Will We Have to Pay For Playing?

Can you imagine Canada being hit with a claim for tens or even hundreds of billions of dollars in damages for our greenhouse gas emissions?   Can you imagine the Americans being ordered to cough up a trillion or more for their emissions?   Not that we'd ever pay it if it happened but happen it might.

Some think that, within a decade, Canada and other big emitters, could be brought before an international tribunal by Third World countries hard hit by climate change looking for compensation.

About 18 million people in the Sahel – the vulnerable pan-African strip of land that runs from Senegal to Sudan along the southern edge of the Sahara – faced famine last year. Life has never been easy there. Its land is poor. Its people are often semi-nomadic, moving their animals between the grasslands. But science is increasingly pointing a hard finger at those to blame for the persistence of Sahelian drought – and it is us.

...There are legitimate doubts about the scale of the impact, and about other offsetting factors that may reduce human-induced global warming. But what should be a wake-up call is science's growing ability to highlight the blame for particular extreme events, and not just in the Sahel.

For instance, a recent paper by Fraser C Lott and colleagues examined the increased probability that the 2011 East African drought in Somalia and Kenya can be attributed to human-induced climate change. Pardeep Pal and others investigated the impact of climate change on the £1.3bn insured losses from the flooding in the UK in 2000. Peter A Stott and others looked at the hot European summer of 2003, and its heatwave-related deaths.

Richard Washington, the professor of climate science at Oxford, rightly highlights the importance of this scientific work for its ability to change the global political and legal game. We saw how high feelings run with the walk-out by 132 developing countries at the Warsaw climate-change talks last month when the new Australian government tried to block all talk of loss and compensation until after 2015.

"There will definitely be a case in my lifetime and probably within five to 10 years," says Philippe Sands QC, the UCL professor of international law, who has advised many endangered nations, including Bangladesh. "It is going to happen. The only questions now are where, how and to what purpose."

This emissions business has always reminded me of a classic English tort case all first year law students must learn, Rylands v. Fletcher.   "Rule in Rylands v Fletcher"; that "the person who for his own purpose brings on his lands and collects and keeps there anything likely to do mischief, if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape."

Greenhouse gas emissions "likely to do mischief" if it escapes into the atmosphere?  Check.  Must keep it in at his peril?  Check.  Damages the "natural consequence" of its escape?  Check.