law suits in the US to date, it is clear that

proving causation will represent the greatest obstacle to establishing liabil-

ity for climate change in any jurisdiction; indeed, establishing causation is
likely to be ‘the most difficult issue in any liability claim, either state liabil-
ity under international law, or “simple” tort liability based on national law
for climate change damage’.68
While space restrictions prevent a detailed examination of causation
issues in this chapter, the following observations can be made in relation
to proving causation under the English law of torts:
● The ‘but for’ test, which remains the key test for establishing factual
causation under English law,69 is too restrictive when it comes to
complex causal relationships; this is inevitably the case in the climate
change scenario, which deals with universally widespread, fungible
emissions from diffuse sources causing global effects.
● The climate science has advanced significantly in its understanding
of the global effects of climate change, and the body of knowledge
on the regional effects is gradually building up.70 However, it seems
clear that in the foreseeable future it will not be possible to state with
any degree of certainty that a specific event (such as a flood) result-
ing in the damage complained of was caused by climate change,
and, furthermore, that the said event, or, for that matter, a more
long-term regional phenomenon (such as rising sea-levels) would
not have occurred had it not been for the defendant’s emissions. The
best that could be achieved in this regard is showing an increase in
risk of the event in question occurring.71
● English law has evolved to some extent to tackle issues of alterna-
tive causal explanations and multiple tortfeasors, both of which
are inherent in the climate litigation scenario. A line of cases from
Bonnington Castings Ltd v Wardlaw72 to McGhee v National Coal
Board73 and Fairchild v Glenhaven Funeral Services Ltd and others74
has confirmed the Courts’ willingness to depart from the restrictive
‘but for’ test in special circumstances. However, further flexibility
on the part of the Courts would be needed if causation were to be
established in the context of climate change. For example, this may
involve lowering the ‘material increase in risk’ threshold,75 extend-
ing the Fairchild decision to other factual situations (and not just
those involving mesothelioma claims76) and applying its principles
to other causal circumstances (e.g., those involving different –
including innocent – potential causal explanations).
● Whether or not the Courts would be willing to show such flexibil-
ity cannot be determined here; however, judging by their role in
relaxing the causation requirements in the past, the possibility of

this occurring again cannot be dismissed. The Courts’ decision to

exercise judicial discretion in favour of establishing causation may
be influenced by fairness considerations (particularly towards the
most vulnerable victims of climate change, such as the residents of
small island states) as well as policy reasons (such as the willingness
to compensate central/local authorities and municipalities, likely to
constitute one of the most viable categories of claimants, combined
with a determination to trigger a behavioural change among the
defendants).
● Joint and several liability represents another obstacle to establish-
ing both factual and legal causation, as Courts may be reluctant
to impose such liability in light of the potentially catastrophic eco-
nomic consequences this could have for the affected defendants. It
appears that a form of proportionate liability would offer a fairer
and more sustainable means of apportioning liability between the
defendants.77
● Finally, while establishing legal causation (including remoteness of
damage) will offer its own challenges, it is unlikely to present a key
stumbling block in imposing liability for climate change.
In summary, proving causation in a case alleging climate change-

related damage would not be possible within the current legal framework
and would therefore require the exercise of judicial creativity in pushing
the boundaries of the present law of causation. However, this could be
achieved by building incrementally upon the development of the case-law
to date and would not necessitate a major overhaul of the relevant legal
principles. The fairness and policy considerations for exhibiting such flex-
ibility in exercising judicial discretion appear convincing.
8. CONCLUSION
As this chapter has shown, although the impacts of climate change are
being increasingly felt in the UK, and although tort-based litigation would
serve very concrete and useful objectives, to date not a single private litiga-
tion case alleging climate-related damage has been brought to the English
Courts. While there are systemic constraints which justify the current lack
of activity in this sphere, it is likely that pioneering cases will be launched
in the future, most likely under public nuisance. The complexity of the
issues, the relevant policy considerations and the constraints of the current
legal principles (especially in the area of causation) inevitably mean that
progress in bringing and successfully defending such cases would be slow.

However, the importance of climate change, arguably, warrants the feasi-

bility of such cases to be tested in real life.
NOTES
* Giedrė Kaminskaitė-Salters is an English law qualified solicitor. She works for the
Department for International Development, UK (DFID). The views expressed in this
chapter are those of the author and not of DFID.
1. R.Verheyen, Climate Change and International Law. Prevention, Duties and State
Responsibility, Martinus Nijhoff Publishers, 2005.
2. J. Smith and D. Shearman, Climate Change Litigation: Analysing the law, scientific evi-
dence and impacts on the environment, health and property, Presidian Legal Publications,
2006.
3. D.A. Grossman, Warming up to a Not-So-Radical idea: Tort-Based Climate Change
Litigation, 28 Colum.J.Envtl.L. 2003.
4. In this chapter, references to the laws and /or the Courts of England or the UK are used
interchangeably to denote the legal and judicial system of England and Wales.
5. The key evidence and analysis of climate change and its global impacts are contained
in the Assessment Reports (and, in particular, the Third Assessment Report (2001)
and Fourth Assessment Report (2007)) issued by the Intergovernmental Panel for
Climate Change. See, for example, IPCC, Summary for Policymakers. In: S. Solomon
et al. (eds.), Climate Change 2007: The Physical Science Basis. Contribution of Working
Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate
Change, Cambridge University Press, 2007.
6. UK Climate Impacts Programme (UKCIP), Climate Change Scenarios for the
United Kingdom, the UKCIP02 Scientific Report, DEFRA, April 2002, p.iv. This and
other UKCIP reports are consistent with the methodologies and findings of IPCC
reports.
7. In this regard, effects on human health and agriculture have not been covered
here, as these are unlikely to be significant issues in the UK in the short to medium
term.
8. It should be noted here that estimating future impacts of climate change is a necessar-
ily approximative exercise, as the complexity of climate models; the unpredictability
of the volumes of future greenhouse gas emissions; and the lack of clarity as regards
the so-called feedback effects that would occur if global temperatures were to rise
above 5°C combine to undermine the accuracy of future projections (see F. Ackerman
and E. Stanton, Climate Change – the Costs of Inaction, Global Development and
Environment Institute, Tufts University, Report to the Friends of the Earth England,
Wales and Northern Ireland, October 11, 2006.
9. UKCIP, Climate Change Scenarios for the United Kingdom, the UKCIP02 Scientific
Report, DEFRA, April 2002, pp. 53, 71, 80. See also Marine Climate Change Impacts
Partnership (MCCIP), Annual Report Card 2007–2008 (available at www.mccip.org.uk/
arc) for a detailed account of the expected impacts of rising sea levels in the UK.
10. Association of British Insurers, Financial Risks of Climate Change, Summary Report,
June 2005.
11. Allianz Group and WWF, Climate Change and the Financial Sector: an Agenda for
Action, June 2005, p. 27.
12. EEA, Impacts of Europe’s Changing Climate: An Indicator-Based Assessment, Office for
Official Publications of the European Communities, 2004, pp. 24–25.
13. UKCIP, MONARCH2 – Modelling Natural Resource Responses to Climate Change: a
Local Approach, University of Oxford, 2006, p. 8.
14. IPCC, Summary for Policymakers. In: S. Solomon et al. (eds.), Climate Change 2007:
The Physical Science Basis. Contribution of Working Group I to the Fourth Assessment

Report of the Intergovernmental Panel on Climate Change, Cambridge University Press,

2007, p. 8.
15. This is not to say, however, that the agreement with the IPCC’s conclusions is univer-
sal across the scientific community; an active (although comparably small) group of
scientists have voiced concerns over some of the methodologies and findings contained
in the IPCC reports. See S. McIntyre and R. McKitrick, Hockey Sticks, Principal
Components, and Spurious Significance, Geophysical Research Letters 32, 2005; also see
D. Holland, Bias and Concealment in the IPCC Process: The ‘Hockey-Stick’ Affair and
Its Implications, Energy and Environment, vol. 18, no.7–8, 2007; I. Castles and P.D.
Henderson, The IPCC Emissions Scenarios: an Economic-Statistical Critique, Energy
and Environment, 14, no. 2–3, 2003. For a general overview, see J.P. Bluemle, Global
Warming: A Geological Perspective, 29 Ariz.Geology, Winter 1999, and J.P. Bluemle
et al., Rate and Magnitude of Past Global Climate Changes, 6 Envtl. Geosciences, June
1999, 63–75.
16. See T. Relis, Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs
and Gendered Parties, Cambridge University Press, 2009, for a detailed overview of the
functions of litigation.
17. M. Kerr, Tort Based Climate Change Litigation in Australia, Climate Change Litigation
Forum materials, London, March 2002.
18. W.K. Viscusi, The Regulation-Litigation Interaction, AEI-Brookings Joint Center for
Regulatory Studies Working Paper 01-13, October 2001, p. 5.
19. Ibid., p. 5.
20. Ibid., p. 20.
21. Some of these instruments are briefly discussed below.
22. J. Smith and D. Shearman, above, note 2, p. 12.
23. This is to be contrasted with the US, where pioneering cases such as Connecticut v
American Electric Power et al., No. 05-5104cv, 05-5119-cv; State of California v General
Motors et al., No. 3:06 – cv – 05755-MJJ and Native Village of Kivalina v ExxonMobil
Corp. et al., CV 08-1138 (N.D.Cal. filed Feb. 26, 2008) have been filed and are in differ-
ent stages of being defended.
24. Department for Constitutional Affairs, Legal Aid: the Way Ahead, The Stationery
Office, November 2006.
25. A. Barton, Conditional Fees: Privatising Access to Justice, Litigation Annual Review,
January 2002; see: Society of Advanced Legal Studies, The Ethics of Conditional Fee
Arrangements, London 2001; N. Andrews, English Civil Procedure: Three Aspects of the
Long Revolution, Centre for Comparative Law, Rome, 2001.
26. C. Hodges, Multi Party-Actions, Oxford University Press, 2001.
27. N. Fagan and M. Gottridge, Defending Class and Group Actions: the Key Issues,
Practical Law, September 2004.
28. F. Furedi, The Compensation Culture, presentation transcripts from Litigating Britain:
The Causes and Consequences of Litigious Activity, seminar hosted by Global Futures’
Litigious Society Project, 13 May 1999.
29. The Greenhouse Gas Emissions Trading Scheme Regulations 2005. D. Freestone and
C. Streck, Legal Aspects of Implementing the Kyoto Protocol Mechanisms, Oxford
University Press, 2005 and M. Faure and M. Peeters (eds.), Climate Change and
European Emissions Trading, Edward Elgar, Cheltenham, UK and Northampton, MA,
USA, 2008 for a detailed analysis of the EU ETS.
30. M. Bramley and A. Gouge, The Civil Justice Reforms One Year On, Butterworths, 2002.
31. In May 2009, the Commission issued a stakeholder consultation on a number of
options for a more effective collective redress system (http://ec.europa.eu/consumers/
redress_cons/collective_redress_en.htm).
32. A.M. Dougdale et al. (eds.), Clerk & Lindsell on Torts, Sweet & Maxwell, 2006, p. 257.
33. A. Geddes, Locus Standi and EEC Environmental Measures, 4(1) Journal of
Environmental Law, 1992, pp. 29–39, at 30.
34. Similarly, in the US context, Grossman puts forward state governments as the more

likely claimants in climate change litigation law suits. See D.A. Grossman, Warming up
to a Not-So-Radical Idea: Tort-Based Climate Change Litigation, 28 Colum.J.Envtl.L.,
2003, p. 25.
35. Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the
recognition and enforcement of judgements in civil and commercial matters.
36. See J. Hill, International Commercial Disputes in English Courts, Hart Publishing, 2005.
37. [2000] All ER 268.
38. J. Smith and D. Shearman, Climate Change Litigation: Analysing the law, scientific evi-
dence and impacts on the environment, health and property, Presidian Legal Publications,
2006, p. 17.
39. Please see Chapter 6 for a detailed discussion of causation issues.
40. For a detailed discussion of types and recoverability of loss under English law, see D.K.
Allen, Damages in Tort, Sweet & Maxwell, 2000.
41. A.M. Dougdale, et al. (eds.), above, note 32.
42. Per Lord Blackburn, Livingstone v Rawyards Coal Co (1880) 5 App.Cas. 25, at 39.
43. F. Ackerman and E. Stanton, Climate Change – the Costs of Inaction, Global
Development and Environment Institute, Tufts University, Report to the Friends of the
Earth England, Wales and Northern Ireland, October 11, 2006, p. 3. Also see M. Allen,
Liability for Climate Change, Nature, Vol. 421, February 2003.
44. Directive 2004/35/EC of the European Parliament and of the Council on environmental
liability with regard to the prevention and remedying of environmental damage.
45. For a detailed discussion on the Environmental Liability Directive, see C. Blatch,
Environmental Liability Directive – Remediation of Damage, ELM 16 [2004] 5;
V. Fogleman, The Environmental Liability Directive, Environmental Liability, Vol. 12
(3), July 2004.
46. Article 4(5) of the Directive.
47. M.G. Faure and A. Nollkaemper, International Liability as an Instrument to Prevent
and Compensate for Climate Change, SELJ Volume 26A and SJIL Volume 43A,
Number 1, June 2007, p. 149.
48. Per Alderson J, Blyth v Birmingham Waterworks Company (1856), 11 Exch. 781 at 784.
49. A.M. Dougdale et al. (eds.), above, note 32, p. 381.
50. M.Kerr, Tort Based Climate Change Litigation in Australia, Discussion paper prepared
for the Climate Change Litigation Forum, London, March 2002 (Friends of the Earth).
51. J. Deane, Sutherland Shire Council v Heyman (1985) 60 A.L.R. 1 at 55–56.
52. See W.V.H. Rogers, Keeping the Floodgates Shut, in J. Spier (ed.), The Limits of
Liability, Kluwer Law International, 1996, pp. 75–92.
53. Under English law, the defendant will be regarded as being in breach of duty of care if
his conduct falls below the standard required by the law, which is that of a reasonable
and prudent person (Blyth v Birmingham Waterworks Company (1856), 11 Exch.781 at
784).
54. P. Stookes, A Practical Approach to Environmental Law, Oxford University Press, 2005.
55. Consumer Protection Act 1987 is now a more important head of recovery than the tra-
ditional negligence-based product liability; hence it is surveyed here, despite the overall
focus of the chapter on tortious liability. Although overshadowed by it, due to certain
limitations of the statutory scheme negligence-based product liability remains a valid
cause of action and is also briefly touched upon in this section.
57. Section 3 of the Consumer Protection Act 1987.
58. The appropriateness or otherwise of the risk-utility analysis in the context of product
liability was considered (but not decided) in A v National Blood Authority [2001] 3 All
ER 289.
59. W.V.H. Rogers, Winfield & Jolowitz on Tort, Sweet & Maxwell, 2006, p. 346.
60. (1866) LR 1 Ex 265.
61. B. Pontin points out that ‘nuisance is an agrarian tort which has altered little to accom-
modate modern environmental risks’. B. Pontin, Beyond Nuisance? Enforcing the Right

to a Healthy Environment within the Framework of the Human Rights Act 1998, ELM 13
[2001] 6.
62. J. Bates et al., Liability for Environmental Harm, Reed Elsevier, 2004, para. 2.72.
64. Most recently, the Kivalina complaint has alleged that certain members of the oil and
electric utility industries contribute to the ‘global warming public nuisance’ by emitting
large quantities of greenhouse gases (Native Village of Kivalina v ExxonMobil Corp et
al., CV 08-1138 (N.D.Cal. filed Feb. 26, 2008).
66. Marcic v Thames Water Utilities [2003] UKHL 66.
67. J. Lowry and R. Edmunds (eds.), Environmental Protection and the Common Law, Hart
Publishing, 2000, p. 77.
68. M. Faure and A. Nollkaemper, International Liability as an Instrument to Prevent and
Compensate for Climate Change, SELJ Volume 26A and SJIL Volume 43A, Number 1,
June 2007, p. 157.
69. The ‘but for’ test asks: ‘would the damage of which the claimant complains have
occurred “but for” the negligence (or other wrong-doing) of the defendant?’ (Rich v
Pierpoint (1862) 3 F&F 35).
70. See, for example, R. Warren et al., Understanding the Regional Impacts of Climate
Change: Research Report Prepared for the Stern Review of the Economics of Climate
Change, Tyndall Centre for Climate Change Research, Working Paper 90, September
2006; M. Ruth et al., Regional Climate Change and Variability: Impacts and Responses,
Edward Elgar, Cheltenham, UK and Northampton, MA, USA, 2006; D. Crichton,
Climate Change and Its Effects on Small Businesses in the UK, Axa Insurance, 2006.
71. M. Allen, Liability for Climate Change, 421 Nature, 27 February 2003, p. 891.
72. [1956] AC 613.
73. [1972] 3 All ER 1008.
74. [2002] UKHL22.
75. The Fairchild decision importantly replaced the requirement of ‘material contribution’
by the defendant to the claimant’s harm with the arguably easier requirement of a
‘material increase in risk’ of such harm occurring. Regardless of whether the applica-
bility of the Fairchild decision is limited to mesothelioma cases or not, it is clear that
it would be extremely difficult if not impossible to meet the ‘material increase in risk’
in the context of climate litigation where even several joint tortfeasors’ emissions are
unlikely to cross the materiality threshold.
76. There was an attempt to restrict the application of Fairchild to mesothelioma cases only
– see Lord Hoffmann’s dictum, for example.
77. D.A. Grossman, Warming up to a Not-So-Radical idea: Tort-Based Climate Change
Litigation, 28 Colum.J.Envtl.L. 2003, p. 32. On proportionate liability generally and
market share liability specifically, see A. Porat and A. Stein, Tort Liability under
Uncertainty, Oxford University Press, 2001.

8. Liability for climate change-related
damage in domestic courts: claims
for compensation in the USA1
Elena Kosolapova
1. INTRODUCTION
The past decade has seen a rise in national climate change litigation world-
wide. Notably, until today, no greenhouse gas emitter has been found
liable for climate change by any domestic court. In accordance with the
relief sought by plaintiffs, climate change case law can be roughly organ-
ised into three categories: (1) claims related to procedural injury; (2) claims
for injunctive and/or declaratory relief; and (3) claims for compensation.
In addressing procedural, and not actual, injury, procedural justice does
not offer any immediate relief to plaintiffs already suffering from injurious
effects of climate change. Injunctive relief – a court order requiring a party
to do, or to refrain from doing, certain acts – is a form of relief ultimately
related to climate change mitigation due to its preventive character; it is
unhelpful in cases concerned with the dangerous effects of climate change
that have already taken place. Thus, compensation claims become relevant
when adaptation to and remediation of the already happening climate
change is at stake. Climate change-related compensation claims are the
focus of this chapter. After a brief introduction (section 2.1), sections 2.2
to 2.4 summarize compensation claims adjudicated thus far worldwide, all
three of which have been brought in the United States. The United States
remains the only developed country without a mitigation policy based on
the 1997 Kyoto Protocol to the United Nations Framework Convention
on Climate Change and given its common law litigation tradition, it is not
surprising that it is in the US that litigants have brought the actions for
damages analysed in this chapter.
Pursuant to and relying upon the case law analysis, I identify the legal
problems arising in connection with climate change liability (section 3).
First, I analyse the US law-specific issue of non-justiciability of political
questions (section 3.1). Second, I examine the problem of climate change
189

plaintiffs’ standing to sue (section 3.2). Third, I consider the issue of causa-
tion between a defendant’s greenhouse gas emissions and the harm caused
to a plaintiff by the resultant climate change (section 3.3). Fourth, I discuss
the difficulties regarding the attribution of a particular act to a defendant
(section 3.4). Fifth, I deal with the related problem of retroactive respon-
sibility for past emissions (section 3.5). And last but not least, in section
4, I make a few inductive inferences on the basis of the conclusions drawn
from the case law study regarding possible lessons for other jurisdictions.
2. CLAIMS FOR COMPENSATION
2.1 Compensation Claims: Introduction
Claims for compensation, or, as they are known in common law, actions
for damages, have only been brought in the United States. Until today,
compensation claims have not been successful. Yet, it is important to
note that whether or not climate change defendants are found liable for
damages, American practice may provide some important lessons for
other jurisdictions. Also, some commentators have been optimistic in
seeing early climate change-related compensation claims as a path to even-
tual success of actions for damages.2 Let us now turn to the cases.
2.2 California v General Motors Corporation
California v General Motors Corporation is a public nuisance global

warming lawsuit for damages filed by the State of California against
several automobile manufacturers3 under federal common law as well
as state law. The plaintiff also sought declaratory judgment for ‘future
monetary expenses and damages incurred by the State of California in
connection with the nuisance of global warming’.4 The plaintiff alleged
a number of global-warming injuries caused by greenhouse gas (GHG)
emissions from motor vehicles manufactured by the defendants. The
plaintiff pointed out that the scientific debate over global warming was
‘over’ and that there was ‘a clear scientific consensus’ that global warming
had begun and that most of it was caused by GHG emissions, primarily
carbon dioxide from fossil fuel combustion. According to the plaintiff,
global warming caused an increase in the winter average temperatures in
the Sierra Nevada region and thus, a reduction in the snow pack – a major
water source in California. The plaintiff noted an increased risk of flood-
ing due to rising sea levels, increased coastline erosion, increased dura-
tion and frequency of heat waves and increases in the risk and intensity

Claims for compensation in the USA 191
of wildfires.5 The court granted the defendants’ motion to dismiss on the

grounds of political questions’ non-justiciability.
The political question doctrine (more on it in the analysis section) is
rooted in the principle of the separation of powers and aims at limiting
judicial interference with the activities of the legislative and executive
branches.6 According to the political question doctrine, the judiciary
cannot intervene in policy issues (climate change being seen as one of
them) as those are to be decided by the democratically elected branches of
the US government.
The court held that (a) resolution of the plaintiff’s federal common law
nuisance claim would require it to make ‘an initial policy decision’ as the
claims touched upon public and foreign policy. The court ruled that it
could not adjudicate the plaintiff’s federal common law global warming
nuisance tort claim ‘without making an initial policy determination of
a kind clearly for nonjudicial discretion’. The court noted that (b) the
plaintiff’s claim implicated ‘a textually demonstrable constitutional com-
mitment to the political branches’. It stated that (c) it lacked ‘judicially
discoverable or manageable standards’ by which to resolve the plaintiff’s
claim.7 On the issue of damages, the court noted that the plaintiff’s global
warming nuisance tort claim sought to impose damages on an ‘unprec-
edented’ scale by ‘grounding the claim in the pollution originating both
within, and well beyond, the borders of the State of California’. The court
added that it had no way of discerning the contributors to the alleged
nuisance of global warming as there were ‘multiple worldwide sources of
atmospheric warming across myriad industries and multiple countries’.8
An appeal was filed with the Ninth Circuit in October 2007. The plaintiff
and defendants also filed supplemental briefs following Massachusetts v
EPA. In 2009 California voluntarily dismissed its appeal.
2.3 Comer
This global warming public nuisance class action suit was originally filed
against the US property insurers in the wake of the destruction brought
by Hurricane Katrina and was reported as Comer v Nationwide Insurance.
Before long, the claim was amended as to include petrochemical compa-
nies as defendants. The plaintiffs alleged that Hurricane Katrina ‘evolved
into a storm of unprecedented strength and destruction’ due to global
warming caused by the activities of the ‘Oil Company Defendant Class’.9
The US District Court for the Southern District of Mississippi, Southern
Division, acknowledged that, in its complexity, the case was unman-
ageable. It dismissed the plaintiffs’ causes of action against insurance
companies and mortgage lenders and permitted to file a third amended

complaint,10 which became known as Comer v Murphy Oil.11 Ned Comer

and 13 other individuals brought an action for damages against public
utilities, power companies, and coal-mining and chemical manufacturing
companies. The plaintiffs’ causes of action included nuisance, negligence,
unjust enrichment, civil conspiracy, fraudulent misrepresentation and
concealment, and trespass. The central public nuisance claim was based
on the defendants’ alleged contribution to global warming resulting in
Katrina, a hurricane of unprecedented intensity, which caused damage to
the plaintiffs. The plaintiffs’ case was dismissed due to their lack of stand-
ing and on the basis of non-justiciability of political questions.12 Comer v
Murphy Oil was docketed in the Fifth Circuit in September 2007 and the
appeal was argued in November 2008.
On 16 October 2009 the Fifth Circuit reversed the judgment of the
district court and remanded the cases for further proceedings. The appel-
late court found that the plaintiffs-appellants had standing ‘to assert their
public and private nuisance, trespass, and negligence claims’13 on the basis
of Mississippi’s ‘liberal standing requirements’ as well as under Article III
of the US Constitution limiting the power of the courts to hearing cases as
opposed to giving advisory opinions (more on it in section 3.2 on standing).
The Fifth Circuit ruled that the plaintiffs had alleged ‘actual, concrete injury
in fact to their particular lands and property’, which could be ‘redressed by
the compensatory and punitive damages they [sought] for those injuries’.14
On causation, the court noted that ‘the Article III traceability requirement
need not be as close as the proximate causation needed to succeed on the
merits of a tort claim’15 and, relying on Massachusetts v EPA, noted that
‘injuries may be fairly traceable to actions that contribute to, rather than
solely or materially cause, greenhouse gas emissions and global warming’.16
Further, the Fifth Circuit found that none of the above claims presented
non-justiciable political questions stressing that ‘the federal courts [were]
not free to invoke the political question doctrine to abstain from deciding
politically charged questions like this one, but must exercise their jurisdic-
tion as defined by Congress whenever the question is not exclusively com-
mitted to another branch of the federal government’.17 The Fifth Circuit
dismissed the plaintiffs-appellants’ claims regarding unjust enrichment,
fraudulent misrepresentation, and civil conspiracy and as regards the plain-
tiffs’ remaining justiciable claims (public and private nuisance, trespass, and
negligence), remanded the case to the District Court for further proceedings.
2.4 Kivalina
In February 2008 the residents of the Alaskan Native Village of Kivalina

filed a suit under federal common law and state law against a number of

American oil and electric utility industries18 to recover damages from the
public nuisance of global warming allegedly caused by the defendants. The
plaintiffs claimed that global warming was destroying their village and
soon the village would have to be abandoned and its population relocated,
the cost of which had been estimated at as much as 400 million US dollars.
In the words of Kivalina’s complaint:
16. Global warming has severely harmed Kivalina by reducing the sea ice com-
monly present in the fall, winter and spring at Kivalina. The sea ice – particularly
land-fast sea ice – acts as a protective barrier to the coastal storms that batter
the coast of the Chukchi Sea. Due to global warming, the sea ice forms later
in the year, attaches to the coast later, breaks up earlier, and is less extensive
and thinner, thus subjecting Kivalina to coastal storm waves and surges. These
storms and waves are destroying the land upon which Kivalina is located.
17. Impacts of global warming have damaged Kivalina to such a grave degree
that Kivalina is becoming uninhabitable and must now relocate its entire
community.
According to the plaintiffs, the defendants contributed to global warming

‘through their emissions of large quantities of greenhouse gases’ and they
had knowingly done so for many years. The plaintiffs also alleged a con-
spiracy ‘to suppress the awareness of the link’ between the defendants’
emissions and global warming.19 The plaintiffs requested the court to hold
each defendant ‘jointly and severally liable for creating, contributing to,
and maintaining a public nuisance’ of global warming, hold conspiracy
defendants ‘jointly and severally liable for civil conspiracy’ and hold
each defendant ‘jointly and severally liable for concert of action’. On that
basis, the plaintiffs requested monetary damages and declaratory relief for
‘future monetary expenses and damages as may be incurred’ by the plain-
tiffs in connection with global warming.20
The Oakland Division of the United States District Court of the
Northern District of California dismissed the claim on 30 September
2009. First, the court found the plaintiffs’ claim non-justiciable under
the political question doctrine due to lack of judicially discoverable and
manageable standards and absence of an initial policy determination.
It noted that ‘allocation of fault – and cost – of global warming [was] a
matter appropriately left for determination by the executive or legislative
branch in the first instance’.21 Second, the court found that the plaintiffs
had not established Article III standing failing to prove causation and
observed: ‘[a]lthough the “traceability” of a plaintiff’s harm to the defend-
ant’s actions need not rise to the level of proximate causation, Article III
does require proof of a substantial likelihood that the defendant’s conduct
caused plaintiff’s injury in fact’.22

The court found the plaintiffs’ argument on contributory causation

unconvincing and with regard to attribution of harm and retroactivity
noted:
Significantly, the source of the greenhouse gases are [sic] undifferentiated and
cannot be traced to any particular source, let alone defendant, given that they
rapidly mix in the atmosphere and inevitably merge with the accumulation of
emissions in California and the rest of the world. [. . .] [I]t is not plausible to
state which emissions – emitted by whom and at what time in the last several
centuries and at what place in the world – caused Plaintiffs’ alleged global
warming related injuries.23
3. ANALYSIS
From the case summaries it becomes apparent that actions for damages
have been fraught with difficulty due to certain legal obstacles. The
obstacles to finding climate change defendants liable for damages include
non-justiciability of political questions, standing, causation, attribution
and retroactivity. This chapter deals with those challenges insofar as they
concern compensation claims. Let us briefly deal with each of the above-
mentioned legal obstacles.
3.1 Non-justiciability of Political Questions
Even before standing becomes a problem at issue, the doctrine of non-

justiciability of political questions may present a considerable jurisdic-
tional barrier to climate change plaintiffs. The US Supreme Court has
indicated that ‘disputes involving political questions lie outside of Article
III jurisdiction of federal courts’24 as Article III of the US Constitution
limits the power of courts to hearing cases and not giving advisory opin-
ions. Its genesis lies in the principles of the separation of powers and it
was initially articulated by Chief Justice Marshall in the early nineteenth
century.25 The doctrine is rooted in ‘the courts’ reluctance to invade the
constitutionally allocated powers of the executive and legislative branches
of government’26 and, as a result, it has been at the forefront of the courts’
rejection of a number of climate change claims. The categories of non-
justiciable suits were specified by Justice Brennan in Baker v Carr. In that
case, the US Supreme Court ruled that challenge to legislative apportion-
ment that allegedly deprived plaintiffs of equal protection of the laws in
violation of the Fourteenth Amendment to the US Constitution ‘by virtue
of the debasement of their votes’27 did not present non-justiciable politi-
cal questions (the Fourteenth Amendment provides a broad definition of

citizenship, recognizes due process rights, and according to its equal pro-
tection clause, states are to provide equal protection under the law to all
people within their jurisdictions):
Prominent on the surface of any case held to involve a political question is

found [(1)] a textually demonstrable constitutional commitment of the issue
to a coordinate political department; or [(2)] a lack of judicially discoverable
and manageable standards for resolving it; or [(3)] the impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial discre-
tion; or [(4)] the impossibility of a court’s undertaking independent resolution
without expressing lack of respect due coordinate branches of government;
or [(5)] an unusual need for unquestioning adherence to a political decision
already made; or [(6)] the potentiality of embarrassment from multifarious
pronouncements by various departments on one question.28
A suit is non-justiciable when it raises a ‘question . . . to be decided, by

a political branch of government coequal with this Court’, that posing a
‘risk [of] embarrassment of [the] government abroad, or [of] grave distur-
bance at home’ or that seeking ‘policy determinations for which judicially
manageable standards are lacking’.29
At some stage, every one of the three claims under consideration in
this chapter was hindered by the courts’ reliance on the political question
doctrine. California v General Motors Corporation and Kivalina have both
been rejected, inter alia, on the grounds of non-justiciability of political
questions. Before its recent reversal on appeal, Comer v Murphy Oil, too,
was rejected as non-justiciable.
It has been noted that in the United States, the political question doc-
trine has turned into an excuse ‘to evade the courts’ responsibility to decide
serious justiciable issues in environmental law’, which has been used as ‘an
unwarranted escape hatch” thwarting “effective judicial redress for envi-
ronmental harms’.30 According to Paul Daly, a more accurate description
of the political question doctrine would be ‘an attitude of judicial restraint,
adopted by judges when they are asked to review certain categories of
sensitive decision’.31
Here it is important to note a recent decision by a US Court of Appeals
in Connecticut v American Electric Power Company.32 The Court decided
that harm arising from greenhouse gas emissions was a justiciable issue
and not a political question, which resulted in a landmark ruling on stand-
ing. Although this chapter does not focus on causes of action in climate
change cases but rather dwells on the types of remedy sought, it must
be noted that this finding of the appellate court is significant as it makes
it possible to bring a climate change damage lawsuit under the federal
common law of nuisance. A significant breakthrough for global warming
plaintiffs, this case is otherwise outside the scope of the present analysis

as the plaintiffs sought an injunction. It is interesting, however, that the

Kivalina court distinguished the plaintiffs’ claim from the Connecticut v
American Electric Power Company case, referring to the Second Circuit’s
approach to the political question doctrine as ‘sanguine’.33 The Comer
appeal was decided a month after Connecticut v American Electric Power
Company and although the Fifth Circuit did not rely on the latter case,
its reasoning suggests that the judges were likely aware of the Second
Circuit’s decision when they found the Comer claim justiciable.
3.2 Standing
The next challenge facing plaintiffs in a climate change lawsuit is standing

– a threshold requirement that, if proven, enables the court to hear a
case.34 To use Bradford Mank’s words, standing ‘addresses whether a
party to a law suit is a proper party to sue, and does not address whether
the asserted claim is appropriate’; it is ‘one factor in determining whether
a suit is legitimately justiciable in court’.35 If a plaintiff is found to have
no standing, their case will not reach the merits stage of the proceedings.
As is evident from the case law under consideration, standing is a
serious obstacle confronting climate change plaintiffs in the United States.
Article III of the US Constitution does not contain specific requirements
for standing; the so-called Article III standing requirements developed in
case law. Referring to its earlier decision in Lujan v Defenders of Wildlife,36
the Supreme Court formulated them as follows:
[T]o satisfy Article III’s standing requirements, a plaintiff must show (1) it has
suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual
or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to
the challenged action of the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.37
Article III standing is prerequisite for federal courts’ jurisdiction. In estab-

lishing its requirements, the onus is on the plaintiff. In climate change
compensation claims, Article III standing has not been easy to prove. For
example, in Comer v Murphy Oil,38 the plaintiffs were found to have no
standing to bring their claim because the harm was not traceable to indi-
vidual defendants.39 This decision was later reversed on appeal when the
Fifth Circuit concluded that all the three prongs of the Article III standing
test – injury, causation,40 and redressability – were in fact satisfied.
The recent outcome of the Kivalina41 claim reaffirms the challenges
posed by the standing threshold. Kivalina attracted a great deal of aca-
demic attention even before it was decided and many authors commented

on the plaintiffs’ standing. With regard to the injury element of causation,

Hsu noted that ‘the Inuit would be able to use the fact that they are one
of the few groups that have already suffered some harm that is “concrete
and particularized,” and “actual and imminent,” in the form of sinking
villages due to softening permafrost’.42 Bradford Mank has also observed
that ‘an Alaska Native already harmed by global warming would have a
much stronger case for injury than a plaintiff who can only allege general
and common injuries from global warming’. Indeed, ‘an Alaska Native
whose village or home is destroyed by melting permafrost or coastal flood-
ing could allege very specific injuries’.43 The other two elements of Article
III standing were seen as somewhat less clear-cut. Predictably, the district
court found that the plaintiffs’ harm was not traceable to the defendants’
actions.
The California v General Motors Corporation court did not specifically
address either the plaintiffs’ standing or the causation element thereof.
It appears that standing has been a major challenge for climate change
plaintiffs seeking compensation for their injuries. Although it is admittedly
difficult to make any meaningful inferences as very few compensation
claims have been adjudicated, it is significant that negative findings on
standing tend to be coupled with conclusions of non-justiciability. The
courts have been reluctant to resolve claims for damages citing lack of
initial policy determination, absence of judicially discoverable or man-
ageable standards as well as difficulties with tracing plaintiffs’ injury to
defendants. As it stands, no claims for compensation have been decided
on the merits.
3.3 Causation
Another problem inherent to climate change litigation is causation. It has

been described as ‘the greatest obstacle to the majority of plaintiffs’.44
In the United States climate change litigation, the problem of causation
has been two-fold. First, causation must be proven as an element of stand-
ing: the injury has to be ‘fairly traceable’ to the actions of a defendant (see
the section on standing above). Second, causation has to be proven at the
merits stage of the proceedings. It is apparent that the standard of proof in
the latter case must be higher than that for establishing standing; however
the majority of climate change plaintiffs never reach the merits stage.
Proving causation as an element of standing has not been easy. Standing
was denied on, inter alia, causation grounds in Comer v Murphy Oil45 as
the ‘fairly traceable’ element was not satisfied. Albeit the district court
tossed out the Comer claim before it could be argued on the merits, it
noted the following:

Without in any way expressing an opinion on the merits of the plaintiffs’ claims
against these defendants, I will observe that there exists a sharp difference of
opinion in the scientific community concerning the causes of global warming,
and I foresee daunting evidentiary problems for anyone who undertakes to
prove, by a preponderance of the evidence, the degree to which global warming
is caused by the emission of greenhouse gases; the degree to which the actions of
any individual oil company, any individual chemical company, or the collective
action of these corporations contribute, through the emission of greenhouse
gases, to global warming; and the extent to which the emission of greenhouse
gases by these defendants, through the phenomenon of global warming,
intensified or otherwise affected the weather system that produced Hurricane
Katrina.46
This obiter statement points to enormous evidentiary challenges to estab-

lishing a causal link between a defendant’s GHG emissions allegedly
contributing to climate change and the harm suffered by a plaintiff. The
Fifth Circuit’s reversal of Comer is noteworthy insofar as its finding of
causation-as-an-element-of-standing is concerned. It is particularly signifi-
cant in view of the fact that the appellate court accepted the defendants’
contribution to harm as sufficing to establish the traceability requirement
under Article III.
The Kivalina court, however, was sceptical on causation and in refer-
ence to the sequence of events allegedly leading to the plaintiffs’ injury
observed:
[T]he harm from global warming involves a series of events disconnected from
the discharge itself. In a global warming scenario, emitted greenhouse gases
combine with other gases in the atmosphere which in turn results in the planet
retaining heat, which in turn causes the ice caps to melt and the oceans to rise,
which in turn causes the Arctic sea ice to melt, which in turn allegedly renders
Kivalina vulnerable to erosion and deterioration resulting from winter storms.47
As far as causation is concerned, there are a few general observations to

make. Smith and Shearman single out two key issues with regard to causa-
tion: first is whether ‘current legal tests and thresholds regarding causation
and probability of causation are appropriate for, or flexible enough to
accommodate, inherent complexities in the science of global warming’ and
the second is whether the existing scientific evidence is sufficient to support
causation.48 The causal chain, the onus usually being on the plaintiff,
has to be established between the defendant’s greenhouse gas emissions
contributing to climate change, resultant extreme weather events and
the harm asserted by the plaintiff. With regard to the second issue one
cannot but notice a substantial increase in the degree of scientific certainty
concerning the causal link between anthropogenic GHG emissions and
climate change leading to extreme weather events.49 Furthermore, should

the courts be willing to apply the precautionary principle in adjudicat-

ing climate change disputes,50 lack of full scientific certainty should not
breach the chain of causation. But as far as the first issue is concerned, it
appears that Smith and Shearman are right in questioning the suitability
of the traditional causation thresholds to climate change claims as those
were developed with no intention of accommodating potential global
warming litigants; climate change-related damage has become actionable
very recently. The very essence of the global warming phenomenon tests
the conventional boundaries of causal proof. A great many claims in US
courts have been stalled by the Article III standing test whose causation
requirement of ‘fairly traceable’ is ‘mild’ compared to the rigours of evi-
dentiary proof.
3.4 Attribution
A question related to the causation issue is that of attribution of a given

act to a particular defendant, which may also pose great difficulties to
climate change plaintiffs.
It has been emphasized that climate change is an inherently global phe-
nomenon with multiple contributors spread out in space and time. First,
one of the temporal issues is the fact that anthropogenic emissions have
been rising drastically since the beginning of the Industrial Revolution in
the 1750s. Thus, the current levels of GHG concentration in the atmos-
phere are a cumulative result of historic emissions.51 Second, many con-
tributors to global warming have ceased to exist. The third important
temporal characteristic of climate change is that there is a delay between
the actual emissions release and a rise in temperatures leading to climate
change-related damage.
As regards the spatial dimension of climate change, it is obvious that
every human being contributes to the global problem of climate change by
driving cars, heating houses or purchasing certain products and yet, not
everyone is likely to be sued for it. Admittedly, some entities emit a great
deal more greenhouse gases than others but how does one attribute the
plaintiff’s harm caused by climate change to a given emitter? The fact that
emitters are located the world over seems to aggravate the problem.
Overall, domestic courts have not extensively addressed the question of
attribution to a defendant of (a proportion of) harm caused by anthropo-
genic climate change. However, should climate change plaintiffs overcome
standing and causation obstacles, attribution issues are likely to arise in
determining the proportion of harm defendants should be held responsible
for and whether and to what extent they should bear the costs. At present,
it is not clear how American courts or courts in other jurisdictions will go

about apportioning liability between multiple contributing sources given

the historico-geographical dimension of the problem.
As we saw earlier, the plaintiffs’ claim in California v General Motors
Corporation halted in the early procedural phases and was dismissed on
the grounds of non-justiciability of political questions. However, the court
indicated that the causal link between the actions of the defendants and
the climate change-induced harm caused to the plaintiffs would be difficult
to prove and raised a related question of attribution:
The Court is left without guidance in determining what is an unreasonable con-

tribution to the sum of carbon dioxide in the Earth’s atmosphere, or in deter-
mining who should bear the costs associated with the global climate change
that admittedly result from multiple sources around the globe.52 [emphasis added]
The court noted the global nature of the climate change phenomenon
and seemed to indicate that it would find it difficult to attribute to any
particular defendant the harm caused by climate change. The court added
that it had no way of discerning the contributors to the alleged nuisance of
global warming as there were ‘multiple worldwide sources of atmospheric
warming across myriad industries and multiple countries’.53
The Kivalina court made similar observations and admitted that since
‘virtually everyone on Earth [was] responsible’ for greenhouse gas emis-
sions, the plaintiffs were in effect asking the court to make ‘a political judg-
ment that the two dozen Defendants . . . should be the only ones to bear
the cost of contributing to global warming’.54 It went on to add that ‘the
allocation of fault – and cost – of global warming is a matter appropriately
left for determination by the executive or legislative branch’.55 Essentially,
attribution of fault is a matter to be decided at the merits stage of the pro-
ceedings. It is interesting to note that the court made its attribution-related
observations under its political question doctrine analysis approaching the
question of attribution from the initial policy determination angle.
3.5 Retroactivity
Another important issue likely to pose difficulties in climate change law-

suits is that of retroactivity, i.e. finding a defendant responsible for past
emissions released at the time when climate change was not high on the
international political agenda and before the United Nations Framework
Convention on Climate Change (UNFCCC) came into existence. As is
the case with attributability, retroactivity has not been explicitly dealt
with by domestic courts. It is not clear how past emissions should be
tackled as indeed it would be unreasonable to hold emitters liable for

emissions released before climate change science made its discoveries. In

1992 the framework agreement to reduce greenhouse gas emissions was
concluded and from that point on, the adverse effects of climate change
have been clearly identified. It has therefore been proposed to consider
1992 as a cut-off date for apportioning responsibility for climate change-
related damage.56 Another option would be to use 1994 – the date of the
UNFCCC’s entry into force – as a cut-off date.
The phenomenon of cut-off dates is not new and the US tobacco cases
may provide helpful insight into the matter. In 2006, the Supreme Court
of Florida decided Engle v Liggett Group, a case arising from a smokers’
class action lawsuit seeking damages against cigarette companies for
smoking-related injuries. The court ruled that since the class could not be
open-ended, a cut-off date for class membership was in order and ruled
that ‘the date of the trial court’s November 21, 1996, order that recerti-
fied a narrower class [was] the appropriate cut-off date’.57 ‘It was with this
November 21, 1996, order that the circuit court first ordered that notice
to potential class members be published in newspapers and magazines
circulated in Florida.’58
Regardless of whether or not a cut-off date for climate change liability
is set, at least some degree of retroactive liability may be inevitable. It
remains to be seen whether and how the courts will resolve this difficulty.
4. CONCLUSION: CLAIMS FOR COMPENSATION

IN OTHER JURISDICTIONS?
As we have seen, no US compensation claim has been successful and it

is unlikely that the Comer case, recently remanded to the district court
for further proceedings, will become an exception due to enormous evi-
dentiary challenges in proving causation on the merits. However, the US
experience in litigating compensation claims can offer certain lessons for
other jurisdictions.
First, the political question doctrine – one of the main obstacles facing
climate change plaintiffs in the United States – may not be as problematic
in other jurisdictions. The political question doctrine derives from the
principles of the separation of powers inherent to the American political
structure and is characteristic of US law. In other jurisdictions it may not
be necessary to demonstrate that the question before the judge is one for
the judiciary, and not for the legislative or executive branches of govern-
ment, to enable the court to adjudicate it.
Second, while the threshold requirement of standing is not unique to the
United States, climate change plaintiffs in other jurisdictions may find it

easier to establish. The Article III standard derives from the US Constitution
and its testing elements developed in American case law. Plaintiffs in other
jurisdictions may not be required to allege injury, causation, as well as
redressability for the court merely to accept jurisdiction to hear a claim.
Third, while causation-on-the-merits in a climate change case would
have to be established in any jurisdiction, applicable rules differ from
country to country. As regards the United States, case law does not offer
much guidance as to date no compensation claim has been argued on the
merits and no court has expressed its opinion on causation at the merits
stage of the proceedings. However, under the US Restatement (Second)
of Torts, the alleged tortious conduct has to be a ‘substantial’ factor in
the occurrence of the plaintiff’s harm and ‘reasonable men’ would have to
‘regard it as a cause’.59 Other jurisdictions have approaches to causation
different from the proximate cause standard used in the United States.
Fourth, the issue of attribution is likely to arise in other jurisdictions as
well as in the United States due to the fact that climate change is a global
phenomenon with a great many contributors and it is difficult to attribute
the harm suffered by the plaintiff as a result of climate change to a given
emitter. At the moment, US case law is not very helpful as attribution is a
matter to be determined on the merits.
Fifth, retroactivity, too, will likely pose problems if a climate change-
related compensation claim is brought outside the United States. The US
courts have not tackled the issue with regard to climate change. However,
since the current level of GHG concentration in the atmosphere is a cumu-
lative result of historic emissions, it would have to be determined from
what point in time the emissions from a given source are to be considered
for liability purposes.
It remains to be seen whether compensation claims in any jurisdiction
have any future in the climate change context. Given the plaintiffs’ failure
in every action for damages launched in the United States thus far, it is
unlikely that a climate change-related compensation claim be successfully
brought in a jurisdiction in or outside of the US any time soon.
NOTES
1. The present chapter is an updated version of the author’s contribution to Kansen voor
het Omgevingsrecht. Opstellen aangeboden aan prof. mr. N.S.J. Koeman (M.N. Boeve en
R. Uylenburg, redactie), pp. 203–216, Groningen: Europa Law Publishing 2009.
2. E.g. Grossman [2003], p. 58 (it may be possible ‘to establish the basis for a damage
award in a public nuisance suit’); Hsu [2008]; Posner [2007], p. 1928 (claims made in US
domestic courts that GHG emissions leading to climate change violate human rights
may result in American courts awarding damages to victims).

3. General Motors Corp.; Toyota Motor North America, Inc.; Ford Motor Co.,
American; Honda Motor Co., Inc.; Daimler Chrysler Corp.; and Nissan North
America, Inc.
4. California v General Motors Corporation, et al., Case No. C06-05755 MJJ, Order
Granting Defendants’ Motion to Dismiss (N.D. Cal. 2007), p. 2.
Granting Defendants’ Motion to Dismiss (N.D. Cal. 2007), pp. 1–2.
6. Mank [2005], p. 29.
Granting Defendants’ Motion to Dismiss (N.D. Cal. 2007), pp. 6–16.
9. Comer, et al. v Nationwide Mutual Insurance Co., et al., Case No. 1:05-CV-00436- LG-
RHW, First Amended Complaint, paras 30–32.
10. Comer, et al. v Nationwide Mutual Insurance Co., et al., Case No. 1:05-CV-436 LTD-
RHW, 2006 WL 1066645 (S.D. Miss. 2006).
11. Comer, et al. v Murphy Oil Co., et al., Third Amended Complaint (S.D. Miss. 2006).
12. Comer, et al. v Murphy Oil USA, inc., et al., Case No. 1:05-CV-436-LG-RHW, Order
Granting Defendants’ Motion to Dismiss (S.D. Miss. 2007), para. 1.
13. Comer, et al. v Murphy Oil USA, inc., et al., 2009 WL 3321493 (C.A.5 (Miss.)), p. 2.
15. Comer, et al. v Murphy Oil USA, inc., et al., 2009 WL 3321493 (C.A.5 (Miss.)), p. 5,
citations omitted.
16. Comer, et al. v Murphy Oil USA, inc., et al., 2009 WL 3321493 (C.A.5 (Miss.)), p. 6,
emphasis retained.
18. ExxonMobil Corporation; BP P.L.C.; BP America, Inc.; BP Products North America,
Inc.; Chevron Corporation; Chevron U.S.A., Inc.; Conocophillips Company; Royal
Dutch Shell PLC; Shell Oil Company; Peabody Energy Corporation; the AES
Corporation; American Electric Power Company, Inc.; American Electric Power
Services Corporation; DTE Energy Company; Duke Energy Corporation; Dynegy
Holdings, Inc.; Edison International; MidAmerican Energy Holdings Company;
Mirant Corporation; NRG Energy; Pinnacle West Capital Corporation; Reliant
Energy, Inc.; The Southern Company; and XCEL Energy, Inc.
19. Native Village of Kivalina v ExxonMobil Corp., et al., Complaint, Case No. 08-1138
(N.D. Cal. 2008), paras. 3–5.
20. Relief Requested in: Native Village of Kivalina v ExxonMobil Corp., et al., Complaint,
Case No. 08-1138 (N.D. Cal. 2008).
21. Native Village of Kivalina v ExxonMobil Corp., et al., 2009 WL 3326113 (N.D. Cal.),
p. 10.
p. 10, italics retained, citations removed.
p. 13, references omitted.
p. 4, references omitted.
25. Weinberg [2008], p. 156, citing Marbury v Madison, 5 U.S. (1 Cranch) 137, 166 (1803).
26. Weinberg [2008], pp. 156–157.
27. Baker v Carr, 369 U.S. 186 (1962), p. 188.
28. Baker v Carr, 369 U.S. 186 (1962), p. 217.
29. Weinberg [2008], pp. 163–164, citing Baker v Carr, 369 U.S. 186, 226 (1962).
30. Weinberg [2008], p. 155.
31. Daly [2010], p. 176.
32. Connecticut, et al. v American Electric Power Company Inc., et al, 2009 WL 2996729
(C.A.2 (N.Y.)).

33. Native Village of Kivalina v ExxonMobil Corp., et al., 2009 WL 3326113 (N.D. Cal.), p. 8.
34. Benzoni [2008], p. 347.
35. Mank [2009], p. 24.
36. Lujan v. Defenders of Wildlife, et al., 112 S.Ct. 2130 (1992).
37. Friends of the Earth, Inc. v Laidlaw Environmental Services, Inc., 120 S.Ct. 693 (2000),
p. 704, footnote omitted.
RHW, 2006 WL 1066645 (S.D. Miss. 2006).
39. Comer, et al. v Murphy Oil USA, Inc., et al., Civil Action No. 1:05-CV-436-LG-RHW,
Order Granting Defendants’ Motion to Dismiss.
40. For a detailed discussion of causation, see section 3.3.
41. Native Village of Kivalina v ExxonMobil Corp., et al., Complaint, Case No. 08-1138
(N.D. Cal. 2008).
42. Hsu [2008], p. 746.
43. Mank [2005], pp. 80–81.
44. Smith and Shearman [2006], p. 107.
RHW, 2006 WL 1066645 (S.D. Miss. 2006).
46. Comer, et al. v Nationwide Mutual Insurance Co., et al., Case No. 1:05 CV 436 LTD
RHW, 2006 WL 1066645 (S.D. Miss. 2006), p. 4.
p. 8, emphasis retained.
48. Smith and Shearman [2006], p. 107.
49. See IPCC Fourth Assessment Report.
50. E.g. see Gray v Minister for Planning and Ors [2006] NSWLEC 720; Walker v Minister
for Planning [2007] NSWLEC 741; Gippsland Coastal Board v South Gippsland SC &
Ors (No 2) (includes Summary) (Red Dot) [2008] VCAT 1545.
51. IPCC Fourth Assessment Report, Synthesis Report 2007, p. 37.
Granting Defendants’ Motion to Dismiss (N.D. Cal. 2007), p. 15, emphasis added.
p. 10.
55. Native Village of Kivalina v ExxonMobil Corp., et al., 2009 WL 3326113 (N.D. Cal.), p. 10.
56. Farber [2008], p. 32.
57. Engle, et al. v Liggett Group, Inc., et al., 945 So.2d 1246 (Fla. 2006), p. 1255.
58. Engle, et al. v Liggett Group, Inc., et al., 945 So.2d 1246 (Fla. 2006), p. 1275.
59. Restatement (Second) of Torts, § 431 cmt.a (1965).
REFERENCES
Benzoni, F. (2008), ‘Environmental standing: who determines the value of other

life?’, Duke Environmental Law and Policy Forum, 18, 347–370.
Daly, P. (2010), ‘Justiciability and the “political question” doctrine’, Public Law,
January, 160–178.
Farber, D. (2008), ‘Basic compensation for victims of climate change’,
Environmental Law Reporter News & Analysis, 38, 10521–10529.
Grossman, D.A. (2003), ‘Warming up to a not-so-radical idea: tort-based climate
change litigation’, Columbia Journal of Environmental Law, 28, 1–61.
Hsu, S.-L. (2008), ‘A realistic evaluation of climate change litigation through the
lens of a hypothetical lawsuit’, University of Colorado Law Review, 79, 701–766.

Mank, B.C. (2009), ‘Standing and future generations: does Massachusetts v. EPA
open standing for generations to come?’, Columbia Journal of Environmental
Law, 34, 1–97.
Mank, B.C. (2005), ‘Standing and global warming: is injury to all injury to none?’,
Environmental Law, 35, 1–84.
Pachauri, R.K. and A. Reisinger (eds) (2007), Climate Change 2007 Synthesis
Report, Geneva: IPCC (IPCC Fourth Assessment Report), available at http://
www.ipcc.ch/publications_and_data/publications_ipcc_fourth_assessment_
report_synthesis_report.htm, accessed on 26 January, 2010.
Posner, E.A. (2007), ‘Climate change and international human rights litigation: a
critical appraisal’, University of Pennsylvania Law Review, 155, 1925–1945.
Smith, J. and David Shearman (2006), Climate Change Litigation: Analysing the
Law, Scientific Evidence & Impacts on the Environment, Health & Property,
Australia: Presidian Legal Publications.
Weinberg, P. (2008), ‘“Political questions”: an invasive species infecting the
courts’, Duke Environmental Law and Policy Forum, 19, 155–164.
Table of Cases
Baker v Carr, 369 U.S. 186 (1962)

California v General Motors Corporation, et al., Case No. C06-05755 MJJ, Order
Granting Defendants’ Motion to Dismiss (N.D. Cal. 2007)
Comer, et al. v Nationwide Mutual Insurance Co., et al., Case No.
1:05-CV-00436-LG-RHW, First Amended Complaint (S.D. Miss. Sep. 30, 2005)
Comer, et al. v Murphy Oil Co., et al., Third Amended Complaint (S.D. Miss.
2006)
Comer, et al. v Nationwide Mutual Insurance Co., et al., Case No. 1:05-CV-436
LTD-RHW, 2006 WL 1066645 (S.D. Miss. 2006)
Comer, et al. v Murphy Oil USA, inc., et al., Case No. 1:05-CV-436-LG-RHW,
Order Granting Defendants’ Motion to Dismiss (S.D. Miss. 2007)
Comer, et al. v Murphy Oil USA, inc., et al., 2009 WL 3321493 (C.A.5 (Miss.))
Connecticut, et al. v American Electric Power Company Inc., et al, 2009 WL
2996729 (C.A.2 (N.Y.))
Engle, et al. v Liggett Group, Inc., et al., 945 So.2d 1246 (Fla. 2006)
Friends of the Earth, Inc. v Laidlaw Environmental Services, Inc., 120 S.Ct. 693
(2000)
Gippsland Coastal Board v South Gippsland SC & Ors (No 2) (includes Summary)
(Red Dot) [2008] VCAT 1545
Gray v Minister for Planning and Ors [2006] NSWLEC 720
Lujan v Defenders of Wildlife, et al., 112 S.Ct. 2130 (1992)
Marbury v Madison, 5 U.S. (1 Cranch) 137, 166 (1803)
Massachusetts, et al. v Environmental Protection Agency, Case No. 05-1120, 127
S.Ct. 1438 (2007).
Native Village of Kivalina v ExxonMobil Corp., et al., Complaint, Case No. 08-
1138 (N.D. Cal. 2008)
Native Village of Kivalina v ExxonMobil Corp., et al., 2009 WL 3326113 (N.D.
Cal.)
Walker v Minister for Planning [2007] NSWLEC 741

9. Civil liability for global warming in
the Netherlands
Chris van Dijk
1. INTRODUCTION
The climate on earth is determined to a great extent by the warmth of the

sun. Natural gases such as CO2, N2O, CH4, O3 and CFCs together form a
kind of blanket, which prevents a large part of this warmth received from
flowing back into space. Without this natural effect, the earth would be
about 34 degrees Celsius colder than it is now. More greenhouse gases in
the atmosphere means an increase of the temperature on earth.
In the past century, the temperature on earth has increased by an
average of 0.76 degrees Celsius. It is becoming ever clearer that this is
caused, at least to a considerable extent, by human emission of greenhouse
gases resulting from the combustion of fossil fuels, agriculture, stock
breeding and land use. Respected institutions such as the independent
Intergovernmental Panel on Climate Change (IPCC) are of the view that
if policies are not changed, disaster is looming on the horizon. The IPCC
is ever more insistent on this in its reports, which are published every few
years.1 In its report of February 20072 it concluded that, depending on
the measures to be taken, the earth will become 1.1 to 6.4 degrees warmer
and the sea level will rise 18 to 59 cm in the coming century. The scenarios
predicted are extremely threatening.3 For example, the availability of
water in most territories at average latitudes and in the dry tropical areas
could decrease by 10 to 30 per cent. On the other hand, the risk of flood-
ing could increase in other areas, like South East Asia. Furthermore,
forestry and agricultural production could decrease in the areas that are
already struggling with food shortages at the moment. The regions of
Africa, Asia and the small islands will be hit hardest. Furthermore, at an
average warming of the earth by 1.5 to 2.5 degrees Celsius, 20–30 per cent
of animal species are threatened with extinction.
The positive news of the IPCC is that, provided that effective action
is taken using the existing technical tools, it is possible to prevent the
disasters sketched to a large extent. An investment of approximately 3
206

Civil liability for global warming in the Netherlands 207
per cent of the worldwide GNP would provide a 50 per cent chance of a
warming of the earth by a maximum of 2 degrees Celsius (compared to the
pre-industrial era) until 2030, which is the maximum warming to cause no
more than limited damage.4
Naturally, these are predictions of which the outcomes are uncertain.
There are also scientists who believe that a relationship between global
warming and human activities has not been proven. After all, climate and
temperature have always fluctuated on earth. However, scientists who
believe that no relationship with human activities can be established are
becoming an ever-smaller minority. The IPCC represents the opinion
of the greater part of scientists throughout the world. It is important to
mention that the reports of the IPCC are prepared on the basis of consen-
sus. The texts are the subject of negotiations, which entails that the reports
will eventually reflect a moderate vision. This means that there are also
scientists who foresee a much blacker future still.5 Finally, it is relevant
that the IPCC uses a differentiated system in which the various predic-
tions/opinions are categorized according to their degree of likelihood. As
a result, much of the contents of the reports has a great degree of certainty.
For example, the chance that climate changes can be explained without
human activities is less than 5 per cent; on the other hand, the chance
that extreme heat waves and extreme rainfall will occur more often in the
future is more than 90 per cent.
‘Decision makers must realize that there are legitimate reasons to
believe in the apocalypse, and there is a chance that we may still be headed
for the disaster’, said Balling already by 1992.6 The dramatic consequences
that are predicted and the degree of certainty thereof make it impossible
to wait and see whether the predictions are correct. Still, it is doubtful
whether politicians and the businesses concerned will voluntarily take the
necessary measures. To date, states have not taken the necessary measures
in spite of international treaties and agreements. The Kyoto Protocol, for
example, has not been ratified by an important polluter like the United
States.7 Besides, there is reason to doubt the effectiveness of the actual
arrangements made in the Protocol.8 Directors of businesses are usually
held accountable over short periods of time, which practice may be on
strained terms with long-term measures that inevitably require big invest-
ments, without providing much certainty as to their benefits.9
If it is true indeed that the (main) polluters and countries do not (want
to) take the necessary measures, the question arises as to whether all that
the (potential) victims can do is to wait to see whether the catastrophe
predicted with a high degree of probability will actually happen. Since
this is not an appealing prospect, it is not surprising that legal options
for enforcing effective action are being considered more and more. In

countries like the United States, Canada, Australia and New Zealand, test
cases are already being conducted.10 For example, proceedings have or
are being conducted in the United States to force electric power stations
to make their production more environment-friendly.11 The automobile
industry has also been taken to court with a claim that it should produce
cars that pollute less.12 Government bodies may be summoned in order
to realize that they must take some responsibility.13 Because of the huge
legal complications and the many defences that may be put up, successes
have been modest to date, but that this will change in the future cannot
be excluded. It is possible to compare such cases with the claims against
tobacco producers, of which the chance of succeeding has long been
doubted.
Even if there is no legal success, the proceedings seem to be a power-
ful means of applying pressure.14 Proceedings that had been started (and
lost) by Canadian Inuit Indians seem to have had exactly that goal. By
the warming of the earth, this people’s living environment and way of
life is threatened with extinction. They petitioned the Inter-American
Commission on Human Rights for ‘relief from human rights violations
resulting from the impacts of global warming and climate change caused
by acts and omissions of the US’.15 However, this body does not have the
power to coerce decisions.
The first obvious thing to do in terms of legal action seems to concen-
trate on international public law and treaties that offer a basis for this.16
I refer to the article of Nollkaemper which shows that this is a trouble-
some road.17 I shall discuss the even larger problems that occur with
claims before civil courts, concentrating on the Netherlands in particular.
Furthermore, I shall deal with the question of who the claimants (and the
defendants) will be and whether they are able to demonstrate sufficient
interest in their claim. Possible hindrances will also be discussed, such as
the question of whether it does not concern purely political decisions that
the courts should not interfere with, and the requirement of relativity.
Furthermore, I will discuss the catches in the question of unlawfulness,
and the issue of causality – which may be the biggest stumbling block of
all for the assumption of liability. After having given an example of claims
with a higher chance of success, I shall complete this article by concluding
that the chance of a claim being allowed – in any case in the Netherlands
– is definitely small at the moment, but that this may change if insufficient
measures will continue to be taken and if the knowledge about global
warming and the consequences therefore will increase (which is speedily
anticipated).

2. LITIGANTS
It is possible to find potential claimants both nationally and interna-
tionally. If both the claimant and the defendant are covered by Council
Regulation 44/2001 on jurisdiction and the recognition and enforcement
of judgments in civil and commercial matters, the claimants may choose
whether they will litigate in the state where the damage has occurred or has
originated.18,19 According to Article 7 Council Regulation 864/2007 that
deals with environmental damage:
The law applicable to a non-contractual obligation out of environmental

damage or damage sustained by persons or property as a result of such damage
shall be the law determined pursuant to Article 4(1) [the place of damage –
author], unless the person seeking compensation for damage chooses to base
his or her claim on the law of the country in which the event giving rise to the
damage occurred.
If we look at legal proceedings in other countries, we see that they are

mostly conducted by interest groups like ‘The Friends of the Earth’. In
the Netherlands too such an organization could be a natural claimant,
provided, of course, that the Sections 3:305a ff. of the Dutch Civil Code
applying to collective actions are complied with.20 A foundation or asso-
ciation with full legal capacity can institute an action intended to protect
similar interests of other persons to the extent that its articles promote
such interests. According to legislative history, this concerns not only
financial interests:
The interests eligible for joining together in a collective claim may be financial
interests, but also interests of a more charitable nature. The action may defend
the interests that affect people directly or that people have taken to heart on
the basis of specific convictions. For more charitable interests it is not relevant
that not every member of society attaches the same value to these interests. The
interests they wish to defend through the action may even clash with the ideas
and opinions of other groups within society. This fact alone will not preclude a
collective action. However, one must bear in mind that the claim being admis-
sible does not yet say anything as to whether it is allowable. The action may fail
because of the consideration that the interests of unrepresented other groups
cannot sufficiently be taken into account in the formation of an opinion. . ..21
It may be a problem for the allowance of a claim that environmental issues

often involve conflicting interests, for example, the economic interest of
the European automobile industry in not having to comply (yet) with the
stricter CO2 requirements of the European Union that will take effect from
2012. In that year, a car will only be allowed to emit 120 grams of CO2 per
kilometre. Spier considers it ‘not implausible that in the clash with ideas

and opinions of other parts of society, the Minister (partly) had in mind
opinions that cannot be respected at law or conspicuous less compelling
interests’.22 With a reliance on legislative history, he arrives at the conclu-
sion that ‘similar interests’ in Section 3:305a of the Civil Code do not
have to preclude a (successful) claim with regard to an activity with an
environmental impact, of which the consequences are only noticeable to
future generations.
Furthermore, it must be borne in mind that a collective action allows
only for a limited number of claims to be instituted. It is possible to claim
a declaratory judgment that an unlawful act has been committed, but not
that damages should be paid in cash or that a certain party is individually
liable for damages.23 An order or prohibition may be claimed, and also –
according to Spier, who uses rather convincing arguments – a ban on exces-
sive emission and an order to take measures to prevent such emission.24
Apart from interest groups, individuals have also brought claims in
foreign countries, for example because their areas situated at a low level
threatened to be inundated (and could therefore already have decreased
in value).25 However, such claims will mostly fail due to a lack of means,
interest or concrete damage.
Furthermore, a possible claimant may be a foreign power where the
damage will occur or already seems to be occurring for the most part. A
possible example are the small Himalaya states that are faced with quickly
filling lakes because of the melting of glaciers, carrying the risk of GLOFs
(Glacier Outburst Floods), which may cause enormous damage. It is pos-
sible to imagine that these states might wish to charge at least the costs of
prevention to the polluters. Another example is countries facing extreme
flooding.26 However, it is obvious that states will in principle litigate on the
basis of international public law. The grounds for action will then be the
non-performance of treaties by other states.
The State of the Netherlands is also a possible claimant. If I look at
the claims brought in the United States, I see that states regularly act as
the claimant. For example, the claim against the automobile industry was
brought by the State of California.
Finally, I refer to the hope among environmentalists that insurers too
will be willing to join the battle. The insurance and reinsurance sector is
becoming ever more conscious of the fact that climate change may have
far-reaching consequences for the level of insurance payments as a result
of natural disasters, which cannot be solved by raising contributions in the
short term.27 This hope could be false, because insurers insure the liability
of the polluters as well. Arguably, that makes insurers reluctant to join the
battle.
The defendants are mostly to be found among the large industrial

polluters and (parts of) the state. As indicated above, actions have been
brought against electric power companies and the automobile industry
in the United States. The action of the Commonwealth of Massachusetts,
et al. v. EPA (the Environmental Protection Agency) and the ruling
given by the Supreme Court is also worth mentioning.28 This concerns a
‘Petition for Rulemaking and Collateral Relief Seeking the Regulation of
Greenhouse Gas Emissions for New Motor Vehicles under Par. 202 of the
Clean Air Act’. The EPA denied having the power to do so because it did
not regard CO2 as an environment-polluting substance within the meaning
of that Act. The Supreme Court held that the EPA was mistaken, and
that the EPA ‘has offered no reasoned explanation for its refusal to decide
whether greenhouse gases cause or contribute to climate change’.
3. INTEREST IN THE PROCEEDINGS AND

DEFENDING THE RIGHTS OF FUTURE
GENERATIONS
The requirement that claimants must have sufficient interest in their claim
may be a big stumbling block for them. Pursuant to Section 3:303 of the
Dutch Civil Code, a person has no right of action where he lacks sufficient
interest. The Dutch Supreme Court has decided that a purely emotional
interest cannot be regarded as a sufficient interest.29 Besides, a claim has to
be sufficiently concrete. In the words of Stolker:
If it appears already in advance that the acts are described such that they are
not unlawful in or under all circumstances, and the question of whether they
are unlawful cannot be examined on the basis of the circumstances of the case,
other than in the case of acts performed in the past, a declaratory judgment is
not sufficiently concretely described, and the claimant’s claim must be declared
inadmissible.30
With regard to future situations, the interest has to be a concrete interest

with a real threat that, for example, the acts on which a ban is claimed will
be carried out. In such cases the courts should be reticent, especially when
it comes to politics.31
Many claims will concern damage that has not been suffered (yet) and
of which it is not certain whether and how it will be suffered. It is as good
as certain that human activities cause global warming, but it is much less
certain what the exact consequences thereof will be and where the damage
will occur. It is not yet possible to establish a link between specific natural
disasters and global warming.
It is relevant to the question of sufficient interest to what extent legal

actions in defence of future generations are possible. The problem is that

if we were to leave it to future generations to bring their own claims, the
irreparable damage may already have been done. A claim from people who
are then under water, or left without water, is not very attractive.32 In the
context of civil actions, a supporting argument for claims for the benefit of
future generations may be found in non-applicable international conven-
tions that recognize the importance of future generations. For example, I
refer to Article 3.1 of the UN Framework Convention of Climate Change
(FCCC), which mentions protection of the climate explicitly for ‘the
benefit of present and future generations’. Finally, I would like to quote the
following from a ruling of the Philippine Supreme Court of 30 July 1993:
We find no difficulty in ruling that they [the claimants – author] can, for them-
selves, for others of their generation and for the succeeding generations file a
class suit. Their personality to sue on behalf of the succeeding generations can
only be based on the concept of intergenerational responsibility in so far as the
right to a balanced and healthful ecology is concerned. (. . .) Needless to say,
every generation has a responsibility to the next to preserve that rhythm and
harmony for the full enjoyment of a balanced and helpful ecology.33
Although there are good arguments why future generations cannot be

left to their own devices, and current generations must be given the right
to stand up for future generations also, I do not think such a claim will be
allowed quickly in the Netherlands. But perhaps a way out of this can be
found by letting a very young child act as a claimant; according to predic-
tions, the damage will occur in any case during this child’s lifetime.
4. THE PRIMACY OF POLITICIANS
As a defence against a claim to realize more (general) regulations, the state

will argue that the answer to the question as to which measures a country
should take against global warming fall within the political domain, and
that the courts should not interfere with it. This defence has caused claims
to fail in various countries. In the case Connecticut v. American Electric
Power Company34 it was claimed to force electric power companies to
make their production more environment-friendly. The US District Court
for Southern District of New York ruled on 15 September 2005:‘cases
presenting political questions are consigned to the political branches that
are accountable to the People, not to the Judiciary, and the Judiciary is
without power to resolve them. This is one of those cases.’35,36 The Court
of Appeals reversed the district court’s decision on 21 September 2009 and
held that each category of plaintiffs has clear standing to bring the lawsuit.

In the Netherlands too the political domain issue seems to be a powerful

defence. The Supreme Court has ruled that the judiciary cannot order the
creation or the withdrawal of (formal or material) legislation. The division
of powers over the various bodies of the state, based on the Constitution,
entails that the judiciary is not in a position to interfere in the procedures
of political decision-making and weighing of interests.37 This is not even
otherwise if the result to be achieved through legislation, and the term
within which it must be achieved, are enshrined in a European Directive.38
The problem with such a claim is, among other things, that it is intended
to create a rule with general validity, also for others than the parties to the
action, which is precisely a prerogative of politicians.
Claimants will be wise to take this into account when they formulate a
claim against the state, and not to bring any actions claiming an order to
create specific general regulations. Of course, other kinds of claims may be
brought, and the argument that politicians have the primacy will be less
forceful in that case. I refer to a ruling of the European Court of Human
Rights in the Taskin et al. v. Turkey case, in which the ECHR considered
the following:39
119 Where a state must determine complex issues of environmental and eco-
nomic policy, the decision-making process must firstly involve appropriate
investigations and studies in order to allow them to predict and evaluate in
advance the effects of those activities which might damage the environment and
infringe individuals’ rights and to enable them to strike a fair balance between
the various conflicting interests at stake (. . .). The importance of public access
to the conclusions of such studies and to information which would enable
members of the public to assess the danger to which they are exposed is beyond
question. (. . .) Lastly, the individuals concerned must also be able to appeal to the
courts against any decision, act or omission where they consider that their inter-
ests or their comments have not been given sufficient weight in the decision-making
process [added by author].
I do think that in a claim against a state because of its freedom of policy and
assessment, a test of reasonableness is likely to be carried out. Such a test
will not seek to establish whether a different decision would have been better
judging with hindsight, and whether this could have prevented damage, but
whether under the circumstances and with the knowledge of that time the
state has reasonably been able to arrive at the relevant decision.
5. NEGLIGENCE
In civil court cases, a claim will in principle have to be based on an attrib-

utable unlawful act. It will mostly concern the answer to the question of

whether there has been an act or omission in conflict with the rules of
unwritten law that are considered to be acceptable in social and economic
life. Conflict with a standard of due care is included in the latter category.
This means that the Kelderluik Criteria – which may also be used in public-
law relations to test whether a standard of due care has been violated40 –
will play a prominent role. These criteria concern (1) the nature and scope
of the damage, (2) the degree to which the damage was known and foresee-
able, (3) the nature of the defendant’s act (or omission), and (4) the cum-
bersomeness of taking precautionary measures that could have prevented
the damage.41 These are communicating vessels. For example, creating a
small chance of damage may be unlawful if the potential damage is very
big.42
In many respects parallels may be drawn between claims that are based
on global warming and the well-known tobacco and asbestos cases.
Similar aspects like knowledge of and scientific uncertainty about the
dangers, their scope, causality and alternative causes play a part. The
defences will also be partly identical.43 They may even be compared to the
engagement, for commercial reasons, of pressure groups that create doubt
about (back then) the dangers of asbestos/tobacco, and (at present) the
dangers involved in global warming.44
First of all, we have to face the fact that liability based on fault is
the starting point, and that the party sued can only be required to take
measures starting from a time when the danger is knowable. Just as with
asbestos, I assume that the requirement of being known will be objectified
by the court, in the sense that it concerns not only dangers the party sued
actually knows, but also the dangers he could and should reasonably have
known in view of the state of the art (at the time). Just as in asbestos cases,
large polluters or the state may be required to perform research into the
dangers of greenhouse gases and to seek advice from experts. Knowledge
from beyond the Netherlands will also be relevant here.45
Furthermore, the moment when action may be required is important.
The test used in asbestos cases seems to be usable here too. What should be
looked at is the degree of certainty in science (at the time) about the con-
nection with the emission of greenhouse gases and the facts known about
the seriousness of the danger. Subsequently, it will be necessary to take
into account some lapse of time that will be required for research into, for
example, alternative, cleaner, production methods.46
Similar defences as have been used in the asbestos cases will also be
relied on in the present context: there is no connection between the emis-
sion of greenhouse gases (at least by the defendants) and global warming;
the defendants were not aware of the dangers; the emission of greenhouse
gases is a necessary by-product of an otherwise useful activity (for example

energy generation); there is no (commercially feasible) alternative for the

production method; and the defendants are in full compliance with gov-
ernmental regulations, etc.47
Almost every point of view mentioned above will create great problems
in greenhouse gas cases. The mere fact that conduct creates a danger to
others, and that this danger manifests itself in the shape of damage, still
does not make such conduct unlawful. In order for it to be unlawful there
has to be a foreseeable danger to third parties, and foreseeability has to be
big enough to disapprove of the conduct.48
As of when is it possible to say that (large) polluters had to be aware of
the harmful effect of greenhouse gas emission? Although as early as 1896
Swedish scientist Svante Arrhenius wrote ‘On the influence of carbonic
acid in the air upon the temperature of the ground’,49 and in 1956 the
New York Times headlined: ‘Warmer Climate on the Earth May Be due
to More Carbon Dioxide in the Air’, the idea that human actions were
responsible for global warming has long been controversial. Even today,
not all scientists by far are convinced of this. Nevertheless, this battle
seems to have more or less been fought now. The reports of the IPCC
seem to represent the opinion of an overwhelming majority of the scien-
tific world. On the basis of the recent IPCC of this spring, I am inclined to
think that today, the defence of being unaware of the dangers involved in
greenhouse gases emissions is at least no longer strong. Although caution
is in order for liability with retroactive effect, the argument seems defen-
sible that such awareness should already have been assumed since 1990,
when the Intergovernmental Panel on Climate Change pointed it out in
its report of that year.50 The principle of precaution could also be useful
here, which plays an ever greater role in national and international envi-
ronmental law. For example, I refer to principle 15 of the Rio Declaration
on Environment and Development of Human Beings (1992):
In order to protect the environment, the precautionary approach shall be

widely applied by States according to their capabilities. Where there are threats
of serious or irreversible damage, lack of full scientific certainty shall not be
used as a reason for postponing cost-effective measures to prevent environmen-
tal degradation.
The principle of precaution is also set out in Article 174(2) of the EC

Treaty and Article 3.3 of the United Nations Framework Convention on
Climate Change. The parties should take
(. . .) precautionary measures to anticipate, prevent or minimize the causes

of climate change and mitigate its adverse effects. Where there are threats of
serious or irreversible damage, lack of full scientific certainty should not be used

as a reason for postponing such measures, taking into account that policies and
measures to deal with climate change should be cost-effective so as to ensure
global benefits at the lowest possible cost.51
Although these treaties cannot apply in civil proceedings, they may serve
as a mirror to the court.52
The assumption that there is harmful emission by humans and that pol-
luters are aware of this is only a small step on the thorny road to liability.
After all this only serves to establish that the overall worldwide human
emission of greenhouse gases is too high and has harmful effects. It does
not mean in the least that the polluter who is sued can foresee that his
emission results in damage to third parties, and that this foreseeability is
so great that he should therefore either give up or decrease the emission.
With the exception, perhaps, of the very large polluters who contribute
substantially to worldwide emission – of which there are hardly any in the
Netherlands – an obvious defence seems to be that their limited emission
does not carry any relevant weight for the greenhouse effect. Furthermore,
unlike in countries that are obliged pursuant to the FCCC since 1990 to
register and report their emissions, data of individual polluters will hardly
be available. Another relevant argument is that greenhouse gases, once
emitted, remain present for a very long time – up to between 100 and 200
years in the case of CO2 – so that a cumulative effect is created. If one were
to assess current emitters’ liability pro rata of their current emission of
greenhouse gases without taking into account that there has already been
relevant emission in the past (by others) they would de facto be held liable
for more damage than they can have caused.53
A court will not assume lightly that the foreseeability of the harmful
effect of the emission is so great for a specific polluter that he should give
up this conduct, also because many (large) polluters fulfil an acknowl-
edged useful function in society, such as electric power plants or car manu-
facturers. It will be easier to entice a court to this conclusion if claimants
can come up with realistic, commercially feasible alternatives by which
the emission of greenhouse gases is reduced. For example, the claimants
in Connecticut et al. v. American Electric Power Company argued that the
defendants could substantially reduce the CO2 emission without a signifi-
cant increase of the electricity costs, by using wind and solar energy among
others. Against the automobile industry as defendant the argument could
be used that Japan proves that the technical means exist to produce more
environment-friendly (hybrid) cars, and that SUVs – which are said to
command in 2007 15 per cent (!) of the European market – are too pollut-
ing. Nevertheless, I cannot rule out that such arguments will be too simple.
Courts will rightly be very reluctant to issue orders to start producing in

different ways. If any chance of success is to be achieved, very convincing

scientific research will have to prove that alternatives are realistic.
Because of the ever-present great uncertainty surrounding greenhouse
gases and global warming, the ‘state-of-the art’ argument will also be a
fearsome defence, and this argument will partly determine what the pol-
luter was or should have been aware of and which measures he should
have taken. Once this obstacle has been overcome, the mere custom or
acceptance in society of a certain way of producing, or the fact that all
government regulations have been complied with, will no longer suffice to
escape liability.54
The foregoing makes clear that it is not an easy job to establish an
unlawful act on the ground of liability based on fault. It is therefore
appropriate to refer also to Directive 2004/35/CE of the European
Parliament and of the Council of 21 April 2004 on environmental liability
with regard to the prevention and remedying of environmental damage.
The objective of this Directive is to establish a common framework for
the prevention and remedying of environmental damage based on the
‘polluter pays’ principle. Pursuant to Article 5 of the Directive, the pol-
luter must take preventive action where environmental damage has not
yet occurred but there is an imminent threat of such damage occurring.
Article 6 concerns remedial action to be taken. As Faure and Nollkaemper
write, this Directive could play a role in certain cases.55 The Directive dis-
tinguishes between (a) environmental damage caused by any of the occu-
pational activities listed in Annex III, and to any imminent threat of such
damage occurring by reason of any of those activities; and (b) damage
to protected species and natural habitats caused by any occupational
activities other than those listed in Annex III, and to any imminent threat
of such damage occurring by reason of any of those activities, whenever
the operator has been at fault or negligent.56 In the former case there is
strict liability of the operator and in the latter case there is liability based
on fault. Annex III covers among other things the operation of installa-
tions subject to permit in pursuance of Council Directive 96/61/EC of 24
September 1996 concerning integrated pollution prevention and control.
Emitters of greenhouse gases may be among them. Without being able to
elaborate further on it, I do wish to point out that Directive 2004/35/EC
relates only to the environmental damage specified in Article 2(1), namely
damage to protected species and natural habitats, water damage and land
damage. Problematic is too that the Directive excludes damage with a
diffuse character. Damage because of global warming could well be such
a type of damage.

6. REQUIREMENT OF RELATIVITY
Another defence the claimants could be confronted with is that the
standard breached does not serve to protect against damage such as that
suffered by the person suffering the loss (Section 6:163 of the Dutch Civil
Code). In its judgment in the Duwbak Linda case, the Dutch Supreme
Court held that whether the requirement of relativity has been fulfilled
depends on ‘the purpose and purport of the standard breached, on the
basis of which it must be examined to which persons and to which ways of
occurrence of damage the protection intended therewith extends.’57 This
case concerned the question of whether the State could be held liable for
the defective performance of an inspection required by law of a ship. The
claim was denied because
it had to be concluded that the obligation arising from the general responsibil-
ity of the State for safe shipping traffic to practise due care in the inspection of
ships with a view to the issue or renewal of a test certificate does not have the
purport of protecting an unlimited group of third parties against the financial
loss that may arise in ways often unforeseeable in advance, because the faulti-
ness and unsafety of the ship has wrongly not been discovered in the inspection
performed by or under responsibility of the State.58
In the judgment in Nederlandsche Bank/Vie d’Or59 of 13 October 2006,

attorney general Timmerman observed in his conclusion (paragraph 4.8)
with a reference to the case of State v. Shell:60
the less foreseeable the kind of damage, and the less definite the group of
persons who may potentially be affected, the more critical it should be reviewed
if the requirement of relativity has been fulfilled. After all it is the objective of
the requirement of relativity to prevent an obligation to compensate a loss that
cannot be foreseen by the causer from being assumed.
To me it seems obvious that claims connected to global warming will be

reviewed critically by the courts, in order to answer the question whether
the damage was not foreseeable by the causer. Since such claims will
mostly be based on Section 6:162 of the Civil Code, one could say that the
requirement of relatively is as it were taken into account in the question of
whether acts have been performed without due care. The Supreme Court
wrote in ground 3.8 of State v. Shell,
If he breaches another person’s interest which he should not have taken heed
of, this means that the requirement of relativity has not been fulfilled, so that it
is possible to state that the perpetrator has not acted unlawfully vis-à-vis that
other person; one might just as well, or even better, say that the perpetrator (to
that extent) has not acted unlawfully (cf. HR 27 January 1984, NJ 1984, 536).

In this respect there is close coherence between unlawfulness and requirement

of relativity.
7. CAUSAL LINK61
In the foregoing I named but a few of the various points of view that play
a role in the response to the question about unlawful behaviour. Many
problems associated with arriving at such an answer are linked to the state
of science and the lack of certainty (still) existing about global warming.
The same problem occurs if a causal link has to be established between
greenhouse gases and damage.
It cannot be ruled out that a court will want to assume that greenhouse
gases emitted by man cause damage in general, or at least that they render
the chance of such damage in the future considerable. The reports of the
IPCC seem to offer a good basis for this – the courts often have to deal
with far more inferior expert reports – and seem to be sufficient to place
the burden to prove the opposite on the defendants. However, that there
is damage in general fails to answer the question of what causes specific
damage, and whether the emission of the specific defendant has played a
relevant role in that. According to the IPCC, the frequency and seriousness
of hurricanes has considerably increased as a result of global warming.
The same goes for (the risk of) droughts and floods. However, such phe-
nomena are also occurring without global warming. A defendant cannot
be held liable for this background risk. Science is not capable (yet) of
establishing a link between specific damages and global warming, so that
the claimant will usually not be able to prove that his particular damage
was caused by the particular defendant. He will already stumble over the
sine qua non requirement. The judgment of the Bundesgerichtshof in a
case in which the owner of a forest claimed that the authorities had taken
insufficient measures against acid rain may serve as an illustration. The
Court held that the damage could not be individualized, and it was impos-
sible to ascertain which polluter had caused the damage.62,63
There is also no comfort in Section 6:99 of the Civil Code
Where the damage may have resulted from two or more events, for each of
which a different person is liable and it has been established that the damage
has arisen from at least one of these events, the obligation to repair the damage
falls upon each of such persons, unless one proves that this is not the result of
an event for which he is liable.
For this reason alone the damage does not have to have occurred by
human global warming, and (each of) the defendants cannot have caused

the full damage. The specific context of the DES judgment, in which the
greatest number by far of the potential causers of the damage had been
summoned and in which the defendants were held liable, unless the con-
trary were proved, for (potentially) more than they could have caused, is
also not present here.64
If one wishes to receive compensation, one will have to abandon the
requirement that claimants must demonstrate the sine qua non connec-
tion. This could be done by taking the very drastic decision to reverse
the burden of proof as far as the causal link is concerned, based on an
advance assumption that this causal link exists. Although some voices
speak in favour of this,65 the consequences would be so far-reaching that I
do not consider it likely to happen. A more realistic approach seems to be
to assume a market share liability (a proportionate liability) depending on
the contribution of the summoned polluter.66 However, the Supreme Court
has ruled that the chance may not be too small to arrive at proportionate
liability. In its ruling of 31 March 2006 – in which the proportionate
approach was accepted in employer’s liability – the Supreme Court held
(ground 3.13): ‘If it should then be judged that the chance is very small,
it will in general be obvious for the court to deny the claim.’67 In this con-
nection we may also refer to the Principles of European Tort Law, which
do accept proportionate liability, but not if there is no sufficient basis for
a good division.68 On a worldwide scale for small polluters the chance of
causing damage will be too small to arrive at proportionate liability. It is
somewhat easier for big polluters. A relatively small number of businesses
are said to be responsible for 80 per cent of worldwide CO2 emission, and
one company even responsible for 5 per cent.69 Furthermore, the (large)
industrial countries in Europe, Asia and North America (registered neatly
per country) account for the largest share by far of greenhouse gases
emission.70
Tackling the problems of a causal link, which obviously exist, could
also be tried, by means of the theory of the loss of a chance. This theory is
sometimes applied in cases where there is a permanent substantial doubt
about the sine qua non link between an error and damage. The damage is
then attributed – and calculated – pro rata of the chance that the damage
was caused by the incident in dispute. In this approach, the standard
applied is not the final damage, but the potential damage. Where the sine
qua non link between the error and the final damage is uncertain, this
connection with potential damage is certain. However, even if this theory
is applied it will be necessary to establish a (sufficiently big) chance with a
sufficient degree of certainty.71
Without being able to elaborate further here, I finally point out that
damages may still fall through because of the requirement that they are

only eligible for compensation if they are related to the event giving rise
to the liability of the obligor, which, having regard to the nature of the
liability and of the damage also, can be attributed to him as a result of
such an event (Section 6:98 of the Civil Code). In view of all the other
problems this attribution question seems to me one of the lesser concerns
for claimants.
8. CLAIMS STANDING MORE CHANCE?
The establishment of a causal link between global warming and specific

damage is extremely problematic. What is more, the damage will mostly
occur in the future. For this reason alone claims for compensation of
specific damage seem to stand little chance at the moment. A claim for an
injunction or an order seems to be more likely to succeed, because it is not
subject to the constitutional requirement that the damage has already been
incurred.72 For example, the Victorian Civil and Administrative Tribunal
ruled in 2004 that the Australian minister had to take into account the
(increased) emission of greenhouse gases in his decision whether to allow
a new brown coal mine.73 In the United States, the case of Friends of the
Earth inc. v. Peter Watson et al. is notable. The defendants were the Export
Import Bank and the Overseas Private Investment Corporation, two
independent government bodies offering financial support (insurances and
loan guarantees) to overseas facilities that burn fossil fuels, without assess-
ing the project’s impact on global warming. Projects financed by them are
alleged to have accounted for 8% of global emissions in 2003. The claim-
ants used the National Environmental Policy Act, which they considered
applicable, to claim that in investment decisions by these organizations
the impact on the environment of the United States and global warming
should also be taken into account. On March 2007 the (federal) court
specifically granted legal standing for a lawsuit exclusively challenging
the federal government’s failure to evaluate the impact of its actions on
the Earth’s climate and US citizens. In February 2009 the lawsuit reached
a settlement. Under the settlement the Export Import Bank agreed to
develop a greenhouse gas policy and start considering carbon dioxide
emissions when evaluating fossil projects for investment. The Overseas
Private Investment Corporation agreed to set a goal of reducing by 20 per
cent the greenhouse gas emissions associated with projects it supports in
the next ten years.74,75
One could conceivably imagine the type of claim that could not easily be
dismissed by the court, for example a claim brought by a number of low-
lying municipalities or provinces that want to order the State to increase

the level of dykes and dunes, and at a faster speed than is happening now.
A growing number of leading experts find this urgently required, because
otherwise large parts of the Netherlands may be inundated within the fore-
seeable future. If this is true, and could be proven in court – which is not
an easy task, of course – then the ‘Kelderluik Criteria’ and a test of rea-
sonableness do not simply seem to preclude the assumption of an unlawful
omission by the State. Problems with the causal link are also less present
in such an action for an order.
9. CONCLUSIONS
According to science the world is heading for a disaster of unprecedented

proportions if effective measures are not taken soon against global warming
as a result of greenhouse gases emissions by humans. ‘Humanity is con-
ducting an unintended, uncontrolled, globally pervasive experiment whose
ultimate consequences could be second only to a global nuclear war’, said
the Conference Statement in 1988 in Toronto.76 Although there is still
no certainty about the consequences of global warming, the general con-
sensus about this in science is becoming ever clearer. Furthermore, the
Intergovernmental Panel on Climate Change thinks that the necessary
action is possible and financially feasible. Should the politicians and the pol-
luting businesses nevertheless fail to (continue to) do enough to prevent this
disaster, then much seems to speak in favour of legal action. However, a civil
claim has so many catches that the chances for most conceivable claims of
being allowed in the Netherlands, in the current state of law, is not very likely.
Claims with a higher chance of success relate to the request of an injunction
or an order to push back (excessive) emission or to take measures to prevent
possible damage in the future. In any case, potential defendants have some
cause to worry.77 In the light of the potentially incalculable damage and the
apparent fact that after a term of 10–15 years or more it can no longer be
prevented, the will and creativity of courts to allow different kinds of claims
as well may also change in the future. Much will depend on the advance of
science, and on whether it will be able to remove the uncertainties about
warming and establish links between specific acts and specific damages.
NOTES
1. Established in 1988 by the World Meteorological Organization and the United Nations
Environment Programme. Around 130 countries, including the United States, are
members.

2. Climate Change 2007: The Physical Science Basis, see www.IPCC.ch.

3. Climate Change 2007: Climate Change Impacts, Adaptation and Vulnerability, see
www.IPCC.ch.
4. Climate Change 2007: Mitigation of Climate Change.
5. See for an extensive discussion of the IPCC R. Verheyen, Climate Change Damage
and International Law: Prevention Duties and State Responsibility (2005) Leiden, the
Netherlands and Boston MA, Developments in International Law, Volume 54, pp. 17ff.
This proves that the IPCC keeps on the safe side when preparing its reports.
6. R.Balling, ‘The Heated Debate – Greenhouse Predictions versus Climate Reality’,
Pacific Research Institute for Public Policy, San Francisco, 1992.
7. Australia did not ratify the Kyoto Protocol until 3 December 2007.
8. See extensively R. Verheyen, above, note 5, pp. 108–125.
9. Incidentally, the argument that production with CO2 emission reduction is bad for
the economy is being disputed more and more; see inter alia the website of the Rocky
Mountains Institute about the replacement of oil by other sources of energy, www.rmi.
org and the Union of Concerned Scientists, www.ucsusa.org.
10. See ‘Liability for Climate Change-Related Damage in Domestic Courts: Claims for
Compensation’ (E. Kosolapova) and ‘Climate Change Litigation in the UK: its feasibil-
ity and prospects’ (G. Kaminskaitè-Salters) in this book.
11. Connecticut et al. v. American Electric Power Company inc. NO.04-CV-05669 US
District Court for Southern District of New York, 15 September 2005, decision Court
of Appeals on 21 September 2009, see www.pawalaw.com/cases/aep.php and www.
hhclimatechange.com/climatechange/2009/09/appeals-court-reinstates-climate-change-
injury-claims.html#more.
12. California v. Chrysler et al., case dismissed 17 September 2007 on the ‘political
question doctrine’ (it is for Congress, not the courts, to address the injuries that
California et al. experience from global warming), Appeal voluntarily dropped 19
June 2009, see www.globalclimatelaw.com/2009/06/articles/climate-change-litigation/
california-v-general-motors-state-moves-to-voluntarily-dismiss-climate-change-lawsuit-
against-major-automakers/.
13. Cases of a public law nature include Greenpeace Nederland and others v. Nuon (see
the ruling of the Council of State of December 2008, http://planetark.org/wen/50784);
Commonwealth of Massachusetts, et al. v. EPA (see the ruling of the Supreme Court
of 2 April 2007 (549 US 2007) and Friends of the Earth Inc. et al. v. Peter Watson et al.
US District Court, Northern District of California Civ. No. 02-4106); for more cases,
including in Australia and Canada, see J. Smith and D. Shearman, Climate Change
Litigation: Analysing the law, scientific evidence and impacts on the environment, health
and property, Presidian Legal Publications, Australia.
14. Another means of putting pressure could be the denial of coverage for certain activities
by insurers. This is already being considered; see ‘Advocaten pakken het broeikaseffect
aan’ [Lawyers Tackling the Greenhouse Effect] by J. Kamp in Ode afl. 87 and J. Smith
and D. Shearman ibid., p. 175.
15. See J. Smith and D. Shearman ibid., pp. 74–75, and for the ruling of 16 November 2006,
http://graphics8.nytimes.com/packages/pdf/science/16commissionletter.pdf.
16. See R.Verheyen, above, note 5, op. cit. and J. Spier ‘Legal aspects of global climate
change and sustainable development’ Barcelona 2006 Revista Para El Analysis Del
Derecho (http://www.indret.com/pdf/346_en.pdf.
17. P.A. Nollkaemper, ‘Internationale aansprakelijkheid voor klimaatverandering’,
Nederlands Juristen Blad (2007) 45/46, pp. 2873–2879.
18. See M. Faure and P.A. Nollkaemper ‘International Liability as an Instrument to
Prevent and Compensate for climate change’, 43 Stanford Journal of International Law
(2007), pp. 133ff.
19. See Article 2 (forum rei) and Article 5(3) that provides that a person domiciled in a
Member State may, in another Member State be sued ‘in matters relating tort, delict
or quasi-delict, in the courts for the place where the harmful event occurred or may

occur’; see M. Faure and G. Betlem ‘Applying national liability law to transboundary
pollution: some lessons from Europe and the US’ in: M. Faure and S. Ying, ‘China and
International Environmental Liability. Legal Remedies for Transboundary Pollution’,
Edward Elgar, Cheltenhan, UK and Northampton, MA, USA (2008) 3.3. Council
Regulation 44/2001.
20. According to M. Faure and G. Betlem (2008 5.2.) a non-Dutch NGO will have locus
standi before a Dutch civil court if the description of the purpose of the NGO does
match the interest that has been harmed, both in a geographical and in a functional
sense.
21. Dutch Lower House of Parliament, session 1991–1992, 22486 nr. 3, p. 23.
22. See his conclusion 4.11ff. with HR 8 June 2007, LJN BA2075.
23. HR 13 October 2006, JA 2007, 2 with note W. van Boom.
24. See note 19.
25. Inter alia Korsinsky/EPA, No. 5 (iv 859 2005 US Dist. Lexis 21778(S.D. NY. 29
September 2005).
26. See for these examples and others with a good elaboration, R. Verheyen, note 5,
pp. 279–330.
27. See about this J.Kamp, and J. Smith and D. Shearman, above, note 13, p. 175.
28. See note 12.
29. HR 9 October 1998, NJ 1998, 853.
30. (T&C BW), Section 3:303 BW, note 1.
31. HR 21 December 2001, NJ 2002, 217.
32. See J. Spier, above, note 16, pp. 7–9, who also gives other good reasons why litigation
cannot be left to future generations.
33. See for this ruling and other arguments: ‘Na ons de zondvloed? De positie van toe-
komstige generaties in het volkerenrecht’ [After us the deluge? The position of future
generations in international law], Nederlands Jur, The Hague (2006), N. Schrijver.
34. This claim was not a claim against the state.
35. See for a similar ruling: Albery-Speyer v. BP Oil Ltd (2 May 1980), discussed by
J. Smith and D. Shearman p. 90, unpublished.
36. Cf. the ruling of the European Court of Justice in the case Marcovic e.a./Italy no.
1398/03, summarized in NJB 2007, no. 536.
37. See HR 21 March 2003, NJ 2003, 691 with note Lower House of Parliament. See HR 1
October 2004, NJ 2004, 679 with note Lower House of Parliament.
38. This reticence with regard to acts by representative bodies is not to the same extent
applicable to acts of management, cf. HR 19 February 1993, NJ 1995.704, 2 with note
MS.
39. ECHR 10 November 2004, application no. 46117/99, discussed by Verschuuren, the
Influence of the ECHR on material environmental law in the Netherlands, preliminary
advice, VAR-reeks 132, The Hague 2004, pp. 253–311; see also the important environ-
ment ruling of the ECHR of 30 November 2004, NJ 2005.210 with note E.A. Alkema;
see also A. Boyle and M. Anderson, Human Rights Approaches to Environmental
Protection, Clarendon Press (1996).
40. HR 28 May 2004, NJ 2005, 2 with note CJHB.
41. HR 5 November 1965, NJ 1966, 136 with note GJS, and e.g. HR 7 April 2006, NJ
2006, 244; see about this and about the non-limitation of the Kelderluik Criteria, C.C.
van Dam ‘Aansprakelijkheidsrecht’, Den Haag (2000), no. 811 and C.C. Van Dam,
European Tort Law, Oxford University Press (2006), 1506-4.
42. An example thereof is the judgment of the Supreme Court, 29 November 2002, NJ
2003, 549.
43. Only the own fault defence seems to be hard to assert, since it will generally not be pos-
sible to hold the issue of greenhouse gases against the claimant in a relevant degree; see
J. Smith and D. Shearman, above, note 13, p. 95.
44. See J.Smith and D.Shearman, ibid., p. 79 and the sources mentioned there. If dis-
information is being spread deliberately – as has been assumed in the United States

regarding the dangers of smoking – this may of course be unlawful. I do not know
whether this is being done with regard to global warming.
45. Cf. (for asbestos) HR 06 April 1990, NJ 1990.573, 2 with note PAS.
46. HR 25 June 1993, NJ 1993, 686 with note PAS.
47. Cf. HR 2 October 1998, NJ 1999.683, 2 with note PAS.
48. See inter alia HR 9 December 1994, NJ 1996.403, 2 with note CJHB.
49. Philosophical Magazine, 41 (1896) 237.
50. See R.Verheyen, esp. above, note 5, pp. 17–34.
51. See ‘Liability with and Liability from the Precautionary Principle in Climate Change
Cases?’ (M. Haritz) in this book.
52. See P.A. Nollkaemper, ‘How Public (International) Environmental Law Can Furnish a
Rule of Decision in Civil Litigation’, 12 Tijdschrift voor Milieuaansprakelijkheid 3–11
(1998). Nevertheless there can be situations where norms of international law do clearly
play a role in transboundery liability suits, see Rb. Rotterdam 16 December 1983,
NJ 1984, 341 and HR 23 September 1988, ‘Tijdschrift voor Milieuaansprakelijkheid’
(Environmental Liability Review) 1989, 15–18; see M. Faure and G. Betlem ‘Applying
national liability law to transboundary pollution: some lessons from Europe and the
US’ in: M. Faure and S. Ying, ‘China and International Environmental Liability.
Legal Remedies for Transboundary Pollution’, Edward Elgar, Cheltenham, UK
and Northampton, MA, USA (2008), p. 2.3 MPDA Case: Direct application of
International law. Faure and Betlem conclude (2.4.) ‘Moreover, even though the deci-
sion of the district court of Rotterdam whereby a polluter was basically held directly
liable for violating international law may be debated, international law can of course
play another role in transboundary pollution disputes between individuals: it can be
used as an aid to interpret open norms in national law.’
53. See M. Faure and P.A. Nollkaemper, above, note 18, pp. 171–173.
54. See for asbestos HR 02 October 1998, NJ 1999.683, 2 with note PAS.
55. See M.Faure and P.A. Nollkaemper, above, note 18, 147–149.
56. Article 3 (1) under a and b of the Directive.
57. HR 7 May 2004, NJ 2006, 281, ground 3.4.1 with note Jac. Hijma.
58. Ground 3.4.2
59. JA 2007, 2.
60. HR 30 September 1994, NJ 1996.196, with note CJHB.
61. See J. Spier, above, note 16, pp. 9-10, R.Verheyen, above, note 5, pp. 248–265 and J.
Smith and D. Shearman, above, note 13, pp. 105–143.
62. BGHZ 102, 350; see also the Australian case Wildlife Preservation of Qld v. Min for
Environment & Heritage [2006] FCA 736; see J. Smith and D. Shearman, above, note
13, pp. 61–63.
63. See Cox v. Nationwide Mutual Insurance Co; Comer v. Murphy Oil (‘the Hurricane
Katrina Case’). The Court of Appeals found in its decision of 16 October 2009 that tort-
based global warming litigation against insurance, oil, coal, and chemical companies
presents justificable claims. On the issue of standing, the Court ruled that the plaintiffs
alleged an injury that was sufficiently traceable to alleged conduct of the defendants,
see www.globalclimatelaw.com/2009/10/articles/climate-change-litigation/fifth-circuit-
reverses-comer-joins-second-circuit-in approving-tortbased-climate-litigation/.
64. HR 9 October 1992, NJ 1994.535, 2 with note CJHB; see on this topic A.J. Akkermans,
‘Proportionele aansprakelijkheid bij onzeker causaal verband’ [Proportional liability
and an uncertain causal link], dissertation 1997, Tilburg, p. 73.
65. See the 2002 New Delhi ILA Declaration of principles of Int. Law relating to sustain-
able development, 4.2. under d: ‘in respect of activities which may cause serious long-
term or irreversible harm, establishing an appropriate burden of proof on the persons
carrying out (or intending to carry out) the activity’; see also R.Verheyen, above, note
5, p. 262.
66. See about this extensively A.J. Akkermans, above, note 64, and AG Hartkamp with
HR 9 October 1992, NJ 1994.535 with note CJHB.

67. RvdW 2006, 328.

68. See art. 3:105 and J.Spier, above, note 16, p. 9.
69. For this figure, J. Spier refers in ‘Legal aspects of global climate change and sustainable
development’ to (footnote 30) Burges Salmon LLP (2005).
70. See for figures the Climate Analysis Indicators Tool of the World Resources Institute,
http://cait.wri.org/.
71. See about this A.J. Akkermans, above, note 64, pp. 248ff.
72. This applies especially to claims of international law, in which one state sues another for
non-performance of conventional obligations.
73. Australian Conservation Foundation v. Minister for Planning, see J. Smith and
D. Shearman, pp. 59,60.
74. www.climatelaw.org.
75. See on the topic of standing also Cox v. Nationwide Mutual Insurance Co; Comer v.
Murphy Oil (‘the Hurricane Katrina Case’) and the decision of Court of Appeals of 16
October 2009 (note 60).
76. The changing atmosphere: Implications for global security, in 5 American University
Journal for Int’l Law & Policy (1990) 515.
77. M. Faure and P.A. Nollkaemper too point out that claims based on climate change
don’t have to fail in all cases, above, note 18, p. 177.

10. Will civil society take climate
changers to court? A perspective
from Dutch law
Phon van den Biesen
The last twenty-five years of civil society’s bringing environmental issues

to the Dutch Courts is marked by a respectable amount of cases in which
the limits of litigation were explored by adventurous environmentalists.
The experience thus developed may be useful for the topics discussed in
this book.
Climate change is expected to cause the flooding of over half the Dutch
territory sometime towards the end of the current century if no defence
measures are taken. Now that our leaders have failed to accomplish much
in Copenhagen, it may be high time to not wait for that flooding to happen
and, instead, to start flooding our Courts with litigation right now. In this
Chapter I will try and look into the prospects of climate change litigation
possibly undertaken by environmental civil society organizations. First I
will discuss issues related to access to the Courts, then I will have a look at
some of the obstacles that most certainly will appear during the substan-
tive stages of such litigation.
1. ACCESS TO CIVIL AND ADMINISTRATIVE

COURTS IN THE NETHERLANDS
For environmental civil society organizations it took quite a bit of banging

on the doors of lower courts in order to get access to justice. Today this access
is widely available and seems to be a given, but it was not too long ago that
the general sense among judges, among lawyers for that matter, was that
civil society organizations shouldn’t be allowed to use the judicial system
in support of their causes. ‘We don’t need politics within our Courtrooms’,
at the time, seemed to be the general approach. However these prolonged
efforts paid off when on 27 June 1986 the Dutch Supreme Court welcomed
civil society to civil law litigation. In its judgment the Supreme Court
227

considered that the interests of the citizens at stake in an environmental

case are best served by a clustering of these interests through environmental
associations. Without that clustering, according to the Supreme Court, an
effective protection of these interests affecting large groups of citizens, while
the consequences per individual citizen are often difficult to assess, would be
seriously jeopardized. The court judged and declared that a party obstruct-
ing a civil society organization in advancing its causes could, in principle,
very well be considered to be committing a tort under Dutch Tort Law,1
an extremely important finding, which has since been codified and now
forms part of the Civil Code of the Netherlands.2 Since the regular rules for
tort-law litigation apply on these cases, foreign civil society organizations
also would be able to bring civil law cases before a Dutch court provided
that the defendant party has its seat in the Netherlands. Similarly, it has
been proven to be possible for Dutch civil society organizations to bring,
successfully, Belgian companies before a Dutch civil law court with respect
to tortious acts originating in Belgium, while the negative consequences of
these acts were also felt in the Netherlands.3
As regards litigation before administrative courts, the Dutch General
Administrative Law Act (GALA) is rather clear. Legal persons do have
standing in court as long as their bylaws as well as their actual activities
are clearly aimed at protecting specific aspects of the public interest and/
or of collective interests.4 The application of these admissibility require-
ments led to a great variety of legal entities, that is foundations and
associations, bringing cases before the administrative courts. Since some
ten years ago many of those were founded exclusively for the purpose
of litigating cases before the administrative courts. Several of them were
rather effective, while others ended up merely using substantial amounts
of the Administrative Jurisdiction Division of the Council of State’s time.
Therefore the latter embarked on a sort of cleansing operation leading to
a series of judgments through which it was clarified that only legal persons
that are able to demonstrate that they are, indeed, conducting substan-
tial, factual, activities in the area on which they focus according to their
bylaws, would have standing in administrative jurisdictions. Moreover,
while this Administrative Jurisdiction Division rarely refers to rulings of
the Supreme Court, this time the Council of State explicitly adopted the
reasoning as well as the ratio of clustering the interests of larger groups of
citizens through civil society organizations as provided, 29 years earlier, by
the Supreme Court’s judgment of 27 June 1986 in the case of civil litiga-
tion, which judgment was discussed above.5
So by now the access to justice before civil as well as administrative
courts in the Netherlands is based on similar considerations and has
been functioning for many years in line with what came to be the Aarhus

Will civil society take climate changers to court? 229
Convention’s access to justice rules.6 The signing and consecutive ratifica-

tion of the Aarhus Convention of 25 June 1998 by the Netherlands consol-
idates this Dutch legal practice in both civil and administrative litigation.
Which is not to say that this practice would be, in all its actual aspects,
entirely in conformity with all of the Aarhus provisions. However interest-
ing that topic may be, I won’t elaborate on that at this point.
2. ACCESS TO EUROPEAN COURTS
Given the European Union’s growing importance in the area of environ-

mental acts, decisions as well as legislation, the need for getting access to
European judicial mechanisms has been growing as well. However, as is
well known, trying to get acts of European Union institutions in environ-
mental matters reviewed by the EU Courts is virtually impossible. The
reason for this has been the directly and individually concerned-condition
laid down in article 230, para. 4 of the EC Treaty.7 The Lisbon Treaty has
slightly revised and amended article 230 EC. The new version of this provi-
sion (article 263 TFEU) seems to provide for a slightly wider access to the
European judiciary, although, obviously, it is much too early to make a
reasoned assessment of that at this point in time.
As a party to the Aarhus Convention,8 the European Union has imple-
mented the Treaty requirements with respect to access to justice9 through
Regulation (EC) No. 1367/2006 of the European Parliament and of
the Council of 6 September 2006.10 This regulation provides for an internal
review procedure with respect to administrative acts under environmental
law adopted by Union institutions or bodies.11 This new mechanism has
not produced any useful operationalization yet, especially since the Union
institutions seem to be applying a rather restrictive interpretation of the
scope of this regulation. Most of the, relatively few, requests for internal
review submitted on the basis of this regulation have been declared inad-
missible.12 Currently two of these negative decisions are being challenged
before the General Court (formerly the Court of First Instance).13
3. ADMINISTRATIVE LITIGATION
For the present topic the typical starting point for considering admin-
istrative litigation would be the permit which a substantially polluting
undertaking under Dutch law would need in order to legally conduct its
commercial activities. Here the Environmental Management Act (Wet
Milieubeheer) provides for the central piece of legislation.

The question is how much protection this legislation provides against,

for example, coal-fired power plants. As is well known such a plant quali-
fies as an important greenhouse gas emitter, better put: a crucial climate
changer. In the words of the renowned NASA scientist, James Hansen,
these plants are ‘death factories’. He estimates that one single coal-fired
power plant in its lifetime would be responsible for the extermination of
about 400 species.14 If this is, indeed, the case one would expect that envi-
ronmental legislation would provide for the strongest possible restrictions
for this type of plant. However, the contrary seems to be case. Indeed, a
coal-fired power plant needs to respect a large number of legal restrictions
based on the Environmental Management Act. These are serious hurdles,
which currently are becoming quite visible in several ongoing administra-
tive proceedings relating to the construction of several coal-fired power
plants in the Netherlands. However the emission of CO2 of a coal-fired
power plant is as such not at all regulated by Dutch law, but its regulation
is entirely absorbed by the European Emission Trading System (ETS). In
other words, as long as the owner of this plant obtains sufficient emission
rights (for which, obviously, in the end the consumers pick up the bill) he is
legally covered. This means that in the Netherlands the success in restrain-
ing this substantial climate changer entirely depends on the success of
the ETS mechanism. The Dutch legislator has also explicitly forgone the
possibility of imposing additional energy-emission restrictions to plants
covered by the ETS mechanism, while Member States are allowed to do
so.15 Basically this means that an environmental organization that would
be trying to limit the greenhouse gas emissions of a coal-fired power plant
through administrative law proceedings would find itself empty-handed.
However, the applicable legal framework will possibly be amended:
rather recently the Second Chamber of the Dutch Parliament voted in
favour of a resolution calling for the government to try and convince
the European legislator to set emission standards for any and all energy
plants which would maximize the CO2 emission to 350 g/kWh. At the same
time this resolution called for the introduction of a similar standard into
Dutch national legislation, which would apply to all energy plants in the
Netherlands.16 The decision was as such positively received by the environ-
ment minister, so there may be some hope. At the same time, elections for
a new Parliament will be held in June 2010. It remains to be seen what the
position of the newly elected Second Chamber and of the new administra-
tion will be.
However, what exactly is it that we are hoping for? Not too much, I’m
afraid, since here we run into the perversity of the ETS-mechanism: adding
new restrictions to the CO2 emissions of a particular plant would mean
that the plant-operator will need fewer emission rights, which emission

rights will, then, be used by other Climate Changers. To me this seems to

be one of the greater shortcomings in the ETS-system, which goes much
further than just this one example. On 19 November 2009 the Flemish
prime minister stated that as far as he is concerned there will be no new
coal-fired power plants constructed, neither in Antwerp, nor in Flanders.
He announced that Flanders is giving the highest priority to clean energy
sources.17 Without any doubt a courageous and extremely helpful posi-
tion, for which the Dutch can only envy their neighbours. At the same
time, here too the perversity of ETS may very well spoil the party. There
seems to be quite a lot of work to be done by our ETS specialists.
4. CIVIL LITIGATION
Other than in administrative law, in civil litigation one may have a choice
between two sorts of defendants. The first category being public authorities,
that is the State, the provincial or local authorities; the second sort being
private enterprises. Both options are in principle available and have, indeed,
been utilized in public interest litigation with varying degrees of success.
One thing we, in the Netherlands, do not need to worry about when
considering civil litigation is the obstacle of a ‘political question doctrine’
which seems to be suffocating many worthy causes and cases in the US
courts.18 I have always found this ground to prohibit legal cases from
being adjudicated somewhat peculiar and definitely highly politicized.
When the United States, among other States, in the nuclear weapons case
recommended to the International Court of Justice that this particular
case be thrown out for reasons borrowed from the political question
doctrine, the Court simply observed ‘The fact that this question also has
political aspects, as, in the nature of things, is the case with so many ques-
tions which arise in international life, does not suffice to deprive it of its
character as a “legal question”. . ..’19 Similar observations were repeated
by the Court in its Advisory Opinion on the construction of the Israeli
Wall in the occupied Palestinian territories.20 This approach is also valid
in Dutch civil litigation: as long as the plaintiff submits an issue which in
the view of the plaintiff should be judged along the lines of tort law, the
case can not be declared inadmissible for reasons related to its presumed
overriding political features. This does not mean however that we are alto-
gether protected against this type of reasoning.
Then the question is what sort of demands may a civil society organiza-
tion submit to the court in the context of civil litigation? The very provision
of the Dutch Civil Code which opens up the courts to civil society at the
same time explicitly excludes requesting reparation by means of monetary

compensation. However strange this provision may be, in civil litigation

against defendants who are to be held responsible for climate change this
prohibition saves us a difficult and distractive debate on precise attribu-
tion of specific damages to a specific defendant. Thus, it would suffice to
establish a substantial responsibility for the defendant.
This leaves us with three categories of admissible claims:
● a declaratory judgment establishing that a certain behaviour or a

lack of a certain behaviour constitutes a tortious behaviour towards
the plaintiff;
● a judgment ordering the defendant to take certain steps and/or to
refrain from others, which decision may be secured by a substantial
fine for not implementing this decision;
● a judgment ordering the defendant to publish the judgment holding
one of or a combination of the two previous sorts of judgments.
Key to any sort of civil litigation is to become clear about the precise
norms that are allegedly being violated by the defendant party. While
looking into this, I will stay with the example of the coal-fired power plant
since the effects on climate change of this type of undertaking are so pre-
posterous in light of the entirety of the problems that we are facing.
If we would first consider taking the State of the Netherlands as defend-
ant, the issue of the norms that are allegedly violated will be central to our
concerns. Although the Netherlands is responsible for a certain amount of
CO2 reduction to be realized in a certain period of time (a responsibility
flowing from the Kyoto Protocol), enterprises that are regulated through
the ETS-mechanism, like energy plants, are not as such part of this reduc-
tion responsibility of the Netherlands. The reduction of CO2 emissions
of coal-fired power plants is to be achieved through the ETS mechanism
for the existence of which the Netherlands bares a shared responsibility.
Basically the shortcomings of the State, which would have to be central
to civil litigation, would include that the State is not sufficiently living
up to its responsibility to protect current and future generations against
the consequences of climate change. Besides that, they would include
the State choosing the wrong instruments to tackle the enormity of the
issues at stake, or at least not doing enough. The tort-law norms to rely
on here would be next to the obligation to protect norms pertaining to
proper social conduct, all of which may be substantiated by referring to
human rights law and to such principles as the precautionary principle, the
polluter-pays-principle and the principle of sustainability.
However here we will have to face two major obstacles connected to
this type of litigation. The first one being that any Dutch court will allow

the State a wide margin of appreciation in choosing the instruments and

in deciding whether or not to add additional instruments. The second has
been established in the case law of the Supreme Court, which has ruled
that Dutch courts are not allowed to give orders to State institutions if
those orders would imply an order to bring about new legislation.21 These
two obstacles are of such a magnitude that it may be wise to explore other
sorts of litigation before resorting to this particular one.
This brings us to a possible civil tort case against an enterprise planning
to start up a brand new coal-fired power plant, which would be – certainly
at the face of it – the most silly and irresponsible choice an enterprise
may make given the climate situation in which we find ourselves today.
In any event such a case would benefit from a considerable degree of
positive public perception since here we would clearly be talking about a
case between the good guys and the bad guys. However, a positive public
perception alone – however indispensable it may be – will not do the job.
Like in a case against the State, two demands could be central to the
desired judgment: a declaratory finding and an injunction ordering the
enterprise not to start up the new plant. As mentioned above, damages
can not be part of litigation by civil society organizations, but even if that
would have been possible it would be advisable to aim for an injunction
and to stay away from demanding reparation, since that would open up
rather complicated and possibly discouraging debates on matters of cau-
sality and, even more complicated, attribution. Although in a tort-based
case against a civil defendant the two major obstacles that we face while
litigating against the State do not play a role, this approach would not
be without serious difficulties either. Of course also in this case, tort-law,
that is the alleged violation of norms pertaining to proper social conduct,
would constitute the cornerstone of the debate. Since ‘proper social
conduct’ is, as such, not defined in Dutch law, general principles derived
from, for example, human rights law, as well as the principles mentioned
above, are often used – also in litigation between two civil parties – to help
substantiate the ‘proper social conduct’ formula. Since this would be a case
involving a reasonable risk assessment to be made by the defendant, the
legal debate will certainly be amplified with the so-called Kelderluik criteria
which are being discussed elsewhere in this book.22 However, all of this
will probably not effectively deal with the central defence to be brought
forward by the defendant. This defence will come down to arguments like:
● this plant applies the best state-of-the art techniques available on the
planet today;
● this plant has obtained all the permits it needs to properly function
and it will strictly abide by the conditions laid down in these permits;

● any CO2 emission produced by this plant will be legally covered by

emission rights under the ETS system;
● we are working on a capture-and-storage programme which, in ten
years’ time, will begin to reduce the CO2 emissions by 90 per cent.
This is quite a substantive defence which will not be easy to overcome.

Little assistance may be found in the relevant case-law of the Supreme
Court which is, indeed, from a principled perspective extremely important
and in which it was established that conducting an enterprise within the
limits set by an environmental permit is not by itself and under all circum-
stances lawful towards third parties whose specific legal interest may be
violated by a, in itself, proper use of the permit.23 Now, generally speak-
ing, I do not believe that environmental organizations would be able to
find much support in this particular case-law. The reason for that may be
that the environmental legal interest at stake here would be to protect the
planet against climate change while the answer, here, will be that ETS –
which for this purpose will be qualified as a considered system adopted by
the European Community – is aiming to do precisely that.
Basically, the plaintiff position to take here towards the defendant
party, to me, seems to be that ‘the ETS mechanism is by far not going to
protect us against the substantial consequences of climate change, and you
know that’. In other words, a case like this would boil down to try and
establish the most serious shortcomings of ETS (and of capturing-
and-storing, for that matter), including their foreseeability, and to try
and focus on the core of the implications of the individual responsibility
towards the current and future generations of any enterprise operating an
energy plant. Besides that, the only part of this defence which may be suc-
cessfully addressed would be the expectations with respect to the capture-
and-storage programme, since as of now there is no convincing empirical
evidence available as to the effectiveness of such a programme. These two
options to me seem to be the only way to at least try and overcome the
considerable obstacles present in this type of litigation. For this, it would
definitely help if a large public support could be mobilized for such litiga-
tion, while it would also help if the actual proceedings were be conducted
in the most visible manner, in order to educate the public at large and to
enable them to actually see how justice is being done.
5. CONCLUDING OBSERVATIONS
Nobody said that this was going to be easy. I am afraid the obstacles that
I have identified are real and need to be taken extremely seriously. At the

same time people should not shy away from banging on this particular
door. The stakes are too high and we should try and do all we can to avoid
ending up leaving a big mess to our children and grandchildren without
even having tried to prevent that from happening through all reasonable
means available.
It is for that reason that it may be useful to look for the ‘lower fruits’
too, which, after all, need to be picked as well. The fact that by now it
seems to be scientifically established that the production of meat for
human consumption is responsible for 18 per cent, according to some, or
even 51 per cent, according to others, of the warming of the planet, may
provide for new thinking about using the law to reduce this substantial
part of the problem. This may especially turn out to be a useful exercise
since the crucial greenhouse gas here is methane, which is not covered by
the ETS mechanism. This would imply that tackling the emission of this
particular greenhouse gas would not be vulnerable to the perversity of the
ETS system discussed above.
Besides all of the above, we should not lose sight of the fact that we are
dealing here with a worldwide issue; an issue that implies huge damage to
States that have hardly contributed to the problem, while the perpetrators
of this seem to be concentrated in relatively limited, rather easily identifi-
able, parts of the world. It is clear that here important issues of interna-
tional State responsibility are at stake. It would certainly be justified and
most probably worth the effort if the International Court of Justice were
requested to deliver an Advisory Opinion on some of the most important
legal issues at stake.24 This would certainly lead to defining, in legal terms,
the scope as well as the nature of the responsibility of the emitting States
towards those States that are least responsible for, while at the same time
most hurt by, the consequences thereof. Elaborating on this approach to
litigation would take some additional time, so I will leave you with these
very preliminary thoughts.
NOTES
1. Supreme Court, 27 June 1986, NJ (Nederlandse Jurisprudentie) 1987, 743.

2. Article 3:305a of the Dutch Civil Code.
3. Court of Appeal, The Hague, 19 November 1992, Reinwater and others v. SA Rutgers
Vft., LJN: AH3974; Court of Appeal, ’s Hertogenbosch, 31 May 1994, Reinwater and
others v. Cockerill Sambre S.A., LJN: AH4596.
4. General Administrative Law Act (GALA), Article 1:2, para. 3.
5. Council of State, Administrative Jurisdiction Division, 1 October 2008, 200801150/1.
6. http://untreaty.un.org/English/notpubl/27-13eng.htm
7. Article 230, para. 4 reads ‘Any natural or legal person may, under the same conditions,
institute proceedings against a decision addressed to that person or against a decision

which, although in the form of a regulation or a decision addressed to another person,

is of direct and individual concern to the former.’ (italics added); for case-law see, among
many others, Case 25/62, Plaumann v. Commission [1963] ECR 95, p. 00095; C-321/95,
Greenpeace International and Others v. Commission, ECR 98, p. I-01651; T-219/95,
Danielsson and Others v. Commission, [1995], ECR 95, p. II-3051.
8. UNECE Convention on Access to Information, Public Participation in Decision-
making and Access to Justice in Environmental Matters, http://www.unece.org/env/pp/
documents/cep43e.pdf
9. Article 9, para. 3 of the Convention reads: ‘In addition and without prejudice to the
review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that,
where they meet the criteria, if any, laid down in its national law, members of the public
have access to administrative or judicial procedures to challenge acts and omissions by
private persons and public authorities which contravene provisions of its national law
relating to the environment.’
10. Official Journal L 264 , 25/09/2006 P. 0013 – 0019, http://eur-lex.europa.eu/LexUriServ/
LexUriServ.do?uri=CELEX:32006R1367:EN:HTML
11. Article 10, para. 1 of the Regulation.
12. See the Repository published by the Commission: http://ec.europa.eu/environment/
aarhus/internal_review.htm
13. Case numbers T-388/08 and T-396/09; the author is representing the plaintiffs (environ-
mental organizations) in both cases.
14. The Observer, 15 February 2009, http://www.guardian.co.uk/commentisfree/2009/
feb/15/james-hansen-power-plants-coal.
15. Article 8.13a, para. 2 Environmental Management Act.
16. Resolution-Vendrik and colleagues, Second Chamber of the Parliament, 3 November
2009, 32123 XIII, nr. 38.
17. http://www.greenpeace.nl/news/weer-kolencentrale-e-on-van-de.
18. See Elena Kosolapova’s chapter in this book.
19. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports
1996, para. 13, p. 234.
20. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, I.C.J. Reports 2004, para. 41, p. 155.
21. Judgment of the Supreme Court, 21 March 2003, C01/327HR http://zoeken.rech-
tspraak.nl/resultpage.aspx?snelzoeken=true&searchtype=ljn&ljn=AE8462
22. See in particular Chris van Dijk’s chapter in this book.
23. Supreme Court, 10 March 1972, Vermeulen/Lekkerkerker, NJ (Nederlandse
Jurisprudentie) 1972, 278.
24. Article 96, para. 1 of the Charter of the United Nations, see also http://www.icj-cij.org/
jurisdiction/index.php?p1=5&p2=2.

11. Governmental liability: an
incentive for appropriate
adaptation?
Ben Schueler
1. INTRODUCTION
In this chapter, I will explore the possibilities of using a national system

of governmental liability as an incentive for appropriate adaptation to
climate change. Liability systems are supposed to stimulate actors to take
the right decisions, because these actors are expected to limit their respon-
sibility for compensation. Thus, the existence of liability for unlawful deci-
sions would seem to provide an impulse to take the right decisions.
I will focus on the Dutch system of governmental liability. The analysis
of the Dutch liability system may serve as a case study in order to demon-
strate the problems that may arise in relation to the use of governmental
liability as an instrument to stimulate measures to prevent climate change
damage. There are several good reasons to focus on Dutch law. The
Netherlands is a low-lying country, for a large part below sea-level. The
threat of a rising sea-level is taken as a serious and concrete political and
technical problem, both by the government and by other parties within
Dutch society. Furthermore, the Netherlands is a delta where a number of
important river basins come together: those of the Rhine, the Meuse and
the Scheldt. There is danger from all sides – even from above, as excessive
rainfall is one of the predicted effects of climate change in the future.
Another reason to explore the Dutch situation is the well-developed
system of governmental liability. This system is based on two different
principles: fault and equal treatment. Liability based on fault is connected
to the principle of guilt, and concerns situations in which the adminis-
tration has taken wrongful decisions or has failed to take a decision. In
the Dutch system, as in many other legal systems, this liability is part of
private law. Liability based on equal treatment, on the other hand, is con-
nected with the principles of proper administration. This form of liability
has evolved in administrative law.
237

Obligations to take adaptation measures arise from various legal

sources. In some cases, the legislature has imposed on the administration
an obligation of best efforts or even an obligation of result. In other cases,
claimants must revert to general, open standards derived from private law,
public law or both. In addition to that, the importance of international
law as a source of obligations in environmental law has grown, especially
over the last decade. As Armelle Gouritin’s chapter demonstrates, the
European Convention on Human Rights has the potential to create posi-
tive obligations that could force national governments to take appropriate
and effective adaptation measures.
In this chapter I will not try to analyse these legal sources nor try to
articulate the precise obligations to which they give rise. Instead, I will
explore the obstacles to governmental liability for damage caused by
adaptation policies.
2. EXAMPLES OF DAMAGE CAUSED BY

ADAPTATION POLICIES
An appropriate adaptation policy may include the necessity of, for

instance, broadening river dykes or designating certain areas as water
storage zones. With respect to governmental liability there are two distinc-
tions to be made.
First, we must distinguish action from failure to act. The administra-
tion can be held liable either for damage caused by taking a decision, or
for damage caused by the failure to take appropriate action. Broadening
the dykes could harm farmers and landowners along the dyke section.
It could also harm the interests of nature conservation in a wetland or
grassland area. On the other hand, the decision not to broaden the dyke
could injure the interests of farmers and landowners, because it transfers
to them the risk of flooding and inundation. Designating certain areas as
water storage zones will have adverse effects on the value of land and other
property within the area. On the other hand, not designating certain areas
will transfer the risk of flooding and inundation to other areas. Acts and
omissions both entail liability risks. If the liability standards for failure to
act imply a higher risk than the standards applying to action, the system
will stimulate the development of appropriate adaptation policies. If, on
the other hand, the risk is higher for actions than it is in cases of not acting,
the system will discourage the taking of adaptation measures.1
The second distinction to be made is between long-term liability and
short-term liability. The damage can be expected to occur within a shorter
or a longer period of time following the moment an actor decides whether

Governmental liability 239
or not to take adaptation measures. If a long period of time is involved,

we cannot expect the policy maker to be very anxious about the liability
risks involved. The life span of political responsibilities is rather short, and
policy makers, as natural persons, do not bear any private responsibility
for proprietary effects of their public decisions.
3. BARRIERS TO GOVERNMENTAL LIABILITY

BASED ON FAULT
The Dutch legal system applicable to climate change damage erects a
number of barriers to governmental liability based on fault.2 This chapter
deals with the most insurmountable barriers. In order to facilitate the
understanding of this complicated system I will make a distinction between
two different causes of damage: appealable decisions and failure to act.
3.1 Damage Caused by Appealable Decisions
3.1.1 Lawfulness and unlawfulness of appealable decisions

The lawfulness of most administrative decisions can only be judged by
the administrative courts in review procedures. These review procedures
are directed towards the legal assessment of the decision and result in the
annulment of the decision or dismissal of the appeal. The annulment of an
administrative decision is an important step in the context of liability for
damage. Any administrative decision annulled by the administrative court
is deemed unlawful for liability purposes. This rule fixes the unlawfulness
of annulled decisions. It serves two different purposes.
The main purpose of the rule is to force civil courts to respect the juris-
diction of the administrative courts. In the Netherlands, the distribution
of jurisdiction between civil and administrative courts, particularly where
liability for damages is concerned, is rather complicated. The review
of administrative decisions falls within the exclusive jurisdiction of the
administrative courts. The civil courts, on the other hand, have jurisdiction
over liability cases. However, their jurisdiction is not exclusive: the claim-
ant may choose to bring his liability case to an administrative court if this
court is the one with jurisdiction to review the administrative decision that
caused the damage. In their efforts to guard the unity of law under these
overlapping competences, the administrative and civil courts aim to har-
monize the related parts of their case law. As a result, all courts hold a deci-
sion unlawful as soon as it has been annulled by an administrative court.
Secondly, the rule helps to avoid inconsistency in the way an admin-
istrative decision is viewed by different courts in the same case. The

lawfulness of the administrative decision is judged by the administrative

court, and the judgment of that court is binding for the court dealing with
the liability for damage.
For the same reasons, an administrative decision is held to be lawful as
long as it has not been annulled by an administrative court. This rule is
referred to as ‘formal force of law’, as it gives a decision legal force solely
on formal grounds.3 Under this rule, an administrative decision has legal
force without regard to its substantive qualities. It may be in flagrant con-
flict with the law or incompatible with principles of proper administration,
but it is still deemed lawful on the simple formal ground that it has not
been annulled by an administrative court. This rule fixes the lawfulness of
decisions in cases where nobody has appealed against them, as well as in
cases in which an appeal failed and has been dismissed. Any court dealing
with questions of liability for damage will proceed on the assumption that
such a decision is lawful. This assumption is made under public law as well
as under private law, since in both areas the concept of ‘lawfulness’ has the
same meaning.
This ‘formal force of law’ is based on more than the reasons just men-
tioned (consistency and due respect within a system of diverging and partly
overlapping jurisdictions). In addition to these two purposes, the rule
also serves the purpose of legal certainty. As in most public law systems,
the right to appeal against administrative decisions is limited to a certain
period of appeal. In the Netherlands, this period is six weeks. After this
period has expired, the validity and effectiveness of the decision are defini-
tive with regard to anyone. The administration and the interested parties,
such as the holder of a licence, must be sure of the legal basis for the execu-
tion and enforcement of the decision. Of course this certainty does not last
forever. Under exceptional circumstances, some decisions – such as those
granting environmental permits – may be withdrawn by the administra-
tion. But in the meantime the legal status of the decision has to be clear.
The Supreme Court of the Netherlands is not particularly willing to
make exceptions to the rules with respect to the lawfulness of administra-
tive decisions as set out above. In 1995, the Court considered the ‘formal
force of law’ to be an indispensable and fundamental principle that cannot
be done without in the relations between administrative and civil courts.4
In some other countries the system is less strict.5 In Germany the level
of compensation may be decreased. The German Civil Code provides
that no right of compensation exists when the interested party has failed
to prevent or reduce the damage. In many cases the damage caused by an
administrative act can be limited by using a legal remedy (such as appeal).6
The Bundesgerichtshof applies this rule in such a way that only the
damage that could have been prevented is excluded from compensation.

In France a distinction is made between the recours pour exces de

pouvoir and an action arising from an unlawful act. The first is directed
towards the legal assessment of the act and may result in its annulment.
The second may result in an order to pay compensation. When an admin-
istrative decision underlies a claim for damage without being annulled,
the judge has the opportunity to examine the legality without any reserve,
even though the period of appeal has expired. At the end of this procedure
the administrative decision can’t be annulled. The administrative decision
which causes damage stays valid, but it can still be considered unlawful.7
The rules as explained above form an impressive barrier to govern-
mental liability for administrative decisions in general. It is important
to explore their consequences against the background of climate change
damage.
Let us have a look at long-term damage first. In some cases, climate
change damage will occur only a long time after the date on which the
administration reached a decision that should have prevented this harm.
It is not very likely that the victims are the same persons as those who
appealed against the decision. Should we expect this difference in time
between damage and prevention to be a barrier to governmental liability?
According to the case law, an administrative decision which has been
annulled by an administrative court is deemed unlawful with regard to the
claimant whose appeal was allowed during the proceedings that ended in
the annulment. This successful appellant is the only person who can base
the unlawfulness of the decision on the mere annulment.8 Other victims
will not have a chance of winning their case, as their claim is likely to be
denied in view of the fact that the decision is covered by ‘formal force of
law’.
However, an important exception is made for persons lacking a right of
appeal at the time the decision was open to appeal.9 In this respect, it should
be realized that only ‘interested parties’ have the right to appeal against
administrative decisions. Under Dutch law, an interested party is consid-
ered to be a person whose interest is directly affected by the administrative
decision. This includes third parties, such as people living in the neigh-
bourhood of a construction which has been permitted. More generally,
any person who may experience disadvantageous effects resulting from
the decision is considered to be an interested party. In cases concerning
environmental issues of public health and safety, the circle of interested
parties is wide, but does not include the whole population. Therefore,
future victims of climate change will take advantage of the ‘phase dif-
ference’ between damage and preventive decisions. If there is a period of
many years between the administrative decision and the actual damage,
the circle of victims will only partly (if at all) overlap the circle of persons

who had a right of appeal at the time the decision was taken. At the time
the decision was taken, most of the victims lived somewhere else or were
not even born yet. The slower climate change damage arises, the lower the
barrier formed by the ‘formal force of law’ rule.
In case of short-term damage, this ‘formal force of law’ rule is of much
more importance. It creates an almost insurmountable barrier to all
victims within the circle of interested parties, unless they appealed success-
fully against the administrative decision. If, for example, the decision to
designate an area as water storage zone is annulled, it is held to be unlaw-
ful for liability purposes. But if only one interested party appealed against
this decision in the administrative procedure, the assumption of unlawful-
ness will not apply to persons who did not use their right of appeal. Even
where all victims suffer the same loss, the decision is only held unlawful
in regard to the one individual claimant who successfully used his right of
appeal.
3.1.2 Barriers to causality

Liability for damage caused by an administrative decision requires more
than the unlawfulness of the decision.
One of the other requirements, accountability, is of little importance in
practice since unlawful administrative decisions, annulled by an adminis-
trative court, will be imputed to the governmental body even where that
body is not to blame for the decision. Both civil and administrative courts
have decided, without making an exception, that in case of damage caused
by unlawful decisions the administration has to bear the risk without
regard to questions of culpability.
Another requirement, causality, is more important. To be able to base
his case on the unlawfulness of the administrative decision, the claimant
has to state a causal link between this decision and the damage for which
he claims compensation. According to case law of the Dutch Council of
State, this causal link is missing if the administrative authority makes it
plausible that a lawful decision, resulting in the same damage, could have
been taken at the moment at which the unlawful decision was taken.10 In
this approach, the actual situation created by the unlawful decision is com-
pared to a hypothetical situation that could have been created by a lawful
decision. This is a restrictive delimitation of governmental liability for
damage caused by administrative decisions. Even though it may appear
from the facts that damage is caused, for example, by an unlawful permit,
the claim for compensation may still encounter the answer that the same
damage could have been caused by a lawful permit.
In many cases this answer will afford a valid defence. This can be
explained by pointing at the often far-reaching discretionary power of

the administration. It has the power to make its own policy choices from
a set of alternative decisions, in different alternative forms, all leading to
the same goal. In review proceedings, the administrative court may for
instance annul a permit on the ground that the environmental impact
assessment had been carried out without paying attention to certain rel-
evant aspects, such as expectations about future effects of climate change.
After this annulment, in many cases, it will not be too difficult for the
administration to make it plausible that the same permit could have been
granted after a comprehensive and complete investigation of the environ-
mental impact.
This delimitation of governmental liability is highly relevant in the
context of climate change damage. The uncertainty of the causal link
between a decision in a certain case and the effects of climate change in the
future offers the administration a wide range of alternative reasoning in
order to make it plausible that a lawful decision, bringing about the same
damage, could also have been reached.
3.2 Liability Based on Failure to Act
When administrative authorities fail to take any adaptation measures

against threats coming from climate change, there is a possibility to hold
them liable for damage caused by failure to act. The main barrier to this
kind of liability is the discretion enjoyed by the administration. Although
courts have gradually limited this discretion by further development
of principles of proper administration and the prohibition of arbitrary
action, in many cases the administration is still permitted a wide margin of
appreciation in taking decisions. No general obligation to guard the safety
of the public exists. Liability must be based on contravention of general
standards, such as the material care standard, the duty of care or the duty
to balance interests.
As a result of the separation of powers, the courts take a cautious line
when considering the lawfulness of administrative behaviour in areas of
discretion. However, courts tend to go further than a light review11 of the
behaviour of certain authorities with a supervisory task. In the context
of adaptation to climate change, it is interesting to see that the Supreme
Court retains the competence to carry out a more extensive test of the
way a water control authority performs its duty to maintain the water
level and stream system in the area of its responsibility. At the same time,
however, the Supreme Court seems rather reluctant to judge the authori-
ties’ omissions as a form of failure to act going beyond the scope of their
discretion.12
The Dutch legal scholar Thijs Drupsteen has argued in favour of using

a stricter standard than that used by the Court in the cases concerning
water control authorities. First, these authorities perform a single-track
task, encompassing the control and maintenance of water level and
water quality. For these authorities, there is no need to establish priori-
ties among general interests of a widely divergent nature. Therefore the
performance of their duties differs from that of administrative authorities
with a general and much broader task, such as the local and regional gov-
ernments. Secondly, water control authorities perform an exclusive task,
which is not performed jointly with other authorities. This makes inhabit-
ants of the relevant territories strongly dependent on the water policy of
these authorities. Such an exclusive position of water control authorities is
guaranteed under statute law. All in all, a water control authority cannot
easily plead that it was forced to give priority to other interests than the
water-related interests of the inhabitants of its territory. Under certain
circumstances other answers to a claim, such as technical restrictions and
limited financial and human resources, may afford a valid defence. But
a general reference to administrative discretion should not be accepted
easily.
Administrative discretion is also relevant to the application of the
precautionary principle. In some cases an obligation to take precaution-
ary measures can be based on the general material care standard and the
duty to weigh interests. In particular in cases where the risk of damage is
concrete and actual, instead of abstract and uncertain, due care will imply
the duty to take appropriate adaptation measures. To this extent, the
precautionary principle may be perceived as an implication of the General
Administrative Law Act (Awb 1994, par. 3:2 and 3:4). Still, even in judg-
ments given after the occurrence of serious damage, courts are reluctant to
draw the conclusion that the administration’s behaviour lacked appropri-
ate precautionary measures. In the judicial decisions handed down on this
issue so far, the courts consider that liability cannot be assumed merely
on the grounds that a risk has materialized which the authorities were or
should have been aware of. For the authorities to be held to account for
the fact that they have not taken precautionary measures there must be
more than this. ‘What is decisive is whether the risk was so large that it
entailed a legal obligation for a governmental authority to take measures
to reduce the risk.’13
The claimants’ position seems to be stronger if the claim can be based
on the responsibility of a public body as the owner or holder of a con-
struction. According to the Dutch Civil Code, the holder of a construc-
tion bears a strict liability for damage caused by (structural) defects.14 The
lower courts in the Netherlands tend to regard dykes as ‘constructions’.15
If the Supreme Court would adopt the same point of view the liability

risks increase for holders of dykes and maybe even for holders of other
water control constructions as well. As a result, the incentive for public
authorities to improve the quality of the dykes would become much
stronger.
3.3 Protected Legal Right or Interest
Many provisions in public law intend to protect certain public interests,

such as environmental protection, public health or public safety. Other
provisions offer protection to specific interests of individuals, such as
proprietary interests of landowners. A relevant question is whether provi-
sions protecting public interests must be conceived as provisions which
also implicitly intend to offer protection of individual interests. One could
easily argue that a rule that is meant to protect the public interest of
human health in a certain area implicitly protects the health interests of
the individual inhabitants.
Nevertheless these two kinds of interests, public and individual, are
sometimes distinguished from each other by courts deciding on liability
claims. The Supreme Court in the Netherlands has held that general rules
governing the inspection of river-vessels are meant to protect the public
interest of safety on inland waterways. The proprietary interests of indi-
viduals fall outside the reach of these public rules. Therefore individual
owners of river-vessels, canal-boats, etc., who suffer damage from acci-
dents with a vessel that has been tested but the test was faulty, cannot hold
the government liable for compensation.16 In regard to some other provi-
sions of public law, the Supreme Court has chosen to acknowledge a wider
scope of protection. Zoning plan regulations governing the construction
of buildings in the neighbourhood of gas pipes are, for example, intended
to protect both public safety and individual interests of inhabitants and
probably even individual proprietary interests.17
In Dutch tort law liability is restricted by the application of the so-called
‘relativiteitseis’. Literally, this means the principle or requirement of rela-
tivity. Like the Schutznorm doctrine it means it is only possible to invoke
the violation of a legal rule if that legal rule was intended to protect the
plaintiff’s interests. In legal writing, judgments based on this ‘relativiteit-
seis’ have been criticized.18 The main objection is the fact that the nature
of courts’ judgments becomes too political if this principle is applied to
liability cases. It is the legislature, not the court, that has to decide on the
scope of protection offered by certain statutory provisions. Although the
development of law is uncertain at this moment, there is no good reason to
expect that this principle will evolve into a strong barrier to governmental
liability for wrongful adaptation measures.

4. LIABILITY BASED ON THE RIGHT TO EQUAL

TREATMENT
Liability based on equal treatment is connected with the principles of
proper administration. This part of the liability system regulates compen-
sation for loss resulting from administrative decisions which fulfil all legal
requirements but which nonetheless fail to provide a reasonable compen-
sation and thus leave something of a gap in protection.
Adaptation measures, even when they are lawful, will have adverse
effects on the positions of certain individuals, such as people living along
a dyke or farmers working land in a polder that becomes brackish. The
principle of equal treatment requires the administration to spread the
burden of disadvantageous effects equally among all members of society.
In Dutch law a legal principle is adopted from French administrative law:
the principle of ‘égalité devant les charges publiques’. It is conceived as a
manifestation of the general principle of equal treatment, but it is focused
on the equalization of losses caused by administrative decisions.19
This distributive principle has been widely accepted. Since its introduc-
tion about four decades ago, it has been codified in an increasing number
of statues, such as statutes on urban planning and land use, environmen-
tal law, water control and nature conservation. Nowadays it has been
accepted as a general principle of law. In everyday practice, a large number
of such compensatory awards are granted by the relevant authorities.
An individual who is adversely affected by an administrative decision
is entitled to compensation for disproportionate losses. Of course it is not
always clear what damage is disproportionate, but a fairly consistent set
of criteria has developed from the application of the principle in practice.
The two most essential criteria are the following: damage must exceed the
risk of loss that is considered to be normal in society (the criterion of an
excessive burden); the claimant’s disadvantage must be disproportionate
when compared to the effects of the decision in regard to other people
(the criterion of an individual burden). Although one might argue that
the administration may decide on these criteria within a small margin of
appreciation, this is generally conceived as a legal question so that courts
do not have to be reluctant when they are asked to decide on a claim for
this kind of compensation.
The claimant may forfeit his entitlement to compensation if he could
reasonably have been expected to foresee the administrative decision.
It seems logical to expect that this restriction of the right to compensa-
tion will be applied fairly often in cases related to climate change. The
same can be expected of the criterion of an excessive burden. As climate
change will affect all human beings to a greater or lesser extent, the

general disadvantageous effects of adaptation measures will be consid-

ered as ‘normal’. However, if a small number of individuals is affected
by unforeseen and disproportionate effects of adaptation measures, they
will – as exceptions – be entitled to compensation. A good example of
such a situation is the designation of a water storage zone. The authorities
have to choose one area or another to be assigned for this purpose, and
the designation entails unfortunate effects. The decision serves the general
interest of the whole society. Therefore it is considered reasonable that all
members of society must pay their contribution to the compensation for
this burden. That is how it becomes a burden of the community.
5. IS THE DUTCH SYSTEM OF GOVERNMENTAL

LIABILITY AN INCENTIVE FOR APPROPRIATE
ADAPTATION TO CLIMATE CHANGE?
It is clear that administrative action and failure to act can both result
in liability based on fault. To what extent can the liability rules provide
incentives for public authorities to take appropriate adaptation measures?
Most theories on law and economics are based on the idea that the expec-
tation for a potential injurer to be held liable will induce him to act with
care and to reduce the risk.20 If the liability risk in case of failure to act is
higher, the system will tend to stimulate the development of appropriate
adaptation policies. If the risk is higher in case of action, the system will
discourage taking adaptation measures. Looking at the systematic barri-
ers in the Dutch legal system as described above, it is hard to predict what
is riskier from a liability point of view: taking measures or doing nothing.
As regards short-term liability risks, most claims based on the unlawful-
ness of administrative decisions will fail in view of the ‘formal force of law’
rule or – if they overcome that barrier – they will be rejected in view of
the lack of a sufficient causal relationship. And according to Dutch case
law, the causal link between an unlawful administrative decision and the
relevant damage is missing if the administration makes it plausible that a
lawful decision could also have been taken that would have brought about
the same damage.
In the context of climate change short-term risks might also be caused by
a failure to act. For example, if the competent authorities failed to fortify
the dykes in the sections where resistance had to be improved, floods might
be regarded as being caused by this failure. This governmental responsibil-
ity will be stronger as the authorities should have been aware of certain
dangers.21 In cases where the authorities do not take any decision to
improve the resistance of the relevant section of the dyke, the damage will

not be attributed to the appealable decision of an administrative author-

ity. As a result, the ‘formal force of law’ rule does not apply. In cases like
that, victims will find more opportunities for holding the authorities liable
than in cases in which damage is caused by appealable acts. The claims for
compensation may be based either on negligence or on strict liability of
public bodies, being the holders of the dykes.
As regards long-term risk for damage, it seems that tort law does not
really provide a strong incentive to take appropriate adaptation measures.
In the future, when climate change damage is likely to occur, the gover-
nors and administrators who are responsible for the lack of appropriate
measures will have entirely quit the scene or dropped out of the relevant
picture. However, the future comes closer day by day. A risk that seems
uncertain today might become concrete in the future. This evolution of
risks will strengthen the incentives for appropriate action as time passes.
One may expect public authorities to become more alert as the risks
become less uncertain. This is how weak long-term incentives gradually
develop into stronger short-term incentives
At some point in the evolution of a climate change risk it turns from
uncertain into concrete. At this turning point tort law will provide an
incentive that is strong enough to urge authorities to take concrete adap-
tation measures. The actual state of knowledge of the effects of climate
change (including the social and economic effects) does not enable us to
determine this turning point in the future. The incentive provided by tort
law will stay weak until the climate change risk becomes more concrete.
By then it might be too late either to take the most effective adaptation
measures, or the costs of these measures will be much higher compared to
the costs of early measures.
For example in urban planning the costs of adaptation measures stay
relatively low if they are adopted at an early stage when new urban zones
are created in a context of urban extension. The planning authorities can
incorporate adaptation policies into their design of a new urban structure.
The network and surface relief of streets and the construction of ‘water
storage squares’ and canals can help to create an urban environment
that is protected against excessive rainfall. The position of buildings and
their architectural design may help to protect inhabitants against the
stress caused by heatwaves. Buildings can create shadow. In open space
planning the provision of green areas will have tempering effects on the
development of heat stress.
A government that wants to take adaptation measures within exist-
ing urban areas still has several instruments at its disposal. It may use its
discretionary powers in the context of urban improvement and renewing.
However it will run up against legal impediments and complications, such

as the protection of existing rights, expropriation proceedings and com-

pensation for losses. There must be a fair balance between the public inter-
ests of adaptation on the one hand and the losses and costs for individual
citizens on the other hand. As far as the right of property is concerned, this
proportionality principle is even guaranteed by the ECHR.22
As this example illustrates, in many situations public authorities should
implement adaptation policies at an early stage. A postponement of adap-
tation measures will make implementation in the future more difficult and
will cause legal complications and costs. That is one of the reasons why
some public authorities are inclined to take measures at an early stage, not
primarily in reaction to the threat of liability (based on failure to act) but
as an attempt to guarantee public health and safety by means of a cost-
effective policy.
However, the Dutch system can have more positive effects on adapta-
tion policies to the extent that liability is based on the principle of equal
treatment. This kind of liability offers administrative authorities a chance
to reduce social and economic opposition to the implementation of their
adaptation policies. People in government and administrators who are
willing to take appropriate adaptation measures will meet opposition from
social, political and economic bodies and organizations. One of the reasons
for this resistance is the actual costs of the measures themselves. Another
reason is the burden of adverse economic effects, such as the lower value
of privately owned land in a water storage zone. Compensation based on
equal distribution of losses may help the person responsible for preparing
the adaptation measure to persuade opposing parties of the reasonable-
ness of his/her decision and to reassure potential victims.
6. CONCLUSION
An effective system of governmental liability could stimulate the develop-

ment of an appropriate adaptation policy.
However, as regards short-term liability for administrative decisions
the effectiveness of the existing legal system in the Netherlands is doubt-
ful. This would improve if some basic obstacles could be removed. These
obstacles, as I have demonstrated in this chapter, are inherent to the Dutch
legal system, more in particular to the public–private law distinction that
is typical of this system. Therefore we cannot expect these obstacles to be
easily eradicated. The barriers form a serious hindrance to the preventive
and stimulating effects that liability for wrongful administrative decisions
should have.
Short-term risks might also be caused by a failure to act. Claims may be

based on negligence of the authorities or on strict liability of public bodies,

being the holders of the dykes. These claims are more likely to succeed.
Public authorities can be stimulated to take measures at an early stage,
not primarily in reaction to the threat of liability in the future but as an
attempt to take care of public health and safety by means of a cost-effective
policy. Policy makers who are willing to take early adaptation measures in
good time will meet opposition from social, political and economic parties
who offer resistance to adverse economic effects. This opposition will be
tempered by an effective and transparent system of reasonable compen-
sation for adverse effects of lawful adaptation measures. Such a system,
based on the principle of equal treatment, may facilitate the acceptance of
adaptation measures within society.
NOTES
1. Dam, C.C. van (1989), Zorgvuldigheidsnorm en aansprakelijkheid, Deventer: Kluwer;

Faure, M. (1990), ‘Milieubescherming door aansprakelijkheidsrecht of regulering?’ Ars
Aequi 1990, pp. 157–167; Hartlief, T. (1997) Ieder draagt zijn eigen schade, Deventer:
Kluwer.
2. An explanation of the Dutch system of legal protection against administrative acts can
be found in: Seerden, Rene J.G.H. (ed.) (2007), Administrative Law of the European
Union, Its Member States and the United States. A Comparative Analysis, Intersentia
Antwerpen-Oxford, second edition, pp. 155–220.
3. Seerden, Rene J.G.H. (ed.) (2007), ibid., p. 182.
4. Hoge Raad 9 September 2005, Administratiefrechtelijke Beslissingen 2006, 286.
5. Roozendaal, B.J.P.G. (1998), Overheidsaansprakelijkheid in Duitsland, Frankrijk en
Nederland, Arnhem: Gouda Quint, pp. 230–233 and pp. 210–214.
6. Bundesgerichtshof 6 December 1984, Monatschrift fur Deutsches Recht, 1985, p. 100;
Bundesgerichtshof 31 January 1991, Neue Zeitschrift fur Verwaltungsrecht, 1992, p. 298.
7. Conseil d’Etat 8 November 1989, Receuil des decisions de Conseil d’Etat, Editions
Sirey, p. 228; Conseil d’Etat 28 February 1992, Receuil des decisions de Conseil d’Etat,
p. 78; Moreau, J. (1957), L’influence de la situation et du comportement de la victime
sur la responsabilite administrative, Paris: LGDJ; Debbasch, Charles (2002), Droit
Administratif, Paris: Economica, septieme partie.
8. Hoge Raad 19 June 1998, Administratiefrechtelijke Beslissingen 1998, 416.
9. Hoge Raad 3 February 2006, Administratiefrechtelijke Beslissingen 2006, 225.
10. Afdeling bestuursrechtspraak Raad van State 15 December 2004, Administratiefrechtelijke
Beslissingen 2005, 54.
11. Such a test (literally a ‘marginal test’) is similar to a reasonableness test.
12. Hoge Raad 9 November 2001, Administratiefrechtelijke Beslissingen 2002, 20 m.nt.
Thijs Drupsteen.
13. Rechtbank Den Haag 24 December 2003, Nederlandse Jurisprudentie 2004, 230
(Vuurwerkramp Enschede), our translation.
14. Par. 6:147 (1) Burgerlijk Wetboek.
15. Gerechtshof Amsterdam, 9 June 2009, case no. 106.006.685/01 (LJN: I7389) (www.
rechtspraak.nl).
16. Hoge Raad 7 May 2004, Administratiefrechtelijke Beslissingen 2005, 127. See in this
respect Faure, M. and T. Hartlief, ‘The Netherlands’, in Koziol, H. and B.C. Steininger
(eds), European Tort Law 2004 (2005) pp. 428–429, no. 14–17.

17. Hoge Raad 13 July 2007, Nederlandse Jurisprudentie 2007, 504.

18. Jurgens, G.T.J.M., Relativiteit in het bestuursrecht (oratie Universiteit Utrecht) Utrecht
2005; Giessen, I., Toezicht en Aansprakelijkheid, Deventer: Kluwer 2005; Ommeren,
F.J. van Administratiefrechtelijke Beslissingen 2005, 127; Dunne, J.M. van, ‘De herfsttij
der relativiteitsleer’, Tijdschrift voor Milieuaansprakelijkheid 2007-5, p. 123.
19. A short explanation of this legal principle and its relevance for state liability: Seerden,
Rene J.G.H. (ed), above, note 2, pp. 209–210.
20. See in the context of adaptation to climate change: Bruggeman, Véronique and Marjan
Peeters (2008), ‘Exploring governmental and victim responsibilities in view of abrupt
climate change in North-Western Europe’, in J.C.M. Van den Bergh et al. (eds),
(Programme Committee on Vulnerability, Adaptation and Mitigation), What if . . .
abrupt and extreme climate change?, Netherlands Organisation for Scientific Research,
The Hague, October 2008, pp. 7–44.
21. See for example: Van Dam, Cees, European Tort Law, Oxford University Press 2006,
chapters 8 and 18.
22. See Jacobs, Francis G., Robin C.A. White and Clare Ovey, European Convention on
Human Rights, 4th edition 2006, Oxford University Press 2006, Chapter 15.

PART V
Conclusion

12. Concluding remarks
1. INTRODUCTION
For some the topic of climate change liability may still seem like nice
legal ‘hocus pocus’, useful for academics with too much imagination, but
not a tool that realistically could be used to force emitters of greenhouse
gases towards preventive measures. It is indeed not difficult to identify the
many hurdles and problems inherent to traditional liability law as a result
of which climate change would almost feature as an example of the type
of damage that could never be covered under traditional tort law. After
all, tort law is primarily meant for situations where one victim (plaintiff)
is injured by one identifiable injurer (defendant), whereby the causal link
between the known damage suffered by the known victim and the activity
of the identifiable injurer is quite clear and not debated. Damage resulting
from climate change does not of course fit into this traditional picture: the
damage suffered by one individual victim may often be very small. After
all, all citizens worldwide could suffer from the effects of climate change,
but for most the damage may be too limited to provide an incentive to
bring a lawsuit. Even so, the number of defendants is potentially huge, but
in particular the problems of causation seem insurmountable.
The goal of this book was not to stress those hurdles and come to the
conclusion that climate change liability should indeed stay within the ivory
tower of academics. The contributors to this book did give these hurdles
serious consideration, but instead attempted to examine legal theory, doc-
trine and case law to discover whether possible solutions could be found
there that would make the use of the private law system in the fight against
climate change a realistic alternative.
2. THE IMPORTANCE OF SOUND SCIENCE
Climate change liability is no longer unimaginable in view of the

progress made in scientific research, more particularly the work of the
255

Intergovernmental Panel on Climate Change (IPCC), pointing at a

causal relationship between anthropogenic greenhouse gas emissions and
climate change, but increasingly also at a causal relationship between spe-
cific weather-related events (like a heatwave) and an increase of emissions.
These increases in scientific knowledge make the likelihood of successful
climate change liability claims more realistic. However, particularly at the
time of writing of this chapter in the first quarter of 2010, it is precisely
the work of the IPCC which is being heavily debated, and doubts have
arisen about the quality of its reports and the robustness of the provided
conclusions. This is the result of some striking errors that were found in
the IPCC work, in particular the report contributing to the fourth assess-
ment of the IPCC in 2007 from Working Group II focusing on impacts,
adaptation and vulnerability. Moreover, the leakage of emails from the
Climatic Research Unit at the University of East Anglia in Norwich, UK,
has contributed to doubts with regard to the integrity of the scientific
work. As a reaction to pressing questions with regard to the trustworthi-
ness of the IPCC projections, a large group of Dutch professors who have
contributed to the IPCC, in an open letter on 10 February 2010 to the
Dutch Parliament, stressed that the errors ‘do not alter the key finding
that human beings are very likely changing the climate, with far reach-
ing impacts in the long run’. These scientists emphasize that with present
greenhouse gas concentrations the temperature is expected to increase
by at least 1°C in the coming decades on top of the worldwide tempera-
ture increase of about half a degree over the past century. This group of
Dutch scientists also argues that ‘the IPCC procedures are transparent
and thorough, even though they are not infallible’.1 However, the need
for a review of the IPCC itself was considered to be necessary, and in
March 2010 the Secretary-General of the UN together with the chair of
the IPCC launched an independent review of the IPCC’s processes and
procedures, to be conducted by the InterAcademy Council (IAC).2 This is
a multinational organization of science academies which has been created,
according to its website, to produce reports on scientific, technological
and health issues, therewith providing knowledge and advice to national
governments and international organizations. It will be interesting to see
how the IAC will manage to conduct a trustworthy review procedure
itself. According to the press release, the review needs to examine every
aspect of how the IPCC’s reports are prepared, including the use of non-
peer reviewed literature and the reflection of diverse viewpoints. The
review should also examine institutional aspects, including management
functions as well as the panel’s procedures for communicating its findings
to the public.3
Obviously, it is of crucial importance to the examination of the chances

Concluding remarks 257
of liability claims that the quality of the IPCC reports gets meticulous
scrutiny. If the IPCC projections with regard to the global warming effect
of anthropogenic emissions do need to be corrected in the direction of a
less dramatic forecast, we might feel some relief. If however the present
projections and the key notions become even more robust, the need for
action and the likelihood of successful liability will increase even further.
3. A BROAD APPROACH TO LIABILITY LAW
As we already stressed in the introduction, the notion of ‘climate change

liability’, as used in this book, was certainly not restricted to liability in the
traditional sense of tort liability under private law. The contributors in this
book addressed more broadly whether the judicial system (either by using
private law or public law remedies) could be utilized to achieve specific
goals related to the consequences of climate change. Within this broader
perspective, claims should not necessarily be limited to the traditional
request of a victim in tort law, i.e. to ask for damages, but could also focus
e.g. on injunctive relief. But even claims for compensation are not totally
unimaginable. After all, many contributors to this book (for example van
Dijk in Chapter 9) stress that 25 years ago many would have considered
a successful claim against tobacco manufacturers as totally unimaginable,
whereas legal practice has shown that this is no longer the case. The same
may turn out to be the case for climate change-related claims. Even though
claims seeking compensation for damage caused by climate change have
not yet been successful, some claims (more specifically) requesting govern-
ment authorities to take action to reduce emissions have been.
In the remainder of these remarks we will address potential goals of
climate change liability (section 4) as identified by the contributors to
this book, discuss a few potential drawbacks of climate change liability,
which have been stressed by many as well (section 5) and identify what
specifically could be claimed by a plaintiff (section 6). Much attention in
the contributions was of course paid to potential hurdles to climate change
liability (section 7). Two specific hurdles deserve a separate mention, being
the relationship between regulation and liability (section 8) as well as the
causation problem (section 9). Closely linked to the causation issue is the
question of who can be held liable and hence who can be sued in a court
(section 10). Several contributors have discussed the cases that have been
decided or are currently adjudicated (section 11). This allows (although
the experience to date is modest) a few comments on the effectiveness of
climate change liability (section 12) and a few comments on the future
agenda (section 13).

4. GOALS OF LIABILITY
A few rather obvious goals that a climate change-related suit could serve
are identified inter alia in Chapter 2 by Haritz. One obvious function of
climate change liability (and perhaps the most appealing) is deterrence.
From this perspective a climate change liability suit against either emit-
ters or government authorities would have a preventive effect. Hence,
this goal of deterrence would not only exist when specific injunctive relief
was sought, but also when the claim was aimed at compensation. After
all, the idea would be that a duty to compensate (as a result of being held
liable) would force the defendant to take the requested action (toward
mitigation and adaptation). A second goal could be corrective, in the sense
that by putting the polluter-pays-principle into practice climate change
liability would provide a remedy for damage that may occur in the future
(if no appropriate mitigation or adaptation steps were taken). These two
goals (deterrence and correction) are hence both forward-looking, in the
sense that it is expected that the prospect of being held liable ex post will
give potential defendants ex ante an incentive towards mitigation and
adaptation.
This would be different for a third potential goal, being compensation.
Compensation would be rather backward-looking and would ex post
(after the damage has occurred) seek redress for the victims that are not
compensated or are undercompensated for damage that resulted from
climate change.
It is likely that the first two goals will play a more important role
than the third. One reason is that today, with perhaps a few exceptions,
significant damage resulting from climate change has generally not yet
occurred since such damage is seen as an expected consequence of climate
change in the future. Claims for compensation therefore predominantly
seek compensation for future losses, which is in many legal systems not
impossible, but nevertheless a rather complicated issue. Moreover, as far
as compensation of victims is concerned, other mechanisms may exist that
could provide this compensation at lower cost and in a fairer way. After
all, climate change liability may only be initiated by some victims, thus
leaving many others without compensation. Other instruments like e.g.
first party insurance or disaster funds (financed by emitters) could provide
this compensation at lower cost and in a more structural manner.
It can hence be expected that the most important goal of a climate
change liability suit is to obtain a change of behaviour of the defendants
(emitters or government authorities). The goal identified may of course
have consequences for the remedy chosen: injunctive relief may be a more
appropriate remedy than asking for damages. However, it should again

be stressed that asking for damages as well should not necessarily have
(merely) a compensation goal, but could also serve the goal of changing
the behaviour of defendants.
5. DRAWBACKS
Although many contributors have identified a variety of goals that could

be served by climate change liability, many have also generally pointed at
potential drawbacks. These types of drawbacks are not only related to the
fact that it may be complicated in the legal system to effectuate a climate
change liability claim, but are also related to more general issues where
doubts arise as to whether climate change liability is at all the appropriate
instrument to use to fight climate change.
There are undoubtedly serious drawbacks to climate change liability.
One of those is, as rightly stressed by Spier in Chapter 3, that climate
change is, according to scientific projections, such a serious problem that
it now requires immediate action on a relatively short term. Law suits,
taking into account the many difficulties and defences that may be raised
by defendants will (also given the appeal possibilities) at best take several
years. It is questionable whether the world can afford to wait for the
outcome of those cases. Also, climate change liability will, given the setting
of cases, always be limited to a few defendants and a few victims. Of course
the victims can (dependent upon the legal system) group themselves into a
class or organize as an NGO, and, also, those defendants that contribute
substantially to greenhouse gas emissions could be attacked, but litigation
always has even now a rather haphazard nature and can thus not regulate
matters in a more structural way. That is a danger identified more gener-
ally by many contributors also, being that regulatory measures (command-
and-control instruments, market-based instruments, and/or hybrids) will
still be the main tools for forcing emitters to take measures to mitigate and
adapt to climate change. The danger exists that climate change liability
suits will disturb the regulatory system if defendants were to be held liable
even when there was compliance with the regulatory structure. However,
if the regulatory system stays too weak, liability law can be examined in
order to complement the as such ineffective regulatory approach.
Moreover, if climate change liability were taken seriously and were to
rise sharply, it could lead potentially to catastrophic consequences on the
side of industry. As Kaminskaitė-Salters points out in Chapter 7, if the
courts were prepared to accept joint and several liability (which they are
likely to be very reluctant to do), climate change liability could have highly
damaging effects for the financial situation of major energy industries,

potentially also leading to severe socio-economic losses and notably also

to problems with energy supply.
These drawbacks are of course to be taken seriously, but are not nec-
essarily an argument against climate change liability as such. They are
an argument for example to examine carefully the relationship between
a regulatory structure with command-and-control and/or market-based
instruments on the one hand and climate change liability on the other
hand (see section 8). Also, these constraints of liability suits (long dura-
tion, individual character etc.) make most contributors realize that climate
change liability will most likely never be the main instrument to control
mitigation and adaptation to climate change, but at best fulfil a useful
complementary role in addition to, e.g., an emission trading scheme.
Moreover, some of the drawbacks pointed at, e.g., by Spier, like the fact
that climate change liability could have financially disruptive effects for
industry, may be most serious when plaintiffs actually bring a claim for
damages. If, on the other hand, a claim ‘merely’ asks defendants to take
appropriate measures to mitigate climate change – in a rather carefully
determined transition period – that may admittedly still be costly but
should not necessarily lead to the financially disruptive effects that could
occur if damages were to be awarded as a remedy.
6. WHAT TO CLAIM?
The last observation brings us precisely to the point that the likelihood
of a successful climate change liability claim may to a large extent also be
dependent upon the nature of the claim. To a large extent this is of course
related to the issue we discussed above, of the goals of liability.
One possibility is, as we already mentioned, to bring claims for compen-
sation for damage caused by climate change. Kosolapova makes clear in
Chapter 8 that those claims have indeed already been brought in the US,
but have so far not been very successful. A problem that of course arises
in those cases is that most legal systems require that damage has already
occurred (which is to some extent indeed already the case, but most
actions are particularly addressed at preventing future harm). Another
problem in claiming compensation is that hypothetically some defend-
ants may be held liable to compensate for damage that was certainly not
caused by them alone. Of course there are legal techniques to limit the
duty to compensate to the proportional contribution to the damage by
the particular (group of) defendants, but courts may be reluctant to award
damages, given the potentially disruptive effects this may have on the
financial situation of defendants.

Claims could also be brought for so-called procedural injury, as indi-

cated by Kosolapova in Chapter 8. These would ‘merely’ amount to,
e.g., challenges to environmental impact assessments and judicial review
cases. These comprise so far the largest and also most successful category
of climate change claims. Most of these suits are not directed against
industry, but against public authorities (and hence often indirectly affect
the position of private parties who want to undertake a certain activ-
ity for which a public authority should take an administrative decision)
who would have failed to take sufficient action towards mitigation or
adaptation.
The third type of claim could be to seek injunctive and/or declaratory
relief. Both Spier (Chapter 3) and van Dijk (Chapter 9) argue that these
would potentially be the most successful type of claims. The type of claim
that comes to mind is the one whereby plaintiffs ask (a group of) defend-
ants to mitigate emissions or ask public authorities to take action to force
industry to take similar measures. Even though most contributions focus
on injunctive relief leading towards mitigation, some also point at the
fact that injunctions could equally be asked for adaptation measures.4 A
failure to take appropriate adaptation measures (like increasing the level
of dykes) could indeed potentially lead to substantial damage to those
living in the neighbourhood.
A difficulty with injunctive relief is that it is not always very clear what
relief plaintiffs can and do specifically seek and consequently what courts
could order. The most far-reaching injunction would obviously be the one
through which a court would e.g. order to stop exploitation by a plant
that produces a high number of emissions, like a coal-fired power plant. It
is, however, unrealistic that a court would actually order such an injunc-
tion (especially not if this would amount to the shutdown of a factory),
since this would also raise the important question as to where a particular
country would then source its energy if sufficient alternatives were not yet
available. Hence an injunction could most likely at best force emitters (or
indirectly emitters via public authorities) to reduce emissions to a reason-
able level within a certain transition period. But then immediately the
question arises as to how that reasonable level will have to be determined,
more particularly if there were compliance with a regulatory framework.
How would a court then have appropriate information to judge that the
regulatory standards were insufficient and that compliance with a more
stringent standard were appropriate? The reluctance of courts to engage
themselves (at least implicitly) in such standard setting may be the reason
why these claims for injunctive relief have not been successful yet, as
explained by Kosolapova in Chapter 8.

7. HURDLES (AND POTENTIAL SOLUTIONS)

The various contributions in Part III construct a potential climate change
liability claim using specific legal rules in various legal systems to analyse
to what extent a climate change liability claim could realistically be
brought within their own legal system. To some extent these contribu-
tions (e.g. on English law in Chapter 7 and Dutch law in Chapters 9–11)
show that the conditions for climate change liability between various
legal systems vary substantially. Hence the authors examine what specific
type of liability rules could be used as an appropriate basis for a climate
change liability suit. This leads to the conclusion that, e.g., under English
law (as argued by Kaminskaitė-Salters in Chapter 7) public nuisance may
be a more appropriate basis for liability than negligence. However, all of
the contributors hold that one can naturally try to construct a potential
climate change liability claim and examine under which conditions it may
be more or less likely that it would be successful. However, the outcome
in most legal systems of course remains uncertain and is also to a large
extent, as rightly stressed by Spier in Chapter 3, dependent upon the will-
ingness of the courts, in some cases to use existing rules or case law but in
other cases also to provide them a rather broad interpretation. Most con-
tributors therefore merely identify potential hurdles and indicate equally
possible solutions that may make a successful claim more likely.
A first hurdle mentioned by many, but specifically by Kaminskaitė-
Salters in Chapter 7, is related to the fact that victims may be individuals
who face all the traditional difficulties associated with bringing a liability
suit that other tort victims face as well. One of those may be related to the
simple fact that bringing a lawsuit may (dependent upon the legal system)
simply be extremely costly. In jurisdictions where legal assistance is rather
limited (like in the UK according to Kaminskaitė-Salters) the scope
for individual victims to bring climate-based law suits may be severely
constrained.
This raises the interesting question whether individuals could form
groups, e.g. by bringing them together in a non-governmental organiza-
tion (NGO) that would then sue on behalf of the group of victims. In addi-
tion, the claims of environmental NGOs ‘pur sang’ – NGOs that aim for
the protection of the environment as such – could play an interesting role.
Both van den Biesen (in Chapter 10) and van Dijk (in Chapter 9) show that
at least under Dutch law such an environmental NGO would have stand-
ing to ask for mitigating measures. At least under Dutch law this would
hence not constitute a hurdle. Kosolapova, however, shows in Chapter 8
that in the few cases that were filed in the US the requirement of standing
posed a serious problem. Case law of the US Supreme Court apparently

requires that there is concrete and particularized injury in fact and that
this should be fairly traceable to the challenged action of the defendant.
Kosolapova shows that under US law these standing requirements are
apparently not easy to meet.
Another closely related issue, discussed again both by van Dijk in
Chapter 9 and by van den Biesen in Chapter 10 is that a traditional liabil-
ity suit requires that there has to be damage on the site of the plaintiff.
More specifically, van den Biesen points out that the Dutch Civil Code
even explicitly excludes environmental NGOs from asking for monetary
compensation. van Dijk furthermore discusses that if concrete damage
would not (like it is under some legal systems) be a requirement for stand-
ing, the absence of such damage could nevertheless lead to the failure of
the liability suit since one of the material conditions of liability (damage)
would simply be absent. van Dijk argues that this requirement of damage
that should already have occurred indeed is to be seen as an important
hurdle if the plaintiff were to seek compensation. In that case the defend-
ant could rightly argue that the plaintiff would ask compensation for
damages that have not occurred yet, which is under many legal systems
problematic. However, both van den Biesen and van Dijk argue that the
same problem should not necessarily arise if it is not compensation, but
injunctive relief that is sought by the plaintiffs. A claim for an injunc-
tion should not necessarily be a problem (also when it concerns future
damage) since in that case the requirement that the damage has already
been incurred does not apply. Moreover, van Dijk suggests that a claim to
defend the rights of future generations could be brought (albeit that such
a claim will not be awarded easily) and he, in particular, proposes to allow
a very young child to act as a claimant. Possible damage will then most
likely occur during that child’s lifetime.
One issue that may, however, in the words of van den Biesen (in Chapter
10) spoil the party is compliance with regulation. That is an issue that
may more particularly arise in legal systems that already have a (relatively
strong) regulatory framework, like in the EU. Both van Dijk and van den
Biesen argue that a defendant in a liability suit e.g. in the Netherlands (but
most likely also in other European legal systems) that participates in the
EU ETS and does not emit beyond the emission rights that have been pur-
chased could probably argue that there is no unlawfulness in his conduct.
That reasoning apparently assumes that the regulatory regime that has
been put in place (like an ETS) is dealing with the problem of climate
change in an adequate manner. However, Kaminskaitė-Salters argues in
Chapter 7 that this conclusion should not necessarily be reached under
English law. She holds that the mere fact that a defendant complied with
a regulatory standard will not necessarily lead to an immunity as far as

liability is concerned. She therefore concludes that the so-called statutory

authorization defence would not generally be available to the defendants
in a climate change-based legal action. van den Biesen also concludes that
a statutory authorization does not automatically prevent a greenhouse
gas emitter from liability, but at the same time he expects that it will still
be hard to hold a compliant emitter liable. Moreover, he also explains
that if a coal-fired power plant or another EU ETS installation were to
be restricted by for instance a court order with regard to its emissions,
this does not imply that an overall emission reduction will take place: the
emission rights which the installation no longer requires can be used by
another industry. In sum, the hurdle of regulatory compliance may not
be impossible to overcome, but a positive outcome may be nullified by
the fact that other emitters would be in the position to use the remaining
emissions rights.
This relationship between regulation and liability is an issue that may
also pop up under the heading of the so-called political questions doctrine.
Both van Dijk (in Chapter 9) and van den Biesen (in Chapter 10) indi-
cate that even though there may not be something like a formal political
questions doctrine in the Netherlands (it is something which is typically
popular in the US) the problem may arise that judges could be reluctant to
enter into an area which they would necessarily consider as ‘political’. This
again raises the question of whether the judiciary can be asked, especially
when regulation is available, to go beyond a standard that has been set as
a result of the political process.
The problem is apparently much more serious in the US, since in that
country regulation aiming at a mitigation of climate change is (at least at
the federal level) to a large extent still absent. That may explain the reluc-
tance of the judiciary to step in and provide (injunctive) relief where the
political body has apparently refused to do so. Indeed, Kosolapova makes
clear in Chapter 8 that this doctrine of the non-justiciability of politi-
cal questions is strongly rooted in the US. One specific case of Comer v.
Murphy Oil was rejected as non-justicible precisely for that reason.
However, it should be remembered that this problem mainly arises in
the US where this doctrine has its roots. However, van Dijk argues that
this should not limit all climate change claims but may be a reason to be
careful in the formulation of a claim and, for example, not asking the
judge to order a public authority to create specific general regulations
(which would be the prerogative of the political body). He makes clear
that if those limits are taken into account other useful actions could still
be taken sufficiently by the judiciary where this political question doctrine
may not play a role at all.
It is striking to see that even though the contributors of course point

at many potential hurdles in a climate change suit, they equally point to

the fact that none of those is (of course depending upon the legal system)
of such a nature that a climate change claim would become impossible.
Mostly the contributors point at possible remedies, e.g. to create standing
or argue that the specific problems should simply be taken into account in
the formulation of the claim in order to increase its likelihood of success.
The hurdles hence (again, depending upon the legal system) usually do not
seem prohibitive, but are rather formulated as issues that plaintiffs should
take into account if they want the chances of success of their claims to
increase.
8. REGULATION VERSUS CLIMATE CHANGE

LIABILITY
Climate change liability may have better prospects in those legal systems
that do not yet have a relatively strong regulatory framework. In that case
the liability claim could be either addressed to public authorities (asking
them to impose such a framework) or against emitters (simply aiming at
a reduction of emissions). In those cases defendants cannot argue that an
elaborate and stringent framework already exists that industry complies
with, as a result of which there should be immunity from liability. It is
hence to some extent perhaps not surprising that most, if not to say all,
of the liability cases (as discussed inter alia by Kosolapova in Chapter 8)
actually occurred in the US. Most of the claims demand that either indus-
try reduce emissions or public authorities take measures to force industry
to do the same.
In Europe climate change liability claims will, as shown inter alia by van
Dijk (in Chapter 9) and van den Biesen (in Chapter 10) be faced with the
problem that Europe has chosen to implement its obligations under
the Kyoto Protocol via the EU ETS. To the extent industries comply with
the ETS they could, at least in the Netherlands, forcefully argue that they
can no longer be held liable for reducing emissions beyond the emission
rights that they have legally purchased under the ETS. As we already
indicated above, this may not be a problem in all legal systems since
Kaminskaitė-Salters argues in Chapter 7 that a statutory authorization
defence (also sometimes referred to as a compliance with permit defence)
should not necessarily bar a climate change liability claim.
It is, however, clear that, especially as far as the European context is
concerned, the EU ETS may pose a serious limit to a liability claim since
the plaintiff would have to argue that the defendant acted wrongfully
even when he surrendered sufficient emission rights in order to cover his

emissions. That of course assumes that the ETS has not correctly fixed
the total cap of emissions and that the defendant would in fact be able
to reduce emissions substantially further at acceptable costs. It would
hence assume that the operator acted wrongfully by not going beyond the
requirements as established by the ETS. That is of course not an easy road
to walk for a plaintiff.
The regulatory framework for the administration may also limit the pos-
sibilities of governmental liability: this is shown in Chapter 11 by Schueler.
He argues that although on paper there may of course be governmental
liability for wrongful acts (and in some cases even a strict liability), in
practice the scope of this liability is seriously limited because civil courts
will have to respect an administrative decision that has not been attacked
with judicial review. Schueler therefore argues that possibilities of govern-
mental liability, e.g. for wrongfully omitting to take adaptation measures
(or for the reverse, of causing damage by taking adaptation measures) may
in most cases not lead to governmental liability in the Netherlands. The
reason is again that the administrative decision-making under public law
will be considered binding for the civil courts (and hence also lawful) if it
has not been attacked under public law.
Peeters identifies in Chapter 5 an interesting consequence of this rela-
tionship between regulation (and more particularly the EU ETS) and
climate change liability. If compliance with the EU ETS were indeed to
lead to immunity of industry (in a liability suit) this would mean that as
long as industry possesses sufficient allowances under the ETS no compen-
sation could be awarded to victims even when emissions were to contribute
to damage (which is not at all unlikely). Peeters therefore argues that the
issue of climate change liability and subsequent compensation should be
loosened from compliance with the EU ETS. The EU ETS is in that per-
spective merely a minimum that has to be complied with, but it does not
guarantee that no damage may occur. Hence she argues that the EU ETS
could be combined with a liability regime and that, moreover, whether
additional steps should be taken, e.g. towards the creation of a compen-
sation fund for those who suffer damage resulting from climate change,
should be examined. This discussion shows that until now the EU ETS has
in Europe (probably wrongly) been considered as the only instrument to
control climate change. It has insufficiently been acknowledged that even
in a case of compliance with the EU ETS, damage could still occur for
which additional measures may be necessary (a liability and/or a compen-
sation fund). This may not only be necessary to provide compensation to
victims but also, given the above-mentioned goals of liability, to provide
additional incentives for prevention to emitters of greenhouse gases.
Finally, it should be stressed, as is done by van den Biesen in Chapter

10, that compliance with a regime like the EU ETS only poses a problem
in a climate change liability suit to the extent that the particular emis-
sions are indeed covered by the EU ETS. Not all installations emitting
CO2 are covered by the EU ETS and, moreover, not all greenhouse gases
are covered. van den Biesen points in this respect interestingly to the role
of the agricultural sector in the production of methane, also a powerful
greenhouse gas. Since methane is not covered at all by the EU ETS the
problems just discussed will not arise when, e.g., an NGO brings a climate
change suit against a coalition of agricultural defendants for methane
emissions.
9. CAUSATION
Many contributors point to the fact that the most important hurdle to
be taken in a climate change suit may be the causation issue. After all,
even though technological insights have changed and may come to the
help of plaintiffs, a plaintiff still has to prove some causal link between
the damage sustained and actions of (a group of) defendants. Many con-
tributors indeed point to the fact that even though causation still remains
a difficult issue, it is no longer considered to be impossible to prove
causation, at least if courts are willing to interpret this broadly as a link
between the damage and actions of particular defendants. Kaminskaitė-
Salters points, e.g., in Chapter 7 to the important progress made by the
Intergovernmental Panel on Climate Change in establishing an evidential
link between anthropogenic emissions and climate change. Moreover, in
the introduction we already pointed to recent research which even allows
particular weather-related events (like a heat wave) to be attributed to
greenhouse gas emissions.
Substantial problems can of course still remain, even when the group
of defendants is relatively large and even when it concerns (supposedly)
large emitters. Even when the plaintiff is able to prove general causation
(concerning the relationship between the defendants’ actions and climate
change) proof of specific causation (between the individual damage of the
plaintiff and the defendants’ action) may still be difficult. At best, in these
situations of causal uncertainty, it can be argued that there is a certain like-
lihood, expressed in a percentage, that the defendants’ actions caused the
plaintiffs damage. Haritz points in Chapter 2 to various remedies that could
assist the judiciary in dealing with causal uncertainty. She for example
argues that uncertainty over causation has also arisen in cases of so-called
toxic torts and has also been dealt with by the judiciary in those cases. The
chapters dealing with English and Dutch law show that one attractive way

(at least from the perspective of plaintiffs) to deal with causal uncertainty
is to use a proportionate approach to causal uncertainty. That means that
absolute certainty is no longer required concerning the causal link, but that
the defendant will only be held liable to pay compensation to the extent to
which it is likely that his activity contributed to the harm. Kaminskaitė-
Salters shows in Chapter 7 that there have been instances in recent English
case law, and more particularly in the decisions of the House of Lords,
where the Courts were prepared to depart from a strict ‘but for’ test, apply-
ing proportionate liability instead. van Dijk shows (in Chapter 9) that after
a decision of the Dutch Hoge Raad (Supreme Court) in 2006 such a propor-
tionate liability rule has now also entered into Dutch tort law. In addition
Haritz shows that the precautionary principle may to some extent also assist
plaintiffs in climate change liability cases, more particularly when dealing
with causal uncertainty. After all, depending upon the interpretation of
the precautionary principle, it forces action even if the causal relationship
between harm and damage may not be sufficiently clear (Chapter 2).
Kosolapova shows in Chapter 8 that causation issues have indeed
played an important role in those cases that have been adjudicated so far.
Some held that this would be the greatest obstacle to the majority of plain-
tiffs. Causation questions in the US cases usually arose under the heading
of standing: if plaintiffs could not show that their injury is fairly traceable
to the challenged action of the defendant standing would be denied. Even
though the US cases discussed by Kosolapova show that causation is
indeed a difficult issue to prove, in one case (the decision of the 5th circuit
in Comer) the Appellate Court apparently accepted that the defendants
substantially contributed to the plaintiffs’ harm, as a result of which stand-
ing was accepted.
An important issue to stress once more is that causation issues may
again be a much more serious problem when plaintiffs actually claim
damages, and thus compensation for harm caused by the defendants, than
when they merely ask injunctive relief. In case of an injunction of course
specific conditions still have to be met, but at least the plaintiff is not
required to show that concrete damage suffered by the plaintiff was caused
by the defendants’ action. Given difficulties in proving causation, a claim
for an injunction asking a defendant to mitigate emissions is more likely to
be successful than a claim for damages.
10. WHO IS LIABLE?
Above we discussed that questions may arise as to who would have stand-
ing to bring a climate change liability claim; similarly, questions may arise

as to who would be an appropriate defendant. A large number of potential

defendants have been mentioned in several contributions, depending upon
the nature of the claim that would be brought. Each of these defendants
results in specific questions and hurdles to be tackled.
Many of course point to the responsibility of primary emitters of green-
house gases, in other words of industry. When climate change suits are
brought against industrial defendants some of the causation issues just
discussed will come up. Also, in legal systems where a regulatory frame-
work with respect to greenhouse gas emissions is in place the relationship
between the liability suit and (compliance with) regulation will arise (see
section 8). Kosolapova notes in Chapter 8 that in practice, suits against
industrial defendants will raise important questions of attribution. These
questions not only concern responsibility of current defendants for the
plaintiffs’ damage, but also relate to the fact that anthropogenic emissions
have occurred for a long time and have cumulatively caused the climate
change problem. Again, this attribution problem underscores the fact that
claims for damages may be far more problematic than claims for injunc-
tive relief.
Also individual states can be sued, e.g. as examined by Gouritin in
Chapter 6, for failure to take appropriate measures with a view to adapta-
tion to climate change. This raises the question of whether such a failure
could be considered to constitute a violation of human rights and thus
lead to responsibility of states under human rights conventions, in par-
ticular the European Convention for the Protection of Human Rights
and Fundamental Freedoms (ECHR). For states belonging to regional
organizations like the EU this raises particularly challenging questions,
since in this particular case a state could argue that it executed its obliga-
tions to mitigate climate change via the EU ETS that had been adopted
by the European Union, although such a claim could be contested based
on the argument that the member state did not take additional measures
as far as that would be allowed under EU law. The influence of EU law
on the regulatory approaches of member states also raises the question to
what extent the EU itself could potentially be held liable for a violation of
human rights as mentioned in the ECHR. The fact that under the Lisbon
Treaty the connection between EU law and the ECHR has been strength-
ened, as according to article 6 of the Treaty on the European Union the
EU is going to accede to the ECHR ànd that fundamental rights, as guar-
anteed by the ECHR, shall constitute general principles of the Union’s
law, makes this question indeed not simply a theoretical one.
Similar questions of liability of the EU and its member states also arise
as far as complying with the commitments under the Kyoto Protocol is
concerned. de Cendra de Larragán shows in Chapter 4 that since both

the EU and its member states are party to the Kyoto Protocol both
could theoretically be held liable (under international law) in case of
non-compliance. Particular problems arise if the EU as such were not to
comply as this would of course be the result of non-compliance by one
of its members. This raises important questions, addressed in Chapter 4,
e.g. to what extent complying member states would have an obligation
to support the efforts of the EU to reach a situation of compliance again.
The various contributions also make clear that it is not always possible
to draw precise dividing lines between various defendants and between
various levels of governance. The liability of industry will to a large extent
be related to actions taken by individual states (via regulation) and the
liability of the EU (for compliance with the Kyoto Protocol) will of course
depend upon actions taken by its member states. Even the case law of the
European Court of Human Rights, discussed by Gouritin in Chapter 6
already shows that, e.g., positive obligations (towards access to informa-
tion) are also based upon EU law and domestic law, holding that relevant
information should be provided to citizens. This once more shows that
obligations created in one domain (human rights laws) can to some extent
be shaped by the contents of legal rules in other domains (domestic and
EU laws) and vice versa. This leads to the obvious conclusion that the role
of these various defendants should be analysed in an integrated way and
attention should be paid to the way in which the various levels of govern-
ance mutually influence each other.
11. CASES
As was already mentioned in the introduction, climate change liability is

no longer merely a theoretical possibility and many cases have already
been litigated. Strikingly almost all have been brought in the US, but as
we argued earlier (section 8), this should not come as a big surprise since
the US still largely lacks a regulatory framework to control greenhouse gas
emissions at the federal level. Many suits do aim either at forcing industrial
defendants towards reducing emissions or forcing public authorities to
take similar measures. The cases and their results (to the extent known) are
discussed in detail in Chapter 8 by Kosolapova. Many suits have sought
injunctive relief, but have so far not been very successful. Kosolapova also
discusses claims for compensation which have not been successful either.
The only noteworthy exception (already discussed in the introduc-
tion) was the case discussed by Haritz in Chapter 2 of Massachusetts and
others against the environmental protection agency, which reached the US
Supreme Court. The Supreme Court held, in short, that the EPA wrongly

considered that it did not have competence to regulate emissions of green-

house gases under the Clean Air Act (that was written before the broad
attention to climate change and the need for regulatory action emerged).
Both Kosolapova (in Chapter 8) and Haritz (in Chapter 2) make clear
that even though legal doctrine mostly discusses the climate change cases
brought in the US, it would be wrong to consider climate change litigation
merely an American phenomenon. Cases are also brought, as they show,
in New Zealand, Australia and Canada. A view of the climate change
litigation hot spots shows that indeed most cases were brought in North
America so far, but that some actions take place in Australia, Africa and
Europe as well. Moreover, Gouritin also points in Chapter 6 to a claim
of the Maldives to the office of the UN High Commissioner for Human
Rights regarding substantial damage it suffers as a result of the human
impact of climate change.
So far not many success stories can be reported, with the major excep-
tion of the already often-mentioned US Supreme Court case of 2007
of Massachusetts v. EPA. Moreover, Haritz also points to a September
2009 US Court of Appeals decision where plaintiffs were granted stand-
ing and climate change was considered as justiciable despite its political
implications.
12. EFFECTIVENESS?
Looking at the cases that were brought so far and at the drawbacks of
climate change litigation discussed above (section 5), the question could
be asked to what extent climate change liability can be considered as an
effective tool for mitigation or adaptation to climate change. After all, the
overview of cases that were litigated thus far, presented by Kosolapova in
Chapter 8, shows that, with the exception of claims related to procedural
injury, most claims have been rather unsuccessful. Also, to date, climate
change litigation has largely been limited to North America and Australia
and has not been an issue yet in most European countries. Spier also
criticizes the fact that in some cases too much attention is paid (by NGOs
also) to relatively small cases (Chapter 3). He presents the case of the Inuit
as an example of a case that may undoubtedly for the persons involved
have great importance, but for the major problem of global warming may
have a relatively small impact. That is perhaps the fate of much of climate
change litigation. If one wishes claimants to have standing this will often
require that they can prove personal (and preferably substantial) damage
(like the disappearance of the habitat in which they live), but that may at
the same time make the scope of the litigation relatively limited.

At a more general level one can of course wonder about the general
effectiveness of litigation as an instrument for mitigation and adapta-
tion. Undoubtedly regulatory or market-based instruments like emissions
trading or taxation can tackle the climate change problem in a much more
structural way than litigation through individual cases. It is therefore
not surprising that much of the litigation so far merely aims at forcing
public authorities to issue regulation. Moreover, Spier rightly warned
(in Chapter 3) that climate change liability may (especially in the light of
the financial crisis) lead to devastating financial consequences if damages
for the consequences of climate change are sought via litigation. It is
understandable that courts will be reluctant in that respect. After all other
instruments (insurance, compensation funds etc.) may be better able to
provide compensation in a structural matter than liability cases. Even if
climate change litigation is not used for compensation but rather to obtain
injunctive relief the formulation of the request (and hence the injunction)
remains important. After all, a request, e.g. requiring that all enterprises
causing CO2 emissions be shut down, would be economically unsustain-
able and would also raise the question of where a country would get its
energy from if e.g. all coal-fired plants were to be prohibited. Hence, the
formulation of a claim will probably be more nuanced and rather aim
at reasonable mitigation or adaptation measures. In that respect, again
the question comes up of climate change liability as an effective tool in
addition to regulation. We believe that even though regulation (including
market-based instruments) may be the primary instrument to control for
climate change, climate change litigation can play an important supple-
mentary role. After all, as a result of lobbying efforts by industry, regula-
tory standards often remain too weak. Hence substantial damage can still
emerge even if regulation is complied with. If liability can still be used as
an additional tool, then this sends an important signal to industry that,
e.g., merely complying with an EU ETS may not be sufficient if additional
cost-effective measures to mitigate climate change could be taken. Of
course it will require substantial efforts (and expertise) from the judiciary
to determine to what extent industry can be required to go beyond regula-
tory standards. In this way climate change liability can potentially fulfil
a modest, but highly important complementary role in supplementing
regulatory efforts.
Of course the extent to which this role can be fulfilled in a successful
way will largely depend upon the willingness of the judiciary to go along
the road of climate change liability. Spier pointed in Chapter 3 to the fact
that courts have an important responsibility in these climate change cases.
Above we showed (section 7) that there may be important hurdles to a
successful climate change claim, but equally that possibilities exist to deal

with those. It will hence to an important extent depend upon the judiciary
whether it is willing to use possibilities to interpret existing legislation in
such a way that climate change litigation may become successful.
13. AGENDA: THE WAY FORWARD
Many contributors make clear that in order for climate change liability
cases to be successful a lot of imagination and perhaps even activism may
be required. Creative lawyers and especially the judiciary are to play an
important role in that respect. Environmental NGOs, supported by their
lawyers, should try to select those cases where, given the conditions in
existing laws, the likelihood of success is the greatest, but equally where
the highest effectiveness (in optimal mitigation and adaptation) can be
obtained.
In bringing claims plaintiffs may choose unconventional defendants
as well. Spier points in Chapter 3 to the possibility to sue, e.g., pension
funds who via their investment policies can have an important influence
on behaviour of emitters. van Dijk, too, argues in Chapter 9 that specific
financial institutions or government bodies could be sued since their
investment policies may equally affect the behaviour of industries in which
they invest. After all, the main goal of climate change litigation is to affect
behaviour of emitters. In that respect choosing third parties (like financial
institutions) that may have a crucial influence on the behaviour of emitters
may not be a bad choice at all.
Also, academic research of a multidisciplinary nature is needed, for
example to examine more closely how to deal with the seemingly most
important hurdles for climate change liability, being the relationship
between regulation and liability (section 8) and the causation issue (section
9). Further research, too, is necessary to determine optimal compensation
mechanisms that could deal with damage caused by climate change. In
particular, the way in which the structure and financing of these compen-
sation mechanisms may at the same time provide incentives for mitigation
and adaptation needs close attention.
Climate change liability was put on the agenda because for a long time
lawyers and policymakers interested in climate change only seemed to
focus on one miracle solution towards climate change: emissions trading.
The literature and cases dealing with climate change liability show that
other options may be necessary to fight this huge and truly global problem.
The research into appropriate tools for mitigation and adaptation should
of course not stop with climate change liability. Another prospect, sug-
gested by Spier in Chapter 3, is that of examining whether in extreme cases

even criminal liability could be imposed on those who knowingly con-

tribute, through wrongful emissions, to climate change. Indeed, natural
scientists warn that the time for talking is over and that the recent debacle
at the conference of the parties in Copenhagen makes clear once more
that if solutions do not come from politicians at the negotiating table,
others will have to take responsibility to deal with the huge challenges that
climate change poses. The failure of Copenhagen may hence lead to a shift
from the negotiating table to the court rooms. The extent to which this will
be successful will depend not only upon the confidence placed in natural
science reports with regard to climate change but also upon the willing-
ness of lawyers and judges to be more courageous than politicians and to,
indeed, take responsibility to deal adequately with this huge problem.
NOTES
1. Open letter (10 February 2010) to the Netherlands parliament by Netherlands scientists
on climate change and IPCC. This letter, undersigned by 55 professors of various disci-
plines, is available at: www.sense.nl/openbrief. ‘Sense’ is ‘The research school for socio-
economic and natural sciences of the environment’, a joint venture of environmental
research institutes of ten Dutch universities (website visited 12 March 2010). Lawyers are
hardly included among the undersigned.
2. http://www.interacademycouncil.net/ According to its website, the IAC is client-driven
and project based.
3. IPCC, Press Release, 10 March 2010.
4. See more particularly Chapter 6 by Gouritin and Chapter 11 by Schueler.

Index
Aarhus Convention, 1998 229 Adaptation Fund 105
AAUs (Assigned Amount Units) 65, ‘Adapting to climate change: Towards
69, 72–73 a European framework for action’
abatement, emission 119 (White Paper) 148, 153, 154
access to information 144–145, 149 administrative decisions, Netherlands
Access to Justice Act 1999, UK 171 239–242, 247, 249
accidents, nuclear/marine oil 92, 118, admissibility of applications, to Court
123 of Human Rights 138–139
accountability 242 Affaire linguistique belge, positive
Ackerman, F. 39 obligations theory 139
action, vs. failure to act 238 Akandji-Kombé, J.-F. 155–156
Ad Hoc Working Group on Further Akkermans, A.J. 225, 226
Commitments for Annex/Parties Alcamo, J. 88
under Kyoto Protocol (AWG-KP) Allen, M. 4, 12, 188
73, 82 anthropogenic contribution to climate
Ad Hoc Working Group on Long- change 15, 16, 91–92, 169, 256,
term Cooperative Action (AWG- 267
LCA) 55–56, 73, 82 anticipatory adaptation 136
adaptation 17, 49, 105, 146–151 appeals
appropriate, Dutch system as administrative decisions, lawfulness
incentive for 247–249 and unlawfulness (Netherlands)
and burden sharing agreement 77–80 239–242
and ‘classical’ environmental US Court 5, 18
matters 146 Arcuri, A. 37
concept 135–136 asbestos exposure 30, 214
concrete applications 136–138, 150 attribution, US compensation claims
and equal treatment 246, 247 199–200, 202
examples of damage (Netherlands) auctioning, EU ETS 101–106, 114, 120
238–239 Australia
particularities ratification of Kyoto Protocol 223
and Articles 2, 3 and 8 of ECHR, remedies in 221
field of application 147 autonomous adaptation 136
resulting from effects of climate
change 146 Baldwin, R. 11
practical measures, obligation to Bali Action Plan 55, 74, 75, 82
adopt 149–150 Balling, R. 207, 223
risk management obligations Barton, A. 186
148–149 Bates, J. 188
‘traditional’ environmental problems Beck, U. 39
and climate change 148–151 Belei, B. 37, 39
types of 136 Betlem, G. 224
275

Biesen, P. van den 6, 10, 126, 263, 265, Netherlands, barriers to causality in
267 242–243
biomass production 16 types of 25, 30
Bocken, H. 132 UK law 182–184
bonus-pater-familias standard 23 US law 197–199
Boutonnet, M. 37, 39 CCS see carbon capture and geological
Boy, L. 40 storage (CCS)
Bramley, M. 186 de Cendra de Larragán, J. 6, 9, 10, 125,
Brown, D. 36–37 269–270
BSA (burden-sharing agreement) Christianson, G. 38
and adaptation 77–80 civil liability
Council Decision 2002/358/EC for global warming, Netherlands
(2008–2012) 59, 61, 62–63, 64, 206–222
65, 66–68, 69, 70, 72, 77 regulatory approach of EU 92, 119,
Council Decision 406/2009/EC 122–123, 125
(2012–2020) (effort sharing Clean Air Act, US 5, 18, 271
decision) 55, 69–72, 76, 77 Climate Change Act 2008, UK 126,
burden sharing 170, 172
burden-sharing agreement see BSA climate change liability and
(burden-sharing agreement) precautionary principle 21–29
expansion in EU mitigation law and added value of application of
policy 76–77 principle 29–32
financial transfers to developing effects of principle on climate change
countries, including in 80–81 liability (table) 28
and future international climate liability from precautionary
regime 73–76 principle 23, 27–29, 32
and loyal cooperation principle liability with precautionary principle
72–73 23–26, 31–32
notion of 55, 82 climate damage fund, proposals for
possible extensions to 73–81 119, 120
Burley, A.-M.S. 82 Climatic Research Unit, University of
Burns, W. 12, 35, 36 East Anglia (UK) 256
‘but for’ test, causation 183, 268 coal-fired electricity generating
installations 95–98, 110, 230
California v. General Motors and United Kingdom 114–115
Corporation 18, 35, 190–191, 195, Cohesion Policy (2007–2013) 78, 88
197, 200, 203 Columbia Journal of Environmental
carbon capture and geological storage Law 4
(CCS) 92, 96–98, 108–113 Comer v. Murphy Oil 18, 35, 192, 196,
Directive 2009/31/EC 101, 102, 109, 197, 203, 264
110, 111, 115, 118 Comer v. Nationwide Insurance
funding 112–113 191–192
‘significant irregularities,’ 110–111 Commission v. Ireland 61
in view of liability 110–112 comparative methodology 7
carbon emissions 91, 100 compensation claims
causation 267–268 in jurisdictions outside USA
‘but for’ test 183, 268 201–202
establishing chain of 19, 25, 30 France 241
and European Court of Human Germany 240
Rights 143, 150–151 Netherlands 246–247

Index 277
liability goals 258 developing countries, financial

in United States see under United transfers to 80–81
States and climate change Dijk, C. van 6, 10, 126, 261, 263, 265
liability distribution of competences/
compliance regime, Kyoto Protocol 65, responsibilities (EC) 61, 62–63
74 documents, access to 144–145
Article 10 EC, role in ensuring Dougdale, A.M. 187, 188
compliance 65–69, 70 Douma, W. 36
and effort sharing decision burden- Drupsteen, T. 243–244
sharing agreement for duty of care, in United Kingdom 178,
2012–2020 69–72 187
compliance committee 63, 64,
68 earth temperature 206, 207
consequences for EC 63–65 EC see European Community (EC)
see also Kyoto Protocol EC Treaty see Treaty Establishing the
conditional fee arrangements 171 European Community (EC
Conference of the Parties (COP) Treaty)
Bali (COP-13) 2007 55, 82 Edmunds, R. 188
Marrakesh (COP-7) 2001 63, 75 EEPR (European Energy Programme
Montreal (COP-11) 2005 55 for Recovery) 98
Connecticut v American Electric Power effort sharing 55, 82, 99
Company 195, 212, 216, 223 see also burden sharing
Consumer Protection Act 1987, UK Egenhoger, C. 89
179, 187 electricity sector, fossil-fuel fired 91,
contributory negligence 19 94, 95–98, 124
Convention for the Protection of the climate legislation targeting 99–115
Marine Environment of the definition of ‘electricity generator’
North-East Atlantic (OSPAR 129
Convention) 109 Emission Performance Standards
Convention on the Prevention of 108
Marine Pollution by Dumping of energy consumption vs energy
Wastes and Other Matter, production 97
London Protocol (1996) 109 and Netherlands 230
Copenhagen Accord (2009) 47, 51, 73, specific regulatory approaches
74, 75, 80 regarding carbon emissions 100
and regulatory approach of EU 115, state aid to coal industry 97, 98
120, 121 and United Kingdom 114–115
Cullet, P. 39 see also fossil fuels
Czech Republic, sale of AAUs to Elsner, J. 34
Spain and Austria 69 Emanuel, L. 34
Emission Performance Standards 108,
Dam, C.C. van 250 130
damages 19, 24, 172, 190, 220–221 emissions, GHG see European Union
Dasgupta, P. 39 Emissions Trading Scheme (EU
declaratory relief 261 ETS); greenhouse gas (GHG)
Delreux, T. 84 emissions
Depledge, J. 85 Emissions Trading Scheme (ETS)
design failures 4 Directive 71
deterrence see prevention and Energy and Finance Ministers 95
deterrence energy installations, EC climate

legislation see electricity sector, Article 3 (freedom from torture and

fossil-fuel fired inhuman or degrading
energy policy, solidarity principle 57 treatment and punishment) 142,
Energy Security and Solidarity Action 146–147, 148
Plan 97 Article 6 (right to fair trial) 142
Engle v. Liggett Group 201, 204 Article 8 (respect for private and
Environmental Liability Directive family life, home and
(ELD) 2004 111, 113–114, 123, correspondence) 142, 145,
217 146–147, 148
and United Kingdom 176, 182 Article 10 (freedom of expression)
Environmental Protection Agency 142
(EPA), US 5, 18 Article 11 (freedom of assembly and
equal treatment, and governmental association) 142
liability 237, 246–247 Article 13 (right to an effective
Eritja, M.C. 84 remedy) 142
EU see European Union (EU) case law on positive obligations and
EU ETS see European Union environment 143, 150–151
Emissions Trading Scheme (EU First Protocol, Article 1, 142
ETS) potential liability of States under for
European Commission 71 failure to take appropriate
on adaptation measures 136–138 measures 6, 9, 134–152
Impact Assessment accompanying see also European Court of Human
White Paper ‘Adapting to Rights
climate change’ 148, 153, 154 European Court of First Instance 103
and regulatory approach of EU 96, European Court of Human Rights
97, 100, 104 134, 136, 150
Strategic Energy Review 109 and adaptation measures 137–138
European Community (EC) admissibility of individual
Annex I parties 61, 63, 75, 84, 87 applications 138–139
Climate Change Committee 71 case law on positive obligations and
Council Decision 2002/358/EC environment 9, 138–145, 213
(2008–2012) 59, 61, 62–63, 64, evaluation of 152
65, 66–68, 69, 70, 72, 77 Inter-State cases before 138
Council Decision 406/2009/EC overview of ‘system’ 138
(2012–2020) 55, 69–72, 76, 77 positive obligations, control of
distribution of competences/ 141–142
responsibilities 61, 62–63 on precautionary principle 150, 151
and ECHR 153 see also European Convention on
failure to comply with Kyoto Human Rights (ECHR)
Protocol commitments 6, 9, European Court of Justice (ECJ) 57,
63–64, 67–69, 85 58, 61, 84, 90, 113
and Kyoto Protocol 55, 59–69, 86 European Energy Programme for
non-Annex I parties 75, 84 Recovery (EEPR) 98
as REIO 60 European Environment Agency 66, 86
see also European Union (EU); European Parliament 71, 78
Member States European Union Emissions Trading
European Convention on Human Scheme (EU ETS) 7, 9, 12, 76, 90,
Rights (ECHR) 147, 156, 269 92, 95, 96, 99
Article 2 (right to life) 142, 145, 147, auctioning 101–106, 114, 120
148 basic feature 100–101

Index 279
cap on emissions 99, 102, 105, 118 false positive balancing errors 21, 26,
and carbon capture 109, 110, 112 27, 33
Directive 1996/96/EC 107 Farber, D. 35
Directive 2003/87/EC 107, 115 Faulk, R. 35
evaluation of 123 fault liability 18–19, 23–24
fee considerations 121, 122–123, in Netherlands 237, 239–245
124, 131–132 Faure, M. 10–11, 12, 126, 154, 157,
harmonization 94, 107 159, 224, 225, 226
and Netherlands 230, 232, 234 financial transfers to developing
price of allowances 104–105, 114 countries 80–81
regulation vs climate change liability floods 15, 16, 206, 219
265–267 force majeure events 19, 25
responsibility stipulation 118, 124 foreseeability 19, 25, 31, 216
revenues 105 fossil fuels
and United Kingdom 170, 172, 181 carbon emissions 91, 100
European Union (EU) carbon-friendly energy sources 96,
Emissions Trading Scheme see 97, 102
European Union Emissions coal-fired electricity generating
Trading Scheme (EU ETS) installations 95–98, 110,
Energy Security and Solidarity 114–115, 230
Action Plan 97 energy installations, EC climate
liability for climate change 6, 55–81 legislation 99–115
regulatory approach see regulatory as major source for energy
approach of EU production 95–98
see also European Community (EC) France
ex ante facto approach 136, 139 administrative law 246
precautionary principle 17, 27, 31 compensation claims 241
risk management 143, 144, 148, Friedmann, W. 56, 82
151 Friends of the Earth inc. v. Peter
ex post facto approach 136, 258 Watson 221
precautionary principle 17, 19, 21, Furedi, F. 172, 186
23, 27, 31
risk management 143, 148, 151 G-20 (Group of Twenty), and fossil
exhaustion of national remedies, and fuel sector 95
admissibility of individual Garrett, N. 39
applications to Court of Human Geddes, A. 186
Rights 139 General Administrative Law Act
Export Import Bank 221 (GALA), Netherlands 228, 244
extreme weather events 15, 16, 34, 35, general causation 25
137, 198 General Court 229
Georgiev, A. 89
Fadeïeva case 141–142 Germany
Fagan, N. 172, 186 compensation claims 240
failure to act, governmental liability emission reduction targets 126,
243–245, 247–248, 249–250 131
vs. action 238 GHG emissions see greenhouse gas
Fairchild v. Glenhaven Funeral Services (GHG) emissions
Ltd and Others 183, 188 glaciers, melting of 210
false negative balancing errors 21, 26, global warming
27 civil liability for (Netherlands) see

global warming, civil liability long-term liability 238–239, 248

for (Netherlands) protected legal right or interest 245
and earth temperature 206, 207 short-term liability 238–239, 247,
emissions causing 30 249–250
‘long-tail’ characteristic of climate whether Dutch system incentive for
change 91–92, 93 appropriate adaptation to
long-term target 76 climate change 247–249
policy recommendations for Gray, J. 35
reducing 90, 91, 92, 94, 96, 97, Greece, and Kyoto Protocol 85
99–100, 114, 119 Greenhouse Gas Emissions Trading
in United Kingdom 166 Scheme Regulations 2005, UK
in United States 190, 191, 193, 181, 186
195–196, 198 greenhouse gas (GHG) emissions 3, 4,
global warming, civil liability for 5, 6, 11, 120, 123, 214
(Netherlands) abatement 119
causal link 219–221 Kyoto Protocol and European
claims standing greater chance Community 73, 87
221–222 overall worldwide 216
Council Regulations 209 policy options for reducing 90, 91,
interest in proceedings and 92, 94, 96, 97, 99–100, 114, 119
defending rights of future and precautionary principle 15–16,
generations 211–212 26
litigants 209–211 see also European Union Emissions
negligence 213–217 Trading Scheme (EU ETS)
primacy of politicians 212–213 Grossman, D. 4, 12, 35–36, 40, 165,
relativity requirement 218–219 185, 186–187, 188, 202
GLOFs (Glacier Outburst Floods) 210 Guerra v. Italy 144, 157, 158
Goklany, J. 38 guilt principle, and fault liability 237
Gottridge, M. 172, 186 Gupta, J. 4, 11, 12
Gourge, A. 186
Gouritin, A. 6, 9, 238, 269, 270, 271 Hansen, James 230
governmental liability (Netherlands) 7, Haritz, M. 6, 8–9, 10, 126, 258, 267,
10, 237–250, 266 270, 271
adaption policies, examples of Harper, B. 35
damage caused by 238–239 Harremoës, P. 39
administrative decisions, lawfulness Haug, C. 82
and unlawfulness (Netherlands) Healy, K. 38
239–242, 247, 249 heat waves 15
barriers to Heinzerling, L. 39
appealable decisions, lawfulness Hockeystick Curve 24
and unlawfulness 239–242 horizontal effect, and positive
based on failure to act 243–245, obligations 140
247–248, 249–250 human rights
based on fault 239–245 and climate change 6, 47, 51, 138
causality 242–243 European Convention on Human
damage, long-term or short-term Rights see European
241–242, 248 Convention on Human Rights
equal treatment 237, 246–247 (ECHR)
fault liability 237, 239–245 European Court see European
‘formal force of law’ 240, 242 Court of Human Rights

Index 281
Human Rights Council, Resolution on Environmental Law on the Topic

human rights and climate change of Liability for Climate Change
134 Damage (2009) 34
hurricanes 34, 35, 219
Hurricane Katrina 15, 191, 192 Jacquemont, F. 85
Jans, J.H. 130
Impact Assessment accompanying joint and several liability 184, 193
White Paper ‘Adapting to climate Jordan, A. 82
change’ 148, 153, 154
information, access to 144–145, 149 Kaminskaitė-Salters, G. 6, 9, 10, 12,
infringement procedures 71 51, 126, 185, 259, 262, 267, 268
injunctions 19, 24, 49, 189, 261 Keeling Curve 24, 38
Institutions and Instruments to Kelderluik Criteria, negligence 214
Control Global Climate Change Kerr, M. 186, 187
(Maastricht Conference 2001) 8 Kivalina, action against oil and electric
insurance sector 210, 223 utility industries 192–194, 195,
integrated permitting 106–108 196–197, 198, 200
Integrated Pollution Prevention and Kivalina v. ExxonMobil 18, 35, 203,
Control (IPPC) Directive 100, 204
106–107, 108, 114–115, 130, 217 Korinsky v. EPA 18, 35
Inter-Academy Council (IAC) 256 Kosolapova, E. 9, 10, 126, 260, 261,
Inter-American Commission on 265, 268, 269, 270, 271
Human Rights 208 Kourilsky, P. 41
Inter-American Court of Human Kulovesi, K. 88
Rights 50 Kupferberg case 61
interest groups 209 Kyoto Protocol 3, 24, 55, 73, 103
Intergovernmental Panel on Climate Article 10 EC, role in ensuring EC
Change (IPCC) 186, 219, 256, 267 compliance with 65–69, 70
adaptation definitions 135–136 bubbles notion (Art 4) 81, 85
on earth temperature 206, 207 compliance regime, and
projections/need for action 91, 92, consequences for EC 63–65
104, 105, 123 Conference of the Parties (COP) 55,
Reports 15–16, 24, 25, 31, 34, 38, 77, 75, 82
126–127, 168, 257 and European Community 55,
International Court of Justice 231 59–69, 86
International Energy Agency (IEA) 95 failure to comply with commitments
international law 4, 6, 7, 24 of 6, 9, 63–64, 67–69, 85
liability of Member States and EU mitigation targets 56, 66, 68, 69
55–81 and Article 4, 61–62, 63, 64, 65,
loyal cooperation principle see loyal 67, 81
cooperation principle (Art 10 as mixed agreement 61, 67, 84
EC) ratification 59, 66, 84, 223
mixed agreements 61 and United States 189, 207
public 62, 63–64 see also compliance regime, Kyoto
solidarity principle 56–58, 83 Protocol; United Nations
Inter-State human rights cases 138 Framework Convention on
Ius Commune Research School, Climate Change (UNFCCC)
Transboundary Environmental
Law Programme 8, 10 Lang, J.T. 83
Ius Commune Workshop Lascoumes, P. 40

L.C.B. v. United Kingdom 145 ‘long-tail’ problem, climate change as

legal interdisciplinary methodology 91–92, 93
5–7 long-term liability, vs short-term
legal uncertainty, in climate change liability 238–239
liability 17–19 Lowry, J. 188
Leone, J. 41 loyal cooperation principle (Art 10
liability, climate change EC) 56, 58–59, 61
broad approach to liability law 257 and burden sharing 72–73
cases 270–271 role of Art 10 in ensuring EC
causation 267–268 compliance with targets 65–69
development 32 Lubbe v Cape Plc 174
drawbacks 259–260 Lujan v. Defenders of Wildlife 196
effectiveness of measures 271–273 Lyster, R. 128
EU and Member States see under
European Union (EU) Maastricht European Institute for
fault liability see fault liability Transnational Legal Research
goals of liability 258–259 (METRO) 8, 10
hurdles/potential solutions 262–265 MacDonald, R.S.J. 56, 82
long-term vs. short-term 238–239 Makuch, K.E. and Z 11
nature of claims 260–261 Maldives, submission to the Office of
optimal basis of 18–19 the UN High Commissioner for
persons liable 268–270 Human Rights (2008) 137, 138,
and precautionary principle see 154, 271
climate change liability and Mank, Bradford 196, 197
precautionary principle Mann, M. 38
prevention of damage as primary manufactured risks 39
goal 9, 47–51 Marguénaud, J.-P. 139–140, 155
proportional 101, 129 marine oil pollution accidents 92, 118,
recommendations 273–274 123
and regulation 264, 265–267 Marrakesh, Conference of the Parties
see also regulatory approach of EU (COP-7) 2001 63, 75
sound science, importance 255–257 Massachusetts v. EPA 5, 18, 192, 211
strict liability 18, 118, 123 McEvoy, D. 88
liability law, compensative and Mediterranean Arc 77–78
preventive effect 32 Member States
Lisbon Treaty (2009) 57, 58, 83, 229 allocation of responsibility for
litigation future damage 120–121
injunctions 19, 24, 49 distribution of competences/
liability of Member States and EU responsibilities 61, 62–63
67 information, obligations in terms of
in Netherlands 227–235 149
administrative 229–231 potential liability for failure to take
civil 231–234 appropriate measures 134–152
threat of 48 risk management and obligations
in United Kingdom 165–185 143–144
causation 182–184 solidarity principle 56–58
causes of action 176–182 State intervention, in positive
reasons for litigation 168–170 obligations 140–141
tort case, climate-based 173–175 see also European Community (EC);
London Protocol (1996) 109 European Union (EU)

Index 283
methodology 5–7 Dutch Parliament, Second Chamber

mitigation 17, 23, 76–77 230
mitigation targets and Kyoto Protocol Dutch Supreme Court 227, 228, 240,
56, 66, 68, 69 244–245, 268
Article 4, 61–62, 63, 64, 65, 67, 81 Environmental Management Act
mixed agreement, Kyoto Protocol as 229–230
61, 67, 84 General Administrative Law Act
Monitoring, Reporting and 228, 244
Verification (MRV) 74, 75 Tort Law 228
Montreal, Conference of the Parties NGOs (non-governmental
(COP-11) 2005 55 organisations) 6, 7, 10, 18, 174,
Morris, J. 38 262
MOX Plant Case 61 and human rights 138, 151
multi-party causation 25 Nollkaemper, A. 12, 126, 154, 157,
159, 208, 223, 225, 226
Nasheed, Mohamed (President of non-justiciability of political questions
Maldives) 47 doctrine 189, 191, 193, 194–196,
national remedies, exhaustion of 139 200, 201, 264
natural disasters 92, 118, 123, 150, Nordhaus, W. 11, 34, 94, 132
206 nuclear accidents 92, 118, 123
hurricanes 15, 34, 35, 191, 192, 219
natural ecosystems 168 Office of the UN High Commissioner
natural gas 97 for Human Rights 134, 137, 138,
negative obligations, vs positive 154, 271
obligations 140–141 Öneryildiz v. Turkey 141, 144, 147, 156,
negligence 157, 158
in Netherlands 213–217, 250 Osofsky, A. 12
in United Kingdom 176–178 Osofsky, H. 35, 36
Nentjes, A. 11 OSPAR Convention 109
Netherlands and climate change Overseas Private Investment
liability 7, 9–10 Corporation 221
civil liability for global warming
206–222 Pardy, B. 34, 37, 41
and European Union Emissions Peel, J. 39
Trading Scheme 230, 232, 234 Peeters, M. 7, 9, 10, 129, 266
governmental liability 237–250 Pigovian taxes 3
integrated permitting 107 Pinna, A. 40
litigation see Netherlands courts, planned adaptation 136
legal system and litigation political questions, non-justiciability
Netherlands courts, legal system and (US) 189, 191, 193, 194–196, 200,
litigation 227–235 201, 264
access to civil and administrative polluters
courts 227–229 polluter-pays-principle 17, 31, 32,
access to European courts 229 35, 258
Administrative Jurisdiction present polluters and future victims
Division, Council of State 228 92, 93, 94, 117, 124
administrative litigation 229–231 responsibility for future damage,
civil litigation 231–234 under EU 94, 116–121
Dutch Civil Code 209, 210, 211, 218, Pontin, B. 187
219, 221, 228, 231, 244, 263 positive obligations 136

and access to information 144–145 standard of care 19–20, 23

adoption of practical measures 145, and UNFCCC 215–216
149–150 see also uncertainty, in climate
case law 138–145 change
and ‘classical’ environmental prevention and deterrence 9, 17, 30, 31,
matters 142–145 32
Court control of 141–142 damage prevention, as primary goal
definition 140 of liability 47–51
distinction criteria/typology 140–141 in United Kingdom 169–170
legal and practical measures 140 see also precautionary principle
vs negative obligations 140–141 private law, liability under 6
objective and ground 139–140 problem definition 5–7
procedural and substantial 141, 149 procedural injury 261
risk management and State product liability 179–180
obligations 143–144 proportional liability 101, 129
State’s failure to fulfil 140 public law/public international law 6,
theory 139–142 62, 63–64
Poznan Conference on Climate public nuisance 180–181, 184
Change 105 global warming 190, 191
practical measures, adoption of 145,
149–150 Radé, C. 39
precautionary principle 6, 8–9, 10, regional economic integration
15–34, 97 organizations (REIOs) 59–60
backward-looking sense 24 regulatory approach of EU 90–125
burden of proof 21, 25, 151 carbon capture and storage see
and climate change liability 21–29 carbon capture and geological
added value of application of storage (CCS)
principle to climate change civil liability 92, 119, 122–123, 125
liability 29–32 collective and voluntary 117
liability from precautionary Environmental Liability Directive
principle 23, 27–29, 32 111, 113–114, 123, 182, 217
liability with precautionary EU ETS see European Union
principle 23–26, 31–32 Emissions Trading Scheme (EU
cost-benefit considerations 19, 20, ETS)
26, 33 fossil fuels see fossil fuels
European Commission’s general framework 99–100
Communication 143 integrated permitting 106–108
European Court of Human Rights specific approaches concerning
on 150, 151 fossil-fuel fired electricity sector
ex ante facto dimension 17, 27, 31 100
ex post facto dimension 17, 19, 21, stipulating responsibility for future
23, 27, 31 damage 92, 93, 116–121, 124
flexibility 33 regulatory compliance defence 19, 25
as higher-order legal principle 27 ‘relativiteitseis’ Netherlands 245
interpretations 22, 25, 33 relativity requirement, Netherlands
as normative principle 31, 32, 151 218–219
scope of, as tool to handle Relis, T. 186
uncertainty 19–21 remedies
‘serious and irreversible damage,’ compensation claims see
threat defined as 20 compensation claims

Index 285
damages 19, 24, 172, 190, 220–221 statutory authorisation defence, in

injunctions 19, 24, 49, 189, 261 United Kingdom 181–182
see also litigation Stavins, R. 87
Renewable Energy (RES) Directive Steele, K. 39
2009 76 Steinberger, E. 85
responsibility for future damage, under Stolker 211
EU 116–121, 124 storms 16, 34
allocation of 4, 119–121 Strategic Energy Review (European
Member States 120–121 Commission) 109
retroactivity, US compensation claims Strauss, A. 36
200–201, 202 strict liability 18, 118, 123
reversal of burden of proof 25 Structural and Cohesion Funds, EU
Richardson, B. 40 78, 88
Richardson, K. 132 subsidiarity principle 141
Ringius, L. 82 Sunstein, C. 36
Rio Declaration on Environment and supplementarity principle 68, 69, 86
Development of Human Beings supremacy of law principle 140
(1992) 214
risk management 143–144, 148–149 Tapick, J. 38
Rose-Ackerman, S. 132 Tapinos, D. 37, 40
Rylands v. Fletcher 180, 182 Taskin v. Turkey 145, 147, 157, 158,
213
de Sadeleer, N. 39, 40 Tatar v. Romania 142, 143, 150–151,
Schneider, S. 26, 34, 39, 266 157, 159
Schueler, B. 6, 10 taxes 3, 122
scientific uncertainty, in climate change Temple Lang, J. 59
liability 15–17, 33, 214, 219 Thibierge, C. 37
sea-level rise 137, 166 Thielmann, E.R. 83
self-interest 57, 79 Timmons Roberts, J. 80, 89, 132
Shearman, D. 35, 165, 170, 185, 186, Tinker, C. 41
187, 198, 199, 223 tobacco consumption 30, 38
short-term liability, vs long-term Tol, R.S.J. 4, 12
liability 238–239 tort law perspective 4, 7, 9–10, 47–48
Smith, J. 35, 165, 170, 185, 186, 187, in Netherlands 228, 245
198, 199, 223 Principles of European Tort Law
Smith, J.B. 153 220
solidarity principle 56–58, 83 in United Kingdom 169, 173–175
specific causation 25, 30 Toxic Tort cases 29, 30
Spier, J. 6–7, 9, 10, 12, 35, 40, 209–210, ‘traditional’ environmental problems
224, 226, 259, 261, 262, 272, 273 and climate change 148–151
spontaneous adaptation 136 Transboundary Environmental Law
standing, threshold requirement (US Programme, Ius Commune
compensation claims) 196–197, Research School 8, 10
201–202 transboundary environmental
Stanford Environmental Law Journal/ problems 92, 118
Stanford Journal of International Treaty Establishing the European
Law 4 Community (EC Treaty)
state of law principle 140 decision-making (Art 300 EC) 60–61
state of the art defence 19, 25, 217, loyal cooperation principle (Art 10
233 EC) 58–59, 60, 61

and burden sharing 72–73 status quo and future developments

ensuring compliance with 170–173
65–69 statutory authorisation defence
Treaty on European Union (TEU) 57, 181–182
58 tort case, climate-based 173–175
Treaty on the Functioning of the United Nations Climate Change
European Union (TFEU) 88, 107, Conference, Montreal (COP-11)
229 2005, 55
United Nations Environment
UKCIP (UK Climate Impacts Programme 222
Programme) 166, 185 United Nations Framework
uncertainty, in climate change, Convention on Climate Change
uncertainty explosion/cascade of (UNFCCC) 3, 20, 24, 55,
uncertainties 16 134–135, 212
uncertainty, in climate change liability and precautionary principle
legal 17–19 215–216
need to avoid 31 ratification by EC 59, 84
precautionary principle, scope of as United States and climate change
tool to handle 19–21, 268 liability 4, 9
scientific 15–17, 33, 214, 219 Article III standing requirements
‘unclean hands’ (contributory 196, 202
negligence) 19 attribution 199–200, 202
United Kingdom and climate change case law 5, 18, 35, 190–192, 195–197,
liability 7, 9 200, 201, 203, 204, 211, 212,
carbon capture and storage 96 216, 221, 223, 264
causation 182–184 causation 197–199, 202
causes of action 176–182 compensation claims 189–202
climate change levy 11 conditional fee arrangements in
Climate Impacts Programme 171
(UKCIP) 166, 185 Kivalina, action against oil and
coal-fired electricity generating electric utility industries 18, 35,
installations 114–115, 130–131 192–194, 195, 196–197, 198,
and Emission Performance 200, 203, 204
Standards 108 and Kyoto Protocol 189, 207
emission reduction targets 125–126 non-justiciability of political
European Union Emissions Trading questions doctrine 189, 191,
Scheme 170, 172, 181 193, 194–196, 200, 201, 264
fresh water resources 167 retroactivity 200–201, 202
Greenhouse Gas Emissions Trading standing threshold requirement
Scheme Regulations 2005, 181, 196–197, 201–202
186 Supreme Court 270–271
industry, infrastructure and property US Restatement (Second) of Torts
166–167 202, 204
legal aid, limited access to 171 urban planning, Netherlands 245,
litigation 165–185 248
reasons for 168–170 utility industries, action against (US)
natural ecosystems 168 18, 35, 192–194, 198
negligence 176–178
product liability 179–180 Valasinas v. Lithuania 147, 158
public nuisance 180–181, 184 Van Boom, W. 40

Index 287
Vedder, H.H.B. 130 water resources, in UK 167

Verheyen, R. 4, 12, 165, 185, Weart, S. 38
223 Webster, P. 34
victims of climate change damage 139, Weishaar, S. 129
167 Whitmore, A. 119
and regulatory approach of EU 91, Wibisana, A. 38
92, 93, 94 Wijckhoff, J. 12
Viney, G. 41 World Meteorological Organization
Viscusi, W.K. 169, 186 (WMO) 34, 222
Vogel, C. 132
Vos, E. 10 Zander, J. 37


Climate Change Liability

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Climate Change Liability

M2542 - FAURE PRINT.indd i 01/03/2011 15:51

M2542 - FAURE PRINT.indd ii 01/03/2011 15:51

NEW HORIZONS IN ENVIRONMENTAL AND ENERGY LAW

M2542 - FAURE PRINT.indd iii 01/03/2011 15:51

All rights reserved. No part of this publication may be reproduced, stored in a

Edward Elgar Publishing, Inc.

A catalogue record for this book

Library of Congress Control Number: 2010934043

ISBN 978 1 84980 286 4

Typeset by Servis Filmsetting Ltd, Stockport, Cheshire

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PART II CROSS-CUTTING THEMES

2 Liability with and liability from the precautionary principle in

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PART III EUROPEAN PERSPECTIVE

4 Liability of Member States and the EU in view of the

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PART IV NATIONAL PERSPECTIVES ON CIVIL LIABILITY

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11 Governmental liability: an incentive for appropriate

12 Concluding remarks 255

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M2542 - FAURE PRINT.indd ix 01/03/2011 15:51

Jaap Spier, Advocate General of Supreme Court of the Netherlands,

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ERU Emission Reduction Unit

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RMUs Removal Units

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M2542 - FAURE PRINT.indd 1 01/03/2011 15:51

1. PROBLEM DEFINITION: REASONS FOR THIS

M2542 - FAURE PRINT.indd 3 01/03/2011 15:51

M2542 - FAURE PRINT.indd 4 01/03/2011 15:51

with the often-discussed decision of the US Supreme Court in the case

2.1 Legal Interdisciplinary

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2.2 Comparative Approach

As the above described problem definition makes clear, providing some

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4. STRUCTURE OF THE BOOK

M2542 - FAURE PRINT.indd 8 01/03/2011 15:51

liability. She examines the possibilities of using the precautionary principle

M2542 - FAURE PRINT.indd 9 01/03/2011 15:51

As we mentioned above, many of the contributors have worked together

M2542 - FAURE PRINT.indd 10 01/03/2011 15:51

professor of Comparative Private Law and Economics at the Law Faculty

M2542 - FAURE PRINT.indd 11 01/03/2011 15:51

contribution-carbone-une-large-concertation, and http://www.conseil-constitutionnel.

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M2542 - FAURE PRINT.indd 13 01/03/2011 15:51

Is it appropriate to use the (precautionary) principle to answer the question, not

1. SCIENTIFIC UNCERTAINTY IN CLIMATE

Over the past decade, an intensification of weather-related natural catas-

M2542 - FAURE PRINT.indd 15 01/03/2011 15:51

uncertainties involved in the scientific assessment of climate change. The

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(whilst uncertainty as to the exact causal amount of this contribution

2. FROM SCIENTIFIC TO LEGAL UNCERTAINTY

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As a consequence, and despite the initial judicial reluctance and an