Table of Contents
- Introduction 96
- Sierra Leone and its Climate 100
- Sierra Leone’s Legal System Regarding Climate 102
- Sierra Leonean Climate Litigation Can be Instituted in U.S. And Other Foreign Courts in the Global North 121
- Conclusion and Recommendations 128
96 Colo. Env’t L.J. Vol. 37: Issue 1
Introduction
Over the decades, it has become clear that climate change is tangled in a complex web of national and international socio- political and economic factors.1 Relying solely on the political branches of government, the executive and legislative branches, and on international organizations has presented significant challenges in effectively tackling climate change.2 This problematic situation has contributed to the growing involvement of the courts through climate litigation to ensure the enforcement of climate action.3
As of September 2025, the Sabin Center for Climate Change at Columbia Law School has documented 4,268 climate change cases worldwide.4 Among the total number of cases, 3,116 were filed in the United States.5 The data also indicates a rising trend
* © 2025 Jamil Sahid Fofanah. SJD Candidate, Elisabeth Haub School of Law at Pace University; LL.M. in Environmental Law with a Certificate in Climate Change, Natural Resources and Energy Law (2025); LL.M. in U.S. Law with a Certificate in International Comparative Law from Washington University in St. Louis (2024); LL.M. in European and Global Law with a Certificate in Sports Law from Católica Global School of Law (2023). I would like to express my gratitude to Professor Katrina Fischer Kuh at Pace University for her outstanding supervision during the development of this paper. I also want to thank my colleagues who provided insightful peer reviews, particularly Michael Grant and Sophie E. Bacas at Pace University. Finally, I want to thank Dr. Maria Antonia Tigre, Director of the Global Climate Litigation Program at the Sabin Center for Climate Change Law, for providing guidance in developing the research proposal.
1 Katrina Fischer Kuh, North-South Climate Justice, and Private
Accountability (Dec. 2024) (unpublished manuscript) (on file with author).
2 Joshua A. Basseches et al., Climate Policy Conflict in the U.S. States: A Critical Review and Way Forward, 170 CLIMATIC CHANGE 32 (2022).
3 Big Oil in Court– The latest trend in climate litigation against fossil fuel companies, ZERO CARBON ANALYTICS (Oct. 6, 2024, 2:54 PM), https://zerocarbon-analytics.org/archives/energy/latest-trends-in- climate-litigation-against-fossil-fuel-companies.
4 Columbia Law School Sabin Center for Climate Change, Climate Change Litigation Database, (Sept 25, 2025, 8:00 AM) https://www.climatecasechart.com/search.
5 Id.
2026 Holding Fossil Fuel Producers Accountable 97
in lawsuits against fossil fuel companies since the Paris Agreement was established in 2015.6 Between 2005 and 2015, before the establishment of the Paris Agreement, five cases were filed against the largest fossil fuel companies.7 This number increased significantly in the nine years following the agreement, with sixty-eight cases reported as of 2024. Notably, in 2023, there was a surge of fourteen new cases.8 The breakdown of cases against fossil fuel companies by jurisdiction from 2024 to 2025 is as follows: the U.S. accounts for fifty, Europe twenty-four, Australia five, Nigeria three, and two for other parts of the world.9 In the U.S., these cases against fossil fuel companies are referred to as second-generation climate litigation.10
The legal basis for the U.S. lawsuits is typically nuisance and product liability, as the harm caused by their products has allegedly contributed to climate change and the misleading advertising practices of fossil fuel companies. The plaintiffs in these lawsuits tend to seek damages, though some seek injunctive relief.11
It is important to recognize that the current efforts to address global climate injustice are inadequate. The Global South, which has historically been the most affected by climate injustice and is home to many vulnerable countries facing climate disasters,12 is largely missing from the push to hold fossil
6 JOANA SETZER & CATHERINE HIGHAM, GLOBAL TREND IN CLIMATE
LITIGATION: 2024 SNAPSHOT (Grantham Research Institute on Climate Change and the Environment 2024).
7 ZERO CARBON ANALYTICS, supra note 3.
9 Columbia Law School Sabin Center for Climate Change, supra
note 4.
10 The first-generation climate cases in the U.S. were all dismissed, but they have been reframed and filed in state court and are not being litigation as second-generation climate cases. KARL S. COPLAN ET AL., CLIMATE CHANGE LAW 18 (1st ed. 2021).
12 The U.S. first-generation lawsuits, which cover the period between 2004 and 2008, were unsuccessful climate lawsuits that were not heard on their merits because the courts dismissed them before trial. The claimants comprised both public entities—states and nonprofit trusts—and a group of private individuals against major private climate change actors, including large emitters of GHGs and producers. Id. at 173–74.
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fuel companies accountable. As the writers Kim Bouwer and Tracy-Lynn Field submit, the lack of spotlight on climate cases in Africa under the global phenomenon of climate litigation once again highlights Africa’s marginalization.13 In this context, this Article endorses the idea of using the climate plaintiffs from Sierra Leone, a highly vulnerable climate change country in the Global South, as a case study for seeking damages from multinational fossil fuel companies in the foreign courts in the Global North, including the U.S.
This Article submits that it is necessary for the Sierra Leone climate plaintiff to pursue a foreign forum, such as courts in the U.S., because the country headquarters the three major multinational fossil fuel companies: Chevron, ExxonMobil, and ConocoPhillips, which are responsible for nearly eight percent of global emissions from 1750 to 2010.14 These strategic lawsuits would help promote global climate justice. This would make enforcement of judgment easier for the plaintiffs, unlike in Sierra Leone, where fossil fuel companies have little or no direct assets. Such funds could be used to support climate adaptation in the country.
Sierra Leone’s legal system allows foreign lawsuits concerning damages caused by activities within its borders. This article reveals that the climate harm plaintiffs should be individual victims who can demonstrate special damages from the pollution caused by imported fossil fuel use. However, for strategic purposes, due to a lack of funding and organization, the lawsuit could be best initiated by NGOs or civil society organizations on behalf of the plaintiffs. The climate harm lawsuit would be litigated under the Sierra Leonean common law of public nuisance and the statutory law of product liability. Litigating under these principles is also strategically important, as certain courts in the Global North already recognize them in climate lawsuits. For instance, in the U.S., the Second Circuit Court of Appeals in AEP v. Connecticut has held that climate change constitutes a public nuisance.15 This would provide a blueprint for pursuing such lawsuits in the United States courts.
13 Kim Bouwer & Tracy-Lynn Field, Editorial: The Emergence of Climate Litigation in Africa, 15 CARBON & CLIMATE L. REV. 123, 124 (2024).
15 Connecticut v. Am. Elec. Power Co., 582 F.3d 309 (2d Cir. 2009),
rev’d on other grounds, 564 U.S. 410 (2011).
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It is important to reiterate that these cases would require applying Sierra Leone law in U.S. courts as an alternative to the limitations of U.S. federal jurisdiction. While this may alleviate some restrictions, the climate plaintiff, however, must still overcome the separate obstacle of standing. A case before a U.S. federal court must satisfy the constitutional principle of cases and controversies under Article III of the Federal Constitution.16 This could be addressed by demonstrating that the theoretical claimants satisfy the three-prong test:17 first, that the climate harm has caused the plaintiffs’ loss of life, property, and destruction of a healthy environment;18 second, that these injuries can be attributed to the use of imported fossil fuels, which constitute the second-largest source of power in the country;19 and third, that the lawsuit will seek damages to be used for climate adaptation actions in the country.
Furthermore, the claimant would face other challenges unique to international claims, such as an unsuitable forum.20 The theoretical defendants might argue that the Sierra Leonean court is better suited for the case, but the plaintiffs can persuade the court that the U.S. court is more suitable because the former lacks a strong, independent judiciary,21 coupled with the fact that enforcement would be easier, as already mentioned.
Finally, the plaintiff would encounter limitations in the doctrine of choice of law: According to scholars Michael Byers et
17 Cornell Law School, Legal Information Institute, Standing (Sep.
23, 2025, 3:34 PM) https://www.law.cornell.edu/wex/standing.
18 Bukola Adebayo, One Year After Sierra Leone Deadly Mudslides, Survivors Say They Can Barely Afford to Eat, CNN WORLD (Oct. 26, 2024, 7:32 PM) https://www.cnn.com/2018/08/17/africa/sierra- leone-mudslide-memorial/index.html; University of Notre Dame, Vulnerability Ranking (Oct. 20, 2024, 3:43 PM) https://gain- new.crc.nd.edu/ranking/vulnerability.
19 Sierra Leone/AFREC Africa Union, AFRICA ENERGY COMMISSION, (Oct. 1, 2024, 3:30 PM) https://au-afrec.org/sierra- leone#:~:text=than%20it%20produces.-
,There%20are%20no%20indigenous%20sources%20of%20coal%20or% 20natural%20gas,petroleum%20products%20are%20currently%20im ported.
21 See U.S. DEP’T OF STATE, 2023 INVESTMENT CLIMATE STATEMENTS: SIERRA LEONE (2023).
Accessed Jan 24, 2025.
100 Colo. Env’t L.J. Vol. 37: Issue 1
al., a creative legal strategy to overcome this choice of law challenge is for the foreign plaintiff to convince the court to apply their own local law.22 In this instance, the plaintiff would argue for the application of Sierra Leonean law, since the climate harm occurred there, giving it a stronger connection to the case than
U.S. law.
This Article has four parts: The first provides background on Sierra Leone and its climate. The second analyzes the country’s legal system regarding climate cases. The third highlights how Sierra Leonean climate litigation can be instituted in foreign courts. Finally, this paper ends with a conclusion and recommendations.
Sierra Leone and its Climate
Sierra Leone has a tropical climate that could also be classified as a tropical monsoon climate, which is transitional between a continually wet tropical rainforest and a tropical savanna climate.23 The country has two seasons: the rainy season and the dry season. The former runs from May to November, and the latter from December to May, including harmattan wind from the Sahara Desert.24 The country has experienced an increase in its mean annual temperature of 0.8
°C since 1960, averaging a rate of 0.18 °C per decade. The typical average temperature is 26 °C, fluctuating between approximately 26 °C and 36 °C throughout the year. During the dry season, the harmattan—characterized by dry, dusty, and cool air—brings the lowest daily average temperature, dropping to around 16 °C, ranging between 10 °C and 22 °C.25 However, this harmattan period has been warmer than usual in recent years.26
Sierra Leone ranks among the top ten percent of countries most vulnerable to climate change disasters.27 However, it has
22 See Michael Byers, Kelsey Franks & Andrew Gage, The Internalization of Climate Damages Litigation, 7 Wash. J. of Envt’ll L. & Pol. 264, 285–302 (2017).
23 SIERRA LEONE, SIERRA LEONE’S FIRST BIENNIAL UPDATE REPORT: SUBMISSION TO UNFCCC 2021 (Oct. 9, 2024).
27 University of Notre Dame, Vulnerability Ranking (Oct. 20,
2026 Holding Fossil Fuel Producers Accountable 101
contributed a mere 0.003 percent of global carbon dioxide emissions since 1950.28 The country has been experiencing climate disasters, including seasonal drought, strong winds, thunderstorms, mudslides or landslides, floods, and shifting rainfall and patterns.29 These climate-related incidents have resulted in loss of life, property damage, and significant economic impact.30 For instance, on August 17, 2017, a massive mudslide on a hill near the capital, Freetown, caused by heavy rainfall and flooding in deforested areas, claimed the lives of more than 500 people.31 Furthermore, on May 25, 2023, the country’s most iconic cotton tree, which stood seventy meters (230 feet) high and was estimated to be 400 years old, fell during a heavy storm.32
Against this backdrop, it is significant to point out how Sierra Leone, like many nations in the Global South, finds itself in double jeopardy: it is facing the greatest harm from climate disasters it did not create.33 In addition, Sierra Leone is also among the Global South nations that have been violently exploited in terms of human resources and minerals, which facilitated the rise of the Industrial Revolution that triggered global emissions.34
Following the above, the root causes of the Sierra Leone climate disaster are inherently transboundary. Fossil fuel products in other countries are among the primary contributors
2024, 3:43 PM) https://gain-new.crc.nd.edu/ranking/vulnerability.
28 Olivia Ackland, In Sierra Leone Climate Change Worsen Human Trafficking of the Poor, ALJAZEERA (Oct. 6, 2024, 9:00 AM) https://www.aljazeera.com/features/2024/1/29/in-sierra-leone-climate- change-worsens-human-trafficking-of-the- poor#:~:text=Sierra%20Leone%20is%20ranked%20in,homes%20vulne rable%20to%20worsening%20floods.
29 SUBMISSION TO UNFCCC, supra note 23.
31 Bukola Adebayo, One Year After Sierra Leone Deadly Mudslides, Survivors Say They Can Barely Afford to Eat, CNN WORLD (Oct. 26, 2024, 7:32 PM) https://www.cnn.com/2018/08/17/africa/sierra- leone-mudslide-memorial/index.html.
32 Umaru Fofanah & Robert Greenhall, Sierra Leone’s Iconic Cotton Tree Fell by Storm, BBC (Oct.1, 2024, 3:20 AM) https://www.bbc.com/news/world-africa-65707394.
33 LUCAS CHANCEL ET AL., CLIMATE INEQUALITY REPORT 2023 (2023).
34 See id.
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to climate change, because they are responsible for global warming and rising temperatures.35 It is shocking to discover that fossil fuel companies have been aware of the risk of their product to climate change and have concealed this information to some extent, misleading the public and regulators about the risks associated with their products over the decades.36
Sierra Leone imports all petroleum products, since no local imported no local oil refineries exist.37 These products are imported as petrol, diesel, marine fuel oil, and kerosene.38 They are the second largest source of power, approximately eighteen percent, next to biomass energy. The volume of petroleum products per annum increased by more than one hundred percent between 2000 and 2011.39
Sierra Leone’s Legal System Regarding Climate
Sierra Leone’s legal system is dualist.40 It comprises the English Common Law system and the Customary Law of the land.41 This Common Law refers to the rules of law generally known as common law, including the rules of equity; these sets of laws are applicable throughout the country.42 By contrast, Customary Law refers to the rules of law that apply to particular communities in Sierra Leone, and is limited to the provincial areas of the country—that is, outside the capital of Freetown.43 It is worth noting that the Sierra Leonean jurisprudence further
35 Fossil Fuel and Climate: The Fact, CLIENTEARTH, (Dec. 2, 2024, 2:34 PM), https://www.clientearth.org/latest/news/fossil-fuels-and- climate-change-the-facts/.
36 JOINT STAFF REPORT, HOUSE COMMITTEE ON OVERSIGHT AND ACCOUNTABILITY AND SENATE COMMITTEE ON BUDGET HOUSE ‘DENIAL, DISINFORMATION, AND DOUBLESPEAK: BIG OIL’S EVOLVING TO AVOID ACCOUNTABILITY FOR CLIMATE CHANGE (April 2024).
37 AFRICA ENERGY COMMISSION, supra note 19.
38 AFRICA ENERGY COMMISSION, supra note 19.
40 Hanatu Kabbah, Sierra Leone Legal System and Legal Research, GLOBALEX (Oct. 7, 2024, 2:30 PM)
https://www.nyulawglobal.org/globalex/sierra_leone1.html.
42 THE CONSTITUTION OF SIERRA LEONE 1991, ch XII § 170 (2).
43 Kabbah, supra note 40.
2026 Holding Fossil Fuel Producers Accountable 103
incorporated the common law, the doctrine of equity, and the statutes of general application that were in force in England as of the January 1, 1880 as part of its legal framework.44 Consequently, case law decided by the English court, along with statutes enacted by the English Parliament before January 1880, constitute sources of law in Sierra Leone.45
The U.S. has both federal and state courts, each with differing jurisdictions.46 On the other hand, Sierra Leone has primarily a single court system with absolute jurisdiction over all civil and criminal matters.47 Consequently, courts generally divide litigation into civil and criminal matters. The procedures for such lawsuits are regulated by the High Court Civil Procedure Rules of 200748 and the Criminal Procedure Act of 2024.49
The Sierra Leonean Constitution is the primary source of human rights.50 Although Section 17 (3) treats environmental crimes similarly to capital offenses, it fails to establish a constitutional right to a safe and healthy environment.51 Also, the Constitution does not expressly provide climate change rights or offenses. Like the federal U.S. Constitution, which establishes fundamental human rights but fails to mention the environment and climate change.52 In addition, the Sierra Leonean jurisprudence lacks a comprehensive climate change statute. However, the country has a national climate change policy formulated in 2021.53 It is a ten-year policy that provides for adapting to the adverse effects of climate change and climate
45 ADE RENNER-THOMAS, LAND TENURE IN SIERRA LEONE 26-28 (1st ed. 2010).
46 COPLAN ET AL., supra note 10, at 185.
47 THE CONSTITUTION OF SIERRA LEONE 1991, ch. VII, § 120 (2).
48 The High Court Civil Procedure Rules, 2007 (Act No. 25/2007) (Sierra Leone).
49 The Criminal Procedure Act, 2024 (Act No. 3 2024) (Sierra Leone).
50 ABDULIA O CONTEH, ESSAYS ON THE SIERRA LEONE CONSTITUTION 96-103 (1st ed. 2001).
51 THE CONSTITUTION OF SIERRA LEONE 1991, ch. III, § 17 (3).
52 ROBIN KUNDIS CRAIG, ENVIRONMENTAL LAW IN CONTEXT 18 (5th ed. 2022).
53 NATIONAL CLIMATE CHANGE POLICY FINAL, MINISTRY OF THE ENVIRONMENT (Sierra Leone) (2021).
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vulnerability.54 It incorporates emerging issues and guides future programming to reduce greenhouse gas emissions in the atmosphere.55 The policy builds upon the country’s national and international climate and development frameworks, including the National Medium-Term Development Plan (2018-2023) and the Sustainable Development Goals (“SDGs”) on the national level, as well as the United Nations Framework Convention on Climate Change (“UNFCCC”) and its Kyoto Protocol, and the Paris Agreement.56 Although the policy is not a litigable law, it provides promising prospects for stronger climate laws.
The statutory laws that regulate climate change include the Environmental Protection Act of 2022 is the principal among them.57 It provides for the coordination of all aspects of climate change to enhance consistency in policies, laws, and their implementation.58 Additionally, the National Disaster Management Agency Act establishes the secretariat responsible for implementing the government’s policy on disaster prevention, disaster risk reduction, and climate risk management.59 Furthermore, the National Protected Area Authority Act protects the country’s natural ecosystems and its threatened biodiversity.60 There is also the Meteorological Agency Act, which establishes the agency with the sole authority for providing meteorological and climatological services throughout the country.61 The agency also advises and develops the government’s policy on meteorology, climatology, climate change, and other climate-related issues.62 Further, the Nuclear Safety and Radiation Protection Agency Act protects the people and the environment against radiation and harmful activities that give rise to radiation.63
57 Environmental Protection Act, 2022, (Act No. 15/2022) (Sierra Leone).
59 National Disaster Management Agency Act 2020, (Act No. 3 § 11 (2) (a) (i) 2020) (Sierra Leone).
60 National Protected Area Authority and Conservation Trust Fund Act 2012, (No. 11 § 12 (2) (a) (Sierra Leone).
61 Metrological Agency Act 2017, (Act No. 8 § 12 (1) 2017) (Sierra Leone).
63 Nuclear Safety and Radiation Protection Agency Act 2022, (Act
2026 Holding Fossil Fuel Producers Accountable 105
Regarding petroleum products, the Petroleum Exploration and Production Act could have been the closest statute in Sierra Leone to this topic. However, as its name implies, the Act focuses on the exploration and future production of petroleum products, excluding those imported from abroad.64 This Petroleum Act further creates liability for the holders of a petroleum license for pollution damage related to their petroleum operations without regard to fault.65 It also provides that where there is more than one holder, they shall all be liable in proportion to their participating interest.66
This Article also argues that under the Consumer Protection Act (“CPA”), climate change damage caused by fossil fuel products can lead to liability for defective products. This statute strengthened the common law framework that has long governed this area of law. The CPA protects and promotes the interests of consumers, who could be persons or corporations that acquire goods or services for personal, domestic, or household use or consumption.67 Consequently, Section 51 (1) prohibits the supply of goods to consumers that are misleading or deceptive or likely to mislead or deceive.68 Also, Section 71 (1)
(2) prohibits the supply of goods which are unsafe. A good is considered unsafe if, under normal or reasonable conditions of use, including duration, presents unacceptable risks to the health and safety of consumers.69 In this light, the White House Joint Staff Report on Big Oil’s Evolving Efforts to Avoid Accountability for Climate Change is a piece of strong evidence to prove how unsafe fossil fuel products are to the climate.70 This report implicates major oil corporations in a concerted effort to conceal their knowledge and contribution to climate change disasters.71
No. 14/2022) (Sierra Leone).
64 Petroleum Exploration and Production Act 2011, (Act No. 7/2011 § 91 (1)) (Sierra Leone).
67 Consumer Protection Act 2020, (Act No. 7/2020 § (2)) (Sierra Leone).
70 See HOUSE COMM. ON OVERSIGHT & ACCOUNTABILITY, supra
71 See Id.
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On the global stage, Sierra Leone is a party to several key regional and international climate treaties.72 The most influential among them is the Paris Agreement,73 wherein Sierra Leone’s nationally determined contribution (NDC 2015) is geared towards balancing the relationship between the economy, environment, social aspects, and long-term sustainability; shifts to a green economy, and provides for the identification and implementation of various mitigation and adaptation measures.74 In its updated 2021 NDC, the country defines a progressive path forward for cutting greenhouse gases emissions from 2005 levels: five percent by 2025, ten percent by 2030, and twenty-five percent by 2050.75
It is also important to note that the updated 2021 NDC sets forth unconditional emission targets, unlike its initial 2015 NDC, which included conditional commitments dependent on external financial and technological support.76
Another significant growth is the 2021 NDC, which provides more details on each sector’s trends, strategies, and goals.77 Before the Paris Agreement, Sierra Leone ratified the Kyoto Protocol in 2006 despite having relatively low emissions like other developing nations in the Global North compared to industrialized nations.78 As a developing country that is a signatory to the Kyoto Protocol, it was not subject to the same mandatory GHG emission reduction targets as industrialized nations.79
However, as early as 1995, Sierra Leone demonstrated its commitment to joining global efforts to address climate change
72 SIERRA LEONE, SIERRA LEONE’S FIRST BIENNIAL UPDATE REPORT: SUBMISSION TO UNFCCC 2021 AT 16 (2024).
73 Paris Agreement, Apr. 22, 2016, 3156 U.N.T.S. 79.
74 SUBMISSION TO UNFCCC, supra note 23 at 19.
75 SIERRA LEONE, UPDATED NATIONALLY DETERMINED CONTRIBUTION (2021).
76 Sierra Leone Climate Promise, UNITED NATIONS DEVELOPMENT PROGRAMME (Sept. 23, 2025, 2:21 PM)
https://climatepromise.undp.org/what-we-do/where-we-work/sierra- leone#:~:text=Key%20highlights%20from%20the%20NDC%20*%20In
,sought%20alignment%20with%20the%20Sustainable%20Developme nt%20Goals.
77 SIERRA LEONE, SIERRA LEONE SDG INVESTOR MAP (2023)
78 SUBMISSION TO UNFCCC, supra note 23.
79 Rep. of the UNFCC, at 1 – 22 U.N. Doc. FCCC/CP/1997/L.7/Add.1
2026 Holding Fossil Fuel Producers Accountable 107
by ratifying the United Nations Framework on Climate Change (“UNFCCC”).80 As a result, the country participates in the Conference of the Parties (“COP”) meetings, which gave birth to international climate policies and agreements such as the Kyoto Protocol and the Paris Agreement.81
The above analysis demonstrates that the Sierra Leonean Parliament has yet to enact comprehensive climate change statutes that address emissions harm, including those from fossil fuel products. Since Sierra Leone’s legal system incorporates the principle of English common law, the courts, particularly the Supreme Court, have the authority to create laws based on the principle of stare decisis—translated as ‘let the decision stand.82 This principle typically applies in areas lacking legislative guidance; in this instance, it pertains to climate change issues. This is also the reason the second generation of U.S. climate litigation targets fuel producers instead of those directly emitting greenhouse gases, as the Clean Air Act covers them.83 Therefore, climate plaintiffs under the Sierra Leonean law could file lawsuits under common law negligence and product liability, similar to second-generation
U.S. climate cases.84
The Elements for Establishing Nuisance and Product Liability Under the Law of Sierra Leone
Due to the common law, nuisance encompasses a wide range of claims, including unreasonable interference with the plaintiff’s use and enjoyment of the plaintiff’s property.85 As such, nuisance can potentially include issues related to climate
80 See SUBMISSION TO UNFCCC, supra note 23.
81 Id. at 16; UN Climate Change Conferences, UNITED NATIONS CLIMATE ACTION https://www.un.org/en/climatechange/un-climate- conferences (last visited Dec. 23, 2025).
82 PHILLIP HARRIS, AN INTRODUCTION TO LAW 190, 199 (7th ed.
83 COPLAN ET AL., supra note 10, at 182, 183.
85 CRAIG, supra note 52, at 114.
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change harm and pollution.86 Similar to the U.S. common law,87 the Sierra Leonean Supreme Court, in Koroma v. Mayor & Others, recognizes two types of nuisances: private and public nuisance.88 Private nuisance concerns the protection of the plaintiff’s proprietary rights and interests in the land.89 Public nuisance deals with the protection of public property or interference that endangers the health or property of a large number of people.90 Given these definitions, it is reasonable to submit that public nuisance is more applicable to fossil fuel cases for the following reasons.
The English case of A-G v. PYA Quarries Ltd., which is followed and adopted in Sierra Leone due to the reception clause discussed above, provides the leading definition of public nuisance,91 “as acts that materially affect the reasonable comfort and convenience of life for a class of Her Majesty’s subjects.”92 It follows that for the lawsuit to be successful, under the claim of public nuisance, the plaintiff must satisfy two requirements: the nuisance has affected a class of people, and the claimant has suffered special damage.93 As a result, public nuisance claims can lead to civil and criminal cases due to the classification of a class of people involved.94 However, the article will discuss who is best positioned to bring forth such a claim separately below.
Regarding the elements of a class of people, in the leading English case of A-G v. PYA Quarries Ltd., Lord Justice Romer stated that it is a factual question that is determined on a case- by-case basis.95 A long line of cases are worthy of examination as examples to elucidate the factual circumstances that would lead to a class of people. In R v. Ong, the court addressed a claim based on a group of individuals with a common interest. The court held that the disabling of the floodlights, which hindered
86 EMILY FINCH & STEFAN FAFINSKI, TORT LAW 125 (6th ed. 2017).
87 CRAIG, supra note 52, at 114.
88 See Koroma v Mayor & Others, [1964] SLSC. 14 (Sierra Leone).
89 ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE, AND POLICY 62 (10th ed. 2024).
91 CATHERINE ELLIOT & FRANCES QUINN, TORT LAW 298-299 (7th ed. 2009).
92 Att’y Gen. v. PYA Quarries Ltd., [1957] 2 QB 169 (CA).
93 ELLIOT & QUINN, supra note 91.
94 FINCH & FAFINSKI, supra note 86, at 133.
95 PYA Quarries Ltd., supra note 92.
2026 Holding Fossil Fuel Producers Accountable 109
the enjoyment of thousands of spectators at a football match, constituted a public nuisance.96 In Castle v. St. Augustine’s Links, the court considered highway users, including drivers potentially endangered by repeatedly flying golf balls onto the road, as an identifiable class of people, thus fulfilling the requirements for those who suffered from public nuisance.97
In our potential climate case, the investigation into whether the use of fossil fuel products affects a class of people raises the concern that a healthy environment is a human rights issue.98 This affected group certainly includes the 7.5 million residents of Sierra Leone, whose health and quality of life have suffered due to fossil fuel emissions and the resulting climate crisis. Scientific studies have recorded the impact of climate change and ranked the country among the top ten most vulnerable to climate disasters.99
According to the Sierra Leone: Technical Assistance Report- Climate Policy Diagnostic by the International Monetary Fund, Fiscal Affairs Department, the country is experiencing a range of climate hazards, including seasonal drought, strong winds, thunderstorms, mudslides/landslides, a marked temperature increase, floods, intense seasonal rainfall, shifting rainfall patterns, and many more.100
The aspect of a breach of convenience to life would receive a strong constitutional claim for the right to life, which is the foremost fundamental right guaranteed by the Sierra Leonean Constitution.101 The United Nations Commission on Human Rights supports the strong correlation between human rights and environmental and climate issues.102 Similarly, the African
96 R v. Ong, [2001] Cr App R (S) 177 (CA).
97 Castle v. St. Augustine’s Link, [1922] 38 TLR 615 (DC).
98 Carmen G. Gonzalez, Climate Justice and Climate Displace: Evaluating the Emerging Legal and Policy Responses, 36 WIS. INT’L L.
J. 366, 373(2019).
99 University of Notre Dame, supra note 27.
100 INTERNATIONAL MONETARY FUND, FISCAL AFFAIRS DEPARTMENT, SIERRA LEONE: TECHNICAL ASSISTANCE REPORT- CLIMATE POLICY DIAGNOSTIC (2024),
https://www.elibrary.imf.org/view/journals/019/2024/105/article-A001- en.xml#:~:text=Sierra%20Leone%20is%20experiencing%20significant
,and%20contributed%20to%20collapsed%20buildings.
101 THE CONSTITUTION OF SIERRA LEONE 1991, ch. III, § 15 (a) & §
16.
102 David R. Boyd (Special Rapporteur on Human Rights and the
110 Colo. Env’t L.J. Vol. 37: Issue 1
Commission of Human Rights, of which Sierra Leone is a signatory,103 established in a case brought by the Social and Economic Rights Action Center and Center for Economic and Social Rights against the Nigerian government that the African Charter on Human and Peoples’ Rights guarantees the right to a satisfactory environment. Consequently, the Commission found that the Nigerian government had violated the people’s right to health and a clean environment, among other things, by approving and facilitating the operations of oil corporations in Ogoniland.104
This position also has support in domestic courts, notably in the Netherlands, where the Hague Court of Appeal heard Shell’s appeal against the Dutch NGO Milieudefensie.105 This appeal concerns a ruling that required Shell to reduce its carbon dioxide emissions by 45 percent by 2030. While the Appellate Court upheld the appeal, the court unequivocally affirmed that “there can be no doubt that protection from climate change is a human right,” establishing a positive obligation for companies based on the doctrine of indirect horizontal effect.106 This stance from the Appellate Court builds on the precedent established by the District Court of The Hague in the 2015 case of Urgenda v. State of the Netherlands,107 where the court held that the government
Environment), Report on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, U.N. Doc. A/HRC/55/43 (Jan. 2, 2024).
103 African Charter on Human and Peoples’ Rights art. 24, ratified
Jan. 27, 1984, 1520 U.N.T.S. 217 (entered into force Oct. 21, 1986).
104 Soc. & Econ. Rights Action Ctr. (SERAC) v. Nigeria, Communication 155/1996, African Commission on Human and Peoples’ Rights (Oct. 27, 2001), https://africanlii.org/en/akn/aa- au/judgment/achpr/2001/35/eng@2001-10-27.
105 Soc. & Econ. Rights Action Ctr. (SERAC) v. Nigeria, Communication 155/1996, African Commission on Human and Peoples’ Rights (Oct. 27, 2001), https://africanlii.org/en/akn/aa- au/judgment/achpr/2001/35/eng@2001-10-27; Lara Douvartzidis, The indirect horizontal effect of human rights – aligning people and planet in Shell v Milieudefensie, Int’l Bar Ass’n (Nov. 12, 2024), https://www.ibanet.org/the-indirect-horizontal-effect-of-human-rights- aligning-people-and-planet-in-shell-v-milieudefensie.
106 Hof’s-Hague [Court of Appeals] 12 Nov. 2024, ECLI:NL:GHDHA:2024:2099 (Milieudefensie et al./Royal Dutch Shell Plc) (Neth.).
107 Douvartzidis, supra note 105.
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has a duty of care to protect its citizens.108 In summary, the two cases advanced the duty of corporations and states to protect human rights against climate change.
Drawing from the analysis of the cases above, public nuisance has historically been used to address interferences with public rights—especially concerning access to and use of public waterways, as well as overall convenience. These interferences are significantly less severe than the impacts of climate change on the various public rights of Sierra Leone’s populations, including the loss of life as seen in the August 17, 2017, mudslide that claimed the lives of more than 1000 people.109 Additionally, climate change violates the right to a safe and healthy environment, as the country ranks among the ten percent of nations most vulnerable to climate disasters 110
Furthermore, climate change has impacted the country’s cultural identity, such as the loss of its historic 400-year-old, 230-foot-tall cotton tree during a heavy storm on May 25, 2023.111 Therefore, it is reasonable to conclude that these climate-related issues stemming from fossil fuels constitute public nuisances, as they violate human rights.
Examining the second element of special damage, it is not sufficient for the prospective plaintiffs to be part of a class of people whose health or environment has been discomforted by the fossil fuel product.112 They must demonstrate that they suffered damage over and above the general inconvenience caused to the entire class.113 In this context, the most appropriate plaintiffs would be residents of areas in the country most affected by climate harm. According to the World Bank Sierra Leone Climate Vulnerability Report, the special damage group can be readily identified in the country’s capital and
108 Rb. Den Haag [District Court] 24 June 2015, C/09/456689/HA ZA 13-1296 (Urgenda Foundation/State of the Netherlands) (Neth.).
109 Adebayo, supra note 31; One year after deadly Sierra Leone mudslides, survivors say they can barely afford to eat, CNN WORLD (Aug. 17, 2018, 12:42 AM),
https://www.cnn.com/2018/08/17/africa/sierra-leone-mudslide- memorial/index.html.
110 University of Notre Dame, supra note 27.
111 Fofanah & Greenhall, supra note 32 (May 25, 2023.
112 FINCH & FAFINSKI, supra note 86, at 135.
113 Id.
112 Colo. Env’t L.J. Vol. 37: Issue 1
provincial areas.114 In the western area, which hosts the capital, Freetown, makeshift settlements annually suffer from floods that have claimed human lives and destroyed properties worth millions of dollars.115 Also, Freetown has suffered from water shortage due to shifting rainfall patterns.116 The provincial districts and towns of Kambia, Kono Gbondapi, and Pujehun are also victims of floods and seasonal drought, which have destroyed human lives and crops and undermined their food security.117 The animal husbandry industry has also been affected, as livestock are already experiencing greater stress due to climate variability, and pest and disease outbreaks are more prevalent.118 However, these established facts would be subject to the requirement of reasonable foreseeability for the plaintiff to succeed, as established in the English case of Overseas Tankship v. Mortis Dock.119 In this case, the Privy Council reversed the trial judge’s decision, which had determined that the defendants were liable for fire damage to the wharf because the risk was foreseeable due to bunkering oil leakage.120 The Privy Council clarified the appropriate legal test for causation in terms of remoteness, emphasizing that it is based on the reasonable foreseeability of the kind of damage actually suffered by the plaintiff.121 This means that the Privy Council limits liability for the direct consequences of public nuisance, regardless of the severity or foreseeability of those consequences.122
Given the circumstances of our potential lawsuit, the transport sector in Sierra Leone is listed as the largest source of carbon emissions in 2020, with 177, 614 Gg, based on the country’s national greenhouse gas inventory.123 In support of this, the International Panel on Climate Change (IPCC)
114 WORLD BANK, CLIMATE AND HEALTH VULNERABILITY ASSESSMENT: SIERRA LEONE (2023).
119 FINCH & FAFINSKI, supra note 86, at 136.
120 Overseas Tankship Ltd. v. Morts Dock & Eng’g Co., Ltd. [1961]
123 SUBMISSION TO UNFCCC, supra note 23.
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Assessment Reports, which are collective scientific work related to science and climate, submits that
[h]uman activities, principally through emissions of greenhouse gases, have unequivocally caused global warming, with global surface temperature reaching
-
-
- °C above 1850–1900 in 2011–2020. Global greenhouse gas emissions have continued to increase over 2010–2019, with unequal historical and ongoing contributions arising from unsustainable energy use…weather and climate extremes in every region across the globe … Vulnerable communities who have historically contributed the least to current climate change are disproportionately affected (high confidence).124
-
However, fossil fuel companies, as defendants, would have two vital defenses to escape liability for public nuisance lawsuits. If fossil fuel companies can demonstrate that their conduct in concealing the knowledge of the harmful impact of fossil fuel products on the climate is authorized by statute, it would effectively shield them from liability.125 For instance, Section 49 (1) of the Sierra Leonean Aviation Act adopts the Chicago Convention Annexes, which include indemnifying aircraft for nuisance or trespass in flying over land if it meets the international standard. However, fossil fuel companies would not be able to satisfy this defense because there is no established law that protects their conduct. Even in the absence of comprehensive climate statutes, the state’s climate policy and related climate statutes demand accountability for climate actions by all parties, including the Petroleum (Exploration and Production) Act.126
Fossil fuel companies cannot also benefit from the defense of action of others because they have knowingly contributed to emissions, which a court would consider a collective nuisance.127 However, an attempt at such an argument by the defendants would be based on the question of causation: whether the plaintiffs’ alleged harms from climate change are fairly traceable
124 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2023: SYNTHESIS REPORT 42 (2023).
125 FINCH & FAFINSKI, supra note 86, at 137.
126 Petroleum (Exploration and Production) Act, 2011, pt. XI (Sierra Leone).
127 FINCH & FAFINSKI, supra note 86, at 138.
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to the greenhouse gases produced by the defendants’ products.128 Regarding the question of causation, this area of law remains unsettled in U.S. jurisprudence, as the U.S. Supreme Court has yet to reconcile the divergent decisions rendered in the cases of Kivalina and Comer on the one hand and AEP v. Connecticut on the other.129 The ruling by the district court in the Kivalina and Comer case sides with the defense of the actions of others, as the court reasoned that ‘‘it is not plausible to state which emissions—emitted by whom and at what time in the last several centuries and at what place in the world—‘caused’ Plaintiffs’ alleged global warming related injuries.”130 By contrast, the ruling by the Second Circuit in AEP v. Connecticut aligns with the English common law position of not recognizing the actions of others; the court reasoning that
[f]or purposes of Article III standing [Plaintiffs] are not required to pinpoint which specific harms of the many injuries they assert are caused by particular Defendants, nor are they required to show that Defendants’ emissions alone cause their injuries. It is sufficient that they allege that Defendants’ emissions contribute to their injuries.131
Since Sierra Leone has a low readiness score for climate change, characterized by limited response capacity due to resource constraints,132 transactional litigation would align well with the country’s funding priority for adaptation.133 In this context, it would be more appropriate for the Plaintiffs to seek damages rather than injunctive relief. The damages could be awarded to the plaintiffs for physical, economic, and psychological damage and include funds allocated for climate adaptation measures.
As discussed previously, the Consumer Protection Act, along with the common law in this area, complement each other
128 COPLAN ET AL., supra note 10, at 176.
130 Native Vill. of Kivalina v. Exxon Mobil Corp., 663 F. Supp. 2d 863, 881 (N.D. Cal. 2009).
131 Connecticut v. American Electric Power Co., 582 F.3d 309, 347
(2d Cir. 2009), rev’d on other grounds, 564 U.S. 410 (2011).
132 University of Notre Dame, supra note 27.
133 INTERNATIONAL MONETARY FUND, supra note 100.
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regarding causes of action related to actions that could arise from fossil fuel products.134 The precedent for the common law approach is founded in the principle of duty of care between the manufacturer and the ultimate consumer from the leading English case of Donoghue v. Stevenson.135 The court reasoned,
… a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care.136
This means that the manufacturer of goods owes a duty of care to the ultimate consumer when a product is made, and there is no reasonable opportunity for an intermediate party inspection. where the goods are subject to the intermediate examination of a third party. A long line of Sierra Leonean cases have followed and adopted this principle, including Beckley v. Sierra Leone Limited,137 Ibrahim Jalloh v. C.F.A.O Ltd.,138 and Yatteh v. Sierra Leone Development Limited.139
It is worth discussing the several elements of this duty of care between the manufacturer and the ultimate consumer to better understand our climate lawsuit context. For the purposes of this rule, the manufacturer includes any party who creates the danger inherent in the goods, which in this context would be the producers or suppliers of the fossil fuel product.140 This element aligns with Section 51 of the Consumer Protection Act, which covers suppliers. Similarly, in Andrews v. Hopkinson, the court found that Hopkinson, as the seller, had a duty to conduct a reasonable inspection of the car before selling it and was liable for the injuries sustained by Andrews despite the fact that he
134 See generally, FINCH & FAFINSKI, supra note 86, at 191–196.
135 Donoghue v. Stevenson [1932] AC 562 (HL) (appeal taken from Scot.).
137 Beckley v. Sierra Leone Brewery Ltd., [1972] SLHC 1277 (SL).
138 Ibrahim Sidibay v. C.F.A.O Ltd., [1962] SLCA 56 (SL).
139 Yatteh v. Sierra Leone Development Limited, [1972] SLCA 1280 (SL).
140 FINCH & FAFINSKI, supra note 86, at 192.
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(Hopkinson) was unaware of the defect.141 A product includes anything manufactured that is capable of causing damage. Section 2 (c) of the Consumer Protection Act defines goods as all tangible products, including gas.142 In Vachwell Engineering v. BDH Chemicals Ltd., the court found that the defendant was liable for unforeseeable damage caused by the explosion of the chemicals they had supplied to the complainant.143 As such, the evidence that oil companies, such as ExxonMobil, knew of the effects of their product on climate change since 1960 and had conclusive proof by 1980 satisfy this test.144 Concerning the element of damage, Section 71 (2) prohibits goods that are likely to cause injury to any person or property or are otherwise unsafe.145 However, the statutory defense under Section 74 (1) could shield fossil fuel companies from defective product liability. It provides a defense if, at the time the goods were supplied, the scientific or technical knowledge was insufficient to detect the safety defect.146 This defense could not be applied to fossil fuel companies because, as pointed out by the Joint Staff Report on Big Oil’s Evolving Efforts to Avoid Accountability for Climate Change, major oil corporations concealed their knowledge about the impact of their product on climate change disasters.147
Who Could Be the Appropriate Plaintiffs in These Cases?
It would be remiss to proceed without a thorough examination of the question of standing before the court of Sierra Leone. Since the potential lawsuits attract a class of
141 Andrews v. Hopkinson [1957] QB 229 (QBD).
142 Consumer Protection Act, 2020 (Act No. 36/2020) §2 (Sierra Leone).
143 Vacwell Eng’g Co. Ltd. v. BDH Chem. Ltd., [1971] QB 111 (CA).
144 Katie Jennings, Dino Grandoni & Susanne Rust, How Exxon Went from Leader to Skeptic on Climate Change Research, LOS ANGELES TIMES (Oct. 23, 2015), https://graphics.latimes.com/exxon- research/.
145 Consumer Protection Act, 2020 (Act No. 36/2020) §71(2) (Sierra Leone).
147 HOUSE COMM. ON OVERSIGHT & ACCOUNTABILITY, supra note
36.
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affected people, public nuisance and product liability overlap in terms of civil and criminal actions. The state could file criminal climate cases. Based on this, the Sierra Leonean Constitution grants the government the following powers:
The security, peace, and welfare of the people of Sierra Leone shall be the primary purpose and responsibility of the Government, and to this end, it shall be the duty of the Armed Forces, the Police, Public officers, and all security agents to protect and safeguard the people of Sierra Leone.148
In line with this mandate, Section 3 (1) of the Consumer Protection Act establishes a National Consumer Protection Commission charged with monitoring the consumer market to ensure quality and safety are maintained.149 The Commission has the power to make recommendations, investigate, adjudicate, and refer matters to the High Court under Section
114 (3).150 As such, Section 64 (3) of the Sierra Leonean Constitution grants the government the exclusive power to file the criminal lawsuit that “all offense prosecuted in the name of the Republic of Sierra Leone shall be at the suit of the Attorney- General and Minister of Justice or some other person authorized by him in accordance with any law governing the same.”151 The procedural aspect of this action would be governed by the Criminal Procedure Act of 2024.152 It is important to state that, based on the constitutional presumption of innocence,153 the burden of proof rests on the state, and the standard of proof is beyond a reasonable doubt.154 However, the likelihood of such criminal action is very low for a couple of reasons, based on the balance between law and policy . The Sierra Leone government is heavily reliant on imported fossil fuel products as they are the second major source of energy, accounting for approximately
148 THE CONSTITUTION OF SIERRA LEONE 1991, ch. II, § 5(2)(b).
149 Consumer Protection Act, 2020 (Act No. 36/2020) §3(1) (Sierra Leone).
150 Id. § 113(d) (Sierra Leone).
151 THE CONSTITUTION OF SIERRA LEONE 1991, ch. V, § 64(3).
152 Criminal Procedure Act, 2024 (No. 3/2024) (Sierra Leone).
153 THE CONSTITUTION OF SIERRA LEONE 1991, ch. III, § 23(4).
154 Bankole Clifford Ekundayo Morgan, Presumption of Innocence: Is It A Right or An Illusion?, CONCORDTIMES (Jan. 21, 2025), https://sierraleoneconcordtimes.com/guest-writer-2/#.
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13%.155 Furthermore, although the country is among the most vulnerable to the climate crisis, its status as one of the least developed nations could cause the state to hesitate to prosecute multinational fossil fuel oil corporations on criminal charges at the national level as this would have the repercussion of isolation in international business agendas.156
A civil lawsuit, however, is the most suitable course of action here, primarily because it provides the option to seek damage. The Constitution, common law, and statutory provisions cover the question of standing in this area. As established above, the effects of climate change touch on the constitutional right to life under Sections 15 and 16,157 and Section 17 (3) also treats environmental offenses similarly to capital offenses.158 Therefore, Section 28 provides standing to an aggrieved person of these rights to approach the Supreme Court for redress.159
Concerning the action that centers on product liability, Section 114 (2) of the Consumer Protection Act provides that an aggrieved consumer dissatisfied with a decision by the Consumer Commission can bring a review of an action to the High Court.160 This process would involve initiating a civil lawsuit under the High Court Rules of 2007, the primary authority governing civil lawsuits in the country, as the plaintiff’s case is tortious in nature. The court document would be filed under a writ as specified in Order 5, Rule 2 (a).
Subject to any enactment or these Rules by virtue of which any proceedings are expressly required to be begun otherwise than by writ, the following proceedings must, notwithstanding anything in rule 4, be begun by writ, that is, proceedings- (a) in which a
155 African Energy Commission, Sierra Leone, https://au- afrec.org/sierra-leone (last visited Oct. 1, 2025); Sierra Leone Country Commercial Guide, INT’L TRADE ADMIN., https://www.trade.gov/country-commercial-guides/sierra-leone- energy- infrastructure#:~:text=Although%20Sierra%20Leone%20has%20vari ous,to%20electricity%2C%20as%20of%202021 (last visited Dec. 23, 2025).
156 SUBMISSION TO UNFCCC, supra note 23.
157 THE CONSTITUTION OF SIERRA LEONE 1991, ch. III, §§ 15–16.
158 Id. § 17(3) (Sierra Leone).
160 Consumer Protection Act, 2020 (Act No. 36/2020) § 114(1–2) (Sierra Leone).
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claim is made by the plaintiff for any relief or remedy for any tort other than trespass to land.161
Regarding the common law action that borders on public nuisance, the leading case of A-G v. PYA Quarries Ltd. grants standing as a matter of right to a class of people affected by the nuisance of climate harm discussed above.162
However, there are some practical obstacles to initiating such a case. These challenges could range from lack of funding to managing plaintiffs.163 The country’s multidimensional poverty rate is 59.2%, and an additional 21.3% are classified as vulnerable to multidimensional poverty.164 Also, the pool of plaintiffs is usually large and divided into groups of individuals spread across the country.
The solution lies in public interest litigation, which would allow members of the public—such as non-governmental organizations (“NGOs”) and civil society that have sufficient interest and the necessary resources—to embark on climate litigation; the country of India is popular for such practice.165 Similarly, in Italy, this concept is evident in NGO Survival International Italia v. Pasubio.166 NGO Survival International Italia filed a complaint on behalf of the Ayoreo Totobiegosode Indigenous People to the Italian National Contact Point of the Organisation for Economic Co-operation and Development (“OECD”). The plaintiff alleged that Pasubio, an Italian leather company supplying firms like BMW and Land Rover, had violated the OECD Guidelines for Multinational Enterprises by sourcing leather from cattle ranching firms operating in the
161 High Court Rules, 2007 (Constitutional Instrument No. 25/2007) Order 5 Rule 2(a) (Sierra Leone).
162 Att’y-Gen. v. PYA Quarries Ltd., [1958] 2 QB 169 (CA).
163 Armin Rosencranz, Ayesha Khan & Geetanjoy Sahu, How Effective are Environmental PILs, DOWN TO EARTH (Nov. 8, 2011, 5:45 AM), https://www.downtoearth.org.in/environment/how-effective-are- environmental-pils–34403; Chinoso Anozie, Left Behing: Funding Climate Action in the Global South, 11 TEX. A&M L. REV. 2 (202).
164 UNITED NATIONS DEVELOPMENT PROGRAMME, UNSTACKING GLOBAL POVERTY: DATA FOR HIGH IMPACT ACTION (2023).
165 Rosencranz et al., supra note 163.
166 See National Contact Point for Responsible Business Conduct Italy, Survival International Italia (on behalf of the Ayoreo Totobiegosode Indigenous People) v. Pasubio (2022) (It.).
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home of the Indigenous people.167 This means that an NGO based in the Global North brought action on behalf of environmental victims in the Global South against a corporation headquartered in the Global North.
In Sierra Leonean jurisdiction, public interest litigation by NGOs or civil society can be applicable in the context of a sole plaintiff or joinder in climate litigation provided they are affected, serve as a trustee, and are incorporated in the country. The Sierra Leone Company Act, which governs the registration and regulation of companies, grants incorporated companies all the powers of a natural person of full capacity, which includes legal personality—that is, they can sue and be sued in their corporate name. It follows that the High Court Rules of 2007 confer standing on corporations based on the principle of the right to sue, as outlined in Order 5 Rule 6 (1) (2).168 This provision applies to all affected persons, trustees, or personal representatives, with the caveat that a solicitor must initiate the corporation’s case. To clarify these elements, an NGO or civil society that is incorporated in Sierra Leone and affected by climate harm resulting from fossil fuel products can bring a public nuisance or product liability lawsuit. Furthermore, the NGO or civil society incorporated in Sierra Leone can bring a lawsuit in the capacity of a trustee or personal representative. Additionally, based on Order 18 Rule 4,169 NGOs or civil society organizations can institute action as a joinder with parties also affected by climate harm caused by fossil fuels.
A seminal case where these rules are used is the public interest case of the Native Consortium and Research Center v. Africell, Orange, Sierratel, and the National Telecommunication Commission.170 Native Consortium, a civil society organization, was the first plaintiff in the capacity of a representative body of consumers affected by the poor quality of service offered by Africell, Orange, and Sierratel.171 The court focused on two significant public interests claimed by the plaintiffs. First, it was claimed that the first three defendants failed to provide quality
168 High Court Rules, 2007 (Constitutional Instrument No. 25/2007) Order 5 Rule 6 (1–2) (Sierra Leone).
170 See Native Consortium Think Tank v. Africell, [2023] SLHCGD 1 (Sierra Leone).
171 Id.
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telecommunications services in their role as telecommunication service providers in Sierra Leone and that such failures affected consumer protection.172 Second, the fourth defendant (National Telecommunication Commission) failed or neglected to exercise and perform its statutory functions to enforce compliance by the first, second, and third defendants of their duty at common law and statute to ensure the provision of quality services to consumers. Consequently, this led to loss and damage to the plaintiffs as a class of persons who are subscribers to telecommunications services in Sierra Leone.173
Therefore, in our instance, NGOs or civil society organizations are the most suitable plaintiffs in climate harm lawsuits related to public nuisance and product liability. The primary defendants would be fossil fuel producers that export their products to Sierra Leone. It may be necessary to clarify that the second defendant, the National Consumer Protection Commission, is named in the suits for procedural purposes related to common law and statutory duty failures to ensure the protection of quality goods for consumers.
Despite the potential for successful climate harm litigation, a significant obstacle is the recognition and enforcement of these judgments in the Global North, where the defendants’ assets are located. This is especially true in the United States, where courts are likely to resist for two key reasons: the concern over a floodgate of foreign judgments seeking enforcement within their jurisdiction, and the potential dismissal of rulings—for instance, from Sierra Leone—based on the U.S. State Department’s characterization of its judiciary as weak.174
Courts in the Global North
To address the challenge of enforcing the climate ruling broadly in the Global North, this climate case could be initiated in foreign courts in the U.S. and other regions of the Global
174 Kuh, supra note 1 at 13–14; U.S. DEP’T OF STATE, SIERRA LEONE 2019 HUMAN RIGHTS REPORT 7-9 (2019).
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North, facilitating the recognition and enforcement of judgments against fossil fuel companies, given that these companies have their largest assets in these areas. However, this idea presents both theoretical and practical challenges for litigation in these foreign courts. As mentioned earlier, since Sierra Leone lacks a comprehensive statute on climate change, there are no statutory regulations regarding the appropriate choice of forum for filing the intended suit. Nevertheless, foreign courts in the Global North, including the U.S., could establish personal jurisdiction through the common law principles of consent and proximity.175
Jurisdiction Opportunities
The climate plaintiff’s initial opportunity to secure jurisdiction in a foreign court depends on the consent of the defendants,176 fossil fuel companies, which can be expressed either explicitly or implicitly through pleading on the merits. However, the defendants’ appearance to object to the jurisdiction is not typically considered a submission to that jurisdiction on the merits.177
The other opportunity for jurisdiction depends on proximity, which describes the relationship between the court and the transactions or parties involved.178 According to common law doctrine, this concept is further divided into general and specific jurisdiction: general jurisdiction relates to the defendant’s residence, while specific jurisdiction refers to connecting factors and the location of the tort.179 Under U.S. jurisdiction, this pertains to the constitutional principle of due process.180 The court interprets this to establish personal jurisdiction over the defendant based on the due process test established in the case of International Shoe Co. v. Washington, which asserts that a defendant must have minimum contact with the forum to ensure that fair play and substantial justice are preserved.181 Although
175 Ralf Michaels, Jurisdiction, foundations, in ELGAR ENCYCLOPEDIA OF PRIVATE INT’L L. (2016) (forthcoming publication).
180 Byers, Franks & Gage supra note Error! Bookmark not defined., at 289.
181 Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 320 (1945).
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this principle of personal jurisdiction was established in an all- American case, it still provides an opportunity to argue for its extension to climate cases originating from the Global North. Therefore, the U.S. courts, as well as those in the Global North, could assert personal jurisdiction, given that the headquarters of these fossil fuel companies are located in the U.S.
Furthermore, a climate defendant may potentially be held accountable in the United Kingdom. This is supported by the precedent of Kadie Kalma & Ors v African Minerals Ltd, a case concerning human rights abuses in Sierra Leone.182 Although the claims were ultimately dismissed on appeal for lack of causation, the UK High Court initially accepted jurisdiction.183 It did so on the basis that the defendant, African Minerals Ltd, was registered and had a significant presence in the UK, thereby establishing personal jurisdiction.184 The court was persuaded that this connection was sufficient to hear allegations that the company could be held liable under UK law for violations committed by police in its mining operations in Sierra Leone.185 Thus, while the substantive claims failed, the case demonstrates a viable pathway for establishing jurisdiction in UK courts over foreign defendants for extraterritorial activities.186 For climate litigation, a good example is the NGO Survival International Italia v. Pasubio case discussed above. In this light, the Sierra Leonean climate case could be litigated by an NGO in the Global North, in a country where these fossil companies are incorporated. The courts in the United States could be the most fertile forum because the U.S. is the headquarters of three major multinational fossil fuel companies, Chevron, ExxonMobil, and ConocoPhillips, and is responsible for nearly eight percent of global emissions from 1750 to 2010.187 Consequently, these potential U.S. corporate climate defendants significantly contribute to even more severe climate harms in the Global South.188 Additionally, ExxonMobil has been exposed as the
182 Kadie Kalma v. African Mineral Ltd. [2020] EWCA (Civ) 144 (Eng.).
187 Kuh, supra note 1, at 9.
188 Id.
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leading disinformation campaigner of fossil fuel’s role in climate pollution.189 In terms of finance, in 2023, the combined revenues of these companies were 68.4 billion dollars.190 The plaintiffs’ litigation experts in the U.S. second-generation lawsuit strategically decided to withdraw from federal court because of its strict limitations on the political question doctrine and displacement. They chose to move to state courts, which have fewer restrictions. This shift could break the deadlock and offer hope for the first significant victory against these fossil fuel companies.
Considering all these factors, it would be prudent for Sierra Leoneans to utilize the U.S. court system to hold fossil fuel companies accountable. These foreign climate litigations from Sierra Leone would likely proceed in federal court instead of state court due to the doctrine of diversity of citizenship.191
Choice of Law
The next challenge is the doctrine of choice of law. For the lawsuit to serve as an alternative to the limitations of U.S. federal jurisdiction, such as political questions and displacement in climate litigation, the plaintiff must persuade the court to apply the Sierra Leonean law of public nuisance and product liability discussed above. Generally, U.S. courts select forum law; however, they may apply foreign law when necessary.192
189 HOUSE COMM. ON OVERSIGHT & ACCOUNTABILITY, supra note
36, at 2, 7.
190 Kuh, supra note 1, at 9–10.
191 Diversity of citizenship refers to another form of subject matter jurisdiction. The U.S. Constitution, under Article III, along with federal statutes such as the U.S. Tort Claims Act and the Foreign Sovereign Immunities Act, authorizes federal courts to exercise subject matter jurisdiction over diversity actions involving U.S. and foreign citizens. In this case, it is clear that the two parties are domiciled in different locations, as the plaintiffs are international while the defendants are based in the United States. See Kuh, supra note 1 at 11,15; see also Byers, Franks & Gage supra note Error! Bookmark not defined., at 287.
192 Byers, Franks & Gage, supra note Error! Bookmark not defined., at 292; See Matthew W. Lamp, Note, Forum Selection Clauses Designating Foreign Courts: Does Federal or State Law Govern Enforceability in Diversity Cases—A Question Left Open by Stewart Organization, Inc. v. Ricoh Corp., 22 CORNELL INT’L L.J. 307, 308
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The choice of law regimes varies from state to state and is primarily based on the First Restatement of Conflict of Laws and the Second Restatement of Conflict of Laws, each with differing approaches.193 The First Restatement of Conflict of Laws embodies the traditional territorial approach, which considers the place of wrong as the location “where the last event necessary to make an actor liable for an alleged tort takes place.”194 The Second Restatement of Conflict of Laws emphasizes accounting for various factors, including, but not limited to, the location of injury or damage. These factors encompass the domicile, residence, nationality, place of incorporation, and place of business of the parties, along with the location where their relationship is primarily established.195
Given the above, the plaintiff should find it strategically advantageous to adopt the argument presented in Michael Byers, Kelsey Franks, and Andrew Gage’s article, The Internalization of Climate Damages Litigation. That article rephrases the argument to align with the current case, suggesting that this case appears before U.S. courts, not necessarily due to the common misconception that U.S. courts are more favorable for transnational litigations,196 but because there is a strategic advantage in simpler enforcement of judgments, as noted earlier. Furthermore, since the alleged tortious emissions took place in Sierra Leone, it can be argued that Sierra Leone has a stronger connection to this case than the U.S., which merely hosts the headquarters of fossil fuel companies.197 The authors neatly concluded on this point that “regardless of the benefits of a forum or foreign law, the forum court decides which law to apply.”198
Finally, the foreign climate plaintiff must devise creative strategies to counter or resist the unsuitable forum objection from the defendant, who will attempt to have the U.S. courts dismiss the case on the grounds that the Sierra Leone courts are sufficient and more suitable for determining the matter, and
(1989).
193 Byers, Franks & Gage, supra note 22, at 292.
194RESTATEMENT (FIRST) CONFLICT OF LAWS § 377 (A.L.I. 1934).
195 RESTATEMENT (SECOND) CONFLICT OF LAWS § 145 (A.L.I. 1971).
196 Byers, Franks & Gage supra note 22, at 294.
198 Id.
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that both private and public interests support such a decision.199 Professor Katrina Fischer Kuh, in her article titled North-South Climate Justice and Private Climate Accountability, evaluates the challenges foreign climate plaintiffs face in overcoming this hurdle, as she asserts that “…forum non conveniens (translated as unsuitable forum) could pose a not-insignificant obstacle for Global South plaintiffs seeking to bring climate damage claims against U.S. corporations in U.S. courts.”200
However, the weakness of the unsuitable forum objection lies in Michael Byers, Kelsey Franks, and Andrew Gage’s evaluation.
The success of such an argument would depend on whether the defendant would be amenable to being sued in an adequate alternative forum, likely a court in the plaintiff’s home state.201
Given the circumstances, the theoretical defendant can effectively show that the courts in Sierra Leone are not an ‘adequate’ alternative to U.S. courts, as they are recognized globally as a weak judicial system, including by the U.S. State Department Report 2023.202
Enforcement Opportunities
Regarding the recognition and enforcement of judgments related to the fossil fuel company assets, if any, that the defendant possesses in Sierra Leone, the country’s legal framework generally accepts foreign judgments from jurisdictions with which it has reciprocal enforcement agreements under the Foreign Judgments (Reciprocal Enforcement) Act:203
An Ordinance to make provision for the enforcement in Sierra Leone of judgments given in foreign countries which accord reciprocal treatment to judgments given in Sierra Leone, for facilitating the enforcement in foreign countries of judgments given in Sierra Leone,
199 Kuh, supra note 1, at 11–12.
201 Byers, Franks & Gage, supra note 22, at 289.
202 U.S. DEP’T OF STATE, supra note 21.
203 Id.
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and for other purposes in connection with the matters aforesaid.204
However, some countries have exceptions under the doctrine of international comity. For example, United Kingdom judgments have been acknowledged in the past, even without a reciprocal arrangement between the UK and the country.205 Accordingly, Order 45 of the High Court Rules establishes mechanisms for enforcing foreign judgments within the jurisdiction.206 This involves the party applying to the High Court for the judgment’s registration;207 however, registration may be denied if enforcement contradicts public policy.208 Furthermore, the country’s legal framework accommodates foreign arbitral awards.209 The Arbitration Act of 2022
incorporated the New York Convention, officially known as the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. In its preamble, the Act states:
Provide for the incorporation of the Convention on the Recognition and Enforcement of Arbitral Awards 1958 (New York Convention) in respect of awards made in Sierra Leone or in a contracting State, to provide for the implementation of the Convention on the Settlement of investment disputes between states and nationals of other states; to provide for fair settlement of disputes by domestic and international arbitration and to provide for other related matters.210
However, as noted above, the climate plaintiffs must also address the challenges of standing, choice of law, and an unsuitable forum. Since the issue of standing is constitutionally based,211 this Article acknowledges that climate plaintiffs must establish the three-pronged test of standing to gain permission
204 Foreign Judgments (Reciprocal Enforcement), Cap. 21 (1935).
205 Dispute Resolution, INVESTING IN SIERRA LEONE, https://www.investinginsierraleone.com/dispute-resolution/# (last visited Jan. 26, 2025).
206 See High Court Rules, 2007 (Constitutional Instrument No. 25/2007) Order 45 (Sierra Leone).
208 U.S. DEP’T OF STATE, supra note 21.
210 Arbitration Act, 2022, (Act No. 18/2022) (Sierra Leone).
211 Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 332–333 (2d
Cir. 2009), rev’d on other grounds, 564 U.S. 410 (2011).
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to proceed in U.S. courts. The claimant should not have much difficulty proving the particularly concrete and imminent standing in this case because U.S. courts have progressively moved toward establishing that “future harms from climate change satisfy the relevant standing requirement.”212 However, the obstacle to this seamless stage lies in the plaintiff’s burden to prove that the defendant’s alleged conduct caused the injury.213 Since the claim is based on nuisance, the plaintiff must demonstrate that the defendant’s actions resulted in their injury and that the relief sought would address this injury.214 The complexity arises from the challenge of establishing a causal link between fossil fuel producers and climate harm, as climate pollution involves multiple contributing factors.215 As discussed above, the answer to this question remains uncertain because the U.S. Supreme Court has yet to reconcile the differing conclusions about whether the plaintiff’s alleged harms from climate change can be convincingly linked to the defendant’s GHG emissions.216 The contrasting rulings are documented in the District Courts in Kivalina and Comer, as well as in the Second Circuit’s decision in AEP v. Connecticut.217 In Kivalina and Comer, the court ruled that climate change harm could not be attributed to GHG emissions.218 In contrast, in AEP v. Connecticut, the court determined that such harm could be linked to GHG emissions.219
Conclusion and Recommendations
Conclusion
This article submits that spreading climate harm litigation to the Global South would be a step in the right direction. It
212 COPLAN ET AL., supra note 10, at 176.
217 Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863, 881 (N.D. Cal. 2009), aff’d, 696 F.3d 849 (9th Cir. 2012); see also
Connecticut v. Am. Elec. Power Co., 582 F.3d. 309, 392–393. 309 (2d
Cir. 2009), rev’d on other grounds, 564 U.S. 410 (2011).
218 Kivalina, 663 F. Supp. 2d at 881.
219 Am. Elec. Power Co., 582 F.3d at 392–393.
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would capitalize on the growing momentum in the Global North and help address the historic climate injustice suffered by the Global South.220 Litigating in the Global South would also provide the primary victims of climate change a genuine opportunity to see justice served by holding fossil fuel companies accountable. These litigations would also create opportunity funds to support climate adaptation measures in the Global South.
As such, this article asserts that given Sierra Leone’s significant vulnerability to climate change and the extensive damage it has already suffered from climate disasters—such as mudslides, flooding, and extreme heat—that have claimed human lives and caused the wanton destruction of property, costing millions of dollars,221 there is a strong basis for pursuing climate harm litigation against multinational fossil fuel companies. This potential climate lawsuit is supported by the scientific consensus that identifies fossil fuel products such as petrol, diesel, gas, and kerosene as major contributors to climate change.222 Such cases could be based on the Sierra Leonean principles of the common law principle of public nuisance and the statutory law of product liability before its domestic court. The framing of this legal action is inspired by the first and second U.S. generations of climate change, where one of the second-generation cases, the Second Circuit in AEP v. Connecticut, reasoned that climate change constitutes a public nuisance, as the defendant’s emissions contribute to the unreasonable interference with the rights common to the general public.223 The most suitable plaintiffs from Sierra Leone would be NGOs or civil society organizations representing a group of individuals who have suffered specific damages due to climate disasters in the country. The legal action would serve multiple purposes: holding fossil fuel companies accountable, advancing climate injustice, and providing funds for Sierra Leone’s climate adaptation. In order to promote these situations,
220 Bouwer & Field, supra note 3.
221 SUBMISSION TO UNFCCC, supra note 23.
222 See HOUSE COMM. ON OVERSIGHT & ACCOUNTABILITY, supra
note 36.
223 Connecticut v. Am. Elec. Power Co., 582 F.3d 309 (2d Cir. 2009). Still though, the U.S. Supreme Court reversed on the grounds that public nuisance claims brought in federal courts are preempted by the Clean Air Act.
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climate change harm litigation could be litigated in foreign courts in the Global North with a strong judiciary and jurisdiction over the defendants’ assets.
Recommendations
Given all the circumstances discussed above, this paper recommends that an NGO registered in Sierra Leone bring a lawsuit against fossil fuel companies that supplied fuel in Sierra Leone on behalf of those harmed by climate change. For the best chance of success, the climate lawsuit should be initiated by an NGO on behalf of residents who suffered special damages under the principles of common law public nuisance and statutory product liability before the domestic courts. For strategic purposes, climate plaintiffs’ lawyers should seek damages rather than injunctive relief as a remedy to promote the chances of the lawsuit’s success.
This article also recommends that an NGO in the Global North institute a lawsuit on behalf of the climate victims in Sierra Leone before a foreign court, such as the U.S. District Courts, which have already recognized climate change as a public nuisance. This move would ensure the enforcement of the judgment against the fossil fuel companies, as their major assets are located in the Global North.
Furthermore, the article proposes the possibility of coalition litigation aligned with the human rights framework in the regional ECOWAS court, which has a precedent in addressing environmental damage through human rights law, as shown in the case of Social and Economic Rights Action Center and Center for Economic and Social Rights v. Nigeria, discussed earlier.224 In this hypothetical case, plaintiffs can utilize a human rights approach based on the right to a healthy environment as provided for in the African Charter on Human and Peoples’ Rights, which appears to be a promising strategy for future climate change litigation before the ECOWAS Court.
224 Soc. & Econ. Rights Action Ctr. (SERAC) v. Nigeria, Communication No. 155/1996, African Commission on Human and People’s Rights [ACHPR 35] (Oct. 27, 2001), https://africanlii.org/en/akn/aa-au/judgment/achpr/2001/35/eng@2001- 10-27.
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Finally, this article recommends that portions of the damages, in the form of monetary compensation, should be directed toward Sierra Leone’s climate adaptation measures for the benefit of the public, since the litigation aligns with public interest.