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Civil Liability for Environmental Damage related to Climate Change in Brazil

Miguel Franco Frohlich1

Bruno Kerlakian Sabbag2

“Some time this century, the day will arrive when the human influence on the climate will overwhelm all natural factors. Then, the insurance industry and courts will no longer be able to talk of acts of God, because even the most unreasonable of us could have foreseen the consequences. Instead the judiciary will be faced with apportioning guilt and responsibility for human actions resulting from the new climate. And that, I think, will change everything”.

Tim Flannery, The Weather Makers: How Man is Changing the Climate and What it Means for Life on Earth (New York: Atlantic Monthly Press, 2005), 284.

Abstract This article examines the imputation of civil liability for environmental damage related to climate change. The historical elements that contributed to the formation of a risk society are addressed first, as well as the relationship between risk society and climate change. The article then reviews how civil environmental liability is treated in the Brazilian legal system, examining its main features, such as the adoption of objective liability, and elements, such as the concept of polluter, environmental damage and the peculiarities of the causal nexus, and suggests that presumptions as to causation can be applied in environmental matters. After analyzing the imposition of civil liability for environmental damage related to climate change and the barriers faced in attributing liability, the article looks at climate change litigation in the United States of America, and the possibility of developing a theory of climate change litigation in Brazil.

��1 Associate with the law firm Barbosa, Müssnich & Aragão Advogados. Graduated in Law from the Catholic University of Rio de Janeiro (PUC/RJ) and holds a post-graduate diploma in Environmental Studies from the Alberto Luiz Coimbra Institute for Post-Graduate Studies and Research in Engineering of the Federal University of Rio de Janeiro (COPPE/UFRJ). Member of the Environmental Law Study Group of the Interdisciplinary Center for Environmental Studies (NIMA) of PUC/RJ. 2 Associate with the law firm Barbosa, Müssnich & Aragão Advogados. Graduated in Law from the Catholic University of São Paulo (PUC/SP) and currently following the Master in Environmental Sciences program at the University of São Paulo (USP). Acted as consultant in the United Nations Development Programme (UNDP) and as legal adviser to the Interministerial Commission on Global Climate Change (CIMGC), the Brazilian Designated National Authority (DNA) for the Clean Development Mechanism (CDM) under the Kyoto Protocol. Lecturer in the Environmental Law specialization program of PUC/SP.

Keywords Risk Society – Climate Change – Civil Liability – Environmental Damage Summary 1. Introduction – 2. The Relationship between Risk Society and Climate Change – 3. Civil Liability for Environmental Damage under Brazilian Law: 3.1. The Concept of Polluter; 3.2. The Concept of Environmental Damage; 3.3. The Causal Nexus in Civil Environmental Liability – 4. The Imputation of Civil Liability for Environmental Damage related to Climate Change: 4.1 Civil Liability for Environmental Damage related to Climate Change in the United States of America: 4.1.1. State of California v. General Motors Corporation, et al.; 4.1.2. State of Connecticut, et al. v. American Electric Power Company Inc., et al.; 4.1.3. Comer, et. al. v. Murphy Oil, et al.; 4.1.4. The Native Village of Kivalina, et al. v. Exxonmobil Corporation, et al.; 4.2. Civil Liability for Environmental Damage related to Climate Change in Brazil – 5. Conclusion – 6. Bibliography. 1. Introduction

Our world is passing through an environmental crisis unprecedented in history, caused, unquestionably, by unsustainable human intervention in the environment. In this scenario, climate change represents one of the main challenges faced by humanity in the 21st century. The phenomenon is the result of the worsening of the greenhouse effect, which in turn results from the increased concentration of greenhouse gases (GHGs) in the planet’s atmosphere. The worsening of the greenhouse effect has brought with it an increase in global temperature – global warming – causing climate change.

Facing this problem cannot be reduced to the logical – and indeed moral – argument that we have to preserve the environment, if only to ensure the existence of a reasonably habitable planet for human beings, both those now living and those to come in future generations, and for the other forms of life that inhabit our world.

In 2007, the Intergovernmental Panel on Climate Change (IPCC) published its Fourth Assessment Report, which concluded that “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 concentrations”.3 Due to scientific uncertainties, which, although they grow smaller, do still exist and probably always will, analysis of the causes and effects of climate change is a matter of probabilities and projection of scenarios. Thus, the qualifier very likely used by the IPCC means that the likelihood that the report’s conclusion is correct is greater than 90%, based on the scientific research performed.

The impacts of climate change are also examined by the IPCC, and they are very serious, given the magnitude of their effects. Some of these effects are the melting of snow and ice in cold regions, such as the polar caps, the increase in the level of the oceans, the greater frequency of extreme climactic events such as cyclones, hurricanes, storms and droughts, and changes in wind patterns. In Brazil, the Ministry of the Environment published a study, also in 2007, dealing with observational data and modeling of climactic

��3 IPCC, Climate Change 2007: Synthesis Report, available at http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr.pdf (accessed on March 27, 2010).

variability in Brazil. The study was performed by the Weather Forecasting and Climactic Studies Center of the National Spatial Research Institute (CPTEC/INPE) in collaboration with the Department of Atmospheric Sciences of the University of São Paulo (USP/IAG) and the Brazilian Foundation for Sustainable Development (FBDS).4

According to the study, global warming will increase temperatures in the Amazon region by 6ºC to 8ºC, and may make the climate drier, with reductions of up to 20% in rainfall, resulting in the savannization of the forest in a pessimistic scenario. The level of the rivers could fall significantly, provoking the death of fish and compromising the output of hydroelectric stations and waterway transportation, while the drier air could increase the risk of forest fires. With less rain and higher temperatures, the central and eastern part of the forest could become cerrado (tropical savannah). The regular flow of atmospheric humidity from the Amazon to the south and southeast regions of Brazil could become irregular, taking the form of intense rainfalls and summer thunderstorms.

Along the Brazilian coast, the increase in the level of the ocean could result in major damage. Buildings close to the shoreline could disappear, ports could be destroyed and populations would have to be relocated. Already precarious sewage systems would collapse. An increase of 50 cm in the level of the Atlantic Ocean would consume 100 m beach in regions such as the north and northeast of Brazil, affecting coastal ecosystems such as mangroves.

As for agriculture, cultivation of perennials such as oranges tends to locate in areas with less extreme maximum temperatures, and production could relocate to the south of the country. High summer temperatures will encourage rice, bean and soybean plantations to move to the central-west region of Brazil, changing the current axis of production. In the State of Rio Grande do Sul, cultivation of wheat and soybean will become unviable and in the State of Paraná, if the temperature increases more than 3ºC, the area that can support soybean production will be reduced by 78%. In the southeast of Brazil, the area favorable to coffee production in São Paulo will fall from 39% of the state’s territory to about 1%. A similar phenomenon could occur in the State of Minas Gerais, and coffee production would become completely unviable in the State of Goiás.

Global warming will also significantly affect the big Brazilian cities. Metropolitan regions will become even hotter, and suffer more flooding and mudslides, particularly in hillside areas.

Climate change will also cause health problems for the Brazilian population. Insects that transmit disease will find an environment that is even more favorable for their reproduction, and the cases of infectious diseases, such as dengue, malaria and yellow fever, may increase. Dengue could spread throughout the entire country, and its proliferation tends to increase in urban areas. In addition, dry conditions in the central-west part of the Amazon may favor the spread of fires and increase incidence of allergies and respiratory illnesses.

This information, extracted from the Brazilian study, shows that any discussion of climate change necessarily involves the damage brought about by changes to the climate, and one of the primordial functions of the Law is precisely to provide adequate reparation

��4 José A. Marengo, Mudanças Climáticas Globais e seus Efeitos sobre a Biodiversidade: Caracterização do Clima Atual e Definição das Alterações Climáticas para o Território Brasileiro ao longo do Século XXI (Brasília: Ministry of the Environment, 2007. 2nd edition). �

for unjust damages. Nonetheless, when it comes to climate change, the imputation of liability and the measurement of the extent of damage face a series of complexities, which will be examined in this study. Before addressing those complexities, however, we must first look at the relationship between climate change and the characteristics of globalized society, which can be defined as a “risk society”. 2. The Relationship between Risk Society and Climate Change

The profound changes that occurred by reason of the Industrial Revolution

redirected the development of all areas of knowledge, including the Law. In effect, industrial society began to form in the 18th century, driven by new processes, production technique and technological innovations. This new context – the emergence of industrial capitalism – made mass production possible, with obvious repercussions for the environment, due to the increase in population density and use of natural resources, and on society, which was now exposed to the risks resulting from this new reality.

Mass production, for example, was accompanied by a proliferation of work-related accidents, resulting in injury to employees’ health and physical integrity. However, these new threats, arising out of the process of industrial development itself, were perceptible, territorially restricted and even to a certain degree predictable, and therefore could be delimited by control mechanisms, not least because only certain social classes were exposed to the risks. In practice, wealth accumulated in the upper classes, while the risks, treated as collateral effects of an industrial society, were borne by the classes with lesser acquisitive power.

In this light, the modern concept of risk, which identifies the period that ULRICH BECK calls the first or simple modernity, represents, fundamentally, the end of tradition, its limitation as a validating reference in the organization of social and political relations and, above all, the replacement of standards of traditional justification and destiny by standards based on the certainty and security of the new industrial scientific rationality.5

In the legal sphere, and specifically with respect to civil liability, the first modernity brought on a crisis over the prerequisite of fault, an element essential in bourgeois (pre-industrial) society to the existence of the obligation to repair damage, since the requirement to prove fault or willful misconduct on the part of the agent often made it impossible to hold the agent liable.

Out of this context arises the notion of objective civil liability, applicable in the cases provided for in the legislation or where the activity conducted by the agent produces risks. Objective liability dispenses with the element of fault as such, although proof of damage and of a causal nexus between the damage and the agent’s conduct is still required. According to DÉLTON WINTER DE CARVALHO, civil liability based on risk theory is the law’s response to the changes that occurred in society as a result of the processes of industrialization and technological development.6

As mentioned above, the risks of industrial society were predictable and therefore controllable through processes, programs, standards and policies fundamentally supported

��5 José Rubens Morato Leite and Patryck de Araújo Ayala, Direito Ambiental na Sociedade de Risco (Rio de Janeiro: Forense Universitária, 2004, 2nd Edition), 13. 6 Délton Winter de Carvalho, Dano Ambiental Futuro: A Responsabilização Civil pelo Risco Ambiental (Rio de Janeiro: Forense Universitária, 2008), 57.

by scientific knowledge. However, as JOSÉ RUBENS MORATO LEITE and PATRYCK DE ARAÚJO AYALA point out in their analysis of ULRICH BECK’s studies, when the quantitative and qualitative proportions of accidents began to assume the dimensions of macro-hazards and mega-hazards, the elements [of society] responsible for risk control were no longer able to predict the origin of those threats. Safety policies were incapable of managing such hazards; prediction of the risks associated with decisions on economic development and technological innovation, which had been confided to judgments based on statistical probability, began to be put in doubt, exposing the public to the failure of institutional programs for calculating the collateral effects of decisions on industrial processes. It is this bankruptcy of the institutional prediction of risk that is the central thesis of the risk society.7

Thus, industrial society is transformed into a risk society, as so enters a second modernity, in which the scientific limitations on the understanding of risk result in unforeseeability and incalculability, making existing risk control systems ineffective. In this regard, ULRICH BECK differentiates the predictable risks of industrial society, referring to them as hazards, and refers to the risks of the second phase of modernity as risks proper, inasmuch as they are not subject to limits in space and time, making it difficult to attribute causation in the context of civil liability.8

Among the risks of the second modernity are those arising out of the present environmental crisis. It can be seen that the invisibility and lack of full comprehension of such risks ends up motivating highly political decisions, by reason of current uncertainties and scientific limitations. This also contributes to the formation of a state that ULRICH BECK calls “organized irresponsibility”, a concept that

“(…) helps to explain how and why the institutions of modern society must unavoidably acknowledge the reality of catastrophe while simultaneously denying its existence, hiding its origins and precluding compensation or control. To put it in another way, risk societies are characterized by the paradox of more and more environmental degradation – perceived and possible – coupled with an expansion of environmental law and regulation. Yet at the same time, no individual or institution seems to be held specifically accountable for anything”.9 This phenomenon of “organized irresponsibility” is at work in the current scenario

of global environmental risks, in which the imputation of liability encounters profound difficulties, since all social agents appear to be contributing in some way to this process. In examining the risks of the second modernity, ULRICH BECK observes that:

“Risk and responsibility are intrinsically connected, as are risk and trust, risk and security (insurance and safety). To whom can responsibility (and therefore costs) be attributed? Or do we live in a context of ‘organized irresponsibility’? This is one of the major issues in most of the political conflicts of our time. Some believe that risks induces control, so that the greater the risk the greater the need for controllability. The concept of ‘world risk society’, however, draws attention to the

��7 José Rubens Morato Leite and Patryck de Araújo Ayala, supra note 05, 16.�8 See Ulrich Beck, Ecological Politics in an Age of Risk (Cambridge: Polity, 1995), quoted in Cristiano Luis Lenzi, Sociologia Ambiental: Risco e Sustentatibilidade na Modernidade (Bauru: Edusc, 2006) 132-133. 9 Ulrich Beck, World Risk Society (Cambridge: Polity Press, 1999), 149.

limited controllability of the dangers we have created for ourselves. The main question is how to take decisions under conditions of manufactured uncertainty, where not only is the knowledgebase incomplete, but more and better knowledge often means more uncertainty”.10

Certainly, climate change, the theme of this article, can be considered a consequence of the formation of a risk society. Although scientific knowledge on global warming has advanced much in recent years (and indeed has recognized that human activity has a fundamental role in that phenomenon, as noted above), the concrete effects of climate change are not yet, and may never be, clearly delimited, given the unforeseeability of the risks and the cascading effects they can generate. How these risks should be managed, and how loss and liability for damages brought about by climate change will be allocated, not only under present and future international agreements but also under the legal system of each country, are important questions. At a national level, will the theory of civil liability, in its present form, be able to meet this need and ensure a just distribution of the costs resulting from the increase in global temperature? Prior to examining this issue in the Brazilian context (though with a view to events occurring in other jurisdictions), a brief digression on the Brazilian legal system’s treatment of civil liability for environmental damage is required. 3. Civil Liability for Environmental Damage under Brazilian Law

As mentioned above, objective civil liability is adopted to address certain types of

risk and in Brazil the legislator determined that the regime of objective civil liability will apply to environmental damage. Accordingly, the subjective element is not required for the imputation of liability: in other words, there is no need to prove fault or willful misconduct on the part of the agent. Proof of the damaging event and the causal nexus between the damage and the act or omission by the agent is sufficient to establish liability. Thus, article 927 of the Brazilian Civil Code provides that “the obligation to repair the damage will exist, regardless of fault, in the cases specified by law or when the activity normally carried out by the person who caused the damage entails, by its nature, risk to the rights of others”.11

With respect to environmental damage, article 225§3 of the Brazilian Federal Constitution establishes that “conduct and activities considered to be harmful to the environment shall subject the offenders, whether natural or legal persons, to criminal and administrative sanctions, independently from the obligation to repair the damage caused”. Here again, the obligation to repair environmental damage does not depend on proof of misconduct or fault on the part of the polluter, since article 14§1 of Federal Law 6938/81, which created the National Environmental Policy, expressly adopts the regime of objective civil liability in providing that “the polluter is obligated, regardless of the existence of fault, to indemnify or repair damage caused to the environment and to third parties affected by his activities”.

��10 Id., 06. 11 Leslie Rose, O Código Civil Brasileiro em Inglês/The Brazilian Civil Code in English (Rio de Janeiro: Renovar, 2008), 180.

The adoption of objective civil liability in matters of environmental damage is intended to broaden the protection of the environment and of third parties who have suffered losses as a result of activities that are effectively or potentially polluting, in view of the fact that proof of fault or willful misconduct on the part of the polluter can be extremely difficult and in some cases impossible. Furthermore, the existence or absence of fault on the part of the polluter does not change the fact that his conduct adversely affected the environment, which is an asset or interest common to the population as a whole and therefore cannot be said to belong to any one person. Consequently, according to the theory of objective liability, reparation of environmental damage should be required even when the damage results from lawful activities, such as industrial plants duly licensed by the relevant environmental agencies. This understanding of the duty to repair, upheld in Brazilian environmental legislation, establishes the polluter pays principle, internalizing the cost of the negative environmental effects generated by the party that carries out activities which bear an inherent risk of damage.

There is a controversy in Brazil in both the precedents and the legal literature as to which risk theory should apply to civil liability for environmental damage. A dichotomy has established itself among the various theories, between the theory of created risk, which admits exclusion of liability in some circumstances, such as the act of a third party and force majeure, and the theory of integral risk, under which liability cannot be excluded.

Environmental law scholars12 and some recent judicial decisions13 have shown a tendency to adopt the theory of integral risk for the reparation of environmental damage, even though the theory can be excessively rigorous in some situations. However, although it may seem excessive to impose liability when events outside the agent’s control have brought about the damage, application of the theory of created risk could make it impossible to obtain reparation for the damage to the environment, or transfer the obligation to repair to the state14 and thus to the people as a whole, creating a situation that is not easy to resolve. For the adherents to the theory of integral risk, the fact that the

��12 Adherents to the theory of integral risk include ÉDIS MILARÉ, Direito do Ambiente: A Gestão Ambiental em Foco (São Paulo: Editora Revista dos Tribunais, 2009), 955 and ANTÔNIO HERMAN DE VASCONCELLOS BENJAMIN, “Responsabilidade Civil pelo Dano Ambiental” in Revista de Direito Ambiental no. 09, ed. Antônio Herman de Vasconcellos Benjamin et. al. (São Paulo: Editora Revista dos Tribunais, 1998), 41. 13 State of São Paulo Appeal Court. Appeal no. 8161655500. 3rd Public Law Chamber. Date of Judgment: January 13, 2009. Digest: Objective civil liability – Environmental Law – Application of the Theory of Integral Risk – Dam works for construction of a hydroelectric station that affected the environment – Economic and non-economic damages suffered by fishermen – Absolute proof that the fishermen earned their living by that occupation not necessary – Disadvantaged party who proved that he engaged in fishing on a small scale for profit – Burden of proving the activity not conducted at the time in question borne by the party that caused the damage – Proof not produced – Plaintiffs’ appeal granted and defendant’s appeal dismissed. 14 The development of Brazilian Environmental Law shows that public authorities have been assuming increasingly greater responsibility for environmental damage caused by unknown or undetermined parties, based in part on article 225 §1 of the Brazilian Federal Constitution, which provides that in order to ensure that the right to an ecologically-balanced environment is effective, the government has the duty to “preserve and restore essential ecological processes and provide for the ecological management of species and ecosystems.” A recent example of this development is article 14 §2 of State Law 13,577/09, which establishes directives and procedures for protection of soil quality and the management of contaminated areas in the State of São Paulo and expressly provides that “in the event that the legally responsible party does not immediately remove the hazard, the public authority may do so, in which case it shall have the right to reimbursement of the costs effectively disbursed, as shown in spreadsheet that demonstrates that the amounts spent in removing the hazard are compatible with market values.”

polluter engages in an inherently risky activity out of its own free will should never be disregarded in imputing liability for damage. In other words, even where the risk that materialized in effective damage is not directly associated with the agent’s conduct or activity, the agent may be held liable when the damaging event occurred in the course or by reason of the potentially polluting activity.15

Although adoption of the theory of objective liability has facilitated protection of the diffuse right to an ecologically balanced environment, the imposition of liability for environmental damage still faces a number of barriers, even with the application of the theory of integral risk, principally in connection with proof of causation, as will be demonstrated below. First, however, two other important aspects of the law governing civil environmental liability in Brazil must be examined: the concepts of polluter and of environmental damage.

3.1. The Concept of Polluter

According to article 3 (IV) of Federal Law 6938/81, a polluter is any “natural or

legal person, constituted under private or public law, that is directly or indirectly responsible for an activity that causes environmental degradation”.

Thus, under Brazilian environmental law, anyone who contributes, even indirectly, to the occurrence of environmental damage is considered to be a polluter and, consequently, liable for reparation of the damage to the environment.

If more than one agent causes damage, either directly or indirectly, all will be liable for the damage, although among themselves the agents may have a right of regression. This understanding of the law is reflected in the second part of article 942 of the Brazilian Civil Code, which states that “if more than one person committed the offense, all shall be solidarily liable for reparation.”16

The comments of ÁLVARO LUIZ VALERY MIRRA on the Brazilian regime of solidary (or joint) liability for reparation of environmental damage are translated below:

“Joint liability, in this case, results not only from the particular attributes of the responsible agent and the type of activity, but also from the very indivisibility of the damage, a consequence of the fact that the environment is an single, inseverable unit. Imposition of liability in solidum in environmental matters originates in the Civil Code, in the general theory of illicit acts, and reappears with greater momentum and strength in the Constitution, which refers to the environment as indivisible, an “asset for the common use of all”, which, if harmed, the polluters (in the plural) are obligated to repair ....”.17

The concept of polluter under Brazilian law is thus quite broad, with a view to ensuring full reparation of environmental damage.

��15 Antônio Herman de Vasconcellos Benjamin, supra note 12, 41. 16 Leslie Rose, supra note 11, 183. 17 Álvaro Luiz Valery Mirra, A Noção de Poluidor na Lei 6,938/81 e a Questão da Responsabilidade Solidária do Estado pelos Danos Ambientais causados por Particulares, in Leituras Complementares de Direito Ambiental, ed. José Roberto Marques (Salvador: JusPodivm, 2008), 16.

3.2. The Concept of Environmental Damage In Brazil, the definition of environmental damage is a difficult and controversial

subject, since the legislation does not contain an express definition of this type of harm. Nevertheless, article 3 (II) and (III) of Federal Law 6938/81 do delimit in a generic way the notions of “degradation of the quality of the environment” (“an adverse change in the characteristics of the environment”) and “pollution” (“degradation of the quality of the environment resulting from activities that directly or indirectly: (i) harm the health, security or well-being of the population; (ii) create conditions adverse to social and economic activities; (iii) unfavorably affect the biota; (iv) afects the esthetic or sanitary conditions of the environment; or (v) discharge material or energy contrary to established environmental standards”).

As ÉDIS MILARÉ points out, Brazilian environmental legislation “creates an inseverable link between pollution and environmental degradation when it expressly states that pollution results in degradation, and that degradation is characterized by the injurious results [of polluting activities], regardless of whether specific rules or standards have been violated”.18

One of the leading authorities on Brazilian environmental law, JOSÉ RUBENS MORATO LEITE, defines environmental damage as follows:

“Environmental damage means, in a first acceptation, an undesirable change in the set of elements called the environment, such as, for example, air pollution; it is thus an injury to the fundamental right that every person has to enjoy and benefit from a suitable environment. However, in its second acceptation, environmental damage encompasses the effects that this change causes to the health of persons and to their interests”.19

There are thus two facets to environmental damage, since the environment can be injured directly and, at the same time, the damage to the environment can affect individual interests. For this reason, Brazilian commentators have classified environmental damage in various categories, such as the “scope of the protected interest”.

Under this category, environmental damage can be classified as (i) collective environmental damage, which affects the right of the population as a whole to an ecologically balanced environment, in which case the environment is considered as an indivisible asset and the object of diffuse interests; and (ii) individual environmental damage, which affects persons on a individual level, in their personal integrity and/or in their private property.

Regardless of how it is classified, environmental damage presents particular characteristics which merit attention. First, environmental damage is characterized by “dispersion of victims”, due to the diffuse interests in the environment mentioned above, and in many cases “dispersion of polluters”, since environmental degradation can be caused by a number of agents, whose share in the damage can be difficult, if not impossible, to determine, making the causal nexus between the agents’ conduct and the degradation

��18 Édis Milaré, supra note 12, 866. 19 José Rubens Morato Leite, Dano Ambiental: Do Individual ao Coletivo Extrapatrimonial (São Paulo: Revista dos Tribunais, 2003, 2nd Edition), 94.

difficult to prove, as will be seen below. Moreover, environmental damage often displays “temporal dispersion” as well, since the injurious conduct may have occurred in the past, but its effects are prolonged over time and/or are manifested many years later.

Another peculiarity is the difficulty of repairing environmental damage, given that when degradation occurs it is almost impossible to return the environment to the status quo ante. As a rule, the polluter is required to restore the original characteristics of the affected aspect of the environment and, if full reparation of the damage to the environment is impossible, the polluter must also pay damages in money and/or in compensatory environmental measures. This raises yet another particular aspect of environmental damage: the difficulty of valuing the damage. If the environment is considered to be a diffuse or intangible “asset” or interest, putting a price on the environment encounters moral obstacles. For example, how is it possible to establish, according to strictly economic criteria, the value of an animal species whose extinction was brought about by a polluting event?

For these reasons, it is essential to prevent damage to the environment before it occurs, anticipating effects that are both injurious and difficult to control, applying either the prevention principle, in the case of activities that have known and mitigable environmental impacts, or the precautionary principle, when the risk of a given activity is so high that the lack of absolute scientific certainty should not be a barrier to the adoption of actions to avoid the occurrence of serious and irreversible damage to the environment.

3.3. The Causal Nexus in Civil Environmental Liability

Although Brazilian law dispenses with a subjective analysis of the agent’s conduct

in matters of civil environmental liability, the existence of damage and the relationship of cause and effect between the damage and the effectively or potentially polluting activity must still be proved. However, damage to the environment, aside from having the peculiarities mentioned above, is often the result of a multitude of causes, making it difficult to impute civil liability to potential polluters. The dilution of the causal nexus in these cases is described by GISELA SAMPAIO CRUZ:

“When dealing with environmental damage, for example, the proof of the causal nexus becomes an almost insurmountable obstacle to the victims’ right to compensation. The fact is that environmental damage almost always results from more than one cause – simultaneous or successive contributing causes – and manifests itself in a slow and progressive manner. Degradation of the environment is, as a rule, the cumulative product of conduct that occurs over time. Proof of the causal nexus is thus made difficult by the temporal distance between the damaging event and the damage”.20 JOSÉ RUBENS MORATO LEITE and DÉLTON WINTER DE CARVALHO attempt to

synthesize the cases in which the victims of an environmental injury face the extraordinary difficulty of proving causation: (i) when establishing probability is technically highly complex or, in other words, when there are many scientific doubts as to the causal

��20 Gisela Sampaio Cruz, O Problema do Nexo Causal na Responsabilidade Civil (Rio de Janeiro: Renovar, 2005), 262.

relationship between the agent’s conduct and the damage, and other scientific explanations for the damaging event are possible; (ii) when some of the damaging consequences manifest themselves only over the course of a long period of time; (iii) when the damage could be generated by cumulative unspecified emissions; and (iv) when there are enormous distances between the possible locations of the emissions and the transborder damaging effects.21

The regime of objective civil liability adopted by the Brazilian legal system is thus not sufficient to ensure that the principle of full reparation is effective where environmental damage is concerned, because demonstrating the relationship of cause and effect in any concrete case can be impossible, principally because of the phenomenon of multiple causes. The victims – the people as a whole in the case of collective environmental damage, and the individuals affected by the consequences of environmental degradation, in the case of individual environmental damage – run the risk of being left without compensation because of the inability to demonstrate a causal link, even after the existence of an unjust injury has been proved.22

The very complexity of identifying and delimiting environmental damage suggests that the requirement to prove causation in actions for damage of this nature should be relaxed.23 A more flexible approach to causation could be implemented by means of presumptions, including the use of criteria based on statistics and probabilities, and by reversal of the burden of proof. As ANTONIO HERMAN DE VASCONCELLOS BENJAMIN notes:

“Proof of the causal nexus in environmental matters can be facilitated in many ways. First, through presumptions of causation, in view of the fact that, as a rule, we are “in the presence of a hazardous activity”, where there is good reason to presume juris tantum that a causal nexus exists. Second, through a broader reversal of the burden of proof when there are multiple potential sources of degradation and the victims are in a disadvantaged position. Third, by establishing innovative systems of causality, such as alternative civil liability and market share liability”.24

Thus, attenuation of the causal nexus in environmental matters occurs when the injured party is not required to make a factual demonstration that the damage originated in the alleged polluter’s conduct or activity. Since proof of this causal link can be arduous for the victims of environmental degradation, often due to the limits and uncertainties of science, a demonstration of the probability that the activity caused the damage should be sufficient to impose liability on the presumed polluter, as long as this probability is determining or significant. In other words, proof of causation should depend on the presentation of evidence that shows “a sufficient degree of probability”, a “high probability” or a probability “close to certainty”.25

��21 José Rubens Morato Leite and Délton Winter de Carvalho, O Nexo de Causalidade na Responsabilidade Civil por Danos Ambientais in Revista de Direito Ambiental no. 47, ed. Antônio Herman de Vasconcellos Benjamin et. al. (São Paulo: Editora Revista dos Tribunais, 2007), 79. 22 Caitlin Sampaio Mulholland, A Responsabilidade Civil por Presunção de Causalidade (Rio de Janeiro: GZ Editora, 2009), 315. 23 Id., 333. 24 Antônio Herman de Vasconcellos Benjamin, supra note 12, 45-46. 25 José Rubens Morato Leite and Délton Winter de Carvalho, supra note 21, 88-89. �

When it is reasonable to conclude that the agent’s conduct has the potential to produce the environmental damage or, put another way, when there is a significant probability, it is then possible to presume a causal nexus, ensuring full reparation of the damage done to the environment and to third parties affected by the consequences of the environmental damage. In considering the theory of presumption of causation, CAITLIN SAMPAIO MULHOLLAND makes the following comments:

“It can be seen that the presumption of causation would, in principle, do away with a factual analysis of the relationship of cause and effect and would base itself in other elements of civil liability, specifically the conduct or activity and the damage. As soon as it is possible to determine that the conduct carries risk, and thus that the case is one of objective civil liability, and that the damage is a typical and appropriate consequence of the activity in question, we would have a presumption of causation. It would then fall to the party that conducts the activity to prove that the injurious consequence, although typically associated with the activity, was not perpetrated by that party. In other words, the presumably liable party would have the possibility of proving, on the facts, that the damage resulted from some other causal circumstance, whether an act of God, a third party’s act or the conduct of the victim himself”.26

Thus, once the causal nexus is presumed, the burden of proof is “automatically reversed”, and the agent is required to prove the absence of a relationship of cause and effect between the conduct or activity and the damage and, if the theory of created risk is applied, the existence of one of the circumstances that excludes liability. The general rule governing the burden of proof is found in article 333 of the Brazilian Code of Civil Procedure, which provides that the plaintiff is required to produce evidence of the facts which give rise to his right (in other words, the plaintiff must prove the facts he alleges, as otherwise they will be considered not to exist), while the defendant is required to prove the existence of any facts that might bar, modify or extinguish the plaintiff’s right. As seen above, in environmental matters the proof of the facts alleged by the plaintiff, including the causal nexus between the defendant’s conduct and the environmental degradation, can be a burdensome, difficult or even impossible task. Moreover, when the defendant is aware, a priori, of the difficulty faced by the plaintiff in producing evidence, the defendant may adopt an indifferent or almost inert posture, and not produce any evidence in order to avoid the risk that it may be used against him.27 In circumstances such as these, it is possible to allow a reversal of the burden of proof, since the alleged polluter is better able to produce evidence. The court, on determining that no specific legal rule governs the matter, can then apply the rule of common experience as to the ordinary course of events, and abandon the general rule on the burden of proof that would otherwise apply, based on article 335 of the Brazilian Code of Civil Procedure.28 ��26�Caitlin Sampaio Mulholland, supra note 22, 339-340.�

27 Marcelo Abelha Rodrigues, Processo Civil Ambiental (São Paulo: Editora Revista dos Tribunais, 2010), 193. 28 Article 335 of the Brazilian Code of Civil Procedure: “In the absence of specific legal rules, the judge shall apply the rules of common experience, supported by the observation of what ordinarily happens, and the rules

Interestingly, the reversal of the burden of proof has been increasingly accepted by the Brazilian courts, as can be seen from a recent decision by the Superior Court of Justice (Superior Tribunal de Justiça, Brazil’s highest court in non-constitutional matters),29 which held that the party engaged in the potentially hazardous activity had the obligation to produce evidence that it was not liable, applying both the precautionary principle and the provision of the Consumer Defense Code that permits the burden of proof to be reversed.30 4. The Imputation of Civil Liability for Environmental Damage related to Climate

Change

The imputation of civil liability for environmental damage related to climate change is not an easy task. It is a classic example of all the barriers inherent to the imputation of civil environmental liability, and indeed those barriers are even higher when it comes to damage resulting from climate change, given the peculiar difficulties of establishing a causal nexus. Traditionally, courts have focused on the individual injured by acts, omissions or products traced to identifiable parties. Such a situation does not exist in climate change litigation. To the extent anyone is affected by climate change, all people are victims.31

��

of specialized experience, subject, in the latter case, to expert evidence.” See also Caitlin Sampaio Mulholland, supra note 22, 285-286. In his comments on this provision, FRANCISCO JOSÉ MARQUES SAMPAIO states that “there is support ... for the presumption of damage in matters of environmental reparation using the rules or maxims of experience when the subject matter of the dispute makes it difficult to produce relevant and conclusive evidence, as sometimes occurs when the effects [of the matter in question] only become perceptible after a long period of time, such as the effects of actions employing a substantial amount of modern technology.” Francisco José Marques Sampaio, Evolução da Responsabilidade Civil e Reparação de Danos Ambientais (Rio de Janeiro: Renovar, 2003), 262. 29 Superior Court of Justice. Special Appeal no. 972902/RS. 2nd Panel. Date of Judgment: August 25, 2009. Digest: “Civil and Environmental Procedure – Public Civil Action – Environmental Damage – Advance of Expert’s Fees by the Prosecutor – Moot Question – Reversal of the Burden of Proof – Article 6 (VIII) of Federal Law 8078/90 read with article 21 of Federal Law 7347/85 – Precautionary Principle. 1. A special appeal based on violation of article 18 of Federal Law 7347/1985 (advance of expert’s fees) becomes moot when the decision ordering the expert evidence has been made ineffective by the court of first instance. 2. The burden of proof is not to be confused with the duty of the Prosecutor’s Office to bear the cost of expert’s fees for evidence requested by the prosecution in a civil public action. These are distinct and legally independent questions. 3. The reversal of the burden of proof, transferring to the party that engages in a potentially hazardous activity the onus of demonstrating the safety of the undertaking, is justified on the basis of article 6 (VIII) of Federal Law 8078/90 read with article 21 of Federal Law 7347/85, together with the environmental precautionary principle. 4. Special appeal granted in part.” 30 Article 6 of Federal Law 8078/90, which enacted the Brazilian Consumer Defense Code: “The following are basic rights of the consumer: ... (VIII) – facilitation of the defense of his rights, including by means of the reversal of the burden of proof in his favor in civil proceedings when, at the judge’s discretion, the claim appears to be true or when the consumer is at a disadvantage according to the ordinary rules of experience.” This article can be applied in environmental law by reason of the provisions of article 21 of Federal Law 7347/85 (“to the extent compatible, the provisions of Title III of the Law that enacted the Consumer Defense Code apply to the defence of diffuse, collective and individual rights”), which governs public civil actions in liability for damage caused to the environment, consumers or property and rights that have artistic, aesthetic, historical, touristic or scenic value.�31 Richard O. Faulk and John S. Gray, Defending against Climate Change Litigation: Threshold Issues, in Climate Change: Litigation, Regulation and Risk, ed. Mary Ellen Fox (Wayne: Thomson Reuters/West Report, 2008), 41.

Following the chain of causation that leads to climate change, damage of this type can be divided into two categories: (i) collective environmental damage, of a diffuse nature, caused directly to the planet’s climate by reason of the aggravation of the greenhouse effect brought on by anthropogenic emissions of GHGs; and (ii) indirect environmental damage, i.e. damage resulting from the climate change itself, which can be collective, when the diffuse interests in the environment are injured, or individual, when there is consequential injury to persons and their private property.

As for environmental damage caused directly to the climate, it can be argued that that a causal nexus is established by means of presumption, given that the IPCC qualifies as very likely (reflecting a certainty of more than 90%) that the preponderant cause of global warming is the increase in the concentration of GHGs in the atmosphere as a result of anthropogenic emissions.

However, although environmental damage to the climate is diffuse in nature and therefore indivisible, it would be absurd and entirely impracticable to hold one or more agents liable for all anthropogenic contributions to climate change. In other words, the rule of joint liability cannot be applied in this case. On the other hand, calculating the contribution of each agent to the worsening of the greenhouse effect can be complicated, especially when the various “natural causes” and past GHG emissions are taken into consideration. In any event, the courts will have to assign a portion of liability to each of the agents in a manner that is fair, but that also ensures equitable reparation of the damage caused to the planet’s climate. As DAVID A. GROSSMAN points out:

“One understandably could view holding defendants jointly and severally liable for the entirety of plaintiffs’ harms from climate change as unfair. Because greenhouse gases have long lifespans in the atmosphere, past emissions are contributors to climate change. Accordingly, if courts assign all damages to current companies, those companies would be liable for past emissions to which they have no connection. Furthermore, although those companies are “substantial” contributors, there are still other parties who have contributed somewhat to climate change as well. To avoid such inequity, courts may require apportionment even where harms seem indivisible if some means of fair and rational apportionment is possible without causing injustice to any of the parties. In pollution cases, for instance, courts can treat a seemingly indivisible harm as divisible and apportion it among defendants on the basis of evidence of their respective quantities of pollution discharged. In the climate context, this division could involve apportioning damages (appropriately reduced to account for past emissions) based on the global warming potential of their greenhouse gas emissions, to correspond as much as possible to each defendant’s contributions to climate change. On the other hand, apportioning damages in accordance with each defendant’s contribution to climate change might provide plaintiffs with only a small percentage of the damages they are suffering. Courts will have to find a balance between equitable apportionment and adequately compensatory damages”.32

��32 David A. Grossman, Tort-Based Climate Litigation, in Adjucating Climate Change: State, National and International Approaches, ed. William C.G. Burns and Hari M. Osofsky (New York: Cambridge University Press, 2009), 227-228.

In principle, the delimitation of the liability of companies responsible for large volumes of emissions could be made on the basis of the theory of market share liability, although the practical application of this theory could encounter scientific obstacles and limitations as to the data available on the GHG emissions of each defendant. This possibility is raised by JOSEPH SMITH and DAVID SHEARMAN:

“In some US mass tort cases, liability has been based on market-share liability. Holding defendants liable on this basis would mean, for example, that a defendant that is responsible for three per cent of the production via fossil fuels would be held responsible for three percent of the relevant damage (before a discount to allow the possibility of natural causes having caused the damage is also made). This liability-splitting rule would appear to be suitable for apportioning liability although, whilst simple in theory, the calculation of world market shares could, in practice, be a costly and difficult task”.33

At the same time, the payment of damages for harm already caused to the climate,

by apportioning liability among the various defendants, is not the only tool that can be used in the realm of civil environmental liability. In order to ensure that the harm to the climate is not aggravated, defendants can be ordered to perform certain actions (the imposition of obligations to do, such as the compensation of GHG emissions by reforestation of degraded areas) and to refrain from certain actions (the imposition of obligations not to do, such as the gradual reduction of GHG emissions in the defendants’ activities).

As for indirect environmental damage brought on by climate change, establishing a causal nexus becomes an almost insuperable barrier. In effect, demonstrating a specific relationship of cause and effect between GHG emissions and a damaging event made possible by climate change is practically impossible because of the multiple causes involved. For this reason, determining the liability of a given agent for a specific event attributed to climate change can be complex and very difficult. DAVID A. GROSSMAN has also examined this question:

“Showing specific causation in the climate change context could be similarly difficult in some cases. The complexity of the climate change system means that several factors are involved in producing shifts in climatic activity, such as more intense storms or higher temperatures, which are also subject to natural fluctuations. These multiple causes and background levels of climatic effects make it difficult to show that defendants’ contributions to anthropogenic climate change caused any particular incidence of a phenomenon. Harms caused by one particularly intense hurricane or heat wave, for instance, are difficult to tie to global climate change, as such intense phenomena do sometimes occur naturally”.34 JOSEPH SMITH and DAVID SHEARMAN agree:

��33 Joseph Smith and David Shearman, Climate Change Litigation: Analysing the Law, Scientific Evidence & Impacts on the Environment, Health & Property (Adelaide: Presidian, 2006), 111. 34 David A. Grossman, supra note 32, 217.

“The fact that factors in addition to a defendant’s actions contribute to global warming (namely, natural causes and emissions by other polluters) means that a defendant is not solely responsible for harm caused to a plaintiff. This raises a multitude of complex issues in terms of causal analysis. For example, if in the absence of anthropogenic global warming a city would experience two extreme storms but, as a result of anthropogenic climate change, experiences three such storms, it is impossible to determine whether any given storm is due to anthropogenic warming or some other contributing factor”.35

It can be seen that the delimitation and pecuniary quantification of an agent’s contribution, through GHG emissions, to a specific event attributed to climate change faces various scientific barriers, and statistical associations based on computer models may not produce a sufficient or precise analysis because of the multiplicity and complexity of the causal factors involved in such cases. These uncertainties persist, although they may be lesser, when a broader scenario is considered and damage related to climate change is examined over greater periods of time and space.36

4.1. Civil Liability for Environmental Damages related to Climate Change in the United States of America

Climate change litigation is evolving rapidly in the United States of America. In this

section, four cases in which the plaintiffs claimed reparation, in the form or monetary awards or implementation of emission reduction programs, for damage related to climate change from defendants whose activities involved significant emissions of GHGs.

The lawsuits were heard by the respective District Courts, and in each case the courts decided that the claims presented a “non-justiciable political question”. In other words, the decisions at first instance were based on the political question doctrine, a legal theory used to prevent the judiciary from interfering in the business of the other branches of government.

Despite these decisions, DAVID A. GROSSMAN believes that the political question doctrine does not apply in the context of climate change tort suits. According to this author, although these cases do involve political questions, this does not mean they are non-justiciable.37 As DAVID A. GROSSMAN explains:

“For instance, there appears to be no ‘textually demonstrable constitutional commitment’ of climate change abatement or damages to Congress or the Executive. Similarly, it seems that courts have extensive experience with nuisance cases seeking damages from and/or abatement of pollution by the defendants before them, suggesting both that there could be standards for resolving climate change tort suits and that courts would not be showing disrespect to other branches by resolving

��35 Joseph Smith and David Shearman, supra note 33, 107. 36�JOSEPH SMITH and DAVID SHEARMAN give the following example: “whilst it would be difficult for a farmer

to prove that a single storm that caused damage to maple trees on his or her farm was caused by global warming, it would be relatively easier for a government to prove that a very high number of storms over an extended period that have caused widespread damage to a maple tree industry is a result of climate change”. Id., 114.�37�David A. Grossman, supra note 32, 215.

an interstate nuisance dispute. Additionally, there does not appear to be a coherent national political decision already made about greenhouse gas abatement and damages, and court action concerning particular defendants and plaintiffs would not ‘inapropriate[ly] interfere[]’ with the other branches of government continuing their own climate change efforts (Congress can, in fact, override through legislation any result from a federal common law court decision)”.38

It seems that DAVID A. GROSSMAN’s position is slowly being adopted by the United

States of America judiciary. Of the four District Court decisions in the cases examined below, two have already been overturned by the respective Courts of Appeals, which held that the claims are not covered by the political question doctrine. In addition, much expectation is centered on the appeal in the Native Village of Kivalina case (item 4.1.4. below), which has not yet been decided at the time this article was written.

4.1.1. State of California v. General Motors Corporation, et. al. On September 20, 2006, California filed a complaint against six of the world’s

largest car manufacturers in the District Court for the Northern District of California seeking damages for the public nuisance that greenhouse gas emissions from their automobiles is causing in California. The complaint alleged that these emissions currently amount to 9% of the CO2 emissions in the world and more than 30% in California. The complaint sought monetary compensation for the alleged large-scale damages that the companies’ contributions to global warming are already causing in that state.39

Invoking the political question doctrine, the District Court dismissed the complaint on September 17, 2007, agreeing with the defendants that it is for Congress and the President, not the courts, to address the injuries that California is experiencing from global warming. Federal Judge Martin J. Jenkins stated that “the court finds that injecting itself into the global warming thicket at this juncture would require an initial policy determination of the type reserved for the political branches of government”.40

On January 31, 2008, California appealed the case to the Court of Appeals for the Ninth Circuit. However, on June 19, 2009, California Attorney General’s Office voluntarily dropped its appeal, issuing a statement that recent policy changes by the Obama Administration indicated progress on certain related issues, specifically an increase in fuel economy standards and the United States of America Environmental Protection Agency (EPA)’s draft determination that greenhouse gases from motor vehicles threaten public health and welfare and must be regulated under the Clean Air Act.41

�

��38 Id., 214. 39 More information on the case can be found at http://ag.ca.gov/globalwarming/litigation.php (accessed on March 21, 2010). 40 See the Order Grating Defendant’s Motion to Dismiss at http://ag.ca.gov/globalwarming/pdf/California_GeneralMotors_Decision_Dismiss_2007Aug17.pdf (accessed on March 21, 2010). 41 See Massachusetts et. al. v. EPA et. al. The United States of America Supreme Court has decided that greenhouse gases are air pollutants covered by the Clean Air Act. See Climate Law website at http://www.climatelaw.org/cases/country/us/greenhousegases/ (accessed on March 23, 2010) and EPA website http://www.epa.gov/climatechange/endangerment.html (accessed on March 23, 2010) for more information.

4.1.2. State of Connecticut, et. al. v. American Electric Power Company Inc., et. al.

On July 21, 2004, eight states (Connecticut, California, Iowa, New Jersey, New

York, Rhode Island, Vermont and Wisconsin) and New York City filed a complaint against the five largest emitters of CO2 in the United States of America in the District Court for the Southern District of New York. The complaint sought a court order enjoining each defendant to abate its contributions to the public nuisance by capping its emissions of CO2 and then reducing those emissions by a specified percentage each year for at least ten years. A similar complaint was filed by three non-governmental organizations (Open Space Institute, Open Space Conservancy, and Audubon Society of New Hampshire). On September 15, 2005, the District Court dismissed both complaints, again on the ground that the case raised a “non-justiciable political question”, which requires an “initial policy determination” that should first be made by another branch of government (Congress or the Executive Branch) that is better suited to such deliberations. On December 15, 2005, plaintiffs filed briefs in the Court of Appeals for the Second Circuit of appealing the dismissal.

On September 21, 2009, the Court of Appeals issued an order reversing the trial court's decision. The decision held that: (i) the plaintiffs’ claims do not present political questions and can be decided by the courts; (ii) the plaintiffs have standing to bring their claims; and (iii) the complaints adequately allege claims under the federal common law of nuisance.42

It is interesting to note that these lawsuits did not focus their claims on monetary damages for damage caused or to be caused by the defendants by reason of their contributions to global warning. Instead, the plaintiffs took a preventive point of view and requested only that the defendants mitigate the GHG emissions involved in their activities.

4.1.3. Comer, et. al. v. Murphy Oil, et al. On September 30, 2005, Ned and Brenda Comer, as well as some other residents

and owners of lands and property along the Mississippi Gulf coast filed a complaint in the District Court for the Southern District of Mississippi against Murphy Oil and other energy, fossil fuel, and chemical companies. The plaintiffs alleged that defendants’ operation of energy, fossil fuels, and chemical industries in the United States of America caused the emission of greenhouse gases that contributed to global warming, increasing global surface air and water temperatures, which in turn caused a rise in sea levels and added to the ferocity of Hurricane Katrina, which combined to destroy the plaintiffs’ private property, as well as public property useful to them.

The plaintiffs’ putative class action asserted claims for compensatory and punitive damages based on Mississippi common-law actions of public and private nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation, and civil conspiracy. The plaintiffs amended their complaint several times to add other industries as defendants. On August 30, 2007, the District Court dismissed the case based on standing. The decision also held that plaintiffs’ claims were barred by the political question doctrine.

��42 See the decision at http://ag.ca.gov/globalwarming/pdf/AEP_decision.pdf (accessed on March 21, 2010). �

However, on October 16, 2009, the Court of Appeals for the Fifth Circuit overturned the District Court dismissal in part, stating that plaintiffs had standing to assert their public and private nuisance, trespass, and negligence claims. The Fifth Circuit did not accept the claims of unjust enrichment, fraudulent misrepresentation, and civil conspiracy, holding that the plaintiffs did not satisfy the “prudential” element of standing.

�

4.1.4. The Native Village of Kivalina, et. al. v. Exxonmobil Corporation, et. al. On February 26, 2008, the Native Village of Kivalina and the City of Kivalina,

Alaska, brought a suit against Exxonmobil Corporation and other eight oil companies, 14 power companies and one coal company in a lawsuit related to climate change filed in the District Court for the Northern District of California.

The complaint alleged that as a result of global warming, the Arctic Sea ice that protects the Kivalina coast from winter storms has diminished, and that the resulting erosion and destruction will require the relocation of Kivalina’s residents.

The plaintiffs seek monetary damages from the defendants for their contributions to global warming through emissions of large quantities of greenhouse gases and for civil conspiracy and concert of action against certain defendants for participation in conspiratorial and other actions intended to suppress the knowledge of the link between greenhouse gas emissions and global warming, thereby furthering the defendants’ abilities to contribute to global warming.

On September 30, 2009, the case was dismissed by the District Court based on the political question doctrine and the plaintiffs’ lack of standing. An appeal has been filed in the Court of Appeals for the Ninth Circuit.43

4.2. Civil Liability for Environmental Damage related to Climate Change in Brazil

At the time this article was written, there were no decided cases or pending lawsuits

based on civil liability for environmental damage related to climate change in Brazil. Two major factors contribute to this lack of litigation: (i) the fact that Brazil is considered a developing country, which was recognized by the Kyoto Protocol,44 and has not yet assumed, at the international level, measurable goals for reduction of GHG emissions; and (ii) the lack of a consolidated theory in Brazilian legal literature that establishes ethically and legally acceptable criteria for the imputation of civil liability for environmental damage related to climate change. This article is not intended to examine in exhaustive detail the long and complex path to the construction of such a theory but rather to stimulate discussion on the subject.

In analyzing this question, ANNELISE MONTEIRO STEIGLEDER correctly points out that “from the perspective of the discussion on models for imputation of the obligation to repair damage, it can immediately be seen that civil liability, even objective civil liability,

��43 See the opening brief filed by the plaintiffs on March 10, 2010 at http://www.pawalaw.com/assets/docs/kivalina-9th-circuit-appellants-brief.pdf (accessed on March 21, 2010). 44 The Kyoto Protocol fixed measurable goals only for developed countries, based on the principle of common but differentiated responsibilities, which was also established in the United Nations Framework Convention on Climate Change (UNFCCC), considering the historical contribution of each country to the increase in the concentration of GHGs in the atmosphere.

is insufficient to deal with such damage because climate change is the result of a civilizational crisis”.45 However, as will be seen below, it can be argued that the Brazilian legal system already has instruments that make it possible to manage the risks and liability related to climate change, to the extent that they can be managed. A good example is the recent Federal Law 12,187/09, which creates the National Climate Change Policy.

This legislation provides, as a national voluntary commitment, that Brazil will reduce its projected 2020 GHG emissions by 36.1% to 38.9%. To promote achievement of that voluntary goal, the Climate Change National Policy expressly establishes various principles, such as the “precautionary principle” and the “principle of sustainable development”, and fixes directives for achieving the objectives set out in the Law, including the need to take into account individual liabilities with respect to the origin of sources of emissions”, as can be seen in article 3 of Federal Law 12,187/09:

“Article 3. The National Climate Change Policy and the actions arising out of it, performed under the responsibility of political entities and agencies of the public administration, shall respect the principles of precaution, prevention, citizen participation and sustainable development and, at the international level, the principle of common, but differentiated, responsibilities, and, with respect to the measures to be adopted in carrying out [the national policy], the following shall be taken into account: (...) III – the measures shall take into consideration the different socioeconomic contexts in which they are applied, distribute the resulting burdens and charges among the economic sectors and the interested populations and communities in a fair and balanced manner and take into account individual liabilities with respect to the origin of the sources of emissions and of the effects on the climate”. With this new legislative development, it becomes particularly relevant to examine

these “individual liabilities” and the question of who, in a legal context, could be considered to be potentially liable for environmental damage related to climate change.

As mentioned above, the IPCC has affirmed that there is a high probability – greater than 90% – that there is a relationship of cause and effect between human activity and global warming. The small margin of scientific uncertainty can be overcome by applying the precautionary principle, now established in the Brazilian legal system, and the presumption as to causation in the matters of environmental damage.

It can thus be concluded that GHG emissions resulting from human activities, including activities conducted on Brazilian territory, have upset the balance of the global climate and so have caused environmental damage. In theory, where episodes of pollution are concerned, Brazilian law allows all those who contributed to the environmental damage, either directly or indirectly, to be held jointly liable. However, in the case of climate change, it can be said that each human being contributes, however infinitesimally, to global

��45 Annelise Monteiro Steigleder, A Imputação da Responsabilidade Civil por Danos Ambientais associados às Mudanças Climáticas, available at http://www.planetaverde.org/mudancasclimaticas/down.php?arq=040509-010446artigo_annelise.pdf&pasta=admin_artigos (accessed on March 23, 2010). �

warming, presenting a concrete example of the concept of “organized irresponsibility” developed by ULRICH BECK.

DANIELLE DE ANDRADE MOREIRA examines a similar problem in her review of post-consumption environmental liability and the damage caused by improper management of solid waste:

“This extensive list of polluters would appear to be the solution to the problem of ‘organized irresponsibility’, since it would permit the imposition of liability on all, or better, on any of the parties, by reason of [the rule of] joint liability. However, when faced with the possibility of holding a limitless number of persons liable, one must ask whether the imposition of liability would achieve the desired result or whether, in a context in which all who participate in the chain of production and consumption are equally and indistinctly liable for the environmental damage arising from the final disposal of the waste of this process, the reality of ‘organized irresponsibility’ would be perpetuated.46

Given this scenario of “organized irresponsibility”, in which all contribute to global

warming and all are victims of climate change, it is necessary to determine ethically and legally acceptable criteria for the imputation of civil liability for the damage – and indeed the risks – related to climate change. In other words, a decision must be made as to who will be responsible, at least in this initial stage of combating the climate crisis, for leading society toward a low carbon economy.

This decision has an obvious political element, which is characteristic of a risk society. However, from a legal point of view, the concept of pollution under Brazilian environmental legislation can assist in the resolution of the problem, since it is possible to conclude that the legal definition of pollution extends only to conduct which actually causes a significant degradation in the quality of the environment. While it is true that each person, directly or indirectly, contributes to environmental degradation, it is also true that the daily environmental impact of a single person does not necessarily make him or her a polluter for all legal purposes and effects. The environmental degradation must be significant, even though such a subjective assessment can generate controversy in some cases.

Accordingly, if the above-mentioned position was adopted in Brazil, civil liability for environmental damage related to climate change might be imputed to large emitters of GHG gases – those companies which engage in activities that, by reason of their nature or extent, emit significant volumes of GHG – and to the federal, state and municipal governments for the GHG emissions resulting from the performance of public services, the adoption of public policies that are unsustainable because they do not take climate change into consideration, and the governments’ failure to development plans and programs to combat global warming.

Given the magnitude of climate change, and the fact that it is a civilizational crisis, a single individual or small group of individuals cannot be said to fall within the legal concept of polluter. Instead, it is necessary to identify those parties that have made a

��46�Danielle de Andrade Moreira, Responsabilidade Ambiental Pós-Consumo: da Prevenção à Reparação de

Danos. Doctoral Dissertation in Cities Law. (Rio de Janeiro: Faculty of Law. Graduate Law Program, State University of Rio de Janeiro – UERJ, 2008), 144.

significant contribution to the phenomenon in order to mitigate the problem at its main sources and create a cascading effect that will reach the other levels of society.

Having identified the parties that might be held liable for environmental damage related to climate change, the next question to be addressed is what protection, if any, from this type of environmental damage can be found in Brazilian law.

Collective environmental damage of a diffuse nature, which is caused directly to the planet’s climate due to the worsening of the greenhouse effect provoked by anthropogenic emissions of GHG, can be considered as a kind of “progressive environmental damage”,47 with effects that are causing a notorious imbalance in the global climate and, consequently, in the environment.

This conduct clearly violates article 225 of the Brazilian Federal Constitution, which guarantees the right to an ecologically balanced environment:

“Article 225. All have the right to an ecologically balanced environment, which is an asset for the common use of the people and essential to a healthy quality of life, and both the Government and the community shall have the duty to defend and preserve it for present and future generations”.

The obvious progressive damage to the climate and the environmental risks and

damage resulting from climate change clearly require the adoption of preventive measures, suggesting that the appropriate legal remedy for collective environmental damage is to impose on polluters obligations to do and not to do, in order to halt the damage and mitigate risks.

Although some argue that civil liability does not apply to risks, on the ground that there is no liability without proof of damage actually suffered, we prefer the position adopted by DÉLTON WINTER DE CARVALHO, who conceives of these risks as future environmental damage. According to the author, the characterization of environmental risk as damage

“(...) is possible under a new theory of risk (the theory of abstract risk), in contrast to its classic dogmatic meaning – the theory of (concrete) risk – which requires the occurrence of damage in order for civil liability to be imposed (dispensing only with proof of fault on the part of the agent which caused an effective loss or damage)”.48 The main procedural instruments under Brazilian law that can be employed to protect

the diffuse right in an ecologically balance environment are: (i) the public civil action,

��47 ANNELISE MONTEIRO STEIGLEDER defines the concept of “historic damage”, which can be classified as “continuing damage”, or permanent damage, and “progressive damage”. According to the author, “permanent or continuing damage results from a source of contamination in which the activity (single and periodic) continues over time, producing ever greater damage.” In contrast “progressive damage is the consequence of the accumulated effect of the activities of various agents, in which it is impossible to determine which of them produced the concrete damage. Taken singly, none of the polluting sources has the potential to upset the ecological balance, but taken collectively the emissions are unsustainable, producing what is known as contamination by synergy.” Annelise Monteiro Steigleder, Aspectos Jurídicos da Reparação de Áreas Contaminadas por Resíduos Industriais, in Revista de Direito Ambiental no. 29 (São Paulo: Revista dos Tribunais, 2003), 129.�48 Délton Winter de Carvalho, supra note 06, 125.

provided for in article 129 (III) of the Brazilian Federal Constitution and Federal Law 7345/85, and (ii) the citizen’s action, governed by article 5 (LXXIII) of the Brazilian Federal Constitution and Federal Law 4717/65.

By means of these instruments, the courts could impose on polluters measures to mitigate their GHG emissions. For example, the courts could require the adoption of programs for quantification, monitoring and gradual reduction of GHG emissions.49 Measures such as these would contribute to reducing the progressive environmental damage caused to the climate and prevent the materialization of future environmental damage. According to DÉLTON WINTER DE CARVALHO:

Thus, the Law would also be required to anticipate and contain phenomena and activities that could contribute to climate change, by declaring them to be illicit. Intolerable socio-environmental risks are declared to be illicit through an analysis of their probability and magnitude, as a result of the violation of the provisions of article 187 of the Civil Code read with article 225 of the Federal Constitution, stimulating the adoption of preventive measures (obligations to do or not to do, based on article 3 of Federal Law 7347/85).50 An even more complex problem than preventive remedies for progressive

environmental damage to the climate and the related future environmental damage is the question of reparation for environmental damage already brought about by climate change.

Is it possible to obtain reparation through the courts for the environmental damage that has already been caused to the climate? And, passing to the second category of environmental damage, is it possible to obtain reparation for indirect environmental damage, where the environmental risks have materialized?

In the first question, assuming that the causal nexus between anthropogenic GHG emissions and global warming is presumed (as it must be under the precautionary principle), the main barrier to reparation is the difficulty in quantifying each polluter’s share in the progressive environmental damage caused to the climate.51

The barrier is formed by the need to consider the various “natural causes” and “historic GHG emissions” referred to earlier in this article. Quantification of any polluter’s contribution to climate change for the purposes of awarding compensation is necessarily a difficult, costly and scientifically complex task.

With respect to the first variable, it is known that global warming is the result of concurrent causes, some natural, which can be classified as events of force majeure, and others anthropogenic.

��49 An award of this nature could affect the voluntary participation and additionality criteria of the Clean Development Mechanism (CDM) created by the Kyoto Protocol, which could in turn adversely affect the implementation of projects related to the activities involved in the judicial decision. However, this “perverse effect” of the CDM, while of extreme importance, falls outside the scope of this article. �50 Délton Winter de Carvalho, Mudanças Climáticas e as Implicações Jurídico-Principiológicas para a Gestão dos Danos Ambientais Futuros numa Sociedade de Risco Global, available at http://www.planetaverde.org/mudancasclimaticas/down.php?arq=090310-120244artigo_delton.pdf&pasta=admin_artigos (acessed on March 23, 2010). 51 In this case, we are using the causal nexus system to distribute liability for losses among those who contributed to the damage.

In cases where force majeure is only one of the concurrent causes of damage, GISELA SAMPAIO CRUZ explains that there are two schools of thought among Brazilian commentators: some authors consider that the agent should assume liability for the whole of the damage, while others argue that the agent’s liability should be fixed according to its share in the damaging event.52 We believe the second school of thought is correct, as does GISELA SAMPAIO CRUZ:

“The second position seems to be more correct. If the agent is required to bear the consequences of his actions, he should be liable only to the extent of his causal contribution, otherwise liability would be imposed on the agent for a loss that he did not produce. When an act of God is also a contributing cause, the court should attenuate the agent’s liability, based on the degree to which the agent’s conduct effectively contributed to the damaging event or, in other words, according to his share in production of the damage”.53 In short, for the purposes of civil liability, only climate change that is the result of

anthropogenic activity should be considered, excluding the portion of climate change due to natural causes, and all the polluter’s past emissions should be taken into account, although this will not always be possible since inventories of GHG emissions were not kept in the past.

Where quantification is possible, it can be argued that the polluter’s share in environmental damage should be fixed according to the theory of market share liability, although we are not aware of any cases in Brazil in which that theory has been adopted.

To give an example of how market share liability would apply, calculation of damages for the contribution to climate change caused by the GHG emissions of a thermoelectric station would follow a number of steps: (i) obtain a reliable estimate of the global cost generated by climate change; (ii) calculate the Brazilian contribution to the worsening of the greenhouse effect and thus to the global cost of climate change; (iii) calculate the share of the Brazilian thermoelectric energy sector, including the production, transmission and consumption stages, in the overall Brazilian contribution to global warming; and (iv) calculate the share of the specific thermoelectric station in the Brazilian thermoelectric sector.

As the above example shows, even the quantification of a polluter’s contribution based on market share liability is an extremely arduous task, which only reinforces the importance of adopting preventive measures and developing other methodologies for quantifying liability. However, where it is possible to quantify a polluter’s contribution to climate change in a legal proceeding, the recommended course of action would be for the polluter to enter into an Commitment to Adjust Conduct (an instrument similar to a consent order) with the appropriate environmental agency, so that the damages awarded would be paid into the National Fund on Climate Change. The purpose of this fund, which was created by Federal Law 12,114/09, is to “ensure resources to support projects or studies,

��52 Gisela Sampaio Cruz, supra note 20, 203-204.�53 Id., 204. �

and to finance undertakings, on mitigating climate change and adapting to climate change and its effects”.54

Turning to the second question, the reparation for indirect environmental damage resulting from climate change, yet another barrier must be overcome, in addition to the difficulties of quantification: proof of causation.

As discussed earlier in this article, establishing a relationship of cause and effect between GHG emissions and a specific damaging event brought about by climate change is scientifically challenging, to say the least, due the multiple causes at work.

However, where evidence of a causal nexus can be produced, any damages awarded in a legal proceeding in Brazil should be directed to repairing the environmental damage caused by climate change. When reparation is partially or totally impossible, the damages should be paid to the National Fund on Climate Change, pursuant to a Commitment to Adjust Conduct, and/or to another environmental fund, according to the circumstances of the case. In the case of individual environmental damages, both the economic and the non-economic losses suffered by the victims should be included in the award. 5. Conclusion

The increased concentrations of GHGs in the plant’s atmosphere due to

anthropogenic emissions have not only damaged the global climate, but have also generated the risk of environmental damage affecting the population as a whole and individual victims, a risk that can be characterized as future environmental damage.

As one of the main factors contributing to a risk society, damage related to climate change has the characteristics typical of environmental damage generally, such as dispersion of polluters and victims (which makes proof of causation difficult), and various barriers to obtaining reparation, due to the complexity and magnitude of the problem. Environmental damage possesses other peculiarities, which contribute to the formation of a state of “organized irresponsibility”, such as concurrent natural and anthropogenic causes and the temporal dispersion of the damage, since GHGs remain in the atmosphere for years, aggravating the greenhouse effect.

In the United States of America, a number of lawsuits have been brought seeking reparation of damage caused by climate change. At first, these initiatives were considered to be nothing more than attempts to put climate change on the agenda of the major vehicles of communication, or “regulation through litigation”, putting pressure on the political class of the United States of America to assume more effective international commitments and develop legislation to deal with global warming. However, although lawsuits of this nature were formerly considered to be judicial adventures with little chance of success, the scenario is now one of expectation, since Courts of Appeals have held that climate change lawsuits do not necessarily raise non-justiciable political questions.

In Brazil, there are no practical examples of climate change litigation, since the courts have not yet been asked to impose civil liability for damage of this nature. Before they can do so, a theory must be constructed that would establish ethically and legally acceptable

��54 See article 2 of Federal Law 12,114/09. Payment of damages into the National Fund on Climate Change pursuant to Commitments to Adjust Conduct is supported by article 3 (III) of the Law, which refers to funds “arising out of agreements, commitments, contracts and arrangements made with agencies and departments of the federal, state and municipal public administrations” as one of the sources of funds. �

criteria for the attribution of liability to those who contribute in a significant way to the increase in the concentration of GHGs in the atmosphere. The Brazilian legal system already possesses the elements needed to construct such a theory.

The many barriers to the imputation of civil liability for damage related to climate change demonstrate the importance of avoiding litigation by adopting effective national and international policies to stabilize anthropogenic GHG emissions.

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