In a newly published article in the Oxford Journal of Environmental Law, the lawyers argue that a recent court case taken against Fonterra and several other companies concerning their carbon emissions could open the way for a new "tort to the environment".
Courts already accept several actions in tort — a case which stems from an act or omission which causes harm — such as negligence, trespass and defamation.
Courts were open to considering new torts, and a growing acceptance that people had a duty of care to the environment should result in the opportunity to challenge polluters legally through civil actions, the article said.
"It would not be all environmental damage that leads to liability; the courts would have to consider the kind of environmental damage that may qualify and the circumstances in which a defendant may be held responsible for it.
"Our claim is simply that environmental harm — just like personal injury, property damage, economic loss or an interference with use of enjoyment of land — may provide a basis for liability."
The article was written by Prof Ceri Warnock, Associate Prof Barry Allan, Dr Maria Hook and Mihiata Pirini.
Prof Warnock said the authors wanted to begin a debate within the legal profession about environmental liability and a modernised approach to torts cases.
"What we are trying to do is to foster a discussion of all these sorts of issues with an international audience, hence the publication in the Journal of Environmental Law.
"Our aim was to get people to take the proposition seriously and debate the best way forward because there is no doubt litigation needs to play a role; it's just what is the best route to take?"
The idea was inspired by two cases brought last year by Mike Smith, the climate change spokesman for the Iwi Chairs’ Forum: one against the Government for breach of its obligations to Maori due to climate change inaction, and one against several corporations.
The case against the Government has yet to be heard, but the High Court refused an application to strike out entirely the case Mr Smith took against Fonterra and others seeking a court declaration that they cease emissions by 2030.
Justice Wylie said he was not prepared to close off the possibility the law could recognise a new tort: both sides have appealed the decision.
The academics accepted there were issues with the idea of a tort of the environment, which included the extent of a duty of care, the breadth of liability, and the possibility of sparking an avalanche of litigation.
"But when a defendant’s conduct has the potential to literally harm the world, then perhaps it is time to recognise that circumstances now exist where these countervailing concerns do not serve us well."
Prof Warnock said she and her fellow authors were considering holding a symposium to consider the idea further.
