Work

Civil liability for climate change? The proposed tort in Smith v Fonterra with reference to France and the Netherlands

Year: 2024

Type: article

Abstract: As we enter into a period of unprecedented climate instability, litigation is becoming an attractive way to hold private entities accountable for their contribution to global warming. In Smith v Fonterra, New Zealand's Supreme Court is considering whether a common law duty to limit emissions should form part of New Zealand's environmental protection framework. This follows the development of several civil liability mechanisms for environmental damage in overseas jurisdictions. This article examines the implementation of civil liability for climate damage in France and the Netherlands, illustrating the difficulties of effectively dealing with climate change, and its destabilising effect on the law. France implements civil liability mostly on the basis of traditional tort rules, which function to severely restrict its scope. Conversely, the Dutch judiciary introduced a due diligence obligation that requires corporate strategies to be sufficiently in line with international obligations regarding emissions. The latter approach carries more promise, demonstrating that for private entities to be held civilly liable for their contribution to climate change, there must be significant departure from traditional legal doctrine, perhaps in the direction of climate due diligence.

Source: Review of European Comparative & International Environmental Law

DOI: 10.1111/reel.12532

Author: Sarah Downs

Institution: Victoria University of Wellington

Language: English

Topic: Environmental law and policy

Subfield: Law

Field: Social Sciences

Domain: Social Sciences

SDGs: Climate action, Peace, justice, and strong institutions

Open Access status: hybrid

Estimated APC paid: $3,570