Tort to the environment: a stretch too far or a simple step forward?

Abstract

This analysis considers the implications of Smith v Fonterra Co-operative Group Ltd [2020] NZHC 419 and the possibility of a new tort to the environment developing within New Zealand jurisprudence. In Smith, the New Zealand High Court refused to strike out a cause of action based upon a new inchoate tort against seven corporations for the damage likely to be caused by their greenhouse gas emissions (GHGs), and allowed the matter to proceed to trial. The case raises questions as to whether the time is ripe in New Zealand for the development of a tort to the environment, and whether such a tort could apply to hold private emitters liable for harm caused to the atmosphere by GHGs. In this analysis, we conclude that a duty to protect the environment may be a natural evolution of the New Zealand law of torts and may extend to conduct causing damage to the atmosphere, opening up the possibility of successfully suing corporations for harm to the climate.