Negligence, Strict Liability, and Responsibility for Climate Change

Author:David Weisbach
Position:Professor, The University of Chicago Law School, and Senior Fellow, The Computation Institute, The University of Chicago and Argonne National Laboratories
Pages:521-565
 
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521
Negligence, Strict Liability, and
Responsibility for Climate Change
David Weisbach
I. CAUSATION: WHO EMITTED IN THE PAST?............................................. 527
A. DATA SOURCES ................................................................................. 528
B. THE STANDARD NUMBERS ................................................................ 531
C. ALTERNATIVE VIEWS ......................................................................... 534
1. Flows ........................................................................................ 534
2. Stocks ...................................................................................... 536
3. Per Capita Measures ............................................................... 538
4. Production vs. Consumption ................................................. 541
5. Intensity .................................................................................. 543
6. Future Emissions .................................................................... 544
D. RECONCILING THE NUMBERS: THE ETHICS OF AGGREGATION ............. 545
II. THEORIES OF OBLIGATION .................................................................... 550
A. RESPONSIBILITY-BASED THEORIES ..................................................... 551
1. Responsibility and Fault ......................................................... 551
2. Strict Liability ......................................................................... 554
3. The Connection Between Injurer and Victim ..................... 557
4. Distributive Effects ................................................................. 558
5. Measuring Harm for Ongoing Acts ...................................... 559
6. Summary ................................................................................. 560
B. INCENTIVES-BASED APPROACHES ....................................................... 562
III. TAKING STOCK ....................................................................................... 564
Walter J. Blum Profess or, The University of Chicago Law School, and Senior Fellow,
The Computation Institute, The University of Chicago and Argonne Nat ional Laboratories. I
thank participants at the University of Chicago Faculty Work-in-Progress Workshop for
comments.
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522 IOWA LAW REVIEW [Vol. 97:521
This Article examines the data on responsibility for climate change due
to past emissions. It addresses two aspects of responsibility. First, it shows
that the data present a mixed picture. By some measures, developed or
wealthy countries are responsible for most past emissions, while by other
measures, responsibility is spread widely with poor countries responsible for
a majority of emissions. The differences in the measurements are due to two
factors: (1) whether the data use a comprehensive measure of emissions and
(2) the extent to which the data are aggregated into regions. The more
comprehensive the measure and the less aggregation, the more that poor
countries are responsible for past emissions. Second, it examines how
theories of responsibility apply to the data. The most well-developed theories
of responsibility that impose an obligation on an injurer to make a payment
to victims are the theories underlying tort law. This Article shows that
standard fault-based tort theories cannot be used to support climate change
obligations. Instead, the theory would have to rely on strict liability, give up
on the normally required connection between injurer and victim, and
accept undesirable distributive consequences. Moreover, i t would not be a
basis for ongoing obligations to reduce emissions because relative emissions
of nations will change over time. Instead, were such a theory of obligation to
be sustainable, it could only be used to support a one-time payment for
harm.
Claims about responsibility for past greenhouse gas emissions are one of
the central reasons for the failure of recent climate negotiations. The
conventional account is that wealthy countries are responsible for climate
change and developing countries are the victims. Developing nations such as
China and India argue that they, therefore, should not have to reduce
emissions; they are not responsible for the harms and should not have to pay
for them.1 Instead, they argue that they should be compensated for the
harms imposed on them by others. While developed nations have agreed to
provide some adaptation funds to developing nations, they resist claims
1. Brazil has gone so far as to propose a mathematical formula for calculating
responsibility and proposed that obligations under the Kyot o Protocol be allocated based on
the resulting calculations. The Brazilian Proposal can be found at U.N. Framework Conventi on
on Climate Change, Ad Hoc Group on the Berlin Mandate, Addition al Proposals from Parties
on the Implementation of the Berlin Mandate, 7th Sess., July 31–Aug. 7, 1997,
FCCC/AGBM/1997/MISC.1/Add.3, GE.97-61399 (May 30, 1997). For a summary of the
history and impact of the Brazilian Proposal, see Emilio L. La Rovere et al., The Brazilian
Proposal on Relative Responsibility for Global Warming, in B
UILDING ON THE KYOTO PROTOCOL:
OPTIONS FOR PROTECTING THE CLIMATE 157 (Kevin A. Baumert et al. eds., 2002), available at
http://pdf.wri.org/opc_full.pdf.
Nations make a variety of other arguments as well. For example, they argue that po or
nations should have a right to develop and an emissions cap would unfairly keep them poor. I
focus here only on responsibility. See ERIC A. POSNER & DAVID WEISBACH, CLIMATE CHANGE
JUSTICE (2010), for a discussion of other arguments about who should have to pay for emissions
reductions.
2012] CLIMATE CHANGE 523
about responsibility as a general basis for allocating emissions reductions.
They argue that only global action can adequately address the problem and
that arguing about past actions only gets in the way of pragmatic solutions.
Because of its importance to climate negotiations, philosophers,
scientists, and legal analysts have all made arguments about the extent to
which past emissions should give rise to obligations of one sort or another.
For example, philosopher Peter Singer argued:
[T]o put it in terms a child could understand, as far as the
atmosphere is concerned, the developed nations broke it. If we
believe that people should contribute to fixing something in
proportion to their responsibility for breaking it, then the
developed nations owe it to the rest of the world to fix the problem
with the atmosphere.2
Others have made similar arguments. Scientists have weighed in
through a United Nations body commissioned to study how to allocate
responsibility for past emissions.3 They have proposed a variety of formulas
based on measurements of the extent to which past emissions have led to or
in the future will lead to actual temperature changes. Legal analysts have
focused on the details of lawsuits against emitters and have also made more
2. PETER SINGER, ONE WORLD: THE ETHICS OF GLOBALIZATION 33–34 (2002).
3. The United Nations Framework Convention on Climate Change delegated additional
research on the Brazilian Proposal, described supra note 1, to its Subsidiary Body for Scientific
and Technological Advice, which in turn convened a scientific panel to evaluate the proposal.
In 2007, this panel completed a series of reports on the proposal. To view these reports, see
News Archive 2007, UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE, http://
unfccc.int/press/news.archive/items/4282.php (last visited Oct. 26, 2011). An ad hoc group of
scientists working on this research formed Modeling and Assessment of Contributions to
Climate Change, or MATCH. To view their results, see What’s New?, MATCH, http://www.
match-info.net (last visited Oct. 3, 2011). Another group of scientists has created FAIR:
Framework to Assess International Regimes for differentiation of commitments. See Framework
To Assess International Regimes for Differentiation of Commitments, PBL NETHERLANDS ENVTL.
ASSESSMENT AGENCY (Oct. 13, 2010), http://themasites.pbl.nl/en/themasites/fair/index.html.
For additional discussions of responsibility for past emissions, see Simone Bastianoni et al.,
The Problem of Assigning Responsibility for Greenhouse Gas Emissions, 49 ECOLOGICAL ECON. 253,
253–57 (2004) (comparing different methods and proposing a specific method to assign
responsibility for greenhouse gas emissions); Michel den Elzen et al., Analysing Countries’
Contribution to Climate Change: Scientific and Policy-Related Choices, 8 ENVTL. SCI. & POLY 614, 634–
36 (2005) (evaluating the Brazilian Proposal and its sensitivity to parameter choice); Niklas
Höhne & Kornelis Blok, Calculating Historical Contributions to Climate Change—Discuss ing the
‘Brazilian Proposal, 71 CLIMATIC CHANGE 141, 163–64 (2005) (discussing methodological issues
with the “Brazilian Proposal”); Luiz Pinguelli Rosa et al., Comments on the Brazilian Proposal and
Contributions to Global Temperature Increase with Different Climate Responses—CO2 Emis sions Due to
Fossil Fuels, CO2 Emissions Due to Land Use Change, 32 ENERGY POLY 1499, 1504–08 (2004)
(studying the sensitivity of responsibility measures to estimates of climate response); Richard
S.J. Tol & Roda Verheyen, State Responsibility and Compensation for Climate Change Damages—A
Legal and Economic Assessment, 32 ENERGY POLY 1109, 1123–25 (2004) (estimating state
responsibility for climate change using cumulative emissions after 2000).

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