Climate Change as Unjust Enrichment

Abstract

The climate crisis is the greatest challenge of our generation, with no satisfactory legal response in sight. Political polarization and influence from special interest groups have hindered effective regulatory action on both national and international fronts. Climate litigation through the court system, primarily based on tort principles, has also been largely unsuccessful.
In response to these legal failures, some courts and commentators have suggested that the law of unjust enrichment may provide the correct legal venue for addressing the climate crisis. This Article is the first to offer a general doctrinal-theoretical framework of climate change as unjust enrichment. This analysis is a necessary first step towards the adoption and success of unjust enrichment claims in climate litigation.
The argument of the paper is two-fold. First, we explain why the law of unjust enrichment can succeed where tort litigation has failed so far. Mainly, a tort claim must be based on a clear showing of harm. Climate litigation, based mostly on future and highly dispersed harms, does not fit this requirement. Conversely, a claim of unjust enrichment does not necessitate direct proof of harm but focuses on the unjust gains of the defendant. While the worst harms of climate change lie in the future, strong commercial actors benefit here and now.
Second, and closely related, we demonstrate that the use of unjust enrichment claims in climate litigation is not only feasible from a legal standpoint but also desirable as a matter of policy. If pollution remains profitable, it would be naïve to anticipate any significant progress in mitigating climate change. By making it possible to take away unjust gains, the law of unjust enrichment offers a remedy that addresses this pressing problem. We explain the doctrinal elements of our proposal and its theoretical foundations, compare its strengths and limitations to other legal strategies, and explore its implementation in practice.