Can
the tobacco and fossil fuel industries be compared?
By Ali Abel, Faculty
of Law
Are there similarities
between the tobacco industry and the fossil fuel industry when it comes to
legal liability?
Could, for example,
energy companies that rely on fossil fuels and emit greenhouse gases be held
accountable for the damage caused by climate change?
Two researchers in the
Faculty of Law have set out to answer these important questions.
Professors Sharon Mascher and Martin Olszynski,
along with co-author Meinhard Doelle of the Schulich School of Law at Dalhousie
University, have written the paper, From Smokes to Smokestacks: Lessons from Tobacco for the Future of
Climate Change Liability, which will be published in the Georgetown
Environmental Law Review.
The research builds on
a growing collection of work in the literature on the responsibility of
corporations, and particularly what are sometimes referred to as the carbon
majors, for a share of the costs associated with climate change.
Mascher, Olszynski and Doelle began by exploring the unique 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 health-care costs of tobacco-related disease. In stark contrast to previous waves of tobacco litigation by private individuals, which were almost universally unsuccessful, in the U.S. this decision led to a $350-million settlement.
“We 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
at all levels are faced with record public costs to remediate the resulting
damage, such as damage from increased floods, droughts and fires, and to adapt
to new climatic regimes,” says Mascher.
“While there are
important differences between the two contexts (tobacco and climate change),
the comparison is actually quite appropriate from a legal perspective.”
Energy companies need to be proactive about
assessing risk
One of the key
takeaways for the fossil fuel industry — which the researchers define as not
just oil and gas producers, but also the manufacturers of products that consume
fossil fuels, such as car companies — is to recognize that the risk of future
civil liability is probably greater than they assumed, and to start adjusting
their behaviour accordingly.
“The basic issue for
industry is to define and then meet the standard of care, which is
conventionally assessed by measuring the magnitude and probability of harm
against the burden of avoiding or mitigating such harm, recognizing that this
may entail some loss of profits, as was the case with tobacco,” says Olszynski.
“Gasoline retailers
and car makers may want to start warning the public more openly about the risks
of fossil fuel consumption, and to re-evaluate their marketing strategies with
respect to high-emission vehicles. Oil and gas producers may want to scrutinize
their operations to ensure best available technologies are being adopted
wherever possible and that research and development dollars are directed
towards lower, or no, emitting technologies.”
“Industry needs to
think about risk differently, in a way that informs what they are doing today,
but also informs how they will operate in the future,” says Mascher.
Research funding was
provided by the University of Calgary through a Starter Grant, a University
Research Grant Committee Seed Grant, and an Enhancement Grant.