Post-Jesner Climate Change Lawsuits Under the Alien Tort Statute

Abstract

Climate change is as vexing a problem as ever. Around the world, plaintiffs are taking steps to fight climate change through lawsuits against both governments and corporate entities, among other steps. At times, such lawsuits may seem somewhat tenuous, but litigation spurs progress. Actions to stem the dangers of climate change need to be taken on many fronts and in many stages without deterrence from the enormity of the task. This article analyzes whether the 1789 Alien Tort Statute (“ATS”) is a realistic mechanism to provide redress for climate change-related international human rights violations and related violations of international environmental law by American corporations, which have continued their climate-changing activities in the United States and elsewhere decades after becoming aware of their inherent danger.

This Article concludes that ATS litigation may be an option worth pursuing in the legal fight against climate change as the ATS is a vehicle geared towards tort compensation where U.S. national interests would be affected if the aggrieved parties received no compensation. Indeed, any lawsuit or action that, if nothing else, helps call attention to and eventually mitigate climate change is highly warranted. Ultimately, however, an ATS-based suit against American corporations for climate-change damages may be unlikely to succeed under the current Supreme Court composition. But that could and will change as well.

Keywords: Climate change, ATS, Alien Tort Statute, Post-Jesner, tort liability for climate change, liability against American corporations for climate change

JEL Classification: K10, K32, K33, K00