A Primer on Common Law & Related Causes of Action in Climate Change Litigation

Abstract

There is an ongoing debate in the scholarly and policy communities about the extent to which common law tools are likely to be an important part of climate change law as it unfolds. Some commentators suggest that there are strong grounds for including common law causes of action in the tool box of strategies for addressing concerns about climate change; efforts to persuade the courts can galvanize government officials to take action on statutory grounds and produce significant returns for plaintiffs. Others urge that comprehensive regulation of greenhouse gases is the superior GHG mitigation strategy and assert that private litigation is distinctly unsuited for dealing with such a global problem. In this chapter in the forthcoming book Global Climate Change and U.S. Law, we begin with an overview of the courts’ contribution to this discussion thus far. Next, we summarize the major threshold issues that will ultimately determine whether these cases can proceed to the merits. These include standing, displacement, preemption, and the political question doctrine. Provided these hurdles can be overcome, climate change litigants will face a number of practical issues involving choice of defendants and forum, matters of proof, and the availability of insurance; we discuss these considerations below. Finally, we cover other possible legal theories that do not easily fit elsewhere: causes of action under the Alien Tort Statute; and other quasi-adjudicatory claims grounded in international law.

Keywords: climate change, civil litigation, civil remedies, public trust, public nuisance, displacement, preemption, standing, political question