Climate Change Litigation and Tort Law: Regulation Through Litigation?

Abstract

Protecting our climate is a legal obligation. So, people – whether individually or in aggregate forms – are seeking reliefs for climate damages in courts (“climate change litigation”). States, governments, supranational entities and heavily-polluting corporations are increased called to account before courts for their (in)action or for their direct contribution in causing the global rise of temperatures. These cases often employ a classical tort law vocabulary: duty of care, breach, harm, cause, and so on, are the key words of climate change litigation, and tort law arguments lie at the heart of parties’ and courts’ legal reasonings. While the judiciary is called to a new role of in the global governance of climate change, legal scholars have wondered whether tort law is the appropriate form for regulating climate risks. More specifically, in the aftermath of the historical ruling of the Urgenda case, and while tort law cases are currently pending against energy and oil & gas giant corporations for their contribution to climate change (e.g., against Shell in The Netherlands and against Total in France), this article offers a view of the current state of affairs in this domain and critically discusses some of the “legal conundrums” that characterize the interplays between tort law and climate change in courts.