A New Causal Pathway for Recovery in Climate Change Litigation?

January 2022
ELR 10038
Thomas Burman

Courts across the globe recognize that human-induced climate change leads to more frequent and severe extreme weather and other events, resulting in significant damages to persons and property. Although courts have therefore ordered countries and corporations to take more aggressive actions to limit their greenhouse gas emissions, no court has yet required any emitter to pay damages for injuries from a climate changerelated event. Causation issues remain a significant obstacle to such claims. To overcome this obstacle, this Article proposes using causal and liability standards that have long been applied in tort claims involving diffuse environmental pollution. Specifically, the “necessary element of a sufficient set” approach, when combined with proportional liability, may allow a plaintiff to establish an entity’s emissions as a legally relevant cause of a specific climate-related injury. The Article reviews the laws of five key jurisdictions, concluding that the proposed approach may successfully establish a legally relevant causal link in most, if not all, of them, with varying success depending on the climate change-related event in question.

Thomas Burman works as project development counsel at Virunga Power, a sustainable energy infrastructure developer in East and Southern Africa. He was previously an attorney in the energy, environmental, mining, and transportation division at Stinson LLP.