The damages caused by, and the costs of adapting to, climate change are running into the billions of dollars per year in Canada alone. It is remarkable that a human caused activity that causes such widespread harm to legal rights and economic interests should not be seen as a major source of liability. However, the perception has been that each individual source of emissions is too remote from the on-the-ground impacts of climate change to provide a basis for liability for even large-scale GHG emitters.
However, if a public right to a healthy global atmosphere is recognized, then the focus of a climate change litigant can be on the impacts of large-scale GHG emissions on the composition of the atmosphere, and therefore on that right, which simplifies the issues of causation considerably. Such a public right may be justified: as an extension of the public right to clean air; through public use of the atmosphere from time immemorial; and due to the inherent necessity and character of the global atmosphere.
Drawing on cases related to water pollution and the rights of riparian owners to an unaltered flow of water past their property, it becomes clear that it is possible to demonstrate that large-scale individual emitters are contributing significantly to the alteration of the global atmosphere and thus to the violation of that public right. Significance can be assessed generally, by reference to a “carbon budget,” or in terms of the emissions’ capacity to measurably alter the regional or global concentrations of greenhouse gases in the atmosphere.
Click here to download. This paper was previously published in issue 24 of the Journal of Environmental Law and Practice (2013) at p. 257.