Tort Law and Climate Change

Contents

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    Introduction

    There has been a surge in tort litigation seeking to hold parties accountable for contributing to the worsening climate crisis. This analysis explores the challenges, liability theories, and emerging trends within this dynamic field, highlighting challenges and opportunities for seeking accountability and redress amid a changing climate.

    • Tort law, traditionally focused on personal injuries and property damage, is being redefined by the complexities of climate change, reflecting its pervasive impact across all aspects of society.
    • This exploration highlights various avenues within tort law to address climate-related harms, such as public nuisance, private nuisance, and trespass claims.
    • Several challenges hinder the resolution of climate change disputes through tort law, including establishing causation, defining legal standing and jurisdiction, addressing political and regulatory factors, and grappling with scientific complexity and uncertainty.
    • Climate change-related claims and damages, like all torts, are contentious, with various collective liability theories, including enterprise liability, concert of action theory, and market share liability, being considered to determine responsibility for both collective groups and individual actors. 
    • Market share liability and its adapted concept related to “intermingled products” are considered suitable approaches for distributing responsibility in climate change lawsuits, emphasizing incentives for change and equitable distribution of liability.
    • Future trends in tort law and climate change may include expanding liability to include governments, emerging legal theories, increasing scrutiny of corporations, and governments facing more climate-related lawsuits.
    Key cases
    Palsgraf v. Long Island Railroad Company

    Comer v. Murphy Oil USA, Inc.

    Georgia v. Tenn. Copper Co.

    Missouri v. Illinois

    Rhode Island v. Lead Industries Association, Inc.

    Bell v. Cheswick Generating Station

    Renken v. Harvey Aluminum, Inc.

    Boomer v. Atl. Cement Co.

    Martin v. Reynolds Metals Co.

    Massachusetts v. EPA

    Connecticut v. Am. Electrical Power (AEP)

    Wildearth Guardians v. Salazar

    Washington Environment Council v. Bellon

    City of New York v. Lead Industries Association

    Sindell v. Abbott Labs

    General Impacts

    The legal world faces a new frontier in the form of climate-related tort litigation. As the consequences of a warming planet become increasingly apparent, individuals, communities, and governments are seeking legal avenues to hold parties accountable for contributing to this crisis. This burgeoning field of law presents complex issues for U.S. law. Tort law, traditionally concerned with addressing personal injuries and property damage resulting from individual or corporate wrongdoing, is evolving in response to the scale and complexity of climate change. This evolution of the law reflects the recognition that climate change is not merely a matter of scientific inquiry or environmental policy but a pervasive issue affecting all aspects of society. It is a phenomenon shaped by countless actors and decisions over decades, making it uniquely challenging for the legal system.

    This section highlights the diverse ways in which tort law might be used to address climate-related harms, the legal challenges this creates, and the implications for environmental policy and corporate responsibility. It also highlights cases and trends that demonstrate the growing importance of tort law as a tool for seeking redress and accountability in the face of a changing climate.

    Standard of Care and Causes of Actions

    “A tort is an act or omission that causes legally cognizable harm to persons or property.”[1] To prove a standard negligence claim, the plaintiff must show that “[t]he defendant owed a duty to the plaintiff,” “[t]he defendant breached [that] duty,” “[t]he plaintiff suffered a legally cognizable injury,” and “[t]he defendant’s breach of duty caused the plaintiff’s injury,” meaning that “the defendant actually” and “proximately caused their injury.”[2]

    The dominant perspective in the United States regarding the duty of ordinary care in climate change-related disputes follows the doctrinal approach to liability described by then-Chief Judge Cardozo in the famous case Palsgraf v. Long Island Railroad Company.[3] He explained that “negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right” and the crucial determination to be made is whether “the eye of ordinary vigilance” would have foreseen the result.[4] Under this approach, Kysar has stated that local governments, indigenous groups, and other collective bodies are most suitable to bring climate change lawsuits because they represent a broader segment of potential victims, making the adverse effects of climate change more foreseeable.[5]

    Therefore, numerous authors have concluded that “public nuisance”[6] is a viable theory for climate change disputes[7] because public nuisance law imposes a duty to prevent harmful activities that affect the rights of the general public.[8] Litigants might argue, for example, that a single or collective of defendants’ greenhouse gas emissions have harmed public interests or rights.

    Private nuisance claims may also be a viable option.[9] This theory allows landowners to recover for the loss of health and comforts associated with land use. It is different from public nuisance because, for standing, it requires the claimant to have a property interest in affected land,[10] whereas public nuisance grants standing to sue as a representative of the general public, citizen in a citizen’s action, or member of a class in a class action. [11] Public nuisance plaintiffs may not sue for damages, while private nuisance plaintiffs can.[12]

    The availability of public and private nuisance claims in climate change-related disputes varies based on the scale and nature of the harm involved. Public nuisance claims offer an efficient method for addressing broad, systemic climate impacts that affect entire communities or regions, allowing suitable plaintiffs (e.g., government entities) to pursue remedies on behalf of the public. Private nuisance claims may be less efficient but can provide redress for individual or localized harms. Therefore, the choice between these options depends on the circumstances and litigants’ objectives. U.S. cases have demonstrated the viable nature of both public[13] and private[14] nuisance claims.

    Trespass is generally considered another option for climate litigants, [15] even though there is often significant overlap with nuisance claims.[16] A key difference from traditional nuisance claims is that the trespass claimants in some instances can request injunctive relief that could include a total removal of the trespass (for instance, forcing the polluter to remove their pollution completely and engage in cleanup and restoration operations), while nuisance claims only allow for an abatement of the harm until it no longer constitutes a nuisance.[17]

    Tort Law Barriers

    Navigating the landscape of tort law poses significant challenges for climate-based litigation. The key challenges while moving forward with efficient adjudication of climate change-related claims are:

    (1) Causation and Attribution: Establishing a direct link between a defendant’s actions (such as greenhouse gas emissions) and specific climate impacts is complex and scientifically challenging. Climate change is often the result of numerous factors, including emissions from multiple sources (e.g., domestic and foreign emitters), making it difficult to attribute harm to a particular defendant. Cases where both U.S. federal and state courts have found identical causal connection and outlined the criteria for establishing causation include instances where courts: 1) have found a plausible link between man-made greenhouse gas emissions and global warming,[18] 2) concluded that it was sufficient for plaintiffs to show that greenhouse gas emissions are attributable to defendant’s actions “contributing climate change,”[19] 3) elaborated that for the causal connection to exist the causal chain was not too attenuated and was supported by scientific evidence or another evidentiary basis,[20] 4) stipulated that the prospects of a private party plaintiff establishing a causal nexus in each case were “particularly daunting” because of the “natural disjunction” between the greenhouse effect and localized injuries.[21]

    (2) Standing and Jurisdiction: Determining who has standing to bring climate change-related tort claims can be contentious. Courts may struggle to define the boundaries of who can sue, especially when harm is diffuse and widespread. Additionally, determining which court has jurisdiction over such cases can be legally complex.

    (3) Separation of Powers: It is also far from clear whether courts should decide some issues that arise in climate litigation. The involvement of government agencies, exercising delegated legislative authority, e.g., in setting emissions standards and implementing climate policies can significantly impact the resolution of climate-related tort disputes. Courts may grapple with whether to defer to regulatory bodies or proceed independently. For example, in Comer v. Murphy Oil USA, the U.S. Court of Appeals for the Fifth Circuit concluded that the formulation of standards regarding excessive greenhouse gas emissions is “best left to the executive and legislative branches of the government, who are not only in the best position to make those decisions but are constitutionally empowered to do so.”[22]

    (4) Complexity and Scientific Uncertainty: Climate science is highly complex, and there can be uncertainties in predicting specific impacts. Courts may struggle to make informed decisions when presented with complex scientific evidence and competing expert testimony.

    (5) Cross-Border and Global Nature: Climate change is a global problem, and emissions from one jurisdiction can affect others. This raises complex questions about cross-border liability and the enforcement of judgments, especially in an international context.

    (6) Proving Harm: Proving that a specific plaintiff has suffered harm due to climate change can be challenging. Many climate impacts, such as sea-level rise or extreme weather events, affect large populations rather than isolated individuals, making it difficult to establish harm on a case-by-case basis.

    (7) Adaptation vs. Mitigation: Legal remedies may focus on compensation for harm (adaptation) rather than addressing the root causes of climate change (mitigation). While adaptation is necessary, it may not fully address the broader climate crisis.

    Liability For Climate Change-Related Damages

    Establishing liability is a complex challenge when numerous parties have caused harm, such as may be expected in instances of climate change-related injuries. The issue concerns determining the appropriate level of responsibility for the collective group and individual actors.[23] This is not a new problem, and has historically been addressed in toxic tort litigation. Possible collective liability theories for climate change cases include theories of enterprise liability, “concert of action,” and market share.

    Enterprise liability is not widespread in climate change disputes. Under this legal theory, if the plaintiff proves that an “industry-wide standard caused the injury,” then it is shown that a “defendant that used the standard contributed to and was liable for the plaintiff’s injury.”[24]  However, when looking at climate change, many different and unrelated industries and companies likely contribute to climate change, such as by emitting GHGs, making it difficult to hold individual enterprises or industries liable.[25] Thus, courts have not yet recognized this theory as applicable to environmental cases.[26]

    Alternatively, a “concert of action” theory enables plaintiffs to assert that the primary emitters have implicitly agreed to behave unreasonably by persistently emitting substantial volumes of greenhouse gases without taking any precautions.[27] Should plaintiffs successfully demonstrate that greenhouse gas emitters are engaged in deceptive misrepresentations or concealing information regarding the harm, that could potentially provide grounds for a court to apply this theory to climate change defendants.[28] To rely on this theory, plaintiffs must present substantial evidence indicating the existence of an agreement, whether explicit or implicit, among greenhouse gas emitters and allegations of fact showing that the emitters behavior was unreasonable.[29]

    The theory of market share liability,[30] and the adapted market share liability concept related to “intermingled products,” are perhaps the most suitable approaches for distributing responsibility in climate change lawsuits. Market share theory holds significant relevance in the context of climate change because it involves both blameless plaintiffs and negligent defendants who require motivation before changing harmful practices. The California Supreme Court has emphasized the importance of favoring blameless plaintiffs over negligent defendants, with liability incentivizing safer products.[31] This same policy argument holds true in a climate change nuisance case, where if defendants are determined to be unreasonably interfering with a public right by elevating air and water temperatures, the blameless plaintiff, whose property has suffered damage, should prevail.[32] Beyond granting the plaintiff a path to recovery, this approach incentivizes oil and energy producers and other emitters to exercise greater caution in their emissions. The theory is equitable because defendants are held jointly liable for only the portion of the judgment corresponding to each defendant’s market share at the time of the injury.

    Future Trends

    Several notable trends are expected to shape the landscape for tort law and climate change. One significant trend involves the expansion of liability. As the impacts of climate change become increasingly evident, courts may broaden the scope of liability, potentially holding not only corporations but also governments accountable for their roles in exacerbating or failing to mitigate climate-related harms, subject to sovereign immunity limitations.[33] This expansion of liability could encompass claims related to greenhouse gas emissions, inadequate environmental policies,

    and failures to address climate risks adequately. Additionally, novel legal theories may emerge to establish liability, including public nuisance claims, the imposition of strict liability for carbon emissions, or the recognition of a “right to a stable climate” as a basis for legal action. Furthermore, corporations may face heightened scrutiny and legal action related to their contributions to climate change, with shareholders, consumers, and affected communities seeking recourse against companies that fail to disclose climate risks accurately, misrepresent their environmental impact, or neglect necessary steps to reduce harm. In parallel, governments may find themselves entangled in more climate-related lawsuits, brought forth by citizens and environmental organizations alleging negligence or insufficient climate policies. This evolving landscape reflects the growing importance of tort law in addressing the complex and urgent challenges posed by climate change.


    [1]Introduction to Tort Law‘ (Congressional Research Service). Available at: <https://crsreports.congress.gov/product‌/pdf/IF/IF11291> accessed 23 April 2024.

    [2] Ibid.

    [3] 162 N.E. 99 (N.Y. 1928).

    [4] Ibid, [99].

    [5] Douglas A. Kysar ‘What Climate Change Can Do About Tort Law‘ (Lewis & Clark Law School, Environmental Law, vol. 41:1, 2011).

    [6] Under the Second Restatement of Torts, “[a] public nuisance is an unreasonable interference with a right common to the general public.” ‘Restatement (Second) of Torts‘, § 821B. “Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following: (a) whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or (b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or (c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.” Ibid,§ 821B cmt. h (Am. L. Inst. 1979).

    [7] Jack Wold-McGimsey, ‘Climate Change and Modern State Common Law Nuisance and Trespass Tort Claims‘ (University of Colorado Law Review, vol. 94(3), 2023); Kysar (2011); Tracy D. Hester, ‘A New Front Blowing In: State Law and the Future of Climate Change Public Nuisance Litigation‘ (Stanford Environmental Law Journal, vol. 31:49, 2012).

    [8] Kysar(2011), p. 13.

    [9] “One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either: (a) intentional and unreasonable, or (b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.” ‘Restatement (Second) of Torts‘, § 822.

    [10] Ibid. § 821E.

    [11] Ibid. § 821(C)(2)(c).

    [12] Ibid.

    [13] See Georgia v. Tenn. Copper Co., 206 U.S. 230 (1907) (emission of sulfur dioxide from copper industry that caused damage in neighboring states and granting injunction to halt the transboundary emissions), Missouri v. Illinois, 200 U.S. 496 (1906) (stating that pollution caused by the diversion was a legitimate subject of dispute between states, and it had the authority to intervene and protect the rights of downstream states in cases of water pollution originating in upstream states); Rhode Island v. Lead Indus. Ass’n, Inc., 951 A.2d 428, 435 (R.I. 2008) (alleging that manufacturers had known about the dangers of lead-based paint for many years but had failed to take adequate measures to prevent harm and allowing state to pursue damages against the manufacturers to fund lead abatement programs and address the public health crisis caused by lead paint), Bell v. Cheswick Generating Sta., 734 F.3d 188, 189, 198 (3d Cir. 2013) (alleging that the residents could pursue their lawsuit under public nuisance doctrine, seeking remedies for the alleged harm caused by the power plant’s emissions emphasizing that Clear Air Act does not preempt state law nuisance claims).

    [14] See Renken v. Harvey Aluminum, 226 F. Supp. 169, 175–76 (D. Or. 1963) (finding that the pollution constituted private nuisance and mandating “best available technology standard,” whereby the factory should install pollution-capturing hoods to control the majority of the excess emissions within a year or face an injunction); Boomer v. Atl. Cement Co., 257 N.E.2d 870, 871–72, 875 (N.Y. 1970) (finding that emission of large quantities of vibration, dust, and noise is considered to be private nuisance and entitling the affected residents to past and future damages and granting temporary injunction instead of shutting down the cement plant).

    [15] “One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove.” ‘Restatement (Second) of Torts‘, § 158.

    [16] See Martin v. Reynolds Metals Co., 342 P.2d 790, 795 (Or. 1959) (“Here it is apparent that the law of trespass and the law of nuisance come very close to merging.”).

    [17] See Anthony Z. Roisman & Alexander Wolff, ‘Trespass by Pollution: Remedy by Mandatory Injunction‘ (Fordham Environmental Law Review, vol. 21:1, 2010).

    [18] See Massachusetts v. EPA, 549 U.S. 497, 865 (2007) (asserting that harms associated with climate change are serious and well recognized, and rising ocean temperatures in particular may contribute to ferocity of hurricanes).

    [19] See Connecticut v. Am. Electrical Power (AEP), 582 F.3d 309, 347 (2d Cir. 2009), rev’d on other grounds, 131 S. Ct. 2527 (2013) (concluding that five defendants’ emissions sufficiently contributed to plaintiffs’ injuries, noting that they were the largest utility emitters of carbon dioxide in the United States); N.W. Env’t Def. Ctr. v. Owens Corning Co., 434 F. Supp. 2d 957, 967 (D. Or. 2006).

    [20] See Wildearth Guardians v. Salazar, 880 F. Supp. 2d 77, 85-S6 (D.D.C. 2012), affg 738 F.3d 298 (D.C. Cir. 2013); Ctr. for Biological Diversity v. U.S. Dep’t for Interior, 563 F.3d 466, 478-79 (D.C. Cir. 2009); Native Village of Kivalina v. ExxonMobil Corp, 663 F. Supp. 2d 863, 880 (N.D. Cal. 2009), affg, 696 F.3d 849 (9th Cir. 2012), cert, denied, 133 S. Ct. 2390 (2013).

    [21] See Wash. Env’t Council v. Bellon, 732 F.3d 1131 (9th Cir. 2013), reh’g denied, 741 F.3d 1075 (9th Cir. 2014) (holding that environmental group plaintiffs did not have standing to sue to compel state regulation of GHG emissions from oil refineries); see also Corey Moffat, ‘Establishing Causation in Private Party Climate Change Suits: Correcting the Mistakes of “Washington Environmental Council v. Bellon’ (Lewis & Clark Law School, Environmental Law, vol. 44:3, 2014).

    [22] 585 F.3d 855, 860, 864 (5th Cir. 2009).

    [23] See David A. Grossman, ‘Warming up to a Not-So-Radical Idea: Tort-Based Climate Change Litigation‘(Columbia Journal of Environmental Law, vol. 28:1, 2003); Lauren Case, Comment, ‘Climate Change: A New Realm of Tort Litigation, and How to Recover When the Litigation Heats Up‘ (Santa Clara Law Review, vol. 51:1, 2011).

    [24] Ora Fred Harris, Jr., ‘Toxic Tort Litigation and the Causation Element: Is There Any Hope of Reconciliation?‘ (SMU Law Review, vol. 40:3, 1986).

    [25] Ibid, [291].

    [26] Ibid, [911].

    [27] Ibid, [292].

    [28] City of New York v. Lead Indus. Ass’n, 597 N.Y.S.2d 698 (N.Y.App. Div. 1993).

    [29] Ibid, [292].

    [30] While determining the market share liability, the Restatement (Third) of Torts advises courts to: “(1) the generic [or fungible] nature of the product; (2) the long latency period of the harm; (3) the inability of plaintiffs to discover which defendant’s product caused plaintiffs harm, even after exhaustive discovery; (4) the clarity of the causal connection between the defective product and the harm suffered by plaintiffs; (5) the absence of other medical or environmental factors that could have caused or materially contributed to the harm; and (6) the availability of sufficient “market share” data to support a reasonable apportionment of liability.” ‘Restatement (Third) of Torts: Products Liability‘ (cmt. C, 1998), § 15

    [31] Sindell v. Abbott Labs., 607 P.2d 924, 936 (Cal. 1980).

    [32] Ibid, [294].

    [33] See, e.g.,David Gelles & Mike Baker, ‘Judge Rules in Favor of Montana Youths in Landmark Climate Case‘ (New York Times, 14 August, 2023) <https://www.nytimes.com/2023/08/14/us/montana-youth-climate-ruling.html> accessed 23 April 2024.