What Climate Change Can Do about Tort Law
Kysar, Douglas A., Environmental Law
I. INTRODUCTION II. CLIMATE CHANGE AS THE ANTI-TORT A. Duty/Proximate Cause B. Breach C. Causation D. Harm III. CLIMATE CHANGE AS TORT REFORM A. Duty/Proximate Cause B. Breach C. Causation D. Harm IV. CONCLUSION
Climate change is coming to the common law. Plaintiffs in several cases have pressed tort claims against carefully composed* groups of greenhouse gas emitting defendants, seeking monetary damages and injunctive relief to lessen the threat and financial burden of climate change's harmful impacts) Surprisingly, not all of these cases have been dead on arrival. Although malleable and expedient doctrines such as standing, political question, and preemption might be invoked to justify dismissal, at least one climate change tort suit instead was poised to proceed to the merits, at least until the Supreme Court granted review of the Second Circuit Court of Appeals' refusal to dismiss the suit on justiciability grounds. (2) Depending on the outcome of that appeal, the question of whether greenhouse gas emissions constitute an actionable tort under federal or state law, much discussed in law journals, (3) may eventually receive full judicial airing.
Assuming that the Supreme Court does not act to prevent, climate change tort suits from reaching the merits altogether, courts in all likelihood will agree with commentators that nuisance and other traditional tort theories are overwhelmed by the magnitude and the complexity of the climate change conundrum. (4) Built as it is on a paradigm of harm in which A wrongfully, directly, and exclusively injures B, tort law seems fundamentally ill-equipped to address the causes and impacts of climate change: diffuse and disparate in origin, lagged and latticed in effect, anthropogenic greenhouse gas emissions represent the paradigmatic anti-tort, a collective action problem so pervasive and so complicated as to render at once both all of us and none of us responsible. Thus, courts will have ample reason--not to mention doctrinal weaponry--to prevent climate change tort suits from reaching a jury. To be sure, tort law may play a positive role in helping to characterize the harms imposed by climate change, in singling out avenues for efficaciously reducing those harms, and in rattling the cages of the political branches that are best situated to pursue those avenues. (5) As Professor J.B. Ruhl has emphasized, tort law may also play a significant role in helping to establish standards of foresight and responsibility with respect to climate change adaptation needs. (6) Beyond such effects, however, tort law is unlikely to play a substantial role in the ultimate effort to reduce greenhouse gas emissions.
But what might climate change suits do for tort law? That is, rather than serving to address the impacts of climate change, might tort law itself be impacted by climate change? This Article answers "yes." Just as earlier periods of unprecedented injury and loss of life contributed to significant changes in American tort doctrine and practice, (7) an influx of climate change claims may force a reevaluation of the existing system for compensating and deterring harm. Most significantly, the bar for exoticism in tort may shift as courts are confronted by climate-related claims. Various suits that have frustrated judges because of their scale, scientific complexity, and widespread policy implications---such as claims involving toxic and environmental harm, tobacco and handgun marketing, or slavery and Holocaust reparations---may come to seem less daunting and intractable when juxtaposed against "the mother of all collective action problems."s Current debate over whether courts are engaging in "regulation through litigation" (9) may come to appear miscast in the face of suits that raise at once both an ordinary pollution nuisance and a challenge to the very foundations of modern industrial life. …