6.4 Date of knowledge The 'greenhouse effect' was first evidenced by John Tyndall in 1859. In 1917 Alexander Graham Bell wrote "[The unchecked burning of fossil fuels] would have a sort of greenhouse effect", and proposed the use of alternative energy forms, such as solar. In 1956 the New York Times headlined, 'Warmer Climate on Earth May be due to More Carbon Dioxide in the Air'. As documented in the Petition recent investigative journalism has uncovered information regarding Exxon’s research into climate change, and the state of its knowledge regarding the risks. 6.5 Acts and omissions On the assumption that the Honourable Commission concludes that the carbon majors have been aware of the threats posed by climate change for some time, it may then go onto consider whether their acts and omissions were appropriate in light of their state of knowledge: • • • • What steps did they take to make people aware of the dangers? What steps did they take to safeguard their products? What steps did they take to stimulate appropriate policy debate? What steps have they taken to prevent violations of the rights of the People of The Philippines? 6.6 Causation 6.6.1 Introduction The standard test for causation in tort is the 'but for' test, i.e. can the claimant prove that the alleged damage would not have occurred but for the defendant's acts or omissions? The strict application of this test would present a claimant with two major hurdles in the context of climate change litigation: 1) Can the claimant show that damage would not have occurred but for manmade climate change? If so, 2) Can they show that the relevant degree of climate change would not have occurred but for the actions / omissions of the defendant? The law, however, is concerned with both substantive justice and the fair allocation of cost. Where a rigid application of the 'but for' test is inconsistent with these objectives, courts around the world have adopted more flexible approaches. In circumstances of scientific complexity, for example, or where multiple causes are present, courts have adopted alternative tests, such as whether a defendant's acts or omissions made a material contribution to the harm, or materially increased the risk of the harm occurring. More specifically, in the context of pollution from different sources, they have developed the commingled product theory of causation. 30