Civil Liability For Climate Change? The Proposed Tort in Smith V Fonterra With Reference to France and the Netherlands

Abstract

As we enter into a period of unprecedented climate instability, litigation is becoming an increasingly 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 a number of civil liability mechanisms for environmental damage in overseas jurisdictions. This paper 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 effectiveness. Conversely, the Dutch judiciary introduced a due diligence obligation which requires corporate strategies to be sufficiently in line with international obligations regarding emissions. The latter approach carries more promise, demonstrating that for civil liability to play a meaningful role in the fight against climate change there must be significant departure from traditional legal doctrine, perhaps in the direction of climate due diligence.