A new causal pathway for recovery in climate change litigation?
| Date | 01 January 2022 |
| Author |
52 ELR 10038ENVIRONMENTAL LAW REPORTER 12022
by Thomas Burman
Thomas Burman works as project development counsel at Virunga Power, a sustainable
energy infrastructure developer in East and Southern Africa. He was previously an attorney
in the energy, environmental, mining, and transportation division at Stinson LLP.
SUMMARY
Courts across the globe recognize that human-induced climate change leads to more frequent and severe
extreme weather and other events, resulting in significant damages to persons and property. Although courts
have therefore ordered countries and corporations to take more aggressive actions to limit their greenhouse
gas emissions, no court has yet required any emitter to pay damages for injuries from a climate change-
related event. Causation issues remain a significant obstacle to such claims. To overcome this obstacle, this
Article proposes using causal and liability standards that have long been applied in tort claims involving
diffuse environmental pollution. Specifically, the “necessary element of a sufficient set” approach, when com-
bined with proportional liability, may allow a plaintiff to establish an entity’s emissions as a legally relevant
cause of a specific climate-rela ted injury. The Article reviews the laws of five key jurisdictions, concluding that
the proposed approach may successfully establish a legally relevant causal link in most, if not all, of them,
with varying success depending on the climate change-related event in question.
A NEW CAUSAL PATHWAY FOR
RECOVERY IN CLIMATE CHANGE
LITIGATION?
In August 2021, the United Nations (U.N.) Intergov-
ernmental Panel on Climate Change (IPCC) issued
Part I of its Sixth Assessment Report,¹ which includes
the panel’s starkest comments to date on the link s between
anthropogenic greenhouse gas (GHG) emissions and cli-
mate change. According to the report, it is now “unequivo-
cal that human inuence has warmed the global climate
system,” and it is “established fact that human-induced
greenhouse gas emissions have led to an increased fre-
quency and/or intensity of some weather and climate
extremes” such as “extreme precipitation, droughts, tropi-
cal cyclones, and compound extremes (including dry/hot
events and re weather).”² e IPCC also provides a dire
outlook, predicting a global surface temperatu re increase of
above 2°C from pre-industrial levels; increased frequency
1. IPCC, C C 2021: T P S B. C-
W G I S A R I-
P C C 3-4 (2021), https://www.
ipcc.ch/report/ar6/wg1/downloads/report/IPCC_AR6_WGI_Full_Report.
pdf [hereinafter IPCC R].
2. Id. at 3-4, 11-6 (emphasis added).
and intensity of extreme weather, drought, and heat waves;
increased Arctic ice melt; an intensied global water cycle;
and rising sea levels, all of which could occur even under
more modest scenarios with relatively low levels of future
anthropogenic GHG emissions.³ As one climate scientist
notes, the report is “as close as you’re ever going to see to
watching the scientists of the world screaming at the top of
their lungs from the top of the tallest building.”
e numerous extreme weather events witnessed
in 2021 alone make the IPCC’s warnings dicult to
ignore. Extreme heat and enormous forest res stretched
across western North America and throughout Greece
and Turkey, while historic ooding inundated western
Europe. e impacts of Hurricane Ida in the United
3. Id. at SPM-15 to SPM-30.
4. Katherine Dunn, e World’s Scientists Are “Screaming at the Top of eir
Lungs.” Are We Listening?, F (Aug. 11, 2021), https://fortune.
com/2021/08/11/climate-change-un-ipcc-report-scientists-screaming/.
5. More an 60 Wildres Rage Across U.S. West—Including Blaze Bigger
an Portland, G (July 13, 2021), https://www.theguardian.com/
us-news/2021/jul/13/us-wildres-california-oregon-washington.
6. anassis Stavrakis et al., Raging Wildres in Greece, Turkey, Force ou-
sands to Flee, AP N (Aug. 6, 2021), https://apnews.com/article/
europe-res-athens-heat-waves-4fca06093b6e4c0c463210dfe7fb4cfb.
7. F K ., W W A, R A-
H R E L S F
W E D J 2021 (2021), https://www.worldweath-
Author’s Note: Special thanks to Dr. Romain Mauger at the
Groningen Centre of Energy Law—University of Groningen
for his review and comments.
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
12022ENVIRONMENTAL LAW REPORTER 52 ELR 10039
States spanned from Louisiana to Maine, leading to New
York City’s irst “ash ood emergency.” Extreme winter
storms pummeled Texas, forcing extended blackouts. In
September 2021, the editors of more than 200 medical
journals issued a joint statement claiming that climate
change is the “greatest threat to global public health.”¹
And in the same month, a World Meteorological Orga-
nization report concluded that the number of disasters
related to weather, climate, or water hazards have increased
vefold over the past 50 years, causing 115 deaths and
US$202 million in losses each day over that period—wit h
more than 91% of deaths occurring in developing coun-
tries.¹¹ e organization’s Secretary General echoed the
IPCC, explaining that “[t]he number of weather, climate
and water extremes are increasing and will become more
frequent and severe in many parts of the world as a result
of climate change.”¹²
Although the correlation between anthropogenic
GHGs, climate change, and losses due to extreme weather
and other climate-related events is now an “established fact”
per the IPCC, to date no court has required a GHG emit-
ter—whether a country, organization, or company—to
pay damages for harms arising from such an event. Recent
landmark court decisions have required countries such as
France,¹³ the Netherlands,¹ and Germany,¹ and private
entities such as Royal Dutch Shell,¹ to take more aggres-
sive action to curb future GHG emissions, but these cases
do not provide relief for climate-related damages that have
already been suered or that will be suered imminently
erattribution.org/wp-content/uploads/Scientic-report-Western-Europe-
oods-2021-attribution.pdf.
8. Jesus Jiménez & Michael Levenson, Ida’s Wind-Driven Remnants Pummel
the New York City Region, N.Y. T (Sept. 1, 2021), https://www.nytimes.
com/2021/09/01/us/northeast-rain-ida-new-york.html.
9. Dan Esposito & Eric Gimon, e Texas Big Freeze: How a Changing Cli-
mate Pushed the State’s Power Grid to the Brink, U. D (June 2, 2021),
https://www.utilitydive.com/news/the-texas-big-freeze-how-a-changing-
climate-pushed-the-states-power-grid/601098/.
10. Lukoye Atwoli et al., Call for Emergency Action to Limit Global Temperature
Increases, Restore Biodiversity, and Protect Health, 385 N E. J. M.
1134 (2021), https://www.nejm.org/doi/full/10.1056/NEJMe2113200.
11. Press Release, World Meteorological Organization, Weather-Related Disas-
ters Increase Over Past 50 Years, Causing More Damage but Fewer Deaths
(Aug. 31, 2021), https://public.wmo.int/en/media/press-release/weather-
related-disasters-increase-over-past-50-years-causing-more-damage-fewer.
12. Id.
13. Tribunal Administratif [Administrative Court] Paris, Feb. 3, 2021, Nos.
1904967, 1904968, 1904972, 1904976/4-1 (unocial English transla-
tion of Notre Aaire à Tous v. France), http://climatecasechart.com/climate-
change-litigation/wp-content/uploads/sites/16/non-us-case-documents/
2021/20210203_NA_decision.pdf.
14. HR 20 december 2019, ECLI:NL:HR:2019:2007, 19/001 (De Staat der
Nederlanden (Ministerie van Economische Zaken en Klimaat)/Sticht-
ing Urgenda) (unocial English translation), http://climatecasechart.
com/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-
documents/2020/20200113_2015-HAZA-C0900456689_judgment.pdf.
15. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Mar.
24, 2021, 1 BvR 2656/18, 1 BvR 78/20, 1 BvR 96/20, 1 BvR 288/20
(unocial English translation of Neubauer v. Germany), http://climate-
casechart.com/climate-change-litigation/wp-content/uploads/sites/16/non-
us-case-documents/2021/20210429_11817_judgment-2.pdf.
16. RBDHA the Hague 26 mei 2021, ECLI:NL:RBDHA:2021:5339,
C/09/571932/HA ZA 19-397 (Vereniging Milieudefensie/Royal Dutch
Shell PLC) (unocial English translation), http://climatecasechart.com/
climate-change-litigation/wp-content/uploads/sites/16/non-us-case-docu-
ments/2021/20210526_8918_judgment-2.pdf.
due to—at least in part—existing anthropogenic emis-
sions. Such questions could be addressed in international
arenas, but the recently concluded COP26 in Glasgow did
not lead to dedicated compensation for loss and damage,¹
wealthier nations have admitted to falling short on their
climate nance commitments to developing nations,¹
and arbitration procedures that could provide meaningful
compensation have not been solidied.¹
Claimants have certainly attempted to obtain mon-
etary relief in litigation against specic GHG emitters
for their contributions to climate change, and courts in
these cases have largely accepted as a general matter that
increased anthropogenic GHG emissions will lead to
more climate-related damages.² However, causation issues
remain a signicant obstacle to establishing liability for
damages against the defendants in these cases.²¹ In gen-
eral, the law will only assign liability for damages if there
is a causal link between a defendant’s act (i.e., its GHG
emissions) and the plainti’s specic injury (i.e., the harm
resulting from the extreme weather event or other circum-
stance made more likely or severe by the defendant’s GHG
emissions).²² Common-law and civil-law systems alike
require causal necessity—that is, that the injury would not
have occurred withoutthe defendant’s GHG emissions.²³
Given the complex, interdependent, and unpredictable
nature of our climate, courts have d ismissed these damages
claims, skeptical that such necessary causation could ever
be established.²
However, recent progress in the emerging eld of cli-
mate attribution science may make it possible to estab-
lish a legally relevant causal link between a defendant’s
specic emissions and a claimant’s specic harm. ree
areas of attribution science are pertinent to demonstrate
this link. First, “event attribution” allows one to determine
whether total anthropogenic GHGs increased the like-
lihood or severity of a specic extreme weather or slow-
onset event (e.g., glacial melt or sea-level rise).² Second,
“impact attribution” enables one to determine the extent
to which the climate-related event contributed to a plain-
ti’s injury, accounting for factors unrelated to climate.²
Lastly, “source attribution” has credibly apportioned most
17. Megan Rowling, Climate “Loss and Damage” Earns Recognition but Little Ac-
tion in COP26 Deal, R (Nov. 13, 2021), https://www.reuters.com/
business/cop/climate-loss-damage-earns-recognition-little-action-cop26-
deal-2021-11-13/.
18. Simon Evans et al., COP26: Key Outcomes Agreed at the UN Climate Talks
in Glasgow, C B (Nov. 15, 2021), https://www.carbonbrief.org/
cop26-key-outcomes-agreed-at-the-un-climate-talks-in-glasgow.
19. Pamela McDonald, Resolving Climate Change Disputes rough Arbitra-
tion, P M (Mar. 31, 2021), https://www.pinsentmasons.com/
out-law/analysis/resolving-climate-change-disputes-through-arbitration.
20. M L. B, C S C: A R U.S.
I J P 2 (Envtl. L. Inst. 2020).
21. See discussion infra Section I.D.
22. Michael Burger et al., e Law and Science of Climate Change Attribution, 45
C. J. E’ L. 57, 201 (2020).
23. Ingeborg Puppe & Richard W. Wright, Causation in the Law: Philosophy,
Doctrine, and Practice, in C E T L 17, 34 (Marta
Infantino & Eleni Zervogianni eds., Cambridge Univ. Press 2017).
24. See the cases discussed infra Section I.D.
25. Infra Section II.A.
26. Infra Section II.B.
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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