Liability for Climate Change Impacts: the Role of Climate Attribution Science

Abstract

Climate science has a central role to play in many cases related to climate change: Lliuya v. RWE is an exemplar of this. As the demands on courts to resolve issues related to climate change grow, judges are asked to adjudicate claims that introduce climate science to demonstrate that defendants’ actions interfere with rights owed to claimants. In many climate lawsuits, legal concepts such as human rights, torts, nuisance, and constitutional duties are invoked, with scientific evidence used to show how pre-existing legal theories can be applied in the context of climate change.

Our contribution in this chapter is to set out the nature of climate change attribution science and to clarify how this field of scientific inquiry can support causal argumentation in climate litigation. First, we provide a primer on litigation seeking compensation for climate-related losses and adaptation costs, for which a causal link between defendants’ greenhouse gas emissions and costs incurred by claimants needs to be established. Second, we introduce the field of climate attribution science and evaluate its use and judicial interpretation in ongoing climate liability lawsuits. Third, we describe a series of characteristics of attribution science that have been identified as potential obstacles to establishing legal causation and explain how these obstacles can be overcome through the synthesis of scientific insight and legal reasoning. Fourth, we discuss the future of attribution science in climate litigation, not only in cases related to damages but also in the context of cases seeking to compel defendants to reduce their emissions. We conclude with suggestions on how the prospects of the application of attribution science in climate litigation can be improved.

Keywords: climate change, attribution science, litigation, scientific evidence