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.
That may be a safe prediction, but it is a sad one.
To what extent was a particular storm event, or sea level rise, caused by CO2 emitted from an ExxonMobil refinery, the “Big Burn” forest fire of 1910, World War II, Saudi Arabia, volcanic activity or someone driving 50 miles a day to work for 40 years? We all emit CO2 every day by virtue of being alive. How much responsibility should be tied to government policies that supported and/or directly subsidized the production and consumption of hydrocarbons? If governments are liable because of their pro-carbon policies, guess who pays the judgment – the taxpayers, indirectly including the plaintiffs in these cases (with 33% going to their lawyers, of course).
How should courts factor into this legal analysis the dramatic improvement in living standards around the globe from the invention of the internal combustion engine, electrification and the availability of inexpensive carbon fuels that dramatically improved human productivity while reducing often debilitating if not deadly physical labor?
And most importantly, how does any of this litigation actually address the issue of climate change?
Rather than wasting public and private financial and intellectual resources on a legal fight over whose CO2 molecules might have been 0.00001% (or is it 0.000015%?) responsible for a particular storm event, or sea level rise, those societal resources should be focused on pursuing mitigation and adaptation solutions – an activity that directly addresses climate change, rather than making plaintiffs lawyers wealthy and famous.
Well said and I’ve always agreed with pretty much everything you say. However, I am depressed enough about the current government failure to act that I am rethinking my opposition to private suits. If private suits are what it takes to get government action, then, as inefficient as they are, they may be what we need.