Almost two years ago, in November 2014, a coalition of Harvard students sued the university over climate change. The suit calls to mind the style of greenhouse-gas litigation that resulted in a plaintiff-favorable court order in the Netherlands in 2015 (NYT). But the plaintiffs here pursued a more time-honored if indirect strategy of social protest, seeking to compel divestment, that is, to compel Harvard to divest its charitable fund investments from fossil fuel-friendly business. Specifically, the targets for divestment were defined in the complaint as "companies whose primary business activities involve the extraction and sale of prehistoric, or non-renewable, carbon-based fuels."
The plaintiffs advanced two theories, one the "Mismanagement of Charitable Funds" and two--this is the goody--"Intentional Investment in Abnormally Dangerous Activities." Should we call it "IIADA"?
Do you know that giddy feeling you get in your belly when you hear the name of a new tort for the first time? It's like when you first heard about umami.
The plaintiffs articulated a case for "abnormally dangerous activities," naturally with roots in strict liability for abnormally dangerous activities, looking to the severity of harm with a shade of social balancing:
Fossil fuel companies' business activities are abnormally dangerous because they inevitably contribute to climate change, causing serious harm to Plaintiffs Future Generations' persons and property, . . . because this harm outweighs the value of fossil fuel companies' business activities by threatening the future habitability of the planet, . . . and because this harm is appreciably more serious and more irreparable than that created by comparable industries, making fossil fuel companies' business activities not a matter of common usage.
The inability to avert risk through the exercise of reasonable care is also a qualifying characteristic of strict liability for abnormally dangerous activities, and the plaintiffs adopted it. They alleged: "No amount of reasonable care by fossil fuel companies can substantially reduce the risk of such harm because doing so would require either curtailment of fossil fuel companies' own business activities or mitigation efforts by other parties that would likely lower demand for fossil fuel companies' products."
On culpability, though, the plaintiffs were content to go with something more than strict liability. Not that they went all the way to full-on subjective intent. The complaint alleged that "Defendants know with substantial certainty, or should know with substantial certainty, that . . . investments fund fossil fuel companies' business activities and . . . contribut[e] to climate change." "Knowledge with substantial certainty" is the familiar only-slightly-watered-down cousin of pure intent, but "should know with substantial certainty" smacks of a somewhat less rigorous and objective inquiry.
(Wondering about Rule 11 issues? Plaintiffs were pro se, not that that resolves the question. I suppose, if the plaintiffs' motivation was principally political attention-getting, the defendants' had best avoid dragging things on in collateral proceedings.)
Alas, the courts did not take the bait. The case failed for its rather massive standing problem, despite plaintiffs' valiant efforts to press for a special doctrine--vaguely reminiscent of public trust, which has been posited as a vehicle to get to climate-change standing in U.S. law. No dice.
And the case failed because the courts didn't care for the new flavor of tort. The appellate court observed of the proceedings below: "The judge noted that no court in any jurisdiction has ever recognized that tort, and in any event creating a new tort in the Commonwealth is the function of the Supreme Judicial Court or the Legislature."
Back to the tort test kitchen.
The case is Harvard Justice Climate Coalition v. President & Fellows of Harvard College, No. 15-P-905 (Mass. App. Ct. Oct. 6, 2016).