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Last month we spoke about how the oil spill in the US Gulf of Mexico will mean the laws will change. This month we are going to talk about how court rulings (not new laws, but interpretations of existing laws) will impact us. And that is by tort.

What is a “tort”? We like this definition from

+ A tort is “damage, injury, or wrongful act done willfully, negligently, or in circumstances involving strict liability, but not involvign breach of contract for which a civil suit can be brought.”

While there may be breach of contract involving the spill in the Gulf of Mexico, there is no current breach of contract with the concept of climate change.

We do not want to discuss the validity of climate change. Instead, we want to discuss how a legal strategy can be developed using the perception of climate change. In a civil case, it is the job of one party to convince a judge and/or a jury that something did happen – either intentionally or unintentionally. The penalty will involve the degree of intention, but guilt or innocence is step one. Consider two other industries … tobacco and asbestos. In both, they were originally developed with good intentions (both civil and commercial), but with time, as new evidence was produced, the image of both industries declined. Again with time, lawyers were able to build a sufficient case to show a jury that companies that continued to produce tobacco and asbestos products were harming employees, customers, society, etc. and successfully won court cases. Companies now face financial liabilities unforeseen when they entered the product market.

It is possible, likely, and starting to happen for climate change.

Now, why do the legal fraternity believe they can convince a judge and/or jury that a business, a director, an engineer, or a scientist working and making decisions in an industry, is responsible for damage to the climate? Two words: “proximate causation”.

Wikipedia gives two good illustrations of “proximate causation”.

“Example: Why did the ship sink?

+ “Proximate cause: Because it was holed beneath the waterline, water entered the hull and the ship became denser than the water which supported it, so it couldn’t stay afloat.

+ “Ultimate cause: Because the ship hit a rock which tore open the hole in the ship’s hull.

“In most situations, an ultimate cause may itself be a proximate cause for a further ultimate cause. Hence we can continue the above example as follows:

“Example: Why did the ship hit the rock?

+ “Proximate cause: Because the ship failed to change course to avoid it.

+ “Ultimate cause: Because the ship was under autopilot and the autopilot’s data was inaccurate.”

Proximate causation is a legal concept that has to do with the asking of one question. Who could have prevented certain action(s) and consequences?
+ In the tobacco industry, the board of directors of the company with the “deep pockets” (lots of cash and lots of assets) could have not developed or marketed the product.
+ In the asbestos industry, the board of directors of the company with the “deep pockets” (lots of cash and lots of assets) could have not developed or marketed the product.
+ And for the perception of climate change, the board of directors of the company with the “deep pockets” (lots of cash and lots of assets) could have not developed or marketed the product.

Readers of this newsletter tend not to be lawyers, but instead tend to be scientists, technicians, and engineers. We think differently to lawyers. It does not mean we are right and they are wrong (or vice versa), but we do think differently. We understand things based on the theories and laws of science and nature. These theories and laws are based on facts, observations, studies, and tests. And that is the basis of the dilemma:

+ As engineers, scientists, and technicians, we develop our theories and laws based on observations of the PAST
+ As engineers, scientists, and technicians, we develop projects, procedures, products, etc on our prediction of the FUTURE

+ And now lawyers are going to punish us if we do not get it 100% correct in all forms.

It does not matter how well the engineers, scientists, or technicians do; we will never get 100% of everything 100% correct. Even with the natural conservatism that we technical people tend to have in our thinking.

What are we going to do? Unfortunately, we can only see three things:

+ Educate the public
+ Increase our insurance coverage
+ (the interesting one) Involve government in the decisions

Involving the government in our decisions? Well … if we approach the government with a project, and two options for development (a conventional method and a zero emissions method), and demonstrate the difference in cost, does it provide a basis for asking for funding for the difference? If the government declines, does this provide a basis for “tort protection”? And of course if the government agrees, then the carbon neutral project proceeds. In either case, a long term government decision is required.

Note: this article was jointly written by myself and my business partner and fellow executive director, Patrick Alilovic