Today’s ClimateWire (subscription required) contained a long summary of evidence that scientists are increasingly able to demonstrate that climate change is what we lawyers would call the “but for” cause of extreme weather events. One of the most interesting is the recent paper “Explaining Extreme Weather Events of 2016: From a Climate Perspective,” from the Bulletin of the American Meteorological Society. It looked at a number of extreme events and found – for the first time –
that some extreme events were not possible in a preindustrial climate. The events were the 2016 record global heat, the heat across Asia, as well as a marine heat wave off the coast of Alaska.
A couple of years ago, I pondered whether climate change litigation might be similar to marriage equality litigation, in that it would lose always and everywhere until, seemingly overnight, it would all of a sudden become inevitable. The biggest problem with climate change litigation has always been the difficulty in proving causation.
These recent scientific studies at least suggest that improved scientific models have solved half of potential climate plaintiffs’ problem. If an expert is willing to get on the stand and state that it is more likely than not that a particular event would not have occurred but for anthropogenic climate change, then plaintiffs will have given a factfinder a basis to conclude that their damages resulted from climate change.
Plaintiffs still have a significant mountain to climb. There is no entity called “climate change” to name as a defendant. Plaintiffs still have to establish the second part of the causation chain – that specific named defendants have in some way caused climate change. That’s going to be difficult, but I can imagine a judge determining that defendants should be jointly and severally liable.
The Bloomberg story also mentions an article in Nature Geoscience, “Acts of God, human influence, and litigation (fee required) that makes the same point:
Developments in attribution science are improving our ability to detect human influence on extreme weather events. By implication, the legal duties of government, business and others to manage foreseeable harms are broadening, and may lead to more climate change litigation.
More litigation. That’s generally a safe prediction.