By Prof. Tracy Hester
Global Actions, Local Liabilities:
Looking Ahead on U.S. and Global Climate Tort Liability Lawsuits
U
.S. climate change politics have waxed and waned over the past 30 years, but climate litigation continues to steadily expand against the tides. The term “climate litigation” itself has become a conceptual big tent that includes a motley collection of lawsuits seeking to force government action, challenge administrative decisions on greenhouse gas permits and emission limits, enforce human rights and constitutional protections against harms from climate change, and impose liability on emitters of greenhouse gases for damages from climate change allegedly caused by their emissions. Trial lawyers now specialize in the field, and some law firms have built active climate litigation practice groups.1
The numbers bear out this trend. According to the latest tally of global activity in climate change litigation, plaintiffs have filed a total of 1,587 cases of climate litigation in at least 37 different national court systems or international bodies since 1986 —and most of them in the past decade. While the majority of those cases initially arose in the United States (1,213), lawsuits also appeared in Australia, the United Kingdom, and European bodies and courts.2 Even the global South has begun to actively participate in the growing wave of climate lawsuits and transnational litigation.3 As international climate litigation has grown, a mounting portion of it explicitly seeks to force strategic change by governments. Most of these courtroom battles, of course, still center on the particular interests of parties affected by a local action or agency decision (e.g., approval of a permit for an LNG terminal). But other lawsuits explicitly aim to promote changes in public policy on climate, force changes in behavior from key actors, and raise public awareness of particular climate risks. These strategic lawsuits have absorbed a growing amount of attention and resources as the courts and other judicial bodies find themselves slowly pushed into the center of the push to achieve an effective climate response. One category of climate litigation in the United States seeks to combine these strategic goals with more pecuniary interests: climate tort liability actions. These lawsuits allege that emitters of greenhouse gases, or purveyors of products that emit greenhouse gases when used (such as liquid hydrocarbon fuels or thermal coal), bear liability for damages caused by climate changes due, in part, to their emissions. These claims originally sounded in either traditional tort doctrines such as negligence, nuisance, or trespass, or they drew on strict liability doctrines for allegedly ultrahazardous activities. Later lawsuits also alleged that some companies, including large fossil fuel producers, committed tortious misrepresentations and concealed information about the
