Corrective justice and liability for global warming.

• Author: Adler, Matthew D.

This brief Commentary focuses on Professor Farber's suggestion that corrective justice (CJ) might justify institutions imposing liability on greenhouse gas (GHG) emitters so as to compensate the victims of climate change. (1) He advances other arguments as well, (2) and indeed it is plausible that considerations of overall well-being, or distributive justice, might warrant some sort of liability scheme. I will not, however, address such considerations here.

If there is such a thing as CJ, what does it require? A standard suggestion is this: CJ imposes a duty on the agent who has acted wrongfully, and thereby caused loss to some individual, to repair the loss. (3) There are various aspects to this paradigm. The victim's loss (arguably) must be more than reduction of well-being; rather, it must be a setback to some protected interest, an aspect of well-being or of personhood that is singled out for concern as a matter of CJ. (4) The action must be causally connected to the loss. (5) And the action must have been "wrongful" or "faulty." (6)

Each of these elements is illustrated by doctrines of tort law. This is not to say that tort law actually tracks CJ. CJ theorists may simply be incorrect in claiming that CJ is one component of morality. (Consequentialists deny that it is.) And, even if CJ theorists are correct, tort law may in fact be shaped by both CJ and non-CJ considerations. Still, tort law is the legal institution that CJ theorists believe has the closest connection with CJ. It is therefore instructive to note the following: (1) Tort law focuses on personal injury or property harms, rather than losses to well-being per se. There is no tort of diminution of happiness and no tort of negligent infliction of pure economic loss. (7) (2) Tort liability, at least under the rubric of negligence, obtains only if the defendant was both the cause-in-fact and the proximate cause of the plaintiff's loss. (8) (3) Tort law typically requires fault in the form of either "intentional" wrongdoing or negligence. (9) Even so-called "strict liability" requires that the action causing loss satisfy some further description, in part because the notion of imposing liability for the sheer causation of harm is chimerical. (10) For a given loss event, there will be a multiplicity of causes of that event, including actions by the victim. (11)

Farber proposes that GHG emitters be held liable for environmental damage, specifically sea level rise, harm to natural systems such as coral reefs or glaciers, and drought and loss of water supplies. (12) An obvious difficulty in justifying such liability as a matter of CJ is that these environmental damage events are not themselves losses to individuals' paradigmatically protected interests. They do not constitute (or directly cause) infringements of private property, physical injuries to individuals, or death. An exception would be the loss of acreage to coastal property owners, a quite direct result of sea level rise. By contrast, damage to natural systems and water supplies will not amount to an invasion of private property interests, since these resources are not (at least not typically) privately owned.

Can't this difficulty be circumvented by imposing liability on GHG emitters for a different set of harms--namely personal injury and private property damage, the core of tort law? Such a compensation scheme would more readily satisfy the protected-interest element of the CJ paradigm than Farber's scheme, but would have greater difficulties in satisfying the causal-connection element. Since global warming causes deaths, injuries, and property losses via environmental damage (or extreme weather events), the causal links between a particular set of GHG emissions and those protected interests will generally be more attenuated than the links between those emissions and environmental damage.

A different possibility, preserving Farber's focus on environmental damage, is to conceptualize an ecosystem or water supply as public property, belonging to the governmental entity with primary jurisdiction over this resource, or held in trust for the citizenry to which that entity is politically accountable. Indeed, the main U.S. scheme for rectifying environmental damage, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), provides for suits brought by the United States, the states, or Indian tribes, as trustees for the damaged resources, rather than by private individuals. (13)

Compensation to governmental entities for damage to public property is not unimpeachable as a matter of CJ. Is the loss supposed to be to the public entity itself (in which case one might wonder whether artificial persons, such as governments, can be victims to whom CJ creates duties of repair) or to the natural persons, i.e., individual citizens, whom the entity represents (in which case one might wonder whether an individual's interest in the publicly held resource is the sort of protected interest that CJ safeguards)? But providing compensation to public entities for environmental damage caused by GHG emissions seems at least a promising approach to a compensation scheme that will fit within the CJ paradigm.

Upon whom, though, would liability be imposed? Who, for example, has a duty as a matter of CJ to compensate Australia for...