From Smokes to Smokestacks: Lessons from Tobacco for the Future of Climate Change Liability

Georgetown Environmental Law Review (Geo. Envtl. L. Rev.) (2017, Forthcoming)

36 Pages Posted: 25 Apr 2017  

Martin Olszynski

University of Calgary - Faculty of Law

Sharon Mascher

Law, University of Calgary; Law, University of Western Australia

Meinhard Doelle

Dalhousie University - Schulich School of Law; Dalhousie University - Marine and Environmental Law Institute

Date Written: April 24, 2017

Abstract

In this article, we imagine a future Canada (circa 2030) wherein the world has managed to avoid the worst climate change but nevertheless has begun to experience considerable warming. Governments of all levels, but especially provincial ones, are incurring unprecedented costs to mitigate the effects of climate change and to adapt to new and uncertain climatic regimes. We then consider how legislatures might respond to these challenges. In our view, the answer may lie in the unprecedented story of tobacco liability, and especially the promulgation in the late 1990s of provincial legislation specifically designed to enable provinces to recover the public healthcare costs of tobacco-related disease. Although comparisons between the tobacco industry and the fossil-fuel industry are increasingly common, this article is the first to consider the legally-relevant differences and similarities between these two contexts in detail. It also sets out the main elements of a potential Climate Change Damages and Adaptation Costs Recovery Act. As will be seen, the design of such legislation engages several complex legal issues, implicating not only tort doctrine but also questions of legislative competence and private international law. Nevertheless, our initial assessment is that such legislation is both likely and feasible. Our analysis focuses primarily on Canadian law but should also be relevant to other jurisdictions that are increasingly grappling with the costs of climate change mitigation and adaptation.

Keywords: climate change, litigation, liability, legislation, tobacco, environmental law, tort law

JEL Classification: K13, K32

Suggested Citation

Olszynski, Martin and Mascher, Sharon and Doelle, Meinhard, From Smokes to Smokestacks: Lessons from Tobacco for the Future of Climate Change Liability (April 24, 2017). Georgetown Environmental Law Review (Geo. Envtl. L. Rev.) (2017, Forthcoming). Available at SSRN: https://ssrn.com/abstract=2957921

Martin Z.P. Olszynski (Contact Author)

University of Calgary - Faculty of Law ( email )

Murray Fraser Hall
2500 University Dr. N.W.
Calgary, Alberta T2N 1N4
Canada

Sharon Mascher

Law, University of Calgary ( email )

University Drive
Calgary, Alberta T2N 1N4
Canada

Law, University of Western Australia ( email )

35 Stirling Highway
Crawley, WA Western Australia 6009
AUSTRALIA

Meinhard Doelle

Dalhousie University - Schulich School of Law ( email )

6061 University Avenue
Halifax, Nova Scotia B3H 4H9
Canada

Dalhousie University - Marine and Environmental Law Institute ( email )

6061 University Avenue
Halifax, Nova Scotia B3H 4H9
Canada

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