What climate change can do about tort law.

• Author: Kysar, Douglas A.

1. 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 I. INTRODUCTION

   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. (10) At long last, courts and commentators may come to view tort claims in degrees of polycentricity, rather than in crude binary terms of conventional civil disputes, on the one hand, and political or regulatory matters, on the other. (11)

   Should these developments occur, they will be salutary, as they will help tort law to continue its role as backdrop and partner to environmental, health, and safety regulation. (12) Gradually and unevenly, the administrative state is evolving in response to the complex, uncertain, and potentially catastrophic nature of twenty-first century threats to social welfare. Problems such as climate change, terrorism, infectious disease outbreaks, and financial market instability resist figuration within conventional regulatory frameworks, not least because their drivers and impacts span the globe and fall under multiple agency mandates. Even garden variety regulatory tasks such as ecosystem management and pharmaceutical regulation increasingly are being seen to require new modes of governance, ones built on an understanding of risk regulation as a continual process of experimentation, monitoring, and adjustment in light of ever-present prospects of unpleasant surprise. (13) Under this "new governance" framework, (14) regulatory targets are seen to be embedded within intricate systems that defy precise prediction and control; rapidly evolving, globally interconnected, and wickedly complex, such systems do not yield to straightforward command-and-control regulation or other familiar lawmaking forms. (15) Instead, governance only emerges from the decentralized, overlapping, and continually evolving interventions of public and private actors, each operating at different levels and from different spheres of authority, utilizing a range of policy tools both hard and soft, and representing diverse interests and stakeholder groups. Rather than the hierarchical and near complete authority of the state, power within these systems is widely distributed and decidedly partial. Indeed, even the state itself increasingly is being seen as a complex tissue of actors and networks, rather than a unified or even federally-stratified sovereign.

   As regulatory law moves in response to these unprecedented challenges to the promotion of welfare (and new understandings of old challenges), tort law must move along with it in order to continue to serve as the administrative state's necessary backdrop. Given its classical liberal origins and its limited adjudicatory framework, tort law will always lag regulatory law in its embrace of a "systems view" of risk and harm. Nevertheless, the era of climate change will make certain trappings of classical liberalism-such as the presumed atomicity of private actors or the purely mechanistic depiction of causation--increasingly difficult to maintain, Just as railroad and workplace carnage forced recognition of new forms of risk in the latter haft of the nineteenth century, (16) just as automobile and product-caused accidents illuminated extended chains of responsibility in the twentieth century, (17) climate change will challenge prevailing conceptions of wrongdoing in the twenty-first century. When even the most dystopian climate change scenario---such as the complete erasure of territorial homeland for distinct and long-lived human civilizations, (18) or the rendering of vast swaths of currently inhabited land unsuitable for human existence due to the threat of hyperthermia (19)--fails to register as a responsibility of any actor anywhere, our principles of causal and moral attribution need to be rethought. As with earlier periods of societal evolution in response to suffering that is uncompensated, undeterred, and unrationalized, tort law will not be exempt from this necessity of reevaluation. Put bluntly, tort law will be forced to adapt or perish, much like life itself in a warming world.

   Part II of this Article provides an overview of challenges facing climate change plaintiffs under prevailing tort doctrines. It begins by noting the odd alignment of legal economists and plaintiffs' lawyers as two groups that both have attempted to squeeze the climate change problem into existing paradigms for understanding and resolving pollution disputes. It then challenges their efforts by detailing a variety of ways in which the problem of climate change causes existing paradigms to buckle and shake. After concluding that climate change tort suits are unlikely to prevail on the merits, Part III turns the lens around to ask what climate change litigation might nonetheless do for tort law itself. It argues that judges, having engaged up close with the extraordinary accumulation of minor, diffuse activities into a global environmental problem of potentially biblical magnitude, may find themselves willing to step farther outside of the classical liberal tort paradigm in non-climate change cases--yet another surprising and dramatic consequence of humanity's most dramatic experiment with the natural world.

2. CLIMATE CHANGE AS THE ANTI-TORT

   Given the connection between legal economic reasoning and tort reform initiatives over the past three decades, (20) economists and plaintiffs' lawyers make for unlikely bedfellows. Yet the two groups do come together in their apparent belief that climate change is not a paradigm-shifting phenomenon. To most environmental economists, the fact that anthropogenic greenhouse gas emissions are driving atmospheric and oceanic changes of geologically unprecedented scale does not fundamentally alter their framework for evaluating environmental policy issues. On the conventional economic account, greenhouse gas emissions are just another Pigouvian negative externality, (21) and the appropriate policy response is simply to "get the incentives right" so that emitters undertake activities with a disciplined awareness of external impacts. Such a policy response might take the form of an emissions tax, which ideally is set equal to the marginal environmental damage caused by a given level of emissions, (22) or a...