From Smokes to Smokestacks: Lessons from Tobacco for the Future of Climate Change Liability by Martin Olszynski, Sharon Mascher and Meinhard Doelle, April 25, 2017, Georgetown Environmental Law Review (2017, Forthcoming)
In this article, we imagine a future Canada (circa 2030) wherein the world has managed to avoid the worst climate change but nevertheless has begun to experience considerable warming. Governments of all levels, but especially provincial ones, are incurring unprecedented costs to mitigate the effects of climate change and to adapt to new and uncertain climatic regimes. We then consider how legislatures might respond to these challenges. In our view, the answer may lie in the unprecedented story of tobacco liability, and especially the promulgation in the late 1990s of provincial legislation specifically designed to enable provinces to recover the public healthcare costs of tobacco-related disease. Although comparisons between the tobacco industry and the fossil-fuel industry are increasingly common, this article is the first to consider the legally-relevant differences and similarities between these two contexts in detail. It also sets out the main elements of a potential Climate Change Damages and Adaptation Costs Recovery Act. As will be seen, the design of such legislation engages several complex legal issues, implicating not only tort doctrine but also questions of legislative competence and private international law. Nevertheless, our initial assessment is that such legislation is both likely and feasible. Our analysis focuses primarily on Canadian law but should also be relevant to other jurisdictions that are increasingly grappling with the costs of climate change mitigation and adaptation. [Emphasis added]
Do Comparisons Between Tobacco and Climate Change Liability Withstand Scrutiny? by Martin Olszynski, Sharon Mascher, Meinhard Doelle, April 26, 2017, ABLAWG
Research Commented On: “From Smokes to Smokestacks: Lessons from Tobacco for the Future of Climate Change Liability” (2017) Geo Envtl L Rev (forthcoming)
A few years ago, the Canadian Press reported that environmental groups were “taking inspiration from the legal fight against tobacco to fire warning shots at major energy companies over their alleged role in funding climate change denial and blocking climate-friendly legislation.” The next day, an editorial in the Calgary Herald suggested that “the comparison doesn’t stand up to even cursory examination. One is a product that is always hazardous to human health when consumed, the other is a staple of the modern world.” Setting aside for a moment the fact that tobacco wasn’t always understood as hazardous to human health (back in the 1950s, almost one in every two Americans smoked, and cigarettes were ubiquitous in homes, places of work, universities, restaurants and bars), the past few years have seen an increasing number of comparisons made between the fossil-fuel industry’s potential liability for climate change and “Big Tobacco’s” liability for tobacco-related disease. Very few of these comparisons, however, have considered the legally relevant similarities and differences between these two contexts in detail. In our most recent paper, recently accepted for publication in the Georgetown Environmental Law Review, we set out to do just that.
What We Found
Our research began with the unprecedented story of tobacco litigation and liability, and specifically the decision by several U.S. states (followed shortly thereafter by most Canadian provinces) to sue the tobacco industry directly for the public – as opposed to private – healthcare costs of tobacco-related disease. Not only did they sue the tobacco industry, but they also passed legislation to remove some of the legal hurdles that private plaintiffs had encountered in seeking compensation for tobacco-related harms in previous waves of unsuccessful tobacco litigation. As one example, these laws allowed the provincial plaintiffs to rely on statistical and epidemiological data to establish the necessary links between smoking, tobacco-related disease, and the province’s healthcare costs. In the U.S., the industry went from never losing a case to settling for US $240 billion as part of what is known as the Master Settlement Agreement.
We then asked ourselves whether similar developments might be possible in the future if, as a result of society’s failure to adequately address the climate change problem, governments of all levels are faced with unprecedented public costs to remediate the resulting damage (e.g. damage from increased floods, droughts, fires, etc.) and to adapt to new climatic regimes (some of which are described here). We conclude that while there are some important differences between these two contexts, from a legal perspective the comparison is actually quite apt. Both contexts involve products (tobacco and fossil-fuels) initially considered harmless but increasingly understood as posing significant risks, not just to their direct consumers but to the broader public as well.
Probably the single most important factor in our analysis, however, is the public nature of the costs incurred in both contexts: public healthcare costs as a result of tobacco-related disease, and the various public remedial and adaptation costs that are expected to arise as a result of climate change. [What about the already known, much more immediate and direct impacts to public health and safety, environment and drinking water – those caused by unconventional oil and gas developments, notably hydraulic fracturing? Governments and “regulators” in many countries are lying and denying the harms, enabling and subsequently fraudulently covering-up the harms when they happen, with courts not allowing lawsuits to proceed or overthrowing unanimous jury verdicts, and worse: the Supreme Court of Canada in Ernst vs AER not even trying to hide that the court is punishing a frac harmed citizen with a valid Charter claim for trying to seek justice (as evidenced by the court taking more than a year to release a non-ruling and still knowingly publishing defamation of Ernst).]
Other similarities include well-documented campaigns of denial in the face of mounting scientific evidence in both contexts. [Denial indeed! Including in the courts!]
Based on recent developments (see e.g. the big auto-makers’ letter to the new EPA administration requesting the postponement of tougher fuel-economy standards), it appears that the fossil-fuel industry is focusing exclusively on current regulatory regimes as constraining their decision-making, ignoring the traditional role of tort law – and the potential for civil liability in particular – in providing a “floor” for reasonable conduct, including the avoidance of reasonably foreseeable risks.
This regulatory focus is perhaps not so surprising in light of the current difficulties being encountered in what we describe as the first wave of current climate litigation. However, and without foreclosing the viability of these early efforts (and recognizing that this first wave of climate litigation is still building in Canada, see here for example), our analysis suggests that these difficulties are not immutable and may be overcome by future legislatures motivated to find funding for significant public costs that will otherwise be borne by the tax-paying public.
More concretely, this means that it may not be in auto-makers’ best interest to postpone more stringent emissions standards, irrespective of the regulatory landscape, as this may be seen in hindsight as not meeting the applicable standard of care. Gasoline retailers and auto-makers may also want to start warning the public more explicitly about the risks of fossil-fuel consumption. As the costs of electric vehicles continue to come down, auto-makers may also want to re-think their marketing strategies with respect to high emissions vehicles, sales of which are apparently at an all-time high. Oil and gas producers may want to scrutinize their operations to ensure that best available technologies are being adopted wherever possible, that climate risk is minimized, and that R & D funding is directed towards low-, no- and negative-emissions technologies.
We, too, have further research to do. Although our paper should not be considered preliminary, we are fully aware that some aspects require further analysis and discussion – including with industry. We welcome those discussions as we move forward with this project. [Emphasis added]
Editorial: Environmental groups forget where their pleadings would take us by Calgary Herald, June 2, 2014
The public is accustomed to Greenpeace’s reckless stunts, attention grabbers which have sometimes brought legal action against the environmental group and its supporters. This time, its actions are reckless as well as laughable: attempting to draw a comparison between tobacco and the energy industry.
Along with the World Wildlife Fund, Greenpeace has accused energy companies of funding climate change denial and thwarting legislation to protect the planet.
“It’s all about identifying some kind of wrongful conduct,” the University of Calgary law school’s Martin Olszynski told The Canadian Press. “In the tobacco context, efforts to deny the link between tobacco consumption and cancer seem to have played a fairly significant role. That’s the analogy that Greenpeace is trying to draw.”
Yes, the two environmental groups are trying to concoct an analogy between tobacco and energy, but the comparison doesn’t stand up to even cursory examination. One is a product that is always hazardous to human health when consumed, the other is a staple of the modern world. If you stopped producing energy, you’d return to the dark ages — literally and figuratively and many people would die. Oil, gas and coal are used, of course, to heat and light our homes, transport ourselves and essential goods, and to manufacture a number of important products, including many used in medicine.
“We’re laying the groundwork for court cases to come,” said Keith Stewart of Greenpeace Canada. “In many ways, the oil industry is right now where the tobacco industry was back in the 1980s.”
The so-called science behind global warming is cloudy, but even if you accept it as fact, it would be exceedingly hard to place the blame on the companies that produce essential energy on our behalf in Canada. Seventy-five per cent of the greenhouse gas emissions associated with automobiles are formed when the driver runs the engine; just 25 per cent is generated before that, the Canadian Association of Petroleum Producers notes.
The oilsands account for about seven per cent of Canada’s greenhouse gas emissions, which is equivalent to 3.5 per cent of the emissions from coal-fired power plants in the United States. And remember, Canadians produce just two per cent of the globe’s greenhouse gas emissions.
So even if Greenpeace were able to establish a connection between such gases and climate change at some undetermined point in the future, the identity of the defendant is very much in dispute. That’s especially true when you consider that the Canadian industry has willingly identified greenhouse gases as a concern and has worked to reduce its emissions. Between 1990 and 2010, the amount of such gases produced per barrel of oil dropped by 26 per cent.
No doubt Greenpeace is hoping its latest bit of theatre will top up its donations, money that presumably arrives by gas-fuelled postal vehicles and electrically powered computers manufactured in part from oil-made plastics.
In other words, oil and gas has enhanced all of our lives — including those of Greenpeace and World Wildlife Fund staff, who fly about to various climate change conferences in huge numbers. This latest stunt by Greenpeace will go up in smoke as it’s little more than hot air. [Emphasis added]