54 Pages Posted: 21 Sep 2007 Last revised: 9 May 2013
Several dozen cases that can be classified as climate change litigation have been filed worldwide, and legal scholars have already generated a considerable amount of writing on the phenomenon. The debate and scholarship has sometimes gotten ahead of itself, reflecting on the normative implications of outcomes that are still speculative at this point. This article seeks to ground this debate by analyzing the actual legal doctrines that may serve as bases for liability, and seeks to make a realistic evaluation of the likelihood of success of these types of suits. Climate change litigation, in its various forms, raises issues of standing, choice of law, pre-emption, redress, causation, separation of powers, and international comity. Wrestling all of these issues down to an analytical conclusion is intractable; this article seeks to make the problem more manageable by finding a plaintiff that would have a strong and viable claim for climate change damages, and finding a defendant that could most plausibly be sued for such damages. Analyzing the merits of such a suit and the possible forums in which the suit could be brought sheds considerable light on the more general phenomenon of climate change litigation.
This article shows that even with a strong plaintiff - the Inuit people of the Arctic region - and vulnerable defendants - U.S. electricity generating companies - the prospects of a successful lawsuit for climate change related damages are mixed. Current law seems to suggest that liability is slightly less probable than not, but certainly not inconceivable. However, the tenuous bases for liability in this hypothetical lawsuit, and the rarity of the characteristics of this plaintiff and these defendants that make this lawsuit plausible, suggests that climate change litigation is unlikely to play a significant role in arresting global climate change. In the end, the bulk of the work in reducing greenhouse gases must be undertaken by nation-states and international agreements.
Suggested Citation: Suggested Citation
Hsu, Shi-Ling, A Realistic Evaluation of Climate Change Litigation Through the Lens of a Hypothetical Lawsuit. University of Colorado Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1014870